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Trump v. Anderson, 23-719

PER CURIAM. A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits for- mer President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year’s election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him. Former President Trump challenges that decision on sev- eral grounds. Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse. I Last September, about six months before the March 5, 2024, Colorado primary election, four Republican and two unaffiliated Colorado voters filed a petition against former President Trump and Colorado Secretary of State Jena Griswold in Colorado state court. These voters—whom we refer to as the respondents—contend that after former 2 TRUMP v. ANDERSON Per Curiam President Trump’s defeat in the 2020 Presidential election, he disrupted the peaceful transfer of power by intentionally organizing and inciting the crowd that breached the Capitol as Congress met to certify the election results on January 6, 2021. One consequence of those actions, the respondents maintain, is that former President Trump is constitution- ally ineligible to serve as President again. Their theory turns on Section 3 of the Fourteenth Amend- ment. Section 3 provides: “No person shall be a Senator or Representative in Con- gress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State leg- islature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” According to the respondents, Section 3 applies to the for- mer President because after taking the Presidential oath in 2017, he intentionally incited the breaching of the Capitol on January 6 in order to retain power. They claim that he is therefore not a qualified candidate, and that as a result, the Colorado secretary of state may not place him on the primary ballot. See Colo. Rev. Stat. §§1 –1–113(1), 1–4– 1101(1), 1–4–1201, 1–4–1203(2)(a), 1–4–1204 (2023). After a five-day trial, the state District Court found that former President Trump had “engaged in insurrection” within the meaning of Section 3, but nonetheless denied the respondents’ petition. The court held that Section 3 did not apply because the Presidency, which Section 3 does not mention by name, is not an “office . . . under the United  Cite as: 601 U. S. ____ (2024) 3 Per Curiam States” and the President is not an “officer of the United States” within the meaning of that provision. See App. to Pet. for Cert. 184a–284a. In December, the Colorado Supreme Court reversed in part and affirmed in part by a 4 to 3 vote. Reversing the District Court’s operative holding, the majority concluded that for purposes of Section 3, the Presidency is an office under the United States and the President is an officer of the United States. The court otherwise affirmed, holding (1) that the Colorado Election Code permitted the respond- ents’ challenge based on Section 3; (2) that Congress need not pass implementing legislation for disqualifications un- der Section 3 to attach; (3) that the political question doc- trine did not preclude judicial review of former President Trump’s eligibility; (4) that the District Court did not abuse its discretion in admitting into evidence portions of a con- gressional Report on the events of January 6; (5) that the District Court did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and (6) that former President Trump’s speech to the crowd that breached the Capitol on January 6 was not protected by the First Amend- ment. See id., at 1a–114a. The Colorado Supreme Court accordingly ordered Secre- tary Griswold not to “list President Trump’s name on the 2024 presidential primary ballot” or “count any write-in votes cast for him.” Id., at 114a. Chief Justice Boatright and Justices Samour and Berkenkotter each filed dissent- ing opinions. Id., at 115a–124a, 125a–161a, 162a–183a. Under the terms of the opinion of the Colorado Supreme Court, its ruling was automatically stayed pending this Court’s review. See id., at 114a. We granted former Presi- dent Trump’s petition for certiorari, which raised a single question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential pri- mary ballot?” See 601 U. S. ___ (2024). Concluding that it 4 TRUMP v. ANDERSON Per Curiam did, we now reverse. II A Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “funda- mentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Flor- ida, 517 U. S. 44 , 59 (1996); see also Ex parte Virginia, 100 U. S. 339 , 345 (1880). Section 1 of the Amendment, for in- stance, bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person . . . the equal protection of the laws.” And Section 5 confers on Congress “power to enforce” those prohibitions, along with the other provisions of the Amendment, “by appropriate legislation.” Section 3 of the Amendment likewise restricts state au- tonomy, but through different means. It was designed to help ensure an enduring Union by preventing former Con- federates from returning to power in the aftermath of the Civil War. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2544 (1866) (statement of Rep. Stevens, warning that with- out appropriate constitutional reforms “yelling secession- ists and hissing copperheads” would take seats in the House); id., at 2768 (statement of Sen. Howard, lamenting prospect of a “State Legislature . . . made up entirely of dis- loyal elements” absent a disqualification provision). Sec- tion 3 aimed to prevent such a resurgence by barring from office “those who, having once taken an oath to support the Constitution of the United States, afterward went into re- bellion against the Government of the United States.” Cong. Globe, 41st Cong., 1st Sess., 626 (1869) (statement of Sen. Trumbull). Section 3 works by imposing on certain individuals a pre- ventive and severe penalty—disqualification from holding  Cite as: 601 U. S. ____ (2024) 5 Per Curiam a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase con- cluded and the Colorado Supreme Court itself recognized, to “ ‘ascertain[ ] what particular individuals are embraced’ ” by the provision. App. to Pet. for Cert. 53a (quoting Grif- fin’s Case, 11 F. Cas. 7 , 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). Chase went on to explain that “[t]o accom- plish this ascertainment and ensure effective results, pro- ceedings, evidence, decisions, and enforcements of deci- sions, more or less formal, are indispensable.” Id., at 26. For its part, the Colorado Supreme Court also concluded that there must be some kind of “determination” that Sec- tion 3 applies to a particular person “before the disqualifi- cation holds meaning.” App. to Pet. for Cert. 53a. The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provi- sion is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “en- force” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507 , 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are car- ried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., at 2768. Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legisla- tion less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualifica- tion, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power 6 TRUMP v. ANDERSON Per Curiam conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375 , 385 (1982); see 16 Stat. 143 –144. B This case raises the question whether the States, in addi- tion to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal of- fices, especially the Presidency. “In our federal system, the National Government pos- sesses only limited powers; the States and the people retain the remainder.” Bond v. United States, 572 U. S. 844 , 854 (2014). Among those retained powers is the power of a State to “order the processes of its own governance.” Alden v. Maine, 527 U. S. 706 , 752 (1999). In particular, the States enjoy sovereign “power to prescribe the qualifica- tions of their own officers” and “the manner of their election . . . free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham, 178 U. S. 548 , 570–571 (1900). Although the Fourteenth Amendment restricts state power, nothing in it plainly withdraws from the States this traditional author- ity. And after ratification of the Fourteenth Amendment, States used this authority to disqualify state officers in ac- cordance with state statutes. See, e.g., Worthy v. Barrett, 63 N. C. 199 , 200, 204 (1869) (elected county sheriff ); State ex rel. Sandlin v. Watkins, 21 La. Ann. 631 , 631–633 (1869) (state judge). Such power over governance, however, does not extend to federal officeholders and candidates. Because federal offic- ers “ ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ ” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.” U. S. Term  Cite as: 601 U. S. ____ (2024) 7 Per Curiam Limits, Inc. v. Thornton, 514 U. S. 779 , 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to en- force Section 3 against federal officeholders and candidates. As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitu- tion guarantees ‘the entire independence of the General Government from any control by the respective States.’ ” Trump v. Vance, 591 U. S. 786 , 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516 , 521 (1914)). Indeed, consistent with that princi- ple, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas cor- pus relief to persons in federal custody. See McClung v. Silliman, 6 Wheat. 598 , 603–605 (1821); Tarble’s Case, 13 Wall. 397 , 405–410 (1872). The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Con- gress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5. This can hardly come as a surprise, given that the sub- stantive provisions of the Amendment “embody significant limitations on state authority.” Fitzpatrick v. Bitzer, 427 U. S. 445 , 456 (1976). Under the Amendment, States can- not abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (with- out thereby suffering reduced representation in the House). See Amdt. 14, §§1, 2. On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the 8 TRUMP v. ANDERSON Per Curiam provisions of the Amendment against the States. It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqual- ify a candidate for federal office. The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.1 But there is little reason to think that these Clauses implicitly authorize the States to enforce Sec- tion 3 against federal officeholders and candidates. Grant- ing the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power. The text of Section 3 reinforces these conclusions. Its fi- nal sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text im- poses no limits on that power, and Congress may exercise it any time, as the respondents concede. See Brief for Re- spondents 50. In fact, historically, Congress sometimes ex- ercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office.2 But if States were free to enforce Section 3 by barring can- didates from running in the first place, Congress would be —————— 1 The Elections Clause directs, in relevant part, that “[t]he Times, Places and Manner of holding Elections for Senators and Representa- tives, shall be prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1. The Electors Clause similarly provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” who in turn elect the President. Art. II, §1, cl. 2. 2 Shortly after the Fourteenth Amendment was ratified, for instance, Congress enacted a private bill to remove the Section 3 disability of Nel- son Tift of Georgia, who had recently been elected to represent the State in Congress. See ch. 393, 15 Stat. 427 . Tift took his seat in Congress immediately thereafter. See Cong. Globe, 40th Cong., 2d Sess., 4499– 4500 (1868). Congress similarly acted postelection to remove the disa- bilities of persons elected to state and local offices. See Cong. Globe, 40th Cong., 3d Sess., 29–30, 120–121 (1868); ch. 5, 15 Stat. 435 –436.  Cite as: 601 U. S. ____ (2024) 9 Per Curiam forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden con- gressional authority in such a way when it exercises its “ex- clusive” sovereign power over its own state offices. Taylor, 178 U. S., at 571. But it is implausible to suppose that the Constitution affirmatively delegated to the States the au- thority to impose such a burden on congressional power with respect to candidates for federal office. Cf. McCulloch v. Maryland, 4 Wheat. 316 , 436 (1819) (“States have no power . . . to retard, impede, burden, or in any manner con- trol, the operations of the constitutional laws enacted by Congress”). Nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Four- teenth Amendment.3 Such a lack of historical precedent is generally a “ ‘telling indication’ ” of a “ ‘severe constitutional problem’ ” with the asserted power. United States v. Texas, 599 U. S. 670 , 677 (2023) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 , 505 (2010)). And it is an especially telling sign here, be- cause as noted, States did disqualify persons from holding state offices following ratification of the Fourteenth Amend- ment. That pattern of disqualification with respect to state, but not federal offices provides “persuasive evidence of a general understanding” that the States lacked enforcement power with respect to the latter. U. S. Term Limits, 514 —————— 3 We are aware of just one example of state enforcement against a would-be federal officer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because—in the Governor’s view—Section 3 made Christy inel- igible to serve. But the Governor’s determination was not final; a com- mittee of the House reviewed Christy’s qualifications itself and recom- mended that he not be seated. The full House never acted on the matter, and Christy was never seated. See 1 A. Hinds, Precedents of the House of Representatives §459, pp. 470–472 (1907). 10 TRUMP v. ANDERSON Per Curiam U. S., at 826. Instead, it is Congress that has long given effect to Sec- tion 3 with respect to would-be or existing federal office- holders. Shortly after ratification of the Amendment, Con- gress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative of- fice—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143 –144 (repealed, 35 Stat. 1153 –1154, 62 Stat. 992 –993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590 . A successor to those provisions remains on the books today. See 18 U. S. C. §2383 . Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise se- rious questions about the scope of that power. Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520 . To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the spe- cific conduct the relevant provision prohibits. Florida Pre- paid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 , 639 (1999). Section 3, unlike other provisions of the Fourteenth Amendment, proscribes con- duct of individuals. It bars persons from holding office after  Cite as: 601 U. S. ____ (2024) 11 Per Curiam taking a qualifying oath and then engaging in insurrection or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” be- tween preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520 . Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. See Tr. of Oral Arg. 123. Any state enforcement of Section 3 against federal office- holders and candidates, though, would not derive from Sec- tion 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible. Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. “[I]n the con- text of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.” Ander- son v. Celebrezze, 460 U. S. 780 , 794–795 (1983) (footnote omitted). But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform an- swer consistent with the basic principle that “the President . . . represent[s] all the voters in the Nation.” Id., at 795 (emphasis added). Conflicting state outcomes concerning the same candi- date could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification deter- minations. Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while 12 TRUMP v. ANDERSON Per Curiam others might require a heightened showing. Certain evi- dence (like the congressional Report on which the lower courts relied here) might be admissible in some States but inadmissible hearsay in others. Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings, in particular States. Indeed, in some States—unlike Colorado (or Maine, where the secre- tary of state recently issued an order excluding former Pres- ident Trump from the primary ballot)—procedures for ex- cluding an ineligible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same fac- tual record). The “patchwork” that would likely result from state en- forcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. U. S. Term Limits, 514 U. S., at 822 . But in a Presidential election “the impact of the votes cast in each State is affected by the votes cast”— or, in this case, the votes not allowed to be cast—“for the various candidates in other States.” Anderson, 460 U. S., at 795 . An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The dis- ruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration. * * * For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States. The judgment of the Colorado  Cite as: 601 U. S. ____ (2024) 13 Per Curiam Supreme Court therefore cannot stand. All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into ac- count the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to fed- eral offices. But they are important ones, and it is the com- bination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular ra- tionale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. The judgment of the Colorado Supreme Court is reversed. The mandate shall issue forthwith. It is so ordered.

per_curiam

per_curiam

PER CURIAM. A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits for- mer President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year’s election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him. Former President Trump challenges that decision on sev- eral grounds. Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse. I Last September, about six months before the March 5, 2024, Colorado primary election, four Republican and two unaffiliated Colorado voters filed a petition against former President Trump and Colorado Secretary of State Jena Griswold in Colorado state court. These voters—whom we refer to as the respondents—contend that after former 2 TRUMP v. ANDERSON Per Curiam President Trump’s defeat in the 2020 Presidential election, he disrupted the peaceful transfer of power by intentionally organizing and inciting the crowd that breached the Capitol as Congress met to certify the election results on January 6, 2021. One consequence of those actions, the respondents maintain, is that former President Trump is constitution- ally ineligible to serve as President again. Their theory turns on Section 3 of the Fourteenth Amend- ment. Section 3 provides: “No person shall be a Senator or Representative in Con- gress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State leg- islature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” According to the respondents, Section 3 applies to the for- mer President because after taking the Presidential oath in 2017, he intentionally incited the breaching of the Capitol on January 6 in order to retain power. They claim that he is therefore not a qualified candidate, and that as a result, the Colorado secretary of state may not place him on the primary ballot. See –1–113(1), 1–4– 1101(1), 1–4–1201, 1–4–1203(2)(a), 1–4–1204 (2023). After a five-day trial, the state District Court found that former President Trump had “engaged in insurrection” within the meaning of Section 3, but nonetheless denied the respondents’ petition. The court held that Section 3 did not apply because the Presidency, which Section 3 does not mention by name, is not an “office under the United Cite as: 601 U. S. (2024) 3 Per Curiam States” and the President is not an “officer of the United States” within the meaning of that provision. See App. to Pet. for Cert. 184a–284a. In December, the Colorado Supreme Court reversed in part and affirmed in part by a 4 to 3 vote. Reversing the District Court’s operative holding, the majority concluded that for purposes of Section 3, the Presidency is an office under the United States and the President is an officer of the United States. The court otherwise affirmed, holding (1) that the Colorado Election Code permitted the respond- ents’ challenge based on Section 3; (2) that Congress need not pass implementing legislation for disqualifications un- der Section 3 to attach; (3) that the political question doc- trine did not preclude judicial review of former President Trump’s eligibility; (4) that the District Court did not abuse its discretion in admitting into evidence portions of a con- gressional Report on the events of January 6; (5) that the District Court did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and (6) that former President Trump’s speech to the crowd that breached the Capitol on January 6 was not protected by the First Amend- ment. See at 1a–114a. The Colorado Supreme Court accordingly ordered Secre- tary Griswold not to “list President Trump’s name on the 2024 presidential primary ballot” or “count any write-in votes cast for him.” at 114a. Chief Justice Boatright and Justices Samour and Berkenkotter each filed dissent- ing opinions. at 115a–124a, 125a–161a, 162a–183a. Under the terms of the opinion of the Colorado Supreme Court, its ruling was automatically stayed pending this Court’s review. See at 114a. We granted former Presi- dent Trump’s petition for certiorari, which raised a single question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential pri- mary ballot?” See 601 U. S. (2024). Concluding that it 4 TRUMP v. ANDERSON Per Curiam did, we now reverse. II A Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “funda- mentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of 59 (1996); see also Ex parte Virginia, 100 U. S. 339 345 (1880). Section 1 of the Amendment, for in- stance, bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person the equal protection of the laws.” And Section 5 confers on Congress “power to enforce” those prohibitions, along with the other provisions of the Amendment, “by appropriate legislation.” Section 3 of the Amendment likewise restricts state au- tonomy, but through different means. It was designed to help ensure an enduring Union by preventing former Con- federates from returning to power in the aftermath of the Civil War. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2544 (1866) (statement of Rep. Stevens, warning that with- out appropriate constitutional reforms “yelling secession- ists and hissing copperheads” would take seats in the House); (statement of Sen. Howard, lamenting prospect of a “State Legislature made up entirely of dis- loyal elements” absent a disqualification provision). Sec- tion 3 aimed to prevent such a resurgence by barring from office “those who, having once taken an oath to support the Constitution of the United States, afterward went into re- bellion against the Government of the United States.” Cong. Globe, 41st Cong., 1st Sess., 626 (1869) (statement of Sen. Trumbull). Section 3 works by imposing on certain individuals a pre- ventive and severe penalty—disqualification from holding Cite as: 601 U. S. (2024) 5 Per Curiam a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase con- cluded and the Colorado Supreme Court itself recognized, to “ ‘ascertain[ ] what particular individuals are embraced’ ” by the provision. App. to Pet. for Cert. 53a (quoting Grif- fin’s Case, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). Chase went on to explain that “[t]o accom- plish this ascertainment and ensure effective results, pro- ceedings, evidence, decisions, and enforcements of deci- sions, more or less formal, are indispensable.” For its part, the Colorado Supreme Court also concluded that there must be some kind of “determination” that Sec- tion 3 applies to a particular person “before the disqualifi- cation holds meaning.” App. to Pet. for Cert. 53a. The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provi- sion is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “en- force” the Fourteenth Amendment. See City of Boerne v. Flores, 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are car- ried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legisla- tion less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualifica- tion, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power 6 TRUMP v. ANDERSON Per Curiam conferred by of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375 385 (1982); see –144. B This case raises the question whether the States, in addi- tion to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal of- fices, especially the Presidency. “In our federal system, the National Government pos- sesses only limited powers; the States and the people retain the remainder.” 854 (2014). Among those retained powers is the power of a State to “order the processes of its own governance.” Alden v. Maine, 752 (1999). In particular, the States enjoy sovereign “power to prescribe the qualifica- tions of their own officers” and “the manner of their election free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham, 570–571 (1900). Although the Fourteenth Amendment restricts state power, nothing in it plainly withdraws from the States this traditional author- ity. And after ratification of the Fourteenth Amendment, States used this authority to disqualify state officers in ac- cordance with state statutes. See, e.g., 200, 204 (1869) (elected county sheriff ); State ex rel. 631–633 (1869) (state judge). Such power over governance, however, does not extend to federal officeholders and candidates. Because federal offic- ers “ ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ ” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.” U. S. Term Cite as: 601 U. S. (2024) 7 Per Curiam Limits, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to en- force Section 3 against federal officeholders and candidates. As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitu- tion guarantees ‘the entire independence of the General Government from any control by the respective States.’ ” 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516 521 (1914)). Indeed, consistent with that princi- ple, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas cor- pus relief to persons in federal custody. See McClung v. Silliman, 603–605 (1821); Tarble’s Case, 13 Wall. 397 405–410 (1872). The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Con- gress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5. This can hardly come as a surprise, given that the sub- stantive provisions of the Amendment “embody significant limitations on state authority.” Fitzpatrick v. Bitzer, 427 U. S. 445 456 (1976). Under the Amendment, States can- not abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (with- out thereby suffering reduced representation in the House). See Amdt. 14, 2. On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the 8 TRUMP v. ANDERSON Per Curiam provisions of the Amendment against the States. It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqual- ify a candidate for federal office. The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, cl. 1; Art. II, cl. 2.1 But there is little reason to think that these Clauses implicitly authorize the States to enforce Sec- tion 3 against federal officeholders and candidates. Grant- ing the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power. The text of Section 3 reinforces these conclusions. Its fi- nal sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text im- poses no limits on that power, and Congress may exercise it any time, as the respondents concede. See Brief for Re- spondents 50. In fact, historically, Congress sometimes ex- ercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office.2 But if States were free to enforce Section 3 by barring can- didates from running in the first place, Congress would be —————— 1 The Elections Clause directs, in relevant part, that “[t]he Times, Places and Manner of holding Elections for Senators and Representa- tives, shall be prescribed in each State by the Legislature thereof.” Art. I, cl. 1. The Electors Clause similarly provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” who in turn elect the President. Art. II, cl. 2. 2 Shortly after the Fourteenth Amendment was ratified, for instance, Congress enacted a private bill to remove the Section 3 disability of Nel- son Tift of Georgia, who had recently been elected to represent the State in Congress. See ch. 393, Tift took his seat in Congress immediately thereafter. See Cong. Globe, 40th Cong., 2d Sess., 4499– 4500 (1868). Congress similarly acted postelection to remove the disa- bilities of persons elected to state and local offices. See Cong. Globe, 40th Cong., 3d Sess., 29–30, 120–121 (1868); ch. 5, –436. Cite as: 601 U. S. (2024) 9 Per Curiam forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden con- gressional authority in such a way when it exercises its “ex- clusive” sovereign power over its own state offices. Taylor, But it is implausible to suppose that the Constitution affirmatively delegated to the States the au- thority to impose such a burden on congressional power with respect to candidates for federal office. Cf. McCulloch v. Maryland, 436 (1819) (“States have no power to retard, impede, burden, or in any manner con- trol, the operations of the constitutional laws enacted by Congress”). Nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Four- teenth Amendment.3 Such a lack of historical precedent is generally a “ ‘telling indication’ ” of a “ ‘severe constitutional problem’ ” with the asserted power. United 677 (2023) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 505 (2010)). And it is an especially telling sign here, be- cause as noted, States did disqualify persons from holding state offices following ratification of the Fourteenth Amend- ment. That pattern of disqualification with respect to state, but not federal offices provides “persuasive evidence of a general understanding” that the States lacked enforcement power with respect to the latter. U. S. Term Limits, 514 —————— 3 We are aware of just one example of state enforcement against a would-be federal officer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because—in the Governor’s view—Section 3 made Christy inel- igible to serve. But the Governor’s determination was not final; a com- mittee of the House reviewed Christy’s qualifications itself and recom- mended that he not be seated. The full House never acted on the matter, and Christy was never seated. See 1 A. Hinds, Precedents of the House of Representatives pp. 470–472 (1907). 10 TRUMP v. ANDERSON Per Curiam U. S., at 826. Instead, it is Congress that has long given effect to Sec- tion 3 with respect to would-be or existing federal office- holders. Shortly after ratification of the Amendment, Con- gress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative of- fice—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. 15, –144 (repealed, 35 Stat. 1153 –1154, –993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See 3, 12 Stat. 590 A successor to those provisions remains on the books today. See Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise se- rious questions about the scope of that power. Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520 To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the spe- cific conduct the relevant provision prohibits. Florida Pre- paid Postsecondary Ed. Expense 639 (1999). Section 3, unlike other provisions of the Fourteenth Amendment, proscribes con- duct of individuals. It bars persons from holding office after Cite as: 601 U. S. (2024) 11 Per Curiam taking a qualifying oath and then engaging in insurrection or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and reflect “congruence and proportionality” be- tween preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520 Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. See Tr. of Oral Arg. 123. Any state enforcement of Section 3 against federal office- holders and candidates, though, would not derive from Sec- tion 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible. Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. “[I]n the con- text of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.” Ander- 794–795 (1983) (footnote omitted). But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform an- swer consistent with the basic principle that “the President represent[s] all the voters in the Nation.” (emphasis added). Conflicting state outcomes concerning the same candi- date could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification deter- minations. Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while 12 TRUMP v. ANDERSON Per Curiam others might require a heightened showing. Certain evi- dence (like the congressional Report on which the lower courts relied here) might be admissible in some States but inadmissible hearsay in others. Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings, in particular States. Indeed, in some States—unlike Colorado (or Maine, where the secre- tary of state recently issued an order excluding former Pres- ident Trump from the primary ballot)—procedures for ex- cluding an ineligible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same fac- tual record). The “patchwork” that would likely result from state en- forcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. U. S. Term Limits, But in a Presidential election “the impact of the votes cast in each State is affected by the votes cast”— or, in this case, the votes not allowed to be cast—“for the various candidates in other States.” Anderson, 460 U. S., An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The dis- ruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration. * * * For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States. The judgment of the Colorado Cite as: 601 U. S. (2024) 13 Per Curiam Supreme Court therefore cannot stand. All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into ac- count the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to fed- eral offices. But they are important ones, and it is the com- bination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular ra- tionale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. The judgment of the Colorado Supreme Court is reversed. The mandate shall issue forthwith. It is so ordered.

National Federation of Independent Business v. Sebelius, 567 U.S. 519

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and *647provisions of the Patient Protection and Affordable Care Act (Affordable Care Act, Act, or ACA) go beyond those powers. We conclude that they do. This case is in one respect difficult: It presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Commerce Clause. Failure to act does result in an effect on commerce, and hence might be said to come under this Court’s “affecting commerce” criterion of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the Clause that far. The second question is whether the congressional power to tax and spend, U. S. Const., Art. I, § 8, cl. 1, permits the conditioning of a State’s continued receipt of all funds under a massive state-administered federal welfare program upon its acceptance of an expansion to that program. Several of our opinions have suggested that the power to tax and spend cannot be used to coerce state administration of a federal program, but we have never found a law enacted under the spending power to be coercive. Those questions are difficult. The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs. That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s *648own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65-66 (1936). Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice. The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without *649them. In our view it must follow that the entire statute is inoperative. I The Individual Mandate Article I, § 8, of the Constitution gives Congress the power to “regulate Commerce ... among the several States.” The Individual Mandate in the Act commands that every “applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage.” 26 U. S. C. § 5000A(a) (2006 ed., Supp. IV). If this provision “regulates” anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchasing insurance is “Commerce”; but one does not regulate commerce that does not exist by compelling its existence. In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief Justice Marshall wrote that the power to regulate commerce is the poviier “to prescribe the rule by which commerce is to be governed.” That understanding is consistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant “[t]o adjust by rule, method or established mode,” 2 N. Webster, An American Dictionary of the English Language (1828); “[t]o adjust by rule or method,” 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); “[t]o adjust, to direct according to rule,” 2 J. Ash, New and Complete Dictionary of the English Language (1775); “to put in order, set to rights, govern or keep in order,” T. Dyche & W. Pardon, A New General English Dictionary (16th ed. 1777).1 It can mean to direct the *650manner of something but not to direct that something come into being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used “regulate” in that peculiar fashion. If the word bore that meaning, Congress’ authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U. S. Const., Art. I, § 8, cl. 14, would have made superfluous the later provision for authority “[t]o raise and support Armies,” id., § 8, cl. 12, and “[t]o provide and maintain a Navy,” id., § 8, cl. 13. We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” Johnson, supra, or “directing] according to rule,” Ash, supra; it directs the creation of commerce. In response, the Government offers two theories as to why the Individual Mandate is nevertheless constitutional. Neither theory suffices to sustain its validity. A First, the Government submits that § 5000A is “integral to the Affordable Care Act’s insurance reforms” and “necessary to make effective the Act’s core reforms.” Brief for Petitioners in No. 11-398 (Minimum Coverage Provision) 24 (hereinafter Petitioners’ Minimum Coverage Brief). Congress included a “finding” to similar effect in the Act itself. See 42 U. S. C. § 18091(2)(H) (2006 ed., Supp. IV). As discussed in more detail in Part V, infra, the Act contains numerous health insurance reforms, but most notable for present purposes are the “guaranteed issue” and “community rating” provisions, §§ 300gg to 300gg-4. The former provides that, with a few exceptions, “each health insurance *651issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage.” § 300gg-1(a). That is, an insurer may not deny coverage on the basis of, among other things, any pre-existing medical condition that the applicant may have, and the resulting insurance must cover that condition. See § 300gg-3. Under ordinary circumstances, of course, insurers would respond by charging high premiums to individuals with pre-existing conditions. The Act seeks to prevent this through the community-rating provision. Simply put, the community-rating provision requires insurers to calculate an individual’s insurance premium based on only four factors: (i) whether the individual’s plan covers just the individual or his family also, (ii) the “rating area” in which the individual lives, (iii) the individual’s age, and (iv) whether the individual uses tobacco. § 300gg(a)(1)(A). Aside from the rough proxies of age and tobacco use (and possibly rating area), the Act does not allow an insurer to factor the individual’s health characteristics into the price of his insurance premium. This creates a new incentive for young and healthy individuals without pre-existing conditions. The insurance premiums for those in this group will not reflect their own low actuarial risks but will subsidize insurance for others in the pool. Many of them may decide that purchasing health insurance is not an economically sound decision—especially since the guaranteed-issue provision will enable them to purchase it at the same cost in later years and even if they have developed a pre-existing condition. But without the contribution of above-risk premiums from the young and healthy, the community-rating provision will not enable insurers to take on high-risk individuals without a massive increase in premiums. The Government presents the Individual Mandate as a unique feature of a complicated regulatory scheme governing many parties with countervailing incentives that must be *652carefully balanced. Congress has imposed an extensive set of regulations on the health insurance industry, and compliance with those regulations will likely cost the industry a great deal. If the industry does not respond by increasing premiums, it is not likely to survive. And if the industry does increase premiums, then there is a serious risk that its products—insurance plans—will become economically undesirable for many and prohibitively expensive for the rest. This is not a dilemma unique to regulation of the health insurance industry. Government regulation typically imposes costs on the regulated industry—especially regulation that prohibits economic behavior in which most market participants are already engaging, such as “piecing out” the market by selling the product to different classes of people at different prices (in the present context, providing much lower insurance rates to young and healthy buyers). And many industries so regulated face the reality that, without an artificial increase in demand, they cannot continue on. When Congress is regulating these industries directly, it enjoys the broad power to enact “ ‘all appropriate legislation’ ” to “‘protec[t]’” and “‘advanc[e]’” commerce, NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 36-37 (1937) (quoting The Daniel Ball, 10 Wall. 557, 564 (1871)). Thus, Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy. Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the mar*653ket, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961). At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants. In New York v. United States, 505 U. S. 144 (1992), we held that Congress could not, in an effort to regulate the disposal of radioactive waste produced in several different industries, order the States to take title to that waste. Id., at 174-177. In Printz v. United States, 521 U. S. 898 (1997), we held that Congress could not, in an effort to regulate the distribution of firearms in the interstate market, compel state law enforcement officials to perform background checks. Id., at 933-935. In United States v. Lopez, 514 U. S. 549 (1995), we held that Congress could not, as a means of fostering an educated interstate labor market through the protection of schools, ban the possession of a firearm within a school zone. Id., at 559-563. And in United States v. Morrison, 529 U. S. 598 (2000), we held that Congress could not, in an effort to ensure the full participation of women in the interstate economy, subject private individuals and companies to suit for gender-motivated violent torts. Id., at 609-619. The lesson of these cases is that the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power. The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and *654Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005). That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15-22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consistent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could no more be distinguished from interstate marijuana than, for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979). With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied *655a full income tax credit given to those who do purchase the insurance. The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. See Tr. of Oral Arg. 27-30, 43-45 (Mar. 27, 2012). It was unable to name any. As we said at the outset, whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept. See Lopez, 514 U. S., at 564 (“[I]f we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate”)- Section 5000A is defeated by that proposition. B The Government’s second theory in support of the Individual Mandate is that §5000A is valid because it is actually a “regulation of] activities having a substantial relation to interstate commerce,... i. e.,... activities that substantially affect interstate commerce. ” Id., at 558-559. See also Shreveport Rate Cases, supra. This argument takes a few different forms, but the basic idea is that § 5000A regulates “the way in which individuals finance their participation in the health care market.” Petitioners’ Minimum Coverage Brief 33 (emphasis added). That is, the provision directs the manner in which individuals purchase health care services and related goods (directing that they be purchased through insurance) and is therefore a straightforward exercise of the commerce power. The primary problem with this argument is that § 5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers. Indeed, the main objection many *656have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases. The Government responds that the health care market involves “essentially universal participation,” id., at 35. The principal difficulty with this response is that it is, in the only relevant sense, not true. It is true enough that everyone consumes “health care,” if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.2 Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits. In a variation on this attempted exercise of federal power, the Government points out that Congress in this Act has purported to regulate “economic and financial decision[s] to forego health insurance coverage and [to] attempt to self-insure,” 42 U. S. C. § 18091(2)(A), since those decisions have *657“a substantial and deleterious effect on interstate commerce,” Petitioners’ Minimum Coverage Brief 34. But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end. Wickard v. Filburn has been regarded as the most expansive assertion of the commerce power in our history. A close second is Perez v. United States, 402 U. S. 146 (1971), which upheld a statute criminalizing the eminently local activity of loan sharking. Both of those cases, however, involved commercial activity. To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power. C A few respectful responses to Justice Ginsburg’s dissent on the issue of the Mandate are in order. That dissent duly recites the test of Commerce Clause power that our opinions have applied, but disregards the premise the test contains. It is true enough that Congress needs only a “ ‘rational basis’ for concluding that the regulated activity substantially af*658fects interstate commerce,” ante, at 602 (emphasis added). But it must be activity affecting commerce that is regulated, and not merely the failure to engage in commerce. And one is not now purchasing the health care covered by the insurance mandate simply because one is likely to be purchasing it in the future. Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 612-613, a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the self-insurance market,” ante, at 613, seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything. The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 621. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank,” ibid. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists. *659The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 589, is quite beside the point. The issue here is whether the Federal Government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 595. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address *660whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power. The dissent dismisses the conclusion that the power to compel entry into the health insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, “will be obliged to pay at the counter before receiving the vehicle or nourishment,” whereas those refusing to purchase health insurance will ultimately get treated anyway, at others’ expense. Ante, at 608. “[T]he unique attributes of the health-care market.. . give rise to a significant free-riding problem that does not occur in other markets.” Ante, at 614. And “a vegetable-purchase mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the health-care costs” borne by other Americans. Ante, at 615. Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.” (Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer-fighting chemical which only that food contains, producing health care costs that are a burden on the rest of us—in which case, under the theory of Justice Ginsburg’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem-solving powers.) *661I—< The Taxing Power As far as § 5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “the minimum coverage PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S taxing power” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: a penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “alternatively, the minimum coverage provision is not a mandate-with-penalty but A tax.” It is important to bear this in mind in evaluating the tax argument of the Government and of *662those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ...” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this ease, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty. Our cases establish a clear line between a tax and a penalty: “ ‘(A] tax is an enforced contribution to provide for the support of government; a penalty ... is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held— never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an Act “adoptfe] the criteria of wrong*663doing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922). So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall... ensure that the individual... is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f... an applicable individual... fails to meet the requirement of subsection (a)... there is hereby imposed ... a penalty.” §5000A(b) (emphasis added). And several of Congress’ legislative “findings” with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. § 18091(2)(A) (“The requirement regulates activity . . . ”); § 18091(2)(C) (“The requirement . . . will add millions of new consumers to the health insurance market . . . ”); § 18091(2)(D) (“The requirement achieves near-universal coverage”); § 18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); § 18091(3) (“[T]he Supreme Court of the United'States ruled that insurance is interstate commerce subject to Federal regulation”). The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading “shall” to mean “may.” The “shall” in that case was contained in an introductory provision—a recital that provided for no legal consequences—which said that “[e]ach State shall be responsible for providing ... for the disposal of . . . low-level radioactive waste.” 42 U. S. C. § 2021c(a)(1)(A). The Court did not hold that “shall” could *664be construed to mean “may,” but rather that this preliminary provision could not impose upon the operative provisions of the Act a mandate that they did not contain: “We ... decline petitioners’ invitation to construe § 2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of the Act.” New York, 505 U. S., at 170. Our opinion then proceeded to “consider each [of the three operative provisions] in turn.” Ibid. Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New York provides no support for reading it to be permissive. Quite separately, the fact that Congress (in its own words) “imposed ... a penalty,” 26 U. S. C. § 5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826). We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, supra.). But we have never—never—treated as a tax an exaction which faces up *665to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction,in § 5000A(b) a “penalty.” That § 5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: those with religious objections or who participate in a “health care sharing ministry,” § 5000A(d)(2); those who are “not lawfully present” in the United States, § 5000A(d)(3); and those who are incarcerated, § 5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: those who cannot afford coverage, § 5000A(e)(l); who earn too little income to require filing a tax return, § 5000A(e)(2); who are members of an Indian tribe, § 5000A(e)(3); who experience only short gaps in coverage, § 5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, “have suffered a hardship with respect to the capability to obtain coverage,” § 5000A(e)(5). If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone. In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating *666positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government’s position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann. §38.2-3430.1:1 (Lexis Supp. 2011), which states, “No resident of [the] Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services . . . .” In opposing Virginia’s assertion of standing to challenge §5000A based on this statute, the Government said that “if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause.” Brief for Appellant in No. 11-1057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal “require[ment] to obtain or maintain a policy of individual insurance coverage.” Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual. . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” Petitioners’ Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard of or rare. It is not. See, e. g., 26 U. S. C. § 527(j) (IRS-collectible penalty for failure to make campaign-finance disclosures); § 5761(c) (IRS-collectible penalty for domestic sales of tobacco products labeled for export); §9707 (IRS-*667collectible penalty for failure to make required health insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “[I]f the concept of penalty means anything,” we said, “it means punishment for an unlawful act or omission.” Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veterans Affairs), see §§5000A(e)(1)(D), (e)(5), (f)(1)(A)(v), (f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope— a feature that would be quite extraordinary for taxes. The Government points out that “[t]he amount of the penalty will be calculated as a percentage of household income for federal income tax purposes, subject to a floor and [a] ca[p],” and that individuals who earn so little money that they “are not required to file income tax returns for the taxable year are not subject to the penalty” (though they are, as we discussed earlier, subject to the mandate). Petitioners’ Minimum Coverage Brief 12, 53. But varying a penalty according to ability to pay is an utterly familiar practice. See, e. g., 33 U. S. C. § 1319(d) (2006 ed.) (“In determining the amount of a civil penalty the court shall consider . . . the economic impact of the penalty on the violator”); see also 6 U. S. C. § 488e(c) (2006 ed., Supp. IV); 7 U. S. C. §§ 7734(b)(2), 8313(b)(2) (2006 ed.); 12 U. S. C. §§ 1701q-1(d)(3), 1723i(c)(3), 1735f-14(c)(3), 1735f-15(d)(3), 4585(c)(2) (2006 ed. and Supp. IV); 15 U.S.C. §§45(m)(1)(C), 77h-1(g)(3), 78u-2(d), 80a-9(d)(4), 80b-3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a)(2)(B), 5408(b)(2) (2006 ed. and Supp. IV); 33 U. S. C. § 2716a(a) (2006 ed.). The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute *668repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement. And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax. For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e. g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, § 7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defended] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was *669doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., § 501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., § 1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry. Finally, we must observe that rewriting § 5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, § 9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question— perhaps because, until today, no federal court has accepted the implausible argument that § 5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression. h-1 HH The Anti-Injunction Act There is another point related to the Individual Mandate that we must discuss—a point that logically should have been discussed first: whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-*670Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. § 7421(a) (2006 ed.). We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have “the purpose of restraining the assessment or collection of any tax.”6 The Government and those who support its position on this point make the remarkable argument that § 5000A is not *671a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11-398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52-62. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress. Compare Bailey v. George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred suit to restrain collections under the Child Labor Tax Law), with Child Labor Tax Case, 259 U. S., at 36-41 (holding the same law unconstitutional as exceeding Congress’ taxing power). Congress could have defined “tax” for purposes of that statute in such fashion as to exclude some exactions that in fact are “taxes.” It might have prescribed, for example, that a particular exercise of the taxing power “shall not be regarded as a tax for purposes of the Anti-Injunction Act.” But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists. IV The Medicaid Expansion We now consider respondents’ second challenge to the constitutionality of the ACA, namely, that the Act’s dramatic expansion of the Medicaid program exceeds Congress’ power to attach conditions to federal grants to the States. The ACA does not legally compel the States to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go along: termi*672nation of all the State’s Medicaid funding. For the average State, the annual federal Medicaid subsidy is equal to more than one-fifth of the State’s expenditures.7 A State forced out of the program would not only lose this huge sum but would almost certainly find it necessary to increase its own health care expenditures substantially, requiring either a drastic reduction in funding for other programs or a large increase in state taxes. And these new taxes would come on top of the federal taxes already paid by the State’s citizens to fund the Medicaid program in other States. The States challenging the constitutionality of the ACA’s Medicaid Expansion contend that, for these practical reasons, the Act really does not give them any choice at all. As proof of this, they point to the goal and the structure of the ACA. The goal of the Act is to provide near-universal medical coverage, 42 U. S. C. § 18091(2)(D), and without 100% state participation in the Medicaid program, attainment of this goal would be thwarted. Even if States could elect to remain in the old Medicaid program, while declining to participate in the Expansion, there would be a gaping hole in coverage. And if a substantial number of States were entirely expelled from the program, the number of persons without coverage would be even higher. In light of the ACA’s goal of near-universal coverage, petitioners argue, if Congress had thought that anything less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. But no such scheme is to be found anywhere in the more than 900 pages of the Act. This shows, they maintain, that Congress was certain that the ACA’s Medicaid offer was one that no State could refuse. In response to this argument, the Government contends that any congressional assumption about uniform state par*673ticipation was based on the simple fact that the offer of federal funds associated with the expanded coverage is such a generous gift that no State would want to turn it down. To evaluate these arguments, we consider the extent of the Federal Government’s power to spend money and to attach conditions to money granted to the States. A No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for many years the scope of this power was unsettled. The Constitution grants Congress the power to collect taxes “to . . . provide for the . . . general Welfare of the United States,” Art. I, § 8, cl. 1, and from “the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase” “the general welfare.” Butler, 297 U. S., at 65. Madison, it has been said, thought that the phrase “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section,” while Hamilton “maintained the clause confers a power separate and distinct from those later enumerated [and] is not restricted in meaning by the grant of them.” Ibid. The Court resolved this dispute in Butler. Writing for the Court, Justice Roberts opined that the Madisonian view would make Article I’s grant of the spending power a “mere tautology.” Ibid. To avoid that, he adopted Hamilton’s approach and found that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Id., at 66. Instead, he wrote, the spending power’s “confines are set in the clause which confers it, and not in those of §8 which bestow and define the legislative powers of the Congress.” Ibid.; see also Steward Machine Co. v. Davis, 301 U.S. 548, 586-587 (1937); Helvering v. Davis, 301 U. S. 619, 640 (1937). *674The power to make any expenditure that furthers “the general welfare” is obviously very broad, and shortly after Butler was decided the Court gave Congress wide leeway to decide whether an expenditure qualifies. See Helvering, 301 U. S., at 640-641. “The discretion belongs to Congress,” the Court wrote, “unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” Id., at 640. Since that time, the Court has never held that a federal expenditure was not for “the general welfare.” B One way in which Congress may spend to promote the general welfare is by making grants to the States. Monetary grants, so-called grants-in-aid, became more frequent during the 1930⅛, G. Stephens & N. Wikstrom, American Intergovernmental Relations—A Fragmented Federal Polity 83 (2007), and by 1950 they had reached $20 billion8 or 11.6% of state and local government expenditures from their own sources.9 By 1970 this number had grown to $123.7 billion10 or 29.1% of state and local government expenditures from their own sources.11 As of 2010, federal outlays to state and local governments came to over $608 billion or 37.5% of state and local government expenditures.12 *675When Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981); South Dakota v. Dole, 483 U. S. 203, 206 (1987); Fullilove v. Klutznick, 448 U. S. 448, 474 (1980) (opinion of Burger, C. J.); Steward Machine, supra, at 593. C This practice of attaching conditions to federal funds greatly increases federal power, “[Objectives not thought to be within Article I’s enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.” Dole, supra, at 207 (internal quotation marks and citation omitted); see also College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 686 (1999) (by attaching conditions to federal funds; Congress may induce the States to “tak[e] certain actions that Congress could not require them to take”). This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields,” Davis v. Monroe County Bd. of Ed., 526 U. S. 629, 654 (1999) (Kennedy, J., dissenting) (internal quotation marks omitted), is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’ ” Dole, supra, at 217 (O’Connor, J., dissenting) (quoting Butler, supra, at 78). “[T]he Spending Clause power, if wielded without concern for the federal bal-*676anee, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” Davis, supra, at 654-655 (Kennedy, J., dissenting). Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the States has limits. See, e. g., Dole, 483 U. S., at 207-208; id., at 207 (spending power is “subject to several general restrictions articulated in our cases”). For one thing, any such conditions must be unambiguous so that a State at least knows what it is getting into. See Pennhurst, supra, at 17. Conditions must also be related “to the federal interest in particular national projects or programs,” Massachusetts v. United States, 435 U. S. 444, 461 (1978) (plurality opinion), and the conditional grant of federal funds may not “induce the States to engage in activities that would themselves be unconstitutional,” Dole, supra, at 210; see Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 269-270 (1985). Finally, while Congress may seek to induce States to accept conditional grants, Congress may not cross the “point at which pressure turns into compulsion, and ceases to be inducement.” Steward Machine, 301 U. S., at 590. Accord, College Savings Bank, supra, at 687; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 285 (1991) (White, J., dissenting); Dole, supra, at 211. When federal legislation gives the States a real choice whether to accept or decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship. See Barnes v. Gorman, 536 U. S. 181, 186 (2002); Pennhurst, 451 U. S., at 17. And just as a contract is voidable if coerced, “[t]he legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly accepts the terms of *677the ‘contract.’” Ibid, (emphasis added). If a federal spending program coerces participation the States have not “exercise[d] their choice”—let alone made an “informed choice.” Id., at 17, 25. Coercing States to accept conditions risks the destruction of the “unique role of the States in our system.” Davis, supra, at 685 (Kennedy, J., dissenting). “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, 505 U. S., at 162. Congress may not “simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Id., at 161 (internal quotation marks and brackets omitted). Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the States’ choice whether to enact or administer a federal regulatory program is rendered illusory. Where all Congress has done is to “encouragfe] state regulation rather than compe[l] it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. [But] where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.” Id., at 168. Amici who support the Government argue that forcing state employees to implement a federal program is more respectful of federalism than using federal workers to implement that program. See, e. g., Brief for Service Employees International Union et al. as Amici Curiae in No. 11-398, pp. 25-26. They note that Congress, instead of expanding Medicaid, could have established an entirely federal program to provide coverage for the same group of people. By choosing to structure Medicaid as a cooperative federal-state program, they contend, Congress allows for more state control. Ibid. *678This argument reflects a view of federalism that our cases have rejected—and with good reason. When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, “it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York, 505 U. S., at 168. But when the Federal Government compels the States to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id., at 169; see Printz, 521 U. S., at 930. For this reason, federal officeholders may view this “departur[e] from the federal structure to be in their personal interests ... as a means of shifting responsibility for the eventual decision.” New York, 505 U. S., at 182-183. And even state officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility may also permit them to escape accountability. Id., at 182. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive. Once it is recognized that spending-power legislation cannot coerce state participation, two questions remain: (1) What is the meaning of coercion in this context? (2) Is the ACA’s expanded Medicaid coverage coercive? We now turn to those questions. D 1 The answer to the first of these questions—the meaning of coercion in the present context—is straightforward. As we have explained, the legitimacy of attaching conditions to federal grants to the States depends on the voluntariness of the States’ choice to accept or decline the offered package. *679Therefore, if States really have no choice other than to accept the package, the offer is coercive, and the conditions cannot be sustained under the spending power. And as our decision in South Dakota v. Dole makes clear, theoretical voluntariness is not enough. In South Dakota v. Dole, we considered whether the spending power permitted Congress to condition 5% of the State’s federal highway funds on the State’s adoption of a minimum drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but we disagreed, reasoning that “Congress ha[d] directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds.” 483 U. S., at 211. Because “all South Dakota would lose if she adhere[d] to her chosen course as to a suitable minimum drinking age [was] 5% of the funds otherwise obtainable under specified highway grant programs,” we found that “Congress ha[d] offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose.” Ibid. Thus, the decision whether to comply with the federal condition “remain[ed] the prerogative of the States not merely in theory but in fact,” and so the program at issue did not exceed Congress’ power. Id., at 211-212 (emphasis added). The question whether a law enacted under the spending power is coercive in fact will sometimes be difficult, but where Congress has plainly “crossed the line distinguishing encouragement from coercion,” New York, supra, at 175, a federal program that coopts the States’ political processes must be declared unconstitutional. “[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene.” Lopez, 514 U. S., at 578 (Kennedy, J., concurring). 2 The Federal Government’s argument in this case at best pays lipservice to the anticoercion principle. The Federal *680Government suggests that it is sufficient if States are “free, as a matter of law, to turn down” federal funds. Brief for Respondents in No. 11-400, p. 17 (emphasis added); see also id., at 25. According to the Federal Government, neither the amount of the offered federal funds nor the amount of the federal taxes extracted from the taxpayers of a State to pay for the program in question is relevant in determining whether there is impermissible coercion. Id., at 41-46. This argument ignores reality. When a heavy federal tax is levied to support a federal program that offers large grants to the States, States may, as a practical matter, be unable to refuse to participate in the federal program and to substitute a state alternative. Even if a State believes that the federal program is ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating States.13 Acceptance of the Federal Government’s interpretation of the anticoercion rule would permit Congress to dictate policy in areas traditionally governed primarily at the state or local level. Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this fon ding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and *681hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. And if the State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the field of education. Asked at oral argument whether such a law would be allowed under the spending power, the Solicitor General responded that it would. Tr. of Oral Arg. in No. 11-400, pp. 44-45 (Mar. 28, 2012). E Whether federal spending legislation crosses the line from enticement to coercion is often difficult to determine, and courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear. In this case, however, there can be no doubt. In structuring the ACA, Congress unambiguously signaled its belief that every State would have no real choice but to go along with the Medicaid Expansion. If the anti-coercion rule does not apply in this case, then there is no such rule. 1 The dimensions of the Medicaid program lend strong support to the petitioner States’ argument that refusing to accede to the conditions set out in the ACA is not a realistic option. Before the ACA’s enactment, Medicaid funded medical care for pregnant women, families with dependents, children, the blind, the elderly, and the disabled. See 42 U. S. C. § 1396a(a)(10) (2006 ed. and Supp. IV). The ACA greatly expands the program’s reach, making new funds available to States that agree to extend coverage to all individuals who are under age 65 and have incomes below 133% of the federal poverty line. See § 1396a(a)(10)(A)(i)(VIII) (2006 ed., Supp. *682IV). Any State that refuses to expand its Medicaid programs in this way is threatened with a severe sanction: the loss of all its federal Medicaid funds. See § 1396c (2006 ed.). Medicaid has long been the largest federal program of grants to the States. See Brief for Respondents in No. 11-400, at 37. In 2010, the Federal Government directed more than $552 billion in federal funds to the States. See Nat. Assn, of State Budget Officers, 2010 State Expenditure Report: Examining Fiscal 2009-2011 State Spending, p. 7 (2011) (NASBO Report). Of this, more than $233 billion went to pre-expansion Medicaid. See id., at 47.14 This amount equals nearly 22% of all state expenditures combined. See id., at 7. The States devote a larger percentage of their budgets to Medicaid than to any other item. Id., at 5. Federal funds account for anywhere from 50% to 83% of each State’s total Medicaid expenditures, see §1396d(b) (2006 ed., Supp. IV); most States receive more than $1 billion in federal Medicaid funding; and a quarter receive more than $5 billion, NASBO Report 47. These federal dollars total nearly two thirds— 64.6%—of all Medicaid expenditures nationwide.15 Id., at 46. *683The Court of Appeals concluded that the States failed to establish coercion in this case in part because the “states have the power to tax and raise revenue, and therefore can create and fund programs of their own if they do not like Congress’s terms.” 648 F. 3d 1235, 1268 (CA11 2011); see Brief for Sen. Harry Reid et al. as Amici Curiae in No. 11-400, p. 21 (“States may always choose to decrease expenditures on other programs or to raise revenues”). But the sheer size of this federal spending program in relation to state expenditures means that a State would be very hard pressed to compensate for the loss of federal funds by cutting other spending or raising additional revenue. Arizona, for example, commits 12% of its state expenditures to Medicaid, and relies on the Federal Government to provide the rest: $5.6 billion, equaling roughly one-third of Arizona’s annual state expenditures of $17 billion. See NASBO Report 7, 47. Therefore, if Arizona lost federal Medicaid funding, the State would have to commit an additional 33% of all its state expenditures to fund an equivalent state program along the lines of pre-expansion Medicaid. This means that the State would have to allocate 45% of its annual expenditures for that one purpose. See ibid. The States are far less reliant on federal funding for any other program. After Medicaid, the next biggest federal funding item is aid to support elementary and secondary education, which amounts to 12.8% of total federal outlays to the States, see id., at 7, 16, and equals only 6.6% of all state expenditures combined. See ibid. In Arizona, for example, although federal Medicaid expenditures are equal to 33% of all state expenditures, federal education funds amount to only 9.8% of all state expenditures. See ibid. And even in States with less than average federal Medicaid funding, that funding is at least twice the size of federal education *684funding as a percentage of state expenditures. Id., at 7, 16, 47. A State forced out of the Medicaid program would face burdens in addition to the loss of federal Medicaid funding. For example, a nonparticipating State might be found to be ineligible for other major federal funding sources, such as Temporary Assistance for Needy Families (TANF), which is premised on the expectation that States will participate in Medicaid. See 42 U. S. C. § 602(a)(3) (requiring that certain beneficiaries of TANF funds be “eligible for medical assistance under the State[’s Medicaid] plan”). And withdrawal or expulsion from the Medicaid program would not relieve a State’s hospitals of their obligation under federal law to provide care for patients who are unable to pay for medical services. The Emergency Medical Treatment and Active Labor Act, § 1395dd, requires hospitals that receive any federal funding to provide stabilization care for indigent patients but does not offer federal funding to assist facilities in carrying out its mandate. Many of these patients are now covered by Medicaid. If providers could not look to the Medicaid program to pay for this care, they would find it exceedingly difficult to comply with federal law unless they were given substantial state support. See, e. g., Brief for Economists as Amici Curiae in No. 11-400, p. 11. For these reasons, the offer that the ACA makes to the States—go along with a dramatic expansion of Medicaid or potentially lose all federal Medicaid funding—is quite unlike anything that we have seen in a prior spending-power case. In South Dakota v. Dole, the total amount that the States would have lost if every single State had refused to comply with the 21-year-old drinking age was approximately $614.7 million—or about 0.19% of all state expenditures combined. See Nat. Assn, of State Budget Officers, 1989 (Fiscal Years 1987-1989 Data) State Expenditure Report 10, 84 (1989), http://www.nasbo.org/publications-data/state-expenditure-report/archives. South Dakota stood to lose, at most, fund*685ing that amounted to less than 1% of its annual state expenditures. See ibid. Under the ACA, by contrast, the Federal Government has threatened to withhold 42.3% of all federal outlays to the States, or approximately $233 billion. See NÁSBO Report 7, 10, 47. South Dakota stands to lose federal funding equaling 28.9% of its annual state expenditures. See id., at 7, 47. Withholding $614.7 million, equaling only 0.19% of all state expenditures combined, is aptly characterized as “relatively mild encouragement,” but threatening to withhold $233 billion, equaling 21.86% of all state expenditures combined, is a different matter. 2 What the statistics suggest is confirmed by the goal and structure of the ACA. In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends. The stated goal of the ACA is near-universal health care coverage. To achieve this goal, the ACA mandates that every person obtain a minimum level of coverage. It attempts to reach this goal in several different ways. The guaranteed-issue and community-rating provisions are designed to make qualifying insurance available and affordable for persons with medical conditions that may require expensive care. Other ACA provisions seek to make such policies more affordable for people of modest means. Finally, for low-income individuals who are simply not able to obtain insurance, Congress expanded Medicaid, transforming it from a program covering only members of a limited list of vulnerable groups into a program that provides at least the requisite minimum level of coverage for the poor. See 42 U. S. C. §§ 1396a(a)(10)(A)(i)(VIII) (2006 ed. and Supp. IV), 1396u-7(a), (b)(5), 18022(a). This design was intended to provide at least a specified minimum level of coverage for all Americans, but the achievement of that goal obviously depends on participation by every single State. If any State—not to *686mention all of the 26 States that brought this suit—chose to decline the federal offer, there would be a gaping hole in the ACA’s coverage. It is true that some persons who are eligible for Medicaid coverage under the ACA may be able to secure private insurance, either through their employers or by obtaining subsidized insurance through an exchange. See 26 U. S. C. § 36B(a) (2006 ed., Supp. IV); Brief for Respondents in No. 11-400, at 12. But the new federal subsidies are not available to those whose income is below the federal poverty level, and the ACA provides no means, other than Medicaid, for these individuals to obtain coverage and comply with the Mandate. The Government counters that these people will not have to pay the penalty, see, e. g., Tr. of Oral Arg. in No. 11-400, p. 68 (Mar. 28, 2012); Brief for Respondents in No. 11-400, at 49-50, but that argument misses the point: Without Medicaid, these individuals will not have coverage and the ACA’s goal of near-universal coverage will be severely frustrated. If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. § 18041(c)(1) (2006 ed., Supp. IV). Likewise, knowing that States would not necessarily provide affordable health insurance for aliens lawfully present in the United States—because Medicaid does not require States to provide such coverage—Congress extended the availability of the new federal insurance subsidies to all aliens. See 26 *687U. S. C. § 36B(c)(1)(B)(ii) (excepting from the income limit individuals who are “not eligible for the medicaid program ... by reason of [their] alien status”)- Congress did not make these subsidies available for citizens with incomes below the poverty level because Congress obviously assumed that they would be covered by Medicaid. If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens. These features of the ACA convey an unmistakable message: Congress never dreamed that any State would refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical option. The Federal Government does not dispute the inference that Congress anticipated 100% state participation, but it argues that this assumption was based on the fact that ACA’s offer was an “exceedingly generous” gift. Brief for Respondents in No. 11-400, at 50. As the Federal Government sees things, Congress is like the generous benefactor who offers $1 million with few strings attached to 50 randomly selected individuals. Just as this benefactor might assume that all of these 50 individuals would snap up his offer, so Congress assumed that every State would gratefully accept the federal funds (and conditions) to go with the expansion of Medicaid. This characterization of the ACA’s offer raises obvious questions. If that offer is “exceedingly generous,” as the Federal Government maintains, why have more than half the States brought this lawsuit, contending that the offer is coercive? And why did Congress find it necessary to threaten that any State refusing to accept this “exceedingly generous” gift would risk losing all Medicaid funds? Congress could have made just the new funding provided under the ACA contingent on acceptance of the terms of the Medicaid *688Expansion. Congress took such an approach in some earlier amendments to Medicaid, separating new coverage requirements and funding from the rest of the program so that only new funding was conditioned on new eligibility extensions. See, e. g., Social Security Amendments of 1972, 86 Stat. 1465. Congress’ decision to do otherwise here reflects its understanding that the ACA offer is not an “exceedingly generous” gift that no State in its right mind would decline. Instead, acceptance of the offer will impose very substantial costs on participating States. It is true that the Federal Government will bear most of the initial costs associated with the Medicaid Expansion, first paying 100% of the costs of covering newly eligible individuals between 2014 and 2016. 42 U. S. C. § 1396d(y). But that is just part of the picture. Participating States will be forced to shoulder substantial costs as well, because after 2019 the Federal Government will cover only 90% of the costs associated with the Expansion, see ibid., with state spending projected to increase by at least $20 billion by 2020 as a consequence. Statement of Douglas W. Elmendorf, CBO’s Analysis of the Major Health Care Legislation Enacted in March 2010, p. 24 (Mar. 30, 2011); see also R. Bovbjerg, B. Ormond, & V. Chen, Kaiser Commission on Medicaid and the Uninsured, State Budgets Under Federal Health Reform: The Extent and Causes of Variations in Estimated Impacts 4, n. 27 (Feb. 2011) (estimating new state spending at $43.2 billion through 2019). After 2019, state spending is expected to increase at a faster rate; the Congressional Budget Office estimates new state spending at $60 billion through 2021. Statement of Douglas W. Elmendorf, supra, at 24. And these costs may increase in the future because of the very real possibility that the Federal Government will change funding terms and reduce the percentage of funds it will cover. This would leave the States to bear an increasingly large percentage of the bill. See Tr. of Oral Arg. in No. 11-400, pp. 74-76 (Mar. 28, 2012). Finally, after 2015, the States will have to pick up the tab *689for 50% of all administrative costs associated with implementing the new program, see §§ 1396b(a)(2)-(5), (7) (2006 ed. and Supp. IV), costs that could approach $12 billion between fiscal years 2014 and 2020, see Dept, of Health and Human Services, Centers for Medicare and Medicaid Services, 2010 Actuarial Report on the Financial Outlook for Medicaid 30. In sum, it is perfectly clear from the goal and structure of the ACA that the offer of the Medicaid Expansion was one that Congress understood no State could refuse. The Medicaid Expansion therefore exceeds Congress’ spending power and cannot be implemented. F Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional. See Parts IV-A to IV-E, supra; Part IV-A, ante, at 575-585 (opinion of Roberts, C. J., joined by Breyer and Kagan, JJ.). Because the Medicaid Expansion is unconstitutional, the question of remedy arises. The most natural remedy would be to invalidate the Medicaid Expansion. However, the Government proposes—in two cursory sentences at the very end of its brief—preserving the Expansion. Under its proposal, States would receive the additional Medicaid funds if they expand eligibility, but States would keep their preexisting Medicaid funds if they do not expand eligibility. We cannot accept the Government’s suggestion. The reality that States were given no real choice but to expand Medicaid was not an accident. Congress assumed States would have no choice, and the ACA depends on States’ having no choice, because its Mandate requires low-income individuals to obtain insurance many of them can afford only through the Medicaid Expansion. Furthermore, a State’s withdrawal might subject everyone in the State to much higher insurance premiums. That is because the Medicaid Expansion will no longer offset the cost to the insurance *690industry imposed by the ACA’s insurance regulations and taxes, a point that is explained in more detail in the sever-ability section below. To make the Medicaid Expansion optional despite the ACA’s structure and design “ ‘would be to make a new law, not to enforce an old one. This is no part of our duty.’” Trade-Mark Cases, 100 U. S. 82, 99 (1879). Worse, the Government’s proposed remedy introduces a new dynamic: States must choose between expanding Medicaid or paying huge tax sums to the federal fisc for the sole benefit of expanding Medicaid in other States. If this divisive dynamic between and among States can be introduced at all, it should be by conscious congressional choice, not by Court-invented interpretation. We do not doubt that States are capable of making decisions when put in a tight spot. We do doubt the authority of this Court to put them there. The Government cites a severability clause codified with Medicaid in Chapter 7 of the United States Code stating that if “any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.” 42 U. S. C. § 1303. But that clause tells us only that other provisions in Chapter 7 should not be invalidated if § 1396c, the authorization for the cutoff of all Medicaid funds, is unconstitutional. It does not tell us that § 1396c can be judicially revised, to say what it does not say. Such a judicial power would not be called the doctrine of severability but perhaps the doctrine of amendatory invalidation—similar to the amendatory veto that permits the Governors of some States to reduce the amounts appropriated in legislation. The proof that such a power does not exist is the fact that it would not preserve other congressional dispositions, but would leave it up to the Court what the “validated” legislation will contain. The Court today opts for permitting the cutoff of only incremental Medicaid funding, but it might just as well have permitted, say, the cutoff of funds that repre*691sent no more than x percent of the State’s budget. The Court severs nothing, but simply revises § 1396c to read as the Court would desire. We should not accept the Government’s invitation to attempt to solve a constitutional problem by rewriting the Medicaid Expansion so as to allow States that reject it to retain their pre-existing Medicaid funds. Worse, the Government’s remedy, now adopted by the Court, takes the ACA and this Nation in a new direction and charts a course for federalism that the Court, not the Congress, has chosen; but under the Constitution, that power and authority do not rest with this Court. V Severability The Affordable Care Act seeks to achieve “near-universal” health insurance coverage. §18091(2)(D) (2006 ed., Supp. IV). The two pillars of the Act are the Individual Mandate and the expansion of coverage under Medicaid. In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid. It follows, as some of the parties urge, that all other provisions of the Act must fall as well. The following section explains the severability principles that require this conclusion. This analysis also shows how closely interrelated the Act is, and this is all the more reason why it is judicial usurpation to impose an entirely new mechanism for withdrawal of Medicaid funding, see Part IV-F, supra, which is one of many examples of how rewriting the Act alters its dynamics. A When an unconstitutional provision is but a part of a more comprehensive statute, the question arises as to the validity of the remaining provisions. The Court’s authority to declare a statute partially unconstitutional has been well established since Marbury v. Madison, 1 Cranch 137 (1803), when the Court severed an unconstitutional provision from the Ju*692diciary Act of 1789. And while the Court has sometimes applied “at least a modest presumption in favor of... sever-ability,” C. Nelson, Statutory Interpretation 144 (2011), it has not always done so, see, e. g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 190-195 (1999). An automatic or too cursory severance of statutory provisions risks “rewrit[ing] a statute and giv[ing] it an effect altogether different from that sought by the measure viewed as a whole.” Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362 (1935). The Judiciary, if it orders uncritical severance, then assumes the legislative function; for it imposes on the Nation, by the Court’s decree, its own new statutory regime, consisting of policies, risks, and duties that Congress did not enact. That can be a more extreme exercise of the judicial power than striking the whole statute and allowing Congress to address the conditions that pertained when the statute was considered at the outset. The Court has applied a two-part guide as the framework for severability analysis. The test has been deemed “well established.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). First, if the Court holds a statutory provision unconstitutional, it then determines whether the now truncated statute will operate in the manner Congress intended. If not, the remaining provisions must be invalidated. See id., at 685. In Alaska Airlines, the Court clarified that this first inquiry requires more than asking whether “the balance of the legislation is incapable of functioning independently.” Id., at 684. Even if the remaining provisions will operate in some coherent way, that alone does not save the statute. The question is whether the provisions will work as Congress intended. The “relevant inquiry in evaluating sever-ability is whether the statute will fimction in a manner consistent with the intent of Congress.” Id., at 685 (emphasis in original). See also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 509 (2010) (the Act “remains fully operative as a law with these tenure *693restrictions excised” (internal quotation marks omitted)); United States v. Booker, 543 U. S. 220, 227 (2005) (“[T]wo provisions ... must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent”); Mille Lacs, supra, at 194 (“[E]mbodying as it did one coherent policy, [the entire order] is inseverable”). Second, even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated. See Alaska Airlines, supra, at 685 (“[T]he unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted”); see also Free Enterprise Fund, supra, at 509 (“[N]othing in the statute’s text or historical context makes it ‘evident’ that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will”); Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 330 (2006) (“Would the legislature have preferred what is left of its statute to no statute at all”); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion) (“Would Congress still have passed § 10(a) had it known that the remaining provisions were invalid” (internal quotation marks and brackets omitted)). The two inquiries—whether the remaining provisions will operate as Congress designed them, and whether Congress would have enacted the remaining provisions standing alone—often are interrelated. In the ordinary course, if the remaining provisions cannot operate according to the congressional design (the first inquiry), it almost necessarily follows that Congress would not have enacted them (the second inquiry). This close interaction may explain why the Court has not always been precise in distinguishing between the *694two. There are, however, occasions in which the severability standard’s first inquiry (statutory functionality) is not a proxy for the second inquiry (whether the Legislature intended the remaining provisions to stand alone). B The Act was passed to enable affordable, “near-universal” health insurance coverage. 42 U. S. C. § 18091(2)(D). The resulting, complex statute consists of mandates and other requirements; comprehensive regulation and penalties; some undoubted taxes; and increases in some governmental expenditures, decreases in others. Under the severability test set out above, it must be determined if those provisions function in a coherent way and as Congress would have intended, even when the major provisions establishing the Individual Mandate and Medicaid Expansion are themselves invalid. Congress did not intend to establish the goal of near-universal coverage without regard to fiscal consequences. See, e. g., ACA § 1563, 124 Stat. 270 (“[T]his Act will reduce the Federal deficit between 2010 and 2019”). And it did not intend to impose the inevitable costs on any one industry or group of individuals. The whole design of the Act is to balance the costs and benefits affecting each set of regulated parties. Thus, individuals are required to obtain health insurance. See 26 U. S. C. § 5000A(a). Insurance companies are required to sell them insurance regardless of patients’ pre-existing conditions and to comply with a host of other regulations. And the companies must pay new taxes. See § 4980I (high-cost insurance plans); 42 U. S. C. §§ 300gg(a)(1), 300gg-4(b) (community rating); §§ 300gg-1, 300gg-3, 300gg-4(a) (guaranteed issue); §300gg-11 (elimination of coverage limits); § 300gg-14(a) (dependent children up to age 26); ACA §§ 9010, 10905, 124 Stat. 865, 1017 (excise tax); Health Care and Education Reconciliation Act of 2010 (HCERA) § 1401, 124 Stat. 1059 (excise tax). States are expected to expand Medicaid eligibility and to create regulated marketplaces *695called exchanges where individuals can purchase insurance. See 42 U. S. C. §§ 1396a(a)(10)(A)(i)(VIII) (2006 ed., Supp. IV) (Medicaid Expansion), 18031 (exchanges). Some persons who cannot afford insurance are provided it through the Medicaid Expansion, and others are aided in their purchase of insurance through federal subsidies available on health insurance exchanges. See 26 U. S. C. § 36B (2006 ed., Supp. IV), 42 U. S. C. § 18071 (2006 ed., Supp. IV) (federal subsidies). The Federal Government’s increased spending is offset by new taxes and cuts in other federal expenditures, including reductions in Medicare and in federal payments to hospitals. See, e. g., § 1395ww(r) (Medicare cuts); ACA Title IX, Subtitle A, 124 Stat. 847 (“Revenue Offset Provisions”). Employers with at least 50 employees must either provide employees with adequate health benefits or pay a financial exaction if an employee who qualifies for federal subsidies purchases insurance through an exchange. See 26 U. S. C. § 4980H (2006 ed., Supp. IV). In short, the Act attempts to achieve near-universal health insurance coverage by spreading its costs to individuals, insurers, governments, hospitals, and employers—while, at the same time, offsetting significant portions of those costs with new benefits to each group. For example, the Federal Government bears the burden of paying billions for the new entitlements mandated by the Medicaid Expansion and federal subsidies for insurance purchases on the exchanges; but it benefits from reductions in the reimbursements it pays to hospitals. Hospitals lose those reimbursements; but they benefit from the decrease in uncompensated care, for under the insurance regulations it is easier for individuals with pre-existing conditions to purchase coverage that increases payments to hospitals. Insurance companies bear new costs imposed by a collection of insurance-regulations and taxes, including “guaranteed issue” and “community rating” requirements to give coverage regardless of the insured’s pre-existing conditions; but the insurers benefit from the *696new, healthy purchasers who are forced by the Individual Mandate to buy the insurers’ product and from the new low-income Medicaid recipients who will enroll in insurance companies’ Medicaid-funded managed care programs. In summary, the Individual Mandate and Medicaid Expansion offset insurance regulations and taxes, which offset reduced reimbursements to hospitals, which offset increases in federal spending. So, the Act’s major provisions are interdependent. The Act then refers to these interdependencies as “shared responsibility.” See ACA Subtitle F, Part I, 124 Stat. 242 (“Shared Responsibility”); ACA § 1501, ibid. (same); ACA § 1513, id., at 253 (same); ACA § 4980H, ibid. (same). In at least six places, the Act describes the Individual Mandate as working “together with the other provisions of this Act.” 42 U. S. C. § 18091(2)(C) (2006 ed., Supp. IV) (working “together” to “add millions of new consumers to the health insurance market”); § 18091(2)(E) (working “together” to “significantly reduce” the economic cost of the poorer health and shorter lifespan of the uninsured); § 18091(2)(F) (working “together” to “lower health insurance premiums”); § 18091(2)(G) (working “together” to “improve financial security for families”); § 18091(2)(I) (working “together” to minimize “adverse selection and broaden the health insurance risk pool to include healthy individuals”); § 18091(2)(J) (working “together” to “significantly reduce administrative costs and lower health insurance premiums”). The Act calls the Individual Mandate “an essential part” of federal regulation of health insurance and warns that “the absence of the requirement would undercut Federal regulation of the health insurance market.” § 18091(2)(H). C One preliminary point should be noted before applying severability principles to the Act. To be sure, an argument can be made that those portions of the Act that none of the *697parties has standing to challenge cannot be held nonseverable. The response to this argument is that our cases do not support it. See, e. g., Williams v. Standard Oil Co. of La., 278 U. S. 235, 242-244 (1929). (holding nonseverable statutory provisions that did not burden the parties). It would be particularly destructive of sound government to apply such a rule with regard to a multifaceted piece of legislation like the ACA. It would take years, perhaps decades, for each of its provisions to be adjudicated separately—and for some of them (those simply expending federal funds) no one may have separate standing. The Federal Government, the States, and private parties ought to know at once whether the entire legislation fails. The opinion now explains in Part V-C-1, infra, why the Act’s major provisions are not severable from the Mandate and Medicaid Expansion. It proceeds from the insurance regulations and taxes (C-1-a), to the reductions in reimbursements to hospitals and other Medicare reductions (C-1-b), the exchanges and their federal subsidies (C-1-c), and the employer-responsibility assessment (C-1-d). Part V-C-2, infra, explains why the Act’s minor provisions also are not severable. 1 The Act’s Major Provisions Major provisions of the Affordable Care Act—i. e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer-responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid. That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected burdens on patients, the *698health care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend. a Insurance Regulations and Taxes Without the Individual Mandate and Medicaid Expansion, the Affordable Care Act’s insurance regulations and insurance taxes impose risks on insurance companies and their customers that this Court cannot measure. Those risks would undermine Congress’ scheme of “shared responsibility.” See 26 U. S. C. § 4980I (2006 ed., Supp. IV) (high-cost insurance plans); 42 U. S. C. §§ 300gg(a)(1) (2006 ed., Supp. IV), 300gg-4(b) (community rating); §§ 300gg-1, 300gg-3, 300gg-4(a) (guaranteed issue); § 300gg-11 (elimination of coverage limits); § 300gg-14(a) (dependent children up to age 26); ACA §§ 9010, 10905, 124 Stat. 865, 1017 (excise tax); HCERA § 1401, 124 Stat. 1059 (excise tax). The Court has been informed by distinguished economists that the Act’s Individual Mandate and Medicaid Expansion would each increase revenues to the insurance industry by about $350 billion over 10 years; that this combined figure of $700 billion is necessary to offset the approximately $700 billion in new costs to the insurance industry imposed by the Act’s insurance regulations and taxes; and that the new $700-billion burden would otherwise dwarf the industry’s current profit margin. See Brief for Economists as Amici Curiae in No. 11-393 etc. (Severability), pp. 9-16, 10a. If that analysis is correct, the regulations and taxes will mean higher costs for insurance companies. Higher costs may mean higher premiums for consumers, despite the Act’s goal of “lowering] health insurance premiums.” 42 U. S. C. § 18091(2)(F) (2006 ed., Supp. IV). Higher costs also could threaten the survival of health insurance companies, despite *699the Act’s goal of “effective health insurance markets.” § 18091(2)(J). The actual cost of the regulations and taxes may be more or less than predicted. What is known, however, is that severing other provisions from the Individual Mandate and Medicaid Expansion necessarily would impose significant risks and real uncertainties on insurance companies, their customers, all other major actors in the system, and the government treasury. And what also is known is this: Unnecessary risks and avoidable uncertainties are hostile to economic progress and fiscal stability and thus to the safety and welfare of the Nation and the Nation’s freedom. If those risks and uncertainties are to be imposed, it must not be by the Judiciary. b Reductions in Reimbursements to Hospitals and Other Reductions in Medicare Expenditures The Affordable Care Act reduces payments by the Federal Government to hospitals by more than $200 billion over 10 years. See 42 U. S. C. §§ 1395ww(b)(3)(B)(xi)-(xii) (2006 ed., Supp. IV); § 1395ww(q); § 1395ww(r); § 1396r-4(f)(7). The concept is straightforward: Near-universal coverage will reduce uncompensated care, which will increase hospitals’ revenues, which will offset the government’s reductions in Medicare and Medicaid reimbursements to hospitals. Responsibility will be shared, as burdens and benefits balance each other. This is typical of the whole dynamic of the Act. Invalidating the key mechanisms for expanding insurance coverage, such as community rating and the Medicaid Expansion, without invalidating the reductions in Medicare and Medicaid, distorts the ACA’s design of “shared responsibility.” Some hospitals may be forced to raise the cost of care in order to offset the reductions in reimbursements, which could raise the cost of insurance premiums, in contravention of the Act’s goal of “lowering] health insurance premiums.” *70042 U.S.C. § 18091(2)(F) (2006 ed., Supp. IV). See also § 18091(2)(I) (goal of “lowering] health insurance premiums”); § 18091(2)(J) (same). Other hospitals, particularly safety-net hospitals that serve a large number of uninsured patients, may be forced to shut down. Cf. Nat. Assn, of Public Hospitals, 2009 Annual Survey: Safety Net Hospitals and Health Systems Fulfill Mission in Uncertain Times 6-6 (Feb. 2011). Like the effect of preserving the insurance regulations and taxes, the precise degree of risk to hospitals is unknowable. It is not the proper role of the Court, by severing part of a statute and allowing the rest to stand, to impose unknowable risks that Congress could neither measure nor predict. And Congress could not have intended that result in any event. There is a second, independent reason why the reductions in reimbursements to hospitals and the ACA’s other Medicare cuts must be invalidated. The ACA’s $465 billion in Medicare and Medicaid savings offset the $434-billion cost of the Medicaid Expansion. See CBO Estimate, Table 2 (Mar. 20, 2010). The reductions allowed Congress to find that the ACA “will reduce the Federal deficit between 2010 and 2019” and “will continue to reduce budget deficits after 2019.” ACA §§ 1563(a)(1), (2), 124 Stat. 270. That finding was critical to the ACA. The Act’s “shared responsibility” concept extends to the federal budget. Congress chose to offset new federal expenditures with budget cuts and tax increases. That is why the United States has explained in the course of this litigation that “[w]hen Congress passed the ACA, it was careful to ensure that any increased spending, including on Medicaid, was offset by other revenue-raising and cost-saving provisions.” Memorandum in Support of Government’s Motion for Summary Judgment in No. 3-10-cv-91 (DC ND Fla.), p. 41. If the Medicare and Medicaid reductions would no longer be needed to offset the costs of the Medicaid Expansion, the reductions would no longer operate in the manner Congress *701intended. They would lose their justification and foundation. In addition, to preserve them would be “to eliminate a significant quid pro quo of the legislative compromise” and create a statute Congress did not enact. Legal Services Corporation v. Velazquez, 531 U. S. 533, 561 (2001) (Scalia, J., dissenting). It is no secret that cutting Medicare is unpopular; and it is most improbable Congress would have done so without at least the assurance that it would render the ACA deficit neutral. See ACA §§ 1563(a)(1), (2), 124 Stat. 270. c Health Insurance Exchanges and Their Federal Subsidies The ACA requires each State to establish a health insurance “exchange.” Each exchange is a one-stop marketplace for individuals and small businesses to compare community-rated health insurance and purchase the policy of their choice. The exchanges cannot operate in the manner Congress intended if the Individual Mandate, Medicaid Expansion, and insurance regulations cannot remain in force. The Act’s design is to allocate billions of federal dollars to subsidize individuals’ purchases on the exchanges. Individuals with incomes between 100% and 400% of the poverty level receive tax credits to offset the cost of insurance to the individual purchaser. 26 U. S. C. § 36B (2006 ed., Supp. IV); 42 U. S. C. § 18071 (2006 ed., Supp. IV). By 2019, 20 million of the 24 million people who will obtain insurance through an exchange are expected to receive an average federal subsidy of $6,460 per person. See CBO, Analysis of the Major Health Care Legislation Enacted in March 2010, pp. 18-19 (Mar. 30, 2011). Without the community-rating insurance regulation, however, the average federal subsidy could be much higher; for community rating greatly lowers the enormous premiums unhealthy individuals would otherwise pay. Federal subsidies would make up much of the difference. *702The result would be an unintended boon to insurance companies, an unintended harm to the federal fisc, and a corresponding breakdown of the “shared responsibility” between the industry and the federal budget that Congress intended. Thus, the federal subsidies must be invalidated. In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. See 42 U. S. C. § 18031. That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all. There is a second reason why, if community rating is invalidated by the Mandate and Medicaid Expansion’s invalidity, exchanges cannot be implemented in a manner consistent with the Act’s design. A key purpose of an exchange is to provide a marketplace of insurance options where prices are standardized regardless of the buyer’s pre-existing conditions. See ibid. An individual who shops for insurance through an exchange will evaluate different insurance products. The products will offer different benefits and prices. Congress designed the exchanges so the shopper can compare benefits and prices. But the comparison cannot be made in the way Congress designed if the prices depend on the shopper’s pre-existing health conditions. The prices would vary from person to person. So without community rating—which prohibits insurers from basing the price of in*703surance on pre-existing conditions—the exchanges cannot operate in the manner Congress intended. d Employer-Responsibility Assessment The employer-responsibility assessment provides an incentive for employers with at least 50 employees to provide their employees with health insurance options that meet minimum criteria. See 26 U. S. C. § 4980H (2006 ed., Supp. IV). Unlike the Individual Mandate, the employer-responsibility assessment does not require employers to provide an insurance option. Instead, it requires them to make a payment to the Federal Government if they do not offer insurance to employees and if insurance is bought on an exchange by an employee who qualifies for the exchange’s federal subsidies. See ibid. For two reasons, the employer-responsibility assessment must be invalidated. First, the ACA makes a direct link between the employer-responsibility assessment and the exchanges. The financial assessment against employers occurs only under certain conditions. One of them is the purchase of insurance by an employee on an exchange. With no exchanges, there are no purchases on the exchanges; and with no purchases on the exchanges, there is nothing to trigger the employer-responsibility assessment. Second, after the invalidation of burdens on individuals (the Individual Mandate), insurers (the insurance regulations and taxes), States (the Medicaid Expansion), the Federal Government (the federal subsidies for exchanges and for the Medicaid Expansion), and hospitals (the reductions in reimbursements), the preservation of the employer-responsibility assessment would upset the ACA’s design of “shared responsibility.” It would leave employers as the only parties bearing any significant responsibility. That was not the congressional intent. *7042 The Act’s Minor Provisions The next question is whether the invalidation of the ACA’s major provisions requires the Court to invalidate the ACA’s other provisions. It does. The ACA is over 900 pages long. Its regulations include requirements ranging from a break time and secluded place at work for nursing mothers, see 29 U. S. C. § 207(r)(1) (2006 ed., Supp. IV), to displays of nutritional content at chain restaurants, see 21 U. S. C. § 343(q)(5)(H) (2006 ed., Supp. IV). The Act raises billions of dollars in taxes and fees, including exactions imposed on high-income taxpayers, see ACA §§ 9015, 10906, 124 Stat. 870, 1020; HCERA § 1402, 124 Stat. 1060, medical devices, see 26 U. S. C. § 4191 (2006 ed., Supp. IV), and tanning booths, see § 5000B. It spends government money on, among other things, the study of how to spend less government money. 42 U. S. C. § 1315a (2006 ed., Supp. IV). And it includes a number of provisions that provide benefits to the State of a particular legislator. For example, § 10323, 124 Stat. 954, extends Medicare coverage to individuals exposed to asbestos from a mine in Libby, Montana. Another provision, § 2006, id., at 284, increases Medicaid payments only in Louisiana. Such provisions validate the Senate Majority Leader’s statement, “ T don’t know if there is a senator that doesn’t have something in this bill that was important to them.. . . [And] if they don’t have something in it important to them, then it doesn’t speak well of them. That’s what this legislation is all about: It’s the art of compromise.’” Pear, In Health Bill for Everyone, Provisions for a Few, N. Y. Times, Jan. 4, 2010, p. A10 (quoting Sen. Reid). Often, a minor provision will be the price paid for support of a major provision. So, if the major provision were unconstitutional, Congress would not have passed the minor one. *705Without the ACA’s major provisions, many of these minor provisions will not operate in the manner Congress intended. For example, the tax increases are “Revenue Offset Provisions” designed to help offset the cost to the Federal Government of programs like the Medicaid Expansion and the exchanges’ federal subsidies. See Title IX, Subtitle A— Revenue Offset Provisions, 124 Stat. 847. With the Medicaid Expansion and the exchanges invalidated, the tax increases no longer operate to offset costs, and they no longer serve the purpose in the Act’s scheme of “shared responsibility” that Congress intended. Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which. To sever the statute in that manner “ ‘would be to make a new law, not to enforce an old one. This is not part of our duty.’” Trade-Mark Cases, 100 U. S., at 99. This Court must not impose risks unintended by Congress or produce legislation Congress may have lacked the support *706to enact. For those reasons, the unconstitutionality of both the Individual Mandate and the Medicaid Expansion requires the invalidation of the Affordable Care Act’s other provisions. * * * The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cutoff of Medicaid funds to a supposedly noncoercive cutoff of only the incremental funds that the Act makes available. The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision. The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is *707to be introduced at all, it should be by Congress, not by the Judiciary. The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent. The most authoritative legal dictionaries of the founding era lack any definition for “regulate” or “regulation,” suggesting that the term bears its ordinary meaning (rather than some specialized legal meaning) in the *650constitutional text. See 2 R. Burn, A New Law Dictionary 281 (1792); G. Jacob, A New Law Dictionary (10th ed. 1782); 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771). Justice Ginsburg is therefore right to note that Congress is “not mandating the purchase of a discrete, unwanted product.” Ante, at 608 (opinion concurring in part, concurring in judgment in part, and dissenting in part). Instead, it is mandating the purchase of an unwanted suite of products—e.g., physician office visits, emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care, and substance abuse detoxification. See Selected Medical Benefits: A Report From the Dept, of Labor to the Dept, of Health and Human Services (Apr. 15, 2011) (reporting that over two-thirds of private industry health plans cover these goods and services), online at http://www.bls.gov/nes/ebs/sp/selmedbensreport.pdf (all Internet materials as visited June 26, 2012, and available in Clerk of Court’s case file). In its effort to show the contrary, Justice Ginsburg’s dissent comes up with nothing more than two condemnation eases, which it says demonstrate “Congress’ authority under the commerce power to compel an ‘inactive’ landholder to submit to an unwanted sale.” Ante, at 611. Wrong on both scores. As its name suggests, the condemnation power does not “compel” anyone to do anything. It acts in rent, against the property that is condemned, and is effective with or without a transfer of title from the former owner. More important, the power to condemn for public use is a separate sovereign power, explicitly acknowledged in the Fifth Amendment, which provides that “private property [shall not] be taken for public use, without just compensation.” Thus, the power to condemn tends to refute rather than support the power to compel purchase of unwanted goods at a prescribed price: The latter is rather like the power to condemn cash for public use. If it existed, why would it not (like the condemnation power) be accompanied by a requirement of fair compensation for the portion of the exacted price that exceeds the goods’ fair market value (here, the difference between what the free market would charge for a health insurance policy on a young, healthy person with no pre-existing conditions, and the government-exacted community-rated premium)? No one seriously contends that any of Congress’ other enumerated powers gives it the authority to enact § 5000A as a regulation. Of course it can be both for statutory purposes, since Congress can define “tax” and “penalty” in its enactments any way it wishes. That is why United States v. Sotelo, 436 U. S. 268 (1978), does not disprove our statement. That case held that a “penalty” for willful failure to pay one’s taxes was included among the “taxes” made nondischargeable under the Bankruptcy Code. Id., at 273-275. Whether the “penalty” was a “tax” within the meaning of the Bankruptcy Code had absolutely no bearing on whether it escaped the constitutional limitations on penalties. The amicus appointed to defend the proposition that the Anti-Injunction Act deprives us of jurisdiction stresses that the penalty for failing to comply with the mandate “shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68,” 26 U. S. C. § 5000A(g)(1) (2006 ed., Supp. IV), and that such penalties “shall be assessed and collected in the same manner as taxes,” § 6671(a) (2006 ed.). But that point seems to us to confirm the inapplicability of the Anti-Injunction Act. That the penalty is to be “assessed and collected in the same manner as taxes” refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act. Moreover, elsewhere in the Internal Revenue Code, Congress has provided both that a particular payment shall be “assessed and collected” in the same manner as a tax and that no suit shall be maintained to restrain the assessment or collection of the payment. See, e.g., §§ 7421(b)(1), 6901(a); §§ 6306(a), (b). The latter directive would be superfluous if the former invoked the Anti-Injunction Act. Amicus also suggests that the penalty should be treated as a tax because it is an assessable penalty, and the Code’s assessment provision authorizes the Secretary of the Treasury to assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.” § 6201(a) (2006 ed., Supp. IV). But the fact that such items are included as “taxes” for purposes of assessment does not establish that they are included as “taxes” for purposes of other sections of the Code, such as the Anti-Injunction Act, that do not contain similar “including” language. “State expenditures” is used here to mean annual expenditures from the States’ own funding sources, and it excludes federal grants unless otherwise noted. This number is expressed in billions of Fiscal Year 2005 dollars. See Office of Management and Budget, Historical Tables, Budget of the U. S. Government, Fiscal Year 2013, Table 12.1—Summary Comparison of Total Outlays for Grants to State and Local Governments: 1940-2017 (hereinafter Table 12.1), http://www.whitehouse.gov/omb/budget/ Historicals; id., Table 15.2—Total Government Expenditures: 1948-2011 (hereinafter Table 15.2). This number is expressed in billions of Fiscal Year 2005 dollars. See Table 12.1; Dept, of Commerce, Bureau of Census, Statistical Abstract of the United States: 2001, p. 262 (Table 419, Federal Grants-in-Aid Summary: 1970 to 2001). See Statistical Abstract of the United States: 2012, p. 268 (Table 431, Federal Grants-in-Aid to State and Local Governments: 1990 to 2011). Justice Ginsburg argues that “[a] State . . . has no claim on the money its residents pay in federal taxes.” Ante, at 643, n. 26. This is true as a formal matter. “When the United States Government taxes United States citizens, it taxes them ‘in their individual capacities’ as ‘the people of America’—not as residents of a particular State.” Ibid. (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 839 (1995) (Kennedy, J., concurring); some internal quotation marks omitted). But unless Justice Ginsburg thinks that there is no limit to the amount of money that can be squeezed out of taxpayers, heavy federal taxation diminishes the practical ability of States to collect their own taxes. The Federal Government has a higher number for federal spending on Medicaid. According to the Office of Management and Budget, federal grants to the States for Medicaid amounted to nearly $273 billion in Fiscal Year 2010. See Office of Management and Budget, Historical Tables, Budget of the U. S. Government, Fiscal Year 2013, Table 12.3—Total Outlays for Grants to State and Local Governments by Function, Agency, and Program: 1940-2013, http://www.whitehouse.gov/omb/budget/Historicals. In that fiscal year, total federal outlays for grants to state and local governments amounted to over $608 billion, see Table 12.1, and state and local government expenditures from their own sources amounted to $1.6 trillion, see Table 15.2. Using these numbers, 44.8% of all federal outlays to both state and local governments was allocated to Medicaid, amounting to 16.8% of all state and local expenditures from their own sources. The Federal Government reports a higher percentage. According to Medicaid.gov, in Fiscal Year 2010, the Federal Government made Medicaid payments in the amount of nearly $260 billion, representing 67.79% of total *683Medicaid payments of $383 billion. See www.medicaid.gov/Medicaid-CHIP-Program-Information/By-State/By-State.html.

per_curiam

per_curiam

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and *647provisions of the Patient Protection and Affordable Care Act (Affordable Care Act, Act, or ACA) go beyond those powers. We conclude that they do. This case is in one respect difficult: It presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Commerce Clause. Failure to act does result in an effect on commerce, and hence might be said to come under this Court’s “affecting commerce” criterion of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the Clause that far. The second question is whether the congressional power to tax and spend, U. S. Const., Art. I, 8, cl. 1, permits the conditioning of a State’s continued receipt of all funds under a massive state-administered federal welfare program upon its acceptance of an expansion to that program. Several of our opinions have suggested that the power to tax and spend cannot be used to coerce state administration of a federal program, but we have never found a law enacted under the spending power to be coercive. Those questions are difficult. The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 89 Constitution, by the Tenth Amendment ratified in 91, and by innumerable cases of ours in the 2 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the to function as administrators of federal programs. That clear principle carries the day here. The striking case of which held that the economic activity of growing wheat, even for one’s *648own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the allowing them to administer the program. That is fair and constitutional enough when the freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the have no choice. The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without *649them. In our view it must follow that the entire statute is inoperative. I The Individual Mandate Article I, 8, of the Constitution gives Congress the power to “regulate Commerce among the several” The Individual Mandate in the Act commands that every “applicable individual shall for each month beginning after 13 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage.” 26 U. S. C. 5000A(a) (06 ed., Supp. IV). If this provision “regulates” anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchasing insurance is “Commerce”; but one does not regulate commerce that does not exist by compelling its existence. In Chief Justice Marshall wrote that the power to regulate commerce is the poviier “to prescribe the rule by which commerce is to be governed.” That understanding is consistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant “[t]o adjust by rule, method or established mode,” 2 N. Webster, An American Dictionary of the English Language (1828); “[t]o adjust by rule or method,” 2 S. A Dictionary of the English Language (7th ed. 85); “[t]o adjust, to direct according to rule,” 2 J. New and Complete Dictionary of the English Language (75); “to put in order, set to rights, govern or keep in order,” T. Dyche & W. Pardon, A New General English Dictionary (16th ed. 77).1 It can mean to direct the *650manner of something but not to direct that something come into being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used “regulate” in that peculiar fashion. If the word bore that meaning, Congress’ authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U. S. Const., Art. I, 8, cl. 14, would have made superfluous the later provision for authority “[t]o raise and support Armies,” 8, cl. 12, and “[t]o provide and maintain a Navy,” 8, cl. 13. We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” or “directing] according to rule,” it directs the creation of commerce. In response, the Government offers two theories as to why the Individual Mandate is nevertheless constitutional. Neither theory suffices to sustain its validity. A First, the Government submits that 5000A is “integral to the Affordable Care Act’s insurance reforms” and “necessary to make effective the Act’s core reforms.” Brief for Petitioners in No. 11-398 (Minimum Coverage Provision) 24 (hereinafter Petitioners’ Minimum Coverage Brief). Congress included a “finding” to similar effect in the Act itself. See 42 U. S. C. 18091(2)(H) (06 ed., Supp. IV). As discussed in more detail in Part V, infra, the Act contains numerous health insurance reforms, but most notable for present purposes are the “guaranteed issue” and “community rating” provisions, 300gg to 300gg-4. The former provides that, with a few exceptions, “each health insurance *651issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage.” 300gg-1(a). That is, an insurer may not deny coverage on the basis of, among other things, any pre-existing medical condition that the applicant may have, and the resulting insurance must cover that condition. See 300gg-3. Under ordinary circumstances, of course, insurers would respond by charging high premiums to individuals with pre-existing conditions. The Act seeks to prevent this through the community-rating provision. Simply put, the community-rating provision requires insurers to calculate an individual’s insurance premium based on only four factors: (i) whether the individual’s plan covers just the individual or his family also, (ii) the “rating area” in which the individual lives, (iii) the individual’s age, and (iv) whether the individual uses tobacco. 300gg(a)(1)(A). Aside from the rough proxies of age and tobacco use (and possibly rating area), the Act does not allow an insurer to factor the individual’s health characteristics into the price of his insurance premium. This creates a new incentive for young and healthy individuals without pre-existing conditions. The insurance premiums for those in this group will not reflect their own low actuarial risks but will subsidize insurance for others in the pool. Many of them may decide that purchasing health insurance is not an economically sound decision—especially since the guaranteed-issue provision will enable them to purchase it at the same cost in later years and even if they have developed a pre-existing condition. But without the contribution of above-risk premiums from the young and healthy, the community-rating provision will not enable insurers to take on high-risk individuals without a massive increase in premiums. The Government presents the Individual Mandate as a unique feature of a complicated regulatory scheme governing many parties with countervailing incentives that must be *652carefully balanced. Congress has imposed an extensive set of regulations on the health insurance industry, and compliance with those regulations will likely cost the industry a great deal. If the industry does not respond by increasing premiums, it is not likely to survive. And if the industry does increase premiums, then there is a serious risk that its products—insurance plans—will become economically undesirable for many and prohibitively expensive for the rest. This is not a dilemma unique to regulation of the health insurance industry. Government regulation typically imposes costs on the regulated industry—especially regulation that prohibits economic behavior in which most market participants are already engaging, such as “piecing out” the market by selling the product to different classes of people at different prices (in the present context, providing much lower insurance rates to young and healthy buyers). And many industries so regulated face the reality that, without an artificial increase in demand, they cannot continue on. When Congress is regulating these industries directly, it enjoys the broad power to enact “ ‘all appropriate legislation’ ” to “‘protec[t]’” and “‘advanc[e]’” commerce, Thus, Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy. Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the mar*653ket, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 2 (C. Rossiter ed. 1). At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants. In New we held that Congress could not, in an effort to regulate the disposal of radioactive waste produced in several different industries, order the to take title to that waste. In we held that Congress could not, in an effort to regulate the distribution of firearms in the interstate market, compel state law enforcement officials to perform background checks. In United we held that Congress could not, as a means of fostering an educated interstate labor market through the protection of schools, ban the possession of a firearm within a school zone. And in United we held that Congress could not, in an effort to ensure the full participation of women in the interstate economy, subject private individuals and companies to suit for gender-motivated violent torts. The lesson of these cases is that the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the but also when it violates the background principle of enumerated (and hence limited) federal power. The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and *Proper Clause is That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, ), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consistent] with the letter and spirit of the constitution.” Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively See also Shreveport Rate Intrastate marijuana could no more be distinguished from interstate marijuana than, for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies, see With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied *655a full income tax credit given to those who do purchase the insurance. The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. See Tr. of Oral Arg. 27-30, 43-45 (Mar. 27, 12). It was unable to name any. As we said at the outset, whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept. See 514 U. S., at - Section 5000A is defeated by that proposition. B The Government’s second theory in support of the Individual Mandate is th000A is valid because it is actually a “regulation of] activities having a substantial relation to interstate commerce,. i. e.,. activities that substantially affect interstate commerce. ” See also Shreveport Rate This argument takes a few different forms, but the basic idea is that 5000A regulates “the way in which individuals finance their participation in the health care market.” Petitioners’ Minimum Coverage Brief 33 That is, the provision directs the manner in which individuals purchase health care services and related goods (directing that they be purchased through insurance) and is therefore a straightforward exercise of the commerce power. The primary problem with this argument is that 5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers. Indeed, the main objection many *656have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases. The Government responds that the health care market involves “essentially universal participation,” The principal difficulty with this response is that it is, in the only relevant sense, not true. It is true enough that everyone consumes “health care,” if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.2 Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits. In a variation on this attempted exercise of federal power, the Government points out that Congress in this Act has purported to regulate “economic and financial decision[s] to forego health insurance coverage and [to] attempt to self-insure,” 42 U. S. C. 18091(2)(A), since those decisions have *657“a substantial and deleterious effect on interstate commerce,” Petitioners’ Minimum Coverage Brief 34. But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end. has been regarded as the most expansive assertion of the commerce power in our history. A close second is which upheld a statute criminalizing the eminently local activity of loan sharking. Both of those cases, however, involved commercial activity. To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power. C A few respectful responses to Justice Ginsburg’s dissent on the issue of the Mandate are in order. That dissent duly recites the test of Commerce Clause power that our opinions have applied, but disregards the premise the test contains. It is true enough that Congress needs only a “ ‘rational basis’ for concluding that the regulated activity substantially af*658fects interstate commerce,” ante, at 602 But it must be activity affecting commerce that is regulated, and not merely the failure to engage in commerce. And one is not now purchasing the health care covered by the insurance mandate simply because one is likely to be purchasing it in the future. Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 612-613, a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the self-insurance market,” ante, at 613, seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything. The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 1. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, the power to imprison, and the power to create a national bank,” Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists. *659The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, 89, is quite beside the point. The issue here is whether the Federal Government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ib and more specifically “the problem of the uninsured,” ante, 95. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address *660whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power. The dissent dismisses the conclusion that the power to compel entry into the health insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, “will be obliged to pay at the counter before receiving the vehicle or nourishment,” whereas those refusing to purchase health insurance will ultimately get treated anyway, at others’ expense. Ante, at 608. “[T]he unique attributes of the health-care market. give rise to a significant free-riding problem that does not occur in other markets.” Ante, at 614. And “a vegetable-purchase mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the health-care costs” borne by other Americans. Ante, at 615. Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.” (Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer-fighting chemical which only that food contains, producing health care costs that are a burden on the rest of us—in which case, under the theory of Justice Ginsburg’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem-solving powers.) *661I—< The Taxing Power As far as 5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and 5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “the minimum coverage PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S taxing power” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United Reports: a penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “alternatively, the minimum coverage provision is not a mandate-with-penalty but A tax.” It is important to bear this in mind in evaluating the tax argument of the Government and of *6those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. In answering that question we must, if “fairly possible,” construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute” or judicially rewriting it.’” Commodity Futures Trading (quoting (4), in turn quoting (1)). In this ease, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty. Our cases establish a clear line between a tax and a penalty: “ ‘ In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held— never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an Act “adoptfe] the criteria of wrong*663doing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum coverage provision is found in 26 U. S. C. 5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall. ensure that the individual. is covered under minimum essential coverage.” And the immediately following provision states that, “[i]f. an applicable individual. fails to meet the requirement of subsection (a). there is hereby imposed a penalty.” 5000A(b) And several of Congress’ legislative “findings” with regard to 5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. 18091(2)(A) ; 18091(2)(C) (“The requirement will add millions of new consumers to the health insurance market ”); 18091(2)(D) (“The requirement achieves near-universal coverage”); 18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); 18091(3) (“[T]he Supreme Court of the United' ruled that insurance is interstate commerce subject to Federal regulation”). The Government and those who support its view on the tax point rely on New to justify reading “shall” to mean “may.” The “shall” in that case was contained in an introductory provision—a recital that provided for no legal consequences—which said that “[e]ach State shall be responsible for providing for the disposal of low-level radioactive waste.” 42 U. S. C. 21c(a)(1)(A). The Court did not hold that “shall” could *664be construed to mean “may,” but rather that this preliminary provision could not impose upon the operative provisions of the Act a mandate that they did not contain: “We decline petitioners’ invitation to construe 21c(a)(1)(A), alone and in isolation, as a command to the independent of the remainder of the Act.” New Our opinion then proceeded to “consider each [of the three operative provisions] in turn.” Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New provides no support for reading it to be permissive. Quite separately, the fact that Congress (in its own words) “imposed a penalty,” 26 U. S. C. 5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826). We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as “license” ) or “surcharge” (New ). But we have never—never—treated as a tax an exaction which faces up *665to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in 5000A itself and elsewhere throughout the Act, Congress called the exaction,in 5000A(b) a “penalty.” That 5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: those with religious objections or who participate in a “health care sharing ministry,” 5000A(d)(2); those who are “not lawfully present” in the United 5000A(d)(3); and those who are incarcerated, 5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: those who cannot afford coverage, 5000A(e)(l); who earn too little income to require filing a tax return, 5000A(e)(2); who are members of an Indian tribe, 5000A(e)(3); who experience only short gaps in coverage, 5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, “have suffered a hardship with respect to the capability to obtain coverage,” 5000A(e)(5). If 5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone. In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 12). These self-serving litigating *666positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government’s position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann.2-3430.1:1 (Lexis Supp. 11), which states, “No resident of [the] Commonwealth shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services” In opposing Virginia’s assertion of standing to challenge 5000A based on this statute, the Government said that “if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause.” Brief for Appellant in No. 11-1057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal “require[ment] to obtain or maintain a policy of individual insurance coverage.” Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual. will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” Petitioners’ Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard of or rare. It is not. See, e. g., 26 U. S. C. 527(j) ; 5761(c) (IRS-collectible penalty for domestic sales of tobacco products labeled for export); 9707 (IRS-*667collectible penalty for failure to make required health insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “[I]f the concept of penalty means anything,” we said, “it means punishment for an unlawful act or omission.” at See also Moreover, while the penalty is assessed and collected by the IRS, 5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veterans Affairs), see 5000A(e)(1)(D), (e)(5), (f)(1)(A)(v), (f)(1)(E) (06 ed., Supp. IV), which is responsible for defining its substantive scope— a feature that would be quite extraordinary for taxes. The Government points out that “[t]he amount of the penalty will be calculated as a percentage of household income for federal income tax purposes, subject to a floor and [a] ca[p],” and that individuals who earn so little money that they “are not required to file income tax returns for the taxable year are not subject to the penalty” (though they are, as we discussed earlier, subject to the mandate). Petitioners’ Minimum Coverage Brief 12, 53. But varying a penalty according to ability to pay is an utterly familiar practice. See, e. g., 33 U. S. C. 1319(d) (“In determining the amount of a civil penalty the court shall consider the economic impact of the penalty on the violator”); see also 6 U. S. C. 488e(c) (06 ed., Supp. IV); 7 U. S. C. 7734(b)(2), 8313(b)(2) ; 12 U. S. C. 01q-1(d)(3), 23i(c)(3), 35f-14(c)(3), 35f-15(d)(3), 4585(c)(2) (06 ed. and Supp. IV); 15 U.S.C. 45(m)(1)(C), 77h-1(g)(3), 78u-2(d), 80a-9(d)(4), 80b-3(i)(4), 1681s(a)(2)(B), a(b)(3), 1825(b)(1), 2615(a)(2)(B), 5408(b)(2) (06 ed. and Supp. IV); 33 U. S. C. 2716a(a) The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute *668repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement. And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” that Congress imposed a regulatory penalty, not a tax. For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e. g., Stamp Act of 65, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, 7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defended] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United v. Munoz-Flores, 495 U. S. 5, We have no doubt that Congress knew precisely what it was *669doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 39, 111th Cong., 1st Sess., 501 (09); America’s Healthy Future Act of 09, S. 96, 111th Cong., 1st Sess., 1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry. Finally, we must observe that rewriting 5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the according to their population. Art. I, 9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question— perhaps because, until today, no federal court has accepted the implausible argument that 5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 12). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression. h-1 HH The Anti-Injunction Act There is another point related to the Individual Mandate that we must discuss—a point that logically should have been discussed first: whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-*670Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. 7(a) We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have “the purpose of restraining the assessment or collection of any tax.”6 The Government and those who support its position on this point make the remarkable argument that 5000A is not *671a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11-398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52-. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress. Compare with Child Labor Tax -41 Congress could have defined “tax” for purposes of that statute in such fashion as to exclude some exactions that in fact are “taxes.” It might have prescribed, for example, that a particular exercise of the taxing power “shall not be regarded as a tax for purposes of the Anti-Injunction Act.” But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists. IV The Medicaid Expansion We now consider respondents’ second challenge to the constitutionality of the ACA, namely, that the Act’s dramatic expansion of the Medicaid program exceeds Congress’ power to attach conditions to federal grants to the The ACA does not legally compel the to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go along: termi*672nation of all the State’s Medicaid funding. For the average State, the annual federal Medicaid subsidy is equal to more than one-fifth of the State’s expenditures.7 A State forced out of the program would not only lose this huge sum but would almost certainly find it necessary to increase its own health care expenditures substantially, requiring either a drastic reduction in funding for other programs or a large increase in state taxes. And these new taxes would come on top of the federal taxes already paid by the State’s citizens to fund the Medicaid program in other The challenging the constitutionality of the ACA’s Medicaid Expansion contend that, for these practical reasons, the Act really does not give them any choice at all. As proof of this, they point to the goal and the structure of the ACA. The goal of the Act is to provide near-universal medical coverage, 42 U. S. C. 18091(2)(D), and without 100% state participation in the Medicaid program, attainment of this goal would be thwarted. Even if could elect to remain in the old Medicaid program, while declining to participate in the Expansion, there would be a gaping hole in coverage. And if a substantial number of were entirely expelled from the program, the number of persons without coverage would be even higher. In light of the ACA’s goal of near-universal coverage, petitioners argue, if Congress had thought that anything less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. But no such scheme is to be found anywhere in the more than 900 pages of the Act. This shows, they maintain, that Congress was certain that the ACA’s Medicaid offer was one that no State could refuse. In response to this argument, the Government contends that any congressional assumption about uniform state par*673ticipation was based on the simple fact that the offer of federal funds associated with the expanded coverage is such a generous gift that no State would want to turn it down. To evaluate these arguments, we consider the extent of the Federal Government’s power to spend money and to attach conditions to money granted to the A No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for many years the scope of this power was unsettled. The Constitution grants Congress the power to collect taxes “to provide for the general Welfare of the United” Art. I, 8, cl. 1, and from “the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase” “the general welfare.” Madison, it has been said, thought that the phrase “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section,” while Hamilton “maintained the clause confers a power separate and distinct from those later enumerated [and] is not restricted in meaning by the grant of them.” The Court resolved this dispute in Writing for the Court, Justice Roberts opined that the Madisonian view would make Article I’s grant of the spending power a “mere tautology.” To avoid that, he adopted Hamilton’s approach and found that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Instead, he wrote, the spending power’s “confines are set in the clause which confers it, and not in those of 8 which bestow and define the legislative powers of the Congress.” ; see also Steward ; *674The power to make any expenditure that furthers “the general welfare” is obviously very broad, and shortly after was decided the Court gave Congress wide leeway to decide whether an expenditure qualifies. See 301 U. S., at -641. “The discretion belongs to Congress,” the Court wrote, “unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” at Since that time, the Court has never held that a federal expenditure was not for “the general welfare.” B One way in which Congress may spend to promote the general welfare is by making grants to the Monetary grants, so-called grants-in-aid, became more frequent during the 1930⅛, G. Stephens & N. Wikstrom, American Intergovernmental Relations—A Fragmented Federal Polity 83 (07), and by 1950 they had reached $ billion8 or 11.6% of state and local government expenditures from their own sources.9 By 1970 this number had grown to $123.7 billion10 or 29.1% of state and local government expenditures from their own sources.11 As of 10, federal outlays to state and local governments came to over $608 billion or 37.5% of state and local government expenditures.12 *675When Congress makes grants to the it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this. See State School and ; South 483 U. S. 3, 6 ; U. S. ; Steward C This practice of attaching conditions to federal funds greatly increases federal power, “[Objectives not thought to be within Article I’s enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.” ; see also College Savings (by attaching conditions to federal funds; Congress may induce the to “tak[e] certain actions that Congress could not require them to take”). This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields,” 526 U. S. 9, (internal quotation marks omitted), is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’ ” at 2 (quoting ). “[T]he Spending Clause power, if wielded without concern for the federal bal-*676anee, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” at -655 Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the has limits. See, e. g., 483 U. S., -8; For one thing, any such conditions must be unambiguous so that a State at least knows what it is getting into. See at Conditions must also be related “to the federal interest in particular national projects or programs,” Massachusetts v. United and the conditional grant of federal funds may not “induce the to engage in activities that would themselves be unconstitutional,” ; see Lawrence -270 Finally, while Congress may seek to induce to accept conditional grants, Congress may not cross the “point at which pressure turns into compulsion, and ceases to be inducement.” Steward Accord, College Savings ; Metropolitan Washington Airports 501 U. S. ; at When federal legislation gives the a real choice whether to accept or decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship. See (02); 451 U. S., at And just as a contract is voidable if coerced, “[t]he legitimacy of Congress’ power to legislate under the spending power rests on whether the State voluntarily and knowingly accepts the terms of *677the ‘contract.’” Ibid, If a federal spending program coerces participation the have not “exercise[d] their choice”—let alone made an “informed choice.” at 25. Coercing to accept conditions risks the destruction of the “unique role of the in our system.” “[T]he Constitution has never been understood to confer upon Congress the ability to require the to govern according to Congress’ instructions.” New 505 U. S., at 1. Congress may not “simply commandeer the legislative processes of the by directly compelling them to enact and enforce a federal regulatory program.” Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the ’ choice whether to enact or administer a federal regulatory program is rendered illusory. Where all Congress has done is to “encouragfe] state regulation rather than compe[l] it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. [But] where the Federal Government compels to regulate, the accountability of both state and federal officials is diminished.” Amici who support the Government argue that forcing state employees to implement a federal program is more respectful of federalism than using federal workers to implement that program. See, e. g., Brief for Service Employees International Union et al. as Amici Curiae in No. 11-398, pp. 25-26. They note that Congress, instead of expanding Medicaid, could have established an entirely federal program to provide coverage for the same group of people. By choosing to structure Medicaid as a cooperative federal-state program, they contend, Congress allows for more state control. *678This argument reflects a view of federalism that our cases have rejected—and with good reason. When Congress compels the to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, “it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New 505 U. S., But when the Federal Government compels the to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” ; see For this reason, federal officeholders may view this “departur[e] from the federal structure to be in their personal interests as a means of shifting responsibility for the eventual decision.” New -183. And even state officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility may also permit them to escape accountability. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive. Once it is recognized that spending-power legislation cannot coerce state participation, two questions remain: (1) What is the meaning of coercion in this context? (2) Is the ACA’s expanded Medicaid coverage coercive? We now turn to those questions. D 1 The answer to the first of these questions—the meaning of coercion in the present context—is straightforward. As we have explained, the legitimacy of attaching conditions to federal grants to the depends on the voluntariness of the ’ choice to accept or decline the offered package. *679Therefore, if really have no choice other than to accept the package, the offer is coercive, and the conditions cannot be sustained under the spending power. And as our decision in South makes clear, theoretical voluntariness is not enough. In South we considered whether the spending power permitted Congress to condition 5% of the State’s federal highway funds on the State’s adoption of a minimum drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but we disagreed, reasoning that “Congress ha[d] directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds.” 483 U. S., at Because “all South Dakota would lose if she adhere[d] to her chosen course as to a suitable minimum drinking age [was] 5% of the funds otherwise obtainable under specified highway grant programs,” we found that “Congress ha[d] offered relatively mild encouragement to the to enact higher minimum drinking ages than they would otherwise choose.” Thus, the decision whether to comply with the federal condition “remain[ed] the prerogative of the not merely in theory but in fact,” and so the program at issue did not exceed Congress’ power. at -212 The question whether a law enacted under the spending power is coercive in fact will sometimes be difficult, but where Congress has plainly “crossed the line distinguishing encouragement from coercion,” New a federal program that coopts the ’ political processes must be declared unconstitutional. “[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene.” 2 The Federal Government’s argument in this case at best pays lipservice to the anticoercion principle. The Federal *680Government suggests that it is sufficient if are “free, as a matter of law, to turn down” federal funds. Brief for Respondents in No. 11-400, p. ; see also According to the Federal Government, neither the amount of the offered federal funds nor the amount of the federal taxes extracted from the taxpayers of a State to pay for the program in question is relevant in determining whether there is impermissible coercion. This argument ignores reality. When a heavy federal tax is levied to support a federal program that offers large grants to the may, as a practical matter, be unable to refuse to participate in the federal program and to substitute a state alternative. Even if a State believes that the federal program is ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating13 Acceptance of the Federal Government’s interpretation of the anticoercion rule would permit Congress to dictate policy in areas traditionally governed primarily at the state or local level. Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this fon ding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and *681hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. And if the State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the field of education. Asked at oral argument whether such a law would be allowed under the spending power, the Solicitor General responded that it would. Tr. of Oral Arg. in No. 11-400, pp. 44-45 (Mar. 28, 12). E Whether federal spending legislation crosses the line from enticement to coercion is often difficult to determine, and courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear. In this case, however, there can be no doubt. In structuring the ACA, Congress unambiguously signaled its belief that every State would have no real choice but to go along with the Medicaid Expansion. If the anti-coercion rule does not apply in this case, then there is no such rule. 1 The dimensions of the Medicaid program lend strong support to the petitioner ’ argument that refusing to accede to the conditions set out in the ACA is not a realistic option. Before the ACA’s enactment, Medicaid funded medical care for pregnant women, families with dependents, children, the blind, the elderly, and the disabled. See 42 U. S. C. 1396a(a)(10) (06 ed. and Supp. IV). The ACA greatly expands the program’s reach, making new funds available to that agree to extend coverage to all individuals who are under age 65 and have incomes below 133% of the federal poverty line. See 1396a(a)(10)(A)(i)(VIII) (06 ed., Supp. *682IV). Any State that refuses to expand its Medicaid programs in this way is threatened with a severe sanction: the loss of all its federal Medicaid funds. See 1396c Medicaid has long been the largest federal program of grants to the See Brief for Respondents in No. 11-400, at 37. In 10, the Federal Government directed more than $552 billion in federal funds to the See Nat. Assn, of State Budget Officers, 10 State Expenditure Report: Examining Fiscal 09-11 State Spending, p. 7 (11) (NASBO Report). Of this, more than $233 billion went to pre-expansion Medicaid. See14 This amount equals nearly 22% of all state expenditures combined. See The devote a larger percentage of their budgets to Medicaid than to any other item. Federal funds account for anywhere from 50% to 83% of each State’s total Medicaid expenditures, see 1396d(b) (06 ed., Supp. IV); most receive more than $1 billion in federal Medicaid funding; and a quarter receive more than $5 billion, NASBO Report 47. These federal dollars total nearly two thirds— 64.6%—of all Medicaid expenditures nationwide.15 *683The Court of Appeals concluded that the failed to establish coercion in this case in part because the “states have the power to tax and raise revenue, and therefore can create and fund programs of their own if they do not like Congress’s terms.” (CA11 11); see Brief for Sen. Harry Reid et al. as Amici Curiae in No. 11-400, p. 21 (“ may always choose to decrease expenditures on other programs or to raise revenues”). But the sheer size of this federal spending program in relation to state expenditures means that a State would be very hard pressed to compensate for the loss of federal funds by cutting other spending or raising additional revenue. Arizona, for example, commits 12% of its state expenditures to Medicaid, and relies on the Federal Government to provide the rest: $5.6 billion, equaling roughly one-third of Arizona’s annual state expenditures of $ billion. See NASBO Report 7, 47. Therefore, if Arizona lost federal Medicaid funding, the State would have to commit an additional 33% of all its state expenditures to fund an equivalent state program along the lines of pre-expansion Medicaid. This means that the State would have to allocate 45% of its annual expenditures for that one purpose. See The are far less reliant on federal funding for any other program. After Medicaid, the next biggest federal funding item is aid to support elementary and secondary education, which amounts to 12.8% of total federal outlays to the see 16, and equals only 6.6% of all state expenditures combined. See In Arizona, for example, although federal Medicaid expenditures are equal to 33% of all state expenditures, federal education funds amount to only 9.8% of all state expenditures. See And even in with less than average federal Medicaid funding, that funding is at least twice the size of federal education *funding as a percentage of state expenditures. 16, 47. A State forced out of the Medicaid program would face burdens in addition to the loss of federal Medicaid funding. For example, a nonparticipating State might be found to be ineligible for other major federal funding sources, such as Temporary Assistance for Needy Families (TANF), which is premised on the expectation that will participate in Medicaid. See 42 U. S. C. 602(a)(3) And withdrawal or expulsion from the Medicaid program would not relieve a State’s hospitals of their obligation under federal law to provide care for patients who are unable to pay for medical services. The Emergency Medical Treatment and Active Labor Act, 1dd, requires hospitals that receive any federal funding to provide stabilization care for indigent patients but does not offer federal funding to assist facilities in carrying out its mandate. Many of these patients are now covered by Medicaid. If providers could not look to the Medicaid program to pay for this care, they would find it exceedingly difficult to comply with federal law unless they were given substantial state support. See, e. g., Brief for Economists as Amici Curiae in No. 11-400, p. 11. For these reasons, the offer that the ACA makes to the —go along with a dramatic expansion of Medicaid or potentially lose all federal Medicaid funding—is quite unlike anything that we have seen in a prior spending-power case. In South the total amount that the would have lost if every single State had refused to comply with the 21-year-old drinking age was approximately $614.7 million—or about 0.19% of all state expenditures combined. See Nat. Assn, of State Budget Officers, 1989 (Fiscal Years 1987-1989 Data) State Expenditure Report 10, 84 (1989), http://www.nasbo.org/publications-data/state-expenditure-report/archives. South Dakota stood to lose, at most, fund*685ing that amounted to less than 1% of its annual state expenditures. See Under the ACA, by contrast, the Federal Government has threatened to withhold 42.3% of all federal outlays to the or approximately $233 billion. See NÁSBO Report 7, 10, 47. South Dakota stands to lose federal funding equaling 28.9% of its annual state expenditures. See 47. Withholding $614.7 million, equaling only 0.19% of all state expenditures combined, is aptly characterized as “relatively mild encouragement,” but threatening to withhold $233 billion, equaling 21.86% of all state expenditures combined, is a different matter. 2 What the statistics suggest is confirmed by the goal and structure of the ACA. In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends. The stated goal of the ACA is near-universal health care coverage. To achieve this goal, the ACA mandates that every person obtain a minimum level of coverage. It attempts to reach this goal in several different ways. The guaranteed-issue and community-rating provisions are designed to make qualifying insurance available and affordable for persons with medical conditions that may require expensive care. Other ACA provisions seek to make such policies more affordable for people of modest means. Finally, for low-income individuals who are simply not able to obtain insurance, Congress expanded Medicaid, transforming it from a program covering only members of a limited list of vulnerable groups into a program that provides at least the requisite minimum level of coverage for the poor. See 42 U. S. C. 1396a(a)(10)(A)(i)(VIII) (06 ed. and Supp. IV), 1396u-7(a), (b)(5), 18022(a). This design was intended to provide at least a specified minimum level of coverage for all Americans, but the achievement of that goal obviously depends on participation by every single State. If any State—not to *mention all of the 26 that brought this suit—chose to decline the federal offer, there would be a gaping hole in the ACA’s coverage. It is true that some persons who are eligible for Medicaid coverage under the ACA may be able to secure private insurance, either through their employers or by obtaining subsidized insurance through an exchange. See 26 U. S. C. 36B(a) (06 ed., Supp. IV); Brief for Respondents in No. 11-400, at 12. But the new federal subsidies are not available to those whose income is below the federal poverty level, and the ACA provides no means, other than Medicaid, for these individuals to obtain coverage and comply with the Mandate. The Government counters that these people will not have to pay the penalty, see, e. g., Tr. of Oral Arg. in No. 11-400, p. 68 (Mar. 28, 12); Brief for Respondents in No. 11-400, at 49-50, but that argument misses the point: Without Medicaid, these individuals will not have coverage and the ACA’s goal of near-universal coverage will be severely frustrated. If Congress had thought that might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. 18041(c)(1) (06 ed., Supp. IV). Likewise, knowing that would not necessarily provide affordable health insurance for aliens lawfully present in the United —because Medicaid does not require to provide such coverage—Congress extended the availability of the new federal insurance subsidies to all aliens. See 26 *687U. S. C. 36B(c)(1)(B)(ii) (excepting from the income limit individuals who are “not eligible for the medicaid program by reason of [their] alien status”)- Congress did not make these subsidies available for citizens with incomes below the poverty level because Congress obviously assumed that they would be covered by Medicaid. If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens. These features of the ACA convey an unmistakable message: Congress never dreamed that any State would refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical option. The Federal Government does not dispute the inference that Congress anticipated 100% state participation, but it argues that this assumption was based on the fact that ACA’s offer was an “exceedingly generous” gift. Brief for Respondents in No. 11-400, 0. As the Federal Government sees things, Congress is like the generous benefactor who offers $1 million with few strings attached to 50 randomly selected individuals. Just as this benefactor might assume that all of these 50 individuals would snap up his offer, so Congress assumed that every State would gratefully accept the federal funds (and conditions) to go with the expansion of Medicaid. This characterization of the ACA’s offer raises obvious questions. If that offer is “exceedingly generous,” as the Federal Government maintains, why have more than half the brought this lawsuit, contending that the offer is coercive? And why did Congress find it necessary to threaten that any State refusing to accept this “exceedingly generous” gift would risk losing all Medicaid funds? Congress could have made just the new funding provided under the ACA contingent on acceptance of the terms of the Medicaid *688Expansion. Congress took such an approach in some earlier amendments to Medicaid, separating new coverage requirements and funding from the rest of the program so that only new funding was conditioned on new eligibility extensions. See, e. g., Social Security Amendments of 1972, Congress’ decision to do otherwise here reflects its understanding that the ACA offer is not an “exceedingly generous” gift that no State in its right mind would decline. Instead, acceptance of the offer will impose very substantial costs on participating It is true that the Federal Government will bear most of the initial costs associated with the Medicaid Expansion, first paying 100% of the costs of covering newly eligible individuals between 14 and 16. 42 U. S. C. 1396d(y). But that is just part of the picture. Participating will be forced to shoulder substantial costs as well, because after 19 the Federal Government will cover only 90% of the costs associated with the Expansion, see ib with state spending projected to increase by at least $ billion by as a consequence. Statement of Douglas W. CBO’s Analysis of the Major Health Care Legislation Enacted in March 10, p. 24 (Mar. 30, 11); see also R. Bovbjerg, B. Ormond, & V. Chen, Kaiser Commission on Medicaid and the Uninsured, State Budgets Under Federal Health Reform: The Extent and Causes of Variations in Estimated Impacts 4, n. 27 (Feb. 11) (estimating new state spending at $43.2 billion through 19). After 19, state spending is expected to increase at a faster rate; the Congressional Budget Office estimates new state spending at $60 billion through 21. Statement of Douglas W. And these costs may increase in the future because of the very real possibility that the Federal Government will change funding terms and reduce the percentage of funds it will cover. This would leave the to bear an increasingly large percentage of the bill. See Tr. of Oral Arg. in No. 11-400, pp. 74-76 (Mar. 28, 12). Finally, after 15, the will have to pick up the tab *689for 50% of all administrative costs associated with implementing the new program, see 1396b(a)(2)-(5), (7) (06 ed. and Supp. IV), costs that could approach $12 billion between fiscal years 14 and see Dept, of Health and Human Services, Centers for Medicare and Medicaid Services, 10 Actuarial Report on the Financial Outlook for Medicaid 30. In sum, it is perfectly clear from the goal and structure of the ACA that the offer of the Medicaid Expansion was one that Congress understood no State could refuse. The Medicaid Expansion therefore exceeds Congress’ spending power and cannot be implemented. F Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional. See Parts IV-A to Part IV-A, ante, 75-585 (opinion of Roberts, C. J., joined by Breyer and Kagan, JJ.). Because the Medicaid Expansion is unconstitutional, the question of remedy arises. The most natural remedy would be to invalidate the Medicaid Expansion. However, the Government proposes—in two cursory sentences at the very end of its brief—preserving the Expansion. Under its proposal, would receive the additional Medicaid funds if they expand eligibility, but would keep their preexisting Medicaid funds if they do not expand eligibility. We cannot accept the Government’s suggestion. The reality that were given no real choice but to expand Medicaid was not an accident. Congress assumed would have no choice, and the ACA depends on ’ having no choice, because its Mandate requires low-income individuals to obtain insurance many of them can afford only through the Medicaid Expansion. Furthermore, a State’s withdrawal might subject everyone in the State to much higher insurance premiums. That is because the Medicaid Expansion will no longer offset the cost to the insurance *690industry imposed by the ACA’s insurance regulations and taxes, a point that is explained in more detail in the sever-ability section below. To make the Medicaid Expansion optional despite the ACA’s structure and design “ ‘would be to make a new law, not to enforce an old one. This is no part of our duty.’” Trade-Mark Worse, the Government’s proposed remedy introduces a new dynamic: must choose between expanding Medicaid or paying huge tax sums to the federal fisc for the sole benefit of expanding Medicaid in other If this divisive dynamic between and among can be introduced at all, it should be by conscious congressional choice, not by Court-invented interpretation. We do not doubt that are capable of making decisions when put in a tight spot. We do doubt the authority of this Court to put them there. The Government cites a severability clause codified with Medicaid in Chapter 7 of the United Code stating that if “any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.” 42 U. S. C. 1303. But that clause tells us only that other provisions in Chapter 7 should not be invalidated if 1396c, the authorization for the cutoff of all Medicaid funds, is unconstitutional. It does not tell us that 1396c can be judicially revised, to say what it does not say. Such a judicial power would not be called the doctrine of severability but perhaps the doctrine of amendatory invalidation—similar to the amendatory veto that permits the Governors of some to reduce the amounts appropriated in legislation. The proof that such a power does not exist is the fact that it would not preserve other congressional dispositions, but would leave it up to the Court what the “validated” legislation will contain. The Court today opts for permitting the cutoff of only incremental Medicaid funding, but it might just as well have permitted, say, the cutoff of funds that repre*691sent no more than x percent of the State’s budget. The Court severs nothing, but simply revises 1396c to read as the Court would desire. We should not accept the Government’s invitation to attempt to solve a constitutional problem by rewriting the Medicaid Expansion so as to allow that reject it to retain their pre-existing Medicaid funds. Worse, the Government’s remedy, now adopted by the Court, takes the ACA and this Nation in a new direction and charts a course for federalism that the Court, not the Congress, has chosen; but under the Constitution, that power and authority do not rest with this Court. V Severability The Affordable Care Act seeks to achieve “near-universal” health insurance coverage. 18091(2)(D) (06 ed., Supp. IV). The two pillars of the Act are the Individual Mandate and the expansion of coverage under Medicaid. In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid. It follows, as some of the parties urge, that all other provisions of the Act must fall as well. The following section explains the severability principles that require this conclusion. This analysis also shows how closely interrelated the Act is, and this is all the more reason why it is judicial usurpation to impose an entirely new mechanism for withdrawal of Medicaid funding, see Part which is one of many examples of how rewriting the Act alters its dynamics. A When an unconstitutional provision is but a part of a more comprehensive statute, the question arises as to the validity of the remaining provisions. The Court’s authority to declare a statute partially unconstitutional has been well established since when the Court severed an unconstitutional provision from the Ju*692diciary Act of 89. And while the Court has sometimes applied “at least a modest presumption in favor of. sever-ability,” C. Nelson, Statutory Interpretation 144 (11), it has not always done so, see, e. g., 526 U. S. 2, An automatic or too cursory severance of statutory provisions risks “rewrit[ing] a statute and giv[ing] it an effect altogether different from that sought by the measure viewed as a whole.” Railroad Retirement 3 The Judiciary, if it orders uncritical severance, then assumes the legislative function; for it imposes on the Nation, by the Court’s decree, its own new statutory regime, consisting of policies, risks, and duties that Congress did not enact. That can be a more extreme exercise of the judicial power than striking the whole statute and allowing Congress to address the conditions that pertained when the statute was considered at the outset. The Court has applied a two-part guide as the framework for severability analysis. The test has been deemed “well established.” Alaska First, if the Court holds a statutory provision unconstitutional, it then determines whether the now truncated statute will operate in the manner Congress intended. If not, the remaining provisions must be invalidated. See In Alaska the Court clarified that this first inquiry requires more than asking whether “the balance of the legislation is incapable of functioning independently.” at Even if the remaining provisions will operate in some coherent way, that alone does not save the statute. The question is whether the provisions will work as Congress intended. The “relevant inquiry in evaluating sever-ability is whether the statute will fimction in a manner consistent with the intent of Congress.” See also Free Enterprise (10) ; United v. Booker, 543 U. S. 2, ; Mille Second, even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated. See Alaska ; see also Free Enterprise 09 ; 546 U. S. 3, (06) ; Denver Area Ed. Telecommunications Consortium, (“Would Congress still have passed 10(a) had it known that the remaining provisions were invalid” ). The two inquiries—whether the remaining provisions will operate as Congress designed them, and whether Congress would have enacted the remaining provisions standing alone—often are interrelated. In the ordinary course, if the remaining provisions cannot operate according to the congressional design (the first inquiry), it almost necessarily follows that Congress would not have enacted them (the second inquiry). This close interaction may explain why the Court has not always been precise in distinguishing between the *694two. There are, however, occasions in which the severability standard’s first inquiry (statutory functionality) is not a proxy for the second inquiry (whether the Legislature intended the remaining provisions to stand alone). B The Act was passed to enable affordable, “near-universal” health insurance coverage. 42 U. S. C. 18091(2)(D). The resulting, complex statute consists of mandates and other requirements; comprehensive regulation and penalties; some undoubted taxes; and increases in some governmental expenditures, decreases in others. Under the severability test set out above, it must be determined if those provisions function in a coherent way and as Congress would have intended, even when the major provisions establishing the Individual Mandate and Medicaid Expansion are themselves invalid. Congress did not intend to establish the goal of near-universal coverage without regard to fiscal consequences. See, e. g., ACA 1563, (“[T]his Act will reduce the Federal deficit between 10 and 19”). And it did not intend to impose the inevitable costs on any one industry or group of individuals. The whole design of the Act is to balance the costs and benefits affecting each set of regulated parties. Thus, individuals are required to obtain health insurance. See 26 U. S. C. 5000A(a). Insurance companies are required to sell them insurance regardless of patients’ pre-existing conditions and to comply with a host of other regulations. And the companies must pay new taxes. See 4980I (high-cost insurance plans); 42 U. S. C. 300gg(a)(1), 300gg-4(b) (community rating); 300gg-1, 300gg-3, 300gg-4(a) (guaranteed issue); 300gg-11 (elimination of coverage limits); 300gg-14(a) (dependent children up to age 26); ACA 9010, 10905, 10 ; Health Care and Education Reconciliation Act of 10 (HCERA) 1401, are expected to expand Medicaid eligibility and to create regulated marketplaces *695called exchanges where individuals can purchase insurance. See 42 U. S. C. 1396a(a)(10)(A)(i)(VIII) (06 ed., Supp. IV) (Medicaid Expansion), 18031 (exchanges). Some persons who cannot afford insurance are provided it through the Medicaid Expansion, and others are aided in their purchase of insurance through federal subsidies available on health insurance exchanges. See 26 U. S. C. 36B (06 ed., Supp. IV), 42 U. S. C. 18071 (06 ed., Supp. IV) (federal subsidies). The Federal Government’s increased spending is offset by new taxes and cuts in other federal expenditures, including reductions in Medicare and in federal payments to hospitals. See, e. g., 1ww(r) (Medicare cuts); ACA Title IX, Subtitle A, Employers with at least 50 employees must either provide employees with adequate health benefits or pay a financial exaction if an employee who qualifies for federal subsidies purchases insurance through an exchange. See 26 U. S. C. 4980H (06 ed., Supp. IV). In short, the Act attempts to achieve near-universal health insurance coverage by spreading its costs to individuals, insurers, governments, hospitals, and employers—while, at the same time, offsetting significant portions of those costs with new benefits to each group. For example, the Federal Government bears the burden of paying billions for the new entitlements mandated by the Medicaid Expansion and federal subsidies for insurance purchases on the exchanges; but it benefits from reductions in the reimbursements it pays to hospitals. Hospitals lose those reimbursements; but they benefit from the decrease in uncompensated care, for under the insurance regulations it is easier for individuals with pre-existing conditions to purchase coverage that increases payments to hospitals. Insurance companies bear new costs imposed by a collection of insurance-regulations and taxes, including “guaranteed issue” and “community rating” requirements to give coverage regardless of the insured’s pre-existing conditions; but the insurers benefit from the *696new, healthy purchasers who are forced by the Individual Mandate to buy the insurers’ product and from the new low-income Medicaid recipients who will enroll in insurance companies’ Medicaid-funded managed care programs. In summary, the Individual Mandate and Medicaid Expansion offset insurance regulations and taxes, which offset reduced reimbursements to hospitals, which offset increases in federal spending. So, the Act’s major provisions are interdependent. The Act then refers to these interdependencies as “shared responsibility.” See ACA Subtitle F, Part I, ; ACA 1501, ; ACA 1513, 3 ; ACA 4980H, In at least six places, the Act describes the Individual Mandate as working “together with the other provisions of this Act.” 42 U. S. C. 18091(2)(C) (06 ed., Supp. IV) (working “together” to “add millions of new consumers to the health insurance market”); 18091(2)(E) (working “together” to “significantly reduce” the economic cost of the poorer health and shorter lifespan of the uninsured); 18091(2)(F) (working “together” to “lower health insurance premiums”); 18091(2)(G) (working “together” to “improve financial security for families”); 18091(2)(I) (working “together” to minimize “adverse selection and broaden the health insurance risk pool to include healthy individuals”); 18091(2)(J) (working “together” to “significantly reduce administrative costs and lower health insurance premiums”). The Act calls the Individual Mandate “an essential part” of federal regulation of health insurance and warns that “the absence of the requirement would undercut Federal regulation of the health insurance market.” 18091(2)(H). C One preliminary point should be noted before applying severability principles to the Act. To be sure, an argument can be made that those portions of the Act that none of the *697parties has standing to challenge cannot be held nonseverable. The response to this argument is that our cases do not support it. See, e. g., (holding nonseverable statutory provisions that did not burden the parties). It would be particularly destructive of sound government to apply such a rule with regard to a multifaceted piece of legislation like the ACA. It would take years, perhaps decades, for each of its provisions to be adjudicated separately—and for some of them (those simply expending federal funds) no one may have separate standing. The Federal Government, the and private parties ought to know at once whether the entire legislation fails. The opinion now explains in Part V-C-1, infra, why the Act’s major provisions are not severable from the Mandate and Medicaid Expansion. It proceeds from the insurance regulations and taxes (C-1-a), to the reductions in reimbursements to hospitals and other Medicare reductions (C-1-b), the exchanges and their federal subsidies (C-1-c), and the employer-responsibility assessment (C-1-d). Part V-C-2, infra, explains why the Act’s minor provisions also are not severable. 1 The Act’s Major Provisions Major provisions of the Affordable Care Act—i. e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer-responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid. That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected burdens on patients, the *698health care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend. a Insurance Regulations and Taxes Without the Individual Mandate and Medicaid Expansion, the Affordable Care Act’s insurance regulations and insurance taxes impose risks on insurance companies and their customers that this Court cannot measure. Those risks would undermine Congress’ scheme of “shared responsibility.” See 26 U. S. C. 4980I (06 ed., Supp. IV) (high-cost insurance plans); 42 U. S. C. 300gg(a)(1) (06 ed., Supp. IV), 300gg-4(b) (community rating); 300gg-1, 300gg-3, 300gg-4(a) (guaranteed issue); 300gg-11 (elimination of coverage limits); 300gg-14(a) (dependent children up to age 26); ACA 9010, 10905, 10 ; HCERA 1401, The Court has been informed by distinguished economists that the Act’s Individual Mandate and Medicaid Expansion would each increase revenues to the insurance industry by about $350 billion over 10 years; that this combined figure of $700 billion is necessary to offset the approximately $700 billion in new costs to the insurance industry imposed by the Act’s insurance regulations and taxes; and that the new $700-billion burden would otherwise dwarf the industry’s current profit margin. See Brief for Economists as Amici Curiae in No. 11-393 etc. (Severability), pp. 9-16, 10a. If that analysis is correct, the regulations and taxes will mean higher costs for insurance companies. Higher costs may mean higher premiums for consumers, despite the Act’s goal of “lowering] health insurance premiums.” 42 U. S. C. 18091(2)(F) (06 ed., Supp. IV). Higher costs also could threaten the survival of health insurance companies, despite *6the Act’s goal of “effective health insurance markets.” 18091(2)(J). The actual cost of the regulations and taxes may be more or less than predicted. What is known, however, is that severing other provisions from the Individual Mandate and Medicaid Expansion necessarily would impose significant risks and real uncertainties on insurance companies, their customers, all other major actors in the system, and the government treasury. And what also is known is this: Unnecessary risks and avoidable uncertainties are hostile to economic progress and fiscal stability and thus to the safety and welfare of the Nation and the Nation’s freedom. If those risks and uncertainties are to be imposed, it must not be by the Judiciary. b Reductions in Reimbursements to Hospitals and Other Reductions in Medicare Expenditures The Affordable Care Act reduces payments by the Federal Government to hospitals by more than $0 billion over 10 years. See 42 U. S. C. 1ww(b)(3)(B)(xi)-(xii) (06 ed., Supp. IV); 1ww(q); 1ww(r); 1396r-4(f)(7). The concept is straightforward: Near-universal coverage will reduce uncompensated care, which will increase hospitals’ revenues, which will offset the government’s reductions in Medicare and Medicaid reimbursements to hospitals. Responsibility will be shared, as burdens and benefits balance each other. This is typical of the whole dynamic of the Act. Invalidating the key mechanisms for expanding insurance coverage, such as community rating and the Medicaid Expansion, without invalidating the reductions in Medicare and Medicaid, distorts the ACA’s design of “shared responsibility.” Some hospitals may be forced to raise the cost of care in order to offset the reductions in reimbursements, which could raise the cost of insurance premiums, in contravention of the Act’s goal of “lowering] health insurance premiums.” *70042 U.S.C. 18091(2)(F) (06 ed., Supp. IV). See also 18091(2)(I) (goal of “lowering] health insurance premiums”); 18091(2)(J) Other hospitals, particularly safety-net hospitals that serve a large number of uninsured patients, may be forced to shut down. Cf. Nat. Assn, of Public Hospitals, 09 Annual Survey: Safety Net Hospitals and Health Systems Fulfill Mission in Uncertain Times 6-6 (Feb. 11). Like the effect of preserving the insurance regulations and taxes, the precise degree of risk to hospitals is unknowable. It is not the proper role of the Court, by severing part of a statute and allowing the rest to stand, to impose unknowable risks that Congress could neither measure nor predict. And Congress could not have intended that result in any event. There is a second, independent reason why the reductions in reimbursements to hospitals and the ACA’s other Medicare cuts must be invalidated. The ACA’s $465 billion in Medicare and Medicaid savings offset the $434-billion cost of the Medicaid Expansion. See CBO Estimate, Table 2 (Mar. 10). The reductions allowed Congress to find that the ACA “will reduce the Federal deficit between 10 and 19” and “will continue to reduce budget deficits after 19.” ACA 1563(a)(1), (2), That finding was critical to the ACA. The Act’s “shared responsibility” concept extends to the federal budget. Congress chose to offset new federal expenditures with budget cuts and tax increases. That is why the United has explained in the course of this litigation that “[w]hen Congress passed the ACA, it was careful to ensure that any increased spending, including on Medicaid, was offset by other revenue-raising and cost-saving provisions.” Memorandum in Support of Government’s Motion for Summary Judgment in No. 3-10-cv-91 (DC ND Fla.), p. 41. If the Medicare and Medicaid reductions would no longer be needed to offset the costs of the Medicaid Expansion, the reductions would no longer operate in the manner Congress *701intended. They would lose their justification and foundation. In addition, to preserve them would be “to eliminate a significant quid pro quo of the legislative compromise” and create a statute Congress did not enact. Legal Services (01) It is no secret that cutting Medicare is unpopular; and it is most improbable Congress would have done so without at least the assurance that it would render the ACA deficit neutral. See ACA 1563(a)(1), (2), c Health Insurance Exchanges and Their Federal Subsidies The ACA requires each State to establish a health insurance “exchange.” Each exchange is a one-stop marketplace for individuals and small businesses to compare community-rated health insurance and purchase the policy of their choice. The exchanges cannot operate in the manner Congress intended if the Individual Mandate, Medicaid Expansion, and insurance regulations cannot remain in force. The Act’s design is to allocate billions of federal dollars to subsidize individuals’ purchases on the exchanges. Individuals with incomes between 100% and 400% of the poverty level receive tax credits to offset the cost of insurance to the individual purchaser. 26 U. S. C. 36B (06 ed., Supp. IV); 42 U. S. C. 18071 (06 ed., Supp. IV). By 19, million of the 24 million people who will obtain insurance through an exchange are expected to receive an average federal subsidy of $6,460 per person. See CBO, Analysis of the Major Health Care Legislation Enacted in March 10, pp. 18-19 (Mar. 30, 11). Without the community-rating insurance regulation, however, the average federal subsidy could be much higher; for community rating greatly lowers the enormous premiums unhealthy individuals would otherwise pay. Federal subsidies would make up much of the difference. *702The result would be an unintended boon to insurance companies, an unintended harm to the federal fisc, and a corresponding breakdown of the “shared responsibility” between the industry and the federal budget that Congress intended. Thus, the federal subsidies must be invalidated. In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. See 42 U. S. C. 18031. That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all. There is a second reason why, if community rating is invalidated by the Mandate and Medicaid Expansion’s invalidity, exchanges cannot be implemented in a manner consistent with the Act’s design. A key purpose of an exchange is to provide a marketplace of insurance options where prices are standardized regardless of the buyer’s pre-existing conditions. See An individual who shops for insurance through an exchange will evaluate different insurance products. The products will offer different benefits and prices. Congress designed the exchanges so the shopper can compare benefits and prices. But the comparison cannot be made in the way Congress designed if the prices depend on the shopper’s pre-existing health conditions. The prices would vary from person to person. So without community rating—which prohibits insurers from basing the price of in*703surance on pre-existing conditions—the exchanges cannot operate in the manner Congress intended. d Employer-Responsibility Assessment The employer-responsibility assessment provides an incentive for employers with at least 50 employees to provide their employees with health insurance options that meet minimum criteria. See 26 U. S. C. 4980H (06 ed., Supp. IV). Unlike the Individual Mandate, the employer-responsibility assessment does not require employers to provide an insurance option. Instead, it requires them to make a payment to the Federal Government if they do not offer insurance to employees and if insurance is bought on an exchange by an employee who qualifies for the exchange’s federal subsidies. See For two reasons, the employer-responsibility assessment must be invalidated. First, the ACA makes a direct link between the employer-responsibility assessment and the exchanges. The financial assessment against employers occurs only under certain conditions. One of them is the purchase of insurance by an employee on an exchange. With no exchanges, there are no purchases on the exchanges; and with no purchases on the exchanges, there is nothing to trigger the employer-responsibility assessment. Second, after the invalidation of burdens on individuals (the Individual Mandate), insurers (the insurance regulations and taxes), (the Medicaid Expansion), the Federal Government (the federal subsidies for exchanges and for the Medicaid Expansion), and hospitals (the reductions in reimbursements), the preservation of the employer-responsibility assessment would upset the ACA’s design of “shared responsibility.” It would leave employers as the only parties bearing any significant responsibility. That was not the congressional intent. *7042 The Act’s Minor Provisions The next question is whether the invalidation of the ACA’s major provisions requires the Court to invalidate the ACA’s other provisions. It does. The ACA is over 900 pages long. Its regulations include requirements ranging from a break time and secluded place at work for nursing mothers, see 29 U. S. C. 7(r)(1) (06 ed., Supp. IV), to displays of nutritional content at chain restaurants, see 21 U. S. C. 343(q)(5)(H) (06 ed., Supp. IV). The Act raises billions of dollars in taxes and fees, including exactions imposed on high-income taxpayers, see ACA 9015, 10906, 10; HCERA 1402, medical devices, see 26 U. S. C. 4191 (06 ed., Supp. IV), and tanning booths, see 5000B. It spends government money on, among other things, the study of how to spend less government money. 42 U. S. C. 1315a (06 ed., Supp. IV). And it includes a number of provisions that provide benefits to the State of a particular legislator. For example, 10323, extends Medicare coverage to individuals exposed to asbestos from a mine in Libby, Montana. Another provision, 06, increases Medicaid payments only in Louisiana. Such provisions validate the Senate Majority Leader’s statement, “ T don’t know if there is a senator that doesn’t have something in this bill that was important to them. [And] if they don’t have something in it important to them, then it doesn’t speak well of them. That’s what this legislation is all about: It’s the art of compromise.’” Pear, In Health Bill for Everyone, Provisions for a Few, N. Y. Times, Jan. 4, 10, p. A10 (quoting Sen. Reid). Often, a minor provision will be the price paid for support of a major provision. So, if the major provision were unconstitutional, Congress would not have passed the minor one. *705Without the ACA’s major provisions, many of these minor provisions will not operate in the manner Congress intended. For example, the tax increases are “Revenue Offset Provisions” designed to help offset the cost to the Federal Government of programs like the Medicaid Expansion and the exchanges’ federal subsidies. See Title IX, Subtitle A— Revenue Offset Provisions, With the Medicaid Expansion and the exchanges invalidated, the tax increases no longer operate to offset costs, and they no longer serve the purpose in the Act’s scheme of “shared responsibility” that Congress intended. Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which. To sever the statute in that manner “ ‘would be to make a new law, not to enforce an old one. This is not part of our duty.’” Trade-Mark 100 U. S., at This Court must not impose risks unintended by Congress or produce legislation Congress may have lacked the support *706to enact. For those reasons, the unconstitutionality of both the Individual Mandate and the Medicaid Expansion requires the invalidation of the Affordable Care Act’s other provisions. * * * The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cutoff of Medicaid funds to a supposedly noncoercive cutoff of only the incremental funds that the Act makes available. The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the to expend vast sums of money on requirements that may or may not survive the necessary congressional revision. The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is *707to be introduced at all, it should be by Congress, not by the Judiciary. The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent. The most authoritative legal dictionaries of the founding era lack any definition for “regulate” or “regulation,” suggesting that the term bears its ordinary meaning (rather than some specialized legal meaning) in the *650constitutional text. See 2 R. Burn, A New Law Dictionary 281 (92); G. Jacob, A New Law Dictionary (10th ed. 82); 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 71). Justice Ginsburg is therefore right to note that Congress is “not mandating the purchase of a discrete, unwanted product.” Ante, at 608 (opinion concurring in part, concurring in judgment in part, and dissenting in part). Instead, it is mandating the purchase of an unwanted suite of products—e.g., physician office visits, emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care, and substance abuse detoxification. See Selected Medical Benefits: A Report From the Dept, of Labor to the Dept, of Health and Human Services (Apr. 15, 11) (reporting that over two-thirds of private industry health plans cover these goods and services), online at http://www.bls.gov/nes/ebs/sp/selmedbensreport.pdf (all Internet materials as visited June 26, 12, and available in Clerk of Court’s case file). In its effort to show the contrary, Justice Ginsburg’s dissent comes up with nothing more than two condemnation eases, which it says demonstrate “Congress’ authority under the commerce power to compel an ‘inactive’ landholder to submit to an unwanted sale.” Ante, at 611. Wrong on both scores. As its name suggests, the condemnation power does not “compel” anyone to do anything. It acts in rent, against the property that is condemned, and is effective with or without a transfer of title from the former owner. More important, the power to condemn for public use is a separate sovereign power, explicitly acknowledged in the Fifth Amendment, which provides that “private property [shall not] be taken for public use, without just compensation.” Thus, the power to condemn tends to refute rather than support the power to compel purchase of unwanted goods at a prescribed price: The latter is rather like the power to condemn cash for public use. If it existed, why would it not (like the condemnation power) be accompanied by a requirement of fair compensation for the portion of the exacted price that exceeds the goods’ fair market value (here, the difference between what the free market would charge for a health insurance policy on a young, healthy person with no pre-existing conditions, and the government-exacted community-rated premium)? No one seriously contends that any of Congress’ other enumerated powers gives it the authority to enact 5000A as a regulation. Of course it can be both for statutory purposes, since Congress can define “tax” and “penalty” in its enactments any way it wishes. That is why United v. Sotelo, does not disprove our statement. That case held that a “penalty” for willful failure to pay one’s taxes was included among the “taxes” made nondischargeable under the ruptcy Code. Whether the “penalty” was a “tax” within the meaning of the ruptcy Code had absolutely no bearing on whether it escaped the constitutional limitations on penalties. The amicus appointed to defend the proposition that the Anti-Injunction Act deprives us of jurisdiction stresses that the penalty for failing to comply with the mandate “shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68,” 26 U. S. C. 5000A(g)(1) (06 ed., Supp. IV), and that such penalties “shall be assessed and collected in the same manner as taxes,” 6671(a) But that point seems to us to confirm the inapplicability of the Anti-Injunction Act. That the penalty is to be “assessed and collected in the same manner as taxes” refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act. Moreover, elsewhere in the Internal Revenue Code, Congress has provided both that a particular payment shall be “assessed and collected” in the same manner as a tax and that no suit shall be maintained to restrain the assessment or collection of the payment. See, e.g., 7(b)(1), 6901(a); 6306(a), (b). The latter directive would be superfluous if the former invoked the Anti-Injunction Act. Amicus also suggests that the penalty should be treated as a tax because it is an assessable penalty, and the Code’s assessment provision authorizes the Secretary of the Treasury to assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.” 01(a) (06 ed., Supp. IV). But the fact that such items are included as “taxes” for purposes of assessment does not establish that they are included as “taxes” for purposes of other sections of the Code, such as the Anti-Injunction Act, that do not contain similar “including” language. “State expenditures” is used here to mean annual expenditures from the ’ own funding sources, and it excludes federal grants unless otherwise noted. This number is expressed in billions of Fiscal Year 05 dollars. See Office of Management and Budget, Historical Tables, Budget of the U. S. Government, Fiscal Year 13, Table 12.1—Summary Comparison of Total Outlays for Grants to State and Local Governments: 1940- (hereinafter Table 12.1), http://www.whitehouse.gov/omb/budget/ Historicals; Table 15.2—Total Government Expenditures: 1948-11 (hereinafter Table 15.2). This number is expressed in billions of Fiscal Year 05 dollars. See Table 12.1; Dept, of Commerce, Bureau of Census, Statistical Abstract of the United : 01, p. 2 (Table 419, Federal Grants-in-Aid Summary: 1970 to 01). See Statistical Abstract of the United : 12, p. 268 (Table 431, Federal Grants-in-Aid to State and Local Governments: 10 to 11). Justice Ginsburg argues that “[a] State has no claim on the money its residents pay in federal taxes.” Ante, at 643, n. 26. This is true as a formal matter. “When the United Government taxes United citizens, it taxes them ‘in their individual capacities’ as ‘the people of America’—not as residents of a particular State.” ; some internal quotation marks omitted). But unless Justice Ginsburg thinks that there is no limit to the amount of money that can be squeezed out of taxpayers, heavy federal taxation diminishes the practical ability of to collect their own taxes. The Federal Government has a higher number for federal spending on Medicaid. According to the Office of Management and Budget, federal grants to the for Medicaid amounted to nearly $273 billion in Fiscal Year 10. See Office of Management and Budget, Historical Tables, Budget of the U. S. Government, Fiscal Year 13, Table 12.3—Total Outlays for Grants to State and Local Governments by Function, Agency, and Program: 1940-13, http://www.whitehouse.gov/omb/budget/Historicals. In that fiscal year, total federal outlays for grants to state and local governments amounted to over $608 billion, see Table 12.1, and state and local government expenditures from their own sources amounted to $1.6 trillion, see Table 15.2. Using these numbers, 44.8% of all federal outlays to both state and local governments was allocated to Medicaid, amounting to 16.8% of all state and local expenditures from their own sources. The Federal Government reports a higher percentage. According to Medicaid.gov, in Fiscal Year 10, the Federal Government made Medicaid payments in the amount of nearly $260 billion, representing 67.79% of total *683Medicaid payments of $3 billion. See www.medicaid.gov/Medicaid-CHIP-Program-Information/By-State/By-State.html.

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833

*843Justice O’Connor, Justice Kennedy, and Justice Sou-ter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, *844V-C, and VI, an opinion with respect to Part V-E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V-B, and V-D. I Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U. S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8. At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra, at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s consent. § 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. §3209. The Act exempts compliance with these three requirements in the event of a “medical emergency,” which is defined in §3203 of the Act. See §§3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f). *845Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania’s enforcement of them. 744 F. Supp. 1323 (ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. 947 F. 2d 682 (1991). We granted certiorari. 502 U. S. 1056 (1992). The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F. 2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, The Chief Justice admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures. After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, *846and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed. It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. II Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U. S. 327, 331 (1986). As Justice Brandéis (joined by Justice Holmes) observed, “[djespite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth *847Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Whitney v. California, 274 U. S. 357, 373 (1927) (concurring opinion). “[TJhe guaranties of due process, though having their roots in Magna Carta’s ‘per legem ter rae’ and considered as procedural safeguards ‘against executive usurpation and tyranny/ have in this country ‘become bulwarks also against arbitrary legislation.’ ” Poe v. Ullman, 367 U. S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U. S. 516, 532 (1884)). The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U. S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. See Adamson v. California, 332 U. S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view. It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U. S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was file-*848gal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U. S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id., at 486-488 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring) (expressly relying on due process), id., at 500-502 (Harlan, J., concurring in judgment) (same), id., at 502-507 (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923). Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. *849UUman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds). Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winston v. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U. S. 165 (1952). The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. *850The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it eould not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.” Poe v. Ullman, 367 U. S., at 542 (opinion dissenting from dismissal on jurisdictional grounds). See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing for the Court) (“To believe that this judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges”). Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps *851in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Texas v. Johnson, 491 U. S. 397 (1989). Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents “have respected the private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U. S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. *852These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision -has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support *853the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its well-being. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to thé parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant. It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting prenatal life. The extent to which the legislatures of the States might aet to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in Roe itself and in decisions following it. While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine. *854hH I — I A The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13,16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed. Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-411 (1932) (Brandéis, J., dissenting). See also Payne v. Tennessee, 501 U. S. 808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U. S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust *855Co., 265 U. S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U. S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e.g., Burnet, supra, at 412 (Brandéis, J., dissenting). So in this case we may enquire whether Roe’s central rule has been found unworkable; whether the rule’s limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law’s growth in the intervening years has left Roe’s central rule a doctrinal anachronism discounted by society; and whether Roe’s premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed. 1 Although Roe has engendered opposition, it has in no sense proven “unworkable,” see Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today’s decision, the required determinations fall within judicial competence. 2 The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennes*856see, supra,, at 828, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe. While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe’s holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions. To eliminate the issue of relianee that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in relianee on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e. g., R. Petehesky, Abortion and Woman’s Choice 109, 138, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. *8573 No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the ease was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking. It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U. S. 479 (1965). See Roe, 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e. g., Carey v. Population Services International, 431 U. S. 678 (1977); Moore v. East Cleveland, 431 U. S. 494 (1977). Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe’s view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990); cf., e. g., Riggins v. Nevada, 504 U. S. 127, 135 (1992); Washington v. Harper, 494 U. S. 210 (1990); see also, e. g., Rochin v. California, 342 U. S. 165 (1952); Jacobson v. Massachusetts, 197 U. S. 11, 24-30 (1905). Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the *858concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (Akron I), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 529 (O’Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U. S., at 521 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 525-526 (O’Connor, J., concurring in part and concurring in judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (Stevens, J., concurring in part and dissenting in part). Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman’s liberty. The latter aspect of the decision fits comfortably within the framework of the Court’s prior decisions, including Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Griswold, supra; Loving v. Virginia, 388 U. S. 1 (1967); and Eisenstadt v. Baird, 405 U. S. 438 (1972), the holdings of which are “not a series of isolated points,” but mark a “rational continuum.” Poe v. Ullman, 367 U. S., at 543 (Harlan, J, dissenting). As we described in *859Carey v. Population Services International, supra, the liberty which encompasses those decisions “includes ‘the interest in independence in making certain kinds of important decisions/ While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions ‘relating to marriage, procreation, contraception, family relationships, and child rearing and education/ ” 431 U. S., at 684-685 (citations omitted). The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E. g., Arnold v. Board of Education of Escambia County, Ala., 880 F. 2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F. 2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see also In re Quinlan, 70 N. J. 10, 355 A. 2d 647 (relying on Roe in finding a right to terminate medical treatment), cert, denied sub nom. Garger v. New Jersey, 429 U. S. 922 (1976)). In any event, because Roe’s scope is confined by the fact of its concern with postconeeption potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently under Griswold and later cases, any error in Roe is unlikely to have serious ramifications in fixture cases. *8604 We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier. Compare Roe, 410 U. S., at 160, with Webster, supra, at 515-616 (opinion of Rehnquist, C. J.); see Akron I, 462 U. S., at 457, and n. 5 (O’Connor, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it. 5 The sum of the precedential enquiry to this point Shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant; *861Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it. B In a less significant case, stare decisis analysis could, and would, stop at the point we have reached. But the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today. The first example is that line of cases identified with Lochner v. New York, 198 U. S. 45 (1905), which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes’s view, the theory of laissez-faire. Id., at 75 (dissenting opinion). The Lochner decisions were exemplified by Adkins v. Children’s Hospital of District of Columbia, 261 U. S. 525 (1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), signaled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on funda*862mentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench: “The older world of laissez faire was recognized everywhere outside the Court to be dead.” The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history’s demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law. The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule for applying the Fourteenth Amendment’s equal protection guarantee. They began with Plessy v. Ferguson, 163 U. S. 537 (1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. The Plessy Court considered “the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Id., at 551. Whether, as a matter of historical fact, the Justices in the Plessy majority believed this or not, see id., at 557, 562 (Harlan, J., dissenting), this understanding of the implication of segregation was the stated justification for the Court’s opinion. But this understanding of *863the facts and the rule it was stated to justify were repudiated in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). As one commentator observed, the question before the Court in Brown was “whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid.” Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 427 (1960). The Court in Brown addressed these facts of life by observing that whatever may have been the understanding in Plessy’s time of the power of segregation to stigmatize those who were segregated with a “badge of inferiority,” it was clear by . 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. 347 U. S., at 494-495. Society’s understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896. While we think Plessy was wrong the day it was decided, see Plessy, supra, at 552-564 (Harlan, J., dissenting), we must also recognize that the Plessy Court’s explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required. West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court’s response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible *864they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior ease as a response to the Court’s constitutional duty. Because the cases before us present no such occasion it could be seen as no such response. Because neither the factual underpinnings of Roe’s central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our eases, that a decision to overrule should rest on some special reason over and above the belief that a prior ease was wrongly decided. See, e. g., Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting) (“A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve”); Mapp v. Ohio, 367 U. S. 643, 677 (1961) (Harlan, J., dissenting). C The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis *865would not be complete, however, without explaining why-overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court’s authority, the conditions necessary for its preservation, and its relationship to the country’s understanding of itself as a constitutional Republic. The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the-Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands. The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is *866obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case. This is not to say, of course, that this Court cannot give a perfectly satisfactory explanation in most cases. People understand that some of the Constitution’s language is hard to fathom and that the Court’s Justices are sometimes able to perceive significant facts or to understand principles of law that* eluded their predecessors and that justify departures from existing decisions. However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court. In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a ease in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its *867decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question. Cf. Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Broten II) (“[I]t should go without saying that the vitality of th[e] constitutional principles [announced in Brown I,] cannot be allowed to yield simply because of disagreement with them”). The country’s loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision’s results *868when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing, less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible. The Court’s duty in the present cases is clear. In 1973, it confronted the already-divisive issue of governmental power *869to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today. IV From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term. *870We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare deci-sis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with iBoe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at 882-883, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today. The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see supra, at 860, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child. *871The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce. On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State’s “important and legitimate interest in protecting the potentiality of human life.” Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman’s interest, was the difficult question faced in Roe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in Roe’s wake we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed. Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman’s liberty but also the State’s “important and legitimate interest in potential life.” Roe, supra, at 163. That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases. Those eases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e. g., Akron I, supra, at 427. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases. *872Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman’s health, but not to further the State’s interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. Roe, supra, at 163-166. Most of our cases since Roe have involved the application of rules derived from the trimester framework. See, e. g., Thornburgh v. American College of Obstetricians and Gynecologists, supra; Akron I, supra. The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers. Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and'that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. “ ‘[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.’” Webster v. Reproductive Health Services, 492 U. S., at 511 (opinion of *873the Court) (quoting Poelker v. Doe, 432 U. S. 519, 521 (1977)). It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe’s central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn. . We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. See Webster v. Reproductive Health Services, 492 U. S., at 518 (opinion of Rehnquist, C. J.); id., at 529 (O’Connor, J., concurring in part and concurring in judgment) (describing the trimester framework as “problematic”). Measures aimed at ensuring that a woman’s choice contemplates the consequences for the ' fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in Roe. As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom' they *874wish to vote. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983); Norman v. Reed, 502 U. S. 279 (1992). The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See Hodgson v. Minnesota, 497 U. S. 417, 458-459 (1990) (O’Connor, J., concurring in part and concurring in judgment in part); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 519-520 (1990) (Akron II) (opinion of Kennedy, J.); Webster v. Reproductive Health Services, supra, at 530 (O’Connor, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 828 (O’Connor, J., dissenting); Simopoulos v. Virginia, 462 U. S. 506, 520 (1983) (O’Connor, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 505 (1983) (O’Connor, J., concurring in judgment in part and dissenting in part); Akron I, 462 U. S., at 464 (O’Connor, J., joined by White and Rehnquist, JJ., dissenting); Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I). For the most part, the Court’s early abortion cases adhered to this view. In Maher v. Roe, 432 U. S. 464, 473-474 (1977), the Court explained: “Roe did not declare an unqualified ‘constitutional right to an abortion,’ as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” See *875also Doe v. Bolton, 410 U. S. 179, 198 (1973) (“[T]he interposition of the hospital abortion committee is unduly restrictive of the patient’s rights”); Bellotti I, supra, at 147 (State may not “impose undue burdens upon a minor capable of giving an informed consent”); Harris v. McRae, 448 U. S. 297, 314 (1980) (citing Maker, supra). Cf. Carey v. Population Services International, 431 U. S., at 688 (“[T]he same test must be applied to state regulations that burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely”). These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion “without interference from the State.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 61 (1976). All abortion regulations interfere to some degree with a woman’s ability to decide whether to terminate her pregnancy. It is, as a consequence, not surprising that despite the protestations contained in the original Roe opinion to the effect that the Court was not recognizing an absolute right, 410 U. S., at 154-155, the Court’s experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far because the right recognized by Roe is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U. S., at 453. Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in ftoe’s terms, in practice it undervalues the State’s interest in the potential life within the woman. Roe v. Wade was express in its recognition of the State’s “important and legitimate interests] in preserving and pro-*876teeting the health of the pregnant woman [and] in protecting the potentiality of human life.” 410 U. S., at 162. The trimester framework, however, does not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life. Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability. Id., at 163. Before viability, Roe and subsequent cases treat all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf. Webster, 492 U. S., at 519 (opinion of Rehnquist, C. J.); Akron I, supra, at 461 (O’Connor, J., dissenting). The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the' woman’s constitutionally protected liberty. The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent. See, e. g., Hodgson v. Minnesota, supra, at 459-461 (O’CONNOR, J., concurring in part and concurring in judgment); Akron II, supra, at 519-520 (opinion of Kennedy, J.); Thornburgh v. American College of Obstetricians and Gynecologists, supra, at 828-829 (O’Connor, J., dissenting); Akron I, supra, at 461-466 (O’Connor, J., dissenting); Harris v. McRae, supra, at 314; Maher v. Roe, supra, at 473; Beal v. Doe, 432 U. S. 438, 446 (1977); Bellotti I, supra, at 147. Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden. *877A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of sérving its legitimate ends. To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what in our view should be the controlling standard. Cf. McCleskey v. Zant, 499 U. S. 467, 489 (1991) (attempting “to define the doctrine of abuse of the writ with more precision” after acknowledging tension among earlier cases). In our considered judgment, an undue burden is an unconstitutional burden. See Akron II, 497 U. S., at 519-520 (opinion of Kennedy, J.). Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional. See, e. g., Akron I, 462 U. S., at 462-463 (O’Connor, J., dissenting). The answer is no. Some guiding principles should emerge. What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exereise of the right to choose. See infra, at 899-900 (addressing Pennsylvania’s parental consent requirement). *878Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.' Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden. Even when jurists reason from shared premises, some disagreement is inevitable. Compare Hodgson, 497 U. S., at 482-497 (Kennedy, J., concurring in judgment in part and dissenting in part), with id., at 458-460 (O’Connor, J., concurring in part and concurring in judgment in part). That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary: (a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. (b) We reject the rigid trimester framework of Roe v. Wade. To promote the State’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right. (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. *879(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. (e) We also reaffirm Roe’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U. S., at 164-165. These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions. V The Court of Appeals applied what it believed to be the undue burden standard and upheld each' of the provisions except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue. A Because it is central to the operation of various other requirements, we begin with the statute’s definition of medical emergency. Under the statute, a medical emergency is “[t]hat condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” 18 Pa. Cons. Stat. §3208 (1990). *880Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State to interfere with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. 410 U. S., at 164. See also Harris v. McRae, 448 U. S., at 316. The District Court found that there were three serious conditions which would not be covered by the statute: pre-eclampsia, inevitable abortion, and premature ruptured membrane. 744 F. Supp., at 1378. Yet, as the Court of Appeals observed, 947 F. 2d, at 700-701, it is undisputed that under some circumstances each of these conditions could lead to an illness with substantial and irreversible consequences. While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase “serious risk” to include those circumstances. Id., at 701. It stated: “[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.” Ibid. As we said in Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985): “Normally, ... we defer to the construction of a state statute given it by the lower federal courts.” Indeed, we have said that we will defer to lower court interpretations of state law unless they amount to “plain” error. Palmer v. Hoffman, 318 U. S. 109, 118 (1943). This “ ‘reflects] our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.’” Frisby v. Schultz, 487 U. S. 474, 482 (1988) (citation omitted). We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman’s abortion right. *881B We next consider the informed consent requirement. 18 Pa. Cons. Stat. §3205 (1990). Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the “probable gestational age of the unborn child.” The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives. to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them. Our prior decisions establish that as with any medical procedure, the State may require a woman to give her written informed consent to an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 67. In this respect, the statute is unexceptional. Petitioners challenge the statute’s definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court’s past decisions, decisions driven by the trimester framework’s prohibition of all previability regulations designed to further the State’s interest in fetal life. In Akron I, 462 U. S. 416 (1983), we invalidated an ordinance which required that a woman seeking an abortion be provided by her physieian with specific information “designed. to influence the woman’s informed choice between abortion or childbirth.” Id., at 444. As we later described *882the Akron I holding in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 762, there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion and the ordinance imposed “a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient. . . .” Ibid. To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the “probable gestational age” of the fetus, those eases go too far, are inconsistent with Roe’s acknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms of Akron I and Thornburgh. Those decisions, along with Dan-forth, recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. E. g., Danforth, supra, at 66-67. It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible. We also see no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health. An example illustrates the point. We would think *883it constitutional for the State to require that in order for there to he informed consent to a kidney transplant operation the recipient must be supplied with information about risks to the donor as well as risks to himself or herself. A requirement that the physician make available information similar to that mandated by the statute here was described in Thornburgh as “an outright attempt to wedge the Commonwealth’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician.” 476 U. S., at 762. We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings of Akron I and Thornburgh to the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden. Our prior cases also suggest that the “straitjacket,” Thornburgh, supra, at 762 (quoting Danforth, supra, at 67, n. 8), of particular information which must be given in each ease interferes with a constitutional right of privacy between a pregnant woman and her physician. As a preliminary matter, it is worth noting that the statute now before us does not require a physician to comply with the informed consent provisions “if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely *884adverse effect on the physical or mental health of the patient/’ 18 Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does not prevent the physician from exercising his or her medical judgment. Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman’s position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific'information about any medical procedure. All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U. S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U. S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here. The Pennsylvania statute also requires us to reconsider the holding in Akron I that the State may not require that a physician, as opposed to a qualified assistant, provide information relevant to a woman’s informed consent. 462 U. S., at 448. Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, we conclude that it is not *885an undue burden. Our eases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). Thus, we uphold the provision as a reasonable means to ensure that the woman’s consent is informed. Our analysis of Pennsylvania’s 24-hour waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion under the undue burden standard requires us to reconsider the premise behind the decision in Akron I invalidating a parallel requirement. In Akron I we said: “Nor are we convinced that the State’s legitimate concern that the woman’s decision be informed is reasonably served by requiring a 24-hour delay as a matter of course.” 462 U. S., at 450. We consider that conclusion to be wrong. The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision. The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency and the record evidence shows that in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. In theory, at least, the waiting period is a reasonable measure to implement the State’s interest in protecting the life of the unborn, a measure that does not amount to an undue burden. Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman’s choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be *886a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to “the harassment and hostility of antiabortion protestors demonstrating outside a clinic.” 744 F. Supp., at 1351. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be “particularly burdensome.” Id., at 1352. These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden. We do not doubt that, as the District Court held, the waiting period has the effect of “increasing the cost and risk of delay of abortions,” id., at 1378, but the District Court did not conclude that the increased costs and potential delays amount to substantial obstacles. Rather, applying the trimester framework’s strict prohibition of all regulation designed to promote the State’s interest in potential life before viability, see id., at 1374, the District Court concluded that the waiting period does not further the state “interest in maternal health” and “infringes the physician’s discretion to exercise sound medical judgment,” id., at 1378. Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician’s discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute’s definition of medical emergency by the Court of Appeals, and the District Court’s findings, we cannot say that the waiting period imposes a real health risk. We also disagree with the District Court’s conclusion that the “particularly burdensome” effects of the waiting period *887on some women require its invalidation. A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden. We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Doe v. Bolton, 410 U. S., at 189. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right. C Section 8209 of Pennsylvania’s abortion law provides, except in eases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on *888a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages. The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included: “273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy.... “279. The ‘bodily injury’ exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (e) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children.... “281. Studies reveal that family violence occurs in two million families in the United States.. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life-threatening proportions) the actual number of families affected by domestic violence. In fact, researchers estimate that one of every two women will be battered at some time in their life.... “282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband’s illness, concern about her own health, the imminent failure of the marriage, or the husband’s absolute opposition to the abortion. ... “283. The required filing of the spousal consent form would require plaintiff-clinics to change their counseling *889procedures and force women to reveal their most intimate decision-making on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman’s records are not immune from subpoena.... “284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered.... “285. Wife-battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous.... “286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States.... “287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation.... “288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife.... “289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse.... “290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose *890the violence against her for fear of retaliation by the abuser.... “291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit to the battering because they have not admitted to themselves that they are battered.. . . “294. A woman in a shelter or a safe house unknown to her husband is not ‘reasonably likely’ to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under, the circumstances. “295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported only few are prosecuted.... “296. It is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so and others would fear disbelief.... “297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute, 18 Pa. Con. Stat. Ann. § 3218(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. . .. “298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of *891whether the section applies to them.” 744 F. Supp., at 1360-1362 (footnote omitted). These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that in an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The AMA views these figures as “marked underestimates,” because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, “[researchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year. Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime.” AMA Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis in original). Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault. Id., at 3-4; Shields & Hanneke, Battered Wives’ Reactions to Marital Rape, in The Dark Side of Families: Current Family Violence Research 131, 144 (D. Finkelhor, R. Gelles, G. Hataling, & M. Straus eds. 1983). In families where wifebeating takes. place, moreover, child abuse is often present as well. Violence Against Women, supra, at 12. Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also eommon. L. Walker, The Bat*892tered Woman Syndrome 27-28 (1984). Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative. Herbert, Silver, & Ellard, Coping with an Abusive Relationship: I. How and Why do Women Stay?, 53 J. Marriage & the Family 311 (1991). Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn, of Social Workers 350, 352 (1985). Returning to one’s abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses. Mercy & Saltz-man, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am. J. Public Health 595 (1989). Thirty percent of female homicide victims are killed by their male partners. Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990). The limited research that has been conducted with respect to notifying one’s husband about an abortion, although involving samples too small to be representative, also supports the District Court’s findings of fact. The vast majority of women notify their male partners of their decision to obtain an abortion. In many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence. Ryan & Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51 J. Marriage & the Family 41, 44 (1989). This information and the District Court’s findings reinforce what common sense would suggest. In well-*893functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from § 3209’s notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from § 8209’s notifi-. cation requirement. And many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault, and her husband will be notified of her report once an investigation begins, § 3128(c). If anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement imposed by §3209. The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for. many women, it will impose *894a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases. Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents’ basic method of analysis. The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women *895who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that §3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, §3209’s real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which §3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid. This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e. g., Akron II, 497 U. S., at 510-519; Bellotti v. Baird, 443 U. S. 622 (1979) (Bellotti II); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 74. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women. We recognize that a husband has a “deep and proper concern and interest ... in his wife’s pregnancy and in the growth and development of the fetus she is' carrying.” Dan-forth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his “cognizable and substantial” interest in their custody. Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); see also Quilloin v. Walcott, 434 U. S. 246 (1978); Caban v. Mohammed, 441 U. S. 380 (1979); Lehr v. Robertson, 463 U. S. 248 (1983). If these cases concerned a State’s ability to require the mother to notify the father before taking some action with respect to a living *896child raised by both, therefore, it would be reasonable to conclude as a general matter that the father’s interest in the welfare of the child and the mother’s interest are equal. Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 281. The Court has held that “when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses. There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this *897Court reaffirmed the common-law principle that “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in foil force in most States.” Id., at 141 (Bradley, X, joined by Swayne and Field, JX, concurring in judgment). Only one generation has passed since this Court observed that “woman is still regarded as the center of home and family life,” with attendant “special responsibilities” that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U. S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution. In keeping with our rejection of the common-law understanding of a woman’s role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an abortion. 428 U. S., at 69. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this.law — those who most reasonably fear the consequences of notifying their husbands that they are pregnant — are in the gravest danger. *898The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual’s family. These considerations confirm our conclusion that § 3209 is invalid. *899D We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests. We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See, e. g., Akron II, 497 U. S., at 510-519; Hodgson, 497 U. S., at 461 (O’Connor, J., concurring in part and concurring in judgment in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part); Akron I, 462 U. S., at 440; Bellotti II, 443 U. S., at 643-644 (plurality opinion). Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional. The only argument made by petitioners respecting this provision and to which our prior decisions do not speak is the contention that the parental consent requirement is invalid because it requires informed parental consent. For the most part, petitioners’ argument is a reprise of their argument with respect to the informed consent requirement in general, and we reject it for the reasons given above. Indeed, some of the provisions regarding informed consent have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in *900the context of the values and moral or religious principles of their family. See Hodgson, supra, at 448-449 (opinion of Stevens, J.). E Under the recordkeeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as a controlling or subsidiary organization. In the case of state-funded institutions, the information becomes public. For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman’s age; the number of prior pregnancies and prior abortions she has had;'gestational age; the type of abortion procedure; the date of the abortion; whether there were any pre-existing medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. See 18 Pa. Cons. Stat, §§ 3207, 8214 (1990). In all events, the identity of each woman who has had an abortion remains confidential. In Danforth, 428 U. S., at 80, we held that recordkeeping and reporting provisions “that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.” We think that under this standard, all the provisions at issue here, except that relating to spousal notice, are constitutional. Although they do not relate to the State’s interest in informing the woman’s choice, they do relate to health. The collection of information with respect to actual patients *901is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman’s choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us. Subsection (12) of the reporting provision requires the re-, porting of, among other things, a married woman’s “reason for failure to provide notice” to her husband. § 3214(a)(12). This provision in effeet requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman’s choice, and must be invalidated for that reason. VI Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty. * * * The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability. It is so ordered. *902APPENDIX TO OPINION OF O’CONNOR, KENNEDY, AND SOUTER, JJ. Selected Provisions of the 1988 and 1989 Amendments to the Pennsylvania Abortion Control Act of 1982 18 PA. CONS. STAT. (1990). “§3203. Definitions. “ ‘Medical emergency.’ That condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.” “§3205. Informed consent. “(a) General rule. — No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if: “(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of: “(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion. “(ii) The probable gestational age of the unborn child at the time the abortion is to be performed. “(iii) The medical risks associated with carrying her child to term. “(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the re*903sponsibility has been delegated by either physician, has informed the pregnant woman that: “(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it. “(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department. “(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted. “(3) A copy of the printed materials has been provided to the woman if she chooses to view these materials. “(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided. “(b) Emergency. — Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function. “(e) Penalty. — Any physician who violates the provisions of this section is guilty of ‘unprofessional conduct’ and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5,1978 (P. L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the *904act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient. “(d) Limitation on civil liability. — Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P. L. 390, No. Ill), known as the Health Care Services Malpractice Act.” “§ 3206. Parental consent. “(a) General rule. — Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa. C. S. §5511 (relating to petition and hearing; examination by court-appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman’s parent or guardian shall consider only their child’s or ward’s best interests. In the case of a pregnancy that is the result of incest, where *905the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother. “(b) Unavailability of parent or guardian. — If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman’s guardian or guardians shall be sufficient. If the pregnant woman’s parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient. “(c) Petition to the court for consent. — If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent. “(d) Court order. — If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion. “(e) Representation in proceedings. — The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has *906a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel.” “§3207. Abortion facilities. “(b) Reports. — Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information: “(1) Name and address of the facility. “(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations. “(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or offieership with any other facility. The information contained in those reports which are filed pursuant to this subsection by facilities which receive State-appropriated funds during the 12-ealendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State-appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof.” “§ 3208. Printed information. “(a) General rule. — The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials: *907“(1) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller' and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care. “(2) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child’s survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman’s stage of pregnancy. The materials shall be objective, non-judgmental and designed *908to convey only accurate scientific information about the unborn child at the various gestational ages.' The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term. “(b) Format. — The materials shall be printed in a typeface large enough to be clearly legible. “(e) Free distribution. — The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital.” “§3209. Spousal notice. “(a) Spousal notice required. — In order to further the Commonwealth’s interest in promoting the integrity of the marital relationship and to protect a spouse’s interests in having children within marriage and in protecting the prenatal life of that spouse’s child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law. “(b) Exceptions. — The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following: “(1) Her spouse is not the father of the child. “(2) Her spouse, after diligent effort, could not be located. *909“(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction. “(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual. Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law. “(c) Medical emergency. — The requirements of subsection (a) shall not apply in case of a medical emergency. “(d) Forms. — The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth. “(e) Penalty; civil action. — Any'physician who violates the provisions of this section is guilty of 'unprofessional conduct,’ and his -or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P. L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.” “§3214. Reporting. “(a) General rule. — For the purpose of promotion of maternal health and life by adding to the sum of medical and *910public health knowledge through the compilation of relevant data, and to promote the Commonwealth’s interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information: “(1) Identification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any. “(2) The county and state in which the woman resides. “(3) The woman’s age. “(4) The number of prior pregnancies and prior abortions of the woman. “(5) The gestational age of the unborn child at the time of the abortion. “(6) The type of procedure performed or prescribed and the date of the abortion. “(7) Pre-existing medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself. “(8) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1). “(9) The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1). “(10) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter. *911“(11) The information required to be reported under section 3210(a) (relating to determination of gestational age). “(12) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice. “(f) Report by facility. — Every facility in which an abortion is performed within this Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives State-appropriated funds within the 12-calendar-month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable, a facility to indicate whether or not it is receiving State-appropriated funds. If the facility indicates on the form that it is not receiving State-appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State-appropriated funds.”

per_curiam

per_curiam

*843Justice O’Connor, Justice Kennedy, and Justice Sou-ter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts V-A, *844V-C, and V, an opinion with respect to Part V-E, in which Justice Stevens joins, and an opinion with respect to Parts V, V-B, and V-D. Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8. At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 2, as amended in 8 and Relevant portions of the Act are set forth in the Appendix. nfra, at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended 3209. The Act exempts compliance with these three requirements in the event of a “medical emergency,” which is defined in 3203 of the Act. See 3203, 3205(a), 3206(a), 3209(c). n addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. 3207(b), 3214(a), 3214(f). *845Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania’s enforcement of them. The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. We granted certiorari. The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F. 2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after cast doubt upon the meaning and reach of its holding. Further, The Chief Justice admits that he would overrule the central holding of and adopt the rational relationship test as the sole criterion of constitutionality. See post, at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures. After considering the fundamental constitutional questions resolved by principles of institutional integrity, *846and the rule of stare decisis, we are led to conclude this: the essential holding of should be retained and once again reaffirmed. t must be stated at the outset and with clarity that ’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. t declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them.” As Justice Brandéis (joined by Justice Holmes) observed, “[djespite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth *847Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” “[TJhe guaranties of due process, though having their roots in Magna Carta’s ‘per legem ter rae’ and considered as procedural safeguards ‘against executive usurpation and tyranny/ have in this country ‘become bulwarks also against arbitrary legislation.’ ” ). The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., t is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. See But of course this Court has never accepted that view. t is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael But such a view would be inconsistent with our law. t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was file-*848gal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Similar examples may be found in ; in ; in as well as in the separate opinions of a majority of the Members of the Court in that case, (expressly relying on due process), (same), (same); in ; and in Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. t is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. *, Justice Harlan wrote these words in addressing an issue the full Court did not reach in but the Court adopted his position four Terms later in n we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Constitutional protection was extended to the sale and distribution of contraceptives in t is settled now, as it was when the Court heard arguments in that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see ; ; as well as bodily integrity, see, e. g., ; ; The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. ts boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. *850The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. f the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it eould not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.” See also (“To believe that this judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges”). Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps *851in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. t is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e. g., ; That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Bd. of ; Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. *852These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. t is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision -has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. t should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which and afford constitutional protection. We have no doubt as to the correctness of those decisions. They support *853the reasoning in relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its well-being. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to thé parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant. t was this dimension of personal liberty that sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting prenatal life. The extent to which the legislatures of the States might aet to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in itself and in decisions following it. While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that should be overruled, the reservations any of us may have in reaffirming the central holding of are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine. *854hH — A The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). ndeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, Journal of Supreme Court History 13,16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed. Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case, see See also ; 2 Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & ; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United ; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see ; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e.g., at 4 So in this case we may enquire whether ’s central rule has been found unworkable; whether the rule’s limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law’s growth in the intervening years has left ’s central rule a doctrinal anachronism discounted by society; and whether ’s premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed. 1 Although has engendered opposition, it has in no sense proven “unworkable,” see representing as it does a simple limitation beyond which a state law is unenforceable. While has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today’s decision, the required determinations fall within judicial competence. 2 The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennes*, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for ’s holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions. To eliminate the issue of relianee that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in relianee on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e. g., R. Petehesky, Abortion and Woman’s Choice 109, 138, n. 7 The Constitution serves human values, and while the effect of reliance on cannot be exactly measured, neither can the certain cost of overruling for people who have ordered their thinking and living around that case be dismissed. *8573 No evolution of legal principle has left ’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the ease was decided has implicitly or explicitly left behind as a mere survivor of obsolete constitutional thinking. t will be recognized, of course, that stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Court itself placed its holding in the succession of cases most prominently exemplified by See -153. When it is so seen, is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e. g., ; however, may be seen not only as an exemplar of liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. f so, our cases since accord with ’s view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims. ; cf., e. g., 504 U. S. 7, ; ; see also, e. g., ; Finally, one could classify as sui generis. f the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the *858concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 3, see (Akron ), and by a majority of five in 6, see although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see ; a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of See ; ; ; Nor will courts building upon be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman’s liberty. The latter aspect of the decision fits comfortably within the framework of the Court’s prior decisions, including ; ; and the holdings of which are “not a series of isolated points,” but mark a “rational continuum.” 367 U. S., As we described in *859, the liberty which encompasses those decisions “includes ‘the interest in independence in making certain kinds of important decisions/ While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions ‘relating to marriage, procreation, contraception, family relationships, and child rearing and education/ ” -685 The soundness of this prong of the analysis is apparent from a consideration of the alternative. f indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet has been sensibly relied upon to counter any such suggestions. E. g., (relying upon and concluding that government officials violate the Constitution by coercing a minor to have an abortion); ; see also n re Quinlan, 70 N. J. 10, (relying on in finding a right to terminate medical treatment), cert, denied sub nom. ). n any event, because ’s scope is confined by the fact of its concern with postconeeption potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently under and later cases, any error in is unlikely to have serious ramifications in fixture cases. *8604 We have seen how time has overtaken some of ’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron and advances in neonatal care have advanced viability to a point somewhat earlier. Compare with ; see Akron and n. 5 But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of ’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since was decided; which is to say that no change in ’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it. 5 The sum of the precedential enquiry to this point Shows ’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume ’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left ’s central holding a doctrinal remnant; *8 portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming ’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it. B n a less significant case, stare decisis analysis could, and would, stop at the point we have reached. But the sustained and widespread debate has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today. The first example is that line of cases identified with which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes’s view, the theory of laissez-faire. d., The Lochner decisions were exemplified by in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel signaled the demise of Lochner by overruling Adkins. n the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on funda*8mentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench: “The older world of laissez faire was recognized everywhere outside the Court to be dead.” The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history’s demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law. The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule for applying the Fourteenth Amendment’s equal protection guarantee. They began with holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. The Court considered “the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. f this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” d., Whether, as a matter of historical fact, the Justices in the majority believed this or not, see this understanding of the implication of segregation was the stated justification for the Court’s opinion. But this understanding of *863the facts and the rule it was stated to justify were repudiated in (Brown ). As one commentator observed, the question before the Court in Brown was “whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid.” Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 427 (1960). The Court in Brown addressed these facts of life by observing that whatever may have been the understanding in ’s time of the power of segregation to stigmatize those who were segregated with a “badge of inferiority,” it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. -495. Society’s understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896. While we think was wrong the day it was decided, see we must also recognize that the Court’s explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine was on this ground alone not only justified but required. West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court’s response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible *864they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. n constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior ease as a response to the Court’s constitutional duty. Because the cases before us present no such occasion it could be seen as no such response. Because neither the factual underpinnings of ’s central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our eases, that a decision to overrule should rest on some special reason over and above the belief that a prior ease was wrongly decided. See, e. g., Mitchell v. W. T. Grant (“A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve”); C The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. n the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis *865would not be complete, however, without explaining why-overruling ’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court’s authority, the conditions necessary for its preservation, and its relationship to the country’s understanding of itself as a constitutional Republic. The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the-Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands. The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is *866obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case. This is not to say, of course, that this Court cannot give a perfectly satisfactory explanation in most cases. People understand that some of the Constitution’s language is hard to fathom and that the Court’s Justices are sometimes able to perceive significant facts or to understand principles of law that* eluded their predecessors and that justify departures from existing decisions. However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court. n two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. f that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a ease in such a way as to resolve the sort of intensely divisive controversy reflected in and those rare, comparable cases, its *867decision has a dimension that the resolution of the normal case does not carry. t is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question. Cf. (Broten ) (“[]t should go without saying that the vitality of th[e] constitutional principles [announced in Brown] cannot be allowed to yield simply because of disagreement with them”). The country’s loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision’s results *868when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing, less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. t is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. f the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible. The Court’s duty in the present cases is clear. n 1973, it confronted the already-divisive issue of governmental power *869to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule ’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. t is therefore imperative to adhere to the essence of ’s original decision, and we do so today. V From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in was based on a constitutional analysis which we cannot now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. That brings us, of course, to the point where much criticism has been directed at a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term. *870We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare deci-sis. Any judicial act of line-drawing may seem somewhat arbitrary, but was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See 476 U. S., 9; Akron -420. Although we must overrule those parts of and Akron which, in our view, are inconsistent with iBoe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at 882-883, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of t is that premise which we reaffirm today. The second reason is that the concept of viability, as we noted in is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. n some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child. *871The woman’s right to terminate her pregnancy before viability is the most central principle of t is a rule of law and a component of liberty we cannot renounce. On the other side of the equation is the interest of the State in the protection of potential life. The Court recognized the State’s “important and legitimate interest in protecting the potentiality of human life.” The weight to be given this state interest, not the strength of the woman’s interest, was the difficult question faced in We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in ’s wake we are satisfied that the immediate question is not the soundness of ’s resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of should be reaffirmed. Yet it must be remembered that speaks with clarity in establishing not only the woman’s liberty but also the State’s “important and legitimate interest in potential life.” That portion of the decision in has been given too little acknowledgment and implementation by the Court in its subsequent cases. Those eases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e. g., Akron Not all of the cases decided under that formulation can be reconciled with the holding in itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. n resolving this tension, we choose to rely upon as against the later cases. *872 established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman’s health, but not to further the State’s interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. -. Most of our cases since have involved the application of rules derived from the trimester framework. See, e. g., Akron The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers. Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and'that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. “ ‘[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.’” ). t follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with ’s central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn. We reject the trimester framework, which we do not consider to be part of the essential holding of See 492 U. S., ; (describing the trimester framework as “problematic”). Measures aimed at ensuring that a woman’s choice contemplates the consequences for the ' fetus do not necessarily interfere with the right recognized in although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom' they *874wish to vote. ; The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See ; (Akron ) ; ; 476 U. S., ; Simopoulos v. ; Planned Parenthood Assn. of Kansas City, Mo., nc. v. Ashcroft, ; Akron ; Bellotti v. (Bellotti ). For the most part, the Court’s early abortion cases adhered to this view. n Maher v. the Court explained: “ did not declare an unqualified ‘constitutional right to an abortion,’ as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” See *875also ; Bellotti at ; (0) Cf. These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion “without interference from the State.” Planned Parenthood of Central All abortion regulations interfere to some degree with a woman’s ability to decide whether to terminate her pregnancy. t is, as a consequence, not surprising that despite the protestations contained in the original opinion to the effect that the Court was not recognizing an absolute right, -155, the Court’s experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far because the right recognized by is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U. S., Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in ftoe’s terms, in practice it undervalues the State’s interest in the potential life within the woman. was express in its recognition of the State’s “important and legitimate interests] in preserving and pro-*876teeting the health of the pregnant woman [and] in protecting the potentiality of human life.” 410 U. S., The trimester framework, however, does not fulfill ’s own promise that the State has an interest in protecting fetal life or potential life. began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability. d., Before viability, and subsequent cases treat all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf. ; Akron at 4 The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. n our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the' woman’s constitutionally protected liberty. The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent. See, e. g., at 459-4 ; Akron at ; -829 ; Akron at 4-466 ; at ; Maher v. ; ; Bellotti at Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden. *877A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of sérving its legitimate ends. To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what in our view should be the controlling standard. Cf. n our considered judgment, an undue burden is an unconstitutional burden. See Akron 497 U. S., at Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional. See, e. g., Akron -463 The answer is no. Some guiding principles should emerge. What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exereise of the right to choose. See infra, at 899-900 (addressing Pennsylvania’s parental consent requirement). *878Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.' Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden. Even when jurists reason from shared premises, some disagreement is inevitable. Compare -497 with That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary: (a) To protect the central right recognized by while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. (b) We reject the rigid trimester framework of To promote the State’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over These measures must not be an undue burden on the right. (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. *879(d) Our adoption of the undue burden analysis does not disturb the central holding of and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. (e) We also reaffirm ’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” -165. These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions. V The Court of Appeals applied what it believed to be the undue burden standard and upheld each' of the provisions except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue. A Because it is central to the operation of various other requirements, we begin with the statute’s definition of medical emergency. Under the statute, a medical emergency is “[t]hat condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” 18 Pa. Cons. Stat. 3208 *880Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. f the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of forbids a State to interfere with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. See also The District Court found that there were three serious conditions which would not be covered by the statute: pre-eclampsia, inevitable abortion, and premature ruptured Yet, as the Court of Appeals observed, 947 F. 2d, at 700-701, it is undisputed that under some circumstances each of these conditions could lead to an illness with substantial and irreversible consequences. While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase “serious risk” to include those circumstances. d., t stated: “[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.” bid. As we said in Brockett v. Spokane Arcades, nc., : “Normally, we defer to the construction of a state statute given it by the lower federal courts.” ndeed, we have said that we will defer to lower court interpretations of state law unless they amount to “plain” error. This “ ‘reflects] our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.’” (8) We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman’s abortion right. *881B We next consider the informed consent requirement. 18 Pa. Cons. Stat. 3205 Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the “probable gestational age of the unborn child.” The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives. to An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them. Our prior decisions establish that as with any medical procedure, the State may require a woman to give her written informed consent to an See Planned Parenthood of Central n this respect, the statute is unexceptional. Petitioners challenge the statute’s definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court’s past decisions, decisions driven by the trimester framework’s prohibition of all previability regulations designed to further the State’s interest in fetal life. n Akron we invalidated an ordinance which required that a woman seeking an abortion be provided by her physieian with specific information “designed. to influence the woman’s informed choice between abortion or childbirth.” d., As we later described *882the Akron holding in there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion and the ordinance imposed “a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient.” bid. To the extent Akron and find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the “probable gestational age” of the fetus, those eases go too far, are inconsistent with ’s acknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms of Akron and Those decisions, along with recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. E. g., t cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. n attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. f the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible. We also see no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health. An example illustrates the point. We would think *883it constitutional for the State to require that in order for there to he informed consent to a kidney transplant operation the recipient must be supplied with information about risks to the donor as well as risks to himself or herself. A requirement that the physician make available information similar to that mandated by the statute here was described in as “an outright attempt to wedge the Commonwealth’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician.” We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings of Akron and to the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over n short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden. Our prior cases also suggest that the “straitjacket,” (quoting ), of particular information which must be given in each ease interferes with a constitutional right of privacy between a pregnant woman and her physician. As a preliminary matter, it is worth noting that the statute now before us does not require a physician to comply with the informed consent provisions “if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely *884adverse effect on the physical or mental health of the patient/’ 18 Pa. Cons. Stat. 3205 n this respect, the statute does not prevent the physician from exercising his or her medical judgment. Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman’s position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific'information about any medical procedure. All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here. The Pennsylvania statute also requires us to reconsider the holding in Akron that the State may not require that a physician, as opposed to a qualified assistant, provide information relevant to a woman’s informed Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, we conclude that it is not *885an undue burden. Our eases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. See Thus, we uphold the provision as a reasonable means to ensure that the woman’s consent is informed. Our analysis of Pennsylvania’s 24-hour waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion under the undue burden standard requires us to reconsider the premise behind the decision in Akron invalidating a parallel requirement. n Akron we said: “Nor are we convinced that the State’s legitimate concern that the woman’s decision be informed is reasonably served by requiring a 24-hour delay as a matter of course.” We consider that conclusion to be wrong. The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision. The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency and the record evidence shows that in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. n theory, at least, the waiting period is a reasonable measure to implement the State’s interest in protecting the life of the unborn, a measure that does not amount to an undue burden. Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman’s choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be *886a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to “the harassment and hostility of antiabortion protestors demonstrating outside a clinic.” 744 F. Supp., at 1. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be “particularly burdensome.” d., at 2. These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden. We do not doubt that, as the District Court held, the waiting period has the effect of “increasing the cost and risk of delay of abortions,” but the District Court did not conclude that the increased costs and potential delays amount to substantial obstacles. Rather, applying the trimester framework’s strict prohibition of all regulation designed to promote the State’s interest in potential life before viability, see the District Court concluded that the waiting period does not further the state “interest in maternal health” and “infringes the physician’s discretion to exercise sound medical judgment,” Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician’s discretion, that is not, standing alone, a reason to invalidate it. n light of the construction given the statute’s definition of medical emergency by the Court of Appeals, and the District Court’s findings, we cannot say that the waiting period imposes a real health risk. We also disagree with the District Court’s conclusion that the “particularly burdensome” effects of the waiting period *887on some women require its invalidation. A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden. We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Rather, the right protected by is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right protects. The informed consent requirement is not an undue burden on that right. C Section 8209 of Pennsylvania’s abortion law provides, except in eases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on *888a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages. The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included: “273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy. “279. The ‘bodily injury’ exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (e) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children. “281. Studies reveal that family violence occurs in two million families in the United States. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life-threatening proportions) the actual number of families affected by domestic violence. n fact, researchers estimate that one of every two women will be battered at some time in their life. “282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband’s illness, concern about her own health, the imminent failure of the marriage, or the husband’s absolute opposition to the “283. The required filing of the spousal consent form would require plaintiff-clinics to change their counseling *889procedures and force women to reveal their most intimate decision-making on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman’s records are not immune from subpoena. “284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered. “285. Wife-battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous. “286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States. “287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation. “288. n a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife. “289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. The battering husband may deny parentage and use the pregnancy as an excuse for abuse. “290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose *890the violence against her for fear of retaliation by the abuser. “291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit to the battering because they have not admitted to themselves that they are battered. “294. A woman in a shelter or a safe house unknown to her husband is not ‘reasonably likely’ to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under, the circumstances. “295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported only few are prosecuted. “296. t is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so and others would fear disbelief. “297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute, 18 Pa. Con. Stat. Ann. 3218(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. “298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of *891whether the section applies to them.” -13 These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that in an average -month period in this country, approximately two million women are the victims of severe assaults by their male partners. n a 5 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The AMA views these figures as “marked underestimates,” because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, “[researchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year. Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime.” AMA Council on Scientific Affairs, Violence Against Women 7 Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault. d., ; Shields & Hanneke, Battered Wives’ Reactions to Marital Rape, in The Dark Side of Families: Current Family Violence Research 131, 144 n families where wifebeating takes. place, moreover, child abuse is often present as well. Violence Against Women, at Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also eommon. L. Walker, The Bat*892tered Woman Syndrome 27-28 Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative. Herbert, Silver, & Ellard, Coping with an Abusive Relationship: How and Why do Women Stay?, 53 J. Marriage & the Family Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn, of Social Workers 350, 352 Returning to one’s abuser can be dangerous. Recent Federal Bureau of nvestigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses. Mercy & Saltz-man, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am. J. Public 595 Thirty percent of female homicide victims are killed by their male partners. Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 The limited research that has been conducted with respect to notifying one’s husband about an abortion, although involving samples too small to be representative, also supports the District Court’s findings of fact. The vast majority of women notify their male partners of their decision to obtain an n many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence. Ryan & Plutzer, When Married Women Have Abortions: Spousal Notification and Marital nteraction, 51 J. Marriage & the Family 41, 44 This information and the District Court’s findings reinforce what common sense would suggest. n well-*893functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from 3209’s notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from 8209’s notifi-. cation requirement. And many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, 3209(b)(3), because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault, and her husband will be notified of her report once an investigation begins, 38(c). f anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement imposed by 3209. The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an t does not merely make abortions a little more difficult or expensive to obtain; for. many women, it will impose *894a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases. Respondents attempt to avoid the conclusion that 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents’ basic method of analysis. The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing v. Tornillo, The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. Respondents’ argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women *895who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, 3209’s real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which 3209 is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an t is an undue burden, and therefore invalid. This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e. g., Akron -519; Bellotti v. (Bellotti ); Planned Parenthood of Central Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women. We recognize that a husband has a “deep and proper concern and interest in his wife’s pregnancy and in the growth and development of the fetus she is' carrying.” With regard to the children he has fathered and raised, the Court has recognized his “cognizable and substantial” interest in their custody. Stanley v. llinois, ; see also ; ; f these cases concerned a State’s ability to require the mother to notify the father before taking some action with respect to a living *896child raised by both, therefore, it would be reasonable to conclude as a general matter that the father’s interest in the welfare of the child and the mother’s interest are equal. Before birth, however, the issue takes on a very different cast. t is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. Cf. The Court has held that “when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. nasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” This conclusion rests upon the basic nature of marriage and the nature of our Constitution: “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U. S., The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses. There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. n three Members of this *897Court reaffirmed the common-law principle that “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in foil force in most States.” d., Only one generation has passed since this Court observed that “woman is still regarded as the center of home and family life,” with attendant “special responsibilities” that precluded full and independent legal status under the Constitution. These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution. n keeping with our rejection of the common-law understanding of a woman’s role within the family, the Court held in that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an 428 U. S., The principles that guided the Court in should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in The women most affected by this.law — those who most reasonably fear the consequences of notifying their husbands that they are pregnant — are in the gravest danger. *898The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. f a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual’s family. These considerations confirm our conclusion that 3209 is invalid. *899D We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. f neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests. We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See, e. g., Akron -519; 497 U. S., at 4 ; ; Akron 4 U. S., at 440; Bellotti -644 Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional. The only argument made by petitioners respecting this provision and to which our prior decisions do not speak is the contention that the parental consent requirement is invalid because it requires informed parental For the most part, petitioners’ argument is a reprise of their argument with respect to the informed consent requirement in general, and we reject it for the reasons given above. ndeed, some of the provisions regarding informed consent have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in *900the context of the values and moral or religious principles of their family. See E Under the recordkeeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as a controlling or subsidiary organization. n the case of state-funded institutions, the information becomes public. For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman’s age; the number of prior pregnancies and prior abortions she has had;'gestational age; the type of abortion procedure; the date of the abortion; whether there were any pre-existing medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. See 18 Pa. Cons. Stat, 3207, 8214 n all events, the identity of each woman who has had an abortion remains confidential. n we held that recordkeeping and reporting provisions “that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.” We think that under this standard, all the provisions at issue here, except that relating to spousal notice, are constitutional. Although they do not relate to the State’s interest in informing the woman’s choice, they do relate to health. The collection of information with respect to actual patients *901is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman’s choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us. Subsection () of the reporting provision requires the re-, porting of, among other things, a married woman’s “reason for failure to provide notice” to her husband. 3214(a)(). This provision in effeet requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman’s choice, and must be invalidated for that reason. V Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. t is a coherent succession. Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty. * * * The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability. t is so ordered. *902APPENDX TO OPNON OF O’CONNOR, KENNEDY, AND SOUTER, JJ. Selected Provisions of the 8 and Amendments to the Pennsylvania Abortion Control Act of 2 18 PA. CONS. STAT. “3203. Definitions. “ ‘Medical emergency.’ That condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.” “3205. nformed “(a) General rule. — No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if: “(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of: “(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the “(ii) The probable gestational age of the unborn child at the time the abortion is to be performed. “(iii) The medical risks associated with carrying her child to term. “(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the re*903sponsibility has been delegated by either physician, has informed the pregnant woman that: “(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it. “(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department. “(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the n the case of rape, this information may be omitted. “(3) A copy of the printed materials has been provided to the woman if she chooses to view these materials. “(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided. “(b) Emergency. — Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function. “(e) Penalty. — Any physician who violates the provisions of this section is guilty of ‘unprofessional conduct’ and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5,1978 (P. L. 1109, No. 2), known as the Osteopathic Medical Practice Act, the *904act of December 20, 5 (P. L. 457, No. 1), known as the Medical Practice Act of 5, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient. “(d) Limitation on civil liability. — Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P. L. 390, No. ll), known as the Care Malpractice Act.” “ 3206. Parental “(a) General rule. — Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa. C. S. 5511 (relating to petition and hearing; examination by court-appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. n deciding whether to grant such consent, a pregnant woman’s parent or guardian shall consider only their child’s or ward’s best interests. n the case of a pregnancy that is the result of incest, where *905the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother. “(b) Unavailability of parent or guardian. — f both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman’s guardian or guardians shall be sufficient. f the pregnant woman’s parents are divorced, consent of the parent having custody shall be sufficient. f neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient. “(c) Petition to the court for — f both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such “(d) Court order. — f the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. f the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the “(e) Representation in proceedings. — The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has *906a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel.” “3207. Abortion facilities. “(b) Reports. — Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information: “(1) Name and address of the facility. “(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations. “(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or offieership with any other facility. The information contained in those reports which are filed pursuant to this subsection by facilities which receive State-appropriated funds during the -ealendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State-appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof.” “ 3208. Printed information. “(a) General rule. — The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials: *907“(1) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller' and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care. “(2) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child’s survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman’s stage of pregnancy. The materials shall be objective, non-judgmental and designed *908to convey only accurate scientific information about the unborn child at the various gestational ages.' The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term. “(b) Format. — The materials shall be printed in a typeface large enough to be clearly legible. “(e) Free distribution. — The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital.” “3209. Spousal notice. “(a) Spousal notice required. — n order to further the Commonwealth’s interest in promoting the integrity of the marital relationship and to protect a spouse’s interests in having children within marriage and in protecting the prenatal life of that spouse’s child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an The statement shall bear a notice that any false statement made therein is punishable by law. “(b) Exceptions. — The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following: “(1) Her spouse is not the father of the child. “(2) Her spouse, after diligent effort, could not be located. *909“(3) The pregnancy is a result of spousal sexual assault as described in section 38 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction. “(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual. Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law. “(c) Medical emergency. — The requirements of subsection (a) shall not apply in case of a medical emergency. “(d) Forms. — The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth. “(e) Penalty; civil action. — Any'physician who violates the provisions of this section is guilty of 'unprofessional conduct,’ and his -or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P. L. 1109, No. 2), known as the Osteopathic Medical Practice Act, the act of December 20, 5 (P. L. 457, No. 1), known as the Medical Practice Act of 5, or their successor acts. n addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.” “3214. Reporting. “(a) General rule. — For the purpose of promotion of maternal health and life by adding to the sum of medical and *910public health knowledge through the compilation of relevant data, and to promote the Commonwealth’s interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information: “(1) dentification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any. “(2) The county and state in which the woman resides. “(3) The woman’s age. “(4) The number of prior pregnancies and prior abortions of the woman. “(5) The gestational age of the unborn child at the time of the “(6) The type of procedure performed or prescribed and the date of the “(7) Pre-existing medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself. “(8) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1). “(9) The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1). “(10) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter. *911“(11) The information required to be reported under section 3210(a) (relating to determination of gestational age). “() Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. f no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice. “(f) Report by facility. — Every facility in which an abortion is performed within this Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives State-appropriated funds within the -calendar-month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable, a facility to indicate whether or not it is receiving State-appropriated funds. f the facility indicates on the form that it is not receiving State-appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State-appropriated funds.”

McConnell v. Federal Election Commission, 540 U.S. 93

*114Justice Stevens and Justice O’Connor delivered the opinion of the Court with respect to BCRA Titles I and II.* The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA or Act), 86 Stat. 11, as amended, 2 U. S. C. §431 et seq. (2000 ed. and Supp. II), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U. S. C. § 315 (2000 ed. and Supp. II), and other portions of the United States Code, 18 U. S. C. §607 (Supp. II), 36 U. S. C. §§510-511 (Supp. II), that are challenged in these cases.1 In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The ChieF Justice, post, p. 224, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post, p. 233, discusses Title. V. *115I More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent “ 'the great aggregations of wealth, from using their corporate funds, directly or indirectly,’ ” to elect legislators who would “ ‘vote for their protection and the advancement of their interests as against those of the public.’ ” United States v. Automobile Workers, 352 U. S. 567, 571 (1957) (quoting E. Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds. 1916)). In Root’s opinion, such legislation would “‘strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.’ ” 352 U. S., at 571. The Congress of the United States has repeatedly enacted legislation endorsing Root’s judgment. BCRA is the most recent federal enactment designed “to purge national polities of what was conceived to be the pernicious influence of ‘big money' campaign contributions.” Id., at 572. As Justice Frankfurter explained in his opinion for the Court in Automobile Workers, the first such enactment responded to President Theodore Roosevelt’s call for legislation forbidding all contributions by corporations “ ‘to any political committee or for any political purpose/ ” Ibid, (quoting 40 Cong. Rec. 96 (1905)). In his annual message to Congress in December 1905, President Roosevelt stated that “‘directors should not be permitted to use stockholders’ money’ ” for political purposes, and he recommended that “ ‘a prohibition’ ” on corporate political contributions “ ‘would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’ ” 352 U. S., at 572. The resulting 1907 statute completely banned corporate contributions of “money ... in connection with” any federal election. Tillman Act, ch. 420, 34 Stat. 864. Congress soon amended *116the statute to require the public disclosure of certain contributions and expenditures and to place “maximum limits on the amounts that congressional candidates could spend in seeking nomination and election.” Automobile Workers, supra, at 575-576. In 1925 Congress extended the prohibition of “contributions” “to include 'anything of value/ and made acceptance of a corporate contribution as well as the giving of such a contribution a crime.” Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (citing Federal Corrupt Practices Act, 1925, §§301, 313, 43 Stat. 1070,1074). During the debates preceding that amendment, a leading Senator characterized “‘the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions’ ” as “ ‘one of the great political evils of the time.’ ” Automobile Workers, supra, at 576 (quoting 65 Cong. Rec. 9507-9508 (1924)). We upheld the amended statute against a constitutional challenge, observing that “[t]he power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress.” Burroughs v. United States, 290 U. S. 534, 547 (1934). Congress’ historical concern with the “political potentialities of wealth” and their “untoward consequences for the democratic process,” Automobile Workers, supra, at 577-578, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the “enormous financial outlays” made by some unions in connection with national elections. 352 U. S., at 579. Congress first restricted union contributions in the Hatch Act, 18 U. S. C. § 610,2 and it later prohibited “union contributions in connec*117tion with federal elections . . . altogether.” National Right to Work, supra, at 209 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently extended that prohibition to cover unions’ election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 136. See Automobile Workers, supra, at 578-584. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress’ "careful legislative adjustment of the federal electoral laws, in a ‘cautious advance, step by step,’ to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference.” National Right to Work, supra, at 209 (citations omitted). In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat. 3. As first enacted, that statute required disclosure of all contri*118butions exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Id., at 11-19. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id., at 12-13.3 See Pipefitters v. United States, 407 U. S. 385, 409-410 (1972). As the 1972 Presidential elections made clear, however, FECA’s passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. Reviewing a constitu-. tional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as “by far the most comprehensive . . . reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress.” Buckley v. Valeo, 519 F. 2d 821, 831 (1975) (en banc) (per curiam). The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees’ receipts and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national con*119ventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id., at 831-834. The Court of Appeals upheld the 1974 in their entirety.4 It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id., at 841. The court’s opinion relied heavily on findings that large contributions facilitated access to public officials5 and described methods of evading the con*120tribution limits that had enabled contributors of massive sums to avoid disclosure. Id., at 837-841.6 The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. Id., at 840-841 (citing United States v. O’Brien, 391 U. S. 367, 376-377 (1968)). This Court, however, concluded that each set of limitations raised serious — though different — concerns under the First Amendment. Buckley v. Valeo, 424 U. S. 1, 14-23 (1976) (per curiam). We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only “a marginal restriction upon the contributor’s ability to engage in free communication.” Id., at 20-21. Considering the “deeply disturbing examples” of corruption related to candidate contributions discussed in the Court of Appeals’ opinion, we determined that limiting contributions served an interest in protecting “the integrity of our system of representative democracy.” Id., at 26-27. In the end, the Act’s primary purpose — “to limit the actuality and appearance of corruption resulting from large individual financial contributions” — pro*121vided “a constitutionally sufficient justification for the $1,000 contribution limitation.” Id., at 26. We prefaced our analysis of the $1,000 limitation on expenditures by observing that it broadly encompassed every expenditure “‘relative to a clearly identified candidate.’” Id., at 39 (quoting 18 U. S. C. § 608(e)(1) (1970 ed., Supp. IV)). To avoid vagueness concerns we construed that phrase to apply only to “communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” 424 U. S., at 42-44. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining “free to spend as much as they want to promote the candidate and his views.” Id., at 45. We also rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Act’s contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. Id., at 46-47. We therefore held that Congress’ interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed. We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. Id., at 66-68. In order to avoid an overbreadth problem, however, we placed the same narrowing construction on the *122term “expenditure” in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id., at 80 (footnote omitted). Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id., at 28-29, n. 31; see also n. 3, supra. Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections. Soft Money Under FECA, “contributions” must be made with funds that are subject to the Act’s disclosure requirements and source and amount limitations. Such funds are known as “federal” or “hard” money. FECA defines the term “contribution,” however, to include only the gift or advance of anything of value “made by any person for the purpose of influencing any election for Federal office.” 2 U. S. C. §431(8)(A)(i) (emphasis added). Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECA’s requirements and prohibitions. *123As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidátes, to contribute “nonfederal money” — also known as “soft money” — to political parties for activities intended to influence state or local elections. Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to influence both federal and state elections. Although a literal reading of FBCA’s definition of “contribution” would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities— including get-out-the-vote drives and generic party advertising — in part with soft money.7 In 1995 the FEC concluded that the parties could also use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as *124they did not expressly advocate the candidate’s election or defeat. FEC Advisory Op. 1995-25. As- the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties’ total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000.8 The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.9 In the year 2000, for example, the national parties diverted $280 million — more than half of their soft money — to state parties. Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.10 In the most recent election cycle the political parties raised almost $300 million — 60% of their total soft-money fundraising — from just 800 donors, each of which contributed a minimum of $120,000.11 Moreover, the largest corporate donors often made substantial contributions to both parties.12 Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candi*125dates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.13 Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already “ ‘contributed the legal maximum’ ” to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.14 Such solicitations were not uncommon.15 *126The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source and amount of contributions in connection with federal elections. Issue Advertising In Buckley we construed FECA’s disclosure and reporting requirements, as well as its expenditure limitations, “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U. S., at 80 (footnote omitted). As a result of that strict reading of the statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” marked a bright statutory line separating “express advocacy” from “issue advocacy.” See id., at 44, n. 52. Express advocacy was subject to. FECA’s limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors. While the distinction between “issue” and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.16 Little difference *127existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you think.”17 Indeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.18 Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.19 Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,20 and those expenditures, like *128soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA’s reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money.21 Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,” for instance, was not a grassroots organization of citizens, as its name' might suggest, but was instead a platform for an association of drug manufacturers.22 And “Republicans for Clean Air,” which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals — brothers who together spent $25 million on ads supporting their favored candidate.23 While the public may not have been fully informed about the sponsorship of so-called issue ads, the record indi*129cates that candidates and officeholders often were. A former Senator confirmed that candidates and officials knew who their friends were and “ ‘sometimes suggested] that corporations or individuals make donations to interest groups that run “issue ads.” ’ ”24 As with soft-money contributions, political parties and candidates used the availability of so-called issue ads to circumvent FECA’s limitations, asking donors who contributed their permitted quota of hard money to give money to nonprofit corporations to spend on “issue” advocacy.25 Senate Committee Investigation In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials’ practice of granting special access in return for political contributions. The committee’s principal findings relating to Democratic Party fundraising were set forth in the majority’s report, while the minority report primarily described Republican practices. The two reports reached consensus, however, on certain central propositions. They agreed that the “soft money loophole” had led to a “meltdown” of the campaign finance system that had been intended “to keep corporate, union and large individual contributions from influencing the electoral process.”26 One Senator stated that “the hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually de*130stroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.”27 The report was critical of both parties’ methods of raising soft money, as well as their use of those funds. It concluded that both parties promised and provided special access to candidates and senior Government officials in exchange for large soft-money contributions. The committee majority described the White House coffees that rewarded major donors with access to President Clinton,28 and the courtesies extended to an international businessman named Roger Tamraz, who candidly acknowledged that his donations of about $300,000 to the DNC and to state parties were motivated by his interest in gaining the Federal Government’s support for an oil-line project in the Caucasus.29 The minority described the promotional materials used by the RNC’s two principal donor programs, “Team 100” and the “Republican Eagles,” which promised “special access to high-ranking Republican elected officials, including governors, senators, and representatives.”30 One fundraising letter recited that the chairman of the RNC had personally escorted a donor on *131appointments that “ 'turned out to be very significant in the legislation affecting public utility holding companies’” and made the donor ‘"a hero in his industry.’”31 In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended, to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.32 The ads thus provided a means for evading FECA’s candidate contribution limits. The report also emphasized the role of state and local parties. While, the FEC’s allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes.33 For that reason, national parties often made substantial transfers of soft money to “state and local political parties for ‘generic voter activities’ that in fact ultimately benefited] federal candidates because the funds for all practical purposes remained] under the control of the national committees.” The report concluded that “[t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system.”34 The report discussed potential reforms, including a ban on soft money at the national and state party levels and restric*132tions on sham issue advocacy by nonparty groups.35 The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.36 The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as “reforms addressing candidate advertisements masquerading as issue ads.”37 > — 1 In BCRA, Congress enacted many of the committee s proposed reforms. BCRA’s central provisions are designed to address Congress’ concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections. Section 403 of BCRA provides special rules for actions challenging the constitutionality of any of the Act’s provisions. 2 U. S. C. § 437h note (Supp. II). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition “to the greatest possible extent.” The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate,. lengthy opinions, *133each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F. Supp. 2d 948. As authorized by § 403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U. S. C. § 437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U. S. 911. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid. Mindful of §403’s instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first, turn our attention to Title I of BCRA. III Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new FECA ■§ 323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U. S. C. § 441i(a) (Supp. II).38 In short, § 323(a) takes national parties out of the soft-money business. The remaining provisions of new FECA §323 largely reinforce the restrictions in § 323(a). New FECA § 323(b) prevents the wholesale shift of soft-money influence from *134national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. 2 U. S. C. § 441i(b). These “Federal election activities],” defined in new FECA § 301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FEC’s pre-BCRA allocation regime. 2 U. S. C. §431(20)(A). New FECA § 323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U. S. C. §441i(d). New FECA § 323(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. 2 U. S. C. § 441i(e). Finally, new FECA § 323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. 2 U. S. C. §441i(f). Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U. S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn. A In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e. g., Federal Election Comm’n v. Beaumont, 539 U. S. 146, 161 (2003); see also Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000); Buckley, 424 U. S., at 19. In these cases we have recognized that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon the *135contributor’s ability to engage in free communication.” Id., at 20; see also, e. g., Beaumont, supra, at 161; Shrink Missouri, supra, at 386-388. In Buckley we said: “A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21 (footnote omitted). Because.the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to “prevent] candidates and political committees from amassing the resources necessary for effective advocacy.” Ibid. We have recognized that contribution limits may bear “more heavily on the associational right than on freedom to speak,” Shrink Missouri, supra, at 388, since contributions serve “to affiliate a person with a candidate” and “enabl[e] like-minded persons to pool their resources,” Buckley, 424 U. S., at 22. Unlike expenditure limits, however, which *136“preclud[ej most associations from effectively amplifying the voice of their adherents,” contribution limits both “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates,” and allow associations “to aggregate large sums of money to promote effective advocacy.” Ibid. The “overall effect” of dollar limits on contributions is “merely to require candidates and political committees to raise funds from a greater number of persons.” Id., at 21-22. Thus, a contribution limit involving even “‘significant interference’ ” with associational rights is nevertheless valid if it satisfies the “lesser demand” of being “ ‘closely drawn’ ” to match a “‘sufficiently important interest.’” Beaumont, supra, at 162 (quoting Shrink Missouri, supra, at 387-388).39 Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits — interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” National Right to Work, 459 U. S., at 208; see also Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 440-441 (2001) (Colorado II). We have said that these interests directly implicate “‘the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning *137of that process.’” National Right to Work, supra, at 208 (quoting Automobile Workers, 352 U. S., at 570). Because the electoral process is the very “means through which a free society democratically translates political speech into concrete governmental action,” Shrink Missouri, 528 U. S., at 401 (Breyer, J., concurring), contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing Congress’ decision to enact contribution limits, “there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words ‘strict scrutiny.’” Id., at 400 (Breyer, J., concurring). The less rigorous standard of review we have applied to contribution limits (Buckley’s “closely drawn” scrutiny) shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process. Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e. g., Shrink Missouri, 528 U. S., at 405-410 (Kennedy, J., dissenting); id., at 410-420 (Thomas, J.; dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 635-644 (1996) (Colorado I) (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified above. We are also mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny. Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley *138was decided. See Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991).40 Like the contribution limits we upheld in Buckley, § 323’s restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. Beaumont, 539 U. S., at 161. Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders. Plaintiffs contend that we must apply strict scrutiny to § 323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in § 323 to regulate contributions on the demand rather than the supply side. See, e.g., National Right to Work, supra, at 206-211 (upholding a provision restricting PACs’ ability to solicit funds). The relevant inquiry is whether the mechanism adopted to implement the contribu*139tion limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here. For example, while § 323(a) prohibits national parties from receiving or spending nonfederal money, and § 323(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U. S. C. §§441i(a), (b) (Supp. II). Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure limitations.41 Similarly, the solicitation provisions of §§ 323(a) and 323(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities, subject to FECA’s source and amount restrictions. Even § 323(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations’ federal PACs. 2 U. S. C. §441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra, at 180-181 (construing §323(d)’s restriction on donations by parties to apply only to donations from a party committee’s nonfederal or soft-money account). And as with § 323(a), § 323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U. S. C. §§441i(a), (d). Section 323 thus shows “due regard for the reality that solicitation is characteristically intertwined with informative *140and perhaps persuasive speech seeking support for particular causes or for particular, views.” Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980). The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or unión contribute money through its PAC in no way alters or impairs the political message “intertwined” with the solicitation. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988) (treating solicitation restriction that required fundraisers to disclose particular information as a content-based regulation subject to strict scrutiny because it “necessarily alter[ed] the content of the speech”). And rather than chill such solicitations, as was the case in Schaumburg, the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323’s spending and solicitation restrictions have only a marginal impact on political speech.42 *141Finally, plaintiffs contend that the type of associational burdens that § 323 imposes are fundamentally different from the burdens that accompanied Buckley’s contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E. g., California Democratic Party v. Jones, 530 U. S. 567, 573-574 (2000). In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra, at 161. Section 323 merely subjects a greater percentage of contributions to parties and candidates to FECA’s source and amount limitations. Buckley has already acknowledged that such limitations “leave the contributor free to become a member of any political- association and to assist personally in the association’s efforts on behalf of candidates.” 424 U. S., at 22. The modest impact that § 323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.43 With these principies in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA § 323. Because the. five *142challenged provisions of §323 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted §323 as an integrated whole to vindicate the Government’s important interest in preventing corruption and the appearance of corruption. New FECA §323(a)’s Restrictions on National Party Committees The core of Title I is new FECA § 323(a), which provides that “national committee[s] of a political party . . . may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” 2 U. S. C. § 441i(a)(l) (Supp. II). The prohibition extends to “any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee.” §441i(a)(2). The main goal of § 323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See supra, at 123-125, and n. 7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal elections.44 New § 323(a) is designed to put a stop to that practice. *1431. Governmental Interests Underlying New FECA § 323(a) The Government defends § 323(a)’s ban 6n national parties’ involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and officeholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws “deal[t] with only the most blatant and specific attempts of those with money to influence governmental action.” 424 U. S., at 28. Thus, “[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Missouri, 528 U. S., at 389; see also Colorado II, 533 U. S., at 441 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to “undue influence on an officeholder’s judgment”). Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. *144Buckley, supra, at 27; see also Shrink Missouri, supra, at 390; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 496-497 (1985). Take away Congress’ authority to regulate the appearance of undue influence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Shrink Missouri, 528 U. S., at 390; see also id., at 401 (Breyer, J., concurring). And because the First Amendment does not require Congress to ignore the fact that “candidates, donors, and parties test the limits of the current law,” Colorado II, 533 U. S., at 457, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, id., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Shrink Missouri, supra, at 391. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local, party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create — no less than would a direct contribution to the candidate — a sense of obligation. See Buckley, supra, at 38 (upholding FECA’s $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a “quite modest restraint... to prevent evasion of the $1,000 contribution limitation” by, among *145other things, “huge contributions to the candidate’s political party”). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, “whether they like it or not,” to serve as “agents for spending on behalf of those who seek to produce obligated officeholders.” Colorado II, supra, at 452; see also Shrink Missouri, supra, at 406 (Kennedy, J., dissenting) (“[Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties” (emphasis added)). As discussed below, rather than resist that role, the national parties have actively embraced it. The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress’ belief that they do. As set forth above, supra, at 123-125, and n. 7, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.45 *146The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees “ ‘solely in order to assist federal campaigns,’ ” including the officeholder’s own. 251 F. Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶¶6-9 (hereinafter Randlett Deck), App. 713-714); see also 251 F. Supp. 2d, at 471-473, 478-479 (Kollar-Kotelly, J.); id., at 842-843 (Leon, J.). Parties kept tallies of the amounts of soft money raised by each officeholder, and “the amount of money a Member of Congress raise[d] for the national political party committees often affect[ed] the amount the committees g[a]ve to assist the Member’s campaign.” Id., at 474-475 (Kollar-Kotelly, J.). Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. Id., at 477-478 (Kollar-Kotelly, J.); id., at 824, 847 (Leon, J.). National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while still allowing donors to give to their preferred candidate. Id., at 478 (Kollar-Kotelly, J.); id., at 847-848 (Leon, J.); see also App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one *147“in which Senate candidates in effect rais[e] soft money for use in their own races”)). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. 251 F. Supp. 2d, at 487-488 (Kollar-Kotelly, J.) (“[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge as it is provided by the national political parties and the donors themselves”); id., at 853-855 (Leon, J.). For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D. C., stated in his declaration: “ ‘You are doing a favor for somebody by making a large [soft money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone — that is, write a larger check — and they feel even more compelled to reciprocate. In my experience, overt words are rarely exchanged about contributions, but people do have understandings.’” Id., at 493 (Kollar-Kotelly, J.) (quoting declaration of Robert Rozen, partner, Ernst & Young ¶ 14; see 8-R Defs. Exhs., Tab S3).46 *148Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology. See, e. g., 251 F. Supp. 2d, at 508-510 (Kollar-Kotelly, J.) (citing Mann Expert Report Tbls. 5-6); 251 F. Supp. 2d, at 509 (‘“Giving soft money to both parties, the Republicans and the Democrats, makes no sense at all unless the donor feels that he or she is buying access’ ” (quoting declaration of former Sen. Dale Bumpers ¶ 15, App. 175)).47 *149The evidence from the federal officeholders’ perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows: “ ‘Too often, Members’ first thought is not what is right or what they believe, but how it will affect fundraising. Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about — and quite possibly votes on — an issue? . . . When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation.’” 251 F. Supp. 2d, at 481 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Alan Simpson ¶ 10 (hereinafter Simpson Deck), App. 811); 251 F. Supp. 2d, at 851 (Leon, J.) (same). See also id., at 489 (Kollar-Kotelly, J.) (“‘The majority of those who contribute to political parties do so for business reasons, to gain access to influential Members of Congress and to get to know new Members’ ” (quoting Hickmott Decl., Exh. A, ¶ 46)). By bringing soft-money donors and federal candidates and officeholders together, “[p]arties are thus necessarily the instruments of some contributors whose object is not to support the party’s message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one narrow issue, or even to support any candidate who will be obliged to the contributors.” Colorado II, 533 U. S., at 451-452. Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But *150the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e. g., 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.); id., at 852 (Leon, J.); App. 390-894 (declaration of Sen. John McCain ¶¶5, 8 — 11 (hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶ 10) (“Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform”); App. 805 (declaration of former Sen. Paul Simon ¶¶ 13-14). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process. More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of such influence.” Colorado II, supra, at 441. Many of the “deeply disturbing examples” of corruption cited by this Court in Buckley, 424 U. S., at 27, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F. 2d, at 839-840, n. 36; nn. 5-6, supra. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence.” Colorado II, supra, at 441; see also 519 F. 2d, at 838. The record in the present cases is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See 251 F. Supp. 2d, at 492-506 (Kollar-Kotelly, J.).' As one former Senator put it: “‘Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators *151and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy. . . . Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way.’” Id., at 496 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Warren Rudman ¶ 7 (hereinafter Rudman Deck), App. 742); 251 F. Supp. 2d, at 858 (Leon, J.) (same). So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking Members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Id., at 504-505 (Kollar-Kotelly, J.); see also id., at 506 (describing records indicating that DNC offered meetings with President in return for large donations); id., at 502-503 (describing RNC’s various donor programs); id., at 503-504 (same for NRSC); id., at 500-503 (same for DSCC); id., at 504 (same for NRCC). Similarly, “the RNC’s donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors.” Id., at 500-503 (finding, further, that the RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages *152officeholders to meet with large soft-money donors); accord, id., at 860-861 (Leon, J.). Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 292, 298. Regulation of any other donation or expenditure — regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence — would, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.48 *153Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth above, which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation. Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with “inherent corruption potential,” which he again limits to contributions directly to candidates, justify the inference “that regulating the conduct will stem the appearance of real corruption.” Post, at 297-298.49 In our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To ¡be sure, mere politic! favoritism or opportunity for influence alone is insufficient to justify regulation. Ibid. As the record demonstrates, it is the manner in which parties have sold access to federal *154candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption. In sum, there is substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. 2. New FECA §323(a)’s Restriction on Spending and Receiving Soft Money Plaintiffs and The Chief Justice contend that § 323(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.50 Post, at 353-354 (Rehnquist, C. J., dissenting). Such activities, The Chief Justice asserts, pose “little or no potential to corrupt... federal candidates and officeholders.” Post, at 353 (dissenting opinion). This observation is beside the point. Section 323(a), like the remainder of § 323, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have *155made all large soft-money contributions to national parties suspect. As one expert noted, “ ‘[t]here is no meaningful separation between the national party committees and the public officials who control them.’” 251 F. Supp. 2d, at 468-469 (Kollar-Kotelly, J.) (quoting Mann Expert Report 29). The national committees of the two major parties are both run by, and largely composed of, federal officeholders and candidates. Indeed, of the six national committees of the two major parties, four are composed entirely of federal officeholders. Ibid. The nexus between national parties and federal officeholders prompted one of Title I’s framers to conclude: “Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the fimding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties.” 148 Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays). Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used. This close affiliation has also placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that *156officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal officeholders. See, e. g., App. 1196-1198 (Expert Report of Donald R Green, Yale University) (hereinafter Green Expert Report) (“Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments”); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders’ reelection prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As discussed, above, Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Government’s strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.51 *1573. New FECA §S23(a)'s Restriction on Soliciting or Directing Soft Money Plaintiffs also contend that §323(a)’s prohibition on national parties’ soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. It bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.52 They also can contribute hard money to state committees and to candidates. In accordance with FEC regulations,, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are also officials of state parties, in that capacity. See 67 Fed. Reg. 49083 (2002). This limited restriction on solicitation follows sensibly from the prohibition on national committees’ receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the *158recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E. g., 18 U. S. C. § 201(b)(2) (prohibition on public officials “demanding] [or] seeking] . . . anything of value personally or for any other person or entity ...” (emphasis added)); 5 CFR § 2635.203(f)(2) (2003) (restriction on gifts to federal employees encompasses gifts “[g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee”). Plaintiffs argue that BCRA itself demonstrates the over-breadth of § 323(a)’s solicitation ban. They point in particular to § 323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. Compare 2 U. S. C. §441i(a) with §441i(e) (Supp. II). The differences between §§ 323(a) and 323(e), however, are without constitutional significance. We have recognized that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process,’ ” National Right to Work, 459 U. S., at 210, and we respect Congress’ decision to proceed in incremental steps in the area of campaign finance regulation, see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 258, n. 11 (1986) (MCFL); Buckley, 424 U. S., at 105. The differences between the two provisions reflect Congress’ reasonable judgments about the function played by national committees and the interactions between committees and officeholders, subjects about which Members of Congress have vastly superior knowledge. 4. New FECA §323(a)’s Application to Minor Parties The McConnell and political party plaintiffs contend that § 323(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and *159associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. In Buckley, we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that “any attempt to exclude minor parties and independents en masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.” 424 U. S., at 34-35. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. It applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. It is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process. We add that nothing in § 323(a) prevents individuals from pooling resources to start a new national party. Post, at 289 (Kennedy, J., concurring in judgment in part and dissenting in part). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of § 323(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if § 323(a) prevents it from “amassing the resources necessary for effective advocacy.” Buckley, supra, at 21. 5. New FECA §323(a)’s Associational Burdens Finally, plaintiffs assert that § 323(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican *160Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 693, 694-697 (declaration of John Pesch-ong, RNC Western Reg. Political Dir. (describing the Republican Victory Plans)). The political parties assert that § 323(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear. We are not persuaded by this argument because it hinges on an unnaturally broad reading of the terms “spend,” “receive,” “direct,” and “solicit.” 2 U. S. C. §441i(a) (Supp. II). Nothing on the face of § 323(a) prohibits national party officers, whether acting in their official or individual capacities, from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money. As long as the national party officer does not personally spend, receive, direct, or solicit soft money, § 323(a) permits a wide range of joint planning and electioneering activity. Intervenor-defendants, the principal drafters and proponents of the legislation, concede as much. Brief for Intervenor-Defendants Sen. John McCain et al. in No. 02-1674 et al., p. 22 (“BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and fundraising goals with one another”). The FEC’s current definitions of § 323(a)’s terms are consistent with that view. See, e.g., 11 CFR §300.2(m) (2002) (defining “solicit” as “to ask . . . another person” (emphasis added)); § 300.2(n) (defining “direct” as “to ask a person who has expressed an intent to make a contribution ... to make that contribution .. . including through a conduit or intermediary” (emphasis added)); § 300.2(c) (laying out the factors *161that determine whether an entity will be considered to be controlled by a national committee). Given the straightforward meaning of this provision, Justice Kennedy is incorrect that “[a] national party’s mere involvement in the strategic planning of fundraising for a state ballot initiative” or its assistance in developing a state party’s Levin-money fundraising efforts risks a finding that the officers are in “ ‘indirect control’ ” of the state party and subject to criminal penalties. Post, at 289. Moreover, § 323(a) leaves national party committee officers entirely free to participate, in their official capacities, with state and local parties and candidates in soliciting and spending hard money; party officials may also solicit soft money in their unofficial capacities. Accordingly, we reject the plaintiffs’ First Amendment challenge to new FECA § 323(a). New FECA §323(b)’s Restrictions on State and Local Party Committees In constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRA’s restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations,53 Section 323(b) is designed to foreclose wholesale evasion of §323(a)’s anticorruption measures by sharply curbing state committees’ ability to use large soft-money contributions to influence federal elections. The core of § 323(b) is a straightforward contribution regulation: It prevents donors from *162contributing nonfederal funds to state and local party committees to help finance “Federal election activity.” 2 U. S. C. §441i(b)(l) (Supp. II). The term “Federal election activity” encompasses four distinct categories of electioneering: (1) voter registration activity during the 120 days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is “conducted in connection with an election in which a candidate for Federal office appears on the ballot”; (3) any “public communication”55 that “refers to a clearly identified candidate for Federal office” and “promotes,” “supports,”, “attacks,” or “opposes” a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to “activities in connection with a Federal election.” §§431(20)(A)(i)-(iv). The Act explicitly excludes several categories of activity from this definition: public communications that refer solely to nonfederal candidates;56 contributions to nonfederal candidates;57 state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. §431(20)(B). All activities that fall within the statutory definition must be funded with hard money. §441i(b)(l). Section 323(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the *163Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and “Levin funds” — that is, funds raised within an annual limit of $10,000 per person. 2 U. S. C. § 441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, § 323(b)(2) leaves regulation of such contributions to the States.58 The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statute’s definition of federal election activity — namely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U. S. C. §441i(b)(2)(A). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to “a clearly identified candidate for Federal office”; they likewise cannot be used to fund broadcast communications unless they refer “solely to a clearly identified candidate for State or local office.” §§ 441i(b)(2)(B)(i) — (ii). Second, both the Levin funds and the allocated portion of hard money used to pay for such activities must be raised entirely by the state or local committee that spends them. §441i(b)(2)(B)(iv). This means that a state party committee cannot use Levin funds transferred from other party committees to cover the Levin ftmds portion of a Levin Amendment expenditure. It . also means that a state party committee cannot use hard money transferred from other party committees to cover the hard-money portion of a Levin Amendment expenditure. Furthermore, national committees, federal candidates, and federal officeholders generally may not solicit Levin ftmds on behalf of state committees, and state committees may not team up to raise Levin funds. *164§ 441i(b)(2)(C). They can, however, jointly raise the hard money used to make Levin expenditures. 1. Governmental Interests Underlying New FECA 323(b) We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. Its conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternative avenue for precisely the same corrupting forces.59 Indeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.60 There is at least as much evidence as there was in *165Buckley that such donations have been made with the intent — and in at least some cases the effect — of gaining influence over federal officeholders.61 Section 323(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have. Congress also made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to § 323(a) . by scrambling to find another way to purchase influence. It was “neither novel nor implausible,” Shrink Missouri, 528 U. S., at 391, for Congress to conclude that political parties would react to § 323(a) by directing soft-money contributors to the state committees, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. We “must accord substantial deference to the predictive judgments of Congress,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,665 (1994) (plurality opinion), particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shift*166ing wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. 2. New FECA §32S(b)’s Tailoring Plaintiffs argue that even if some legitimate interest might be served by § 323(b), the provision’s restrictions are unjustifiably burdensome and therefore cannot be considered “closely drawn” to match the Government’s objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal officeholders. Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective advocacy. We address these points in turn. a. §323(b)’s Application to Federal Election Activity Plaintiffs assert that § 323(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress’ concerns about the corruption of the federal electoral process. We disagree. It is true that § 323(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FEC’s pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state elections. See 11 CFR § 106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FEC’s allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore *167the efficacy of FECA’s longtime statutory restriction — approved by the Court and eroded by the FEC’s allocation regime — on contributions to state and local party committees for the purpose of influencing federal elections. See 2 U. S. C. §§431(8)(A), 441a(a)(l)(C); see also Buckley, 424 U. S., at 38 (upholding FECA’s $25,000 limit on aggregate contributions to candidates and political committees); cf. California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981) (upholding FECA’s $5,000 limit on contributions to multicandidate political committees). Like the rest of Title I, § 323(b) is premised on Congress’ judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, § 323(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anticorruption interests to be served. We conclude that § 323(b) is a closely drawn means of countering both corruption and the appearance of corruption. The first two categories of “Federal election activity,” voter registration efforts, §301(20)(A)(i), and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election, § 301(20)(A)(ii), clearly capture activity that benefits federal candidates. Common sense dictates, and it was “undisputed” below, that a party’s efforts to register voters sympathetic to that party directly assist the party’s candidates for federal office. 251 F. Supp. 2d, at 460 (Kollar-Kotelly, J.). It is equally clear that federal candidates reap substantial rewards from any efforts that increase the number of like-minded registered voters who *168actually go to the polls.62 See, e. g., id., at 459 (“‘[The evidence] shows quite clearly that a campaign that mobilizes residents of a highly Republican precinct will produce a harvest of votes for Republican candidates for both state and federal offices. A campaign need not mention federal candidates to have a direct effect on voting for such a candidate.... [G]eneric campaign activity has a direct effect on federal elections’” (quoting Green Expert Report 14)). Representatives of the four major congressional campaign committees confirmed that they “ ‘transfe[r] federal and non-federal funds to state and/or local party committees for’” both voter registration and GOTV activities, and that “‘[t]hese efforts have a significant effect on the election of federal candidates.’” 251 F. Supp. 2d, at 459, 461 (citations omitted). The record also makes quite clear that federal officeholders are grateful for contributions to state and local parties that can be converted into GOTV-type efforts. See id., at 459 (quoting a letter thanking a California Democratic Party donor and noting that CDP’s voter registration and GOTV efforts would help “‘increase the number of Californian Democrats in the United States Congress’” and “‘deliver California’s 54 electoral votes’ ” to the Democratic Presidential candidate). Because voter registration, voter identification, GOTV, and generic campaign activity all confer substantial benefits on federal candidates, the funding of such activities creates a significant risk of actual and apparent corruption. Section 323(b) is a reasonable response to that risk. Its contribution limitations are focused on the subset of voter registration activity that is most likely to affect the election prospects of federal candidates: activity that occurs within 120 days before a federal election. And if the voter registration drive *169does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment’s higher contribution limits and relaxed source restrictions. 2 U. S. C. §§ 441i(b)(2)(B)(iHii) (Supp. II). Similarly, the contribution limits applicable to §301(20)(A)(ii) activities target only those voter identification, GOTV, and generic campaign efforts that occur “in connection with an election in which a candidate for a Federal office appears on the ballot.” 2 U. S. C. §431(20)(A)(ii). Appropriately, in implementing this subsection, the FEC has categorically excluded all activity that takes place during the runup to elections when no federal office is at stake.63 Furthermore, state committees can take advantage of the Levin Amendment’s higher contribution limits to fund any § 301(A)(20)(i) and § 301(A)(20)(ii) activities that do not specifically mention a federal candidate. 2 U. S. C. §§441i(b)(2)(B)(i)~(ii). The prohibition on the use of soft money in connection with these activities is therefore closely drawn to meet the sufficiently important governmental interests of avoiding corruption and its appearance. “Public communications” that promote or attack a candidate for federal office — the third category of “Federal election activity,” §301(20)(A)(iii) — also undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRA’s passage. See 3 1998 Senate Report 4535 (additional views of Sen. Collins) (“[TJhe *170hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble”). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating. The record on this score could scarcely be more abundant. Given the overwhelming tendency of public communications, as carefully defined in § 301(20)(A)(iii), to benefit directly federal candidates, we hold that application of § 323(b)’s contribution caps to such communications is also closely drawn to the anticorruption interest it is intended to address.64 As for the final category of “Federal election activity,” § 301(20)(A)(iv), we find that Congress’ interest in preventing circumvention of § 323(b)’s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with *171a federal election. In the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give “deference to [the] congressional determination of the need for [this] prophylactic rule.” National Conservative Political Action Comm., 470 U. S., at 500. b. Associational Burdens Imposed by the Levin Amendment Plaintiffs also contend that § 323(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e. g., California Democratic Party v. Jones, 530 U. S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989). But not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II, 533 U. S., at 450, n. 11. As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee’s Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of *172choice.65 The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize “all hands” fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of §323(b)(2)'s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Section 323(b)(2)(B)(iv)’s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee’s Levin expenditures presents a closer question. 2 U. S. C. §441i(b)(2)(B)(iv) (Supp. II). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee’s Levin funds. This purported interest is weak, particularly given the fact that § 323(a) already polices attempts by national parties to engage in such behavior. See 2 U. S. C. §441i(a)(2) (extending §323(a)’s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer *173unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all “homegrown” hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticir-cumvention interest vindicated by § 323(b)(2)(B)(iv)’s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement. c. New FECA §323(b)’s Impact on Parties’ Ability to Engage in Effective Advocacy Finally, plaintiffs contend that § 323(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective advocacy. As Judge Kollar-Kotelly noted, the political parties’ evidence regarding the impact of BCRA on their revenues is “speculative and not based on any analysis.” 251 F. Supp. 2d, at 524. If the history of campaign finance regulation discussed above proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that § 323(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether § 323(b) reduces the amount of funds available over previous election cycles, but whether it is “so radical in effect as to ... drive the sound of [the recipient’s] voice below the level of notice.” Shrink Missouri, 528 U. S., at 397. If indeed state or local parties can make such a showing, as-applied challenges remain available. We accordingly conclude that § 323(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption. *174 New FECA §323(d)’s Restrictions on Parties’ Solicitations for, and Donations to, Tax-Exempt Organizations Section 323(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from “soliciting] any funds for, or mak[ing] or directing] any donations” to, any organization established under § 501(c) of the Internal Revenue Code66 that makes expenditures in connection with an election for federal office, and any political organizations established under § 527 “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office.”67 2 U. S. C. §441i(d) (Supp. II). The District Court struck down the provision on its face. We reverse and uphold § 323(d), narrowly construing the section’s ban on donations to apply only to the donation of funds not raised in compliance with FECA. 1. New FECA §323(d)’s Regulation of Solicitations The Government defends §323(d)’s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title I’s limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress’ efforts at campaign finance reform well demonstrates that “candidates, donors, and parties test the limits of the *175current law.” Colorado II, 533 U. S., at 457. Absent the solicitation provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates.68 All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECA's source and amount limitations, as well as its disclosure restrictions. See 251 F. Supp. 2d, at 348 (Henderson, J.) (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose *176the source or amount of contributions); id., at 521 (Kollar-Kotelly, J.) (same). Experience under the current law demonstrates that Congress’ concerns about circumvention are not merely hypothetical. Even without the added incentives created by Title I, national, state, and local parties already solicit unregulated soft-money donations to tax-exempt organizations for the purpose of supporting federal electioneering activity. See, e. g., 3 1998 Senate Report 4013 (“In addition to direct contributions from the RNC to nonprofit groups, the senior leadership of the RNC helped to raise funds for many of the coalition’s nonprofit organizations”); 4 id., at 5983 (minority views) (“Tax-exempt ‘issue advocacy’ groups and other conduits were systematically used to circumvent the federal campaign finance laws”); 251 F. Supp. 2d, at 517 (Kollar-Kotelly, J.); id., at 848 (Leon, J.). Parties and candidates have also begun to take advantage of so-called “politician 527s,” which are little more than soft-money fronts for the promotion of particular federal officeholders and their interests. See id., at 519 (Kollar-Kotelly, J.) (“‘Virtually every member of Congress in a formal leadership position has his or her own 527 group. ... In all, Public Citizen found 63 current members of Congress who have their own 527s’” (quoting Public Citizen Congress Watch, Congressional Leaders’ Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, p. 6)); 251 F. Supp. 2d, at 849-850 (Leon, J.). These 527s have been quite successful at raising substantial sums of soft money from corporate interests, as well as from the national parties themselves. See id., at 519-520 (Kollar-Kotelly, J.) (finding that 27 industries had each donated over $100,000 in a single year to the top 25 politician 527 groups and that the DNC was the single largest contributor to politician 527 groups (citing Public Citizen Congress Watch, supra, at 10-11)); 251 F. Supp. 2d, at 850 (Leon, J.) (same). Given BCRA’s tighter restrictions on *177the raising and spending of soft money, the incentives for parties to exploit such organizations will only increase. Section 323(d)’s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECA’s regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, § 323(d) restricts solicitations only to those § 501(c) groups “mak[ing) expenditures or disbursements in connection with an election for Federal office,” 2 U. S. C. §441i(d)(l) (Supp. II), and to §527 organizations, which by definition engage in partisan political activity, § 4411(d)(2); 26 U. S. C. § 527(e). Second, parties remain free to solicit hard-money contributions to a §501(c)’s federal PAC, as well as to §527 organizations that already qualify as federal PACs.69 Third, § 323(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to § 501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See infra, at 180-181. Finally, as with § 323(a), § 323(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U. S. C. § 441i(d) (extending restrictions to solicitations and donations *178made by “an officer or agent acting on behalf of any such party committee” (emphasis added)). In challenging §323(d)’s ban on solicitations, plaintiffs renew the argument they made with respect to § 323(a)’s solicitation restrictions: that it cannot be squared with § 323(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U. S. C. §441i(d) with §441i(e)(4). But if §323(d)’s restrictions on solicitations are othérwise valid, they are not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 459 U. S., at 210; see also Katzenbach v. Morgan, 384 U. S. 641, 656-657 (1966). In any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 323(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, also places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and officeholders. Given those limits, as well as the less rigorous standard of review, the greater allowances of § 323(e) do not render § 323(d)’s solicitation restriction facially invalid. 2. New FECA §823(d)’s Regulation of Donations Section 323(d) also prohibits national, state, and local party committees from making or directing “any donatio[n]” to qualifying § 501(c) or § 527 organizations. 2 U. S. C. §441i(d) (Supp. II). The Government again defends the restriction as an anticircumvention measure. We agree insofar as it prohibits the donation of soft money. Absent such a restriction, state and local party committees could *179accomplish directly what the antisolicitation restrictions prevent them from doing indirectly — namely, raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Because the party itself would be raising and collecting the funds, the potential for corruption would be that much greater. We will not disturb Congress’ reasonable decision to close that loophole, particularly given a record demonstrating an already robust practice of parties making such donations. See 251 F. Supp. 2d, at 517-518 (Kollar-Kotelly); id., at 848-849 (Leon, J.). The prohibition does raise overbreadth concerns if read to restrict donations from a party’s federal account — i. e., funds that have already been raised in compliance with FECA’s source, amount, and disclosure limitations. Parties have many valid reasons for giving to tax-exempt organizations, not the least of which is to associate themselves with certain causes and, in so doing, to demonstrate the values espoused by the party. A complete ban on donations prevents parties from making even the “general expression of support” that a contribution represents. Buckley, 424 U. S., at 21. At the same time, prohibiting parties from donating funds already raised in compliance with FECA does little to further Congress’ goal of preventing corruption or the appearance of corruption of federal candidates and officeholders. The Government asserts that the restriction is necessary to prevent parties from leveraging their hard money to gain control over a tax-exempt group’s soft money. Even if we accepted that rationale, it would at most justify a dollar limit, not a flat ban. Moreover, any legitimate concerns over cap-time are diminished by the fact that the restrictions set forth in §§ 323(a) and (b) apply not only to party committees, but to entities under their control. See 2 U. S. C. § 441i(a)(2) (extending prohibitions on national party committees to “any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee” (em*180phasis added)); §441i(b)(l) (same for state and local party committees). These observations do not, however, require us to sustain plaintiffs’ facial challenge to §323(d)’s donation restriction. “When the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932); see also Boos v. Barry, 485 U. S. 312, 331 (1988); New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982). Given our obligation to avoid constitutional problems, we narrowly construe §323(d)’s ban to apply only to donations of funds not raised in compliance with FECA. This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole. Though there is little legislative history regarding BCRA generally, and almost nothing on § 323(d) specifically, the abuses identified in the 1998 Senate Report regarding campaign finance practices involve the use of nonprofit organizations as conduits for large soft-money donations. See, e. g., 3 1998 Senate Report 4565 (“The evidence indicates that the soft-money loophole is fueling many of the campaign abuses investigated by the Committee.... Soft money also supplied the funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related activities”); id., at 4568-4569 (describing as an “egregious examplfe]” of misuse a $4.6 million donation of nonfed-eral funds by the RNC to Americans for Tax Reform, which the organization spent on “direct mail and phone bank operations to counter anti-Republican advertising”). We have found no evidence that Congress was concerned about, much less that it intended to prohibit, donations of money already fully regulated by FECA. Given Title I’s exclusive focus on abuses related to soft money, we would expect that if Congress meant §323(d)’s restriction to have this dramatic and *181constitutionally questionable effect, it would say so explicitly. Because there is nothing that compels us to conclude that Congress intended “donations” to include transfers of federal money, and because of the constitutional infirmities such an interpretation would raise, we decline to read § 328(d) in that way. Thus, political parties remain free to make or direct donations of money to any tax-exempt organization that has otherwise, been raised in compliance with FEC A. New FEC A §323(e)’s Restrictions on Federal Candidates and Officeholders New FECA § 323(e) regulates the raising and soliciting of soft money by federal candidates and officeholders. 2 U. S. C. § 441i(e) (Supp. II). It prohibits federal candidates and officeholders from “solicit[ing], receiving], directing], transfer[ing], or spend[ing]” any soft money in connection with federal elections. § 441i(e)(l)(A). It also limits the ability of federal candidates and officeholders to solicit, receive, direct, transfer, or spend soft money in connection with state and local elections. §441i(e)(l)(B).70 Section 323(e)’s general prohibition on solicitations admits of a number of exceptions. For instance, federal candidates and officeholders are permitted to “attend, speak, or be a featured guest” at a state or local party fundraising event. 2 U. S. C. §441i(e)(3). Section 323(e) specifically provides *182that federal candidates and officeholders may make solicitations of soft money to § 501(c) organizations whose primary purpose is not to engage in “Federal election activities] ” as long as the solicitation does not specify how the funds will be spent, 2 U. S. C. § 441i(e)(4)(A); to § 501(c) organizations whose primary purpose is to engage in “Federal election activities]” as long as the solicitations are limited to individuals and the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. § 4411(e)(4)(B); and to § 501(c) organizations for the express purpose of carrying out such activities, again so long as the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. § 441i(e)(4)(B). No party seriously questions the constitutionality of §323(e)’s general ban on donations of soft money made directly to federal candidates and officeholders, their agents, or entities established or controlled by them. Even on the narrowest reading of Buckley, a regulation restricting donations to a federal candidate, regardless of the ends to which those funds are ultimately put, qualifies as a contribution limit subject to less rigorous scrutiny. Such donations have only marginal speech and associational value, but at the same time pose a substantial threat of corruption. By severing the most direct link between the soft-money donor and the federal candidate, §323(e)’s ban on donations of soft money is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. Section 323(e)’s restrictions on solicitations are justified as valid anticireumvention measures. Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself. Without some restriction on solicitations, federal candidates and officeholders could easily avoid FECA’s contribution limits by so*183liciting funds from large donors and restricted sources to like-minded organizations engaging in federal election activities. As the record demonstrates, even before the passage of BCRA, federal candidates and officeholders had already begun soliciting donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party’s, electoral cause. See Colorado II, 533 U. S., at 458 (quoting fundraising letter from a Congressman explaining to contributor that “ ‘you are at the limit of what you can directly contribute to my campaign,’ but ‘you can further help my campaign by assisting the Colorado Republican Party’ ”); 251 F. Supp. 2d, at 479-480 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders soliciting funds to state and local parties); id., at 848 (Leon, J.) (same); id., at 518 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders soliciting funds for nonprofits for electioneering purposes); id., at 849 (Leon, J.) (same). The incentives to do so, at least with respect to solicitations to tax-exempt organizations, will only increase with Title I’s restrictions on the raising and spending of soft money by national, state, and local parties. Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Rather than place an outright ban on solicitations to tax-exempt organizations, § 323(e)(4) permits limited solicitations of soft money. 2 U. S. C. § 441i(e)(4). This allowance accommodates individuals who have long served as active members of nonprofit organizations in both their official and individual capacities. Similarly, §§ 323(e)(1)(B) and 323(e)(3) preserve the traditional fundraising role of federal officeholders by providing limited opportunities for federal candidates and officeholders to associate with their state and local colleagues through joint fundraising activities. 2 U. S. C. §§441i(e)(l)(B), 441i(e)(3). Given these many exceptions, as well as the substantial threat of corruption or its appearance posed by dona*184tions to or at the behest of federal candidates and officeholders, § 323(e) is clearly constitutional. We accordingly uphold § 323(e) against plaintiffs’ First Amendment challenge. New FECA §323(f)’s Restrictions on State Candidates and Officeholders The final provision of Title I is new FECA § 323(f). 2 U. S. C. § 441i(f) (Supp. II). Section 323(f) generally prohibits candidates for state or local office, or state or local officeholders, from spending soft money to fund “public communications” as defined in § 301(20)(A)(iii) — i. e., a communication that “refers to a clearly identified candidate for Federal office . .. and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office.” 2 U. S. C. §441i(f)(l); § 431(20)(A)(iii). Exempted from this restriction are communications made in connection with an election for state or local office which refer only to the state or local candidate or officeholder making the expenditure or to any other candidate for the same state or local office. § 441i(f)(2). Section 323(f) places no cap on the amount of money that state or local candidates can spend on any activity. Rather, like §§ 323(a) and 323(b), it limits only the source and amount of contributions that state and local candidates can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund “public communications,” § 323(f) focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. Plaintiffs advance two principal arguments against § 323(f). We have already rejected the first argument, that the definition of “public communications” in new FECA § 301(20)(A)(iii) is unconstitutionally vague and overbroad. See n. 64, supra. We add only that, plaintiffs’ and Justice Kennedy’s contrary reading notwithstanding, post, at 316-*185317, this provision does not prohibit a state or local candidate from advertising that he has received a federal officeholder’s endorsement.71 The second argument, that soft-money contributions to state and local candidates for “public communications” do not corrupt or appear to corrupt federal candidates, ignores both the record in this litigation and Congress’ strong interest in preventing circumvention of otherwise valid contribution limits. The proliferation of sham issue ads has driven the soft-money explosion. Parties have sought out every possible way to fund and produce these ads with soft money: They have labored to bring them under the FEC’s allocation regime; they have raised and transferred soft money from national to state party committees to take advantage of favorable allocation ratios; and they have transferred and solicited funds to tax-exempt organizations for production of such ads. We will not upset Congress’ eminently reasonable prediction that, with these other avenues no longer available, state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising. We therefore uphold § 323(f) against plaintiffs’ First Amendment challenge.72 *186B Several plaintiffs contend that Title I exceeds Congress’ Election Clause authority to “make or alter” rules governing federal elections, U. S. Const., Art. I, §4, and, by impairing the authority of the States to regulate their own elections, violates constitutional principles of federalism. In examining congressional enactments for infirmity under the Tenth Amendment, this Court has focused its attention on laws that commandeer the States and state officials in carrying out federal regulatory schemes. See Printz v. United States, 521 U. S. 898 (1997); New York v. United States, 505 U. S. 144 (1992). By contrast, Title I of BCRA only regulates the conduct of private parties. It imposes no requirements whatsoever upon States or state officials, and, because it does not expressly pre-empt state legislation, it leaves the States free to enforce their own restrictions on the financing of state electoral campaigns. It is true that Title I, as amended, prohibits some fundraising tactics that would otherwise be permitted under the laws of various States, and that it may therefore have an indirect effect on the financing of state electoral campaigns. But these indirect effects do not render BCRA unconstitutional. It is not uncommon for federal law to prohibit private conduct that is legal in some States. See, e. g., United States v. Oakland Cannabis Buy*187ers’ Cooperative, 532 U. S. 483 (2001). Indeed, such conflict is inevitable in areas of law that involve both state and federal concerns. It is not in and of itself a marker of constitutional infirmity. See Ex parte Siebold, 100 U. S. 371, 392 (1880). Of course, in maintaining the federal system envisioned by the Founders, this Court has done more than just prevent Congress from commandeering the States. We have also policed the absolute boundaries of congressional power under Article I. See United, States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995). But plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Congress has a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption of federal electoral processes through the means it has chosen. Indeed, our above analysis turns on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that finding, we cannot conclude that those interests are insufficient to ground Congress’ exercise of its Elections Clause power. See Morrison, supra, at 607 (respect owed to coordinate branches “demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds”). C Finally, plaintiffs argue that Title I violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminates against political parties in favor of special interest groups such as the National Rifle Association, American Civil Liberties Union, and Sierra Club. As explained earlier, BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and *188broadcast advertising (other than electioneering communications). We conclude that this disparate treatment does not offend the Constitution. As an initial matter, we note that BCRA actually favors political parties in many ways. Most obviously, party committees are entitled to receive individual contributions that substantially exceed FECA’s limits on contributions to non-party political committees; individuals can give $25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty political committees. In addition, party committees are entitled in effect to contribute to candidates by making coordinated expenditures, and those expenditures may greatly exceed the contribution limits that apply to other donors. See 2 U. S. C. §441a(d) (Supp. II). More importantly, however, Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a system of campaign finance regulation. See National Right to Work, 459 U. S., at 210. Interest groups do not select slates of candidates for elections. Interest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the Legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal officeholders. Congress’ efforts at campaign finance regulation may account for these salient differences. Taken seriously, plaintiffs’ equal protection arguments would call into question not just Title I of BCRA, but much of the pre-existing structure of FECA as well. We therefore reject those arguments. Accordingly, we affirm the judgment of the District Court insofar as it upheld §§ 323(e) and 323(f). We reverse the *189judgment of the District Court insofar as it invalidated §§ 323(a), 323(b), and 323(d). > Title II of BCRA, entitled “Noncandidate Campaign Expenditures,” is divided into two subtitles: “Electioneering Communications” and “Independent and Coordinated Expenditures.” We consider each challenged section of these subtitles in turn. BCRA § 201 ’s Definition of “Electioneering Communications ” The first section of Title II, §201, comprehensively amends FECA § 304, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, “electioneering communications,” to replace the narrowing construction of FECA’s disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECA’s disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term “electioneering communication” is not so limited, but is defined to encompass any “broadcast, cable, or satellite communication” that “(I) refers to a clearly identified candidate for Federal office; “(II) is made within— “(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or “(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and “(III) in the case of a communication which refers to a candidate for an office other than President or Vice *190President, is targeted to the relevant electorate.” 2 U. S. C. § 434(f)(3)(A)(i) (Supp. II).73 New FECA § 304(f)(3)(C) further provides that a communication is “‘targeted to the relevant electorate’” if it “can be received by 50,000 or more persons” in the district or State the candidate seeks to represent. 2 U. S. C. '§ 434(f)(3)(C). In addition to setting forth this definition, BCRA’s amendments to FECA § 304 specify significant disclosure requirements for persons who fund electioneering communications. BCRA’s use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA § 203, which amends FECA § 316(b)(2)) restricts corporations’ and labor unions’ funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts. The major premise of plaintiffs’, challenge to BCRA’s use of the term “electioneering communication” is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, “electioneering communications” without making an exception for those “communications” that do not meet Buckley’s definition of express advocacy. That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law. In *191Buckley we began by examining then-18 U. S. C. § 608(e)(1) (1970 ed., Supp. IV), which restricted expenditures “ ‘relative to a clearly identified candidate,’” and we found that the phrase “ ‘relative to’ ” was impermissibly vague. 424 U. S., at 40-42. We concluded that the vagueness deficiencies could “be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.”74 Id., at 48. We provided examples of words of express advocacy, such as “ ‘vote for,’ ‘elect,’ ‘support,’ . . . ‘defeat,’ [and] ‘reject,’ ” id., at 44, n. 52, and those examples eventually gave rise to what is now known as the “magic words” requirement. We then considered FECA’s disclosure provisions, including 2 U. S. C. § 431(f) (1970 ed., Supp. IV), which defined “ ‘expendítur[e]’ ” to include the use of money or other assets “ ‘for the purpose of . . . influencing’ ” a federal election. Buckley, 424 U. S., at 77. Finding that the “ambiguity of this phrase” posed “constitutional problems,” ibid., we noted our “obligation to construe the statute, if that can be done consistent with the legislature’s purpose, to avoid the shoals of vagueness,” id., at 77-78 (citations omitted). “To insure that the reach” of the disclosure requirement was “not im-permissibly broad, we construe[d] ‘expenditure’ for purposes of that section in the same way we construed the terms of § 608(e) — to reach only funds used for communications that expressly advocate the election or defeat of a clearly idéñti-fied candidate.” Id., at 80 (footnote omitted). Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the *192disclosure contexts, was the product of statutory interpretation rather than a constitutional command.75 In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U. S. 238 (1986), in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckley's express advocacy category was a product of statutory construction.76 In short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490,500 (1979) (citing Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804)). We have long “ ‘rigidly adhered’ ” to the tenet “ ‘never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied/ ” United States v. Raines, 362 U. S. 17, 21 (1960) (citation omitted), for “[t]he nature of judicial review constrains us to consider the case that is actually before us,” James B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 547 (1991) (Blackmun, X, concurring). Consistent with that principle, our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the *193permissible scope of provisions regulating campaign-related speech. Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See Buckley, supra, at 45. Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckley’s magic-words requirement is functionally meaningless. 251 F. Supp. 2d, at 303-304 (Henderson, J.); id., at 534 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.77 And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.78 Buckley’s *194express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system. Finally we observe that new FECA §304(f)(3),s definition of “electioneering communication” raises none of the vagueness concerns that drove our analysis in Buckley. The term “electioneering communication” applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U. S. 104, 108-114 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECA’s reach to express advocacy is simply inapposite here. BCRA §201’s Disclosure Requirements Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs’ other concerns about the use of the term “electioneering communication” in amended FECA §304’s disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering communications, he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U. S. C. §§ 434(f)(2)(A), (B), and (D) (Supp. II). If the disbursements are made from a corporation’s *195or labor union’s segregated account,79 or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. §§ 434(f)(2)(E), (F). The statement must be filed within 24 hours of each “disclosure date” — a term defined to include the first date and all subsequent dates on which a person’s aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§ 434(f)(1), (2), and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECA’s disclosure requirements. § 434(f)(5). In addition to the failed argument that BCRA’s amendments to FECA § 304 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA §304’s disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for communications that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA § 304(f)(5), which governs executory contracts. Relying on BCRA’s severability provision,80 the court held that invalidation of the executory contracts subsection did *196not render the balance of BCRA’s amendments to FECA § 304 unconstitutional. 251 F. Supp. 2d, at 242 (per curiam). We agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECA’s disclosure requirements — providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions — apply in full to BCRA.81 Accordingly, Buckley amply supports application of FECA § 304’s disclosure requirements to the entire range of “electioneering communications.” As the authors of the District Court’s per curiam opinion concluded after reviewing evidence concerning the use of purported “issue ads” to influence federal elections: “The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA’s disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs’ disdain for BCRA’s disclosure provisions is nothing short of surprising. Plaintiffs challenge BCRA’s restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty *197days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be ‘uninhibited, robust, and wide-open.’ McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: ‘The Coalition-Americans Working for Real Change’ (funded by business organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam Wyly). Findings ¶¶44,51,52. Given these tactics, Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs’ argument for striking down BCRA’s disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.” 251 F. Supp. 2d, at 237. The District Court was also correct that Buckley forecloses a facial attack on the new provision in § 304 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering communications. Like our earlier decision in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958),82 Buckley recognized *198that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the contention that FECA’s disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Government’s interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. In Buckley, unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures. 424 U. S., at 69-70. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply: “We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Id., at 74. A few years later we used that standard to resolve a minor party’s challenge to the constitutionality of the State of Ohio’s disclosure requirements. We held that the First Amendment prohibits States from compelling disclosures that would subject identified persons to “threats, harassment, and reprisals,” and that the District Court’s findings *199had established a “reasonable probability” of such a result.83 Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 100 (1982). In this litigation the District Court applied Buckley’s evi-dentiary standard and found — consistent with our conclusion in Buckley, and in contrast to that in Brown — that the evidence did not establish the requisite “reasonable probability” of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a “lack of specific evidence about the basis for these concerns.” 251 F. Supp. 2d, at 247 (per curiam). We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our rejection of plaintiffs’ facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement. We also are unpersuaded by plaintiffs’ challenge to new FECA § 304(f)(5), which requires disclosure of executory contracts for electioneering communications: *200“Contracts to disburse “For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement.” 2 U. S. C. § 434(f)(5) (Supp. II). In our view, this provision serves an important purpose the District Court did not advance. BCRA’s amendments to FECA §304 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering communications must make disclosures to the FEC. Nor do they question the need to make the contents of parties’ disclosure statements available to curious voters in advance of elections. Given the relatively short timeframes in which electioneering communications are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. In the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection down-payment of less than $10,000, with the balance payable after the election. Indeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely. The record contains little evidence identifying any harm that might flow from the enforcement of §304(f)(5)’s “advance” disclosure requirement. The District Court speculated that disclosing information about contracts “that have *201not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace.” 251 F. Supp. 2d, at 241 (per curiam). Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. It is ho doubt true that § 304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.84 But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended §304 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of § 304(f)(5)’s treatment of executory contracts. As the District Court observed, amended FECA §304’s disclosure requirements are constitutional because they ‘“d[o] not prevent anyone from speaking.’” Ibid, (quoting Brief for FEC in Opposition in No. 02-582 et al. (DC), p. 112). Moreover, the required disclosures “‘would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates’ supporters before election day.’” 251 F. Supp. 2d, at 241 (quoting Brief for FEC in Opposition, supra, at 112) (emphasis in original). Accordingly, we affirm the judgment of the District Court insofar as it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors *202of $1,000 or more, and reverse that judgment insofar as it invalidated FECA § 304(f)(5). BCRA § 202’s Treatment of “Coordinated Communications” as Contributions Section 202 of BCRA amends FECA § 315(a)(7)(C) to provide that disbursements for “electioneering communication[s]” that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party. 2 U. S. C. §441a(a)(7)(C) (Supp. II).85 The amendment clarifies the scope of the preceding subsection, § 315(a)(7)(B), which states more generally that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of” a candidate or party will constitute contributions. 2 U. S. C. §§441a(a)(7)(B)(i)-(ii) (2000 ed. and Supp. II). In Buckley we construed the statutory term “expenditure” to reach only spending for express advocacy. 424 U. S., at 40-44, and n. 52 (addressing 18 U. S. C. § 608(e)(1) (1970 ed., Supp. IV), which placed a $1,000 cap on expenditures “/relative to a clearly identified candidate’”)., BCRA §202 pre-empts a possible claim that § 315(a)(7)(B) is similarly limited, such that coordinated expenditures for communications that avoid express advocacy cannot be counted as contributions. As we ex*203plained above, see supra, at 190-193, Buckley's narrow interpretation of the term “expenditure” was not a constitutional limitation on Congress’ power to regulate federal elections. Accordingly, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures. We affirm the judgment of the District Court insofar as it held that plaintiffs had advanced “no basis for finding Section 202 unconstitutional.” 251 F. Supp. 2d, at 250. BCRA §203’s Prohibition of Corporate and Labor Disbursements for Electioneering Communications Since our decision in Buckley, Congress’ power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA §316, 2 U. S. C. § 441b (2000 ed. and Supp. II), has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view,86 and it is not challenged in this litigation. *204Section 203 of BCRA amends FECA § 316(b)(2) to extend this rule, which previously applied only to express advocacy, to all “electioneering communications” covered by the definition of that term in amended FECA § 304(f)(3), discussed above. 2 U. S. C. § 441b(b)(2) (Supp. II).87 Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering communications with PAC money, it is “simply wrong” to view the provision as a “complete ban” on expression rather than a regulation. Beaumont, 539 U. S., at 162. As we explained in Beaumont: “The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see [2 U. S. C.] §§ 432-434, without jeopardizing the associational rights of advocacy organizations’ members.” Id., at 163 (citation omitted). See also Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 658 (1990). Rather than arguing that the prohibition on the use of general treasury funds is a complete ban that operates as a prior restraint, plaintiffs instead challenge the expanded regulation on the grounds that it is both overbroad and underinclu-sive. Our consideration of plaintiffs’ challenge is informed by our earlier conclusion that the distinction between ex*205press advocacy and so-called issue advocacy is not constitutionally compelled. In that light, we must examine the degree to which BCRA burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden. Id., at 657. The latter question — . whether the state interest is compelling — is easily answered by our prior decisions regarding campaign finance regulation, which “represent respect for the ‘legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.’” Beaumont, supra, at 155 (quoting National Right to Work, 459 U. S., at 209-210). We have repeatedly sustained legislation aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660; see Beaumont, supra, at 154-155; National Right to Work, supra, at 209-210. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against “‘circumvention of [valid] contribution limits.’” Beaumont, supra, at 155 (quoting Colorado II, 533 U. S., at 456, and n. 18.) In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), and “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation,” Buckley, 424 U. S., at 48. Rather, plaintiffs argue that *206the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications. This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were, aired during those relatively brief preelection timespans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. See 251 F. Supp. 2d, at 307-312 (Henderson, J.); id,., at 583-587 (Kollar-Kotelly, J.); id., at 796-798 (Leon, J.). Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 13-14; App. 1330-1348 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 573-578 (Kollar-Kotelly, J.); id., at 826-827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the.future corporations and unions may finance genuine issue ads during those timeframes by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.88 *207We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA § 316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not “justify prohibiting all enforcement” of the law unless its application to protected speech is substantial, “not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U. S. 113, 120 (2003). Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion. Plaintiffs also argue that FECA §316(b)(2)’s segregated-fund requirement for electioneering communications is un-derinclusive because it does not apply to advertising in the print media or on the Internet. 2 U. S. C. § 434(f) (3)(A) (Supp. II). The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. 251 F. Supp. 2d, at 569-573 (Kollar-Kotelly, J.); id., at 799 (Leon, J.); 3 1998 Senate Report 4465, 4474-4481; 5 id., at 7521-7525. As we held in Buckley, “reform may take one step at a time, *208addressing itself to the phase of the problem which seems most acute to the legislative mind.” 424 U. S., at 106 (internal quotation marks and citations omitted). One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress’ line-drawing. In addition to arguing that §316(b)(2)’s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA § 304(f)(3)(B)(i) excludes from the definition of electioneering communications any “communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate.” 2 U. S. C. §434(f)(3)(B)(i) (Supp. II). Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 304(f)(3)(B)(i)’s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECA’s provisions. The statute’s narrow exception is wholly consistent with First Amendment principles. “A valid distinction ... exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public.” Austin, 494 U. S., at 668. Numerous federal statutes have drawn this distinction to ensure that the law “does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.” Ibid, (citations omitted); see, e. g., 2 U. S. C. §431(9)(B)(i) (exempting news stories, commentaries, and editorials from FECA’s definition of “expenditure”); 15 U. S. C. §§ 1801-1804 (providing a limited antitrust exemption for newspapers); 47 U. S. C. § 315(a) (excepting newscasts, news *209interviews, and news documentaries from the requirement that broadcasters provide equal time to candidates for public office).89 We affirm the District Court’s judgment to the extent that it upheld the constitutionality of FECA § 316(b)(2); to the extent that it invalidated any part of § 316(b)(2), we reverse the judgment. BCRA §204’s Application to Nonprofit Corporations Section 204 of BCRA, which adds FECA § 316(c)(6), applies the prohibition on the use of general treasury funds to pay for electioneering communications to not-for-profit corporations.90 Prior to the enactment of BCRA, FECA re*210quired such corporations, like business corporations, to pay for their express advocacy. from segregated funds rather than from their general treasuries. Our recent decision in Federal Election Comm’n v. Beaumont, 539 U. S. 146 (2003), confirmed that the requirement was valid except insofar as it applied to a subcategory of corporations described as “MCFL organizations,” as defined by our decision in MCFL, 479 U. S. 238 (1986).91 The constitutional objection to applying FECA’s segregated-fund requirement to so-called MCFL organizations necessarily applies with equal force to FECA § 316(c)(6). Our decision in MCFL related to a carefully defined category of entities. We identified three features of the organization at issue in that case that were central to our holding: “First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with *211the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.” Id,, at 264. That FECA § 316(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a sufficient reason to invalidate the entire section. If a reasonable limiting construction “has been or could be placed on the challenged statute” to avoid constitutional concerns, we should embrace it. Broadrick, 413 U. S., at 613; Buckley, 424 U. S., at 44. Because our decision in the MCFL case was on the books for many years before BCRA was enacted, we presume that the legislators who drafted § 316(c)(6) were fully aware that the provision could not validly apply to MCFL-type entities. See Bowen v. Massachusetts, 487 U. S. 879, 896 (1988); Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979). Indeed, the Government itself concedes that § 316(c)(6) does not apply to MCFL organizations. As so construed, the provision is plainly valid. See Austin, 494 U. S., at 661-665 (holding that a segregated-fund requirement that did not explicitly carve out an MCFL exception could apply to a nonprofit corporation that did not qualify for MCFL status). Accordingly, the judgment of the District Court upholding § 316(c)(6) as so limited is affirmed. BCRA §212’s Reporting Requirement for $1,000 Expenditures Section 212 of BCRA amends FECA §304 to add a new disclosure requirement, FECA § 304(g), which applies to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election. *212Like FECA § 304(f)(5), discussed above, new § 304(g) treats the execution of a contract to make a disbursement as the functional equivalent of a payment for the goods or services covered by the contract.92 In challenging this provision, plaintiffs renew the argument we rejected in the context of § 304(f)(5): that they have a constitutional right to postpone any disclosure until after the performance of the services purchased by their expenditure. The District Court held that the challenge to FECA § 304(g) was not ripe because the FEC has issued regulations “providing] Plaintiffs with the exact remedy they seek”— that is, specifically declining to “require disclosure of independent express advocacy expenditures prior to their ‘pub-life] dissemination].’ ” 251 F. Supp. 2d, at 251, and n. 85 (per curiam) (citing 68 Fed. Reg. 404, 452 (2003) (codified at 11 CFR §§ 109.10(c), (d) (2003))). We are not certain that a regulation purporting to limit the range of circumstances in which a speech-burdening statute will be enforced can render nonjusticiable a facial challenge to the (concededly broader) underlying statute. Nevertheless, we need not separately address the constitutionality of § 304(g), for our ruling as to BCRA §201, see supra, at 194-202, renders the issue essentially moot. *213 BCR A §213,s Requirement that Political Parties Choose Between Coordinated and Independent Expenditures After Nominating a Candidate Section 213 of BCRA amends FECA § 315(d)(4) to impose certain limits on party spending during the postnomination, preelection period.93 At first blush, the text of § 315(d)(4)(A) appears to require political parties to make a straightforward choice between using limited coordinated expenditures or unlimited independent expenditures to support their nominees. All three judges on the District Court concluded that the provision placed an unconstitutional burden on the parties’ right to make unlimited independent expenditures. *214251 F. Supp. 2d, at 388 (Henderson, J.); id., at 650-651 (Kollar-Kotelly, J.), id., at 805-808 (Leon, J.). In the end, we agree with that conclusion but believe it important to identify certain complexities in the text of § 315(d)(4) that affect our analysis of the issue. Section 315 of FECA sets forth various limitations on contributions and expenditures by individuals, political parties, and other groups. Section 315(a)(2) restricts “contributions” by parties to $5,000 per candidate. 2 U. S. C. § 441a(a)(2). Because § 315(a)(7) treats expenditures that are coordinated with a candidate as contributions to that candidate, 2 U. S. C. §441a(a)(7) (2000 ed. and Supp. II), the $5,000 limit also operates as a cap on parties’ coordinated expenditures. Section 315(d), however, provides that, “Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions,” political parties may make “expenditures” in support of their candidates under a formula keyed to the voting-age population of the candidate’s home State or, in the case of a candidate for President, the voting-age population of the United States. 2 U.S.C. §§441a(d)-(3) (2000 ed. and Supp. II).94 In *215the year 2000, that formula permitted expenditures ranging from $33,780 to $67,650 for House of Representatives races, and from $67,650 to $1.6 million for Senate races. Colorado 11, 533 U. S., at 439, n. 3. We held in Colorado I that parties have a constitutional right to make unlimited independent expenditures, and we invalidated § 315(d) to the extent that it restricted such expenditures. As a result of that decision, § 315(d) applies only to coordinated expenditures, replacing the $5,000 cap on contributions set out in § 315(a)(2) with .the more generous limitations prescribed by §§ 315(d)(1) — (3). We sustained that limited application in Colorado II, supra. Section 213 of BCRA amends § 315(d) by adding a new paragraph (4). New § 315(d)(4)(A) provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that “makes any independent expenditure (as defined in section [301(17)])” is thereby barred from making “any coordinated expenditure under this subsection.” 2 U. S. C. §441a(d)(4)(A)(i) (Supp. II). The phrase “this subsection” is a reference to subsection (d) of § 315. Thus, the consequence of making an independent expenditure is not a complete prohibition of any coordinated expenditure: Although the party cannot take advantage of the increased spending limits under §§ 315(d)(1) — (B), it still may make up to $5,000 in coordinated expenditures under § 315(a)(2). As the difference between $5,000 and $1.6 million demonstrates, *216however, that is a significant cost to impose on the exercise of a constitutional right. The second option is the converse of the first. It provides that a party that makes any coordinated expenditure “under this subsection” (i e., one that exceeds the ordinary $5,000 limit) cannot make “any independent expenditure (as defined in section [301(17)]) with respect to the candidate.” 2 U. S. C. §441a(d)(4)(A)(ii). Section 301(17) defines “‘independent expenditure’” to mean a noncoordinated expenditure “expressly advocating the election or defeat of a clearly identified candidate.” 2 U. S. C. §431(17)(A).95 Therefore, as was true of the first option, the party’s choice is not as stark as it initially appears: The consequence of the larger coordinated expenditure is not a complete prohibition of any independent expenditure, but the forfeiture of the right to make independent expenditures for express advocacy.. As we explained in our discussion of the provisions relating to. electioneering communications, supra, at 189-194, express advocacy represents only a tiny fraction of the political communications made for the purpose of electing or defeating candidates during a campaign. Regardless of which option parties choose, they remain free to make independent ex*217penditures for the vast majority of campaign ads that avoid the use of a few magic words. In sum, the coverage of new FECA § 315(d)(4) is much more limited than it initially appears. A party that wishes to spend more than $5,000 in coordination with its nominee is forced to forgo only the narrow category of independent expenditures that make use of magic words. But while the category of burdened speech is relatively small, it plainly is entitled to First Amendment protection. See Buckley, 424 U. S., at 44-45, 48. Under § 315(d)(4), a political party’s exercise of its constitutionally protected right to engage in “core First Amendment expression,” id., at 48, results in the loss of a valuable statutory benefit that has been available to parties for many years. To survive constitutional scrutiny, a provision that has such consequences must be supported by a meaningful governmental interest. The interest in requiring political parties to avoid the use of magic words is not such an interest. We held in Buckley that a $1,000 cap on expenditures that applied only to express advocacy could not be justified as a means of avoiding circumvention of contribution limits or preventing corruption and the appearance of corruption because its restrictions could easily be evaded: “So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” Id., at 45. The same is true in this litigation. Any claim that a restriction on independent express advocacy serves a strong Government interest is belied by the overwhelming evidence that the line between express advocacy and other types of election-influencing expression is, for Congress’ purposes, functionally meaningless. Indeed, Congress enacted the new “electioneering communication[s]” provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections. In light of that recognition, we are hard pressed to conclude that any *218meaningful purpose is served by §315(d)(4)’s burden on a party’s right to engage independently in express advocacy. The Government argues that § 315(d)(4) nevertheless is constitutional because it is not an outright ban (or cap) on independent expenditures, but rather offers parties a voluntary choice between a constitutional right and a statutory benefit. Whatever merit that argument might have in the abstract, it fails to account for new § 315(d)(4)(B), which provides: “For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee.” 2 U. S. C. § 441a(d)(4)(B) (Supp. II). Given that provision, it simply is not the case that each party committee can make a voluntary and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on coordinated spending under §§ 315(d)(1) — (3). Instead, the decision resides solely in the hands of the first mover, such that a local party committee can bind both the state and national parties to its chosen spending option.96 It is one thing to say that Congress may require a party committee to give *219up its right to make independent expenditures if it believes that it can accomplish more with coordinated expenditures. It is quite another thing, however, to say that the RNC must limit itself to $5,000 in coordinated expenditures in support of its Presidential nominee if any state or local committee first makes an independent expenditure for an ad that uses magic words. That odd result undermines any claim that new § 315(d)(4) can withstand constitutional scrutiny simply because it is cast as a voluntary choice rather than an outright prohibition on independent expenditures. The portion of the judgment of the District Court invalidating BCRA § 213 is affirmed. BCRA §2U’s Changes in FECA’s Provisions Covering Coordinated Expenditures Ever since our decision in Buckley, it has been settled that expenditures by a noncandidate that are “controlled by or coordinated with the candidate and his campaign” may be treated as indirect contributions subject to FECA’s source and amount limitations. 424 U. S., at 46. Thus, FECA § 315(a)(7)(B)(i) long has provided that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.” 2 U. S. C. §441a(a) (7)(B)(i). Section 214(a) of BCRA creates a new FECA § 315(a)(7)(B)(ii) that applies the same rule to expenditures coordinated with “a national, State, or local committee of a political party.” 2 U. S. C. §441a(a)(7)(B)(ii) (Supp. II).97 Sections 214(b) and (c) direct the FEC to repeal *220its current regulations98 and to promulgate new regulations dealing with “coordinated communications” paid for by persons other than candidates or their parties. Subsection (c) provides that the new “regulations shall not require agreement or formal collaboration to establish coordination.” Note following 2 U. S.'C. §441a(a) (Supp. II). Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to candidates. They argue instead that new FECA §315(a)(7)(B)(ii) and its implementing regulations are overbroad and unconstitutionally vague because they permit a finding of coordination even in the absence of an agreement. Plaintiffs point out that political supporters may be subjected to criminal liability if they exceed the contribution limits with expenditures that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of “coordination” and argue any definition that does not hinge on the presence of an agreement cannot provide the “precise guidance” that the First Amendment demands. Brief for Appellant Chamber of Commerce of the United States et al. in No. 02-1756, p. 48. As plaintiffs readily admit, that argument reaches beyond BCRA, calling into question FECA’s pre-existing provisions governing expenditures coordinated with candidates. *221We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated — and therefore may be regulated as indirect contributions — and expenditures that truly are independent. We repeatedly have struck down limitations on expenditures “made totally independently of the candidate and his campaign,” Buckley, 424 U. S., at 47, on the ground that such limitations “impose far greater restraints on the freedom of speech and association” than do limits on contributions and coordinated expenditures, id., at 44, while “failing] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47-48. See also Colorado I, 518 U. S., at 613-614 (striking down limit on expenditure made by party officials prior to nomination of candidates and without any consultation, with potential nominees). We explained in Buckley: “Unlike contributions, . . . independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” 424 U. S., at 47. Thus, the rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of an agreement and everything to do with the functional consequences of different types of expenditures. Independent expenditures “are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate’s point of view.” Colorado II, 533 U. S., at 446. By contrast, expenditures made after a “wink or nod” often will be “as useful to the candidate as cash.” Id., at 442, 446. For that reason, Congress has always *222treated expenditures made “at the request or suggestion of” a. candidate as coordinated.99 2 U. S. C. § 441a(a)(7)(B)(i). A supporter easily could comply with a candidate’s request or suggestion without first agreeing to do so, and the resulting expenditure would be ‘“virtually indistinguishable from [a] simple contribution],’” Colorado II, supra, at 444-445. Therefore, we cannot agree with the submission that new FECA §315(a)(7)(B)(ii) is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement. Nor are we persuaded that the absence of an agreement requirement renders § 315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required to support a finding of coordination with a candidate under § 315(a)(7) (B)(i), which refers to expenditures made “in cooperation, consultation, or concer[t] with, or at the request or suggestion of” a candidate. Congress used precisely the same language in new § 315(a)(7)(B)(ii) to address expenditures coordinated with parties. FECA’s longstanding definition of coordination “delineates its reach in words of common understanding.” Cameron v. Johnson, 390 U. S. 611, 616 (1968). Not surprisingly, therefore, the relevant statutory language has survived without constitutional challenge for almost three decades. Although that fact does not insulate the definition from constitutional scrutiny, it does undermine plaintiffs’ claim that the language of § 315(a)(7)(B)(ii) is intolerably vague. Plaintiffs do not present any evidence that *223the definition has chilled political speech, whether between candidates and their supporters or by the supporters to the general public. See Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (noting risk that vague statutes may chill protected expression). And, although plaintiffs speculate that the FEC could engage in intrusive and politically motivated investigations into alleged coordination, they do not even attempt to explain why an agreement requirement would solve that problem. Moreover, the only evidence plaintiffs have adduced regarding the enforcement of the coordination provision during its 27-year history concerns three investigations in the late 1990’s into groups on different sides of the political aisle. Such meager evidence does not support the claim that §315(a)(7)(B)(ii) will “foster ‘arbitrary and discriminatory application.’” Buckley, supra, at 41, n. 48 (quoting Grayned v. City of Rockford, 408 U. S., at 108-109). We conclude that FECA’s definition of coordination gives “fair notice to those to whom [it] is directed,” American Communications Assn. v. Douds, 339 U. S. 382, 412 (1950), and is not unconstitutionally vague. Finally, portions of plaintiffs’ challenge to BCRA §214 focus on the regulations the FEC has promulgated under § 214(c). 11 CFR § 109.21 (2003). As the District Court explained, issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceeding. Thus, we agree with the District Court that plaintiffs’ challenge to §§ 214(b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself. The portions of the District Court judgment rejecting plaintiffs’ challenges to BCRA §214 are affirmed. V Many years ago we observed that “[t]o say that Congress is without power to pass appropriate legislation to safe*224guard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” Burroughs v. United States, 290 U. S., at 545. We abide by that conviction in considering Congress’ most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRA’s two principal, complementary features: the control of soft money and the regulation of electioneering communications. Accordingly, we affirm in part and reverse in part the District Court's judgment with respect to Titles I and II. It is so ordered. Chief Justice Rehnquist delivered the opinion of the Court with respect to BCRA Titles III and IV.* This opinion addresses issues involving miscellaneous Title III and IV provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81. For the reasons discussed below, we affirm the judgment of the District Court with respect to these provisions. BCRA §305 BCRA §305 amends the federal Communications Act of 1934 (Communications Act) § 315(b), 48 Stat. 1088, as amended, 86 Stat. 4, which requires that, 45 days before a primary or 60 days before a general election, broadcast stations must sell a qualified candidate the “lowest unit charge *225of the station for the same class and amount of time for the same period,” 47 U. S. C. § 315(b)(1). Section 305’s amendment, in turn, denies a candidate the benefit of that lowest unit charge unless the candidate “provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office,” or the candidate, in the manner prescribed in BCRA § 305(a)(3), clearly identifies herself at the end of the broadcast and states that she approves of the broadcast. 47 U. S. C. §§ 315(b)(2)(A), (C) (Supp. II). The McConnell plaintiffs challenge §305. They argue that Senator McConnell’s testimony that he plans to run advertisements critical of his opponents in the future and that he had run them in the past is sufficient to establish standing. We think not. Article III of the Constitution limits the “judicial power” to the resolution of “cases” and “controversies.” One element of the “bedrock” case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Raines v. Byrd, 521 U. S. 811, 818 (1997). On many occasions, we have reiterated the three requirements that constitute the “‘irreducible constitutional minimum’” of standing. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 771 (2000). First, a plaintiff must demonstrate an "injury in fact,” which is “concrete,” "distinct and palpable,” and “actual or imminent.” Whitmore v. Arkansas, 495 U. S. 149,155 (1990) (internal quotation marks and citation omitted). Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] some third party not before the court.’” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42 (1976)). Third, a plaintiff must show the *226“ ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” Stevens, supra, at 771. As noted above, § 305 amended the Communications Act’s requirements with respect to the lowest unit charge for broadcasting time. But this price is not available to qualified candidates until 45 days before a primary election or 60 days before a general election. Because Senator McConnell’s current term does not expire until 2009, the earliest day he could be affected by § 305 is 45 days before the Republican primary election in 2008. This alleged injury in fact is too remote temporally to satisfy Article III standing. See Whitmore, supra, at 158 (“A threatened injury must be certainly impending to constitute injury in fact” (internal quotation marks and citations omitted)); see also Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (A plaintiff seeking injunctive relief must show he is “ ‘immediately in danger of sustaining some direct injury’ as [a] result” of the challenged conduct). Because we hold that the McConnell plaintiffs lack standing to challenge §305, we affirm the District Court’s dismissal of the challenge to BCRA § 305. BCRA §307 BCRA §307, which amends § 315(a)(1) of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as added, 90 Stat. 487, increases and indexes for inflation certain FECA contribution limits. The Adams and Paul plaintiffs challenge §307 in this Court. Both groups contend that they have standing to sue. Again, we disagree. The Adams plaintiffs, a group consisting of voters, organizations representing voters, and candidates, allege two injuries, and argue each is legally cognizable, “as established by case law outlawing electoral discrimination based on economic status ... and upholding the right to an equally meaningful vote . . . .” Brief for Appellant Adams et al. in No. 02-1740, p. 31. *227First, they assert that the increases in hard-money limits enacted by §307 deprive them of an equal ability to participate in the election process based on their economic status. But, to satisfy our standing requirements, a plaintiff’s alleged injury must be an invasion of a concrete and particularized legally protected interest. Lujan, supra, at 560. We have noted that “[although standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal,... it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U. S. 490, 500 (1975) (internal quotation marks and citations omitted). We have never recognized a legal right comparable to the broad and diffuse injury asserted by the Adams plaintiffs. Their reliance on this Court’s voting rights cases is misplaced. They rely on cases requiring nondiscriminatory access to the ballot and a single, equal vote for each voter. See, e.g., Lubin v. Panish, 415 U. S. 709 (1974) (invalidating a statute requiring a ballot-access fee fixed at a percentage of the salary for the office sought because it unconstitutionally burdened the right to vote); Harper v. Virginia Bd. of Elections, 383 U. S. 663, 666-668 (1966) (invalidating a state poll tax because it effectively denied the right to vote). None of these plaintiffs claims a denial of equal access to the ballot or the right to vote. Instead, the plaintiffs allege a curtailment of the scope of their participation in the electoral process. But we have noted that “ [political ‘free trade’ does not necessarily require that all who participate in the political marketplace do so with exactly equal resources.” Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238,257 (1986); see also Buckley v. Valeo, 424 U. S. 1, 48 (1976) (per curiam) (rejecting the asserted government interest of “equalizing the relative ability of individuals and groups to influence the outcome of elections” to justify the burden on speech presented by expenditure limits). This claim of injury by the Adams plaintiffs is, therefore, not to a legally cognizable right. *228Second, the Adams plaintiffs-candidates contend that they have suffered a competitive injury. Their candidates “do not wish to solicit or accept large campaign contributions as permitted by BCRA” because ‘Whey believe such contributions create the appearance of unequal access and influence.” Adams Complaint ¶ 53. As a result, they claim that BCRA §307 puts them at a “fundraising disadvantage,” making it more difficult for them to compete in elections. See id., ¶ 56. The second claimed injury is based on the same premise as the first: BCRA § 307’s increased hard-money limits allow plaintiffs-candidates’ opponents to raise more money, and, consequently, the plaintiffs-candidates’ ability to compete or participate in the electoral process is diminished. But they cannot show that their alleged injury is “fairly traceable” to BCRA §307. See Lujan, 504 U. S. at 562. Their alleged inability to compete stems not from the operation of §307, but from their own personal “wish” not to solicit or accept large contributions, i.e., their personal choice. Accordingly, the Adams plaintiffs fail here to allege an injury in fact that is “fairly traceable” to BCRA. The Paul plaintiffs maintain that BCRA § 307 violates the Freedom of Press Clause of the First Amendment. They contend that their political campaigns and public interest advocacy involve traditional press activities and that, therefore, they are protected by the First Amendment’s guarantee of the freedom of press. The Paul plaintiffs argue that the contribution limits imposed by BCRA §307, together with the individual and political action committee contribution limitations of FECA §315, impose unconstitutional editorial control upon candidates and their campaigns. The Paul plaintiffs argue that by imposing economic burdens upon them, but not upon the institutional media, see 2 U. S. C. § 431(9)(B)(i) (exempting “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled *229by any political party, political committee, or candidate” from the definition of expenditure), BCRA § 307 and FECA § 315 violate the freedom of the press. The Paul plaintiffs cannot show the ‘“substantial likelihood’ that the requested relief will remedy [their] alleged injury in fact,” Stevens, 529 U. S., at 771. The relief the Paul plaintiffs seek is for this Court to strike down the contribution limits, removing the alleged disparate editorial controls and economic burdens imposed on them. But §307 merely increased and indexed for inflation certain FECA contribution limits. This Court has no power to adjudicate a challenge to the FECA limits in this litigation because challenges to the constitutionality of FECA provisions are subject to direct review before an appropriate en banc court of appeals, as provided in 2 U. S. C. § 437h, not in the three-judge District Court convened pursuant to BCRA § 403(a). Although the Court has jurisdiction to hear a challenge to §307, if the Court were to strike down the increases and indexes established by BCRA § 307, it would not remedy the Paul plaintiffs’ alleged injury because both the limitations imposed by FECA and the exemption for news media would remain unchanged. A ruling in the Paul plaintiffs’ favor, therefore, would not redress their alleged injury, and they accordingly lack standing. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83,105-110 (1998). For the reasons above, we affirm the District Court’s dismissal of the Adams and Paul plaintiffs’ challenges to BCRA § 307 for lack of standing. BCRA §§304, S16, and 319 BCRA §§304 and 316, which amend FECA §315, and BCRA § 319, which adds FECA § 315A, collectively known as the “millionaire provisions,” provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate’s opponent spends a triggering amount *230of his personal fiinds.1 The provisions also eliminate the coordinated expenditure limits in certain circumstances.2 In their challenge to the millionaire provisions, the Adams plaintiffs allege the same injuries that they alleged with regard to BCRA §307. For the reasons discussed above, they fail to allege a cognizable injury that is “fairly traceable” to BCRA. Additionally, as the District Court noted, “none of the Adams plaintiffs is a candidate in an election affected by the millionaire provisions — i. e., one in which an opponent chooses to spend the triggering amount in his own funds— and it would be purely ‘conjectural’ for the court to assume that any plaintiff ever will be.” 251 F. Supp. 2d 176, 431 (DC 2003) (case below) (Henderson, J., concurring in judgment in part and dissenting in part) (quoting Lujan, 504 U. S., at 560). We affirm the District Court’s dismissal of the Adams plaintiffs’ challenge to the millionaire provisions for lack of standing. BCRA §311 FECA §318 requires that certain communications “authorized” by a candidate or his political committee clearly identify the candidate or committee or, if not so authorized, identify the payor and announce the lack of authorization. 2 U. S. C. § 441d (2000 ed. and Supp. II). BCRA § 311 makes several amendments to FECA §318, among them the expansion of this identification regime to include disbursements for “electioneering communications” as defined in BCRA §201. *231The McConnell and Chamber of Commerce plaintiffs challenge BCRA §311 by simply noting that §311, along with all of the “electioneering communications” provisions of BCRA, is unconstitutional. We disagree. We think BCRA §311’s inclusion of electioneering communications in the FECA § 318 disclosure regime bears a sufficient relationship to the important governmental interest of “shed[ding] the light of publicity” on campaign financing. Buckley, 424 U. S., at 81. Assuming as we must that FECA §318 is valid to begin with, and that FECA §318 is valid as amended by BCRA §311’s amendments other than the inclusion of electioneering communications, the challenged inclusion of electioneering communications is not itself unconstitutional. We affirm the District Court’s decision upholding §311’s expansion of FECA § 318(a) to include disclosure of disbursements for electioneering communications. BCRA §318 . BCRA § 318, which adds FECA §324, prohibits individuals “17 years old or younger” from making contributions to candidates and contributions or donations to political parties. 2 U. S. C. §441k (Supp. II). The McConnell and Echols plaintiffs challenge the provision; they argue that §318 violates the First Amendment rights of minors. We agree. Minors enjoy the protection of the First Amendment. See, e. g., Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 511-513 (1969). Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. See Buckley, supra, at 20-22. When the Government burdens the right to contribute, we apply heightened scrutiny. See ante, at 136 (joint opinion of Stevens and O’Connor, JJ.) (“[A] contribution limit involving even ‘“significant interference”’ with associational rights is nevertheless valid if it satisfies the ‘lesser demand’ of being ‘ “closely drawn” ’ to match a ‘ “sufficiently important *232interest’'”’ (quoting Federal Election Comm’n v. Beaumont, 539 U. S. 146, 162 (2003))). We ask whether there is a “sufficiently important interest” and whether the statute is “closely drawn” to avoid unnecessary abridgment of First Amendment freedoms. Ante, at 136; Buckley, supra, at 25. The Government asserts that the provision protects against corruption by conduit; that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents. But the Government offers scant evidence of this form of evasion.3 Perhaps the Government’s slim evidence results from sufficient deterrence of such activities by §320 of FECA, which prohibits any person from “mak[ing] a contribution in the name of another person” or “knowingly accepting] a contribution made by one person in the name of another,” 2 U. S. C. § 441f. Absent a more convincing case of the claimed evil, this interest is simply too attenuated for § 318 to withstand heightened scrutiny. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 391 (2000) (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”). Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches— e.g., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court’s decision striking down §318 as unconstitutional. *233 BCRA §m(b) The National Right to Life plaintiffs argue that the District Court’s grant of intervention to the intervenor-defendants, pursuant to Federal Rule of Civil Procedure 24(a) and BCRA § 403(b), must be reversed because the intervenor-defendants lack Article III standing. It is clear, however, that the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-defendants, whose position here is identical to the FEC’s. See, e. g., Clinton v. City of New York, 524 U. S. 417, 431-432, n. 19 (1998); Bowsher v. Synar, 478 U. S. 714,721 (1986). Cf. Diamond v. Charles, 476 U. S. 54,68-69, n. 21 (1986) (reserving the question for another day). For the foregoing reasons, we affirm the District Court’s judgment finding the plaintiffs’ challenges to BCRA §305, §307, and the millionaire provisions nonjusticiable, striking down as unconstitutional BCRA §318, and upholding BCRA §311. The judgment of the District Court is Affirmed. Justice Breyer delivered the opinion of the Court with respect to BCRA Title V.* We consider here the constitutionality of § 504 of the Bipartisan Campaign Reform Act of 2002 (BCRA), amending the Communications Act of 1934. That section requires broadcasters to keep publicly available records of politically related broadcasting requests. 47 U. S. C. § 315(e) (Supp. II). The McConnell plaintiffs, who include the National Association of Broadcasters, argue that § 504 imposes onerous administrative burdens, lacks any offsetting justification, and consequently violates the First Amendment. For similar reasons, the three judges on the District Court found BCRA §504 unconstitutional on its face. 251 F. Supp. 2d *234176, 186 (DC 2003) (per curiam) (case below). We disagree, and we reverse that determination. I BCRA § 504’s key requirements are the following: (1) A “candidate request” requirement calls for broadcasters to keep records of broadcast requests “made by or on behalf of” any “legally qualified candidate for public office.” 47 U. S. C. § 315(e)(1)(A) (Supp. II). (2) An “election message request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” that refer either to a “legally qualified candidate” or to “any election to Federal office.” §§315(e)(l)(B)(i), (ii). (3) An “issue request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message^]” related to a “national legislative issue of public importance,” §315(e)(l)(B)(iii), or otherwise relating to a “political matter of national importance,” § 315(e)(1)(B). We shall consider each provision in turn. II BCRA § 504 s “candidate request” requirements are virtually identical to those contained in a regulation that the Federal Communications Commission (FCC) promulgated as early as 1938 and which with slight modifications the FCC has maintained in effect ever since. 47 CFR §73.1943 (2002); compare 3 Fed. Reg. 1692 (1938) (47 CFR §36a4); 13 Fed. Reg. 7486 (1948) (47 CFR §§ 3.190(d), 3.290(d), 3.690(d)); 17 Fed. Reg. 4711 (1952) (47 CFR § 3.590(d)); 19 Fed. Reg. 5949 (1954); 23 Fed. Reg. 7817 (1958); 28 Fed. Reg. 13593 (1963) (47 CFR § 73.120(d)); 43 Fed. Reg. 32796 (1978) (47 CFR § 73.1940(d)); 67 Fed. Reg. 210 (1992) (47 CFR §73.1943). See generally Brief in Opposition to Motion of Appellee National Association of Broadcasters for Summary *235Affirmance in No. 02-1676, pp. 9-10 (hereinafter Brief Opposing Summary Affirmance). In its current form the FCC regulation requires broadcast licensees to “keep” a publicly available file “of all requests for broadcast time made by or on behalf of a candidate for public office,” along with a notation showing whether the request was granted, and (if granted) a history that includes “classes of time,” “rates charged,” and when the “spots actually aired.” 47 CFR § 73.1943(a) (2002); § 76.1701(a) (same for cable systems). These regulation-imposed requirements mirror the statutory requirements imposed by BCRA § 504 with minor differences which no one here challenges. Compare 47 CFR §73.1943 with 47 U. S. C. § 315(e)(2) (Supp. II) (see Appendix, infra). The McConnell plaintiffs argue that these requirements . are “intolerably]” “burdensome and invasive.” Brief for Appellant/Cross-Appellee Sen. Mitch McConnell et al. in No. 02-1674 et al., p. 74 (hereinafter Brief for McConnell Plaintiffs). But we do not see how that could be so. The FCC has consistently estimated that its “candidate request” regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year.. See 66 Fed. Reg. 37468 (2001); id., at 18090; 63 Fed. Reg. 26593 (1998); id., at 10379; 57 Fed. Reg. 18492 (1992); see also 66 Fed. Reg. 29963 (2001) (total annual burden of one hour per cable system). That burden means annual costs of a few hundred dollars at most, a microscopic amount compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to advertise. Perhaps for this reason, broadcasters in the past did not strongly oppose the regulation or its extension. Cf., e. g., 17 Fed. Reg. 4711 (1952) (“No comments adverse to the adoption of the proposed rule have been received”); 43 Fed. Reg. 32794 (1978) (no adverse comments). Indeed in 1992, “CBS” itself “suggested] ” that the candidate file “include a record of all requests for time.” 57 Fed. Reg. 206 (1992); cf. 63 Fed. Reg. *23649493 (1998) (FCC “not persuaded that the current retention period [two years] is overly burdensome to licensees”). In any event, as the FCC wrote in an analogous context, broadcaster recordkeeping requirements “ ‘simply run with the territory.’” 40 Fed. Reg. 18398 (1975). Broadcasters must keep and make publicly available numerous records. See 47 CFR §73.3526 (2002) (general description of select recordkeeping requirements for commercial stations); see also §§73.1202, 73.3526(e)(9)(i) (retention of all “written comments and suggestions [including letters and e-mail] received from the public regarding operation of the station” for three years); § 73.1212(e) (sponsorship identification records, including the identification of a sponsoring entity’s executive officers and board-level members when sponsoring “political matter or matter involving the discussion of a controversial issue of public importance”); §73.1840 (retention of station logs); § 73.1942 (candidate broadcast records); § 73.2080 (equal employment opportunities records); §§ 73.3526(e)(ll)(i), (e)(12) (“list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period,” including “brief narrative describing [the issues, and] time, date, duration, and title”); §§73.3526(e)(ll)(ii), (iii) (reports of children’s program, and retention of records sufficient to substantiate “compliance with the commercial limits on children’s programming”); § 73.3613(a) (network affiliation contracts); §§ 73.3613(b), 73.3615, 73.3526(e)(5) (ownership-related reports); § 73.3613(c) (“[m]anagement consultant agreements”); § 73.3613(d) (“[t]ime brokerage agreements”). Compared to these longstanding recordkeeping requirements, an additional six to seven hours is a small drop in a very large bucket. The McConnell plaintiffs also claim that the “candidate requests” requirement fails significantly to further any important governmental interest. Brief for McConnell Plaintiffs 74. But, again, we cannot agree. The FCC has pointed out *237that “[t]hese records are necessary to permit political candidates and others to verify that licensees have complied with their obligations relating to use of their facilities by candidates for political office” pursuant to the “equal time” provision of 47 U. S. C. § 315(a). 63 Fed. Reg. 49493 (1998). They also help the FCC determine whether broadcasters have violated their obligation to sell candidates time at the “lowest unit charge.” 47 U. S. C. § 315(b). As reinforced by BCRA, the “candidate request” requirements will help the FCC, the Federal Election Commission, and “the public to evaluate whether broadcasters are processing [candidate] requests in an evenhanded fashion,” Brief Opposing Summary Affirmance 10, thereby helping to assure broadcasting fairness. 47 U. S. C. § 315(a); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969). They will help make the public aware of how much money candidates may be prepared to spend on broadcast messages. 2 U. S. C. § 434 (2000 ed. and Supp. II); see ante, at 194-199 (joint opinion of STEVENS and O’Connor, JJ.) (hereinafter joint opinion). And they will provide an independently compiled set of data for purposes of verifying candidates’ compliance with the disclosure requirements and source limitations of BCRA and the Federal Election Campaign Act of 1971. 2 U. S. C. §434; cf. Adventure Communications, Inc. v. Kentucky Registry of Election Finance, 191 F. 3d 429, 433 (CA4 1999) (candidate compliance verification); 63 Fed. Reg. 49493 (1998) (FCC finding record retention provision provides public with “necessary and adequate access”). We note, too, that the FCC’s regulatory authority is broad. Red Lion, supra, at 380 (“broad” mandate to assure broadcasters operate in public interest); National Broadcasting Co. v. United States, 319 U. S. 190, 219 (1943) (same). And we have previously found broad governmental authority for agency information demands from regulated entities. Compare United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U. S. *238186, 209 (1946); Donovan v. Lone Steer, Inc., 464 U. S. 408, 414-415 (1984). The Chief Justice suggests that the Government has not made these particular claims. But it has — though succinctly — for it has cross-referenced the relevant regulatory rules. Compare post, at 359-361 (Rehnquist, C. J., dissenting), with Brief Opposing Summary Affirmance; Brief for McConnell Plaintiffs 73-74; Brief for FEC et al. in No. 02-1674 et al., pp. 132-133. And succinctness through cross-reference was necessary given our procedural requirement that the Government set forth in a 140-page brief all its arguments concerning each of the 20 BCRA provisions here under contest. 251 F. Supp. 2d, at 186-188. In sum, given the Government’s reference to the 65-year-old FCC regulation and the related considerations we have mentioned, we cannot accept the argument that the constitutionality of the “candidate request” provision lacks eviden-tiary support. The challengers have made no attempt to explain away the FCC’s own contrary conclusions and the mass of evidence in related FCC records and proceedings. E. g., 57 Fed. Reg. 189 (1992); cf. supra, at 235-236; ante, at 222-223 (joint opinion) (upholding BCRA’s coordination provision based, in part, on prior experience under similar provision). Because we cannot, on the present record, find the longstanding FCC regulation unconstitutional, we likewise cannot strike down the “candidate request” provision in BCRA § 504; for the latter simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. M H-Í BCRA §504’s “election message request requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast a “message” about “a legally qualified candidate” or “any election to Federal office.” 47 U. S. C. §§315(e)(l)(B)(i), (ii) (Supp. II). Although these requirements are somewhat broader than the *239“candidate request” requirement, they serve much the same purposes. A candidate’s supporters or opponents account for many of the requests to broadcast “messagefs]” about a “candidate.” Requests to broadcast messages about an “election” may include messages that favor one candidate or another, along with other messages that may be more neutral. Given the nature of many of the messages, recordkeeping can help both the regulatory agencies and the public evaluate broadcasting fairness, and determine the amount of money that individuals or groups, supporters or opponents, intend to spend to help elect a particular candidate. Cf. ante, at 206-207 (joint opinion) (upholding stringent restrictions on all election-time advertising that refers to a candidate because such advertising will often convey message of support or opposition). Insofar as the request is to broadcast neutral material about a candidate or election, the disclosure can help the FCC carry out other statutory functions, for example, determining whether a broadcasting station is fulfilling its licensing obligation to broadcast material important to the community and the public. 47 U. S. C. § 315(a) (“obligation ... to afford reasonable opportunity for the discussion of conflicting views on issues of public importance”); 47 CFR §73.1910 (2002); §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community). For reasons previously discussed, supra, at 235-236, and on the basis of the material presented, we cannot say that these requirements will impose disproportionate administrative burdens. They ask the broadcaster to keep information about the disposition of the request, and information identifying the individual or company requesting the broadcast time (name, address, contact information, or, if the requester is not an individual, the names of company officials). 47 U. S. C. § 315(e)(2) (Supp. II). Insofar as the “request” is made by a candidate’s “supporters,” the “candidate request” regulation apparently already requires broadcasters *240to keep such records. 43 Fed. Reg. 32794 (1978). Regardless, the information should prove readily available, for the individual requesting a broadcast must provide it to the broadcaster should the broadcaster accept the request. 47 CFR § 73.1212(e) (2002). And as we have previously pointed out, the recordkeeping requirements do not reach significantly beyond other FCC recordkeeping rules, for example, those requiring broadcasting licensees to keep material showing compliance with their license-related promises to broadcast material on issues of public importance. See, e. g., §§73.3526(e)(ll)(i), (e)(12) (recordkeeping requirements for issues important to the community); supra, at 236 (collecting regulations); Office of Communication of United Church of Christ v. FCC, 707 F. 2d 1413, 1421-1422 (CADC 1983) (describing FCC rules, in force during 1960-1981, that required nonentertainment programming in 14 specific areas and mandated publicly available records detailing date, time, source, and description to substantiate compliance). If, as we have held, the “candidate request” requirements are constitutional, supra, at 238, the “election message” requirements, which serve, similar governmental interests and impose only a small incremental burden, must be constitutional as well. <! The “issue request” requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast “message[s]” about “a national legislative issue of public importance” or “any political matter of national importance.” 47 U. S. C. §§ 315(e)(1)(B), (e)(l)(B)(iii) (Supp. II). These recordkeeping requirements seem likely to help the FCC determine whether broadcasters are carrying out their “obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance,” 47 CFR §73.1910 (2002), and whether broadcasters are too heavily favoring entertainment, and discriminating *241against broadcasts devoted to public affairs, see ibid.; 47 U. S. C. § 315(a); Red Lion, 395 U. S., at 380. The McConnell plaintiffs claim that the statutory language — "political matter of national importance” or “national legislative issue of public importance” — is unconstitutionally vague or overbroad. Brief for McConnell Plaintiffs 74-75. But that language is no more general than the language that Congress has used to impose other obligations upon broadcasters. Compare 47 U. S. C. § 315(e)(1)(B) (Supp. II) (“political matter of national importance”) and § 315(e)(l)(B)(iii) (“national legislative issue of public importance”) (both added by BCRA §504), with 47 U. S. C. § 315(a) (“obligation ... to operate in the public interest” and to afford reasonable opportunity for discussion of “issues of public importance”); § 317(a)(2) (FCC disclosure requirements relating to any “political program” or “discussion of any controversial issue”); cf. 47 CFR § 73.1212(e) (2002) (“political matter or ... a controversial issue of public importance”) and 9 Fed. Reg. 14734 (1944) (“public controversial issues”); ante, at 222-223 (joint opinion) (noting that the experience under longstanding regulations undermines claims of chilling effect). And that language is also roughly comparable to other language in BCRA that we uphold today. E.g., ante, at 169-170, and n. 64 (joint opinion) (upholding 2 U. S. C. §431(20)(A)(iii) (Supp. II) (“public communication that refers to a clearly identified candidate for Federal office . . . and that promotes or. supports a candidate for that office, or attacks or opposes a candidate for that office”)); ante, at 222-223 (upholding 2 U. S. C. §441a(a)(7)(B)(ii) (Supp. II) (counting as coordinated disbursements that are made “in cooperation, consultation, or concert with, or at the request or suggestion of [a political party]”) against challenge and noting that an “agreement” is not necessary for precision). Whether these requirements impose disproportionate administrative burdens is more difficult to say. On the one *242hand, the burdens are likely less heavy than many that other PCC regulations have imposed, for example, the burden of keeping and disclosing “[a]ll written comments and suggestions” received from the public, including every e-mail. 47 CFR §§73.1202, 73.3526(e)(9) (2002); see also supra, at 236. On the other hand, the burdens are likely heavier than those imposed by BCRA § 504’s other provisions, previously discussed. The regulatory burden, in practice, will depend on how the FCC interprets and applies this provision. The FCC has adequate legal authority to write regulations that may limit, and make more specific, the provision’s potential linguistic reach. 47 U. S. C. § 315(d). It has often ameliorated regulatory burdens by interpretation in the past, and there is no reason to believe it will not do so here. See 14 FCC Red. 4653, 4665, ¶ 25 (1999) (relaxing the recordkeeping requirements in respect to cable systems that serve fewer than 5,000 subscribers); 14 FCC Red. 11113, 11121-11122, ¶¶ 20-22 (1999) (requiring candidates to inspect the political file at a station rather than requiring licensees to send out photocopies of the files to candidates upon telephone request). The parties remain free to challenge the provisions, as interpreted by the FCC in regulations, or as otherwise applied. Any such challenge will likely provide greater information about the provisions’ justifications and administrative burdens. Without that additional information, we cannot now say that the burdens are so great, or the justifications so minimal, as to warrant finding the provisions unconstitutional on their face. The McConnell plaintiffs and The Chief Justice make one final claim. They say that the “issue request” requirement will force them to disclose information that will reveal their political strategies to opponents, perhaps prior to a broadcast. See post, at 362 (dissenting opinion). We are willing to assume that the Constitution includes some form of protection against premature disclosure of campaign strat*243egy — though, given the First Amendment interest in free and open discussion of campaign issues, we make this assumption purely for argument’s sake. Nonetheless, even on that assumption we do not see how BCRA § 504 can be unconstitutional on its face. For one thing, the statute requires disclosure of names, addresses, and the fact of a request; it does not require disclosure of substantive campaign content. See 47 U. S. C. § 315(e)(2) (Supp. II). For another, the statutory words “as soon as possible,” § 315(e)(3), would seem to permit FCC disclosure-timing rules that would avoid any premature disclosure that the Constitution itself would forbid. Further, the plaintiffs do not point to — and our own research cannot find — any specific indication of such a “strategy-disclosure” problem arising during the past 65 years in respect to the existing FCC “candidate request” requirement, where the strategic problem might be expected to be more acute. Finally, we today reject an analogous facial attack — premised on speculations of “advance disclosure” — on a similar BCRA provision. See ante, at 200-201 (joint opinion). Thus, the “strategy disclosure” argument does not show that BCRA § 504 is unconstitutional on its face, but the plaintiffs remain free to raise this argument when § 504 is applied. y The Chief Justice makes two important arguments in response to those we have set forth. First, he says that we “approac[h] § 504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected.” Post, at 359 (dissenting opinion). The Chief Justice is certainly correct in emphasizing the importance of the speech interests of candidates and other potential speakers, but we have not ignored their First Amendment “perspective.” *244To the contrary, we have discussed the speakers’ interests together with the broadcasters’ interests because the two sets of interests substantially overlap. For example, the speakers’ vagueness argument is no different from the broadcasters’, and it fails for the same reasons, e. g., the fact that BCRA § 504’s language is just as definite and precise as other language that we today uphold. See supra, at 241. We have separately discussed the one and only speech-related claim advanced on behalf of candidates (or other speakers) that differs from the claims set forth by the broadcasters. See supra, at 242-243. This is the claim that the statute’s disclosure requirements will require candidates to reveal their political strategies to opponents. We just said, and we now repeat, that BCRA §504 can be applied, in a significant number of cases, without requiring any such political-strategy disclosure — either because disclosure in many cases will not create any such risk or because the FCC may promulgate rules requiring disclosure only after any such risk disappears, or both. Moreover, candidates (or other speakers) whom §504 affects adversely in this way (or in other ways) remain free to challenge the lawfulness of FCC implementing regulations and to challenge the constitutionality of § 504 as applied. To find that the speech-related interests of candidates and others may be vindicated in an as-applied challenge is not to “ignor[e]” those interests. Second, The Chief Justice says that “the Government, in its brief, proffers no interest whatever to support § 504 as a whole,” adding that the existence of “pre-existing unchallenged agency regulations imposing similar disclosure requirements” cannot “compel the conclusion that § 504 is constitutional,” nor somehow “relieve the Government of its burden of advancing a constitutionally sufficient justification for § 504.” Post, at 359-360, 361 (dissenting opinion). Again The Chief Justice is correct in saying that the mere existence of similar FCC regulation-imposed require*245ments — even if unchallenged for at least 65 years — cannot prove that those requirements are constitutional. But the existence of those regulations means that we must read beyond the briefs in these cases before holding those requirements unconstitutional. Before evaluating the relevant burdens and justifications, we must at least become acquainted with the FCC’s own view of the matter. We must follow the Government’s regulation-related references to the relevant regulatory records, related FCC regulatory conclusions, and the FCC’s enforcement experience. We must take into account, for example, the likelihood that the reason there is “nothing in the record that indicates licensees have treated purchasers unfairly,” post, at 361 (Rehnquist, C. J., dissenting), is that for many decades similar FCC regulations have made that unfair treatment unlawful. And, if we are to avoid disrupting related agency law, we must evaluate what we find in agency records and related experience before holding this similar statutory provision unconstitutional on its face. Even a superficial examination of those relevant agency materials reveals strong supporting justifications, and a lack of significant administrative burdens. And any additional burden that the statute, viewed facially, imposes upon interests protected by the First Amendment seems slight compared to the strong enforcement-related interests that it serves. Given the FCC regulations and their history, the statutory requirements must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny. That is why the regulations are relevant. That is why the brevity of the Government’s discussion here cannot be determinative. That is why we fear that The Chief Justice’s contrary view would lead us into an unfortunate — and at present unjustified — revolution in communications law. And that is why we disagree with his dissent. *246The portion of the judgment of the District Court invalidating BCR A § 504 is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT Title 47 U. S. C. § 315(e) (Supp. II), as amended by BCRA § 504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized *247committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.” Title 47 CFR §73.1943 (2002) provides: “Political file. “(a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The ‘disposition’ includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased, “(b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file. “(c) All records required by this paragraph shall be placed in the political file as soon as possible and shall be retained for a period of two years. As soon as possible means immediately absent unusual circumstances.” Justice Souter, Justice Ginsburg, and Justice Breyer join this opinion in its entirety. The parties to the litigation are described in the findings of the District Court. 251 F. Supp. 2d 176, 221-226 (DC 2003) (per curiam). For the sake of clarity, we refer to the parties who challenged the law in the District Court as the “plaintiffs,” referring to specific plaintiffs by name where necessary. We refer to the parties who intervened in defense of the law as the “intervenor-defendants.” The Hatch Act also limited both the amount political committees could expend and the amount they could receive in contributions. Act of July *11719, 1940, ch. 640, 54 Stat. 767. Senator Bankhead, in offering the amendment from the Senate floor, said: ‘“We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue.’” United States v. Automobile Workers, 352 U. S. 567, 577-578 (1957) (quoting 86 Cong. Rec. 2720 (1940)). As a general rule, FECA permits corporations and unions to solicit contributions to their PACs from their shareholders or members, but not from outsiders. 2 U. S. C. §§441b(b)(4)(A), (C); see Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 198-199, and n. 1 (1982). The court held that one disclosure provision was unconstitutionally vague and overbroad. Buckley v. Valeo, 519 F. 2d 821, 832 (CADC 1975) (en banc) (per curiam) (invalidating 2 U. S. C. §437a (1970 ed., Supp. V)). No appeal was taken from that holding. Buckley v. Valeo, 424 U. S. 1, 10, n. 7 (1976) fper curiam). The Court of Appeals found: “Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor’s particular concerns.. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process.” Buckley, 519 F. 2d, at 838 (footnotes omitted). The court also noted: “Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors. See S. Rep. No. 93-689, 93d Cong., 2d Sess. 4-5; Findings I, ¶¶ 108, 110, 118, 170.” Id., at 838, n. 32. Citing further evidence of corruption, the court explained: “The disclosures of illegal corporate contributions in 1972 included the testimony of executives that they were motivated by the perception that this was necessary as a ‘calling card, something that would get us in the door and make our point of view heard,’ Hearings before the Senate Select Comm, on Presidential Campaign Activities, 93d Cong., 1st Sess. 5442 (1973) (Ashland Oil Co. — Orin Atkins, Chairman) or ‘in response to pressure for fear of a competitive disadvantage that might result,’ id. at 5495, 5514 (American Airlines — George Spater, former chairman); see Findings I, ¶ 105. The record before Congress was replete with specific examples *120of improper attempts to obtain governmental favor in return for large campaign contributions. See Findings I, ¶¶ 159-64.” Id., at 839, n. 37. The court cited the intricate scheme of the American Milk Producers, Inc., as an example of the lengths to which contributors went to avoid their duty to disclose: “Since the milk producers, on legal advice, worked on a $2500 limit per committee, they evolved a procedure, after consultation in November 1970 with Nixon fund raisers, to break down [their $2 million donation] into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the President’s reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure.” Id., at 839, n. 36. The milk producers contributed large sums to the Nixon campaign “in order to gain a meeting with White House officials on price supports.” Ibid. In 1977 the FEC promulgated a rule allowing parties to allocate their administrative expenses “on a reasonable basis” between accounts containing funds raised in compliance with FECA and accounts containing nonfederal funds, including corporate and union donations. 11 CFR § 102.6(a)(2). In advisory opinions issued in 1978 and 1979, the FEC allowed parties similarly to allocate the costs of voter registration and get-out-the-vote drives between federal and nonfederal accounts. FEC Advisory Op. 1978-10; FEC Advisory Op. 1979-17. See 251 F. Supp. 2d, at 195-197 (per curiam). In 1990 the FEC clarified the phrase “on a reasonable basis” by promulgating fixed allocation rates. 11 CFR § 106.5 (1991). The regulations required the Republican National Committee (RNC) and Democratic National Committee (DNC) to pay for at least 60% of mixed-purpose activities (65% in Presidential election years) with funds from their federal accounts. § 106.5(b)(2). By contrast, the regulations required state and local committees to allocate similar expenditures based on the ratio of federal to nonfederal offices on the State’s ballot, § 106.5(d)(1), which in practice meant that they could expend a substantially greater proportion of soft money than national parties to fund mixed-purpose activities affecting both federal and state elections. See 251 F. Supp. 2d, at 198-199 (per curiam). 1 Defs. Exhs., Tab 1, Tbl. 2 (report of Thomas E. Mann, Chair & Sr. Fellow, Brookings Institution (hereinafter Mann Expert Report)); 251 F. Supp. 2d, at 197-201 (per curiam). Mann Expert Report 26; 251 F. Supp. 2d, at 441 (Kollar-Kotelly, J.). Id., at 494 (Kollar-Kotelly, J.). Mann Expert Report 24. In the 2000 election cycle, 35 of the 50 largest soft-money donors gave to both parties; 28 of the 50 gave more than $100,000 to both parties. Mann Expert Report Tbl. 6; see also 251 F. Supp. 2d, at 509 (Kollar-Kotelly, J.); id., at 785, n. 77 (Leon, J.). A former chief executive officer of a large corporation explained: “Business and labor leaders believe, based on their experience, that disappointed Members, and their party colleagues, may shun or disfavor them because they have not contributed. Equally, these leaders fear that if they refuse to contribute (enough), competing interests who do contribute generously will have an advantage in gaining access to and influencing key Congressional leaders on matters of importance to the company or union.” App. 283, ¶ 9 (declaration of Gerald Greenwald, United Airlines (hereinafter Greenwald Decl.)). Amici Curiae Committee for Economic Development and various business leaders attest that corporate soft-money contributions are “coerced and, at bottom, wholly commercial" in nature, and that “[b]tíSÍttéSS léüdérs increasingly wish to be freed from the grip of a system in which they fear the adverse consequences of refusing to fill the coffers of the major parties.” Brief for Committee for Economic Development et al. as Amici Curiae 28. See 251 F. Supp. 2d, at 480 (Kollar-Kotelly, J.); id,., at 842 (Leon, J.). See.id., at 479-480 (Kollar-Kotelly, J.); id., at 842-843 (Leon, J.). One former party official explained to the District Court: ‘“Once you’ve helped a federal candidate by contributing hard money to his or her campaign, you are sometimes asked to do more for the candidate by making donations of hard and/or soft money to the national party committees, the relevant state party (assuming it can accept corporate contri*126butions), or an outside group that is planning on doing an independent expenditure or issue advertisement to help the candidate’s campaign.’” Id., at 479 (Kollar-Kotelly, J.). Id., at 532-637 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). As the former chair of one major advocacy organization’s PAC put it: “Tt is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.’” Id., at 536-537 (Kollar-Kotelly, J.) (quoting Tanya K. Metaksa, Opening Remarks *127at the American Assn, of Political Consultants Fifth General Session on. “Issue Advocacy,” Jan. 17, 1997, p. 2); 251 F. Supp. 2d, at 878-879 (Leon, J.) (same). Id,., at 304 (Henderson, J., concurring in judgment in part and dissenting in part); id, at 534 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). It is undisputed that very few ads — whether run by candidates, parties, or interest groups — used words of express advocacy. Id., at 303 (Henderson, J.); id, at 529 (Kollar-Kotelly, J.); id, at 874 (Leon, J.). In the 1998 election cycle, just 4% of candidate advertisements used magic words; in 2000, that number was a mere 5%. App. 1334 (report of Jonathan S. Krasno, Yale University, & Frank J. Sorauf, University of Minnesota, pp. 53-54 (hereinafter Krasno & Sorauf Expert Report); see 1 Defs. Exhs., Tab 2, pp. 53-54). 251 F. Supp. 2d, at 564, and n. 96 (Kollar-Kotelly, J.) (citing report of Kenneth M. Goldstein, University of Wisconsin-Madison, App. A, Tbl. 16; see 3-R Defs. Exhs., Tab 7); Tr. of Oral Arg. 202-203; see also 251 F. Supp. 2d, at 305 (Henderson, J.). The spending on electioneering communications climbed dramatically during the last decade. In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of about 100 ads. In the next cycle (1997-1998), 77 organizations aired 423 ads at a total cost between $270 and $340 million. By the 2000 election, 130 groups spent over an estimated $500 million on more than 1,100 different ads. Two out of every three dollars spent on issue ads in the 2000 cycle were attributable to the two major parties and six major interest groups. Id., at 303-304 (Henderson, J.) (citing Annenberg Public Policy Center, Issue Advertising in the 1999-2000 Election Cycle 1-15 (2001) (hereinafter Annenberg Report); see *12838 Defs. Exhs., Tab 22); 251 F. Supp. 2d, at 527 (Kollar-Kotelly, J.) (same); id., at 879 (Leon, J.) (same). Id., at 540 (Kollar-Kotelly, J.) (citing internal AFL-CIO Memorandum from Brian Weeks to Mike Klein, Electronic Buy for Illinois Senator (Oct. 9, 1996), AFL-CIO 005244); 251 F. Supp. 2d, at 886 (Leon, J.) (same). The association was known as the Pharmaceutical Research and Manufacturers of America (PhRMA). Id., at 232 (per curiam). Id., at 232-233. Other examples of mysterious groups included .“Voters for Campaign Truth,” “Aretino Industries,” “Montanans for Common Sense Mining Laws,” “American Seniors, Inc.,” “American Family Voices,” App. 1355 (Krasno & Sorauf Expert Report 71-77), and the “Coalition to Make our Voices Heard,” 251F. Supp. 2d, at 538 (Kollar-Kotelly, J.). Some of the actors behind these groups frankly acknowledged that ‘“in some places it’s much more effective to run an ad by the “Coalition to Make Our Voices-Heard” than it is to say paid for by “the men and women of the AFL-CIO.’”” Ibid. (Kollar-Kotelly, J.) (quoting report of David B. Magleby, Brigham Young University 18-19 (hereinafter Magleby Expert Report), App. 1484-1485). 251 F. Supp. 2d, at 518-519 (Kollar-Kotelly, J.). Id., at 478-479 (Kollar-Kotelly, J.) (citing declaration of Robert Hiek-mott, Senior V. P., Smith-Free Group ¶ 8 (hereinafter Hickmott Decl.); see 6-R Defs. Exhs., Tab 19, ¶ 8). S. Rep. No. 105-167, vol. 4, p. 4611 (1998) (hereinafter 1998 Senate Report); 5 id., at 7515. 3 id., at 4535 (additional views of Sen. Collins). 1 id., at 41-42,195-200. The report included a memorandum written by the DNC finance chairman suggesting the use of White House coffees and “overnights” to give major donors “quality time” with the President, and noted that the guests accounted for $26.4 million in contributions. Id., at 194, 196. 2 id., at 2918-2914, 2921. Despite concerns about Tamraz’s background and a possible conflict with United States foreign policy interests, he was invited to six events attended by the President. Id., at 2920-2921. Similarly, the minority noted that in exchange for Michael Kojima’s contribution of $500,000 to the 1992 President’s Dinner, he and his wife had been placed at the head table with President and Mrs. Bush. Moreover, Kojima received several additional meetings with the President, other administration officials, and United States embassy officials. 4 id., at 5418, 5422, 5428. The former requires an initial contribution of $100,000, and $25,000 for each of the next three years; the latter requires annual contributions of $15,000. 5 id, at 7968. Id., at 7971. 1 id,., at 49; 3 id., at 3997-4006. Id., at 4466. Ibid. Id,., at 4468-4470, 4480-4481, 4491-4494. Id., at 4492. 6 id., at 9394. The national party committees of the two major political parties are: the RNC; the DNC; the National Republican Senatorial Committee (NRSC); the National Republican Congressional Committee (NRCC); the Democratic Senatorial Campaign Committee (DSCC); and the Democratic Congressional Campaign Committee (DCCC). 251 F. Supp. 2d, at 468 (Kollar-Kotelly, J.). Justice Kennedy accuses us of engaging in a sleight of hand by conflating “unseemly corporate speech” with the speech of political parties and candidates, and then adverting to the “corporate speech rationale as if it were the linchpin of the case.” Post, at 290-291 (opinion concurring in judgment in part and dissenting in part). This is incorrect. The principles set forth here and relied upon in assessing Title I are the same principles articulated in Buckley and its progeny that regulations of contributions to candidates, parties, and political committees are subject to less rigorous scrutiny than direct restraints on speech — including “unseemly corporate speech.” Since our decision in Buckley, we have consistently applied less rigorous scrutiny to contribution restrictions aimed at the prevention of corruption and the appearance of corruption. See, e. g., 424 U. S., at 23-36 (applying less rigorous scrutiny to FECA’s $1,000 limit on individual contributions to a candidate and FECA’s $5,000 limit on PAC contributions to a candidate); id., at 38 (applying less rigorous scrutiny to FECA’s $25,000 aggregate yearly limit on contributions to candidates, political party committees, and political committees); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182,195-196 (1981) (plurality opinion) (applying less rigorous scrutiny to FECA’s $5,000 limit on contributions to multi-candidate political committees); National Right to Work, 459 U. S., at 208-211 (applying less rigorous scrutiny to antisolicitation provision buttressing an otherwise valid contribution limit); Colorado II, 533 U. S. 431, 456 (2001) (applying less rigorous scrutiny to expenditures coordinated with a candidate); Federal Election Comm’n v. Beaumont, 539 U. S. 146,161-162 (2003) (applying less rigorous scrutiny to provisions intended to prevent circumvention of otherwise valid contribution limits). Indeed, Congress structured § 323(b) in such a way as to free individual, corporate, and union donations to state committees for nonfederal elections from federal source and amount restrictions. Justice Kennedy’s contention that less rigorous scrutiny applies only to regulations burdening political association, rather than political speech, misreads Buckley. In Buckley, we recognized that contribution limits burden both protected speech and association, though they generally have more significant impacts on the latter. 424 U. S., at 20-22. We nevertheless applied less rigorous scrutiny to FECA’s contribution limits because neither burden was sufficiently weighty to overcome Congress’ countervailing interest in protecting the integrity of the political process. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 388 (2000) (“While we did not [in Buckley] attempt to parse [the] distinctions between the speech and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on [the] freedom to speak. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a speech challenge as well, and we held the standard satisfied by the contribution limits under review” (citation omitted)). It is thus simply untrue in the campaign finance context that all “burdens on speech necessitate strict scrutiny review.” Post, at 312. Justice Kennedy is no doubt correct that the associational burdens imposed by a particular piece of campaign-finance regulation may at times be so severe as to warrant strict scrutiny. Post, at 311. In light of our interpretation of § 323(a), however, see infra, at 161, §323 does not present such a case. As Justice Kennedy himself acknowledges, even “significant interference” with “protected rights of association” are subject to less rigorous scrutiny. Beaumont, 539 U. S., at 162; see post, at 311. There is thus nothing inconsistent in our decision to account for the particular associational burdens imposed by § 323(a) when applying the appropriate level of scrutiny. The fact that the post-1990 explosion in soft-money spending on federal electioneering was accompanied by a series of efforts in Congress to clamp down on such uses of soft money (culminating, of course, in BCR A) *143underscores the fact that the FEC regulations permitted more than Congress, in enacting FECA, had ever intended. See J. Cantor, Congressional Research Service Report for Congress: Campaign Finance Legislation in the 101st Congress (1990) (9 bills seeking to limit the influence of soft money introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 102d Congress (1991) (10 such bills introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 103d Congress (1993) (16 bills); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 104th Congress (1996) (18 bills); see also 251 F. Supp. 2d, at 201-206 (per curiam) (discussing legislative efforts to curb soft money in 105th and subsequent Congresses). Justice Kennedy contends that the plurality’s observation in Colorado I that large soft-money donations to a political party pose little threat of corruption “establish[es] that” such contributions are not corrupting. Post, at 301 (citing Colorado I, 518 U. S. 604, 616, 617-618 (1996)). The cited dictum has no bearing on the present cases. Colorado I addressed an entirely different question — namely, whether Congress could permissi*146bly limit a party's independent expenditures — and did so on an entirely different set of facts. It also had before it an evidentiary record frozen in 1990 — well before the soft-money explosion of the 1990’s. See Federal Election Comm’n v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1451 (Colo. 1993). Other business leaders agreed. For example, the chairman of the board and CEO of a major toy company explained: “‘Many in the corporate world view large soft money donations as a cost of doing business .... I remain convinced that in some of the more publicized cases, federal officeholders actually appear to have sold themselves and the party cheaply. They could have gotten even more money, because of the potential importance of their decisions to the affected busi*148ness.’” 251 F. Supp. 2d, at 491 (Kollar-Kotelly, J.) (quoting declaration of Alan G. Hassenfeld, CEO, Hasbro, Inc., ¶ 16; see 6-R Defs. Exhs., Tab 17). Similarly, the chairman emeritus of a major airline opined: “ ‘Though a soft money cheek might be made out to a political party, labor and business leaders know that those checks open the doors to the offices of individual and important Members of Congress and the Administration . Labor and business leaders believe — based on experience and with good reason — that such access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties.’ ” 251 F. Supp. 2d, at 498 (Kollar-Kotelly, J.) (quoting Greenwald Deck ¶ 12, App. 283-284); 251 F. Supp. 2d, at 858-859 (Leon, J.) (same). Even more troubling is evidence in the record showing that national parties have actively exploited the belief that contributions purchase influence or protection to pressure donors into making contributions. As one CEO explained: “ ‘[I]f you’re giving a lot of soft money to one side, the other side knows. For many economically-oriented donors, there is a risk in giving to only one side, because the other side may read through FEC reports and have staff or a friendly lobbyist call and indicate that someone with interests before a certain committee has had their contributions to the other side noticed. They’ll get a message that basically asks: “Are you sure you want to be giving only to one side? Don’t you want to have friends on both sides of the aisle?” If your interests are subject to anger from the other side of the aisle, you need to fear that you may suffer a penalty if you don’t give.... [Djuring the 1990’s, it became more and more acceptable to call someone, saying you saw he gave to this person, so he should also *149give to you or the person’s opponent.’.” Id., at 510 (Kollar-Kotelly, J.) (quoting Randlett Decl. ¶ 12, App. 715); 251 F. Supp. 2d, at 868 (Leon, J.) (same). In addition to finding no support in our recent cases, see, e. g., Colorado II, 533 U. S., at 441 (defining corruption more broadly than quid pro quo arrangements); Shrink Missouri, 528 U. S., at 389 (same), JUSTICE Kennedy’s contention that Buckley limits Congress to regulating contributions to a candidate ignores Buckley itself. There, we upheld FECA’s $25,000 limit on aggregate yearly contributions to candidates, political committees, and party committees out of recognition that FECA’s $1,000 limit on candidate contributions would be meaningless if individuals could instead make “huge contributions to the candidate’s political party.” 424 U. S., at 38. Likewise, in California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981), we upheld FECA’s $5,000 limit on contributions to multicandidate political committees. It is no answer to say that such limits were justified as a means of preventing individuals from using parties and political committees as pass-throughs to circumvent FECA’s $1,000 limit on individual contributions to candidates. Given FECA’s definition of “contribution,” the $5,000 and $25,000 limits restricted not only the source and amount of funds available to parties and political committees to make candidate contributions, but also the source and amount of funds available to engage in express advocacy and numerous other non-coordinated expenditures. If indeed the First Amendment prohibited Congress from regulating contributions to fund the latter, the otherwise-easy-to-remedy exploitation of parties as pass-throughs (e. g., a strict limit *153on donations that could be used to fund candidate contributions) would have provided insufficient justification for such overbroad legislation. At another point, describing our “flawed reasoning,” Justice Kennedy seems to suggest that Congress’ interest in regulating the appear-ánce of corruption extends only to those contributions that actually “create. . .. corrupt donor favoritism among ... officeholders.” Post, at 299-300. This latter formulation would render Congress’ interest in stemming the appearance of corruption indistinguishable from its interest in preventing actual corruption. In support of this claim, the political party plaintiffs assert that, in 2001, the RNC spent $15.6 million of nonfederal funds (30% of the nonfed-eral amount raised that year) on purely state and local election activity, including contributions to state and local candidates, transfers to state parties, and direct spending. See Tr. of Oral Arg. 102-103 (statement of counsel Bobby R. Burchfield); 251 F. Supp. 2d, at 336-337 (Henderson, J.); id., at 464-465 (Kollar-Kotelly, J.); id., at 830 (Leon, J.). The close relationship of federal officeholders and candidates to their parties answers not only The Chief Justice’s concerns about § 323(a), but also his fear that our analysis of § 323’s remaining provisions bespeaks no limiting principle. Post, at 355-356 (dissenting opinion). As set forth in our discussion of those provisions, the record demonstrates close ties between federal officeholders and the state and local committees of their parties. That close relationship makes state and local parties effective conduits for donors desiring to corrupt federal candidates and officeholders. Thus, in upholding §§ 323(b), (d), and (f), we rely not only on the fact that they regulate contributions used to fund activities influencing federal elections, but also that they regulate contributions to, or at the behest of, entities uniquely positioned to serve as conduits for corruption. We agree with The Chief Justice that Congress could not regulate financial contributions to political talk show hosts or newspaper editors on the sole *157basis that their activities conferred a benefit on the candidate. Post, at 355 (dissenting opinion). Plaintiffs claim that the option of soliciting hard money for state and local candidates is an illusory one, since several States prohibit state and local candidates from establishing multiple campaign accounts, which would preclude them from establishing separate accounts for federal funds. See Cal. Fair Pol. Praets. Comm’n Advisory Op. A-91-448 (Dec. 16, 1991), 1991 WL 772902; Colo. Const., Art. XXVIII, §2(3); Iowa Code §56.5A (2003); and Ohio Rev. Code Ann. §3517.10(J) (Anderson Supp. 2002). Plaintiffs maintain that § 323(a) combines with these state laws to make it impossible for state and local candidates to receive hard-money donations. But the challenge we are considering is a facial one, and on its face § 323(a) permits solicitations. The fact that a handful of States might interfere with the mechanism Congress has chosen for such solicitations is an argument that may be addressed in an as-applied challenge. Even opponents of campaign finance reform acknowledged that “a prohibition of soft money donations to national party committees alone would be wholly ineffective.” The Constitution and Campaign Reform: Hearings on S. 522 before the Senate Committee on Rules and Administration, 106th Cong., 2d Sess., 301 (2000) (statement of Bobby R. Burchfield, Partner, Covington & Burling). Generic campaign activity promotes a political party rather than a specific candidate. 2 U. S. C. § 431(21) (Supp. II). A public communication is “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” _§ 431(22). So long as the communication does not constitute voter registration, voter identification, GOTV, or generic campaign activity. § 431(20)(B)(i). Unless the contribution is earmarked for federal election activity. § 431(20)(B)(ii). The statute gives the FEC responsibility for setting the allocation ratio. § 441i(b)(2)(A); see also 11 CFR § 300.33(b) (2003) (defining allocation ratios). One former Senator noted: “ ‘The fact is that much of what state and local parties do helps to elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all. The same enormous incentives to raise the money will exist; the same large contributions by corporations, unions, and wealthy individuals will be made; the federal candidates who benefit from state party use of these funds will know exactly whom their benefactors are; the same degree of beholdenness and obligation will arise; the same distortions on the legislative process will occur; and the same public cynicism will erode the foundations of our democracy — except it will all be worse in the public’s mind because a perceived reform was undercut once again by a loophole that allows big money into the system.’” 251 F. Supp. 2d, at 467 (Kollar-Kotelly, J.) (quoting Rudman Deck ¶ 19, App. 746). E.g., 251 F. Supp. 2d, at 479 (Kollar-Kotelly, J.) (“ ‘It is .. . not uncommon for the RNC to put interested donors in touch with various state parties. This often occurs when a donor has reached his or her federal dollar limits to the RNC, but wishes to make additional contributions to the state party’” (quoting declaration of Thomas Josefiak, RNC Chief Counsel ¶ 68, App. 308)); see also Colorado II, 533 U. S., at 458 (quoting Congressman Wayne Allard’s Aug. 27, 1996, fundraising letter informing the recipient that “ ‘you are at the limit of what you can directly contribute *165to my campaign,’ ” but “ “you can further help my campaign by assisting the Colorado Republican Party’ ”); 251 .F. Supp. 2d, at 454 (Kollar-Kotelly, J.) (“ ‘Both political parties have found spending soft money with its accompanying hard money match through their state parties to work smoothly, for the most part, and state officials readily acknowledge they are simply “pass throughs” to the vendors providing the broadcast ads or direct mail’” (quoting Magleby Expert Report 37, App. 1510-1511)). The 1998 Senate Report found that, in exchange for a substantial donation to state Democratic committees and candidates, the DNC arranged meetings for the donor with the President and other federal officials. 1 1998 Senate Report 43-44; 2 id., at 2907-2931; 5 id., at 7519. That same Report also detailed how Native American tribes that operated casinos made sizable soft-money contributions to state Democratic committees in apparent exchange for access and influence. 1 id., at 44-46; 2 id., at 3167-3194; see also McCain Deck, Exh. I (Weisskopf, The Busy Back-Door Men, Time, Mar. 31,1997, p. 40). Since voter identification is a necessary precondition of any GOTV program, the findings regarding GOTV funding obviously apply with equal force to the funding of voter identification efforts. With respect to GOTV, voter identification, and other generic campaign activity, the FEC has interpreted §323(b) to apply only to those activities conducted after the earliest filing deadline for access to the federal election ballot or, in States that do not conduct primaries, after January 1 of even-numbered years; 11 CFR § 100.24(a)(1) (2002). Any activities conducted outside of those periods are completely exempt from regulation under § 323(b). Of course, this facial challenge does not present the question of the FEC regulations’ constitutionality. But the fact that the statute provides this basis for the FEC reasonably to narrow §301(20)(A)(ii) further calls into question plaintiffs’ claims of facial over-breadth. See Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). We likewise reject the argument that §301(20)(A)(iii) is unconstitutionally vague. The words “promote,” “oppose,” “attack,” and “support” clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision. These words “provide explicit standards for those who apply them” and “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). This is particularly the case here, since actions taken by political parties are presumed to be in connection with election campaigns. See Buckley, 424 U. S., at 79 (noting that a general requirement that political committees disclose their expenditures raised no vagueness problems because the term “political committee” “need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate” and thus a political committee’s expenditures “are, by definition, campaign related”). Furthermore, should plaintiffs feel that they need further guidance, they are able to seek advisory opinions for clarification, see 2 U. S. C. § 437f(a)(l), and thereby “remove any doubt there may be as to the meaning of the law,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 580 (1973). Any doubts that donors would engage in such a seemingly complex scheme are put to rest by the record evidence in Buckley itself. See n. 6, supra (setting forth the Court of Appeals’ findings regarding the efforts of milk producers to obtain a meeting with White House officials). Section 501(c) organizations are groups generally exempted from taxation under the Internal Revenue Code. 26 U. S. C. § 501(a). These include § 501(c)(3) charitable and educational organizations, as well as § 501(c)(4) social welfare groups. Section 527 “political organizations” are, unlike § 501(c) groups, organized for the express purpose of engaging in partisan political activity. They include any “party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures” for the purpose of “influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office.” 26 U. S. C. § 527(e). The record shows that many of the targeted tax-exempt organizations engage in sophisticated and effective electioneering activities for the purpose of influencing federal elections, including waging broadcast campaigns promoting or attacking particular candidates and conducting large-scale voter registration and GQTV drives. For instance, during the final weeks of the 2000 Presidential campaign, the NAACP’s National Voter Fund registered more than 200,000 people, promoted a GOTV hotline, ran three newspaper print ads, and made several direct mailings. 251 F. Supp. 2d, at 348-349 (Henderson, J.). The NAACP reports that the program turned out one million additional African-American voters and increased turnout over 1996 among targeted groups by 22% in New York, 50% in Florida, and 140% in Missouri. Ibid. The effort, which cost $10 million, was funded primarily by a $7 million contribution from an anonymous donor. Id., at 349 (citing cross-examination of Donald P. Green, Yale University 15-20, Exh. 3; see I Defs. Refiling Trs. on Pub. Record); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same); id., at 851 (Leon, J.) (same); see also id., at 349 (Henderson, J.) (stating that in 2000 the National Abortion and Reproductive Rights Action League (NARAL) spent $7.5 million and mobilized 2.1 million pro-choice voters (citing declaration of Mary Jane Gallagher, Exec. V. P., NARAL 8, App. 271-272, ¶ 24)); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same). Notably, the FEC has interpreted § 323(d)(2) to permit state, district, and local party committees to solicit donations to § 527 organizations that are state-registered PACs, that support only state or local candidates, and that do not make expenditures or disbursements in connection with federal elections. 11 CFR § 300.37(a)(3)(iv) (2003). The agency determined that this interpretation of “political committee” — at léast with respect to state, district, and local committees — was consistent with BCRA’s fundamental purpose of prohibiting soft money from being used in connection with federal elections. 67 Fed. Reg. 49106 (2002). Section 323(e)(1)(B) tightly constrains the ability of federal candidates and officeholders to solicit or spend nonfederal money in connection with state or local elections. Contributions cannot exceed FECA’s analogous hard-money contribution limits or come from prohibited sources. In effect, § 323(e)(1)(B) doubles the limits on what individuals can contribute to or at the behest of federal candidates and officeholders, while restricting the use of the additional funds to activities not related to federal elections. If the federal candidate or officeholder is also a candidate for state or local office, he or she may solicit, receive, and spend an unlimited amount of nonfederal money in connection with that election, subject only to state regulation and the requirement that such solicitation or expenditures refer only to the relevant state or local office. 2 U. S. C. § 441i(e)(2). See 148 Cong. Rec. S2143 (Mar. 20, 2002) (statement of Sen. Feingold) (Section 323(f) does not prohibit “spending non-Federal money to run advertisements that mention that [state or local candidates] have been endorsed by a Federal candidate or say that they identify with a position of a named Federal candidate, so long as those advertisements do not support, attack, promote or oppose the Federal candidate”). Justice Kennedy faults our “unwillingness” to confront that “Title I’s entirety . . . look[s] very much like an incumbency protection plan,” citing § 323(e), which provides officeholders and candidates with greater opportunities to solicit soft money than §§ 323(a) and (d) permit party officers. Post, at 306, 307. But, § 323(e) applies to both officeholders and, candidates and allows only minimally greater opportunities for solicitation out of regard for the fact that candidates and officeholders, unlike party officers, can never step out of their official roles. Supra, at 183; 2 U. S. C. § 441i(e). Any concern that Congress might opportunistically *186pass campaign-finance regulation for self-serving ends is taken into account by the applicable level of scrutiny. Congress must show concrete evidence that a particular type of financial transaction is corrupting or gives rise to the appearance of corruption and that the chosen means of regulation are closely drawn to address that real or apparent corruption. It has done so here. At bottom, Justice Kennedy has long disagreed with the basic holding of Buckley and its progeny that less rigorous scrutiny — which shows a measure of deference to Congress in an area where it enjoys particular expertise — applies to assess limits on campaign contributions. Colorado II, 533 U. S., at 465 (Thomas, J., dissenting) (joining Justice Thomas for the proposition that “Buckley should be overruled” (citation omitted)); Shrink Missouri, 528 U. S., at 405-410 (Kennedy, J., dissenting). BCRA also provides a “backup” definition of “electioneering communication,” which would become effective if the primary definition were “held to be constitutionally insufficient by final judicial decision to support the regulation provided herein.” 2 U. S. C. § 434(f)(3)(A)(ii). We uphold _ all applications of the .primary definition and accordingly have no occasion to discuss the backup definition. We then held that, so construed, the expenditure restriction did not advance a substantial government interest, because independent express advocacy did not pose a danger of real or apparent corruption, and the line between express advocacy and other electioneering activities was easily circumvented. Concluding that § 608(e)(l)’s heavy First Amendment burden was not justified, we invalidated the provision. Buckley, 424 U. S., at 45-48. Our adoption of a narrowing construction was consistent with our vagueness and overbreadth doctrines. See Broadrick, 413 U. S., at 613; Grayned, 408 U. S., at 108-114. The provision at issue in MCFL — 2 U. S. C. §441b (1982 ed.) — required corporations and unions to use separate segregated funds, rather than general treasury moneys, on expenditures made “'in connection with’ ” a federal election. 479 U. S., at 241. We noted that Buckley had ' limited the statutory term “ ‘expenditure’ ” to words of express advocacy “in order to avoid problems of overbreadth.” 479 U. S., at 248. We held that “a similar construction” must apply to the expenditure limitation before us in MCFL and that the reach of 2 U. S. C. §441b was therefore constrained to express advocacy. 479 U. S., at 249 (emphasis added). As one major-party political consultant testified, “ ‘it is rarely advisable to use such clumsy words as “vote for” or “vote against.’”” 251 F. Supp. 2d, at 305 (Henderson, J.) (quoting declaration of Douglas L. Bailey, founder, Bailey, Deardourff & Assoc. 1-2, App. 24, ¶ 3). He explained: “ ‘All advertising professionals understand that the most effective advertising leads the viewer to his or her own conclusion without forcing it down their throat.' ” 251 F. Supp. 2d, at 305 (Henderson, J.). Other political professionals and academics confirm that the use of magic words has become an anachronism. See id., at 531 (Kollar-Kotelly, J.) (citing declaration of Raymond D. Strother, Pres., Strother/Duffy/Strother ¶ 4, 9 Defs. Exhs., Tab 40); see Unsealed Pp. Vol., Tab 7; App. 1334-1335 (Krasno & Sorauf Expert Report); see also 251 F. Supp. 2d, at 305 (Henderson, J.); id., at 532 (Kollar-Kotelly, J.); id., at 875-876 (Leon,-J.). One striking example is an ad that a group called “Citizens for Reform” sponsored during the 1996 Montana congressional race, in which Bill Yellowtail was a candidate. The ad stated: “‘Who.is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s response? He only slapped her. But “her nose was not broken.” He talks law and order . . . but is himself a con*194victed felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments — then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.’” 5 1998 Senate Report 6305 (minority views). The notion that this advertisement was designed purely to discuss the issue of family values strains credulity. As discussed below, infra, at 203-209, BCRA §203 bars corporations and labor unions from funding electioneering communications with money from their general treasuries, instead requiring them to establish a “separate segregated fund” for such expenditures. 2 U. S. C. §441b(b)(2). Section 401 of BCRA provides: “If any provision of this Act or amendment made by this Act ... , or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.” 2 U. S. C. § 454 note. The disclosure requirements that BCRA §201 added to FECA §304 are actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures. For example, the previous version of §304 required groups making independent expenditures to identify donors who contributed more than $200. 2 U. S. C. § 434(c)(2)(C). The comparable requirement in the amendments applies only to donors of $1,000 or more. §§ 434(f)(2)(E), (F) (Supp. II). NAACP v. Alabama arose out of a judgment holding the NAACP in contempt for refusing to produce the names and addresses of its members and agents in Alabama. The NAACP “made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members ha[d] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostil*198ity.” 357 U. S., at 462. We thought it apparent that the compelled disclosure would “affect adversely” the NAACP and its members’ ability “to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.” Id., at 462-463. Under these circumstances, we concluded that Alabama’s interest in determining whether the NAACP was doing business in the State was plainly insufficient to justify its production order. Id., at 464-466. We stated: “The District Court properly applied the Buckley test to the facts of this case. The District Court found ‘substantial evidence of both governmental and private hostility toward and harassment of [Socialist Workers Party (SWP)] members and supporters.’ Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of. SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Court’s conclusion that ‘private hostility and harassment toward SWP members make it difficult for them to maintain employment.’ The District Court also found a past history of Government harassment of the SWP.” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 98-99 (1982) (paragraph break omitted). We cannot judge the likelihood that this will occur, as the record contains little if any description of the contractual provisions that commonly govern payments for electioneering communications. Nor does the record contain any evidence relating to Justice Kennedy’s speculation, post, at 321, that advance disclosure may disadvantage an advertiser. New FECA § 315(a)(7)(C) reads as follows: “Elf— “(i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of section 434(f)(3) of this title); and “(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee; “such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate’s party and as an expenditure by that candidate or that candidate’s party_” .2 U. S. C. § 441a(a)(7)(C). We have explained: “The statutory purpose of §441b ... is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U. S. C. § 441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of ‘separate segregated fund[s],’ which may be “utilized for political purposes.’ 2 U. S. C. § 441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its ‘stockholders and their families and its executive or administrative personnel and their families.’ 2 U. S. C. § 441b(b)(4)(A).” National Right to Work, 459 U. S., at 201-202. The amendment is straightforward. Prior to BCRA, FECA § 316(a) made it “unlawful... for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with” certain federal elections. 2 U. S. C. §441b(a) (2000 ed.). BCRA amends FECA § 316(b)(2)’s definition of the term “contribution or expenditure” to include “any applicable electioneering communication.” §441b(b)(2) (Supp. II). As Justice Kennedy emphasizes in dissent, post, at 826-328, we assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads. The premise that apparently underlies Justice Kennedy’s principal submission is a conclusion that the two categories of speech are nevertheless entitled to the same constitutional protection. If that is correct, Justice Kennedy must take issue with the basic holding in Buckley and, indeed, with our recognition in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), that unusually important interests underlie the regulation of corporations’ campaign-related speech. In Bellotti we cited Buckley, among other cases, for the proposition that “[p]reserving the integrity of the electoral *207process, preventing corruption, and ‘sustaining] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government’ are interests of the highest importance.” 435 U. S., at 788-789 (citations and footnote omitted). “Preservation of the individual citizen’s confidence in government,” we added, “is equally important.” Id,., at 789. BCRA’s fidelity to those imperatives sets it apart from the statute in Bellotti — and, for that matter, from the Ohio statute banning the distribution of anonymous campaign literature, struck down in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995). In a different but somewhat related argument, one set of plaintiffs contends that political campaigns and issue advocacy involve press activities, and that BCRA therefore interferes with speakers’ rights under the Freedom of the Press Clause. U. S. Const., Arndt. 1. We affirm the District Court’s conclusion that this contention lacks merit. The statutory scheme is somewhat complex. In its provision dealing with “Rules Relating to Electioneering Communications,” BCRA §203(c)(2) (adding FECA § 316(c)(2)) makes a blanket exception for designated nonprofit organizations, which reads as follows: “Exception “Notwithstanding paragraph (I), the term ‘applicable electioneering communication’ does not include a communication by a section 501(c)(4) organization or a political organization (as defined in section 527(e)(1) of title 26) made under section 434(f)(2)(E) or (F) of this title if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8). For purposes of the preceding sentence, the term ‘provided directly by individuals’ does not include binds the source of which is an entity described in subsection (a) of this section.” 2 U. S. C. §441b(c)(2) (Supp. II). BCRA §204, however, amends FECA § 316(c) to exclude “targeted communications" from that exception. New FECA § 316(c)(6) states that the § 316(c)(2) exception “shall not apply in the case of a targeted communication that is made by an organization described” in § 316(b)(2). 2 U. S. C. § 441b(c)(6)(A). Subparagraph (B) then defines the term “targeted communication” for the purpose of the provision as including all *210electioneering communications. The parties and the judges on the District Court have assumed that amended FECA § 316(c)(6) completely canceled the exemption for nonprofit corporations set forth in § 316(c)(2). 251 F. Supp. 2d, at 804 (Leon, J.) (“Section 204 completely cancels out the exemption for all nonprofit corporations provided by Section 203”). “[A] unanimous Court in National Right to Work did not think the regulatory burdens on PACs, including restrictions on their ability to solicit funds, rendered a PAC unconstitutional as an advocacy corporation’s sole avenue for making political contributions. See 459 U. S., at 201-202. There is no reason to think the burden on advocacy corporations is any greater today, or to reach a different conclusion here.” Beaumont, 539 U. S., at 163. New FECA § 304(g) provides: “Time for reporting certain expenditures “(1) Expenditures aggregating $1,000 “(A) Initial report “A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of an election shall file a report describing the expenditures within 24 hours. “(B) Additional reports “After a person files a report under subparagraph (A), the person shall file an additional report within 24 hours after each time the person makes or contracts to make independent expenditures aggregating an' additional $1,000 with respect to the same election as that to which the initial report relates." 2 U. S. C. § 434(g) (Supp. II). New FECA § 315(d)(4) reads as follows: “Independent versus coordinated expenditures by party “(A) In general “On or after the date on which a political party nominates a candidate, no committee of the political party may make— “(i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle; or “(ii) any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle. “(B) Application “For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. “(C) Transfers “A committee of a political party that makes coordinated expenditures under this subsection with respect to a candidate shall not, during an election cycle, transfer any funds to, assign authority to make coordinated expenditures under this subsection to, or receive a transfer of funds from, a committee of the political party that has made or intends to make an independent expenditure with respect to the candidate.” 2 U. S. C. § 441a(d)(4) (Supp. II). After exempting political parties from the general contribution and expenditure limitations of the statute, 2 U.S.C. §441a(d)(l) (Supp. II), FECA § 315(d) imposes the following substitute limitations on party spending: “(2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (e) of this section). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States. “(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election *215campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds— “(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of— “(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or “(ii) $20,000; and “(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.” 2 U. S. C. §§441a(d)(2H3). As amended by BCR A, §301(17) provides: “Independent expenditure “The term ‘independent expenditure’ means an expenditure by a person— “(A) expressly advocating the election or defeat of a clearly identified candidate; and “(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.”. 2 U. S. C. §431(17) (Supp. II). The version of the definition prior to its amendment by BCRA also included the phrase “expressly advocating the election or defeat of a clearly identified candidate.” 2 U. S. C. § 431(17) (2000 ed.). That definition had been adopted in 1976, presumably to reflect the narrowing construction that the Court adopted in Buckley. Federal Election Campaign Act Amendments of 1976, 90 Stat. 475. Although the District Court and all the parties to this litigation endorse the interpretation set forth in the text, it is not clear that subpara-graph (B) should be read so broadly: The reference to “a State” instead of “the States” suggests that Congress meant to distinguish between committees associated with the party for each State (which would be grouped together by State, with each grouping treated as a single committee for purposes of the choice) and committees associated with a national party (which would likewise be grouped together and treated as a separate political committee). We need not resolve the interpretive puzzle, however, because even under the more limited reading a local party committee would be able to tie the hands of a state committee or other local committees in the same State. The italicized portion of the following partial quotation of FECA § 315(a)(7) was added by §214 of BCRA: “For purposes of this subsection— “(A) contributions to a named candidate made to any political committee authorized by such candidate to accept contributions on his behalf shall be considered to be contributions made to such candidate; “(B)(i) expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his author*220ized political committees, or their agents, shall be considered to be a contribution to such candidate; “(ii) expenditures made by any person (other than a candidate or candidate’s authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions-made to such party committee...2 U. S. C. §441a(a)(7) (2000 ed. and Supp. II). Pre-BCRA FEC regulations defined coordinated expenditures to include expenditures made “[a]t the request or suggestion of” a candidate or party; communications in which a candidate or party “exercised control or decision-making authority over the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement”; and communications produced “[a]fter substantial discussion or negotiation” with a party or candidate, “the result of which is collaboration or agreement.” 11 CFR § 100.23(c)(2) (2001). Contrary to plaintiffs’ contention, the statutory framework was not significantly different at the time of our decision in Buckley. The relevant provision, 18 U. S. C. § 608(e)(1) (1970 ed.,' Supp. IV), treated as coordinated any expenditures “authorized or requested by the candidate.” (Emphasis added.) And the legislative history, on which we relied for “guidance in differentiating individual expenditures that are contributions ... from those treated as independent expenditures,” described as “independent” an expenditure made by a supporter ‘“completely on his own, and not at the request or suggestion of the candidate or his agen[t].’ ” 424 U. S., at 46-47, n. 53 (quoting S. Rep. No. 93-689, p. 18 (1974)). Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Souter join this opinion in its entirety. Justice Stevens, Justice Ginsburg, and Justice Breyer join this opinion, except with respect to BCRA §305. Justice Thomas joins this opinion with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). To qualify for increased candidate contribution limits, the “opposition personal fiinds amount,” which depends on expenditures by a candidate and her self-financed opponent, must exeeed a “threshold amount.” 2 U. S. C. §§441a(i)(l)(D), 441a-l(a)(2)(A) (Supp. II). If the “opposition personal funds amount” is at least 10 times the “threshold amount” in a Senate race, or exceeds $350,000 in a House of Representatives race, the coordinated party expenditure limits do not apply. §§441a(i)(l)(C)(iii), 441a-l(a)(l)(C). Although some examples were presented to the District Court, 251 F. Supp. 2d 176, 588-590 (DC 2003) (Kollar-Kotelly, J.), none were offered to this Court. Justice Stevens, Justice O’Connor, Justice Souter, and Justice Ginsburg join this opinion in its entirety.

per_curiam

per_curiam

*4Justice and Justice O’Connor delivered the opinion of the Court with respect to BCRA Titles and* The Bipartisan Campaign Reform Act of 2002 (BCRA), contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA or Act), as amended, et seq. (2000 ed. and Supp. ), the Communications Act of 194, as amended, (2000 ed. and Supp. ), and other portions of the United Code, that are challenged in these cases.1 n this opinion we discuss Titles and of BCRA. The opinion of the Court delivered by The ChieF Justice, post, p. 224, discusses Titles and V, and the opinion of the Court delivered by Justice Breyer, post, p. 2, discusses Title. V. *5 More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent “ 'the great aggregations of wealth, from using their corporate funds, directly or indirectly,’ ” to elect legislators who would “ ‘vote for their protection and the advancement of their interests as against those of the public.’ ” United n Root’s opinion, such legislation would “‘strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.’ ” 52 U. S., at The Congress of the United has repeatedly enacted legislation endorsing Root’s judgment. BCRA is the most recent federal enactment designed “to purge national polities of what was conceived to be the pernicious influence of ‘big money' campaign contributions.” As Justice Frankfurter explained in his opinion for the Court in Automobile the first such enactment responded to President Theodore Roosevelt’s call for legislation forbidding all contributions by corporations “ ‘to any political committee or for any political purpose/ ” bid, (quoting 40 Con Rec. 96 (1905)). n his annual message to Congress in December 1905, President Roosevelt stated that “‘directors should not be permitted to use stockholders’ money’ ” for political purposes, and he recommended that “ ‘a prohibition’ ” on corporate political contributions “ ‘would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’ ” 52 U. S., The resulting 1907 statute completely banned corporate contributions of “money in connection with” any federal election. Tillman Act, ch. 420, Congress soon amended *6the statute to require the public disclosure of certain contributions and expenditures and to place “maximum limits on the amounts that congressional candidates could spend in seeking nomination and election.” Automobile n 1925 Congress extended the prohibition of “contributions” “to include 'anything of value/ and made acceptance of a corporate contribution as well as the giving of such a contribution a crime.” Federal Election During the debates preceding that amendment, a leading Senator characterized “‘the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions’ ” as “ ‘one of the great political evils of the time.’ ” Automobile We upheld the amended statute against a constitutional challenge, observing that “[t]he power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress.” Congress’ historical concern with the “political potentialities of wealth” and their “untoward consequences for the democratic process,” Automobile has long reached beyond corporate money. During and shortly after World War Congress reacted to the “enormous financial outlays” made by some unions in connection with national Congress first restricted union contributions in the Hatch Act,2 and it later prohibited “union contributions in connec*7tion with federal elections altogether.” National Right to at (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, ). Congress subsequently extended that prohibition to cover unions’ election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general Labor Management Relations Act, 1947 (Taft-Hartley Act), See Automobile During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 9 Con Rec. 428, 522 (1947); H. R. Rep. No. 245, 80th Con, 1st Sess. (1947); S. Rep. No. 1, 80th Con, 1st Sess., pt. 2 (1947); H. R. Rep. No. 78th Con, 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress’ "careful legislative adjustment of the federal electoral laws, in a ‘cautious advance, step by step,’ to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference.” National Right to at n early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, As first enacted, that statute required disclosure of all contri*butions exceeding $ and of expenditures by candidates and political committees that spent more than $1,000 per year. t prohibited contributions made in the name of another person, and by Government contractors, The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. See As the 1972 Presidential elections made clear, however, FECA’s passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, Reviewing a constitu-. tional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as “by far the most comprehensive reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress.” The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees’ receipts and disbursements. They limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national con*9ventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. at -84. The Court of Appeals upheld the 1974 in their entirety.4 t concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. The court’s opinion relied heavily on findings that large contributions facilitated access to public officials5 and described methods of evading the con*tribution limits that had enabled contributors of massive sums to avoid disclosure.6 The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. at 840-841 ). This Court, however, concluded that each set of limitations raised serious — though different — concerns under the First Amendment. We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only “a marginal restriction upon the contributor’s ability to engage in free communication.” Considering the “deeply disturbing examples” of corruption related to candidate contributions in the Court of Appeals’ opinion, we determined that limiting contributions served an interest in protecting “the integrity of our system of representative democracy.” n the end, the Act’s primary purpose — “to limit the actuality and appearance of corruption resulting from large individual financial contributions” — pro*1vided “a constitutionally sufficient justification for the $1,000 contribution limitation.” We prefaced our analysis of the $1,000 limitation on expenditures by observing that it broadly encompassed every expenditure “‘relative to a clearly identified candidate.’” (quoting (e)(1) ). To avoid vagueness concerns we construed that phrase to apply only to “ that in express terms advocate the election or defeat of a clearly identified candidate for federal ” -44. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining “free to spend as much as they want to promote the candidate and his views.” We rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Act’s contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. We therefore held that Congress’ interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed. We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. n order to avoid an overbreadth problem, however, we placed the same narrowing construction on the *122term “expenditure” in the disclosure context that we had adopted in the context of the expenditure Thus, we construed the reporting requirement for persons making expenditures of more than $ in a year “to reach only funds used for that expressly advocate the election or defeat of a clearly identified candidate.” Our opinion in addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. ; see n. Three important developments in the years after our decision in persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal Soft Money Under FECA, “contributions” must be made with funds that are subject to the Act’s disclosure requirements and source and amount Such funds are known as “federal” or “hard” money. FECA defines the term “contribution,” however, to include only the gift or advance of anything of value “made by any person for the purpose of influencing any election for Federal ” (8)(i) Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECA’s requirements and prohibitions. *12As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidátes, to contribute “nonfederal money” — known as “soft money” — to political parties for activities intended to influence state or local Shortly after was decided, questions arose concerning the treatment of contributions intended to influence both federal and state Although a literal reading of FBCA’s definition of “contribution” would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities— including get-out-the-vote drives and generic party advertising — in part with soft money.7 n 1995 the FEC concluded that the parties could use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as *124they did not expressly advocate the candidate’s election or defeat. FEC Advisory Op. 1995-25. As- the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties’ total spending, soft money accounted for 5% ($.6 million) in 1984, % ($45 million) in 1988, 16% ($80 million) in 1992, 0% ($ million) in 1996, and 42% ($498 million) in 2000.8 The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.9 n the year 2000, for example, the national parties diverted $280 million — more than half of their soft money — to state parties. Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.10 n the most recent election cycle the political parties raised almost $00 million — 60% of their total soft-money fundraising — from just 800 donors, each of which contributed a minimum of $,000. Moreover, the largest corporate donors often made substantial contributions to both parties.12 Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candi*125dates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.1 Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already “ ‘contributed the legal maximum’ ” to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.14 Such solicitations were not uncommon.15 *126The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source and amount of contributions in connection with federal ssue Advertising n we construed FECA’s disclosure and reporting requirements, as well as its expenditure limitations, “to reach only funds used for that expressly advocate the election or defeat of a clearly identified candidate.” 424 U. S., As a result of that strict reading of the statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” marked a bright statutory line separating “express advocacy” from “issue ” See Express advocacy was subject to. FECA’s limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors. While the distinction between “issue” and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.16 Little difference *127existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you think.”17 ndeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.18 Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.19 Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,20 and those expenditures, like *128soft-money donations to the political parties, were unregulated under FECA. ndeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA’s reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money. Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,” for instance, was not a grassroots organization of citizens, as its name' might suggest, but was instead a platform for an association of drug manufacturers.22 And “Republicans for Clean Air,” which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals — brothers who together spent $25 million on ads supporting their favored candidate.2 While the public may not have been fully informed about the sponsorship of so-called issue ads, the record indi*129cates that candidates and officeholders often were. A former Senator confirmed that candidates and officials knew who their friends were and “ ‘sometimes suggested] that corporations or individuals make donations to interest groups that run “issue ads.” ’ ”24 As with soft-money contributions, political parties and candidates used the availability of so-called issue ads to circumvent FECA’s limitations, asking donors who contributed their permitted quota of hard money to give money to nonprofit corporations to spend on “issue” 25 Senate Committee nvestigation n 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal The report gave particular attention to the effect of soft money on the American political system, including elected officials’ practice of granting special access in return for political contributions. The committee’s principal findings relating to Democratic Party fundraising were set forth in the majority’s report, while the minority report primarily described Republican practices. The two reports reached consensus, however, on certain central propositions. They agreed that the “soft money loophole” had led to a “meltdown” of the campaign finance system that had been intended “to keep corporate, union and large individual contributions from influencing the electoral process.”26 One Senator stated that “the hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually de*10stroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.”27 The report was critical of both parties’ methods of raising soft money, as well as their use of those funds. t concluded that both parties promised and provided special access to candidates and senior Government officials in exchange for large soft-money contributions. The committee majority described the White House coffees that rewarded major donors with access to President Clinton,28 and the courtesies extended to an international businessman named Roger Tamraz, who candidly acknowledged that his donations of about $00,000 to the DNC and to state parties were motivated by his interest in gaining the Federal Government’s support for an oil-line project in the Caucasus.29 The minority described the promotional materials used by the RNC’s two principal donor programs, “Team ” and the “Republican Eagles,” which promised “special access to high-ranking Republican elected officials, including governors, senators, and representatives.”0 One fundraising letter recited that the chairman of the RNC had personally escorted a donor on *appointments that “ 'turned out to be very significant in the legislation affecting public utility holding companies’” and made the donor ‘"a hero in his industry.’”1 n 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal The committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended, to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.2 The ads thus provided a means for evading FECA’s candidate contribution limits. The report emphasized the role of state and local parties. While, the FEC’s allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes. For that reason, national parties often made substantial transfers of soft money to “state and local political parties for ‘generic voter activities’ that in fact ultimately benefited] federal candidates because the funds for all practical purposes remained] under the control of the national committees.” The report concluded that “[t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system.”4 The report potential reforms, including a ban on soft money at the national and state party levels and restric*12tions on sham issue advocacy by nonparty groups.5 The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.6 The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as “reforms addressing candidate advertisements masquerading as issue ads.”7 > — 1 n BCRA, Congress enacted many of the committee s proposed reforms. BCRA’s central provisions are designed to address Congress’ concerns about the increasing use of soft money and issue advertising to influence federal Title regulates the use of soft money by political parties, officeholders, and candidates. Title primarily prohibits corporations and labor unions from using general treasury funds for that are intended to, or have the effect of, influencing the outcome of federal Section 40 of BCRA provides special rules for actions challenging the constitutionality of any of the Act’s provisions. 2 U. S. C. 47h note Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by 40, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 40 directed the District Court to advance the cases on the docket and to expedite their disposition “to the greatest possible extent.” The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate,. lengthy opinions, *1each of which contained extensive commentary on the facts and a careful analysis of the legal issues. (200). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 200, held some parts of BCRA unconstitutional and upheld others. As authorized by 40, all of the losing parties filed direct appeals to this Court within 10 days. 2 U. S. C. 47h note. On June 5, 200, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 200. 59 U. S. 9. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Mindful of 40’s instruction that we expedite our disposition of these appeals to the greatest extent possible, we consider each of the issues in order. Accordingly, we first, turn our attention to Title of BCRA. Title is Congress’ effort to plug the soft-money loophole. The cornerstone of Title is new FECA ■ 2(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U. S. C. 441i(a)8 n short, 2(a) takes national parties out of the soft-money business. The remaining provisions of new FECA 2 largely reinforce the restrictions in 2(a). New FECA 2(b) prevents the wholesale shift of soft-money influence from *14national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal 2 U. S. C. 441i(b). These “Federal election activities],” defined in new FECA 01(20), are almost identical to the mixed-purpose activities that have long been regulated under the FEC’s pre-BCRA allocation regime. (20). New FECA 2(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U. S. C. 441i(d). New FECA 2(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local 2 U. S. C. 441i(e). Finally, new FECA 2(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public that promote or attack federal candidates. 2 U. S. C. 441i(f). Plaintiffs mount a facial First Amendment challenge to new FECA 2, as well as challenges based on the Elections Clause, U. S. Const., Art. 4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn. A n and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e. Federal Election 59 U. S. 146, (200); see 528 U. S. 77, 87-88 ; 424 U. S., n these cases we have recognized that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon the *15contributor’s ability to engage in free communication.” ; see e. at ; Shrink at 86-88. n we said: “A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributin At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” Because.the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to “prevent] candidates and political committees from amassing the resources necessary for effective ” We have recognized that contribution limits may bear “more heavily on the associational right than on freedom to speak,” Shrink at 88, since contributions serve “to affiliate a person with a candidate” and “enabl[e] like-minded persons to pool their resources,” Unlike expenditure limits, however, which *16“preclud[ej most associations from effectively amplifying the voice of their adherents,” contribution limits both “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates,” and allow associations “to aggregate large sums of money to promote effective ” The “overall effect” of dollar limits on contributions is “merely to require candidates and political committees to raise funds from a greater number of persons.” Thus, a contribution limit involving even “‘significant interference’ ” with associational rights is nevertheless valid if it satisfies the “lesser demand” of being “ ‘closely drawn’ ” to match a “‘sufficiently important interest.’” (quoting Shrink at 87-88).9 Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. t reflects the importance of the interests that underlie contribution limits — interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” National Right to 459 U. S., 8; see Federal Election 5 U. S. 41, We have said that these interests directly implicate “‘the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning *17of that process.’” National Right to 8 (quoting Automobile 52 U. S., at 570). Because the electoral process is the very “means through which a free society democratically translates political speech into concrete governmental action,” Shrink contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing Congress’ decision to enact contribution limits, “there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words ‘strict scrutiny.’” The less rigorous standard of review we have applied to contribution limits (’s “closely drawn” scrutiny) shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. t provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process. Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e. Shrink -410 ; ; Republican Federal Campaign 4 (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified We are mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in and its progeny. Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since *18was decided. See40 Like the contribution limits we upheld in 2’s restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. 59 U. S., at Complex as its provisions may be, 2, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal Plaintiffs contend that we must apply strict scrutiny to 2 because many of its provisions restrict not only contributions but the spending and solicitation of funds raised outside of FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in 2 to regulate contributions on the demand rather than the supply side. See, e., National Right to 6-1 The relevant inquiry is whether the mechanism adopted to implement the contribu*19tion limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here. For example, while 2(a) prohibits national parties from receiving or spending nonfederal money, and 2(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U. S. C. 441i(a), (b) Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure 41 Similarly, the solicitation provisions of 2(a) and 2(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities, subject to FECA’s source and amount restrictions. Even 2(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations’ federal PACs. 2 U. S. C. 441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra, at 180-181 (construing 2(d)’s restriction on donations by parties to apply only to donations from a party committee’s nonfederal or soft-money account). And as with 2(a), 2(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U. S. C. 441i(a), (d). Section 2 thus shows “due regard for the reality that solicitation is characteristically intertwined with informative *140and perhaps persuasive speech seeking support for particular causes or for particular, views.” The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or unión contribute money through its PAC in no way alters or impairs the political message “intertwined” with the solicitation. Cf. And rather than chill such solicitations, as was the case in Schaumburg, the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, 2’s spending and solicitation restrictions have only a marginal impact on political speech.42 *141Finally, plaintiffs contend that the type of associational burdens that 2 imposes are fundamentally different from the burdens that accompanied ’s contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E. California Democratic 50 U. S. 567, 57-574 n making this argument, plaintiffs greatly exaggerate the effect of 2, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra, at Section 2 merely subjects a greater percentage of contributions to parties and candidates to FECA’s source and amount has already acknowledged that such limitations “leave the contributor free to become a member of any political- association and to assist personally in the association’s efforts on behalf of candidates.” The modest impact that 2 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by 2 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.4 With these principies in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA 2. Because the. five *142challenged provisions of 2 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted 2 as an integrated whole to vindicate the Government’s important interest in preventing corruption and the appearance of corruption. New FECA 2(a)’s Restrictions on National Party Committees The core of Title is new FECA 2(a), which provides that “national committee[s] of a political party may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” 2 U. S. C. 441i(a)(l) The prohibition extends to “any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee.” 441i(a)(2). The main goal of 2(a) is modest. n large part, it simply effects a return to the scheme that was approved in and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See at 12-125, and n. 7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal 44 New 2(a) is designed to put a stop to that practice. *141. Governmental nterests Underlying New FECA 2(a) The Government defends 2(a)’s ban 6n national parties’ involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. n we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws “deal[t] with only the most blatant and specific attempts of those with money to influence governmental action.” Thus, “[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink 528 U. S., at 89; see 5 U. S., Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. *144, ; see Shrink 0; Federal Election Take away Congress’ authority to regulate the appearance of undue influence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Shrink 528 U. S., 0; see And because the First Amendment does not require Congress to ignore the fact that “candidates, donors, and parties test the limits of the current law,” 5 U. S., 7, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, 6 “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Shrink 1. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 0 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local, party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create — no less than would a direct contribution to the candidate — a sense of obligation. See at 8 (upholding FECA’s $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a “quite modest restraint. to prevent evasion of the $1,000 contribution limitation” by, among *145other things, “huge contributions to the candidate’s political party”). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, “whether they like it or not,” to serve as “agents for spending on behalf of those who seek to produce obligated ” 2; see Shrink (“[Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties” ). As below, rather than resist that role, the national parties have actively embraced it. The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress’ belief that they do. As set forth at 12-125, and n. 7, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits on contributions to parties for the purpose of influencing federal Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election. t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.45 *146The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees “ ‘solely in order to assist federal campaigns,’ ” including the officeholder’s own. (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶¶6-9 (hereinafter Randlett Deck), App. 71-714); see -47, 478-479 ; at 842-84 Parties kept tallies of the amounts of soft money raised by each officeholder, and “the amount of money a Member of Congress raise[d] for the national political party committees often affect[ed] the amount the committees g[a]ve to assist the Member’s campaign.” Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. ; National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while still allowing donors to give to their preferred candidate. ; ; see App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one *147“in which Senate candidates in effect rais[e] soft money for use in their own races”)). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to -8 (“[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge as it is provided by the national political parties and the donors themselves”); at 85-855 For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D. C., stated in his declaration: “ ‘You are doing a favor for somebody by making a large [soft money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone — that is, write a larger check — and they feel even more compelled to reciprocate. n my experience, overt words are rarely exchanged about contributions, but people do have understandings.’” at 49 (quoting declaration of Robert Rozen, partner, Ernst & Young ¶ 14; see 8-R Defs. Exhs., Tab S).46 *1Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology. See, e. -510 (citing Mann Expert Report Tbls. );47 *149The evidence from the federal officeholders’ perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows: “ ‘Too often, Members’ first thought is not what is right or what they believe, but how it will affect fundraisin Who, after all, can seriously contend that a $,000 donation does not alter the way one thinks about — and quite possibly votes on — an issue? When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation.’” (quoting declaration of former Sen. Alan Simpson ¶ 10 (hereinafter Simpson Deck), App. 8); See (“‘The majority of those who contribute to political parties do so for business reasons, to gain access to influential Members of Congress and to get to know new Members’ ” (quoting Hickmott Decl., Exh. A, ¶ 46)). By bringing soft-money donors and federal candidates and officeholders together, “[p]arties are thus necessarily the instruments of some contributors whose object is not to support the party’s message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one narrow issue, or even to support any candidate who will be obliged to the contributors.” 5 U. S., 1-452. Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But *150the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e. ; ; App. 90-894 (declaration of Sen. John McCain ¶¶5, 8 — (hereinafter McCain Decl.)); App. 8 (Simpson Decl. ¶ 10) (“Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform”); App. 805 (declaration of former Sen. Paul Simon ¶¶ 1-14). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process. More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of such influence.” Many of the “deeply disturbing examples” of corruption cited by this Court in 424 U. S., to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See 519 F. 2d, at 89-840, n. 6; nn. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence.” ; see 519 F. 2d, at 88. The record in the present cases is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See -506' As one former Senator put it: “‘Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators *151and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy. Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way.’” (quoting declaration of former Sen. Warren Rudman ¶ 7 (hereinafter Rudman Deck), App. 742); So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking Members, and two retreats with the Democratic House leader and DCCC chair in Telluride, and Hyannisport, Massachusetts. ; see ; at 502-50 ; at 50-504 ; at -50 ; Similarly, “the RNC’s donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors.” at -50 ; accord, Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 292, 298. Regulation of any other donation or expenditure — regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence — would, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation. *15Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation. Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with “inherent corruption potential,” which he again limits to contributions directly to candidates, justify the inference “that regulating the conduct will stem the appearance of real corruption.” Post, at 297-298.49 n our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To ¡be sure, mere politic! favoritism or opportunity for influence alone is insufficient to justify regulation. As the record demonstrates, it is the manner in which parties have sold access to federal *154candidates and officeholders that has given rise to the appearance of undue influence. mplicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. t is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. t was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption. n sum, there is substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. 2. New FECA 2(a)’s Restriction on Spending and Receiving Soft Money Plaintiffs and The Chief Justice contend that 2(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.50 Post, at 5-54 (Rehnquist, C. J., dissenting). Such activities, The Chief Justice asserts, pose “little or no potential to corrupt. federal candidates and ” Post, at 5 (dissenting opinion). This observation is beside the point. Section 2(a), like the remainder of 2, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have *made all large soft-money contributions to national parties suspect. As one expert noted, “ ‘[t]here is no meaningful separation between the national party committees and the public officials who control them.’” -469 (quoting Mann Expert Report 29). The national committees of the two major parties are both run by, and largely composed of, federal officeholders and candidates. ndeed, of the six national committees of the two major parties, four are composed entirely of federal The nexus between national parties and federal officeholders prompted one of Title ’s framers to conclude: “Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the fimding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties.” 1 Con Rec. H409 (Feb. 1, 2002) (statement of Rep. Shays). Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used. This close affiliation has placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that *156officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal See, e. App. 96-98 (Expert Report of Donald R Green, Yale University) (hereinafter Green Expert Report) (“Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments”); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders’ reelection prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Government’s strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.51 *157. New FECA S2(a)'s Restriction on Soliciting or Directing Soft Money Plaintiffs contend that 2(a)’s prohibition on national parties’ soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. t bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.52 They can contribute hard money to state committees and to candidates. n accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are officials of state parties, in that capacity. See 67 Fed. Re 4908 (2002). This limited restriction on solicitation follows sensibly from the prohibition on national committees’ receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the *158recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E. 18 U. S. C. 201(b)(2) (prohibition on public officials “demanding] [or] seeking] anything of value personally or for any other person or entity” ); 5 CFR 265.20(f)(2) (200) Plaintiffs argue that BCRA itself demonstrates the over-breadth of 2(a)’s solicitation ban. They point in particular to 2(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. Compare 2 U. S. C. 441i(a) with 441i(e) The differences between 2(a) and 2(e), however, are without constitutional significance. We have recognized that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process,’ ” National Right to and we respect Congress’ decision to proceed in incremental steps in the area of campaign finance regulation, see Federal Election 479 U. S. 28, ; 424 U. S., 5. The differences between the two provisions reflect Congress’ reasonable judgments about the function played by national committees and the interactions between committees and officeholders, subjects about which Members of Congress have vastly superior knowledge. 4. New FECA 2(a)’s Application to Minor Parties The McConnell and political party plaintiffs contend that 2(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and *159associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. n we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that “any attempt to exclude minor parties and independents en masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.” 424 U. S., at 4-5. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. t applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. t is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process. We add that nothing in 2(a) prevents individuals from pooling resources to start a new national party. Post, at 289 (Kennedy, J., concurring in judgment in part and dissenting in part). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of 2(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if 2(a) prevents it from “amassing the resources necessary for effective ” 5. New FECA 2(a)’s Associational Burdens Finally, plaintiffs assert that 2(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican *160Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 69, 694-697 (declaration of John Pesch-ong, RNC Western Re Political Dir. (describing the Republican Victory Plans)). The political parties assert that 2(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear. We are not persuaded by this argument because it hinges on an unnaturally broad reading of the terms “spend,” “receive,” “direct,” and “solicit.” 2 U. S. C. 441i(a) Nothing on the face of 2(a) prohibits national party officers, whether acting in their official or individual capacities, from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money. As long as the national party officer does not personally spend, receive, direct, or solicit soft money, 2(a) permits a wide range of joint planning and electioneering activity. ntervenor-defendants, the principal drafters and proponents of the legislation, concede as much. Brief for ntervenor-Defendants Sen. John McCain et al. in No. 02-1674 et al., p. 22 (“BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and fundraising goals with one another”). The FEC’s current definitions of 2(a)’s terms are consistent with that view. See, e., CFR 00.2(m) (2002) (defining “solicit” as “to ask another person” ); 00.2(n) (defining “direct” as “to ask a person who has expressed an intent to make a contribution to make that contribution including through a conduit or intermediary” ); 00.2(c) (laying out the factors *that determine whether an entity will be considered to be controlled by a national committee). Given the straightforward meaning of this provision, Justice Kennedy is incorrect that “[a] national party’s mere involvement in the strategic planning of fundraising for a state ballot initiative” or its assistance in developing a state party’s Levin-money fundraising efforts risks a finding that the officers are in “ ‘indirect control’ ” of the state party and subject to criminal penalties. Post, at 289. Moreover, 2(a) leaves national party committee officers entirely free to participate, in their official capacities, with state and local parties and candidates in soliciting and spending hard money; party officials may solicit soft money in their unofficial capacities. Accordingly, we reject the plaintiffs’ First Amendment challenge to new FECA 2(a). New FECA 2(b)’s Restrictions on State and Local Party Committees n constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRA’s restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations,5 Section 2(b) is designed to foreclose wholesale evasion of 2(a)’s anticorruption measures by sharply curbing state committees’ ability to use large soft-money contributions to influence federal The core of 2(b) is a straightforward contribution regulation: t prevents donors from *1contributing nonfederal funds to state and local party committees to help finance “Federal election activity.” 2 U. S. C. 441i(b)(l) The term “Federal election activity” encompasses four distinct categories of electioneering: (1) voter registration activity during the days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is “conducted in connection with an election in which a candidate for Federal office appears on the ballot”; () any “public communication”55 that “refers to a clearly identified candidate for Federal office” and “promotes,” “supports,”, “attacks,” or “opposes” a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to “activities in connection with a Federal election.” 41(20)(i)-(iv). The Act explicitly excludes several categories of activity from this definition: public that refer solely to nonfederal candidates;56 contributions to nonfederal candidates;57 state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. 41(20)(B). All activities that fall within the statutory definition must be funded with hard money. 441i(b)(l). Section 2(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the *16Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and “Levin funds” — that is, funds raised within an annual limit of $10,000 per person. 2 U. S. C. 441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, 2(b)(2) leaves regulation of such contributions to the58 The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statute’s definition of federal election activity — namely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U. S. C. 441i(b)(2). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to “a clearly identified candidate for Federal office”; they likewise cannot be used to fund broadcast unless they refer “solely to a clearly identified candidate for State or local ” 441i(b)(2)(B)(i) — (ii). Second, both the Levin funds and the allocated portion of hard money used to pay for such activities must be raised entirely by the state or local committee that spends them. 441i(b)(2)(B)(iv). This means that a state party committee cannot use Levin funds transferred from other party committees to cover the Levin ftmds portion of a Levin Amendment expenditure. t means that a state party committee cannot use hard money transferred from other party committees to cover the hard-money portion of a Levin Amendment expenditure. Furthermore, national committees, federal candidates, and federal officeholders generally may not solicit Levin ftmds on behalf of state committees, and state committees may not team up to raise Levin funds. *1 441i(b)(2)(C). They can, however, jointly raise the hard money used to make Levin expenditures. 1. Governmental nterests Underlying New FECA 2(b) We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. ts conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternative avenue for precisely the same corrupting forces.59 ndeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.60 There is at least as much evidence as there was in *165 that such donations have been made with the intent — and in at least some cases the effect — of gaining influence over federal 61 Section 2(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have. Congress made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to 2(a) by scrambling to find another way to purchase influence. t was “neither novel nor implausible,” Shrink 528 U. S., 1, for Congress to conclude that political parties would react to 2(a) by directing soft-money contributors to the state committees, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. We “must accord substantial deference to the predictive judgments of Congress,” Turner Broadcasting System, particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shift*166ing wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. 2. New FECA 2S(b)’s Tailoring Plaintiffs argue that even if some legitimate interest might be served by 2(b), the provision’s restrictions are unjustifiably burdensome and therefore cannot be considered “closely drawn” to match the Government’s objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective We address these points in turn. a. 2(b)’s Application to Federal Election Activity Plaintiffs assert that 2(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress’ concerns about the corruption of the federal electoral process. We disagree. t is true that 2(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FEC’s pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state See CFR 106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FEC’s allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore *167the efficacy of FECA’s longtime statutory restriction — approved by the Court and eroded by the FEC’s allocation regime — on contributions to state and local party committees for the purpose of influencing federal See 2 U. S. C. 41(8), 441a(a)(l)(C); see 424 U. S., at 8 ; California Medical 45 U. S. 182 Like the rest of Title 2(b) is premised on Congress’ judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, 2(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anticorruption interests to be served. We conclude that 2(b) is a closely drawn means of countering both corruption and the appearance of corruption. The first two categories of “Federal election activity,” voter registration efforts, 01(20)(i), and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election, 01(20)(ii), clearly capture activity that benefits federal candidates. Common sense dictates, and it was “undisputed” below, that a party’s efforts to register voters sympathetic to that party directly assist the party’s candidates for federal t is equally clear that federal candidates reap substantial rewards from any efforts that increase the number of like-minded registered voters who *168actually go to the polls. See, e. 9 (“‘[The evidence] shows quite clearly that a campaign that mobilizes residents of a highly Republican precinct will produce a harvest of votes for Republican candidates for both state and federal offices. A campaign need not mention federal candidates to have a direct effect on voting for such a candidate. [G]eneric campaign activity has a direct effect on federal elections’” (quoting Green Expert Report 14)). Representatives of the four major congressional campaign committees confirmed that they “ ‘transfe[r] federal and non-federal funds to state and/or local party committees for’” both voter registration and GOTV activities, and that “‘[t]hese efforts have a significant effect on the election of federal candidates.’” 251 F. Supp. 2d, 9, 461 The record makes quite clear that federal officeholders are grateful for contributions to state and local parties that can be converted into GOTV-type efforts. See 9 (quoting a letter thanking a California Democratic Party donor and noting that CDP’s voter registration and GOTV efforts would help “‘increase the number of Californian Democrats in the United Congress’” and “‘deliver California’s 54 electoral votes’ ” to the Democratic Presidential candidate). Because voter registration, voter identification, GOTV, and generic campaign activity all confer substantial benefits on federal candidates, the funding of such activities creates a significant risk of actual and apparent corruption. Section 2(b) is a reasonable response to that risk. ts contribution limitations are focused on the subset of voter registration activity that is most likely to affect the election prospects of federal candidates: activity that occurs within days before a federal election. And if the voter registration drive *169does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment’s higher contribution limits and relaxed source restrictions. 2 U. S. C. 441i(b)(2)(B)(iHii) Similarly, the contribution limits applicable to 01(20)(ii) activities target only those voter identification, GOTV, and generic campaign efforts that occur “in connection with an election in which a candidate for a Federal office appears on the ballot.” (20)(ii). Appropriately, in implementing this subsection, the FEC has categorically excluded all activity that takes place during the runup to elections when no federal office is at stake.6 Furthermore, state committees can take advantage of the Levin Amendment’s higher contribution limits to fund any 01(20)(i) and 01(20)(ii) activities that do not specifically mention a federal candidate. 2 U. S. C. 441i(b)(2)(B)(i)~(ii). The prohibition on the use of soft money in connection with these activities is therefore closely drawn to meet the sufficiently important governmental interests of avoiding corruption and its appearance. “Public ” that promote or attack a candidate for federal office — the third category of “Federal election activity,” 01(20)(iii) — undoubtedly have a dramatic effect on federal Such ads were a prime motivating force behind BCRA’s passage. See 1998 Senate Report 455 (additional views of Sen. Collins) (“[TJhe *170hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble”). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participatin The record on this score could scarcely be more abundant. Given the overwhelming tendency of public as carefully defined in 01(20)(iii), to benefit directly federal candidates, we hold that application of 2(b)’s contribution caps to such is closely drawn to the anticorruption interest it is intended to address. As for the final category of “Federal election activity,” 01(20)(iv), we find that Congress’ interest in preventing circumvention of 2(b)’s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with *171a federal election. n the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give “deference to [the] congressional determination of the need for [this] prophylactic rule.” National Conservative Political Action Comm., b. Associational Burdens mposed by the Levin Amendment Plaintiffs contend that 2(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e. California Democratic 50 U. S. 567 ; But not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See 5 U. S., 0, n. As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee’s Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of *172choice.65 The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize “all hands” fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. n that case, the purpose, if not the letter, of 2(b)(2)'s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Section 2(b)(2)(B)(iv)’s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee’s Levin expenditures presents a closer question. 2 U. S. C. 441i(b)(2)(B)(iv) The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee’s Levin funds. This purported interest is weak, particularly given the fact that 2(a) already polices attempts by national parties to engage in such behavior. See 2 U. S. C. 441i(a)(2) (extending 2(a)’s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer *17unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all “homegrown” hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticir-cumvention interest vindicated by 2(b)(2)(B)(iv)’s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement. c. New FECA 2(b)’s mpact on Parties’ Ability to Engage in Effective Advocacy Finally, plaintiffs contend that 2(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective As Judge Kollar-Kotelly noted, the political parties’ evidence regarding the impact of BCRA on their revenues is “speculative and not based on any analysis.” f the history of campaign finance regulation proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that 2(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether 2(b) reduces the amount of funds available over previous election cycles, but whether it is “so radical in effect as to drive the sound of [the recipient’s] voice below the level of notice.” Shrink 528 U. S., 7. f indeed state or local parties can make such a showing, as-applied challenges remain available. We accordingly conclude that 2(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption. *174 New FECA 2(d)’s Restrictions on Parties’ Solicitations for, and Donations to, Tax-Exempt Organizations Section 2(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from “soliciting] any funds for, or mak[ing] or directing] any donations” to, any organization established under 501(c) of the nternal Revenue Code66 that makes expenditures in connection with an election for federal office, and any political organizations established under 527 “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local ”67 2 U. S. C. 441i(d) The District Court struck down the provision on its face. We reverse and uphold 2(d), narrowly construing the section’s ban on donations to apply only to the donation of funds not raised in compliance with FECA. 1. New FECA 2(d)’s Regulation of Solicitations The Government defends 2(d)’s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title ’s limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress’ efforts at campaign finance reform well demonstrates that “candidates, donors, and parties test the limits of the *175current law.” 5 U. S., 7. Absent the solicitation provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates.68 All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECA's source and amount limitations, as well as its disclosure restrictions. See 251 F. Supp. 2d, (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose *176the source or amount of contributions); Experience under the current law demonstrates that Congress’ concerns about circumvention are not merely hypothetical. Even without the added incentives created by Title national, state, and local parties already solicit unregulated soft-money donations to tax-exempt organizations for the purpose of supporting federal electioneering activity. See, e. 1998 Senate Report 401 (“n addition to direct contributions from the RNC to nonprofit groups, the senior leadership of the RNC helped to raise funds for many of the coalition’s nonprofit organizations”); 4 at 598 (“Tax-exempt ‘issue advocacy’ groups and other conduits were systematically used to circumvent the federal campaign finance laws”); ; Parties and candidates have begun to take advantage of so-called “politician 527s,” which are little more than soft-money fronts for the promotion of particular federal officeholders and their interests. See (“‘Virtually every member of Congress in a formal leadership position has his or her own 527 group. n all, Public Citizen found 6 current members of Congress who have their own 527s’” (quoting Public Citizen Congress Congressional Leaders’ Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, p. 6)); -850 These 527s have been quite successful at raising substantial sums of soft money from corporate interests, as well as from the national parties themselves. See -520 (finding th industries had each donated over $,000 in a single year to the top 25 politician 527 groups and that the DNC was the single largest contributor to politician 527 groups (citing Public Citizen Congress -)); Given BCRA’s tighter restrictions on *177the raising and spending of soft money, the incentives for parties to exploit such organizations will only increase. Section 2(d)’s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECA’s regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, 2(d) restricts solicitations only to those 501(c) groups “mak[ing) expenditures or disbursements in connection with an election for Federal office,” 2 U. S. C. 441i(d)(l) and to 527 organizations, which by definition engage in partisan political activity, 44(d)(2); 26 U. S. C. 527(e). Second, parties remain free to solicit hard-money contributions to a 501(c)’s federal PAC, as well as to 527 organizations that already qualify as federal PACs.69 Third, 2(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to 501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See infra, at 180-181. Finally, as with 2(a), 2(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U. S. C. 441i(d) (extending restrictions to solicitations and donations *178made by “an officer or agent acting on behalf of any such party committee” ). n challenging 2(d)’s ban on solicitations, plaintiffs renew the argument they made with respect to 2(a)’s solicitation restrictions: that it cannot be squared with 2(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U. S. C. 441i(d) with 441i(e)(4). But if 2(d)’s restrictions on solicitations are othérwise valid, they are not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to ; see 84 U. S. 1, n any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 2(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and Given those limits, as well as the less rigorous standard of review, the greater allowances of 2(e) do not render 2(d)’s solicitation restriction facially invalid. 2. New FECA 82(d)’s Regulation of Donations Section 2(d) prohibits national, state, and local party committees from making or directing “any donatio[n]” to qualifying 501(c) or 527 organizations. 2 U. S. C. 441i(d) The Government again defends the restriction as an anticircumvention measure. We agree insofar as it prohibits the donation of soft money. Absent such a restriction, state and local party committees could *179accomplish directly what the antisolicitation restrictions prevent them from doing indirectly — namely, raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Because the party itself would be raising and collecting the funds, the potential for corruption would be that much greater. We will not disturb Congress’ reasonable decision to close that loophole, particularly given a record demonstrating an already robust practice of parties making such donations. See -518 ; -849 The prohibition does raise overbreadth concerns if read to restrict donations from a party’s federal account — i. e., funds that have already been raised in compliance with FECA’s source, amount, and disclosure Parties have many valid reasons for giving to tax-exempt organizations, not the least of which is to associate themselves with certain causes and, in so doing, to demonstrate the values espoused by the party. A complete ban on donations prevents parties from making even the “general expression of support” that a contribution represents. At the same time, prohibiting parties from donating funds already raised in compliance with FECA does little to further Congress’ goal of preventing corruption or the appearance of corruption of federal candidates and The Government asserts that the restriction is necessary to prevent parties from leveraging their hard money to gain control over a tax-exempt group’s soft money. Even if we accepted that rationale, it would at most justify a dollar limit, not a flat ban. Moreover, any legitimate concerns over cap-time are diminished by the fact that the restrictions set forth in 2(a) and (b) apply not only to party committees, but to entities under their control. See 2 U. S. C. 441i(a)(2) (extending prohibitions on national party committees to “any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee” (em*180phasis added)); 441i(b)(l) (same for state and local party committees). These observations do not, however, require us to sustain plaintiffs’ facial challenge to 2(d)’s donation restriction. “When the validity of an act of the Congress is drawn in question, and a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (192); see 5 U. S. 12, 1 ; New Given our obligation to avoid constitutional problems, we narrowly construe 2(d)’s ban to apply only to donations of funds not raised in compliance with FECA. This construction is consistent with the concerns animating Title whose purpose is to plug the soft-money loophole. Though there is little legislative history regarding BCRA generally, and almost nothing on 2(d) specifically, the abuses identified in the 1998 Senate Report regarding campaign finance practices involve the use of nonprofit organizations as conduits for large soft-money donations. See, e. 1998 Senate Report 4565 (“The evidence indicates that the soft-money loophole is fueling many of the campaign abuses investigated by the Committee. Soft money supplied the funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related activities”); 68-4569 We have found no evidence that Congress was concerned about, much less that it intended to prohibit, donations of money already fully regulated by FECA. Given Title ’s exclusive focus on abuses related to soft money, we would expect that if Congress meant 2(d)’s restriction to have this dramatic and *181constitutionally questionable effect, it would say so explicitly. Because there is nothing that compels us to conclude that Congress intended “donations” to include transfers of federal money, and because of the constitutional infirmities such an interpretation would raise, we decline to read 28(d) in that way. Thus, political parties remain free to make or direct donations of money to any tax-exempt organization that has otherwise, been raised in compliance with FEC A. New FEC A 2(e)’s Restrictions on Federal Candidates and Officeholders New FECA 2(e) regulates the raising and soliciting of soft money by federal candidates and 2 U. S. C. 441i(e) t prohibits federal candidates and officeholders from “solicit[ing], receiving], directing], transfer[ing], or spend[ing]” any soft money in connection with federal 441i(e)(l). t limits the ability of federal candidates and officeholders to solicit, receive, direct, transfer, or spend soft money in connection with state and local 441i(e)(l)(B).70 Section 2(e)’s general prohibition on solicitations admits of a number of exceptions. For instance, federal candidates and officeholders are permitted to “attend, speak, or be a featured guest” at a state or local party fundraising event. 2 U. S. C. 441i(e)(). Section 2(e) specifically provides *182that federal candidates and officeholders may make solicitations of soft money to 501(c) organizations whose primary purpose is not to engage in “Federal election activities] ” as long as the solicitation does not specify how the funds will be spent, 2 U. S. C. 441i(e)(4); to 501(c) organizations whose primary purpose is to engage in “Federal election activities]” as long as the solicitations are limited to individuals and the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. 44(e)(4)(B); and to 501(c) organizations for the express purpose of carrying out such activities, again so long as the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. 441i(e)(4)(B). No party seriously questions the constitutionality of 2(e)’s general ban on donations of soft money made directly to federal candidates and officeholders, their agents, or entities established or controlled by them. Even on the narrowest reading of a regulation restricting donations to a federal candidate, regardless of the ends to which those funds are ultimately put, qualifies as a contribution limit subject to less rigorous scrutiny. Such donations have only marginal speech and associational value, but at the same time pose a substantial threat of corruption. By severing the most direct link between the soft-money donor and the federal candidate, 2(e)’s ban on donations of soft money is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and Section 2(e)’s restrictions on solicitations are justified as valid anticireumvention measures. Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself. Without some restriction on solicitations, federal candidates and officeholders could easily avoid FECA’s contribution limits by so*18liciting funds from large donors and restricted sources to like-minded organizations engaging in federal election activities. As the record demonstrates, even before the passage of BCRA, federal candidates and officeholders had already begun soliciting donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party’s, electoral cause. See 5 U. S., 8 (quoting fundraising letter from a Congressman explaining to contributor that “ ‘you are at the limit of what you can directly contribute to my campaign,’ but ‘you can further help my campaign by assisting the Republican Party’ ”); -0 (surveying evidence of federal officeholders soliciting funds to state and local parties); ; (surveying evidence of federal officeholders soliciting funds for nonprofits for electioneering purposes); The incentives to do so, at least with respect to solicitations to tax-exempt organizations, will only increase with Title ’s restrictions on the raising and spending of soft money by national, state, and local parties. Section 2(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and Rather than place an outright ban on solicitations to tax-exempt organizations, 2(e)(4) permits limited solicitations of soft money. 2 U. S. C. 441i(e)(4). This allowance accommodates individuals who have long served as active members of nonprofit organizations in both their official and individual capacities. Similarly, 2(e)(1)(B) and 2(e)() preserve the traditional fundraising role of federal officeholders by providing limited opportunities for federal candidates and officeholders to associate with their state and local colleagues through joint fundraising activities. 2 U. S. C. 441i(e)(l)(B), 441i(e)(). Given these many exceptions, as well as the substantial threat of corruption or its appearance posed by dona*184tions to or at the behest of federal candidates and officeholders, 2(e) is clearly constitutional. We accordingly uphold 2(e) against plaintiffs’ First Amendment challenge. New FECA 2(f)’s Restrictions on State Candidates and Officeholders The final provision of Title is new FECA 2(f). 2 U. S. C. 441i(f) Section 2(f) generally prohibits candidates for state or local office, or state or local officeholders, from spending soft money to fund “public ” as defined in 01(20)(iii) — i. e., a communication that “refers to a clearly identified candidate for Federal office and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that ” 2 U. S. C. 441i(f)(l); 41(20)(iii). Exempted from this restriction are made in connection with an election for state or local office which refer only to the state or local candidate or officeholder making the expenditure or to any other candidate for the same state or local 441i(f)(2). Section 2(f) places no cap on the amount of money that state or local candidates can spend on any activity. Rather, like 2(a) and 2(b), it limits only the source and amount of contributions that state and local candidates can draw on to fund expenditures that directly impact federal And, by regulating only contributions used to fund “public” 2(f) focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and Plaintiffs advance two principal arguments against 2(f). We have already rejected the first argument, that the definition of “public ” in new FECA 01(20)(iii) is unconstitutionally vague and overbroad. See n. We add only that, plaintiffs’ and Justice Kennedy’s contrary reading notwithstanding, post, at 16-*18517, this provision does not prohibit a state or local candidate from advertising that he has received a federal officeholder’s endorsement.71 The second argument, that soft-money contributions to state and local candidates for “public ” do not corrupt or appear to corrupt federal candidates, ignores both the record in this litigation and Congress’ strong interest in preventing circumvention of otherwise valid contribution limits. The proliferation of sham issue ads has driven the soft-money explosion. Parties have sought out every possible way to fund and produce these ads with soft money: They have labored to bring them under the FEC’s allocation regime; they have raised and transferred soft money from national to state party committees to take advantage of favorable allocation ratios; and they have transferred and solicited funds to tax-exempt organizations for production of such ads. We will not upset Congress’ eminently reasonable prediction that, with these other avenues no longer available, state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertisin We therefore uphold 2(f) against plaintiffs’ First Amendment challenge.72 *186B Several plaintiffs contend that Title exceeds Congress’ Election Clause authority to “make or alter” rules governing federal elections, U. S. Const., Art. 4, and, by impairing the authority of the to regulate their own elections, violates constitutional principles of federalism. n examining congressional enactments for infirmity under the Tenth Amendment, this Court has focused its attention on laws that commandeer the and state officials in carrying out federal regulatory schemes. See ; New By contrast, Title of BCRA only regulates the conduct of private parties. t imposes no requirements whatsoever upon or state officials, and, because it does not expressly pre-empt state legislation, it leaves the free to enforce their own restrictions on the financing of state electoral campaigns. t is true that Title as amended, prohibits some fundraising tactics that would otherwise be permitted under the laws of various and that it may therefore have an indirect effect on the financing of state electoral campaigns. But these indirect effects do not render BCRA t is not uncommon for federal law to prohibit private conduct that is legal in some See, e. United 52 U. S. ndeed, such conflict is inevitable in areas of law that involve both state and federal concerns. t is not in and of itself a marker of constitutional infirmity. See Ex parte Siebold, U. S. 71, 92 Of course, in maintaining the federal system envisioned by the Founders, this Court has done more than just prevent Congress from commandeering the We have policed the absolute boundaries of congressional power under Article See United, ; United But plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Congress has a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption of federal electoral processes through the means it has chosen. ndeed, our analysis turns on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that finding, we cannot conclude that those interests are insufficient to ground Congress’ exercise of its Elections Clause power. See C Finally, plaintiffs argue that Title violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminates against political parties in favor of special interest groups such as the National Rifle Association, American Civil Liberties Union, and Sierra Club. As explained earlier, BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. nterest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and *188broadcast advertising (other than electioneering ). We conclude that this disparate treatment does not offend the Constitution. As an initial matter, we note that BCRA actually favors political parties in many ways. Most obviously, party committees are entitled to receive individual contributions that substantially exceed FECA’s limits on contributions to non-party political committees; individuals can give $25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty political committees. n addition, party committees are entitled in effect to contribute to candidates by making coordinated expenditures, and those expenditures may greatly exceed the contribution limits that apply to other donors. See 2 U. S. C. 441a(d) More importantly, however, Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a system of campaign finance regulation. See National Right to nterest groups do not select slates of candidates for nterest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the Legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal Congress’ efforts at campaign finance regulation may account for these salient differences. Taken seriously, plaintiffs’ equal protection arguments would call into question not just Title of BCRA, but much of the pre-existing structure of FECA as well. We therefore reject those arguments. Accordingly, we affirm the judgment of the District Court insofar as it upheld 2(e) and 2(f). We reverse the *189judgment of the District Court insofar as it invalidated 2(a), 2(b), and 2(d). > Title of BCRA, entitled “Noncandidate Campaign Expenditures,” is divided into two subtitles: “Electioneering Communications” and “ndependent and Coordinated Expenditures.” We consider each challenged section of these subtitles in turn. BCRA 201 ’s Definition of “Electioneering Communications ” The first section of Title 201, comprehensively amends FECA 04, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, “electioneering” to replace the narrowing construction of FECA’s disclosure provisions adopted by this Court in As further below, that construction limited the coverage of FECA’s disclosure requirement to expressly advocating the election or defeat of particular candidates. By contrast, the term “electioneering communication” is not so limited, but is defined to encompass any “broadcast, cable, or satellite communication” that “() refers to a clearly identified candidate for Federal office; “() is made within— “(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or “(bb) 0 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and “() in the case of a communication which refers to a candidate for an office other than President or Vice *190President, is targeted to the relevant electorate.” 2 U. S. C. 44(f)()(i)7 New FECA 04(f)()(C) further provides that a communication is “‘targeted to the relevant electorate’” if it “can be received by 50,000 or more persons” in the district or State the candidate seeks to represent. 2 U. S. C. ' 44(f)()(C). n addition to setting forth this definition, BCRA’s amendments to FECA 04 specify significant disclosure requirements for persons who fund electioneering BCRA’s use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA 20, which amends FECA 16(b)(2)) restricts corporations’ and labor unions’ funding of electioneering Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts. The major premise of plaintiffs’, challenge to BCRA’s use of the term “electioneering communication” is that drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, “electioneering ” without making an exception for those “” that do not meet ’s definition of express That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law. n *191 we began by examining then-(e)(1) which restricted expenditures “ ‘relative to a clearly identified candidate,’” and we found that the phrase “ ‘relative to’ ” was impermissibly -42. We concluded that the vagueness deficiencies could “be avoided only by reading 608(e)(1) as limited to that include explicit words of advocacy of election or defeat of a candidate.”74 We provided examples of words of express advocacy, such as “ ‘vote for,’ ‘elect,’ ‘support,’ ‘defeat,’ [and] ‘reject,’ ” and those examples eventually gave rise to what is now known as the “magic words” requirement. We then considered FECA’s disclosure provisions, including 2 U. S. C. 41(f) which defined “ ‘expendítur[e]’ ” to include the use of money or other assets “ ‘for the purpose of influencing’ ” a federal election. Finding that the “ambiguity of this phrase” posed “constitutional problems,” ib we noted our “obligation to construe the statute, if that can be done consistent with the legislature’s purpose, to avoid the shoals of vagueness,” “To insure that the reach” of the disclosure requirement was “not im-permissibly broad, we construe[d] ‘expenditure’ for purposes of that section in the same way we construed the terms of 608(e) — to reach only funds used for that expressly advocate the election or defeat of a clearly idéñti-fied candidate.” Thus, a plain reading of makes clear that the express advocacy limitation, in both the expenditure and the *192disclosure contexts, was the product of statutory interpretation rather than a constitutional command.75 n narrowly reading the FECA provisions in to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U. S. 28 in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that 's express advocacy category was a product of statutory construction.76 n short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. See ). We have long “ ‘rigidly adhered’ ” to the tenet “ ‘never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied/ ” United U. S. 17, for “[t]he nature of judicial review constrains us to consider the case that is actually before us,” James B. Beam Distilling Consistent with that principle, our decisions in and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the *19permissible scope of provisions regulating campaign-related speech. Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See ndeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that ’s magic-words requirement is functionally 251 F. Supp. 2d, at 0-04 ; at 54 ; Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.77 And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.78 ’s *194express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system. Finally we observe that new FECA 04(f)(),s definition of “electioneering communication” raises none of the vagueness concerns that drove our analysis in The term “electioneering communication” applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, () aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Thus, the constitutional objection that persuaded the Court in to limit FECA’s reach to express advocacy is simply inapposite here. BCRA 201’s Disclosure Requirements Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs’ other concerns about the use of the term “electioneering communication” in amended FECA 04’s disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U. S. C. 44(f)(2), (B), and (D) f the disbursements are made from a corporation’s *195or labor union’s segregated account,79 or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. 44(f)(2)(E), (F). The statement must be filed within 24 hours of each “disclosure date” — a term defined to include the first date and all subsequent dates on which a person’s aggregate undisclosed expenses for electioneering exceed $10,000 for that calendar year. 44(f)(1), (2), and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECA’s disclosure requirements. 44(f)(5). n addition to the failed argument that BCRA’s amendments to FECA 04 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA 04’s disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA 04(f)(5), which governs executory contracts. Relying on BCRA’s severability provision,80 the court held that invalidation of the executory contracts subsection did *196not render the balance of BCRA’s amendments to FECA 04 We agree with the District Court that the important state interests that prompted the Court to uphold FECA’s disclosure requirements — providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions — apply in full to BCRA.81 Accordingly, amply supports application of FECA 04’s disclosure requirements to the entire range of “electioneering” As the authors of the District Court’s per curiam opinion concluded after reviewing evidence concerning the use of purported “issue ads” to influence federal elections: “The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA’s disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain Plaintiffs’ disdain for BCRA’s disclosure provisions is nothing short of surprisin Plaintiffs challenge BCRA’s restrictions on electioneering on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty *197days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be ‘uninhibited, robust, and wide-open.’ McConnell Br. (quoting New York Times 76 U. S. 254, (19)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: ‘The Coalition-Americans ing for Real Change’ (funded by business organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam Wyly). Findings ¶¶44,51,52. Given these tactics, Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. Plaintiffs’ argument for striking down BCRA’s disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.” 251 F. Supp. 2d, The District Court was correct that forecloses a facial attack on the new provision in 04 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering Like our earlier decision in 57 U. S. 44982 recognized *198that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, rejected the contention that FECA’s disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Government’s interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. n unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled -70. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply: “We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” A few years later we used that standard to resolve a minor party’s challenge to the constitutionality of the State of Ohio’s disclosure requirements. We held that the First Amendment prohibits from compelling disclosures that would subject identified persons to “threats, harassment, and reprisals,” and that the District Court’s findings *199had established a “reasonable probability” of such a result.8 Brown v. Socialist ’74 Campaign Comm. (Ohio), n this litigation the District Court applied ’s evi-dentiary standard and found — consistent with our conclusion in and in contrast to that in Brown — that the evidence did not establish the requisite “reasonable probability” of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a “lack of specific evidence about the basis for these concerns.” We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in our rejection of plaintiffs’ facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement. We are unpersuaded by plaintiffs’ challenge to new FECA 04(f)(5), which requires disclosure of executory contracts for electioneering : *200“Contracts to disburse “For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement.” 2 U. S. C. 44(f)(5) n our view, this provision serves an important purpose the District Court did not advance. BCRA’s amendments to FECA 04 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering must make disclosures to the FEC. Nor do they question the need to make the contents of parties’ disclosure statements available to curious voters in advance of Given the relatively short timeframes in which electioneering are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. n the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection down-payment of less than $10,000, with the balance payable after the election. ndeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely. The record contains little evidence identifying any harm that might flow from the enforcement of 04(f)(5)’s “advance” disclosure requirement. The District Court speculated that disclosing information about contracts “that have *201not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace.” Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. t is ho doubt true that 04(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.84 But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended 04 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of 04(f)(5)’s treatment of executory contracts. As the District Court observed, amended FECA 04’s disclosure requirements are constitutional because they ‘“d[o] not prevent anyone from speakin’” bid, (quoting Brief for FEC in in No. 02-582 et al. (DC), p. 2). Moreover, the required disclosures “‘would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates’ supporters before election day.’” (quoting Brief for FEC in ) (emphasis in original). Accordingly, we affirm the judgment of the District Court insofar as it upheld the disclosure requirements in amended FECA 04 and rejected the facial attack on the provisions relating to donors *of $1,000 or more, and reverse that judgment insofar as it invalidated FECA 04(f)(5). BCRA ’s Treatment of “Coordinated Communications” as Contributions Section of BCRA amends FECA 15(a)(7)(C) to provide that disbursements for “electioneering communication[s]” that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party. 2 U. S. C. 441a(a)(7)(C)85 The amendment clarifies the scope of the preceding subsection, 15(a)(7)(B), which states more generally that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of” a candidate or party will constitute contributions. 2 U. S. C. 441a(a)(7)(B)(i)-(ii) (2000 ed. and Supp. ). n we construed the statutory term “expenditure” to reach only spending for express -44, and n. 52 (addressing (e)(1) which placed a $1,000 cap on expenditures “/relative to a clearly identified candidate’”)., BCRA pre-empts a possible claim that 15(a)(7)(B) is similarly limited, such that coordinated expenditures for that avoid express advocacy cannot be counted as contributions. As we ex*20plained see 0-19, 's narrow interpretation of the term “expenditure” was not a constitutional limitation on Congress’ power to regulate federal Accordingly, there is no reason why Congress may not treat coordinated disbursements for electioneering in the same way it treats all other coordinated expenditures. We affirm the judgment of the District Court insofar as it held that plaintiffs had advanced “no basis for finding Section ” BCRA 20’s Prohibition of Corporate and Labor Disbursements for Electioneering Communications Since our decision in Congress’ power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA 16, 2 U. S. C. 441b (2000 ed. and Supp. ), has provided corporations and unions with a constitutionally sufficient opportunity to engage in express That has been this Court’s unanimous view,86 and it is not challenged in this litigation. *204Section 20 of BCRA amends FECA 16(b)(2) to extend this rule, which previously applied only to express advocacy, to all “electioneering ” covered by the definition of that term in amended FECA 04(f)(), 2 U. S. C. 441b(b)(2)87 Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering with PAC money, it is “simply wrong” to view the provision as a “complete ban” on expression rather than a regulation. 59 U. S., As we explained in : “The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see [2 U. S. C.] 42-44, without jeopardizing the associational rights of advocacy organizations’ members.” at 16 See Rather than arguing that the prohibition on the use of general treasury funds is a complete ban that operates as a prior restraint, plaintiffs instead challenge the expanded regulation on the grounds that it is both overbroad and underinclu-sive. Our consideration of plaintiffs’ challenge is informed by our earlier conclusion that the distinction between ex*205press advocacy and so-called issue advocacy is not constitutionally compelled. n that light, we must examine the degree to which BCRA burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden. The latter question — whether the state interest is compelling — is easily answered by our prior decisions regarding campaign finance regulation, which “represent respect for the ‘legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.’” (quoting National Right to 459 U. S., at -0). We have repeatedly sustained legislation aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” ; see ; National Right to at -0. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against “‘circumvention of [valid] contribution limits.’” (quoting 5 U. S., 6, and n. 18.) n light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express After all, “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,” Monitor Patriot and “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation,” 424 U. S., Rather, plaintiffs argue that *206the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering This argument fails to the extent that the issue ads broadcast during the 0- and 60-day periods preceding federal primary and general elections are the functional equivalent of express The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were, aired during those relatively brief preelection timespans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. See 251 F. Supp. 2d, at 07-12 ; id,., at 58-587 ; Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 1-14; App. 10-1 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 57-578 ; Moreover, whatever the precise percentage may have been in the past, in the.future corporations and unions may finance genuine issue ads during those timeframes by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.88 *207We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA 16(b)(2) is overbroad. See 41 U. S. 601, 61 (197). Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not “justify prohibiting all enforcement” of the law unless its application to protected speech is substantial, “not only in an absolute sense, but relative to the scope of the law’s plainly legitimate applications.” 59 U. S. (200). Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion. Plaintiffs argue that FECA 16(b)(2)’s segregated-fund requirement for electioneering is un-derinclusive because it does not apply to advertising in the print media or on the nternet. 2 U. S. C. 44(f) () The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. -57 ; ; 1998 Senate Report 4465, 4474-41; 5 at 75-7525. As we held in “reform may take one step at a time, *208addressing itself to the phase of the problem which seems most acute to the legislative mind.” 424 U. S., 6 One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress’ line-drawin n addition to arguing that 16(b)(2)’s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA 04(f)()(B)(i) excludes from the definition of electioneering any “communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate.” 2 U. S. C. 44(f)()(B)(i) Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 04(f)()(B)(i)’s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECA’s provisions. The statute’s narrow exception is wholly consistent with First Amendment principles. “A valid distinction exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public.” Numerous federal statutes have drawn this distinction to ensure that the law “does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.” bid, ; see, e. (9)(B)(i) ; 15 U. S. C. 1801-1804 ; (a) (excepting newscasts, news *interviews, and news documentaries from the requirement that broadcasters provide equal time to candidates for public office).89 We affirm the District Court’s judgment to the extent that it upheld the constitutionality of FECA 16(b)(2); to the extent that it invalidated any part of 16(b)(2), we reverse the judgment. BCRA 204’s Application to Nonprofit Corporations Section 204 of BCRA, which adds FECA 16(c)(6), applies the prohibition on the use of general treasury funds to pay for electioneering to not-for-profit corporations.90 Prior to the enactment of BCRA, FECA re*0quired such corporations, like business corporations, to pay for their express from segregated funds rather than from their general treasuries. Our recent decision in Federal Election 59 U. S. 146 (200), confirmed that the requirement was valid except insofar as it applied to a subcategory of corporations described as “MCFL organizations,” as defined by our decision in MCFL, 479 U. S. 2891 The constitutional objection to applying FECA’s segregated-fund requirement to so-called MCFL organizations necessarily applies with equal force to FECA 16(c)(6). Our decision in MCFL related to a carefully defined category of entities. We identified three features of the organization at issue in that case that were central to our holding: “First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. f political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with *1the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.” d, 4. That FECA 16(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a sufficient reason to invalidate the entire section. f a reasonable limiting construction “has been or could be placed on the challenged statute” to avoid constitutional concerns, we should embrace it. Broadrick, 41 U. S., at 61; Because our decision in the MCFL case was on the books for many years before BCRA was enacted, we presume that the legislators who drafted 16(c)(6) were fully aware that the provision could not validly apply to MCFL-type entities. See ; ndeed, the Government itself concedes that 16(c)(6) does not apply to MCFL organizations. As so construed, the provision is plainly valid. See - Accordingly, the judgment of the District Court upholding 16(c)(6) as so limited is affirmed. BCRA 2’s Reporting Requirement for $1,000 Expenditures Section 2 of BCRA amends FECA 04 to add a new disclosure requirement, FECA 04(g), which applies to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election. *2Like FECA 04(f)(5), new 04(g) treats the execution of a contract to make a disbursement as the functional equivalent of a payment for the goods or services covered by the contract.92 n challenging this provision, plaintiffs renew the argument we rejected in the context of 04(f)(5): that they have a constitutional right to postpone any disclosure until after the performance of the services purchased by their expenditure. The District Court held that the challenge to FECA 04(g) was not ripe because the FEC has issued regulations “providing] Plaintiffs with the exact remedy they seek”— that is, specifically declining to “require disclosure of independent express advocacy expenditures prior to their ‘pub-life] dissemination].’ ” and n. 85 (citing 68 Fed. Re 404, 452 (200) (codified at CFR 109.10(c), (d) (200))). We are not certain that a regulation purporting to limit the range of circumstances in which a speech-burdening statute will be enforced can render nonjusticiable a facial challenge to the (concededly broader) underlying statute. Nevertheless, we need not separately address the constitutionality of 04(g), for our ruling as to BCRA 201, see 4-, renders the issue essentially moot. * BCR As Requirement that Political Parties Choose Between Coordinated and ndependent Expenditures After Nominating a Candidate Section of BCRA amends FECA 15(d)(4) to impose certain limits on party spending during the postnomination, preelection period.9 At first blush, the text of 15(d)(4) appears to require political parties to make a straightforward choice between using limited coordinated expenditures or unlimited independent expenditures to support their nominees. All three judges on the District Court concluded that the provision placed an unconstitutional burden on the parties’ right to make unlimited independent expenditures. *4251 F. Supp. 2d, at 88 ; 5-808 n the end, we agree with that conclusion but believe it important to identify certain complexities in the text of 15(d)(4) that affect our analysis of the issue. Section 15 of FECA sets forth various limitations on contributions and expenditures by individuals, political parties, and other groups. Section 15(a)(2) restricts “contributions” by parties to $5,000 per candidate. 2 U. S. C. 441a(a)(2). Because 15(a)(7) treats expenditures that are coordinated with a candidate as contributions to that candidate, 2 U. S. C. 441a(a)(7) (2000 ed. and Supp. ), the $5,000 limit operates as a cap on parties’ coordinated expenditures. Section 15(d), however, provides that, “Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions,” political parties may make “expenditures” in support of their candidates under a formula keyed to the voting-age population of the candidate’s home State or, in the case of a candidate for President, the voting-age population of the United 2 U.S.C. 441a(d)-() (2000 ed. and Supp. ).94 n *5the year 2000, that formula permitted expenditures ranging from $,780 to $67,650 for House of Representatives races, and from $67,650 to $1.6 million for Senate races. 5 U. S., at 49, n. We held in that parties have a constitutional right to make unlimited independent expenditures, and we invalidated 15(d) to the extent that it restricted such expenditures. As a result of that decision, 15(d) applies only to coordinated expenditures, replacing the $5,000 cap on contributions set out in 15(a)(2) withthe more generous limitations prescribed by 15(d)(1) — (). We sustained that limited application in Section of BCRA amends 15(d) by adding a new paragraph (4). New 15(d)(4) provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that “makes any independent expenditure (as defined in section [01(17)])” is thereby barred from making “any coordinated expenditure under this subsection.” 2 U. S. C. 441a(d)(4)(i) The phrase “this subsection” is a reference to subsection (d) of 15. Thus, the consequence of making an independent expenditure is not a complete prohibition of any coordinated expenditure: Although the party cannot take advantage of the increased spending limits under 15(d)(1) — (B), it still may make up to $5,000 in coordinated expenditures under 15(a)(2). As the difference between $5,000 and $1.6 million demonstrates, *6however, that is a significant cost to impose on the exercise of a constitutional right. The second option is the converse of the first. t provides that a party that makes any coordinated expenditure “under this subsection” (i e., one that exceeds the ordinary $5,000 limit) cannot make “any independent expenditure (as defined in section [01(17)]) with respect to the candidate.” 2 U. S. C. 441a(d)(4)(ii). Section 01(17) defines “‘independent expenditure’” to mean a noncoordinated expenditure “expressly advocating the election or defeat of a clearly identified candidate.” (17).95 Therefore, as was true of the first option, the party’s choice is not as stark as it initially appears: The consequence of the larger coordinated expenditure is not a complete prohibition of any independent expenditure, but the forfeiture of the right to make independent expenditures for express As we explained in our discussion of the provisions relating to. electioneering express advocacy represents only a tiny fraction of the political made for the purpose of electing or defeating candidates during a campaign. Regardless of which option parties choose, they remain free to make independent ex*7penditures for the vast majority of campaign ads that avoid the use of a few magic words. n sum, the coverage of new FECA 15(d)(4) is much more limited than it initially appears. A party that wishes to spend more than $5,000 in coordination with its nominee is forced to forgo only the narrow category of independent expenditures that make use of magic words. But while the category of burdened speech is relatively small, it plainly is entitled to First Amendment protection. See -45, Under 15(d)(4), a political party’s exercise of its constitutionally protected right to engage in “core First Amendment expression,” results in the loss of a valuable statutory benefit that has been available to parties for many years. To survive constitutional scrutiny, a provision that has such consequences must be supported by a meaningful governmental interest. The interest in requiring political parties to avoid the use of magic words is not such an interest. We held in that a $1,000 cap on expenditures that applied only to express advocacy could not be justified as a means of avoiding circumvention of contribution limits or preventing corruption and the appearance of corruption because its restrictions could easily be evaded: “So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” The same is true in this litigation. Any claim that a restriction on independent express advocacy serves a strong Government interest is belied by the overwhelming evidence that the line between express advocacy and other types of election-influencing expression is, for Congress’ purposes, functionally ndeed, Congress enacted the new “electioneering communication[s]” provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing designed to influence candidate n light of that recognition, we are hard pressed to conclude that any *8meaningful purpose is served by 15(d)(4)’s burden on a party’s right to engage independently in express The Government argues that 15(d)(4) nevertheless is constitutional because it is not an outright ban (or cap) on independent expenditures, but rather offers parties a voluntary choice between a constitutional right and a statutory benefit. Whatever merit that argument might have in the abstract, it fails to account for new 15(d)(4)(B), which provides: “For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee.” 2 U. S. C. 441a(d)(4)(B) Given that provision, it simply is not the case that each party committee can make a voluntary and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on coordinated spending under 15(d)(1) — (). nstead, the decision resides solely in the hands of the first mover, such that a local party committee can bind both the state and national parties to its chosen spending option.96 t is one thing to say that Congress may require a party committee to give *9up its right to make independent expenditures if it believes that it can accomplish more with coordinated expenditures. t is quite another thing, however, to say that the RNC must limit itself to $5,000 in coordinated expenditures in support of its Presidential nominee if any state or local committee first makes an independent expenditure for an ad that uses magic words. That odd result undermines any claim that new 15(d)(4) can withstand constitutional scrutiny simply because it is cast as a voluntary choice rather than an outright prohibition on independent expenditures. The portion of the judgment of the District Court invalidating BCRA is affirmed. BCRA 2U’s Changes in FECA’s Provisions Covering Coordinated Expenditures Ever since our decision in it has been settled that expenditures by a noncandidate that are “controlled by or coordinated with the candidate and his campaign” may be treated as indirect contributions subject to FECA’s source and amount Thus, FECA 15(a)(7)(B)(i) long has provided that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.” 2 U. S. C. 441a(a) (7)(B)(i). Section 4(a) of BCRA creates a new FECA 15(a)(7)(B)(ii) that applies the same rule to expenditures coordinated with “a national, State, or local committee of a political party.” 2 U. S. C. 441a(a)(7)(B)(ii)97 Sections 4(b) and (c) direct the FEC to repeal *220its current regulations98 and to promulgate new regulations dealing with “coordinated ” paid for by persons other than candidates or their parties. Subsection (c) provides that the new “regulations shall not require agreement or formal collaboration to establish coordination.” Note following 2 U. S.'C. 441a(a) Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to candidates. They argue instead that new FECA 15(a)(7)(B)(ii) and its implementing regulations are overbroad and unconstitutionally vague because they permit a finding of coordination even in the absence of an agreement. Plaintiffs point out that political supporters may be subjected to criminal liability if they exceed the contribution limits with expenditures that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of “coordination” and argue any definition that does not hinge on the presence of an agreement cannot provide the “precise guidance” that the First Amendment demands. Brief for Appellant Chamber of Commerce of the United et al. in No. 02-1756, p. As plaintiffs readily admit, that argument reaches beyond BCRA, calling into question FECA’s pre-existing provisions governing expenditures coordinated with candidates. *2We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated — and therefore may be regulated as indirect contributions — and expenditures that truly are independent. We repeatedly have struck down limitations on expenditures “made totally independently of the candidate and his campaign,” on the ground that such limitations “impose far greater restraints on the freedom of speech and association” than do limits on contributions and coordinated expenditures, while “failing] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” See 518 U. S., at 61-614 We explained in : “Unlike contributions, independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Thus, the rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of an agreement and everything to do with the functional consequences of different types of expenditures. ndependent expenditures “are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate’s point of view.” 5 U. S., 6. By contrast, expenditures made after a “wink or nod” often will be “as useful to the candidate as cash.” 2, 446. For that reason, Congress has always *222treated expenditures made “at the request or suggestion of” a. candidate as coordinated.99 2 U. S. C. 441a(a)(7)(B)(i). A supporter easily could comply with a candidate’s request or suggestion without first agreeing to do so, and the resulting expenditure would be ‘“virtually indistinguishable from [a] simple contribution],’” 4-445. Therefore, we cannot agree with the submission that new FECA 15(a)(7)(B)(ii) is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement. Nor are we persuaded that the absence of an agreement requirement renders 15(a)(7)(B)(ii) unconstitutionally An agreement has never been required to support a finding of coordination with a candidate under 15(a)(7) (B)(i), which refers to expenditures made “in cooperation, consultation, or concer[t] with, or at the request or suggestion of” a candidate. Congress used precisely the same language in new 15(a)(7)(B)(ii) to address expenditures coordinated with parties. FECA’s longstanding definition of coordination “delineates its reach in words of common understandin” 90 U. S. 6, Not surprisingly, therefore, the relevant statutory language has survived without constitutional challenge for almost three decades. Although that fact does not insulate the definition from constitutional scrutiny, it does undermine plaintiffs’ claim that the language of 15(a)(7)(B)(ii) is intolerably Plaintiffs do not present any evidence that *22the definition has chilled political speech, whether between candidates and their supporters or by the supporters to the general public. See 5 U. S. 844, And, although plaintiffs speculate that the FEC could engage in intrusive and politically motivated investigations into alleged coordination, they do not even attempt to explain why an agreement requirement would solve that problem. Moreover, the only evidence plaintiffs have adduced regarding the enforcement of the coordination provision during its 27-year history concerns three investigations in the late 1990’s into groups on different sides of the political aisle. Such meager evidence does not support the claim that 15(a)(7)(B)(ii) will “foster ‘arbitrary and discriminatory application.’” (quoting 408 U. S., 8-109). We conclude that FECA’s definition of coordination gives “fair notice to those to whom [it] is directed,” American Communications 9 U. S. 82, and is not unconstitutionally Finally, portions of plaintiffs’ challenge to BCRA 4 focus on the regulations the FEC has promulgated under 4(c). CFR 109. (200). As the District Court explained, issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceedin Thus, we agree with the District Court that plaintiffs’ challenge to 4(b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself. The portions of the District Court judgment rejecting plaintiffs’ challenges to BCRA 4 are affirmed. V Many years ago we observed that “[t]o say that Congress is without power to pass appropriate legislation to safe*224guard an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” We abide by that conviction in considering Congress’ most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. n the main we uphold BCRA’s two principal, complementary features: the control of soft money and the regulation of electioneering Accordingly, we affirm in part and reverse in part the District Court's judgment with respect to Titles and t is so ordered. Chief Justice Rehnquist delivered the opinion of the Court with respect to BCRA Titles and V.* This opinion addresses issues involving miscellaneous Title and V provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), For the reasons below, we affirm the judgment of the District Court with respect to these provisions. BCRA 05 BCRA 05 amends the federal Communications Act of 194 (Communications Act) 15(b), as amended, which requires that, 45 days before a primary or 60 days before a general election, broadcast stations must sell a qualified candidate the “lowest unit charge *225of the station for the same class and amount of time for the same period,” (b)(1). Section 05’s amendment, in turn, denies a candidate the benefit of that lowest unit charge unless the candidate “provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office,” or the candidate, in the manner prescribed in BCRA 05(a)(), clearly identifies herself at the end of the broadcast and states that she approves of the broadcast. 47 U. S. C. 15(b)(2), (C) The McConnell plaintiffs challenge 05. They argue that Senator McConnell’s testimony that he plans to run advertisements critical of his opponents in the future and that he had run them in the past is sufficient to establish standin We think not. Article of the Constitution limits the “judicial power” to the resolution of “cases” and “controversies.” One element of the “bedrock” case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. 5 U. S. 8, On many occasions, we have reiterated the three requirements that constitute the “‘irreducible constitutional minimum’” of standin Vermont Agency of Natural Resources v. United ex rel. First, a plaintiff must demonstrate an "injury in fact,” which is “concrete,” "distinct and palpable,” and “actual or imminent.” Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not th[e] result [of] some third party not before the court.’” ). Third, a plaintiff must show the *226“ ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” at As noted 05 amended the Communications Act’s requirements with respect to the lowest unit charge for broadcasting time. But this price is not available to qualified candidates until 45 days before a primary election or 60 days before a general election. Because Senator McConnell’s current term does not expire until 2009, the earliest day he could be affected by 05 is 45 days before the Republican primary election in 2008. This alleged injury in fact is too remote temporally to satisfy Article standin See (“A threatened injury must be certainly impending to constitute injury in fact” ); see Los (198) Because we hold that the McConnell plaintiffs lack standing to challenge 05, we affirm the District Court’s dismissal of the challenge to BCRA 05. BCRA 07 BCRA 07, which amends 15(a)(1) of the Federal Election Campaign Act of 1971 (FECA), as added, increases and indexes for inflation certain FECA contribution limits. The Adams and Paul plaintiffs challenge 07 in this Court. Both groups contend that they have standing to sue. Again, we disagree. The Adams plaintiffs, a group consisting of voters, organizations representing voters, and candidates, allege two injuries, and argue each is legally cognizable, “as established by case law outlawing electoral discrimination based on economic status and upholding the right to an equally meaningful vote” Brief for Appellant Adams et al. in No. 02-1740, p. 1. *227First, they assert that the increases in hard-money limits enacted by 07 deprive them of an equal ability to participate in the election process based on their economic status. But, to satisfy our standing requirements, a plaintiff’s alleged injury must be an invasion of a concrete and particularized legally protected interest. We have noted that “[although standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal,. it often turns on the nature and source of the claim asserted.” We have never recognized a legal right comparable to the broad and diffuse injury asserted by the Adams plaintiffs. Their reliance on this Court’s voting rights cases is misplaced. They rely on cases requiring nondiscriminatory access to the ballot and a single, equal vote for each voter. See, e., ; 8 U. S. 66, None of these plaintiffs claims a denial of equal access to the ballot or the right to vote. nstead, the plaintiffs allege a curtailment of the scope of their participation in the electoral process. But we have noted that “ [political ‘free trade’ does not necessarily require that all who participate in the political marketplace do so with exactly equal resources.” Federal Election 479 U. S. 28, ; see (rejecting the asserted government interest of “equalizing the relative ability of individuals and groups to influence the outcome of elections” to justify the burden on speech presented by expenditure limits). This claim of injury by the Adams plaintiffs is, therefore, not to a legally cognizable right. *228Second, the Adams plaintiffs-candidates contend that they have suffered a competitive injury. Their candidates “do not wish to solicit or accept large campaign contributions as permitted by BCRA” because ‘Whey believe such contributions create the appearance of unequal access and influence.” Adams Complaint ¶ 5. As a result, they claim that BCRA 07 puts them at a “fundraising disadvantage,” making it more difficult for them to compete in See The second claimed injury is based on the same premise as the first: BCRA 07’s increased hard-money limits allow plaintiffs-candidates’ opponents to raise more money, and, consequently, the plaintiffs-candidates’ ability to compete or participate in the electoral process is diminished. But they cannot show that their alleged injury is “fairly traceable” to BCRA 07. See 504 U. S. at 5. Their alleged inability to compete stems not from the operation of 07, but from their own personal “wish” not to solicit or accept large contributions, i.e., their personal choice. Accordingly, the Adams plaintiffs fail here to allege an injury in fact that is “fairly traceable” to BCRA. The Paul plaintiffs maintain that BCRA 07 violates the Freedom of Press Clause of the First Amendment. They contend that their political campaigns and public interest advocacy involve traditional press activities and that, therefore, they are protected by the First Amendment’s guarantee of the freedom of press. The Paul plaintiffs argue that the contribution limits imposed by BCRA 07, together with the individual and political action committee contribution limitations of FECA 15, impose unconstitutional editorial control upon candidates and their campaigns. The Paul plaintiffs argue that by imposing economic burdens upon them, but not upon the institutional media, see 2 U. S. C. 41(9)(B)(i) (exempting “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled *229by any political party, political committee, or candidate” from the definition of expenditure), BCRA 07 and FECA 15 violate the freedom of the press. The Paul plaintiffs cannot show the ‘“substantial likelihood’ that the requested relief will remedy [their] alleged injury in fact,” 529 U. S., at The relief the Paul plaintiffs seek is for this Court to strike down the contribution limits, removing the alleged disparate editorial controls and economic burdens imposed on them. But 07 merely increased and indexed for inflation certain FECA contribution limits. This Court has no power to adjudicate a challenge to the FECA limits in this litigation because challenges to the constitutionality of FECA provisions are subject to direct review before an appropriate en banc court of appeals, as provided in 2 U. S. C. 47h, not in the three-judge District Court convened pursuant to BCRA 40(a). Although the Court has jurisdiction to hear a challenge to 07, if the Court were to strike down the increases and indexes established by BCRA 07, it would not remedy the Paul plaintiffs’ alleged injury because both the limitations imposed by FECA and the exemption for news media would remain unchanged. A ruling in the Paul plaintiffs’ favor, therefore, would not redress their alleged injury, and they accordingly lack standin See Steel 52 U. S. 8,105-0 For the reasons we affirm the District Court’s dismissal of the Adams and Paul plaintiffs’ challenges to BCRA 07 for lack of standin BCRA 04, S16, and 19 BCRA 04 and 16, which amend FECA 15, and BCRA 19, which adds FECA 15A, collectively known as the “millionaire provisions,” provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate’s opponent spends a triggering amount *20of his personal fiinds.1 The provisions eliminate the coordinated expenditure limits in certain circumstances.2 n their challenge to the millionaire provisions, the Adams plaintiffs allege the same injuries that they alleged with regard to BCRA 07. For the reasons they fail to allege a cognizable injury that is “fairly traceable” to BCRA. Additionally, as the District Court noted, “none of the Adams plaintiffs is a candidate in an election affected by the millionaire provisions — i. e., one in which an opponent chooses to spend the triggering amount in his own funds— and it would be purely ‘conjectural’ for the court to assume that any plaintiff ever will be.” 41 (DC 200) (Henderson, J., concurring in judgment in part and dissenting in part) (quoting 504 U. S., ). We affirm the District Court’s dismissal of the Adams plaintiffs’ challenge to the millionaire provisions for lack of standin BCRA FECA 18 requires that certain “authorized” by a candidate or his political committee clearly identify the candidate or committee or, if not so authorized, identify the payor and announce the lack of authorization. 2 U. S. C. 441d (2000 ed. and Supp. ). BCRA makes several amendments to FECA 18, among them the expansion of this identification regime to include disbursements for “electioneering ” as defined in BCRA 201. *The McConnell and Chamber of Commerce plaintiffs challenge BCRA by simply noting that along with all of the “electioneering ” provisions of BCRA, is We disagree. We think BCRA ’s inclusion of electioneering in the FECA 18 disclosure regime bears a sufficient relationship to the important governmental interest of “shed[ding] the light of publicity” on campaign financin Assuming as we must that FECA 18 is valid to begin with, and that FECA 18 is valid as amended by BCRA ’s amendments other than the inclusion of electioneering the challenged inclusion of electioneering is not itself We affirm the District Court’s decision upholding ’s expansion of FECA 18(a) to include disclosure of disbursements for electioneering BCRA 18 BCRA 18, which adds FECA 24, prohibits individuals “17 years old or younger” from making contributions to candidates and contributions or donations to political parties. 2 U. S. C. 441k The McConnell and Echols plaintiffs challenge the provision; they argue that 18 violates the First Amendment rights of minors. We agree. Minors enjoy the protection of the First Amendment. See, e. Tinker v. Des Moines ndependent Community School Dist., 9 U. S. 50, 5-51 Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. See -22. When the Government burdens the right to contribute, we apply heightened scrutiny. See ante, at 16 (joint opinion of and O’Connor, JJ.) (“[A] contribution limit involving even ‘“significant interference”’ with associational rights is nevertheless valid if it satisfies the ‘lesser demand’ of being ‘ “closely drawn” ’ to match a ‘ “sufficiently important *22interest’'”’ (quoting Federal Election 59 U. S. 146, 1 (200))). We ask whether there is a “sufficiently important interest” and whether the statute is “closely drawn” to avoid unnecessary abridgment of First Amendment freedoms. Ante, at 16; The Government asserts that the provision protects against corruption by conduit; that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents. But the Government offers scant evidence of this form of evasion. Perhaps the Government’s slim evidence results from sufficient deterrence of such activities by 20 of FECA, which prohibits any person from “mak[ing] a contribution in the name of another person” or “knowingly accepting] a contribution made by one person in the name of another,” 2 U. S. C. 441f. Absent a more convincing case of the claimed evil, this interest is simply too attenuated for 18 to withstand heightened scrutiny. See 528 U. S. 77, 91 Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The have adopted a variety of more tailored approaches— e., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court’s decision striking down 18 as *2 BCRA m(b) The National Right to Life plaintiffs argue that the District Court’s grant of intervention to the intervenor-defendants, pursuant to Federal Rule of Civil Procedure 24(a) and BCRA 40(b), must be reversed because the intervenor-defendants lack Article standin t is clear, however, that the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-defendants, whose position here is identical to the FEC’s. See, e. n. 19 ;7 Cf.68-69, n. For the foregoing reasons, we affirm the District Court’s judgment finding the plaintiffs’ challenges to BCRA 05, 07, and the millionaire provisions nonjusticiable, striking down as unconstitutional BCRA 18, and upholding BCRA The judgment of the District Court is Affirmed. Justice Breyer delivered the opinion of the Court with respect to BCRA Title V.* We consider here the constitutionality of 504 of the Bipartisan Campaign Reform Act of 2002 (BCRA), amending the Communications Act of 194. That section requires broadcasters to keep publicly available records of politically related broadcasting requests. (e) The McConnell plaintiffs, who include the National Association of Broadcasters, argue that 504 imposes onerous administrative burdens, lacks any offsetting justification, and consequently violates the First Amendment. For similar reasons, the three judges on the District Court found BCRA 504 unconstitutional on its face. 251 F. Supp. 2d *24176, 186 (DC 200) We disagree, and we reverse that determination. BCRA 504’s key requirements are the following: (1) A “candidate request” requirement calls for broadcasters to keep records of broadcast requests “made by or on behalf of” any “legally qualified candidate for public ” (e)(1) (2) An “election message request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” that refer either to a “legally qualified candidate” or to “any election to Federal ” 15(e)(l)(B)(i), (ii). () An “issue request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message^]” related to a “national legislative issue of public importance,” 15(e)(l)(B)(iii), or otherwise relating to a “political matter of national importance,” 15(e)(1)(B). We shall consider each provision in turn. BCRA 504 s “candidate request” requirements are virtually identical to those contained in a regulation that the Federal Communications Commission (FCC) promulgated as early as 198 and which with slight modifications the FCC has maintained in effect ever since. 47 CFR 7.194 (2002); compare Fed. Re 1692 (198) (47 CFR 6a4); 1 Fed. Re 76 (19) (47 CFR190(d),290(d),690(d)); 17 Fed. Re 47 (1952) (47 CFR590(d)); 19 Fed. Re 5949 (1954); 2 Fed. Re 7817 ; 28 Fed. Re 159 (196) (47 CFR 7.(d)); 4 Fed. Re 2796 (1978) (47 CFR 7.1940(d)); 67 Fed. Re 0 (47 CFR 7.194). See generally Brief in to Motion of Appellee National Association of Broadcasters for Summary *25Affirmance in No. 02-1676, pp. 9-10 (hereinafter Brief Opposing Summary Affirmance). n its current form the FCC regulation requires broadcast licensees to “keep” a publicly available file “of all requests for broadcast time made by or on behalf of a candidate for public office,” along with a notation showing whether the request was granted, and (if granted) a history that includes “classes of time,” “rates charged,” and when the “spots actually aired.” 47 CFR 7.194(a) (2002); 76.1701(a) (same for cable systems). These regulation-imposed requirements mirror the statutory requirements imposed by BCRA 504 with minor differences which no one here challenges. Compare 47 CFR 7.194 with (e)(2) (see Appendix, infra). The McConnell plaintiffs argue that these requirements are “intolerably]” “burdensome and invasive.” Brief for Appellant/Cross-Appellee Sen. Mitch McConnell et al. in No. 02-1674 et al., p. 74 (hereinafter Brief for McConnell Plaintiffs). But we do not see how that could be so. The FCC has consistently estimated that its “candidate request” regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year. See 66 Fed. Re 7468 ; ; 6 Fed. Re 2659 ; 79; 57 Fed. Re 18492 ; see 66 Fed. Re 2996 That burden means annual costs of a few hundred dollars at most, a microscopic amount compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to advertise. Perhaps for this reason, broadcasters in the past did not strongly oppose the regulation or its extension. Cf., e. 17 Fed. Re 47 (1952) ; 4 Fed. Re 2794 (1978) ndeed in 1992, “CBS” itself “suggested] ” that the candidate file “include a record of all requests for time.” 57 Fed. Re 206 ; 6 Fed. Re *2949 (FCC “not persuaded that the current retention period [two years] is overly burdensome to licensees”). n any event, as the FCC wrote in an analogous context, broadcaster recordkeeping requirements “ ‘simply run with the territory.’” 40 Fed. Re 1898 Broadcasters must keep and make publicly available numerous records. See 47 CFR 7.526 (2002) ; see 7.1, 7.526(e)(9)(i) (retention of all “written comments and suggestions [including letters and e-mail] received from the public regarding operation of the station” for three years); 7.12(e) (sponsorship identification records, including the identification of a sponsoring entity’s executive officers and board-level members when sponsoring “political matter or matter involving the discussion of a controversial issue of public importance”); 7.1840 (retention of station logs); 7.1942 (candidate broadcast records); 7.2080 (equal employment opportunities records); 7.526(e)(ll)(i), (e)(12) (“list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period,” including “brief narrative describing [the issues, and] time, date, duration, and title”); 7.526(e)(ll)(ii), (iii) (reports of children’s program, and retention of records sufficient to substantiate “compliance with the commercial limits on children’s programming”); 7.61(a) (network affiliation contracts); 7.61(b), 7.615, 7.526(e)(5) (ownership-related reports); 7.61(c) (“[m]anagement consultant agreements”); 7.61(d) (“[t]ime brokerage agreements”). Compared to these longstanding recordkeeping requirements, an additional six to seven hours is a small drop in a very large bucket. The McConnell plaintiffs claim that the “candidate requests” requirement fails significantly to further any important governmental interest. Brief for McConnell Plaintiffs 74. But, again, we cannot agree. The FCC has pointed out *27that “[t]hese records are necessary to permit political candidates and others to verify that licensees have complied with their obligations relating to use of their facilities by candidates for political office” pursuant to the “equal time” provision of (a). 6 Fed. Re 4949 They help the FCC determine whether broadcasters have violated their obligation to sell candidates time at the “lowest unit charge.” (b). As reinforced by BCRA, the “candidate request” requirements will help the FCC, the Federal Election Commission, and “the public to evaluate whether broadcasters are processing [candidate] requests in an evenhanded fashion,” Brief Opposing Summary Affirmance 10, thereby helping to assure broadcasting fairness. (a); Red Broadcasting 95 U. S. 67, 90 They will help make the public aware of how much money candidates may be prepared to spend on broadcast messages. 2 U. S. C. 44 (2000 ed. and Supp. ); see ante, 4-199 (joint opinion of STEVENS and O’Connor, JJ.) (hereinafter joint opinion). And they will provide an independently compiled set of data for purposes of verifying candidates’ compliance with the disclosure requirements and source limitations of BCRA and the Federal Election Campaign Act of 1971. 2 U. S. C. 44; Adventure Communications, nc. v. Kentucky Registry of Election Finance, 191 F. d 429, 4 ; 6 Fed. Re 4949 We note, too, that the FCC’s regulatory authority is broad. Red ; National Broadcasting Co. v. United 19 U. S. 190, 9 (194) And we have previously found broad governmental authority for agency information demands from regulated entities. Compare United v. Morton Salt Co., 8 U. S. 2- ; Oklahoma Press Publishing Co. v. Walling, 27 U. S. *26, (1946); Donovan v. Lone Steer, nc., 4 U. S. 408, The Chief Justice suggests that the Government has not made these particular claims. But it has — though succinctly — for it has cross-referenced the relevant regulatory rules. Compare post, at 59-61 (Rehnquist, C. J., dissenting), with Brief Opposing Summary Affirmance; Brief for McConnell Plaintiffs 7-74; Brief for FEC et al. in No. 02-1674 et al., pp. 12-1. And succinctness through cross-reference was necessary given our procedural requirement that the Government set forth in a 140-page brief all its arguments concerning each of the 20 BCRA provisions here under contest. -188. n sum, given the Government’s reference to the 65-year-old FCC regulation and the related considerations we have mentioned, we cannot accept the argument that the constitutionality of the “candidate request” provision lacks eviden-tiary support. The challengers have made no attempt to explain away the FCC’s own contrary conclusions and the mass of evidence in related FCC records and proceedings. E. 57 Fed. Re 189 ; -26; ante, at 222-22 (joint opinion) (upholding BCRA’s coordination provision based, in part, on prior experience under similar provision). Because we cannot, on the present record, find the longstanding FCC regulation unconstitutional, we likewise cannot strike down the “candidate request” provision in BCRA 504; for the latter simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. M H-Í BCRA 504’s “election message request requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast a “message” about “a legally qualified candidate” or “any election to Federal ” 47 U. S. C. 15(e)(l)(B)(i), (ii) Although these requirements are somewhat broader than the *29“candidate request” requirement, they serve much the same purposes. A candidate’s supporters or opponents account for many of the requests to broadcast “messagefs]” about a “candidate.” Requests to broadcast messages about an “election” may include messages that favor one candidate or another, along with other messages that may be more neutral. Given the nature of many of the messages, recordkeeping can help both the regulatory agencies and the public evaluate broadcasting fairness, and determine the amount of money that individuals or groups, supporters or opponents, intend to spend to help elect a particular candidate. Cf. ante, 6-207 (joint opinion) (upholding stringent restrictions on all election-time advertising that refers to a candidate because such advertising will often convey message of support or opposition). nsofar as the request is to broadcast neutral material about a candidate or election, the disclosure can help the FCC carry out other statutory functions, for example, determining whether a broadcasting station is fulfilling its licensing obligation to broadcast material important to the community and the public. (a) ; 47 CFR 7.1910 (2002); 7.526(e)()(i), (e)(12) (recordkeeping requirements for issues important to the community). For reasons previously -26, and on the basis of the material presented, we cannot say that these requirements will impose disproportionate administrative burdens. They ask the broadcaster to keep information about the disposition of the request, and information identifying the individual or company requesting the broadcast time (name, address, contact information, or, if the requester is not an individual, the names of company officials). (e)(2) nsofar as the “request” is made by a candidate’s “supporters,” the “candidate request” regulation apparently already requires broadcasters *240to keep such records. 4 Fed. Re 2794 (1978). Regardless, the information should prove readily available, for the individual requesting a broadcast must provide it to the broadcaster should the broadcaster accept the request. 47 CFR 7.12(e) (2002). And as we have previously pointed out, the recordkeeping requirements do not reach significantly beyond other FCC recordkeeping rules, for example, those requiring broadcasting licensees to keep material showing compliance with their license-related promises to broadcast material on issues of public importance. See, e. 7.526(e)(ll)(i), (e)(12) (recordkeeping requirements for issues important to the community); at 26 ; Office of Communication of United Church of 707 F. 2d 141, 14-1422 (CADC 198) f, as we have held, the “candidate request” requirements are constitutional, at 28, the “election message” requirements, which serve, similar governmental interests and impose only a small incremental burden, must be constitutional as well.

A.F. Moore & Associates, Inc. v. Pappas

The Equal Protection Clause entitles owners of similarly situated property to roughly equal tax treatment. Allegheny Pittsburgh Coal Co. v. Cty. Comm'n, 488 U.S. 336, 345–46, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). A group of taxpayers asserts that the tax assessor for Cook *891 County violated that guarantee by assessing their properties at the rates mandated by local ordinance while cutting a break to other owners of similarly situated property. The taxpayers pursued a refund in Illinois court, where they remain tied up in litigation after more than a decade. Frustrated, they turned to federal court for relief, arguing that Illinois's procedural rules for challenging property taxes prevent them from proving their federal constitutional claims in state court. The district court disagreed and held that the Tax Injunction Act, 28 U.S.C. § 1341, barred their federal suit. The Act strips federal district courts of jurisdiction over challenges to state and local taxes as long as the taxpayer has an adequate forum in state court to raise all constitutional claims. This appeal concerns whether Illinois courts offer a sufficient forum. The issue is made simpler by the County's concession that Illinois's tax-objection procedures do not allow the taxpayers to raise their constitutional claims in state court. We are left to conclude that this is the rare case in which taxpayers lack an adequate state-court remedy. The Tax Injunction Act therefore does not bar the taxpayers’ federal suit, so we reverse the district court's dismissal. I. 2 In our review of the district court's dismissal for lack of subject-matter jurisdiction, we take as true the allegations in the taxpayers’ complaint. Scott Air Force Base Props., LLC v. County of St. Clair, 548 F.3d 516, 519 (7th Cir. 2008). Cook County prescribes tax assessment rates for different categories of real estate. Before 2008, a County ordinance required the County Assessor to assess single-family residential property at 16% of the market value, commercial property at 38% of the market value, and industrial property at 36% of the market value. But between 2000 and 2008, the Assessor in fact assessed most of the property in those three categories at rates significantly lower than the rates prescribed by law. Cook County officials were candid about the discrepancy between the de jure rates and the de facto rates. In April 2008, the Assessor proposed an ordinance that would “recalibrate” the classification system to “more closely reflect the current relationship between assessment and market value.” And one of the ordinance's primary sponsors on the Cook County Board of Commissioners advocated for the recalibration in clear terms: “We have known for years, forever, and pretended that it is not true [and] that somehow the assessments were at the statutory levels; they are not. This reflects the actual reality as best we know it.” Although most property was assessed at the lower de facto rates, a minority was assessed at the de jure rates or even higher. A.F. Moore & Associates and the other plaintiffs in this case count their properties in that minority. Their assessment rates may have been lawful under the letter of the ordinance, but they were significantly higher than the de facto rates that most other property owners enjoyed. These taxpayers calculate that they paid millions of dollars more in property taxes during the period from 2000 to 2008 than they would have if they were assessed at the de facto rates. Believing that discrepancy to be unlawful, the taxpayers sought a refund in Illinois state court. The taxpayers followed Illinois's procedural rules by first exhausting their remedies with the Cook County Board of Review and then bringing a suit in the Circuit Court of Cook County. There they challenged the assessment under the Fourteenth Amendment's Equal Protection Clause, relying on the rule articulated in *892 Allegheny Pittsburgh Coal Co. v. County Commission: a property owner whose tax assessment comports with state law may nevertheless suffer a violation of the Equal Protection Clause if similarly situated property is assessed at a lower rate than his. 488 U.S. 336, 345–46, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). The taxpayers also alleged that the assessment violated Illinois statutory law and the Illinois Constitution. But the taxpayers have struggled to present the evidence that they need to make their case; over a decade later, their state suit remains in discovery. They attribute the delay to a provision of Illinois law, 35 ILCS 200/23-15, which they say constrains them in several ways: it limits whom they can name as a defendant, what evidence they can present, and what arguments they can raise when challenging property taxes. According to the taxpayers, section 23-15 has the effect of preventing them from making their equal protection case in state court altogether. Seeking a forum for their federal constitutional claims, the taxpayers then sued Cook County, the County Assessor, and the County Treasurer (who serves ex officio as the County's tax collector) in federal district court, once again alleging a violation of the Equal Protection Clause. They also challenged the Illinois tax-objection procedures under the guarantees to due process in the United States Constitution and the Illinois Constitution. Finally, they alleged additional violations of the substantive guarantees of equal taxation in the Illinois Constitution and the Illinois Property Tax Code. The taxpayers sought declaratory relief and an injunction that the tax collector refund their overpaid taxes. The district court held that the Tax Injunction Act barred the taxpayers’ federal suit. The Act provides that federal district courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341; see also Hager v. City of West Peoria, 84 F.3d 865, 868 n.1 (7th Cir. 1996) (explaining that the Act also applies to local and municipal taxes). Rejecting the taxpayers’ argument that section 23-15 denied them an adequate state forum, the district court held that Illinois courts provide a “plain, speedy and efficient remedy.” The court dismissed the suit for lack of subject-matter jurisdiction under the Act and, in the alternative, declined to exercise jurisdiction under the principle of comity. The taxpayers now appeal, arguing that Illinois does not offer an adequate remedy for their constitutional claims. II. A. The taxpayers maintain that several features of section 23-15 make Illinois courts inhospitable to their claims, but they focus on one in particular. Paragraph (b)(3) of the statute provides that relief is available for assessments that are “incorrect or illegal.” It goes on to say: “If an objection is made claiming incorrect valuation, the court shall consider the objection without regard to the correctness of any practice, procedure, or method of valuation followed by the assessor ....” 35 ILCS 200/23-15(b)(3). The taxpayers characterize this as the “Methodology Prohibition.” The taxpayers argue that the Methodology Prohibition is incompatible with their constitutional claim. Procedures that allow them to challenge only the correctness of their assessment without regard to the Assessor's methods or intent are of no use to these taxpayers. Their argument, after all, is not that their taxes were valued incorrectly under the letter of Cook County law. Rather, they contend that they *893 suffered an equal protection violation because the letter of the law was not applied to everyone else. To prove that claim, they need to conduct discovery about the Assessor's methods and his intent. Not only that, but the taxpayers want to name the Assessor as a defendant, since his actions are the focus of their claims. But the statute only contemplates the collector as a defendant, see id. 200/23-15(a), so they could not sue the Assessor in state court or file interrogatories for him to answer, and he has been free to destroy evidence of unconstitutional action with impunity. In support of their argument, they cite a non-precedential decision from the Illinois Appellate Court that held that constitutional objections “cannot be raised” in tax objection proceedings because of these restrictions. See Friedman v. Pappas, No. 1-2-2685, at *13–14, 353 Ill.App.3d 1082, 317 Ill.Dec. 483, 881 N.E.2d 969 (Ill. App. Ct. 2004) (Separate App. Pls.-Appellants 194–95). According to the taxpayers, section 23-15 deprives them of any “remedy” at all in state court—let alone one that is “plain, speedy and efficient” under the Tax Injunction Act. B. 3 4 In most cases, a “plain, speedy and efficient” state-court remedy is easy to identify. For the Act's jurisdictional bar to apply, a state need only “provid[e] the taxpayer with a ‘full hearing and judicial determination’ at which she may raise any and all constitutional objections to the tax.... The Act contemplates nothing more.” Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 515–16 n.19, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981) (citation omitted). We construe the Tax Injunction Act's limitations restrictively because the Act is meant to dramatically curtail federal-court review of state and local taxation. See California v. Grace Brethren Church, 457 U.S. 393, 413, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982). Several cases have applied Rosewell’s standard to Illinois's procedures. In Rosewell itself, the Supreme Court held that certain Illinois procedures for challenging property taxes satisfied the Act's “minimal procedural criteria.” 450 U.S. at 512, 101 S.Ct. 1221 (emphasis omitted). At the time, an aggrieved taxpayer in Illinois first had to pay the challenged property tax and then seek a refund, which could take as long as two years to secure. The Court held that the Illinois remedy nevertheless qualified as “plain, speedy and efficient.” Id. at 528, 101 S.Ct. 1221. The Court emphasized that the taxpayer was free to raise her federal equal protection and due process claims before the Cook County circuit court under Illinois's procedures. The Illinois courts’ remedy therefore was sufficient for the Act's jurisdictional bar to apply. Fourteen years after Rosewell, the Illinois legislature enacted the 1995 Amendments to the Illinois Property Tax Code, which revised the procedures for tax objections. The Supreme Court has not revisited Illinois's procedures since the Amendments, but our court has had several occasions to do so. None of those cases, however, dealt with an underlying constitutional challenge like this one or an argument about section 23-15—as a brief overview of our precedents makes clear. Our first major treatment of Illinois's procedures for challenging taxes after the 1995 Amendments was Levy v. Pappas, 510 F.3d 755 (7th Cir. 2007). (An earlier post-Amendments case, Wright v. Pappas, 256 F.3d 635 (7th Cir. 2001), held only that the Tax Injunction Act applies to the tax collection practice known as a lien sale.) In Levy, we drew a distinction between a plaintiff who alleges that she was singled out for unfair tax treatment and one who *894 alleges that others were singled out for unfair benefits. 510 F.3d at 762. That distinction is no longer viable, since the Supreme Court abrogated Levy in Levin v. Commerce Energy, Inc., 560 U.S. 413, 420–21, 432, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010). Levy did not address section 23-15. In Scott Air Force Base Properties, LLC v. County of St. Clair, we considered for the first time after the 1995 Amendments whether the Tax Injunction Act bars an Illinois taxpayer's federal challenge to its tax assessment. 548 F.3d 516, 519 (7th Cir. 2008). The taxpayer in that case believed that it was exempt from certain property taxes. It had argued that Illinois courts could not provide an “efficient” remedy for purposes of the Act because Illinois law required the taxpayer to pursue its exemption challenge at the same time as it challenged its tax valuation. Id. at 521. We held that the bifurcated procedure was not so inefficient as to lift the Tax Injunction Act's bar. Id. at 522. The taxpayers in Scott Air Force Base had not attempted to use the procedures outlined in section 23-15, so we did not address whether those procedures operated to prevent taxpayers from raising particular constitutional claims. 5 We later addressed a different procedure for challenging Illinois property taxes in Capra v. Cook County Board of Review, 733 F.3d 705 (7th Cir. 2013).1 Under 35 ILCS 200/16-160, taxpayers can appeal a decision from the county Board of Review to the Property Tax Appeal Board, instead of directly to the circuit court as the taxpayers did here. In Capra, the taxpayers argued that they would not be able to present their claims to the Appeal Board or the Cook County circuit courts under those procedures because the adjudicators in those bodies were too corrupt to be able to neutrally review charged issues. Id. at 715. We rejected the allegations of corruption and affirmed the district court's dismissal of the suit. The plaintiffs in Capra mentioned in their briefs the burden of proof set forth in section 23-15, but they did not mention the Methodology Prohibition or argue that it blocked their constitutional claims. We have rejected various challenges to other aspects of Illinois's procedures as well. In Heyde v. Pittenger, 633 F.3d 512, 521 (7th Cir. 2011), we rejected the argument that two-year delays in a taxpayer's Appeal Board proceedings made them insufficiently “speedy.” In Cosgriff v. County of Winnebago, 876 F.3d 912, 916 (7th Cir. 2017), we dismissed an attempt to reframe a request for a tax refund as a request for a constitutional forum. And in Perry v. Coles County, 906 F.3d 583, 589–90 (7th Cir. 2018), we rejected an argument based on the unavailability of injunctive relief to remedy procedural errors in the taxing process. Only in Perry did the taxpayers argue that an aspect of section 23-15—there, the provision's bar on class actions—operated to prevent them from raising constitutional claims in state court. Id. at 590 n.6. But we rejected that contention without consideration because the taxpayers had raised the argument for the first time in their reply brief. Id. No other taxpayer has argued that section 23-15 operates to restrict federal constitutional claims. *895 In some of these cases, we used general language to uphold the adequacy of the challenged Illinois procedures. For example, in Scott Air Force Base, we painted with a broad brush when we said that “Illinois taxpayers are able to litigate their constitutional ... challenges to state tax matters in the Illinois administrative and judicial system.” 548 F.3d at 523. And in Capra, we wrote that “any statutory or constitutional claims” could be raised through either the Appeal Board or the Illinois county circuit courts. 733 F.3d at 715. But we had no occasion in those cases to address whether section 23-15 restricts taxpayers’ constitutional claims. Our precedents therefore do not resolve the issue in this case. We consider now for the first time whether section 23-15 prevents taxpayers from raising federal constitutional challenges to their property taxes in Illinois courts. C. 6 7 To avoid the Tax Injunction Act's jurisdictional bar, the taxpayers must demonstrate that section 23-15 denies them a complete hearing on any and all constitutional objections. Rosewell, 450 U.S. at 514, 101 S.Ct. 1221. Their particular constitutional objection is that the Assessor violated the Equal Protection Clause by valuing their properties correctly under the Cook County ordinance but cutting everyone else a break with a lower de facto rate. See Allegheny Pittsburgh Coal Co., 488 U.S. at 345–46, 109 S.Ct. 633. If section 23-15 limits taxpayers to challenging only the correctness of the valuation under Illinois law, then they have no state forum for that cognizable constitutional claim. What's more, a taxpayer attempting to prove an Allegheny Pittsburgh Coal claim under the Equal Protection Clause must demonstrate that there is no rational basis for the disparate tax treatment—a burden that generally requires engaging with the legitimacy of the policy's stated purpose. See Nordlinger v. Hahn, 505 U.S. 1, 15–16, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). If section 23-15 prevents taxpayers from probing into the Assessor's methodology or intent, they will not be able to prove that his tax assessment violated the Equal Protection Clause. Surprisingly, the defendants do not dispute the taxpayers’ account of section 23-15 and its operation. Instead, they argue that those procedures nevertheless satisfy the Tax Injunction Act. The defendants contend that when Illinois dispensed with requiring proof of the Assessor's methodology or intent, it made the objection process only more “plain, speedy and efficient.” That may be true for many claimants. But the defendants ignore the most crucial procedural criterion under Rosewell: the availability of a state-court forum to hear “any and all constitutional objections to the tax.” 450 U.S. at 514, 101 S.Ct. 1221. Efficiency is no good to the taxpayers if it means that they cannot bring their equal protection claim in state court. And the defendants agree with the taxpayers that they cannot. In their brief, the defendants assert that the taxpayers err in presuming that they can raise their constitutional claims, sharply admonishing that “[t]hey are not free to do so.” Instead, the defendants argue, “the only matter at issue in a Section 23-15 action is whether the assessment of the real estate property was correct.” By the defendants’ own admission, then, the section 23-15 procedures provide no forum for the taxpayers to raise their constitutional claims. Nor have the defendants been able to point to any alternative channels in which these taxpayers can raise their federal constitutional claims *896 in Illinois courts.2 These concessions make a potentially complex issue a great deal simpler. Since the defendants agree that the taxpayers cannot make their equal protection case in state court, the taxpayers have no “remedy” at all for their claims—never mind a “plain, speedy and efficient” one—and the Tax Injunction Act does not bar their federal suit. III. 8 9 10 11 The district court also abstained from exercising jurisdiction over the case under the principle of comity. Comity is a doctrine of abstention, rather than a jurisdictional bar, but in the state-taxation context it operates similarly to the Tax Injunction Act. See Capra, 733 F.3d at 713–14. The Act restricts federal jurisdiction over state-taxation suits for equitable or declaratory relief. 28 U.S.C. § 1341; see also Grace Brethren Church, 457 U.S. at 407–11, 102 S.Ct. 2498 (holding that the Act applies to declaratory relief in addition to injunctions). In Fair Assessment in Real Estate Ass'n v. McNary, the Supreme Court held that federal courts are barred from reviewing state-taxation suits for damages as well, albeit by the principle of comity rather than the Act. 454 U.S. 100, 116, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Comity requires taxpayers seeking damages to pursue relief in the state courts, assuming that state-court remedies are “plain, adequate, and complete.” Id. The taxpayers have pursued only injunctive and declaratory relief in this case. But even assuming that Fair Assessment bears on this case, comity does not bar federal jurisdiction here. The Court has explained that the “plain, adequate, and complete” requirement in the comity analysis is identical to the “plain, speedy and efficient” requirement under the Tax Injunction Act. Id. at 116 n.8, 102 S.Ct. 177. Since the Act does not bar the federal district court from exercising jurisdiction over this challenge, neither does the principle of comity.

Barrett

majority

The Equal Protection Clause entitles owners of similarly situated property to roughly equal tax treatment. Allegheny Pittsburgh Coal A group of taxpayers asserts that the tax assessor for Cook *891 County violated that guarantee by assessing their properties at the rates mandated by local ordinance while cutting a break to other owners of similarly situated property. The taxpayers pursued a refund in Illinois court, where they remain tied up in litigation after more than a decade. Frustrated, they turned to federal court for relief, arguing that Illinois's procedural rules for challenging property taxes prevent them from proving their federal constitutional claims in state court. The district court disagreed and held that the Tax Injunction Act, barred their federal suit. The Act strips federal district courts of jurisdiction over challenges to state and local taxes as long as the taxpayer has an adequate forum in state court to raise all constitutional claims. This appeal concerns whether Illinois courts offer a sufficient forum. The issue is made simpler by the County's concession that Illinois's tax-objection procedures do not allow the taxpayers to raise their constitutional claims in state court. We are left to conclude that this is the rare case in which taxpayers lack an adequate state-court remedy. The Tax Injunction Act therefore does not bar the taxpayers’ federal suit, so we reverse the district court's dismissal. I. 2 In our review of the district court's dismissal for lack of subject-matter jurisdiction, we take as true the allegations in the taxpayers’ complaint. Scott Air Force Base Props., Cook County prescribes tax assessment rates for different categories of real estate. Before 2008, a County ordinance required the County Assessor to assess single-family residential property at 16% of the market value, commercial property at 38% of the market value, and industrial property at 36% of the market value. But between 2000 and 2008, the Assessor in fact assessed most of the property in those three categories at rates significantly lower than the rates prescribed by law. Cook County officials were candid about the discrepancy between the de jure rates and the de facto rates. In April 2008, the Assessor proposed an ordinance that would “recalibrate” the classification system to “more closely reflect the current relationship between assessment and market value.” And one of the ordinance's primary sponsors on the Cook County Board of Commissioners advocated for the recalibration in clear terms: “We have known for years, forever, and pretended that it is not true [and] that somehow the assessments were at the statutory levels; they are not. This reflects the actual reality as best we know it.” Although most property was assessed at the lower de facto rates, a minority was assessed at the de jure rates or even higher. A.F. Moore & Associates and the other plaintiffs in this case count their properties in that minority. Their assessment rates may have been lawful under the letter of the ordinance, but they were significantly higher than the de facto rates that most other property owners enjoyed. These taxpayers calculate that they paid millions of dollars more in property taxes during the period from 2000 to 2008 than they would have if they were assessed at the de facto rates. Believing that discrepancy to be unlawful, the taxpayers sought a refund in Illinois state court. The taxpayers followed Illinois's procedural rules by first exhausting their remedies with the Cook County Board of Review and then bringing a suit in the Circuit Court of Cook County. There they challenged the assessment under the Fourteenth Amendment's Equal Protection Clause, relying on the rule articulated in *892 Allegheny Pittsburgh Coal v. County Commission: a property owner whose tax assessment comports with state law may nevertheless suffer a violation of the Equal Protection Clause if similarly situated property is assessed at a lower rate than his. The taxpayers also alleged that the assessment violated Illinois statutory law and the Illinois Constitution. But the taxpayers have struggled to present the evidence that they need to make their case; over a decade later, their state suit remains in discovery. They attribute the delay to a provision of Illinois law, 35 ILCS 200/23-15, which they say constrains them in several ways: it limits whom they can name as a defendant, what evidence they can present, and what arguments they can raise when challenging property taxes. According to the taxpayers, section 23-15 has the effect of preventing them from making their equal protection case in state court altogether. Seeking a forum for their federal constitutional claims, the taxpayers then sued Cook County, the County Assessor, and the County Treasurer (who serves ex officio as the County's tax collector) in federal district court, once again alleging a violation of the Equal Protection Clause. They also challenged the Illinois tax-objection procedures under the guarantees to due process in the United States Constitution and the Illinois Constitution. Finally, they alleged additional violations of the substantive guarantees of equal taxation in the Illinois Constitution and the Illinois Property Tax Code. The taxpayers sought declaratory relief and an injunction that the tax collector refund their overpaid taxes. The district court held that the Tax Injunction Act barred the taxpayers’ federal suit. The Act provides that federal district courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” ; see also Rejecting the taxpayers’ argument that section 23-15 denied them an adequate state forum, the district court held that Illinois courts provide a “plain, speedy and efficient remedy.” The court dismissed the suit for lack of subject-matter jurisdiction under the Act and, in the alternative, declined to exercise jurisdiction under the principle of comity. The taxpayers now appeal, arguing that Illinois does not offer an adequate remedy for their constitutional claims. II. A. The taxpayers maintain that several features of section 23-15 make Illinois courts inhospitable to their claims, but they focus on one in particular. Paragraph (b)(3) of the statute provides that relief is available for assessments that are “incorrect or illegal.” It goes on to say: “If an objection is made claiming incorrect valuation, the court shall consider the objection without regard to the correctness of any practice, procedure, or method of valuation followed by the assessor” 35 ILCS 200/23-15(b)(3). The taxpayers characterize this as the “Methodology Prohibition.” The taxpayers argue that the Methodology Prohibition is incompatible with their constitutional claim. Procedures that allow them to challenge only the correctness of their assessment without regard to the Assessor's methods or intent are of no use to these taxpayers. Their argument, after all, is not that their taxes were valued incorrectly under the letter of Cook County law. Rather, they contend that they *893 suffered an equal protection violation because the letter of the law was not applied to everyone else. To prove that claim, they need to conduct discovery about the Assessor's methods and his intent. Not only that, but the taxpayers want to name the Assessor as a defendant, since his actions are the focus of their claims. But the statute only contemplates the collector as a defendant, see 200/23-15(a), so they could not sue the Assessor in state court or file interrogatories for him to answer, and he has been free to destroy evidence of unconstitutional action with impunity. In support of their argument, they cite a non-precedential decision from the Illinois Appellate Court that held that constitutional objections “cannot be raised” in tax objection proceedings because of these restrictions. See According to the taxpayers, section 23-15 deprives them of any “remedy” at all in state court—let alone one that is “plain, speedy and efficient” under the Tax Injunction Act. B. 3 4 In most cases, a “plain, speedy and efficient” state-court remedy is easy to identify. For the Act's jurisdictional bar to apply, a state need only “provid[e] the taxpayer with a ‘full hearing and judicial determination’ at which she may raise any and all constitutional objections to the tax. The Act contemplates nothing more.” We construe the Tax Injunction Act's limitations restrictively because the Act is meant to dramatically curtail federal-court review of state and local taxation. See Several cases have applied ’s standard to Illinois's procedures. In itself, the Supreme Court held that certain Illinois procedures for challenging property taxes satisfied the Act's “minimal procedural criteria.” (emphasis omitted). At the time, an aggrieved taxpayer in Illinois first had to pay the challenged property tax and then seek a refund, which could take as long as two years to secure. The Court held that the Illinois remedy nevertheless qualified as “plain, speedy and efficient.” The Court emphasized that the taxpayer was free to raise her federal equal protection and due process claims before the Cook County circuit court under Illinois's procedures. The Illinois courts’ remedy therefore was sufficient for the Act's jurisdictional bar to apply. Fourteen years after the Illinois legislature enacted the 1995 Amendments to the Illinois Property Tax Code, which revised the procedures for tax objections. The Supreme Court has not revisited Illinois's procedures since the Amendments, but our court has had several occasions to do so. None of those cases, however, dealt with an underlying constitutional challenge like this one or an argument about section 23-15—as a brief overview of our precedents makes clear. Our first major treatment of Illinois's procedures for challenging taxes after the 1995 Amendments was held only that the Tax Injunction Act applies to the tax collection practice known as a lien sale.) In Levy, we drew a distinction between a plaintiff who alleges that she was singled out for unfair tax treatment and one who *894 alleges that others were singled out for unfair That distinction is no longer viable, since the Supreme Court abrogated Levy in 560 U.S. Levy did not address section 23-15. In Scott Air Force Base Properties, we considered for the first time after the 1995 Amendments whether the Tax Injunction Act bars an Illinois taxpayer's federal challenge to its tax assessment. The taxpayer in that case believed that it was exempt from certain property taxes. It had argued that Illinois courts could not provide an “efficient” remedy for purposes of the Act because Illinois law required the taxpayer to pursue its exemption challenge at the same time as it challenged its tax valuation. We held that the bifurcated procedure was not so inefficient as to lift the Tax Injunction Act's bar. The taxpayers in Scott Air Force Base had not attempted to use the procedures outlined in section 23-15, so we did not address whether those procedures operated to prevent taxpayers from raising particular constitutional claims. 5 We later addressed a different procedure for challenging Illinois property taxes in1 Under 35 ILCS 200/16-160, taxpayers can appeal a decision from the county Board of Review to the Property Tax Appeal Board, instead of directly to the circuit court as the taxpayers did here. In the taxpayers argued that they would not be able to present their claims to the Appeal Board or the Cook County circuit courts under those procedures because the adjudicators in those bodies were too corrupt to be able to neutrally review charged issues. We rejected the allegations of corruption and affirmed the district court's dismissal of the suit. The plaintiffs in mentioned in their briefs the burden of proof set forth in section 23-15, but they did not mention the Methodology Prohibition or argue that it blocked their constitutional claims. We have rejected various challenges to other aspects of Illinois's procedures as well. In we rejected the argument that two-year delays in a taxpayer's Appeal Board proceedings made them insufficiently “speedy.” In we dismissed an attempt to reframe a request for a tax refund as a request for a constitutional forum. And in we rejected an argument based on the unavailability of injunctive relief to remedy procedural errors in the taxing process. Only in Perry did the taxpayers argue that an aspect of section 23-15—there, the provision's bar on class actions—operated to prevent them from raising constitutional claims in state court. at 590 n.6. But we rejected that contention without consideration because the taxpayers had raised the argument for the first time in their reply brief. No other taxpayer has argued that section 23-15 operates to restrict federal constitutional claims. *895 In some of these cases, we used general language to uphold the adequacy of the challenged Illinois procedures. For example, in Scott Air Force Base, we painted with a broad brush when we said that “Illinois taxpayers are able to litigate their constitutional challenges to state tax matters in the Illinois administrative and judicial system.” And in we wrote that “any statutory or constitutional claims” could be raised through either the Appeal Board or the Illinois county circuit 733 F.3d But we had no occasion in those cases to address whether section 23-15 restricts taxpayers’ constitutional claims. Our precedents therefore do not resolve the issue in this case. We consider now for the first time whether section 23-15 prevents taxpayers from raising federal constitutional challenges to their property taxes in Illinois C. 6 7 To avoid the Tax Injunction Act's jurisdictional bar, the taxpayers must demonstrate that section 23-15 denies them a complete hearing on any and all constitutional objections. Their particular constitutional objection is that the Assessor violated the Equal Protection Clause by valuing their properties correctly under the Cook County ordinance but cutting everyone else a break with a lower de facto rate. See Allegheny Pittsburgh Coal –46, If section 23-15 limits taxpayers to challenging only the correctness of the valuation under Illinois law, then they have no state forum for that cognizable constitutional claim. What's more, a taxpayer attempting to prove an Allegheny Pittsburgh Coal claim under the Equal Protection Clause must demonstrate that there is no rational basis for the disparate tax treatment—a burden that generally requires engaging with the legitimacy of the policy's stated purpose. See If section 23-15 prevents taxpayers from probing into the Assessor's methodology or intent, they will not be able to prove that his tax assessment violated the Equal Protection Clause. Surprisingly, the defendants do not dispute the taxpayers’ account of section 23-15 and its operation. Instead, they argue that those procedures nevertheless satisfy the Tax Injunction Act. The defendants contend that when Illinois dispensed with requiring proof of the Assessor's methodology or intent, it made the objection process only more “plain, speedy and efficient.” That may be true for many claimants. But the defendants ignore the most crucial procedural criterion under : the availability of a state-court forum to hear “any and all constitutional objections to the tax.” Efficiency is no good to the taxpayers if it means that they cannot bring their equal protection claim in state court. And the defendants agree with the taxpayers that they cannot. In their brief, the defendants assert that the taxpayers err in presuming that they can raise their constitutional claims, sharply admonishing that “[t]hey are not free to do so.” Instead, the defendants argue, “the only matter at issue in a Section 23-15 action is whether the assessment of the real estate property was correct.” By the defendants’ own admission, then, the section 23-15 procedures provide no forum for the taxpayers to raise their constitutional claims. Nor have the defendants been able to point to any alternative channels in which these taxpayers can raise their federal constitutional claims *896 in Illinois 2 These concessions make a potentially complex issue a great deal simpler. Since the defendants agree that the taxpayers cannot make their equal protection case in state court, the taxpayers have no “remedy” at all for their claims—never mind a “plain, speedy and efficient” one—and the Tax Injunction Act does not bar their federal suit. III. 8 9 10 11 The district court also abstained from exercising jurisdiction over the case under the principle of comity. Comity is a doctrine of abstention, rather than a jurisdictional bar, but in the state-taxation context it operates similarly to the Tax Injunction Act. See –14. The Act restricts federal jurisdiction over state-taxation suits for equitable or declaratory relief. ; see also Grace Brethren –11, (holding that the Act applies to declaratory relief in addition to injunctions). In Fair Assessment in Real Estate Ass'n v. McNary, the Supreme Court held that federal courts are barred from reviewing state-taxation suits for damages as well, albeit by the principle of comity rather than the Act. Comity requires taxpayers seeking damages to pursue relief in the state courts, assuming that state-court remedies are “plain, adequate, and complete.” The taxpayers have pursued only injunctive and declaratory relief in this case. But even assuming that Fair Assessment bears on this case, comity does not bar federal jurisdiction here. The Court has explained that the “plain, adequate, and complete” requirement in the comity analysis is identical to the “plain, speedy and efficient” requirement under the Tax Injunction Act. at n.8, Since the Act does not bar the federal district court from exercising jurisdiction over this challenge, neither does the principle of comity.

Acevedo v. Cook County Officers Electoral Board

Before Edward Acevedo could appear on the 2018 Democratic primary ballot for Cook County Sheriff, he had to obtain a certain number of voter signatures on a nominating petition. He didn't meet the signature requirement, so he was kept off the ballot. He then sued the Chicago, Cook County, and Illinois electoral boards, arguing that the Cook County signature requirement is unconstitutional because it is more onerous than the signature requirement for statewide offices. According to Acevedo, the comparatively higher county requirement can survive only if it is narrowly tailored to advance a compelling state interest. Acevedo is wrong. Strict scrutiny is not triggered by the existence of a less burdensome restriction—it is triggered only *947 when the challenged regulation itself imposes a severe burden. Because Acevedo has not alleged that the burden imposed by the Cook County signature requirement is severe, the defendants need not show any justification for it beyond Illinois's interest in orderly and fair elections. That interest easily justifies the signature requirement here. I. Under Illinois law, potential candidates for public office must file a nominating petition to gain a place on a political party's primary ballot. That petition must include a certain number of signatures from voters in the jurisdiction where the candidate seeks election, and those signatures must be collected within a 90-day window. 10 ILCS 5/7-10. Candidates for statewide offices must collect 5,000 signatures. Id. 5/7-10(a). Candidates for countywide offices in Cook County must collect a number of signatures equal to 0.5% of the qualified voters of the candidate's party who voted in the most recent general election in Cook County. Id. 5/7-10(d)(1). According to this formula, Acevedo had to gather 8,236 valid signatures to appear on the 2018 Democratic primary ballot for Cook County Sheriff. He gathered only 5,654, so he was denied a place on the ballot. Acevedo filed suit under 42 U.S.C. § 1983, alleging that this denial violated the First and Fourteenth Amendment rights to freedom of association and equal protection. His argument relied on the distinction between the state and county signature requirements. According to Acevedo, the statewide requirement reflects Illinois's judgment that making candidates collect 5,000 signatures is sufficient to protect the state's interest in ballot management. Even so, the state demands 8,236 signatures from Democrats seeking countywide office in Cook County. Acevedo argued that Illinois could not impose this heightened burden unless doing so furthered a compelling state interest. Insisting that Illinois lacked any such interest, Acevedo sought a declaratory judgment pronouncing the Cook County requirement unconstitutional, as well as injunctive relief to bar enforcement of the requirement and compel the defendants to place his name on the Democratic primary ballot. The district court held that Acevedo had failed to state a claim and dismissed the complaint. The court made clear that there is no bright-line rule requiring any county ballot requirement that is more stringent than a state requirement to be justified by a compelling state interest. Instead, the focus is on the burden imposed by the challenged regulation. And here, the court explained, Acevedo had failed to allege that requiring candidates to gather 8,236 signatures is a constitutionally significant burden. II. 1 2 Though the election is over, Acevedo's claim is not moot because it is capable of repetition, yet evading review. This branch of the mootness doctrine requires that “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). These requirements are often met in ballot-access cases. See, e.g., Norman v. Reed, 502 U.S. 279, 287–88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Gjertsen v. Bd. of Election Comm'rs of City of Chi., 751 F.2d 199, 202 (7th Cir. 1984). Here, the timeline for collecting signatures to appear on a *948 primary ballot is too short to fully litigate a challenge to the signature requirement. In light of this, and because Acevedo has expressed his intention to run for office in Cook County again, his challenge remains live.1 3 4 5 6 The constitutionality of a ballot-access restriction depends on “a practical assessment of the challenged scheme's justifications and effects.” Stone v. Bd. of Election Comm'rs for City of Chi., 750 F.3d 678, 681 (7th Cir. 2014). That assessment is governed by the two-step analysis that the Supreme Court announced in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). We “first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Id. at 789, 103 S.Ct. 1564. We “then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule” and weigh these interests against the burdened rights. Id. In doing so, we look to the “legitimacy and strength” of the proffered interests, as well as “the extent to which those interests make it necessary to burden the plaintiff's rights.” Id. In Burdick v. Takushi, the Court emphasized that this test applies to all First and Fourteenth Amendment challenges to state election laws. 504 U.S. 428, 432–34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). 7 8 Under this flexible Anderson-Burdick standard, the level of scrutiny with which we review a ballot-access restriction depends on the extent of its imposition: “the more severely it burdens constitutional rights, the more rigorous the inquiry into its justifications.” Libertarian Party of Illinois v. Scholz, 872 F.3d 518, 523–24 (7th Cir. 2017). “Nondiscriminatory restrictions that impose only slight burdens are generally justified by the need for orderly and fair elections,” whereas severe burdens must be “narrowly tailored to serve a compelling state interest.” Id. at 524 (citation omitted). Because of this dichotomy, “[p]ractically speaking, much of the action takes place at the first stage of Anderson's balancing inquiry.” Stone, 750 F.3d at 681. 9 10 Cook County's signature requirement gave Acevedo 90 days to gather 8,362 signatures, an amount that would demonstrate that he had the support of 0.5% of the voters in the primary race that he sought to join. Acevedo has not alleged any facts supporting an inference that the burden imposed by this requirement is severe. Indeed, we have held that much more stringent requirements were not severe enough to necessitate heightened scrutiny. For example, we held in Stone that the requirement of gathering 12,500 signatures—2.5% of the votes cast in the previous election—in 90 days was not a severe burden on candidates who wanted to run in the Chicago mayoral race. 750 F.3d at 683. In Tripp v. Scholz, we approved a requirement that new or independent political parties obtain signatures from 5% of the voting population in order to place candidates on the general election ballot, holding that “the 5% signature requirement, standing alone, does not impose a severe burden on plaintiffs' constitutional rights.” 872 F.3d 857, 864 (7th Cir. 2017). These cases make it hard for Acevedo to show that the 0.5% requirement is anything but slight—which is perhaps why he *949 doesn't try. It goes almost without saying that this slight burden is justified by Illinois's “relevant and legitimate state interests.” Tripp, 872 F.3d at 864 (citation omitted); see also Navarro v. Neal, 716 F.3d 425, 431 (7th Cir. 2013) (“There is ample caselaw supporting the proposition that ballot access laws serve the important, interrelated goals of preventing voter confusion, blocking frivolous candidates from the ballot, and otherwise protecting the integrity of elections.”). Acevedo resists this straightforward analysis by arguing that a special rule applies here. Invoking Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992), and Gjersten v. Bd. of Election Comm'rs for City of Chi., 791 F.2d 472 (7th Cir. 1986), he argues that a state always triggers strict scrutiny when it imposes a higher ballot-access requirement for a countywide office than for a statewide office. Under these cases, Acevedo says, he does not have to show that the Cook County signature requirement severely burdens him in order to trigger strict scrutiny. He just has to show that the burden is heavier than it would be if he were running for statewide office. Acevedo is mistaken. We have stressed before that “[w]hat is ultimately important is not the absolute or relative number of signatures required but whether a ‘reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.’ ” Stone, 750 F.3d at 682 (quoting Bowe v. Bd. of Election Comm'rs of City of Chi., 614 F.2d 1147, 1152 (7th Cir. 1980)). If the burden imposed is slight, Anderson and Burdick make clear that no justification beyond the state's interest in orderly and fair elections is necessary—even if less burdensome alternatives are available. The cases that Acevedo invokes as support—Socialist Workers Party, Norman, and Gjersten—are not to the contrary. To begin with, even if those cases once prescribed an alternate analysis for this specific type of comparative challenge, they were all decided before Burdick clarified that the Anderson test applies to all First and Fourteenth Amendment challenges to state election regulations. See Burdick, 504 U.S. at 434, 112 S.Ct. 2059. But in any event, those cases are consistent with the Anderson-Burdick analysis. 11 Socialist Workers Party, Norman, and Gjersten did not apply strict scrutiny simply because a less burdensome regulation existed. They applied strict scrutiny because each of the challenged regulations imposed a severe burden in its own right. See Short v. Brown, 893 F.3d 671, 677 (9th Cir. 2018) (explaining that the Court in Socialist Workers Party found the challenged burden to be severe); Norman, 502 U.S. at 288–89, 293–94, 112 S.Ct. 698 (citing Anderson and Socialist Workers Party for the proposition that severe restrictions require narrow tailoring and then rejecting part of the challenged requirement because it wasn't narrowly tailored); Gjersten, 791 F.2d at 474 (rejecting a facially burdensome 10% signature requirement).2 And when a regulation imposes a severe burden, a court must consider whether the state could use less burdensome alternatives to achieve the same goal. That is why the existence of less stringent regulations was important in those cases—it showed that the more *950 stringent regulation at issue was not the narrowest necessary to protect the state's interest in managing elections. See Illinois Workers Party, 440 U.S. at 186–87, 99 S.Ct. 983; Norman, 502 U.S. at 294, 112 S.Ct. 698; Gjersten, 791 F.2d at 477. The defendants in Socialist Workers Party, Norman, and Gjersten lost because they couldn't show that the severe burdens that they placed on ballot access were narrowly tailored. Because the burden here is slight, it is not subject to the same level of scrutiny. The district court correctly concluded that the Cook County signature requirement is justified by Illinois's interest in orderly and fair elections.

Barrett

majority

Before Edward Acevedo could appear on the 2018 Democratic primary ballot for Cook County Sheriff, he had to obtain a certain number of voter signatures on a nominating petition. He didn't meet the signature requirement, so he was kept off the ballot. He then sued the Chicago, Cook County, and Illinois electoral boards, arguing that the Cook County signature requirement is unconstitutional because it is more onerous than the signature requirement for statewide offices. According to Acevedo, the comparatively higher county requirement can survive only if it is narrowly tailored to advance a compelling state interest. Acevedo is wrong. Strict scrutiny is not triggered by the existence of a less burdensome restriction—it is triggered only *947 when the challenged regulation itself imposes a severe burden. Because Acevedo has not alleged that the burden imposed by the Cook County signature requirement is severe, the defendants need not show any justification for it beyond Illinois's interest in orderly and fair elections. That interest easily justifies the signature requirement here. I. Under Illinois law, potential candidates for public office must file a nominating petition to gain a place on a political party's primary ballot. That petition must include a certain number of signatures from voters in the jurisdiction where the candidate seeks election, and those signatures must be collected within a 90-day window. 10 ILCS 5/7-10. Candidates for statewide offices must collect 5,000 signatures. 5/7-10(a). Candidates for countywide offices in Cook County must collect a number of signatures equal to 0.5% of the qualified voters of the candidate's party who voted in the most recent general election in Cook County. 5/7-10(d)(1). According to this formula, Acevedo had to gather 8,236 valid signatures to appear on the 2018 Democratic primary ballot for Cook County Sheriff. He gathered only 5,654, so he was denied a place on the ballot. Acevedo filed suit under alleging that this denial violated the First and Fourteenth Amendment rights to freedom of association and equal protection. His argument relied on the distinction between the state and county signature requirements. According to Acevedo, the statewide requirement reflects Illinois's judgment that making candidates collect 5,000 signatures is sufficient to protect the state's interest in ballot management. Even so, the state demands 8,236 signatures from Democrats seeking countywide office in Cook County. Acevedo argued that Illinois could not impose this heightened burden unless doing so furthered a compelling state interest. Insisting that Illinois lacked any such interest, Acevedo sought a declaratory judgment pronouncing the Cook County requirement unconstitutional, as well as injunctive relief to bar enforcement of the requirement and compel the defendants to place his name on the Democratic primary ballot. The district court held that Acevedo had failed to state a claim and dismissed the complaint. The court made clear that there is no bright-line rule requiring any county ballot requirement that is more stringent than a state requirement to be justified by a compelling state interest. Instead, the focus is on the burden imposed by the challenged regulation. And here, the court explained, Acevedo had failed to allege that requiring candidates to gather 8,236 signatures is a constitutionally significant burden. II. 1 2 Though the election is over, Acevedo's claim is not moot because it is capable of repetition, yet evading review. This branch of the mootness doctrine requires that “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” These requirements are often met in ballot-access cases. See, e.g., ; Here, the timeline for collecting signatures to appear on a *948 primary ballot is too short to fully litigate a challenge to the signature requirement. In light of this, and because Acevedo has expressed his intention to run for office in Cook County again, his challenge remains live.1 3 4 5 6 The constitutionality of a ballot-access restriction depends on “a practical assessment of the challenged scheme's justifications and effects.” That assessment is governed by the two-step analysis that the Supreme Court announced in We “first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” We “then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule” and weigh these interests against the burdened rights. In doing so, we look to the “legitimacy and strength” of the proffered interests, as well as “the extent to which those interests make it necessary to burden the plaintiff's rights.” In v. Takushi, the Court emphasized that this test applies to all First and Fourteenth Amendment challenges to state election laws. 7 8 Under this flexible Anderson- standard, the level of scrutiny with which we review a ballot-access restriction depends on the extent of its imposition: “the more severely it burdens constitutional rights, the more rigorous the inquiry into its justifications.” Libertarian of “Nondiscriminatory restrictions that impose only slight burdens are generally justified by the need for orderly and fair elections,” whereas severe burdens must be “narrowly tailored to serve a compelling state interest.” Because of this dichotomy, “[p]ractically speaking, much of the action takes place at the first stage of Anderson's balancing inquiry.” 750 F.3d at 9 10 Cook County's signature requirement gave Acevedo 90 days to gather 8,362 signatures, an amount that would demonstrate that he had the support of 0.5% of the voters in the primary race that he sought to join. Acevedo has not alleged any facts supporting an inference that the burden imposed by this requirement is severe. Indeed, we have held that much more stringent requirements were not severe enough to necessitate heightened scrutiny. For example, we held in that the requirement of gathering 12,500 signatures—2.5% of the votes cast in the previous election—in 90 days was not a severe burden on candidates who wanted to run in the Chicago mayoral race. In v. Scholz, we approved a requirement that new or independent political parties obtain signatures from 5% of the voting population in order to place candidates on the general election ballot, holding that “the 5% signature requirement, standing alone, does not impose a severe burden on plaintiffs' constitutional rights.” These cases make it hard for Acevedo to show that the 0.5% requirement is anything but slight—which is perhaps why he *949 doesn't try. It goes almost without saying that this slight burden is justified by Illinois's “relevant and legitimate state interests.” 872 F.3d at ; see also Acevedo resists this straightforward analysis by arguing that a special rule applies here. Invoking Illinois State Bd. of and he argues that a state always triggers strict scrutiny when it imposes a higher ballot-access requirement for a countywide office than for a statewide office. Under these cases, Acevedo says, he does not have to show that the Cook County signature requirement severely burdens him in order to trigger strict scrutiny. He just has to show that the burden is heavier than it would be if he were running for statewide office. Acevedo is mistaken. We have stressed before that “[w]hat is ultimately important is not the absolute or relative number of signatures required but whether a ‘reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.’ ” ). If the burden imposed is slight, Anderson and make clear that no justification beyond the state's interest in orderly and fair elections is necessary—even if less burdensome alternatives are available. The cases that Acevedo invokes as support—Socialist Workers and —are not to the contrary. To begin with, even if those cases once prescribed an alternate analysis for this specific type of comparative challenge, they were all decided before clarified that the Anderson test applies to all First and Fourteenth Amendment challenges to state election regulations. See But in any event, those cases are consistent with the Anderson- analysis. 11 Socialist Workers and did not apply strict scrutiny simply because a less burdensome regulation existed. They applied strict scrutiny because each of the challenged regulations imposed a severe burden in its own right. See ; –89, 293–94, (citing Anderson and Socialist Workers for the proposition that severe restrictions require narrow tailoring and then rejecting part of the challenged requirement because it wasn't narrowly tailored);2 And when a regulation imposes a severe burden, a court must consider whether the state could use less burdensome alternatives to achieve the same goal. That is why the existence of less stringent regulations was important in those cases—it showed that the more *950 stringent regulation at issue was not the narrowest necessary to protect the state's interest in managing elections. See Illinois Workers –87, ; ; The defendants in Socialist Workers and lost because they couldn't show that the severe burdens that they placed on ballot access were narrowly tailored. Because the burden here is slight, it is not subject to the same level of scrutiny. The district court correctly concluded that the Cook County signature requirement is justified by Illinois's interest in orderly and fair elections.

Alvarenga-Flores v. Sessions

Alvarenga seeks asylum, withholding of removal, and relief under the Convention Against Torture because he fears torture *924 and persecution from gang members if he returns to El Salvador. The immigration judge concluded that Alvarenga lacked credibility and denied him relief. Finding no clear error in the immigration judge's decision, the Board of Immigration Appeals dismissed the appeal. Substantial evidence supports the decisions of the immigration judge and the Board, and the record does not compel a contrary conclusion. We therefore deny Alvarenga's petition for review. I. Gerson Eliseo Alvarenga-Flores was apprehended crossing the United States border, and he gave a “credible fear” interview while he was detained.1 He said that he was afraid to return to El Salvador, where he is a citizen, because after witnessing the murder of a friend, he received threats from the gang members responsible. His case was referred to an immigration judge (IJ), and the Department of Homeland Security filed a Notice to Appear. It charged him with removability under the Immigration and Naturalization Act because he did not possess valid non-immigrant visas, travel documents, or immigrant visas, and he was not exempt from possessing those documents. § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Alvarenga conceded that he was removable and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ denied all three forms of relief based on an adverse credibility finding; he also found that Alvarenga's asylum application was time-barred. He based the adverse credibility finding on inconsistencies in Alvarenga's testimony about the two events that had prompted him to leave El Salvador for fear of persecution. One involved his escape from gang members who attacked him in a taxi; the other involved his escape from gang members who approached him on a bus. First, the taxi: Alvarenga claimed that he and three friends were riding in a taxi that was stopped by a gang, which fired shots at the car and ultimately killed one person. He offered two different accounts of what happened. In his written statement, Alvarenga said that his friend Jose Diaz was sitting in the front passenger seat. After the attack began, Diaz exited his door and fled on foot, which distracted the gunmen and allowed the taxi to get away. In his oral testimony before the IJ, Alvarenga described events differently. He testified that no one was seated in the front—in this version, all four passengers were seated in the back. He said that Diaz, the friend who fled on foot, was sitting in the middle seat. Because everyone else stayed in the taxi, this position would have required Diaz to climb over one or more passengers to exit the car. When asked about the inconsistency in his stories, Alvarenga had no explanation for it. Next, the bus: Alvarenga claimed that a few days after the taxi incident, gang members boarded a bus that he was riding home from school. In his written statement, Alvarenga said that the gang members—one of whom he recognized as an assailant from the taxi attack—boarded the back of the bus and initially stayed there. When the gang members started approaching Alvarenga, he jumped out of the bus door, and in the process, fell and scraped his hand. In the oral version that he gave to the IJ, events unfolded differently. He testified that he boarded the back of the bus and the gang members got on through the front. When the assailants walked toward him, he jumped out of the back. When pressed by both the IJ and *925 the government about the difference in his oral account, Alvarenga “testified forcefully that he got on the back of the bus and not the assailants.” Again, he did not explain the discrepancy between his written and oral statements. Because of the inconsistencies, the IJ determined that Alvarenga was not being truthful about the basis of his applications for asylum, withholding of removal, and protection under CAT. He then considered whether corroborating evidence could rehabilitate Alvarenga's testimony. Alvarenga had submitted two affidavit letters from his parents to support his story. Both letters were written in English, even though neither parent speaks English. The IJ also found the substance of the letters questionable. Alvarenga's parents lacked firsthand knowledge of the events discussed in their letters and “re-state[d] things that they can only have heard from [Alvarenga].” The IJ further noted that Alvarenga's parents could have testified telephonically but did not. He concluded that the letters were entitled to no weight. On appeal to the Board, Alvarenga argued that the inconsistencies were neither material nor related to the heart of his claim. But the Board, like the IJ, found the discrepancies sufficient to sustain an adverse credibility finding. 8 U.S.C. § 1229a(c)(4)(C) (an IJ may make a credibility determination “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim”). The Board also agreed that Alvarenga's asylum claim was statutorily barred. In his petition for review, Alvarenga argues that the IJ and the Board erred in denying asylum, withholding of removal, and protection under CAT based on a finding of adverse credibility.2 II. 1 2 3 When the Board adopts and supplements an IJ's decision, we review the IJ's decision along with the additional reasoning provided by the Board. Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir. 2008). We consider the decisions “under the deferential substantial evidence standard, meaning that we may only reverse their factual findings if the facts compel an opposite conclusion.” Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014). We also afford significant deference to an agency's adverse credibility determination. Song Wang v. Keisler, 505 F.3d 615, 620 (7th Cir. 2007) (noting that credibility determinations are only overturned under extraordinary circumstances). 4 We turn first to asylum. An applicant applying for asylum as a refugee must credibly establish a well-founded fear of persecution upon return to his home country. 8 U.S.C. § 1101(a)(42)(A); Ahmad v. I.N.S., 163 F.3d 457, 460 (7th Cir. 1999). Asylum cases thus “often turn on the IJ's credibility determination; an adverse credibility finding will doom the applicant's claimed eligibility.” Musollari v. Mukasey, 545 F.3d 505, 508–09 (7th Cir. 2008). This credibility determination assesses the claim for consistency, detail, and the inherent plausibility of the applicant's account. 8 U.S.C. § 1158(b)(1)(B)(iii); see Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004). And in cases like Alvarenga's, which are “governed by the REAL ID Act, the IJ's authority is even greater. ... [IJs] ‘can base an adverse credibility finding on any inconsistency, whether it goes to the *926 heart of the applicant's claim or not.’ ” Tawuo v. Lynch, 799 F.3d 725, 728–29 (7th Cir. 2015) (quoting Georgieva v. Holder, 751 F.3d 514, 519 (7th Cir. 2014) ); see § 1158(b)(1)(B)(iii). The IJ's adverse credibility finding here centered on the inconsistencies in Alvarenga's written and oral statements about the taxi and bus incidents. These two encounters with gang members were crucial to Alvarenga's claim that gang members were likely to torture him if he returned to El Salvador, yet he could not keep the facts straight with respect to either one. Alvarenga offers several explanations for the differences: he does not speak English, his statement was prepared telephonically while he was detained, and he was sent only an English copy to sign. But the IJ considered and rejected these arguments. He stated that he did not “for a second, believe that [the discrepancies were] based on [a] difficulty in communication.” In fact—as the IJ and Board noted—when confronted with his discrepancies, Alvarenga had no explanation. And when offered the chance to corroborate his testimony, he provided more dubious evidence: letters in English from his non-English-speaking parents. See Georgieva, 751 F.3d at 519 (stating that if the IJ finds an applicant's story incredible, the applicant must provide corroborating evidence and explain the discrepancies). 5 6 Under our deferential standard of review, “[w]e need only assure ourselves that the IJ, and ultimately the Board, provided specific reasons based in the evidence for their credibility determinations.” Tawuo, 799 F.3d at 728–29. They did so here. The evidence shows that Alvarenga provided conflicting accounts about what happened during the taxi and bus incidents.3 He also failed to offer convincing corroborating evidence or explain the discrepancies. We thus conclude that substantial evidence supports the IJ's and Board's decisions.4 III. Because the burden for securing asylum is lower than the burden for securing either withholding of removal or relief under CAT, see Capric, 355 F.3d at 1095; Dandan v. Ashcroft, 339 F.3d 567, 575 n.7 (7th Cir. 2003), Alvarenga's remaining two claims must also fail, see Musollari, 545 F.3d at 508 n.2. Accordingly, we DENY the petition for review. Durkin, District Judge, concurring in part and dissenting in part I agree with the majority that Alvarenga's asylum claim is time-barred under 8 U.S.C. § 1158(a)(2). But Alvarenga seeks two other forms of relief: withholding of removal and protection under the CAT. The IJ did not reach the merits of Alvarenga's withholding of removal and CAT claims because he found that Alvarenga lacked credibility. I disagree with the majority's conclusion that substantial evidence *927 supports the IJ's adverse credibility finding. As the majority explains, we give substantial deference to an agency's adverse credibility determination. Song Wang, 505 F.3d at 620. Credibility determinations may be made “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.” 8 U.S.C. § 1229a(c)(4)(C). “That said, the inconsistencies spotted by the IJ should not be trivial.” Tawuo, 799 F.3d at 727. An IJ “must still ‘distinguish between inconsistencies ... that are material and those that are not.’ ” Cojocari v. Sessions, 863 F.3d 616, 620 (7th Cir. 2017) (quoting Krishnapillai v. Holder, 563 F.3d 606, 617 (7th Cir. 2009) ). This Court has “ ‘reversed when the discrepancies were minor, when they concerned irrelevant details in light of the [applicant]'s broader claim of persecution, or when the [IJ] failed to consider the [applicant]'s reasonable explanations offered for a discrepancy.’ ” Id. (quoting Tarraf v. Gonzales, 495 F.3d 525, 532 (7th Cir. 2007) ); see, e.g., Chun Sui Yuan v. Lynch, 827 F.3d 648, 654-56 (7th Cir. 2016) (overturning adverse credibility determination where inconsistencies were trivial in the context of the applicant's “larger claim”). Alvarenga's larger story has remained the same since his credible fear interview in November 2013. During that interview, in his November 2016 personal statement in support of his application, and during his April 2017 testimony before the IJ, Alvarenga described the following: On Sunday, March 10, 2013, Alvarenga and his friends were traveling by taxi to celebrate the birthday of a friend from the university Alvarenga attended in El Salvador. At one point, the taxi slowed down, and armed men approached and ordered Alvarenga and his friends to get out. When Alvarenga and his friends did not cooperate, the gunmen began shooting. At one point, Alvarenga's friend Diaz got out of the car, distracting the gunmen, and the taxi managed to get away. Alvarenga reported the shooting to the police and requested protection, but the police said they could not help. On the Wednesday following the taxi incident, Alvarenga and his parents began receiving calls from men identifying themselves as part of a gang. These men threatened to kill Alvarenga as a witness to the taxi attack unless Alvarenga paid them significant amounts of money. Two days later, on the Friday following the taxi incident, Alvarenga took the bus home from his university. At some point, several gang members, including one of the assailants from the taxi attack, got on the bus. After recognizing the assailant, Alvarenga jumped off the bus, hurting his hand. The gang members chased Alvarenga, but he escaped in a taxi. After the bus incident, Alvarenga and his parents decided he should withdraw from school, and he went into hiding. He left El Salvador several months later, and he arrived in the United States in August 2013. The IJ never acknowledged that Alvarenga's “larger claim,” Chun Sui Yuan, 827 F.3d at 654, remained consistent over the course of three and a half years. Instead, the IJ focused on two discrepancies between Alvarenga's personal statement and his testimony, both of which involved the positions of various actors during the taxi and bus incidents. The first discrepancy concerned whether Alvarenga's friend Diaz was seated in the front passenger seat or the middle of the back seat during the taxi incident. The second concerned which end of the bus the gang members boarded during the bus incident. I view these inconsistencies as trivial when considered in relation to Alvarenga's broader story. See, e.g., id. (“whether the police or an ambulance took [the applicant] to the hospital is *928 irrelevant in light of his larger claim that he was beaten and slashed by agents from the birth-control office, prompting his brother and mother to call the police for help”). The majority says the first discrepancy makes Alvarenga's story implausible because Diaz's position in the middle of the back seat as described in Alvarenga's testimony “would have required Diaz to climb over one or more passengers to exit the car.” But as Alvarenga explained in both his personal statement and his testimony, one of the gang members pulled another of Alvarenga's friends out of the car and shot him.1 Alvarenga testified that Diaz sat directly beside the friend who was pulled out of the taxi, which explains how Diaz exited without climbing over anyone. The fact that Alvarenga provided “greater detail” in his “live testimony” than he did in his personal statement “is not a reason to reject [his] testimony as not credible.” See id. at 655. It is true that Alvarenga's personal statement explained that Diaz “got out of the front passenger seat,” and Alvarenga testified that Diaz exited from the back. But this is not an event about which Alvarenga can be expected to have perfect recall. According to his testimony, the gunmen fired shots directly into the taxi where Alvarenga was sitting. He told the IJ: “when I heard that first shot, inside the taxi, where we were, I closed my eyes, I lowered my head and I didn't know anything of what was going on.” This testimony makes it less surprising that Alvarenga got mixed up about the precise circumstances of Diaz's exit four years after the fact. The second inconsistency likewise is less suspicious when considered in the context of Alvarenga's other testimony. Alvarenga testified that the gang members boarded the bus from the front, and he explained in his personal statement and his credible fear interview that they boarded from the back. But as Alvarenga explained during his testimony, he had his “headphones in listening to music” at the time the gang members boarded the bus, and he noticed them “suddenly.” He further testified that at least one gang member approached him from “behind.” Viewed in fuller context, I believe the IJ placed “great significance in small variations” among Alvarenga's personal statement and his more detailed testimony. See Cojocari, 863 F.3d at 624. The IJ's focus on these small variations “call[s] the [IJ's] overall analysis into question.” Id. at 626. I also find the IJ's discussion of Alvarenga's explanations problematic. The IJ said Alvarenga offered “no explanation” for the two inconsistencies. The Board likewise emphasized the lack of “explanation.” But Alvarenga's testimony described above offered at least a partial explanation for both inconsistencies. He also offered an explanation when the IJ questioned him directly: Alvarenga said that he gave his personal statement over the phone and through an interpreter. His attorney argued at closing that “the inconsistencies may be explained by the exigencies of trying to work in a different language by phone, with a detained client.” The IJ said he did not believe this explanation. But he did not elaborate. This Court has made clear that “reasonable explanations for discrepancies must be considered.” Chun Sui Yuan, 827 F.3d at 653. Here, the IJ incorrectly stated that Alvarenga offered “no explanation” and perfunctorily dismissed counsel's argument. This was insufficient consideration. *929 Finally, I believe the IJ improperly discounted Alvarenga's corroborating evidence. See Cojocari, 863 F.3d at 627-30 (over-turning adverse credibility finding in part because IJ gave insufficient consideration to corroborating evidence). In particular, the IJ should not have so quickly rejected Alvarenga's parents' affidavits corroborating the facts of the taxi and bus incidents. The majority describes these affidavits as “dubious evidence” because they are “letters in English from his non-English-speaking parents.” The IJ similarly gave “no weight” to these affidavits because they are in English. But as Alvarenga's counsel explained to the IJ, these affidavits were prepared through counsel's office. After counsel “went through the statements with [Alvarenga's parents] ... in Spanish” using an interpreter, counsel sent the affidavits to Alvarenga's parents for their signatures. In light of these representations by counsel, the fact that the letters were in English did not justify wholly discounting them. The IJ noted that Alvarenga's parents “lacked firsthand knowledge” of many of the events described. But the IJ ignored significant aspects of the affidavits about which Alvarenga's parents do have firsthand knowledge. Alvarenga's mother's affidavit describes calls to the “home phone threatening that if we didn't cooperate with the gang members they would not rest until [Alvarenga] was murdered” and demanding “first five thousand dollars, then ten thousand dollars.” She says she has received “over 200 calls to [the] home phone.” And she verifies that she “made [Alvarenga] stay inside [the] home” after the bus incident. She is “afraid that if [Alvarenga] returns to El Salvador, he will lose his life.” Alvarenga's father similarly describes “constant threats on [his] cell phone” and calls to the home phone “asking for large amounts of money.” He states: “I know [Alvarenga] will be killed if he returns to El Salvador.” These aspects of the affidavits should not have gone unacknowledged. The IJ also failed to address the further corroboration Alvarenga offered for his story. This evidence included university records supporting Alvarenga's testimony that he studied engineering and played soccer from 2010 through mid-2013. Alvarenga also submitted government reports and news articles describing widespread corruption and gang activity in El Salvador. These sources explain that “extortion is a very common crime in El Salvador,” and they document the inadequate governmental protection offered to gang crime witnesses. This Court recently described these unfortunate realities in El Salvador: The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes.... They extort millions of dollars from local businesses through threats of violence, and they are largely responsible for El Salvador's homicide rate—one of the highest in the world. W.G.A. v. Sessions, No. 16-4193, 2018 WL 3979276, at *1 (7th Cir. Aug. 21, 2018). The IJ found it “implausible ... as a matter of how the world works” that gang members would try to extort Alvarenga and his parents three days after Alvarenga witnessed a shooting, and that gang members would then track down Alvarenga on a bus returning from his university. This may not be the way the world typically works in the United States. But Alvarenga's sources support that it is the way the world often works in El Salvador (as this Court has recently acknowledged). For these reasons, I would grant Alvarenga's petition for review and reverse the IJ's adverse credibility finding. Because the Board and IJ did not decide whether, *930 if credible, Alvarenga's testimony met his burden of proof, I would remand for further consideration of the merits of Alvarenga's withholding of removal and CAT claims. See, e.g., Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (federal courts may not pass judgment on an issue the Board and IJ did not address).

Barrett

majority

Alvarenga seeks asylum, withholding of removal, and relief under the Convention Against Torture because he fears torture *924 and persecution from gang members if he returns to El Salvador. The immigration judge concluded that Alvarenga lacked credibility and denied him relief. Finding no clear error in the immigration judge's decision, the Board of Immigration Appeals dismissed the appeal. Substantial evidence supports the decisions of the immigration judge and the Board, and the record does not compel a contrary conclusion. We therefore deny Alvarenga's petition for review. I. Gerson Eliseo Alvarenga-Flores was apprehended crossing the United States border, and he gave a “credible fear” interview while he was detained.1 He said that he was afraid to return to El Salvador, where he is a citizen, because after witnessing the murder of a friend, he received threats from the gang members responsible. His case was referred to an immigration judge (IJ), and the Department of Homeland Security filed a Notice to Appear. It charged him with removability under the Immigration and Naturalization Act because he did not possess valid non-immigrant visas, travel documents, or immigrant visas, and he was not exempt from possessing those documents. 212(a)(7)(A)(i)(I), 8 U.S.C. 1182(a)(7)(A)(i)(I). Alvarenga conceded that he was removable and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ denied all three forms of relief based on an adverse credibility finding; he also found that Alvarenga's asylum application was time-barred. He based the adverse credibility finding on inconsistencies in Alvarenga's testimony about the two events that had prompted him to leave El Salvador for fear of persecution. One involved his escape from gang members who attacked him in a taxi; the other involved his escape from gang members who approached him on a bus. First, the taxi: Alvarenga claimed that he and three friends were riding in a taxi that was stopped by a gang, which fired shots at the car and ultimately killed one person. He offered two different accounts of what happened. In his written statement, Alvarenga said that his friend Jose Diaz was sitting in the front passenger seat. After the attack began, Diaz exited his door and fled on foot, which distracted the gunmen and allowed the taxi to get away. In his oral testimony before the IJ, Alvarenga described events differently. He testified that no one was seated in the front—in this version, all four passengers were seated in the back. He said that Diaz, the friend who fled on foot, was sitting in the middle seat. Because everyone else stayed in the taxi, this position would have required Diaz to climb over one or more passengers to exit the car. When asked about the inconsistency in his stories, Alvarenga had no explanation for it. Next, the bus: Alvarenga claimed that a few days after the taxi incident, gang members boarded a bus that he was riding home from school. In his written statement, Alvarenga said that the gang members—one of whom he recognized as an assailant from the taxi attack—boarded the back of the bus and initially stayed there. When the gang members started approaching Alvarenga, he jumped out of the bus door, and in the process, fell and scraped his hand. In the oral version that he gave to the IJ, events unfolded differently. He testified that he boarded the back of the bus and the gang members got on through the front. When the assailants walked toward him, he jumped out of the back. When pressed by both the IJ and *925 the government about the difference in his oral account, Alvarenga “testified forcefully that he got on the back of the bus and not the assailants.” Again, he did not explain the discrepancy between his written and oral statements. Because of the inconsistencies, the IJ determined that Alvarenga was not being truthful about the basis of his applications for asylum, withholding of removal, and protection under CAT. He then considered whether corroborating evidence could rehabilitate Alvarenga's testimony. Alvarenga had submitted two affidavit letters from his parents to support his story. Both letters were written in English, even though neither parent speaks English. The IJ also found the substance of the letters questionable. Alvarenga's parents lacked firsthand knowledge of the events discussed in their letters and “re-state[d] things that they can only have heard from [Alvarenga].” The IJ further noted that Alvarenga's parents could have testified telephonically but did not. He concluded that the letters were entitled to no weight. On appeal to the Board, Alvarenga argued that the inconsistencies were neither material nor related to the heart of his claim. But the Board, like the IJ, found the discrepancies sufficient to sustain an adverse credibility finding. 8 U.S.C. 1229a(c)(4)(C) (an IJ may make a credibility determination “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim”). The Board also agreed that Alvarenga's asylum claim was statutorily barred. In his petition for review, Alvarenga argues that the IJ and the Board erred in denying asylum, withholding of removal, and protection under CAT based on a finding of adverse credibility.2 II. 1 2 3 When the Board adopts and supplements an IJ's decision, we review the IJ's decision along with the additional reasoning provided by the Board. We consider the decisions “under the deferential substantial evidence standard, meaning that we may only reverse their factual findings if the facts compel an opposite conclusion.” We also afford significant deference to an agency's adverse credibility determination. Song 4 We turn first to asylum. An applicant applying for asylum as a refugee must credibly establish a well-founded fear of persecution upon return to his home country. 8 U.S.C. 1101(a)(42)(A); Asylum cases thus “often turn on the IJ's credibility determination; an adverse credibility finding will doom the applicant's claimed eligibility.” This credibility determination assesses the claim for consistency, detail, and the inherent plausibility of the applicant's account. 8 U.S.C. 1158(b)(1)(B)(iii); see And in cases like Alvarenga's, which are “governed by the REAL ID Act, the IJ's authority is even greater. [IJs] ‘can base an adverse credibility finding on any inconsistency, whether it goes to the *926 heart of the applicant's claim or not.’ ” ); see 1158(b)(1)(B)(iii). The IJ's adverse credibility finding here centered on the inconsistencies in Alvarenga's written and oral statements about the taxi and bus incidents. These two encounters with gang members were crucial to Alvarenga's claim that gang members were likely to torture him if he returned to El Salvador, yet he could not keep the facts straight with respect to either one. Alvarenga offers several explanations for the differences: he does not speak English, his statement was prepared telephonically while he was detained, and he was sent only an English copy to sign. But the IJ considered and rejected these arguments. He stated that he did not “for a second, believe that [the discrepancies were] based on [a] difficulty in communication.” In fact—as the IJ and Board noted—when confronted with his discrepancies, Alvarenga had no explanation. And when offered the chance to corroborate his testimony, he provided more dubious evidence: letters in English from his non-English-speaking parents. See 751 F.3d at 5 6 Under our deferential standard of review, “[w]e need only assure ourselves that the IJ, and ultimately the Board, provided specific reasons based in the evidence for their credibility determinations.” 799 F.3d at They did so here. The evidence shows that Alvarenga provided conflicting accounts about what happened during the taxi and bus incidents.3 He also failed to offer convincing corroborating evidence or explain the discrepancies. We thus conclude that substantial evidence supports the IJ's and Board's decisions.4 III. Because the burden for securing asylum is lower than the burden for securing either withholding of removal or relief under CAT, see ; Alvarenga's remaining two claims must also fail, see n.2. Accordingly, we DENY the petition for review. Durkin, District Judge, concurring in part and dissenting in part I agree with the majority that Alvarenga's asylum claim is time-barred under 8 U.S.C. 1158(a)(2). But Alvarenga seeks two other forms of relief: withholding of removal and protection under the CAT. The IJ did not reach the merits of Alvarenga's withholding of removal and CAT claims because he found that Alvarenga lacked credibility. I disagree with the majority's conclusion that substantial evidence *927 supports the IJ's adverse credibility finding. As the majority explains, we give substantial deference to an agency's adverse credibility determination. Song 505 F.3d at Credibility determinations may be made “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.” 8 U.S.C. 1229a(c)(4)(C). “That said, the inconsistencies spotted by the IJ should not be trivial.” An IJ “must still ‘distinguish between inconsistencies that are material and those that are not.’ ” This Court has “ ‘reversed when the discrepancies were minor, when they concerned irrelevant details in light of the [applicant]'s broader claim of persecution, or when the [IJ] failed to consider the [applicant]'s reasonable explanations offered for a discrepancy.’ ” ); see, e.g., Chun Sui Alvarenga's larger story has remained the same since his credible fear interview in November 2013. During that interview, in his November 2016 personal statement in support of his application, and during his April 2017 testimony before the IJ, Alvarenga described the following: On Sunday, March 10, 2013, Alvarenga and his friends were traveling by taxi to celebrate the birthday of a friend from the university Alvarenga attended in El Salvador. At one point, the taxi slowed down, and armed men approached and ordered Alvarenga and his friends to get out. When Alvarenga and his friends did not cooperate, the gunmen began shooting. At one point, Alvarenga's friend Diaz got out of the car, distracting the gunmen, and the taxi managed to get away. Alvarenga reported the shooting to the police and requested protection, but the police said they could not help. On the Wednesday following the taxi incident, Alvarenga and his parents began receiving calls from men identifying themselves as part of a gang. These men threatened to kill Alvarenga as a witness to the taxi attack unless Alvarenga paid them significant amounts of money. Two days later, on the Friday following the taxi incident, Alvarenga took the bus home from his university. At some point, several gang members, including one of the assailants from the taxi attack, got on the bus. After recognizing the assailant, Alvarenga jumped off the bus, hurting his hand. The gang members chased Alvarenga, but he escaped in a taxi. After the bus incident, Alvarenga and his parents decided he should withdraw from school, and he went into hiding. He left El Salvador several months later, and he arrived in the United States in August 2013. The IJ never acknowledged that Alvarenga's “larger claim,” Chun Sui remained consistent over the course of three and a half years. Instead, the IJ focused on two discrepancies between Alvarenga's personal statement and his testimony, both of which involved the positions of various actors during the taxi and bus incidents. The first discrepancy concerned whether Alvarenga's friend Diaz was seated in the front passenger seat or the middle of the back seat during the taxi incident. The second concerned which end of the bus the gang members boarded during the bus incident. I view these inconsistencies as trivial when considered in relation to Alvarenga's broader story. See, e.g., The majority says the first discrepancy makes Alvarenga's story implausible because Diaz's position in the middle of the back seat as described in Alvarenga's testimony “would have required Diaz to climb over one or more passengers to exit the car.” But as Alvarenga explained in both his personal statement and his testimony, one of the gang members pulled another of Alvarenga's friends out of the car and shot him.1 Alvarenga testified that Diaz sat directly beside the friend who was pulled out of the taxi, which explains how Diaz exited without climbing over anyone. The fact that Alvarenga provided “greater detail” in his “live testimony” than he did in his personal statement “is not a reason to reject [his] testimony as not credible.” See It is true that Alvarenga's personal statement explained that Diaz “got out of the front passenger seat,” and Alvarenga testified that Diaz exited from the back. But this is not an event about which Alvarenga can be expected to have perfect recall. According to his testimony, the gunmen fired shots directly into the taxi where Alvarenga was sitting. He told the IJ: “when I heard that first shot, inside the taxi, where we were, I closed my eyes, I lowered my head and I didn't know anything of what was going on.” This testimony makes it less surprising that Alvarenga got mixed up about the precise circumstances of Diaz's exit four years after the fact. The second inconsistency likewise is less suspicious when considered in the context of Alvarenga's other testimony. Alvarenga testified that the gang members boarded the bus from the front, and he explained in his personal statement and his credible fear interview that they boarded from the back. But as Alvarenga explained during his testimony, he had his “headphones in listening to music” at the time the gang members boarded the bus, and he noticed them “suddenly.” He further testified that at least one gang member approached him from “behind.” Viewed in fuller context, I believe the IJ placed “great significance in small variations” among Alvarenga's personal statement and his more detailed testimony. See The IJ's focus on these small variations “call[s] the [IJ's] overall analysis into question.” I also find the IJ's discussion of Alvarenga's explanations problematic. The IJ said Alvarenga offered “no explanation” for the two inconsistencies. The Board likewise emphasized the lack of “explanation.” But Alvarenga's testimony described above offered at least a partial explanation for both inconsistencies. He also offered an explanation when the IJ questioned him directly: Alvarenga said that he gave his personal statement over the phone and through an interpreter. His attorney argued at closing that “the inconsistencies may be explained by the exigencies of trying to work in a different language by phone, with a detained client.” The IJ said he did not believe this explanation. But he did not elaborate. This Court has made clear that “reasonable explanations for discrepancies must be considered.” Chun Sui Here, the IJ incorrectly stated that Alvarenga offered “no explanation” and perfunctorily dismissed counsel's argument. This was insufficient consideration. *929 Finally, I believe the IJ improperly discounted Alvarenga's corroborating evidence. See -30 In particular, the IJ should not have so quickly rejected Alvarenga's parents' affidavits corroborating the facts of the taxi and bus incidents. The majority describes these affidavits as “dubious evidence” because they are “letters in English from his non-English-speaking parents.” The IJ similarly gave “no weight” to these affidavits because they are in English. But as Alvarenga's counsel explained to the IJ, these affidavits were prepared through counsel's office. After counsel “went through the statements with [Alvarenga's parents] in Spanish” using an interpreter, counsel sent the affidavits to Alvarenga's parents for their signatures. In light of these representations by counsel, the fact that the letters were in English did not justify wholly discounting them. The IJ noted that Alvarenga's parents “lacked firsthand knowledge” of many of the events described. But the IJ ignored significant aspects of the affidavits about which Alvarenga's parents do have firsthand knowledge. Alvarenga's mother's affidavit describes calls to the “home phone threatening that if we didn't cooperate with the gang members they would not rest until [Alvarenga] was murdered” and demanding “first five thousand dollars, then ten thousand dollars.” She says she has received “over 200 calls to [the] home phone.” And she verifies that she “made [Alvarenga] stay inside [the] home” after the bus incident. She is “afraid that if [Alvarenga] returns to El Salvador, he will lose his life.” Alvarenga's father similarly describes “constant threats on [his] cell phone” and calls to the home phone “asking for large amounts of money.” He states: “I know [Alvarenga] will be killed if he returns to El Salvador.” These aspects of the affidavits should not have gone unacknowledged. The IJ also failed to address the further corroboration Alvarenga offered for his story. This evidence included university records supporting Alvarenga's testimony that he studied engineering and played soccer from 2010 through mid-2013. Alvarenga also submitted government reports and news articles describing widespread corruption and gang activity in El Salvador. These sources explain that “extortion is a very common crime in El Salvador,” and they document the inadequate governmental protection offered to gang crime witnesses. This Court recently described these unfortunate realities in El Salvador: The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes. They extort millions of dollars from local businesses through threats of violence, and they are largely responsible for El Salvador's homicide rate—one of the highest in the world. The IJ found it “implausible as a matter of how the world works” that gang members would try to extort Alvarenga and his parents three days after Alvarenga witnessed a shooting, and that gang members would then track down Alvarenga on a bus returning from his university. This may not be the way the world typically works in the United States. But Alvarenga's sources support that it is the way the world often works in El Salvador (as this Court has recently acknowledged). For these reasons, I would grant Alvarenga's petition for review and reverse the IJ's adverse credibility finding. Because the Board and IJ did not decide whether, *930 if credible, Alvarenga's testimony met his burden of proof, I would remand for further consideration of the merits of Alvarenga's withholding of removal and CAT claims. See, e.g.,

Beley v. City of Chicago

Michael Beley and Douglas Montgomery represent a class of sex offenders who allege that the City of Chicago refused to register them under the Illinois Sex Offender Registration Act (SORA) because they could not produce proof of address. If true, that might have violated SORA, because the Act provides a mechanism for registering the homeless. Yet Beley and Montgomery contend that it violated their right to procedural due process—according to the plaintiffs, the City used constitutionally inadequate procedures to determine whether they had satisfied SORA’s registration requirements. But the Fourteenth Amendment guarantees due process only when the State deprives someone of life, liberty, or property. Beley and Montgomery insist that the City deprived them of liberty: they assert a right to register under SORA. For reasons we explain below, however, this is not a cognizable liberty interest. And without a cognizable liberty interest, the plaintiffs have no due process claim. I. To comply with SORA, any sex offender residing in Chicago for three days or more must register at the headquarters of the Chicago Police Department.1 *825 730 ILCS 150/3(a)(1). Registration requires more than just showing up. The offender must provide law enforcement with comprehensive biographical information, including identification and proof of address. Id. at 150/3(c)(5). If the offender has no fixed residence, he must report weekly to the Department, which documents all the locations where the person has stayed in the past seven days. Id. at 150/3(a). An intake officer is not obliged to register all comers. Before registering any offender, the officer must determine whether the offender has complied with SORA’s requirements—if he has, the officer registers him; if he hasn’t, the officer turns him away. The Department maintains a daily registration log, which documents each registration attempt. Failing to comply with SORA is a felony punishable by two to five years’ imprisonment and may result in a “non-compliant” listing on the Illinois sex offender information website. See id. at 150/10(a), 5/5–4.5–40(a), & 152/115. An offender convicted of violating SORA must serve a minimum jail term of seven days and pay a minimum fine of $500 in addition to any other penalty imposed. Id. at 150/10(a). Douglas Montgomery is a sex offender who tried unsuccessfully to comply with SORA. After he completed a twenty-year sentence for aggravated criminal sexual assault, he reported to the Department to register. He was turned away, however, because he produced neither an identification card nor proof of a fixed address. When Montgomery told the intake officer that he was homeless, the officer responded that the Department was “not registering homeless people right now.” Nearly seven months later, after arresting Montgomery for violating several ordinances, Chicago police discovered that he had failed to register under SORA. They charged him with that violation, though he was ultimately acquitted. Michael Beley, another homeless sex offender, had a similar experience. He tried to register after he was released from prison, but he was turned away because he lacked proof of address. Four days later, he tried again and was rejected for the same reason. On his third attempt, Beley tried to register with an identification card bearing his son’s address. The intake officer refused to register him, however, because the address was in a location that was off-limits to child sex offenders. Shortly after this third attempt, the state listed Beley as “non-compliant” on the Illinois State Police sex offender website. Beley then secured a spot at a homeless shelter, and he was able to register with an Illinois identification card listing the shelter as his address. But when the shelter stopped accepting child sex offenders, Beley found himself back on the street. He has since registered on a weekly basis as an offender without a fixed residence. Beley and Montgomery filed a class action against the City on behalf of “[a]ll persons who attempted to register under the Illinois Sex Offender Registration Act with the City of Chicago [during a defined period] and who were not permitted to register because they were homeless.” They asserted a claim under 42 U.S.C. § 1983, alleging that the City’s policy of refusing to register the homeless violated the Due Process Clause of the Fourteenth Amendment.2 The plaintiffs didn’t describe what process the City should have provided; *826 at oral argument before us, they suggested having a supervisor available to review an officer’s determination that an offender failed to satisfy the requirements for registration. The district court entered summary judgment for the City. It agreed with the plaintiffs that a homeless sex offender has a protected liberty interest in the ability to register under SORA.3 Beley v. City of Chicago, 2015 WL 684519, at *2 (N.D. Ill. Feb. 17, 2015) (“[A] homeless sex offender’s ... interest in being able to register” is a “protected liberty interest” because it “jeopardizes their significant interest in freedom from liability and incarceration.”). But a municipality is liable for the constitutional violations of its officers only if the officers act pursuant to a city policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court said that the plaintiffs had arguably shown “occasional lapses of judgment” or “individual misconduct by police officers” but not that the City had a policy or custom of turning the homeless away. Beley v. City of Chicago, 2017 WL 770964, *10 (N.D. Ill. Feb. 28, 2017). It thus held that the City was entitled to judgment. We affirm the district court, though on a different ground. The City argues before us, as it did below, that the ability to register under SORA is not a cognizable liberty interest. We agree. II. 1 The Fourteenth Amendment’s guarantee of due process is triggered when the state deprives a person of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. While their arguments are not particularly clear, the plaintiffs suggest several theories for why the City’s intake officers deprived them of a cognizable liberty interest. All of them fail. The first is the weakest: the plaintiffs argue that they have the right to register as sex offenders. But saying that one has the right to register under SORA is like saying that one has the right to serve a sentence or the right to pay taxes. SORA’s registration requirement burdens sex offenders; it is not, as the plaintiffs contend, an aspect of their liberty. The next argument is better, though also unsuccessful. The plaintiffs suggest that their undisputed liberty interest in freedom from bodily restraint triggered the Clause. To be clear, they do not complain that the City incarcerated them; nor do they seek to enjoin the City from incarcerating them in the future.4 See, e.g., Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (permitting plaintiffs to sue for an injunction on the ground that enforcement of the statute would violate procedural due process). Their theory seems to be that the State must provide due process not only for actions that take a cognizable liberty interest, but also for actions that create the potential for a later loss of that interest. In other words, registration is protected because it is a liberty interest, once removed. If sex offenders don’t register, the State might imprison them, and imprisonment would restrain their liberty. To protect their interest in freedom from bodily restraint, they reason, *827 the Fourteenth Amendment must also require the State to provide procedural protection for any antecedent action that threatens that interest. By its own terms, however, the Fourteenth Amendment guarantees procedural protection for state action that deprives someone of a cognizable interest in life, liberty, or property, not for state action that jeopardizes that interest. U.S. Const. amend. XIV, § 1 (“[N]or shall any state deprive any person of life, liberty, or property, without due process of law.”); see also LaBella Winnetka v. Village of Winnetka, 628 F.3d 937, 943–44 (7th Cir. 2010) (“To state a Fourteenth Amendment claim for the deprivation of a property interest without due process, a plaintiff must demonstrate that ... he suffered a loss of that interest amounting to a deprivation.”). The state action relevant here—the intake officers’ refusal to register the plaintiffs—did not deprive the plaintiffs of their interest in freedom from bodily restraint, so the plaintiffs cannot successfully argue that the loss of that interest triggered the Clause. The plaintiffs must ground their procedural due process claim in an interest that the officers actually took. 2 That brings us to their next theory: that freedom from the possibility of incarceration is a cognizable liberty interest in its own right. The plaintiffs offer no support for this position. Certainly, the Fourteenth Amendment does not protect a person’s freedom from fear of apprehension. Paul v. Davis, 424 U.S. 693, 695–97, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (police did not deprive plaintiff of liberty by inaccurately identifying him as an “active shoplifter,” even though the designation “would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended”). And the plaintiffs have not identified any other way in which the possibility of incarceration burdens them. It does not impose additional restrictions on where they can live, where they can work, or what they can do; nor does it saddle them with additional obligations like reporting requirements. In this respect, the plaintiffs’ situation stands in contrast to that of the plaintiffs in Schepers v. Indiana Department of Correction, which the plaintiffs repeatedly—and mistakenly—cite as an analogous case. 691 F.3d 909 (7th Cir. 2012). In Schepers, we held that plaintiffs lost liberty when they were erroneously identified as “sexually violent predators” on the state’s online offender registry. Id. at 911–12. That listing imposed both restrictions and obligations on the plaintiffs—for example, those on the registry could not live within 1,000 feet of a school, and they had to report in person to local law enforcement at regular intervals. Id. at 912. In this case, however, plaintiffs were subject to similar restraints because they were sex offenders; SORA did not impose new restraints on them because they were “non-compliant” sex offenders. 3 The plaintiffs float one last possibility. Even if the risk of losing liberty does not trigger the Due Process Clause, both Montgomery and Beley actually lost liberty for failing to register. Montgomery was charged with violating SORA, and Beley alleges that he suffered reputational harm when the State listed him as “non-compliant” on its website. But Montgomery and Beley do not represent a class defined as “all homeless people denied registration under SORA who were subsequently arrested or listed as non-compliant on the State’s website.” They represent a class of “[a]ll persons ... who were not permitted to register because they were homeless.” They presumably defined the injury this way to make a class action possible—Beley and Montgomery appear to be the only members of the class who suffered consequences for failing to register. See *828 Fed. R. Civ. P. 23(a)(3) (The court may certify a class only if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”). Having chosen to define the deprivation as the denial of registration, however, the plaintiffs are stuck with that theory. The City owed Montgomery due process when it arrested him, and Beley could at least try to argue that the State deprived him of liberty by listing him as “non-compliant” on the sex-offender website.5 But the City’s intake officers had no obligation to provide process when they determined that the plaintiffs were ineligible to register. * * * 4 Maybe the plaintiffs have a claim that the City’s intake officers violated SORA by declining to register them. But they cannot assert a claim for a state-law violation under 18 U.S.C. § 1983. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944) (“Mere violation of a state statute does not infringe the federal Constitution.”). Because they have not alleged that the City deprived them of a cognizable liberty interest, the judgment of the district court is AFFIRMED.

Barrett

majority

Michael Beley and Douglas Montgomery represent a class of sex offenders who allege that the City of Chicago refused to register them under the Illinois Sex Offender Registration Act (SORA) because they could not produce proof of address. If true, that might have violated SORA, because the Act provides a mechanism for registering the homeless. Yet Beley and Montgomery contend that it violated their right to procedural due process—according to the plaintiffs, the City used constitutionally inadequate procedures to determine whether they had satisfied SORA’s registration requirements. But the Fourteenth Amendment guarantees due process only when the State deprives someone of life, liberty, or property. Beley and Montgomery insist that the City deprived them of liberty: they assert a right to register under SORA. For reasons we explain below, however, this is not a cognizable liberty interest. And without a cognizable liberty interest, the plaintiffs have no due process claim. I. To comply with SORA, any sex offender residing in Chicago for three days or more must register at the headquarters of the Chicago Police Department.1 *825 730 ILCS 150/3(a)(1). Registration requires more than just showing up. The offender must provide law enforcement with comprehensive biographical information, including identification and proof of address. at 150/3(c)(5). If the offender has no fixed residence, he must report weekly to the Department, which documents all the locations where the person has stayed in the past seven days. at 150/3(a). An intake officer is not obliged to register all comers. Before registering any offender, the officer must determine whether the offender has complied with SORA’s requirements—if he has, the officer registers him; if he hasn’t, the officer turns him away. The Department maintains a daily registration log, which documents each registration attempt. Failing to comply with SORA is a felony punishable by two to five years’ imprisonment and may result in a “non-compliant” listing on the Illinois sex offender information website. See at 150/10(a), 5/5–4.5–40(a), & 152/5. An offender convicted of violating SORA must serve a minimum jail term of seven days and pay a minimum fine of $500 in addition to any other penalty imposed. at 150/10(a). Douglas Montgomery is a sex offender who tried unsuccessfully to comply with SORA. After he completed a twenty-year sentence for aggravated criminal sexual assault, he reported to the Department to register. He was turned away, however, because he produced neither an identification card nor proof of a fixed address. When Montgomery told the intake officer that he was homeless, the officer responded that the Department was “not registering homeless people right now.” Nearly seven months later, after arresting Montgomery for violating several ordinances, Chicago police discovered that he had failed to register under SORA. They charged him with that violation, though he was ultimately acquitted. Michael Beley, another homeless sex offender, had a similar experience. He tried to register after he was released from prison, but he was turned away because he lacked proof of address. Four days later, he tried again and was rejected for the same reason. On his third attempt, Beley tried to register with an identification card bearing his son’s address. The intake officer refused to register him, however, because the address was in a location that was off-limits to child sex offenders. Shortly after this third attempt, the state listed Beley as “non-compliant” on the Illinois State Police sex offender website. Beley then secured a spot at a homeless shelter, and he was able to register with an Illinois identification card listing the shelter as his address. But when the shelter stopped accepting child sex offenders, Beley found himself back on the street. He has since registered on a weekly basis as an offender without a fixed residence. Beley and Montgomery filed a class action against the City on behalf of “[a]ll persons who attempted to register under the Illinois Sex Offender Registration Act with the City of Chicago [during a defined period] and who were not permitted to register because they were homeless.” They asserted a claim under alleging that the City’s policy of refusing to register the homeless violated the Due Process Clause of the Fourteenth Amendment.2 The plaintiffs didn’t describe what process the City should have provided; *826 at oral argument before us, they suggested having a supervisor available to review an officer’s determination that an offender failed to satisfy the requirements for registration. The district court entered summary judgment for the City. It agreed with the plaintiffs that a homeless sex offender has a protected liberty interest in the ability to register under SORA.3 But a municipality is liable for the constitutional violations of its officers only if the officers act pursuant to a city policy or custom. The district court said that the plaintiffs had arguably shown “occasional lapses of judgment” or “individual misconduct by police officers” but not that the City had a policy or custom of turning the homeless away. It thus held that the City was entitled to judgment. We affirm the district court, though on a different ground. The City argues before us, as it did below, that the ability to register under SORA is not a cognizable liberty interest. We agree. II. 1 The Fourteenth Amendment’s guarantee of due process is triggered when the state deprives a person of “life, liberty, or property.” U.S. Const. amend. XIV, 1. While their arguments are not particularly clear, the plaintiffs suggest several theories for why the City’s intake officers deprived them of a cognizable liberty interest. All of them fail. The first is the weakest: the plaintiffs argue that they have the right to register as sex offenders. But saying that one has the right to register under SORA is like saying that one has the right to serve a sentence or the right to pay taxes. SORA’s registration requirement burdens sex offenders; it is not, as the plaintiffs contend, an aspect of their liberty. The next argument is better, though also unsuccessful. The plaintiffs suggest that their undisputed liberty interest in freedom from bodily restraint triggered the Clause. To be clear, they do not complain that the City incarcerated them; nor do they seek to enjoin the City from incarcerating them in the future.4 See, e.g., Ex Parte Young, Their theory seems to be that the State must provide due process not only for actions that take a cognizable liberty interest, but also for actions that create the potential for a later loss of that interest. In other words, registration is protected because it is a liberty interest, once removed. If sex offenders don’t register, the State might imprison them, and imprisonment would restrain their liberty. To protect their interest in freedom from bodily restraint, they reason, *827 the Fourteenth Amendment must also require the State to provide procedural protection for any antecedent action that threatens that interest. By its own terms, however, the Fourteenth Amendment guarantees procedural protection for state action that deprives someone of a cognizable interest in life, liberty, or property, not for state action that jeopardizes that interest. U.S. Const. amend. XIV, 1 (“[N]or shall any state deprive any person of life, liberty, or property, without due process of law.”); see also LaBella The state action relevant here—the intake officers’ refusal to register the plaintiffs—did not deprive the plaintiffs of their interest in freedom from bodily restraint, so the plaintiffs cannot successfully argue that the loss of that interest triggered the Clause. The plaintiffs must ground their procedural due process claim in an interest that the officers actually took. 2 That brings us to their next theory: that freedom from the possibility of incarceration is a cognizable liberty interest in its own right. The plaintiffs offer no support for this position. Certainly, the Fourteenth Amendment does not protect a person’s freedom from fear of apprehension. And the plaintiffs have not identified any other way in which the possibility of incarceration burdens them. It does not impose additional restrictions on where they can live, where they can work, or what they can do; nor does it saddle them with additional obligations like reporting requirements. In this respect, the plaintiffs’ situation stands in contrast to that of the plaintiffs in Schepers v. Indiana Department of Correction, which the plaintiffs repeatedly—and mistakenly—cite as an analogous case. In Schepers, we held that plaintiffs lost liberty when they were erroneously identified as “sexually violent predators” on the state’s online offender registry. at 9–12. That listing imposed both restrictions and obligations on the plaintiffs—for example, those on the registry could not live within 1,000 feet of a school, and they had to report in person to local law enforcement at regular intervals. In this case, however, plaintiffs were subject to similar restraints because they were sex offenders; SORA did not impose new restraints on them because they were “non-compliant” sex offenders. 3 The plaintiffs float one last possibility. Even if the risk of losing liberty does not trigger the Due Process Clause, both Montgomery and Beley actually lost liberty for failing to register. Montgomery was charged with violating SORA, and Beley alleges that he suffered reputational harm when the State listed him as “non-compliant” on its website. But Montgomery and Beley do not represent a class defined as “all homeless people denied registration under SORA who were subsequently arrested or listed as non-compliant on the State’s website.” They represent a class of “[a]ll persons who were not permitted to register because they were homeless.” They presumably defined the injury this way to make a class action possible—Beley and Montgomery appear to be the only members of the class who suffered consequences for failing to register. See *828 Fed. R. Civ. P. 23(a)(3) (The court may certify a class only if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”). Having chosen to define the deprivation as the denial of registration, however, the plaintiffs are stuck with that theory. The City owed Montgomery due process when it arrested him, and Beley could at least try to argue that the State deprived him of liberty by listing him as “non-compliant” on the sex-offender website.5 But the City’s intake officers had no obligation to provide process when they determined that the plaintiffs were ineligible to register. * * * 4 Maybe the plaintiffs have a claim that the City’s intake officers violated SORA by declining to register them. But they cannot assert a claim for a state-law violation under 18 U.S.C. 1983. Because they have not alleged that the City deprived them of a cognizable liberty interest, the judgment of the district court is AFFIRMED.

Beltran-Aguilar v. Whitaker

Eliseo Beltran-Aguilar, a native and citizen of Mexico, applied for cancellation of removal from the United States. An immigration *421 judge denied his application, and the Board of Immigration Appeals affirmed the denial on the ground that Beltran-Aguilar's conviction for Wisconsin battery involving domestic abuse was a crime of domestic violence. Beltran-Aguilar now petitions this court for review, arguing that the Wisconsin offense is not categorically a crime of violence. It is, so we deny his petition. Federal law makes an alien ineligible for cancellation of removal if he has been convicted of a crime of domestic violence, see 8 U.S.C. § 1229b(b)(1)(C), which is ‘‘any crime of violence ... against a person committed by” a current or former domestic partner, 8 U.S.C. § 1227(a)(2)(E)(i). A “crime of violence” is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). Offenses either categorically involve physical force or they don't; the elements of the crime for which a defendant was convicted, not his underlying conduct, are what matters. See Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Beltran-Aguilar was convicted of battery under Wisconsin Statute 940.19(1), which prohibits “caus[ing] bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed.” In Wisconsin, “bodily harm” means “physical pain or injury, illness, or any impairment of physical condition.” Wis. Stat. § 939.22(4). Beltran-Aguilar argues that Wisconsin battery is not a crime of violence because it can be satisfied by causing only illness or impairment of physical condition, which he says do not necessarily require physical force. Precedent says otherwise. The Supreme Court held in Curtis Johnson v. United States that “ ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Though the Court was interpreting a different statute—18 U.S.C. § 924(e)—than the one at issue here, we've confirmed that “[t]he definition of a crime of violence in § 924(e) mirrors the language found in 18 U.S.C. § 16(a), and the statutes are interpreted in the same way.” De Leon Castellanos v. Holder, 652 F.3d 762, 765 (7th Cir. 2011). We have already held that Wisconsin's definition of bodily harm “tracks what Curtis Johnson said would suffice.” Yates v. United States, 842 F.3d 1051, 1053 (7th Cir. 2016) (holding that the Wisconsin offense of battery by a prisoner is a crime of violence under § 924(e) ). And we reached a similar conclusion in United States v. Yang, where we held that the Minnesota felony of domestic assault—an offense premised on the same definition of bodily harm as Wisconsin battery—was a crime of violence. 799 F.3d 750, 756 (7th Cir. 2015); see also Minn. Stat. § 609.02 Subd. 7. Notwithstanding these authorities, Beltran-Aguilar provides a number of hypotheticals that he thinks could be prosecuted as Wisconsin batteries that would not involve physical force under Curtis Johnson: a blowhorn that impairs someone's hearing, smelling salts that impair someone's sense of smell, and a substance in a drink that impairs someone's health or ability to walk. Even if Beltran-Aguilar is right that these examples don't involve physical force, he fails to show that Wisconsin would actually prosecute them as battery. “[T]he Supreme Court has cautioned us not to allow our ‘legal imagination[s]’ to roam too freely in postulating what types of conduct theoretically might be prosecuted under a state statute for purposes of determining whether the offense as defined qualifies as a predicate offense for *422 adverse federal action.” United States v. Jennings, 860 F.3d 450, 460 (2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). There must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales, 549 U.S. at 193, 127 S.Ct. 815. To show that realistic probability, an offender “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id. Beltran-Aguilar has not identified any case in which Wisconsin's definition of “bodily harm” has been applied in a way that does not accord with Curtis Johnson. Accordingly, Wisconsin battery is a crime of violence. It's worth noting that Beltran-Aguilar would have had an uphill battle to show that his hypotheticals don't involve physical force. In both Yates and Jennings, we concluded that actions similar to those hypothesized by Beltran-Aguilar satisfy Curtis Johnson’s definition. In Yates we explained that a prisoner throwing a cup of urine at a guard involved physical force because urine can—and in the actual state court case under discussion, did—cause pain to the guard's eyes or nose. 842 F.3d at 1053. In Jennings we considered a variety of methods of subtly exposing a victim to a harmful agent—for example, exposing a victim to a toxin, biological agent, or hidden explosive by means of secrecy or deception—and concluded that they all would involve physical force because “the agent itself will, through a physical process, work a concrete harm on the victim.” 860 F.3d at 459. Like the actions considered in Yates and Jennings, Beltran-Aguilar's hypotheticals all seem capable of causing physical pain or injury. But because he could not identify any Wisconsin conviction on similar facts, we need not decide the issue. The petition for review is DENIED.

Barrett

majority

Eliseo Beltran-Aguilar, a native and citizen of Mexico, applied f cancellation of removal from the United States. An immigration *421 judge denied his application, and the Board of Immigration Appeals affirmed the denial on the ground that Beltran-Aguilar's conviction f Wisconsin battery involving domestic abuse was a crime of domestic violence. Beltran-Aguilar now petitions this court f review, arguing that the Wisconsin offense is not categically a crime of violence. It is, so we deny his petition. Federal law makes an alien ineligible f cancellation of removal if he has been convicted of a crime of domestic violence, see 8 U.S.C. 1229b(b)(1)(C), which is ‘‘any crime of violence against a person committed by” a current fmer domestic partner, 8 U.S.C. 122(a)(2)(E)(i). A “crime of violence” is “an offense that has as an element the use, attempted use, threatened use of physical fce against the person property of another.” 18 U.S.C. 16(a). Offenses either categically involve physical fce they don't; the elements of the crime f which a defendant was convicted, not his underlying conduct, are what matters. See 125 S.Ct. 3, 160 L.Ed.2d 21 Beltran-Aguilar was convicted of battery under Wisconsin Statute 940.19(1), which prohibits “caus[ing] bodily harm to another by an act done with intent to cause bodily harm to that person another without the consent of the person so harmed.” In Wisconsin, “bodily harm” means “physical pain injury, illness, any impairment of physical condition.” Wis. Stat. 939.22(4). Beltran-Aguilar argues that Wisconsin battery is not a crime of violence because it can be satisfied by causing only illness impairment of physical condition, which he says do not necessarily require physical fce. Precedent says otherwise. The Supreme Court held in Curtis Johnson v. United States that “ ‘physical fce’ means violent fce—that is, fce capable of causing physical pain injury to another person.” 16 L.Ed.2d 1 Though the Court was interpreting a different statute—18 U.S.C. 924(e)—than the one at issue here, we've confirmed that “[t]he definition of a crime of violence in 924(e) mirrs the language found in 18 U.S.C. 16(a), and the statutes are interpreted in the same way.” De Leon 652 F.3d 62, 65 We have already held that Wisconsin's definition of bodily harm “tracks what Curtis Johnson said would suffice.” (holding that the Wisconsin offense of battery by a prisoner is a crime of violence under 924(e) ). And we reached a similar conclusion in United States v. Yang, where we held that the Minnesota felony of domestic assault—an offense premised on the same definition of bodily harm as Wisconsin battery—was a crime of violence. 99 F.3d 50, 56 ; see also Minn. Stat. 609.02 Subd. Notwithstanding these authities, Beltran-Aguilar provides a number of hypotheticals that he thinks could be prosecuted as Wisconsin batteries that would not involve physical fce under Curtis Johnson: a blowhn that impairs someone's hearing, smelling salts that impair someone's sense of smell, and a substance in a drink that impairs someone's health ability to walk. Even if Beltran-Aguilar is right that these examples don't involve physical fce, he fails to show that Wisconsin would actually prosecute them as battery. “[T]he Supreme Court has cautioned us not to allow our ‘legal imagination[s]’ to roam too freely in postulating what types of conduct theetically might be prosecuted under a state statute f purposes of determining whether the offense as defined qualifies as a predicate offense f *422 adverse federal action.” United (201) (quoting 12 S.Ct. 815, (200) ). There must be “a realistic probability, not a theetical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U.S. at 12 S.Ct. 815. To show that realistic probability, an offender “must at least point to his own case other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner f which he argues.” Beltran-Aguilar has not identified any case in which Wisconsin's definition of “bodily harm” has been applied in a way that does not accd with Curtis Johnson. Accdingly, Wisconsin battery is a crime of violence. It's wth noting that Beltran-Aguilar would have had an uphill battle to show that his hypotheticals don't involve physical fce. In both Yates and Jennings, we concluded that actions similar to those hypothesized by Beltran-Aguilar satisfy Curtis Johnson’s definition. In Yates we explained that a prisoner throwing a cup of urine at a guard involved physical fce because urine can—and in the actual state court case under discussion, did—cause pain to the guard's eyes nose. 842 F.3d at In Jennings we considered a variety of methods of subtly exposing a victim to a harmful agent—f example, exposing a victim to a toxin, biological agent, hidden explosive by means of secrecy deception—and concluded that they all would involve physical fce because “the agent itself will, through a physical process, wk a concrete harm on the victim.” Like the actions considered in Yates and Jennings, Beltran-Aguilar's hypotheticals all seem capable of causing physical pain injury. But because he could not identify any Wisconsin conviction on similar facts, we need not decide the issue. The petition f review is DENIED.

Boogaard v. National Hockey League

Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to arguments that would spark excitement—or fear—in the heart of a civil procedure student. There is a Hanna v. Plumer problem—whether Federal Rule of Civil Procedure 17(b)(3) controls the Boogaards’ ability to bring this suit. 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). There is an Erie Railroad Co. v. Tompkins question—whether federal or state law applies if Rule 17(b)(3) does not control. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There is a choice-of-law problem—whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation-back issue—whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3)’s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct. At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League's argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper parties to bring it. I. Because we are reviewing a dismissal under Rule 12(b)(6), we treat the allegations contained in the Boogaards’ complaint as true. That does not mean, however, *291 that we vouch for their accuracy. It means only that at this stage of the case, the Boogaards are entitled to have every factual inference drawn in their favor. In what follows, then, we recount the facts as the Boogaards tell them in the complaint they filed against the National Hockey League. Derek Boogaard (“Derek”) was a professional hockey player with the National Hockey League (“NHL”).1 He joined the NHL in 2005 as a member of the Minnesota Wild, where he remained until the summer of 2010. During his time with the Wild, team doctors repeatedly prescribed Derek with pain pills relating to various injuries and procedures. He became addicted to those pills by 2009. In September of that year, the NHL placed Derek into its Substance Abuse and Behavioral Health Program. The Program is the product of a 1996 agreement (which we'll call the “substance abuse agreement”) between the NHL and its players’ union to create a comprehensive system for addressing substance abuse among NHL players. When a player enters the Program, he is initially permitted to receive his full NHL salary without penalty so long as he complies with the Program. If the player violates the Program's rules, however, he receives penalties of increasing severity. Pursuant to the Program, Derek was checked into a California rehabilitation facility for in-patient treatment of his opioid and sleeping-pill addictions. Upon leaving that facility, he was subject to the NHL's mandatory “Aftercare Program,” which required him to refrain from using opioids and Ambien and to submit to random drug testing. The NHL told Derek that his failure to follow the Aftercare Program conditions could result in his permanent suspension. Derek signed a contract with the New York Rangers in the summer of 2010. Before long, he began asking trainers for Ambien, leading an NHL doctor to remind him that he could not use Ambien or opioids. But Derek still relapsed. And over the following months, NHL doctors made Derek's situation worse by violating various conditions of the Aftercare Program. They prescribed him Ambien and pain medication. They failed to impose penalties when Derek reported that he had purchased pain medications off the street over Christmas break. They again failed to impose penalties when Derek failed urine tests in January and March. And when Derek was admitted to a recovery center in California to treat opioid dependence, they allowed him to leave the facility without a chaperone. While on one such trip, Derek purchased thousands of dollars of opioids off the street; on another, he overdosed on pills and died. This litigation began two years later. Its procedural history is complicated, so we will keep it to the highlights. Derek's estate sued the NHL and the other defendants in Illinois state court. The original complaint asserted eight claims, four of which it characterized as arising under Illinois's Wrongful Death Act and another four under Illinois's Survival Act. The complaint alleged that the NHL had failed to prevent the over-prescription of addictive medications to Derek, had breached its voluntarily undertaken duty to monitor and curb Derek's drug addiction in the Program, had been negligent in monitoring Derek for brain trauma during his career, and had negligently permitted team doctors *292 to inject Derek with an intramuscular analgesic called Toradol. The NHL removed the case to federal court. It argued that federal jurisdiction existed under the doctrine of complete preemption, which applies when the scope of a federal law is so broad that it essentially replaces state-law claims. The district court agreed and denied the estate's motion to remand. It held that at least two of the claims were founded directly on rights created under the parties’ collective bargaining agreement—the claims that the NHL had breached its duties under the Program to care for Derek and address his drug addiction—and were therefore preempted by the Labor Management Relations Act. It had supplemental jurisdiction over any remaining state claims. The NHL then moved to dismiss the whole complaint for preemption and failure to state a claim. At that point, Len and Joanne Boogaard filed a first amended complaint naming themselves as the successor personal representatives of Derek's estate. (Someone else had initially represented it.) The amended complaint invoked Minnesota's wrongful-death and survival statute, although it also kept its references to Illinois law, choosing to characterize the claims as arising under both states’ statutes. The district court deemed the NHL's still-pending motion to dismiss to be directed at the Boogaards’ first amended complaint, and the court ordered the NHL to file a supplemental memorandum in support of the motion. The NHL added a new argument for dismissal: Wrongful-death and survival actions can only be brought by a court-appointed trustee under Minnesota law, and the Boogaards were not court-appointed trustees.2 And since the time during which a Minnesota court could appoint a trustee for Derek's estate had run, this was not a problem that the Boogaards could fix. In response, the Boogaards argued that the law of Illinois, not Minnesota, determined who is entitled to bring this wrongful-death and survival action. The district court did not reach this choice-of-law problem. Instead, it granted summary judgment to the NHL on the ground that all of the Boogaards’ claims were preempted. After summary judgment, the Boogaards moved to file a second amended complaint, which added claims—still under Minnesota and Illinois wrongful-death and survival laws—that the Boogaards said were not preempted. The NHL disputed that contention, but the district court concluded that two of the new counts put forward a “theory of tort—that the NHL unreasonably harmed Boogaard—[that] is viable ... and not preempted by the [Labor Management Relations Act]” and the other two “contain the seed of a viable, non-preempted claim ... that the NHL actively and unreasonably harmed Boogaard by implicitly communicating that head trauma is not dangerous.” It allowed the Boogaards to file the new complaint and told the NHL that it could still move *293 to dismiss the complaint—so long as it did so on grounds other than preemption. The NHL took the district court's suggestion. It renewed its argument, which the district court had not yet addressed, that the Boogaards’ claims could only be brought by a trustee appointed pursuant to Minnesota law. In the alternative, it argued that the new complaint did not state a claim no matter which state's law applied. The Boogaards focused on the NHL's argument about the Minnesota trustee requirement.3 In addition to the choice-of-law points they had made before, they contended that Federal Rule of Civil Procedure 17(b), which governs the choice-of-law analysis in determining a party's capacity to sue, required the court to apply Illinois law regarding who can bring a wrongful-death or survival action. The Boogaards said nothing in response to the NHL's alternative argument that their allegations, even if true, would not entitle them to relief. The district court granted the motion to dismiss on both grounds pressed by the NHL. It held that Minnesota law applied to the action and thus required a wrongful-death or survival action to be brought by a court-appointed trustee. In the alternative, it held that the Boogaards had forfeited their claims by failing to respond to the NHL's argument that the complaint failed to state a claim under the law of any state. This appeal followed. II. 1 Before we reach the merits, we have some housekeeping to do. Every brief filed by an appellant in our court must contain a “jurisdictional statement” explaining why we have authority to decide the appeal. The Boogaards hedge in theirs. Their jurisdictional statement consists of the observation that the NHL removed the case to federal court on a theory of complete preemption. In other words, rather than assuring us that jurisdiction exists, the Boogaards essentially say “the NHL says that jurisdiction exists.” The statement does not endorse (or indeed, even acknowledge) the district court's jurisdictional ruling, presumably because the Boogaards continue to disagree with it. Despite the Boogaards’ evident belief that jurisdiction is lacking, their brief goes on to ask us to review the merits of the district court's decision. This is insufficient. If a party believes that we lack jurisdiction, it has an obligation to say so. We thus ordered the parties to file supplemental briefs on the jurisdictional issue so that we could discharge our obligation to determine whether we have the authority to decide this appeal. The Boogaards come clean in their supplemental brief. They argue that the Labor Management Relations Act does not completely preempt their state-law claims and that there is thus no basis for federal jurisdiction.4 The NHL, on the other hand, maintains that the district court got the jurisdictional issue right. 2 3 4 The district court did get it right. The doctrine of complete preemption “confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.” *294 Franciscan Skemp Healthcare, Inc. v. Central States Joint Bd. Health & Welfare Tr. Fund, 538 F.3d 594, 596 (7th Cir. 2008). In this case, § 301(a) of the Labor Management Relations Act “displace[s] entirely any state cause of action” for violation of a collective bargaining agreement. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). It does not matter that the lawsuit styles itself as something other than a breach-of-contract action. If the suit's claims are “founded directly on rights created by collective-bargaining agreements” or are “substantially dependent on analysis of a collective-bargaining agreement,” then § 301 governs those claims. Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citation omitted). The Boogaards’ complaint makes plain that at least two of their initial claims were based on a duty allegedly contained within the substance abuse agreement. It alleges that by administering the Program established by the substance abuse agreement, the NHL assumed the duty to curb, cure, and monitor Derek's drug addiction. And it contends that the NHL breached that duty when it violated the procedures it had agreed to use in administering the Program. For example, the Boogaards allege that NHL doctors provided Derek with prescriptions for pain medication even though the rules of the Program forbade Derek to take any opioids and that the NHL allegedly failed to penalize Derek in accordance with the Program rules when urine tests came back positive for prohibited drugs. The complaint frequently couches its accusations of duty and breach in terms of obligations and violations of the Program, leading unavoidably to the conclusion that the Boogaards’ claims rely on applying and interpreting the substance abuse agreement, which dictated the Program's terms. Now, this only matters for purposes of § 301 of the Labor Management Relations Act if the substance abuse agreement is part of the collective bargaining agreement between the NHL and the NHL Players’ Association. The Boogaards say it's not. But the collective bargaining agreement had an integration clause stating that this agreement “and any existing letter agreements between the parties that are not inconsistent with this Agreement” were the “entire understanding between the parties.” The substance abuse agreement was an existing letter agreement between the parties, and the Boogaards have pointed to no inconsistency between it and the collective bargaining agreement. Moreover, the collective bargaining agreement states that the Program will still handle certain categories of substance abuse. This reference would not make sense if the parties intended the collective bargaining agreement to supersede the substance abuse agreement. In sum, the district court correctly concluded that it had subject-matter jurisdiction over the claims asserting that the NHL breached its obligations under the substance abuse agreement. And even if that created federal question jurisdiction over only some of the claims in the complaint, the district court had supplemental jurisdiction over the rest. See 28 U.S.C. § 1367(a) (“[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III ... L.”). The Boogaards’ late-coming jurisdictional challenge therefore fails. III. 5 This appeal presents a curious situation. The Boogaards devote almost their *295 entire brief to attacking the district court's ruling that the Minnesota trustee requirement bars their suit. But that was not the only ground on which the district court dismissed the case—it held in the alternative that the Boogaards had forfeited their claims by failing to respond to the NHL's argument that they failed to state a claim under the law of either Minnesota or Illinois. Thus, even if the Boogaards are right about the trustee requirement, they still lose if the district court's alternative holding stands. 6 It is hard to fault the Boogaards for lodging a weak challenge to the district court's forfeiture holding, because there are no strong arguments available against it. Their opener is hardly a knockout: they assert that alternative holdings should be disregarded as “mere dictum.” That contention is meritless. As an initial matter, it is well settled that we will affirm a district court's judgment if any of several alternative holdings supports it. See, e.g., Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008). More fundamentally, the Boogaards are wrong to characterize alternative holdings as “dictum.” The rule is the exact opposite: “It is blackletter law that ‘where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.’ ” Bryan A. Garner et al., The Law of Judicial Precedent 122 (2016) (citations omitted). If alternative holdings have precedential force as a matter of stare decisis, one can hardly argue that they are not independently sufficient grounds on which to affirm the judgment they support. 7 The Boogaards’ second argument is not much better. They do not—and cannot—deny that a district court may hold a claim forfeited if a plaintiff fails to respond to the substance of the defendant's motion to dismiss. See, e.g., Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1043 (7th Cir. 1999); Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995). They argue, however, that the district court was wrong to do so in this instance. According to the Boogaards, the district court implicitly rejected a Rule 12(b)(6) argument when it permitted them to file an amended complaint adding the new claims. They insist that they were thus justified in believing that the NHL was simply regurgitating an argument that it had already lost. The record belies that contention. The district court entered summary judgment on the Boogaards’ first amended complaint solely on preemption grounds. When the NHL opposed the Boogaards’ request to file a second amended complaint, it insisted that amendment would be futile because the proposed second amended complaint likewise contained only preempted claims. That preemption point was the NHL's only futility argument against amendment; it did not argue that the new claims also failed to state a claim under state law. The district court held that § 301 did not preempt the new claims in the proposed complaint and granted the Boogaards’ motion for leave to amend. It then invited the NHL to either answer the complaint or move to dismiss it, but the court cautioned that if the defendants chose to move to dismiss any surviving claims, “they should not do so on preemption grounds.” The Boogaards place great emphasis on the district court's use of the word “viable” to describe the new counts in the second amended complaint. But in context, it is plain that the court was merely communicating its view that these counts could survive the only challenge then lodged against them: the NHL's argument that they were preempted. The question whether the Boogaards’ allegations, if true, would entitle them to relief under state *296 law was not before the court. And lest there be any doubt about the breadth of the court's ruling, its express instruction that the NHL could move to dismiss on non-preemption grounds makes it even clearer that the court was not purporting to anticipatorily resolve other grounds for dismissal. If the Boogaards misunderstood the district court, the NHL's motion to dismiss under Rule 12(b)(6) should have been a wake-up call. When the NHL moved to dismiss on grounds the Boogaards claim to believe were impliedly foreclosed, the prudent course was to clarify matters with the district court or respond to those arguments anyway. By remaining silent, the Boogaards took the risk that the district court would hold their claims forfeited. The court acted well within its authority when it did. We will not entertain the Boogaards’ alternative request that we remand to allow them to file an amended complaint. Their complaint was dismissed in the alternative for forfeiture, and amending the underlying complaint does not cure their forfeiture. Furthermore, the Boogaards have not explained in any detail what amendments they would make, which is itself reason to deny the request. Gonzalez–Koeneke v. West, 791 F.3d 801, 808–09 (7th Cir. 2015). The judgment of the district court is AFFIRMED.

Barrett

majority

Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to arguments that would spark excitement—or fear—in the heart of a civil procedure student. There is a Hanna v. Plumer problem—whether Federal Rule of Civil Procedure 17(b)(3) controls the Boogaards’ ability to bring this suit. There is an Erie Railroad Co. v. Tompkins question—whether federal or state law applies if Rule 17(b)(3) does not control. There is a choice-of-law problem—whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation-back issue—whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3)’s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct. At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League's argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper parties to bring it. I. Because we are reviewing a dismissal under Rule 12(b)(6), we treat the allegations contained in the Boogaards’ complaint as true. That does not mean, however, *291 that we vouch for their accuracy. It means only that at this stage of the case, the Boogaards are entitled to have every factual inference drawn in their favor. In what follows, then, we recount the facts as the Boogaards tell them in the complaint they filed against the National Hockey League. Derek Boogaard (“Derek”) was a professional hockey player with the National Hockey League (“NHL”).1 He joined the NHL in 2005 as a member of the Minnesota Wild, where he remained until the summer of 2010. During his time with the Wild, team doctors repeatedly prescribed Derek with pain pills relating to various injuries and procedures. He became addicted to those pills by 2009. In September of that year, the NHL placed Derek into its Substance Abuse and Behavioral Health Program. The Program is the product of a 1996 agreement (which we'll call the “substance abuse agreement”) between the NHL and its players’ union to create a comprehensive system for addressing substance abuse among NHL players. When a player enters the Program, he is initially permitted to receive his full NHL salary without penalty so long as he complies with the Program. If the player violates the Program's rules, however, he receives penalties of increasing severity. Pursuant to the Program, Derek was checked into a California rehabilitation facility for in-patient treatment of his opioid and sleeping-pill addictions. Upon leaving that facility, he was subject to the NHL's mandatory “Aftercare Program,” which required him to refrain from using opioids and Ambien and to submit to random drug testing. The NHL told Derek that his failure to follow the Aftercare Program conditions could result in his permanent suspension. Derek signed a contract with the New York Rangers in the summer of 2010. Before long, he began asking trainers for Ambien, leading an NHL doctor to remind him that he could not use Ambien or opioids. But Derek still relapsed. And over the following months, NHL doctors made Derek's situation worse by violating various conditions of the Aftercare Program. They prescribed him Ambien and pain medication. They failed to impose penalties when Derek reported that he had purchased pain medications off the street over Christmas break. They again failed to impose penalties when Derek failed urine tests in January and March. And when Derek was admitted to a recovery center in California to treat opioid dependence, they allowed him to leave the facility without a chaperone. While on one such trip, Derek purchased thousands of dollars of opioids off the street; on another, he overdosed on pills and died. This litigation began two years later. Its procedural history is complicated, so we will keep it to the highlights. Derek's estate sued the NHL and the other defendants in Illinois state court. The original complaint asserted eight claims, four of which it characterized as arising under Illinois's Wrongful Death Act and another four under Illinois's Survival Act. The complaint alleged that the NHL had failed to prevent the over-prescription of addictive medications to Derek, had breached its voluntarily undertaken duty to monitor and curb Derek's drug addiction in the Program, had been negligent in monitoring Derek for brain trauma during his career, and had negligently permitted team doctors *292 to inject Derek with an intramuscular analgesic called Toradol. The NHL removed the case to federal court. It argued that federal jurisdiction existed under the doctrine of complete preemption, which applies when the scope of a federal law is so broad that it essentially replaces state-law claims. The district court agreed and denied the estate's motion to remand. It held that at least two of the claims were founded directly on rights created under the parties’ collective bargaining agreement—the claims that the NHL had breached its duties under the Program to care for Derek and address his drug addiction—and were therefore preempted by the Labor Management Relations Act. It had supplemental jurisdiction over any remaining state claims. The NHL then moved to dismiss the whole complaint for preemption and failure to state a claim. At that point, Len and Joanne Boogaard filed a first amended complaint naming themselves as the successor personal representatives of Derek's estate. (Someone else had initially represented it.) The amended complaint invoked Minnesota's wrongful-death and survival statute, although it also kept its references to Illinois law, choosing to characterize the claims as arising under both states’ statutes. The district court deemed the NHL's still-pending motion to dismiss to be directed at the Boogaards’ first amended complaint, and the court ordered the NHL to file a supplemental memorandum in support of the motion. The NHL added a new argument for dismissal: Wrongful-death and survival actions can only be brought by a court-appointed trustee under Minnesota law, and the Boogaards were not court-appointed trustees.2 And since the time during which a Minnesota court could appoint a trustee for Derek's estate had run, this was not a problem that the Boogaards could fix. In response, the Boogaards argued that the law of Illinois, not Minnesota, determined who is entitled to bring this wrongful-death and survival action. The district court did not reach this choice-of-law problem. Instead, it granted summary judgment to the NHL on the ground that all of the Boogaards’ claims were preempted. After summary judgment, the Boogaards moved to file a second amended complaint, which added claims—still under Minnesota and Illinois wrongful-death and survival laws—that the Boogaards said were not preempted. The NHL disputed that contention, but the district court concluded that two of the new counts put forward a “theory of tort—that the NHL unreasonably harmed Boogaard—[that] is viable and not preempted by the [Labor Management Relations Act]” and the other two “contain the seed of a viable, non-preempted claim that the NHL actively and unreasonably harmed Boogaard by implicitly communicating that head trauma is not dangerous.” It allowed the Boogaards to file the new complaint and told the NHL that it could still move *293 to dismiss the complaint—so long as it did so on grounds other than preemption. The NHL took the district court's suggestion. It renewed its argument, which the district court had not yet addressed, that the Boogaards’ claims could only be brought by a trustee appointed pursuant to Minnesota law. In the alternative, it argued that the new complaint did not state a claim no matter which state's law applied. The Boogaards focused on the NHL's argument about the Minnesota trustee requirement.3 In addition to the choice-of-law points they had made before, they contended that Federal Rule of Civil Procedure 17(b), which governs the choice-of-law analysis in determining a party's capacity to sue, required the court to apply Illinois law regarding who can bring a wrongful-death or survival action. The Boogaards said nothing in response to the NHL's alternative argument that their allegations, even if true, would not entitle them to relief. The district court granted the motion to dismiss on both grounds pressed by the NHL. It held that Minnesota law applied to the action and thus required a wrongful-death or survival action to be brought by a court-appointed trustee. In the alternative, it held that the Boogaards had forfeited their claims by failing to respond to the NHL's argument that the complaint failed to state a claim under the law of any state. This appeal followed. II. 1 Before we reach the merits, we have some housekeeping to do. Every brief filed by an appellant in our court must contain a “jurisdictional statement” explaining why we have authority to decide the appeal. The Boogaards hedge in theirs. Their jurisdictional statement consists of the observation that the NHL removed the case to federal court on a theory of complete preemption. In other words, rather than assuring us that jurisdiction exists, the Boogaards essentially say “the NHL says that jurisdiction exists.” The statement does not endorse (or indeed, even acknowledge) the district court's jurisdictional ruling, presumably because the Boogaards continue to disagree with it. Despite the Boogaards’ evident belief that jurisdiction is lacking, their brief goes on to ask us to review the merits of the district court's decision. This is insufficient. If a party believes that we lack jurisdiction, it has an obligation to say so. We thus ordered the parties to file supplemental briefs on the jurisdictional issue so that we could discharge our obligation to determine whether we have the authority to decide this appeal. The Boogaards come clean in their supplemental brief. They argue that the Labor Management Relations Act does not completely preempt their state-law claims and that there is thus no basis for federal jurisdiction.4 The NHL, on the other hand, maintains that the district court got the jurisdictional issue right. 2 3 4 The district court did get it right. The doctrine of complete preemption “confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.” *294 Franciscan Skemp Healthcare, In this case, 301(a) of the Labor Management Relations Act “displace[s] entirely any state cause of action” for violation of a collective bargaining agreement. Franchise Tax Bd. of It does not matter that the lawsuit styles itself as something other than a breach-of-contract action. If the suit's claims are “founded directly on rights created by collective-bargaining agreements” or are “substantially dependent on analysis of a collective-bargaining agreement,” then 301 governs those claims. Caterpillar The Boogaards’ complaint makes plain that at least two of their initial claims were based on a duty allegedly contained within the substance abuse agreement. It alleges that by administering the Program established by the substance abuse agreement, the NHL assumed the duty to curb, cure, and monitor Derek's drug addiction. And it contends that the NHL breached that duty when it violated the procedures it had agreed to use in administering the Program. For example, the Boogaards allege that NHL doctors provided Derek with prescriptions for pain medication even though the rules of the Program forbade Derek to take any opioids and that the NHL allegedly failed to penalize Derek in accordance with the Program rules when urine tests came back positive for prohibited drugs. The complaint frequently couches its accusations of duty and breach in terms of obligations and violations of the Program, leading unavoidably to the conclusion that the Boogaards’ claims rely on applying and interpreting the substance abuse agreement, which dictated the Program's terms. Now, this only matters for purposes of 301 of the Labor Management Relations Act if the substance abuse agreement is part of the collective bargaining agreement between the NHL and the NHL Players’ Association. The Boogaards say it's not. But the collective bargaining agreement had an integration clause stating that this agreement “and any existing letter agreements between the parties that are not inconsistent with this Agreement” were the “entire understanding between the parties.” The substance abuse agreement was an existing letter agreement between the parties, and the Boogaards have pointed to no inconsistency between it and the collective bargaining agreement. Moreover, the collective bargaining agreement states that the Program will still handle certain categories of substance abuse. This reference would not make sense if the parties intended the collective bargaining agreement to supersede the substance abuse agreement. In sum, the district court correctly concluded that it had subject-matter jurisdiction over the claims asserting that the NHL breached its obligations under the substance abuse agreement. And even if that created federal question jurisdiction over only some of the claims in the complaint, the district court had supplemental jurisdiction over the rest. See 28 U.S.C. 1367(a) The Boogaards’ late-coming jurisdictional challenge therefore fails. III. 5 This appeal presents a curious situation. The Boogaards devote almost their *295 entire brief to attacking the district court's ruling that the Minnesota trustee requirement bars their suit. But that was not the only ground on which the district court dismissed the case—it held in the alternative that the Boogaards had forfeited their claims by failing to respond to the NHL's argument that they failed to state a claim under the law of either Minnesota or Illinois. Thus, even if the Boogaards are right about the trustee requirement, they still lose if the district court's alternative holding stands. 6 It is hard to fault the Boogaards for lodging a weak challenge to the district court's forfeiture holding, because there are no strong arguments available against it. Their opener is hardly a knockout: they assert that alternative holdings should be disregarded as “mere dictum.” That contention is meritless. As an initial matter, it is well settled that we will affirm a district court's judgment if any of several alternative holdings supports it. See, e.g., More fundamentally, the Boogaards are wrong to characterize alternative holdings as “dictum.” The rule is the exact opposite: “It is blackletter law that ‘where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.’ ” Bryan A. Garner et al., The Law of Judicial Precedent 122 (2016) (citations omitted). If alternative holdings have precedential force as a matter of stare decisis, one can hardly argue that they are not independently sufficient grounds on which to affirm the judgment they support. 7 The Boogaards’ second argument is not much better. They do not—and cannot—deny that a district court may hold a claim forfeited if a plaintiff fails to respond to the substance of the defendant's motion to dismiss. See, e.g., ; They argue, however, that the district court was wrong to do so in this instance. According to the Boogaards, the district court implicitly rejected a Rule 12(b)(6) argument when it permitted them to file an amended complaint adding the new claims. They insist that they were thus justified in believing that the NHL was simply regurgitating an argument that it had already lost. The record belies that contention. The district court entered summary judgment on the Boogaards’ first amended complaint solely on preemption grounds. When the NHL opposed the Boogaards’ request to file a second amended complaint, it insisted that amendment would be futile because the proposed second amended complaint likewise contained only preempted claims. That preemption point was the NHL's only futility argument against amendment; it did not argue that the new claims also failed to state a claim under state law. The district court held that 301 did not preempt the new claims in the proposed complaint and granted the Boogaards’ motion for leave to amend. It then invited the NHL to either answer the complaint or move to dismiss it, but the court cautioned that if the defendants chose to move to dismiss any surviving claims, “they should not do so on preemption grounds.” The Boogaards place great emphasis on the district court's use of the word “viable” to describe the new counts in the second amended complaint. But in context, it is plain that the court was merely communicating its view that these counts could survive the only challenge then lodged against them: the NHL's argument that they were preempted. The question whether the Boogaards’ allegations, if true, would entitle them to relief under state *296 law was not before the court. And lest there be any doubt about the breadth of the court's ruling, its express instruction that the NHL could move to dismiss on non-preemption grounds makes it even clearer that the court was not purporting to anticipatorily resolve other grounds for dismissal. If the Boogaards misunderstood the district court, the NHL's motion to dismiss under Rule 12(b)(6) should have been a wake-up call. When the NHL moved to dismiss on grounds the Boogaards claim to believe were impliedly foreclosed, the prudent course was to clarify matters with the district court or respond to those arguments anyway. By remaining silent, the Boogaards took the risk that the district court would hold their claims forfeited. The court acted well within its authority when it did. We will not entertain the Boogaards’ alternative request that we remand to allow them to file an amended complaint. Their complaint was dismissed in the alternative for forfeiture, and amending the underlying complaint does not cure their forfeiture. Furthermore, the Boogaards have not explained in any detail what amendments they would make, which is itself reason to deny the request. The judgment of the district court is AFFIRMED.

Burlaka v. Contract Transport Services LLC

Leonid Burlaka, Timothy Keuken, Travis Frischmann, and Roger Robinson are truck drivers who brought individual, collective, and class action claims against Contract Transport Services (CTS), their former employer, for failing to provide overtime pay in violation of the Fair Labor Standards Act (FLSA), which requires overtime pay for any employee who works more than forty hours in a workweek. 29 U.S.C. § 207(a)(1). The entitlement to overtime pay, however, is not absolute: as relevant here, the statute exempts employees who are subject to the Secretary of Transportation's jurisdiction under the Motor Carrier Act (MCA). 29 U.S.C. § 213(b)(1). This carveout is known as the “MCA exemption,” and its rationale is safety. It is dangerous for drivers to spend too many hours behind the wheel, and “a requirement of pay that is higher for overtime service than for regular service tends to ... encourage employees to seek” overtime work. Levinson v. Spector Motor Serv., 330 U.S. 649, 657, 67 S.Ct. 931, 91 L.Ed. 1158 (1947).1 2 The viability of these claims therefore depends on whether the plaintiffs are subject to the jurisdiction of the Secretary of Transportation, which extends “over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both[ ] are transported by motor carrier ... between a place in ... a State and a place in another State.” 49 U.S.C. § 13501(1)(A). Importantly, drivers need not actually drive in interstate commerce to fall within the Secretary's jurisdiction. As the Department of Transportation has explained through a notice of interpretation, the MCA exemption applies even to drivers who have not driven in interstate commerce so long as they are employed by a carrier that “has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier's interstate runs.” *720 Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902, 37,903 (July 23, 1981). 3 4 The scope of an interstate commerce run under the MCA is generous. It includes a purely intrastate run so long as it is a part of a continuous interstate journey. See Collins v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 898 (7th Cir. 2009). This continuity is not broken by routine interruptions that “are no more than the normal stops or stages that are common in interstate sales.” Id. As the Court explained in Walling v. Jacksonville Paper Co., “if the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destinations, they remain ‘in commerce’ until they reach those points.” 317 U.S. 564, 568, 63 S.Ct. 332, 87 L.Ed. 460 (1943). With the statutory scheme in mind, we turn to the facts. CTS is a Wisconsin-based motor carrier company that provides truckload transportation services for client companies primarily in Wisconsin, Minnesota, Iowa, Illinois, and Michigan. It employs drivers that provide both over-the-road services—transportation of clients’ goods over long distances (up to 500 miles) within and across state lines—as well as yard management and spotting services—transportation of loaded and empty trailers over short distances among and within clients’ facilities. CTS contends that the scope of the plaintiffs’ employment included over-the-road driving—which matters because merely being subject to over-the-road assignments would be enough to render the plaintiffs subject to the MCA exemption. According to CTS, all of its drivers are hired for the same position, and although some are assigned to spotting duties, all drivers can be called on to perform any driving assignment. That is why, CTS explains, it requires all drivers to hold commercial driver's licenses and to comply with the same Federal Motor Carrier Safety Regulation requirements. The plaintiffs, on the other hand, insist that they asked to be assigned only to spotting duties and that CTS, respecting that request, did not reprimand them for turning down over-the-road assignments. Thus, they say, longer hauls were not actually within the scope of their employment. If CTS is right, the case ends there. But the factual dispute about whether the plaintiffs were reasonably expected to drive across state lines makes that question one for a jury. So we will focus instead on the connection between the plaintiffs’ spotting duties and the interstate shipment of the goods they carried. If the undisputed facts establish that the plaintiffs could be reasonably expected to drive intrastate routes that were part of a continuous interstate journey, then the MCA exemption applies. During the relevant period, all of the plaintiffs performed spotting duties for Green Bay Packaging, one of CTS's clients. The plaintiffs were assigned to two of Green Bay Packaging's Wisconsin-based corrugated box manufacturing facilities: Green Bay Shipping Container and De Pere Shipping Container. As spotters, the plaintiffs drove loaded and empty trailers either within these facilities (to loading docks) or to nearby locations, where they drove short routes on public roads. The public route at the De Pere location connected the De Pere Container to the De Pere Folding Carton, and the public routes at the Green Bay location connected the Green Bay Container to three warehouses (Warehouse 3, Warehouse 6, and Quincy Warehouse) and a drop lot across the street from the Green Bay Container. The plaintiffs were assigned to these routes indiscriminately—in other words, they could be expected to drive any of the routes. *721 After the spotters dropped off their trailers at these drop-off locations, the trailers were picked up by different drivers for delivery either within or outside Wisconsin. To show that the trailers driven by the plaintiffs were among those used to make out-of-state deliveries, CTS introduced Green Bay Packaging's bills of lading. These bills—which track the trailers’ identification numbers, pick-up locations at Green Bay Packaging facilities, out-of-state delivery locations, and delivery dates—show that some of the trailers dropped off by the plaintiffs were used shortly thereafter (usually within a few days) to deliver goods across state lines. The record reflects that approximately 20% of the goods that passed through Green Bay were either coming from or destined for a different state. At De Pere, the same was true for between 24% and 54% of the goods. And the handwritten notes on the bills of lading show that at least some of these interstate goods passed through the relevant warehouses. 5 These facts plainly demonstrate that at least some spotters drove trailers carrying finalized goods destined for out-of-state delivery. Such a service, even if purely intrastate and interrupted briefly, would nevertheless constitute “driving in interstate commerce” because it would be part of the goods’ continuous interstate journey. See Collins, 589 at 898; see also Walling, 317 U.S. at 568, 63 S.Ct. 332 (defining shipment in interstate commerce as the “practical continuity of movement of the goods”). And while some of the plaintiffs’ runs may have been purely local, the sheer volume of the interstate commerce through these facilities, combined with the fact that the plaintiffs were assigned to their spotting duties indiscriminately, demonstrates that the plaintiffs had a reasonable chance of being called upon to make some drives that were part of a continuous interstate journey. See Morris v. McComb, 332 U.S. 422, 423, 68 S.Ct. 131, 92 L.Ed. 44 (1947) (holding that the exemption applies to drivers of a carrier that only devoted approximately 4% of its total services to interstate commerce and distributed its interstate assignments indiscriminately). The plaintiffs make several weak attempts to undermine this conclusion. First, they argue that as spotters, they were not likely to be given over-the-road assignments. Thus, they claim, there was only a “remote” chance that they'd be sent on interstate runs. See Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 663 (7th Cir. 2011). This argument is wholly unpersuasive. As we have already explained, the plaintiffs can fall within the MCA exemption even if they were not expected to take over-the-road assignments. The question is whether the plaintiffs’ spotting duties were part of the interstate journey of the goods. If they were, the MCA exemption applies. When both over-the-road drivers and spotters take part in the interstate journey of the goods, both services affect “safety of operation of an interstate motor carrier.” Levinson, 330 U.S. at 668, 67 S.Ct. 931. The plaintiffs also argue that any link between their spotting services and the interstate shipment is too attenuated to form a continuous interstate journey. They emphasize that the interstate shipment process entailed several steps between the initial spotting and the eventual delivery of the goods across state lines. These steps included rotation among the drivers, stops at different locations such as warehouses, and potential unloading and reloading. But the existence of intermediary steps does not sever the connection between the plaintiffs’ driving and the ultimate interstate movement of the goods. None amounted to anything other than “interruptions in the journey that ... are no more than the normal stops or stages that are common in interstate sales.” *722 Collins, 589 F.3d at 898.2 The plaintiffs seem to imagine that a continuous journey must resemble a relay race, in which the next driver immediately picks up exactly where the other left off. But that is neither how interstate shipments work nor what the MCA requires. Because the evidence establishes that plaintiffs were subject to performing spotting duties that comprised one leg of a continuous interstate journey, the district court's grant of summary judgment is AFFIRMED.

Barrett

majority

Leonid Burlaka, Timothy Keuken, Travis Frischmann, and Roger Robinson are truck drivers who brought individual, collective, and class action claims against Contract Transport Services (CTS), their former employer, for failing to provide overtime pay in violation of the Fair Labor Standards Act (FLSA), which requires overtime pay for any employee who works more than forty hours in a workweek. (a)(1). The entitlement to overtime pay, however, is not absolute: as relevant here, the statute exempts employees who are subject to the Secretary of Transportation's jurisdiction under the Motor Carrier Act (MCA). (b)(1). This carveout is known as the “MCA exemption,” and its rationale is safety. It is dangerous for drivers to spend too many hours behind the wheel, and “a requirement of pay that is higher for overtime service than for regular service tends to encourage employees to seek” overtime work.1 2 The viability of these claims therefore depends on whether the plaintiffs are subject to the jurisdiction of the Secretary of Transportation, which extends “over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both[ ] are transported by motor carrier between a place in a State and a place in another State.” (1)(A). Importantly, drivers need not actually drive in interstate commerce to fall within the Secretary's jurisdiction. As the Department of Transportation has explained through a notice of interpretation, the MCA exemption applies even to drivers who have not driven in interstate commerce so long as they are employed by a carrier that “has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier's interstate runs.” *720 Application of the Federal Motor Carrier Safety Regulations, 37,903 (July 23, 1981). 3 4 The scope of an interstate commerce run under the MCA is generous. It includes a purely intrastate run so long as it is a part of a continuous interstate journey. See This continuity is not broken by routine interruptions that “are no more than the normal stops or stages that are common in interstate sales.” As the Court explained in v. Jacksonville Paper Co., “if the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destinations, they remain ‘in commerce’ until they reach those points.” With the statutory scheme in mind, we turn to the facts. CTS is a Wisconsin-based motor carrier company that provides truckload transportation services for client companies primarily in Wisconsin, Minnesota, Iowa, Illinois, and Michigan. It employs drivers that provide both over-the-road services—transportation of clients’ goods over long distances (up to 500 miles) within and across state lines—as well as yard management and spotting services—transportation of loaded and empty trailers over short distances among and within clients’ facilities. CTS contends that the scope of the plaintiffs’ employment included over-the-road driving—which matters because merely being subject to over-the-road assignments would be enough to render the plaintiffs subject to the MCA exemption. According to CTS, all of its drivers are hired for the same position, and although some are assigned to spotting duties, all drivers can be called on to perform any driving assignment. That is why, CTS explains, it requires all drivers to hold commercial driver's licenses and to comply with the same Federal Motor Carrier Safety Regulation requirements. The plaintiffs, on the other hand, insist that they asked to be assigned only to spotting duties and that CTS, respecting that request, did not reprimand them for turning down over-the-road assignments. Thus, they say, longer hauls were not actually within the scope of their employment. If CTS is right, the case ends there. But the factual dispute about whether the plaintiffs were reasonably expected to drive across state lines makes that question one for a jury. So we will focus instead on the connection between the plaintiffs’ spotting duties and the interstate shipment of the goods they carried. If the undisputed facts establish that the plaintiffs could be reasonably expected to drive intrastate routes that were part of a continuous interstate journey, then the MCA exemption applies. During the relevant period, all of the plaintiffs performed spotting duties for Green Bay Packaging, one of CTS's clients. The plaintiffs were assigned to two of Green Bay Packaging's Wisconsin-based corrugated box manufacturing facilities: Green Bay Shipping Container and De Pere Shipping Container. As spotters, the plaintiffs drove loaded and empty trailers either within these facilities (to loading docks) or to nearby locations, where they drove short routes on public roads. The public route at the De Pere location connected the De Pere Container to the De Pere Folding Carton, and the public routes at the Green Bay location connected the Green Bay Container to three warehouses (Warehouse 3, Warehouse 6, and Quincy Warehouse) and a drop lot across the street from the Green Bay Container. The plaintiffs were assigned to these routes indiscriminately—in other words, they could be expected to drive any of the routes. *721 After the spotters dropped off their trailers at these drop-off locations, the trailers were picked up by different drivers for delivery either within or outside Wisconsin. To show that the trailers driven by the plaintiffs were among those used to make out-of-state deliveries, CTS introduced Green Bay Packaging's bills of lading. These bills—which track the trailers’ identification numbers, pick-up locations at Green Bay Packaging facilities, out-of-state delivery locations, and delivery dates—show that some of the trailers dropped off by the plaintiffs were used shortly thereafter (usually within a few days) to deliver goods across state lines. The record reflects that approximately 20% of the goods that passed through Green Bay were either coming from or destined for a different state. At De Pere, the same was true for between 24% and 54% of the goods. And the handwritten notes on the bills of lading show that at least some of these interstate goods passed through the relevant warehouses. 5 These facts plainly demonstrate that at least some spotters drove trailers carrying finalized goods destined for out-of-state delivery. Such a service, even if purely intrastate and interrupted briefly, would nevertheless constitute “driving in interstate commerce” because it would be part of the goods’ continuous interstate journey. See Collins, 589 at ; see also 317 U.S. at (defining shipment in interstate commerce as the “practical continuity of movement of the goods”). And while some of the plaintiffs’ runs may have been purely local, the sheer volume of the interstate commerce through these facilities, combined with the fact that the plaintiffs were assigned to their spotting duties indiscriminately, demonstrates that the plaintiffs had a reasonable chance of being called upon to make some drives that were part of a continuous interstate journey. See The plaintiffs make several weak attempts to undermine this conclusion. First, they argue that as spotters, they were not likely to be given over-the-road assignments. Thus, they claim, there was only a “remote” chance that they'd be sent on interstate runs. See This argument is wholly unpersuasive. As we have already explained, the plaintiffs can fall within the MCA exemption even if they were not expected to take over-the-road assignments. The question is whether the plaintiffs’ spotting duties were part of the interstate journey of the goods. If they were, the MCA exemption applies. When both over-the-road drivers and spotters take part in the interstate journey of the goods, both services affect “safety of operation of an interstate motor carrier.” The plaintiffs also argue that any link between their spotting services and the interstate shipment is too attenuated to form a continuous interstate journey. They emphasize that the interstate shipment process entailed several steps between the initial spotting and the eventual delivery of the goods across state lines. These steps included rotation among the drivers, stops at different locations such as warehouses, and potential unloading and reloading. But the existence of intermediary steps does not sever the connection between the plaintiffs’ driving and the ultimate interstate movement of the goods. None amounted to anything other than “interruptions in the journey that are no more than the normal stops or stages that are common in interstate sales.” *722 Collins, 589 F.3d at2 The plaintiffs seem to imagine that a continuous journey must resemble a relay race, in which the next driver immediately picks up exactly where the other left off. But that is neither how interstate shipments work nor what the MCA requires. Because the evidence establishes that plaintiffs were subject to performing spotting duties that comprised one leg of a continuous interstate journey, the district court's grant of summary judgment is AFFIRMED.

Carello v. Aurora Policemen Credit Union

Matthew Carello sued the Aurora Policemen Credit Union, alleging that accessibility barriers to the Credit Union's website violate his rights under the Americans with Disabilities Act. The district court dismissed the claim, holding that Carello lacked standing to sue. We agree. I. Matthew Carello is blind. To access visual content on the internet, he uses a “screen reader,” which reads text aloud to him. A screen reader, however, works only on websites that are designed to support its software. Carello claims that a website run by the Aurora Policemen Credit Union fails to offer such support. 1 The Credit Union is chartered under the Illinois Credit Union Act, which requires that membership in a credit union be open only to groups of people who share a “common bond.” 205 ILCS 305/2(1). This includes, for example, “[p]ersons belonging to a specific association, group or organization,” “[p]ersons who reside in a reasonably compact and well-defined neighborhood or community,” and “[p]ersons who have a common employer.” Id. at 305/1.1. In accordance with this law, the Credit Union limits its membership to specified local city and county employees. Membership is required before an individual may enjoy any of the Credit Union's services. Carello is not eligible for, nor has he expressed any interest in, membership in the Credit Union. Instead, he is a tester: he visits websites solely for the purpose of testing compliance with the Americans with Disabilities Act (ADA), which prohibits places of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of [their] goods, services, facilities, privileges, advantages, or accommodations,” and requires them to make “reasonable modifications” to achieve that standard. See 42 U.S.C. § 12812(a), (b). After his visits to the Credit Union's website revealed a potential violation, he sued the Credit Union under the ADA, seeking injunctive relief as well as *833 costs and attorneys’ fees. The district court granted the Credit Union's motion to dismiss Carello's claim, holding that Carello lacked standing to sue because he failed to allege an injury in fact. II. 2 3 4 5 The doctrine of standing imposes a non-negotiable limit on the power of a federal court. It is rooted in Article III, which limits a federal court's power to the resolution of “Cases” or “Controversies.” U.S. CONST. art. III, § 2. Because the standing requirement enforces a constitutional restraint on the judicial power, federal courts must “always require[ ] that a litigant have ‘standing’ to challenge the action sought to be adjudicated in the lawsuit” before proceeding to the merits of a claim. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). To establish standing, a “plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision.” Casillas v. Madison Ave. Assocs., 926 F.3d 329, 333 (7th Cir. 2019). 6 7 8 This case turns on the injury-in-fact requirement, which the Supreme Court has described as the “[f]irst and foremost” element of standing. Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To satisfy this element, Carello must allege that he suffered an injury that is “both concrete and particularized.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). And because he seeks injunctive relief, Carello must also demonstrate that he faces a “real and immediate” threat of future injury; “a past injury alone is insufficient to establish standing for purposes of prospective injunctive relief.” Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (citation omitted). 9 We can quickly dispense with one of Carello's challenges to the district court's standing analysis. According to Carello, the district court denied him standing because he was a tester, even though both we and the Supreme Court have made it clear that tester status does not deprive a plaintiff of standing. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 (7th Cir. 2006). Carello is right about the cases, but he is wrong about the district court's opinion. The district court did not reason—either explicitly or implicitly—that Carello lacked standing because he was a tester. Instead, the district court recognized that while tester status does not defeat standing, it does not automatically confer it either. A tester must still satisfy the elements of standing, including the injury-in-fact requirement. Havens Realty, 455 U.S. at 374–75, 102 S.Ct. 1114. Carello identifies two injuries that he says are each sufficiently concrete and particularized to constitute an injury in fact: a dignitary harm stemming from his inability to use the website and an informational harm resulting from a lack of access to information on the website. Neither of these alleged injuries passes the test, although we stress that it is for a very narrow reason. As the Fourth Circuit recently held in a nearly identical case, a plaintiff who is legally barred from using a credit union's services cannot demonstrate an injury that is either concrete or particularized. Griffin v. Dep't of Labor Fed. Credit Union, 912 F.3d 649 (4th Cir. 2019). Our holding is no broader than that. A. 10 11 12 We begin with Carello's claim that he suffered dignitary harm. There is no doubt that dignitary harm is cognizable; *834 stigmatic injury is “one of the most serious consequences” of discrimination. Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). At the same time, “not all dignitary harms are sufficiently concrete to serve as injuries in fact.” Griffin, 912 F.3d at 654. A plaintiff “ ‘personally denied equal treatment’ by the challenged discriminatory conduct” has suffered a concrete injury, but dignitary harm stemming from the mere knowledge that discriminatory conduct is occurring is an “abstract stigmatic injury” that the plaintiff lacks standing to vindicate. Allen, 468 U.S. at 755–56, 104 S.Ct. 3315 (citation omitted); see also Clay v. Fort Wayne Cmty. Sch., 76 F.3d at 873, 879 (7th Cir. 1996) (“[N]othing suggests that [the black plaintiffs alleging racial discrimination] suffered anything other than indignation: personal offense from the knowledge that unconstitutional conduct is occurring. Indignation is not an injury-in-fact sufficient to confer standing.”). 13 Here, Illinois law prevents Carello's dignitary harm from materializing into a concrete injury. Because Illinois has erected a neutral legal barrier to Carello's use of the Credit Union's services, the Credit Union's failure to accommodate the visually impaired in the provision of its services cannot affect him personally. On the contrary, any blow thrown by the Credit Union is blocked as to Carello. Cf. Griffin, 912 F.3d at 654 (“It is therefore impossible—absent a violation of federal law—for Griffin to be ‘personally subject’ to the dignitary harms allegedly occasioned by the Credit Union's website.”). Much like a geographic barrier between the plaintiff and defendant “can reduce the ‘personal’ impact of the injury and render it too ‘abstract,’ ” id. (quoting Allen, 468 U.S. at 756–57, 104 S.Ct. 3315), the legal barrier here reduces—indeed, eliminates—the cognizable impact of the Credit Union's conduct on Carello, see id. at 654 (“Here, a neutral proposition of federal law makes it impossible for Griffin to interact directly with the Credit Union.”). And in the absence of any personal impact on Carello, his alleged injury is necessarily abstract, amounting to mere indignation that the Credit Union is violating the ADA. 14 15 16 Concreteness and particularization are distinct components of an injury in fact, Spokeo, 136 S. Ct. at 1548, but in the case of abstract dignitary harm, they are two sides of the same coin. Indignation at violation of the law is not concrete because it does not impact the plaintiff personally; it is not particularized because it does not affect him in an “individual way.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Allen, 468 U.S. at 755–56, 104 S.Ct. 3315. For a harm to be particularized, “[t]here must be some connection between the plaintiff and the defendant that ‘differentiates’ the plaintiff so that his injury is not ‘common to all members of the public.’ ” Griffin, 912 F.3d at 655 (alterations and citation omitted). Here, there is no connection between Carello and the Credit Union that distinguishes him from anyone else who is ineligible for membership and offended by the Credit Union's failure to comply with the ADA. Cf. Clay, 76 F.3d at 878–79 (“Appellants’ claims [about racial discrimination in the hiring process] are generalized grievances shared in substantially equal measure by a large class of citizens.”); Am. Civil Liberties Union of Ill. v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (“[Deep offense] is not by itself a fact that distinguishes [the plaintiff] from anyone else in the United States who disapproves of such displays.”). Without “an otherwise plausible assertion that a return to the website would allow [him] to avail himself of [the Credit Union's] services,” Carello is no more entitled to an injunction than any *835 other interested citizen. See Griffin, 912 F.3d at 656. B. Carello has another theory: he says that the Credit Union caused him an informational harm by failing to make the text on its website accessible to his screen reader. What Carello asserts, however, is not an informational injury properly understood, so it does not offer an alternate route to an injury in fact. 17 A harm is not an informational injury simply because it has something to do with information. An informational injury occurs when the defendant refuses to provide the plaintiff with information that a law—typically, a sunshine law—entitles him to obtain and review for some substantive purpose. See, e.g., Fed. Election Comm'n v. Akins, 524 U.S. 11, 21, 24–25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (concluding that voters’ inability to obtain information subject to disclosure under the Federal Election Campaign Act of 1971 is a sufficiently concrete injury); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (explaining that, to satisfy Article III's injury requirement, advocacy organizations requesting information subject to disclosure under the Federal Advisory Committee Act need only show “that they sought and were denied” the information); Casillas, 926 F.3d at 337–38 (“[Akins and Public Citizen] hold that the denial of information subject to public disclosure is one of the intangible harms that Congress has the power to make legally cognizable.” (emphasis omitted)). In such cases, a plaintiff “need not allege any additional harm beyond” his failure to receive information that the law renders subject to disclosure. Spokeo, 136 S. Ct. at 1549. This case, however, is about accessibility accommodations, not disclosure. Carello does not complain that the Credit Union withheld information—on the contrary, he states that the Credit Union openly published the information on its website. Nor does he claim that the information was wholly inaccessible to him—he presumably could have had someone who is sighted read it aloud to him. Carello's complaint is about ease of access—he argues that the Credit Union should have made it possible for him to use his screen reader to more readily retrieve the available information. His alleged injury flows from the Credit Union's failure to support his software, not its refusal to disclose information about its services. And if the nature of his injury were not clear enough in the allegations that he makes, it is crystallized by the relief that he seeks. Carello does not seek an injunction ordering the Credit Union to produce information; he seeks an injunction ordering the Credit Union to reform its website. Carello has no interest in information that he cannot use, but he has a keen (and commendable) interest in forcing the Credit Union to make its website more accessible to the visually impaired. Carello simply characterizes as “informational” the harm that he claims to have experienced when encountering text that his screen reader could not decipher. That is a dignitary harm, and, as we have already explained, Illinois law prevents it from being either concrete or particularized as to Carello. Because Carello has not identified an injury in fact, he lacks standing under Article III. C. 18 To demonstrate that he has standing to obtain injunctive relief, Carello must show that he faces a “real and immediate threat” of future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Carello insists that he has plausibly alleged that he will return to the Credit's Union's website *836 “to ensure that it [i]s accessible to not only himself, but to all other blind persons in the future.” That may be—but it is beside the point. Carello's threatened future injury must be one for which he has standing to seek a remedy. And his alleged future injury is the one that he claims to have suffered already: the dignitary harm stemming from the Credit Union's failure to accommodate his visual impairment. As we have already explained, this harm does not constitute an injury in fact under Article III.

Barrett

majority

Matthew Carello sued the Aurora Policemen Credit Union, alleging that accessibility barriers to the Credit Union's website violate his rights under the Americans with Disabilities Act. The district court dismissed the claim, holding that Carello lacked standing to sue. We agree. I. Matthew Carello is blind. To access visual content on the internet, he uses a “screen reader,” which reads text aloud to him. A screen reader, however, works only on websites that are designed to support its software. Carello claims that a website run by the Aurora Policemen Credit Union fails to offer such support. 1 The Credit Union is chartered under the Illinois Credit Union Act, which requires that membership in a credit union be open only to groups of people who share a “common bond.” 205 ILCS 305/2(1). This includes, for example, “[p]ersons belonging to a specific association, group or organization,” “[p]ersons who reside in a reasonably compact and well-defined neighborhood or community,” and “[p]ersons who have a common employer.” at 305/1.1. In accordance with this law, the Credit Union limits its membership to specified local city and county employees. Membership is required before an individual may enjoy any of the Credit Union's services. Carello is not eligible for, nor has he expressed any interest in, membership in the Credit Union. Instead, he is a tester: he visits websites solely for the purpose of testing compliance with the Americans with Disabilities Act (ADA), which prohibits places of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of [their] goods, services, facilities, privileges, advantages, or accommodations,” and requires them to make “reasonable modifications” to achieve that standard. See (a), (b). After his visits to the Credit Union's website revealed a potential violation, he sued the Credit Union under the ADA, seeking injunctive relief as well as *833 costs and attorneys’ fees. The district court granted the Credit Union's motion to dismiss Carello's claim, holding that Carello lacked standing to sue because he failed to allege an injury in fact. II. 2 3 4 5 The doctrine of standing imposes a non-negotiable limit on the power of a federal court. It is rooted in Article III, which limits a federal court's power to the resolution of “Cases” or “Controversies.” U.S. CONST. art. III, 2. Because the standing requirement enforces a constitutional restraint on the judicial power, federal courts must “always require[ ] that a litigant have ‘standing’ to challenge the action sought to be adjudicated in the lawsuit” before proceeding to the merits of a claim. Valley Forge Christian To establish standing, a “plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision.” 6 7 8 This case turns on the injury-in-fact requirement, which the Supreme Court has described as the “[f]irst and foremost” element of standing. Steel To satisfy this element, Carello must allege that he suffered an injury that is “both concrete and particularized.” And because he seeks injunctive relief, Carello must also demonstrate that he faces a “real and immediate” threat of future injury; “a past injury alone is insufficient to establish standing for purposes of prospective injunctive relief.” 9 We can quickly dispense with one of Carello's challenges to the district court's standing analysis. According to Carello, the district court denied him standing because he was a tester, even though both we and the Supreme Court have made it clear that tester status does not deprive a plaintiff of standing. See, e.g., Havens Realty ; Carello is right about the cases, but he is wrong about the district court's opinion. The district court did not reason—either explicitly or implicitly—that Carello lacked standing because he was a tester. Instead, the district court recognized that while tester status does not defeat standing, it does not automatically confer it either. A tester must still satisfy the elements of standing, including the injury-in-fact requirement. Havens Realty, –75, Carello identifies two injuries that he says are each sufficiently concrete and particularized to constitute an injury in fact: a dignitary harm stemming from his inability to use the website and an informational harm resulting from a lack of access to information on the website. Neither of these alleged injuries passes the test, although we stress that it is for a very narrow reason. As the Fourth Circuit recently held in a nearly identical case, a plaintiff who is legally barred from using a credit union's services cannot demonstrate an injury that is either concrete or particularized. Our holding is no broader than that. A. 10 11 12 We begin with Carello's claim that he suffered dignitary harm. There is no doubt that dignitary harm is cognizable; *834 stigmatic injury is “one of the most serious consequences” of discrimination. At the same time, “not all dignitary harms are sufficiently concrete to serve as injuries in fact.” A plaintiff “ ‘personally denied equal treatment’ by the challenged discriminatory conduct” has suffered a concrete injury, but dignitary harm stemming from the mere knowledge that discriminatory conduct is occurring is an “abstract stigmatic injury” that the plaintiff lacks standing to vindicate. 468 U.S. at –56, ; see also v. Fort Wayne Cmty. 879 (“[N]othing suggests that [the black plaintiffs alleging racial discrimination] suffered anything other than indignation: personal offense from the knowledge that unconstitutional conduct is occurring. Indignation is not an injury-in-fact sufficient to confer standing.”). 13 Here, Illinois law prevents Carello's dignitary harm from materializing into a concrete injury. Because Illinois has erected a neutral legal barrier to Carello's use of the Credit Union's services, the Credit Union's failure to accommodate the visually impaired in the provision of its services cannot affect him personally. On the contrary, any blow thrown by the Credit Union is blocked as to Carello. Cf. (“It is therefore impossible—absent a violation of federal law—for to be ‘personally subject’ to the dignitary harms allegedly occasioned by the Credit Union's website.”). Much like a geographic barrier between the plaintiff and defendant “can reduce the ‘personal’ impact of the injury and render it too ‘abstract,’ ” (quoting –57, ), the legal barrier here reduces—indeed, eliminates—the cognizable impact of the Credit Union's conduct on Carello, see (“Here, a neutral proposition of federal law makes it impossible for to interact directly with the Credit Union.”). And in the absence of any personal impact on Carello, his alleged injury is necessarily abstract, amounting to mere indignation that the Credit Union is violating the ADA. 14 15 16 Concreteness and particularization are distinct components of an injury in fact, 136 S. Ct. at but in the case of abstract dignitary harm, they are two sides of the same coin. Indignation at violation of the law is not concrete because it does not impact the plaintiff personally; it is not particularized because it does not affect him in an “individual way.” See ; see also 468 U.S. at –56, For a harm to be particularized, “[t]here must be some connection between the plaintiff and the defendant that ‘differentiates’ the plaintiff so that his injury is not ‘common to all members of the public.’ ” Here, there is no connection between Carello and the Credit Union that distinguishes him from anyone else who is ineligible for membership and offended by the Credit Union's failure to comply with the ADA. Cf. –79 (“Appellants’ claims [about racial discrimination in the hiring process] are generalized grievances shared in substantially equal measure by a large class of citizens.”); Am. Civil Liberties Union of Without “an otherwise plausible assertion that a return to the website would allow [him] to avail himself of [the Credit Union's] services,” Carello is no more entitled to an injunction than any *835 other interested citizen. See B. Carello has another theory: he says that the Credit Union caused him an informational harm by failing to make the text on its website accessible to his screen reader. What Carello asserts, however, is not an informational injury properly understood, so it does not offer an alternate route to an injury in fact. 17 A harm is not an informational injury simply because it has something to do with information. An informational injury occurs when the defendant refuses to provide the plaintiff with information that a law—typically, a sunshine law—entitles him to obtain and review for some substantive purpose. See, e.g., Fed. Election ; Pub. ; –38 (“[Akins and Public Citizen] hold that the denial of information subject to public disclosure is one of the intangible harms that Congress has the power to make legally cognizable.” (emphasis omitted)). In such cases, a plaintiff “need not allege any additional harm beyond” his failure to receive information that the law renders subject to disclosure. This case, however, is about accessibility accommodations, not disclosure. Carello does not complain that the Credit Union withheld information—on the contrary, he states that the Credit Union openly published the information on its website. Nor does he claim that the information was wholly inaccessible to him—he presumably could have had someone who is sighted read it aloud to him. Carello's complaint is about ease of access—he argues that the Credit Union should have made it possible for him to use his screen reader to more readily retrieve the available information. His alleged injury flows from the Credit Union's failure to support his software, not its refusal to disclose information about its services. And if the nature of his injury were not clear enough in the allegations that he makes, it is crystallized by the relief that he seeks. Carello does not seek an injunction ordering the Credit Union to produce information; he seeks an injunction ordering the Credit Union to reform its website. Carello has no interest in information that he cannot use, but he has a keen (and commendable) interest in forcing the Credit Union to make its website more accessible to the visually impaired. Carello simply characterizes as “informational” the harm that he claims to have experienced when encountering text that his screen reader could not decipher. That is a dignitary harm, and, as we have already explained, Illinois law prevents it from being either concrete or particularized as to Carello. Because Carello has not identified an injury in fact, he lacks standing under Article III. C. 18 To demonstrate that he has standing to obtain injunctive relief, Carello must show that he faces a “real and immediate threat” of future injury. See City of Los S.Ct. 1660, Carello insists that he has plausibly alleged that he will return to the Credit's Union's website *836 “to ensure that it [i]s accessible to not only himself, but to all other blind persons in the future.” That may be—but it is beside the point. Carello's threatened future injury must be one for which he has standing to seek a remedy. And his alleged future injury is the one that he claims to have suffered already: the dignitary harm stemming from the Credit Union's failure to accommodate his visual impairment. As we have already explained, this harm does not constitute an injury in fact under Article III.

Casillas v. Madison Avenue Associates, Inc.

The bottom line of our opinion can be succinctly stated: no harm, no foul. Madison Avenue Associates, Inc. made a mistake. The Fair Debt Collection Practices Act requires debt collectors to notify consumers about the process that the statute provides for verifying a debt. Madison sent Paula Casillas a debt-collection letter that described the process, but it neglected to specify that she had to communicate in writing to trigger the statutory protections. Casillas noticed the omission and filed a class action against Madison. 1 2 The only harm that Casillas claimed to have suffered, however, was the *332 receipt of an incomplete letter—and that is insufficient to establish federal jurisdiction. As the Supreme Court emphasized in Spokeo, Inc. v. Robins, Casillas cannot claim “a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” ––– U.S. ––––, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions. Because Madison's violation of the statute did not harm Casillas, there is no injury for a federal court to redress. I. Paula Casillas allegedly owed a debt to Harvester Financial Credit Union. Presumably acting as an agent of the credit union, Madison Avenue Associates, Inc. sent Casillas a letter demanding payment. The Fair Debt Collection Practices Act requires a debt collector to give a written notice to a consumer within five days of its initial communication. 15 U.S.C. § 1692g(a). That notice must include, among other things, a description of two mechanisms that the debtor can use to verify her debt. First, a consumer can notify the debt collector “in writing” that she disputes all or part of the debt, which obligates the debt collector to obtain verification of the debt and mail a copy to the debtor. Id. § 1692g(a)(4). A failure to dispute the debt within 30 days means that the debt collector will assume that the debt is valid. Id. § 1692g(a)(3). Second, a consumer can make a “written request” that the debt collector provide her with the name and address of the original creditor, which the debt collector must do if a different creditor currently holds the debt. Id. § 1692g(a)(5). Madison's notice conveyed all of that information, except that it neglected to specify that Casillas's notification or request under those provisions must be in writing. Casillas filed a class action against Madison because of that omission. She did not allege that she tried—or even planned to try—to dispute the debt or verify that Harvester Financial Credit Union was actually her creditor. But the Act renders a debt collector liable for “fail[ing] to comply with any provision of [the Act],” id. § 1692k(a), and by neglecting to notify Casillas of the writing requirement, Madison failed to comply with a provision of the Act. That, Casillas alleged, “constitute[d] a material/concrete breach of her rights under the [Act].” She sought to recover a $ 1000 statutory penalty for herself and a $ 5000 statutory penalty for the unnamed class members, along with attorneys’ fees and costs. Id. § 1692k(a)(2)(A)–(B). The parties eventually entered a joint motion for class certification and preliminary approval of a class settlement.1 While that motion was pending, we decided Groshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017). There, following the Supreme Court's decision in Spokeo, we held that a plaintiff cannot satisfy the injury-in-fact element of standing simply by alleging that the defendant violated a disclosure provision of a consumer-protection statute. Id. at 887. The district court held that Groshek required it to dismiss Casillas's complaint. Casillas had not alleged that Madison's omission affected her in any way. And absent an allegation *333 that Madison's violation had caused her harm or put her at an appreciable risk of harm, the district court said, Casillas lacked standing to sue. II. 3 4 The elements of standing are well settled: the plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These requirements are rooted in Article III, which limits a federal court's authority to the resolution of “Cases” or “Controversies.” U.S. Const. art. III, § 2. If the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve. 5 6 7 Casillas's appeal involves the injury-in-fact requirement, which the Supreme Court has described as the “[f]irst and foremost” element of standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations and quotation marks omitted). An alleged harm need not be tangible to be “concrete,” but it must be “ ‘real,’ and not ‘abstract.’ ” Spokeo, 136 S.Ct. at 1548. The question here is whether Casillas has alleged that she suffered—or faced a real risk of suffering—a concrete harm.2 A. 8 9 We begin by emphasizing a basic point: the fact that Congress has authorized a plaintiff to sue a debt collector who “fails to comply with any requirement [of the Fair Debt Collection Practices Act],” 15 U.S.C. § 1692k(a), does not mean that Casillas has standing. See Spokeo, 136 S.Ct. at 1549 (“Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”). Congress has the power to define intangible harms as legal injuries for which a plaintiff can seek relief, see Lujan, 504 U.S. at 578, 112 S.Ct. 2130, and it has sought to exercise that power by enabling debtors to hold debt collectors liable for statutory violations. But Congress must operate within the confines of Article III, which “requires a concrete injury even in the context of a statutory violation.” Spokeo, 136 S.Ct. at 1549. Thus, Casillas cannot demonstrate standing simply by pointing to Madison's procedural violation. She must show that the violation harmed or “presented an ‘appreciable risk of harm’ to the underlying concrete interest that Congress sought to protect.” Groshek, 865 F.3d at 887 (citation omitted). 10 The Fair Debt Collection Practices Act seeks to protect debtors from “the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. § 1692(a). Section 1692g serves this end by giving debtors a way to dispute or verify their supposed debts. And by obligating creditors to tell debtors how to do that, subsections (a)(4) *334 and (5) reduce the risk that debtors will inadvertently lose the protections given to those who observe the statutory requirements. 11 Casillas did not allege that Madison's actions harmed or posed any real risk of harm to her interests under the Act. She did not allege that she tried to dispute or verify her debt orally and therefore lost or risked losing the statutory protections. Indeed, she did not allege that she ever even considered contacting Madison or that she had any doubt about whether she owed Harvester Financial Credit Union the stated amount of money. She complained only that her notice was missing some information that she did not suggest that she would ever have used. Any risk of harm was entirely counterfactual: she was not at any risk of losing her statutory rights because there was no prospect that she would have tried to exercise them. Because Madison's mistake didn't put Casillas in harm's way, it was nothing more than a “bare procedural violation.” Spokeo, 136 S.Ct. at 1549. Casillas had no more use for the notice than she would have had for directions accompanying a product that she had no plans to assemble. Casillas insists that she suffered the same kind of harm that we held sufficient to confer standing in Robertson v. Allied Solutions, 902 F.3d 690 (7th Cir. 2018). There, a prospective employer violated the Fair Credit Reporting Act's requirement that it provide the plaintiff with a copy of her background check before it revoked her offer of employment. Id. at 693. We held that the plaintiff satisfied the injury-in-fact requirement even though she had not alleged that the report was inaccurate or that she could have persuaded the defendant to hire her if she had received it. Id. at 697. Casillas says that she suffered an injury in fact even though she did not allege that she would have disputed or verified the debt if the notice had been complete. But the plaintiff in Robertson alleged that the defendant had not only violated the statute but also harmed the concrete interest that the statute protected. The Fair Credit Reporting Act required the prospective employer to give the applicant a copy of the background report before it took an adverse action so that she would have an opportunity to review and respond to the information in the report. If there were inaccuracies, she could identify them; if the negative information was accurate, she could try to put the bad facts in a better light. Id. at 696–97. The plaintiff alleged that the employer took that opportunity from her: “[b]y withholding her background report ... [the employer] limited her ability to review the basis of the adverse employment decision and impeded her opportunity to respond.” Id. at 695. 12 In holding that this allegation satisfied the injury-in-fact requirement, we emphasized that “Article III's strictures are met not only when a plaintiff complains of being deprived of some benefit, but also when a plaintiff complains that she was deprived of a chance to obtain a benefit.” Id. at 697. The plaintiff in Robertson made just that complaint. She did not have to allege that she could have retained the job offer if she had access to the background report. Her lost opportunity to try to change the defendant's opinion of her was a sufficiently concrete injury to confer standing. Casillas did not allege any comparable lost opportunity. Nor could she. Unlike the Fair Credit Reporting Act, the provisions of the Fair Debt Collection Practices Act that Madison violated do not protect a consumer's interest in having an opportunity to review and respond to substantive information. See id. (“An informational injury *335 can be concrete when the plaintiff is entitled to receive and review substantive information.” (emphasis added)). They instead protect a consumer's interest in knowing her statutory rights. And in Robertson, we expressly distinguished a defendant's obligation to provide substantive information from its obligation to give notice of statutory rights. There, the prospective employer had not only failed to provide the plaintiff with the background report; it had also failed to provide her with a written summary of her rights under the Fair Credit Reporting Act. See id. at 693. We didn't need to resolve whether the plaintiff would have had standing if the latter were her only complaint—so we didn't. But we observed that “[t]he problem with that argument is that it describes only a procedural injury. [The plaintiff] did not indicate how, if the procedures had properly been followed, she might have persuaded [the employer] to hire her. With or without written notice of her rights, [she] would not have become an [ ] employee.” Id. at 694–95. So too here: receiving a complete notice would not have changed anything for Casillas. Casillas's case is not like Robertson. Instead, as the district court recognized, it is like those in which we have held that procedural injuries under consumer-protection statutes are insufficiently concrete to confer standing. In Groshek, for example, the plaintiff sued a prospective employer for violating the Fair Credit Reporting Act. 865 F.3d at 886. The defendant had complied with the Act by disclosing that it would obtain a credit report on the applicant. But it violated the Act's “stand-alone” requirement: the statute mandated that the disclosure appear on its own page, and the defendant had included other information along with it. Id. at 885–86. We said that the plaintiff had alleged nothing more than a bare procedural violation. Id. at 887. He hadn't claimed that the improper format had caused him to misunderstand the disclosure, he hadn't asserted that he would have withheld consent if the information had been presented correctly, and he hadn't said that he was unaware that the prospective employer would obtain a credit report on him. Id. Instead, he had “alleged a statutory violation completely removed from any concrete harm or appreciable risk of harm.” Id. Under Spokeo, we explained, that was not enough to satisfy Article III. Id.; see also Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 727 (7th Cir. 2016) (holding that the defendant's failure to truncate the expiration date from the plaintiff's credit card receipt did not put the plaintiff at any material risk of credit card fraud because he was the only one who ever saw the receipt). Similarly here, Casillas did not allege that she even read the disclosure, much less that she relied on it to her detriment. Casillas's best case is from the Sixth Circuit, which sees things differently than we do. In Macy v. GC Services Limited Partnership, the defendant violated the very same requirements that Madison did here: it failed to notify the plaintiffs that they had to dispute their debts in writing to trigger the protections of the Fair Debt Collection Practices Act. 897 F.3d 747, 751 (6th Cir. 2018). Like Casillas, the plaintiffs did not allege that they tried or had any intention of trying to contact the debt collector to verify the debt. Id. at 758. Instead, they claimed that not knowing about the writing requirement “could lead the least-sophisticated consumer to waive or otherwise not properly vindicate her rights under the [Act].” Id. The Sixth Circuit held that the plaintiffs had alleged a concrete injury because “[w]ithout the information about the in-writing requirement, Plaintiffs were placed at a materially *336 greater risk of falling victim to ‘abusive debt collection practices.’ ” Id. (quoting 15 U.S.C. § 1692(e)). 13 14 We disagree. It is certainly true that the omission put those consumers who sought to dispute the debt at risk of waiving statutory rights. But it created no risk for the plaintiffs in that case, who did not try (and, for that matter, expressed no plans to try) to dispute the debt. It is not enough that the omission risked harming someone—it must have risked harm to the plaintiffs.3 As the Supreme Court has explained, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734–35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Because Macy didn't require the plaintiffs to allege a risk of harm to themselves, it is inconsistent with Groshek and Meyers, not to mention Spokeo itself. We decline to follow it.4 Casillas also seeks help from the Second Circuit, but the case that she cites is distinguishable. In Strubel v. Comenity Bank, the plaintiff sued a bank because it provided, and she signed, a credit card agreement that allegedly omitted several disclosures required by the Truth in Lending Act. 842 F.3d 181, 185 (2d Cir. 2016). Casillas highlights one omission in particular: the bank's failure to notify the plaintiff that “a consumer dissatisfied with a credit card purchase must contact the creditor in writing or electronically.” Id. at 190. The Second Circuit said that a consumer has a concrete interest in “avoid[ing] the uninformed use of credit,” id. (quoting 15 U.S.C. § 1601(a)); thus, failing to notify the consumer of her obligations before she began exercising that credit created a serious risk that she would “unwittingly [ ] lose the very credit rights the law affords” her, id. The court held that the plaintiff had sufficiently alleged an injury in fact. There is some facial similarity between the omission in Strubel and the one in Casillas's case: both disclosures neglected to tell a consumer that she must exercise her rights in writing. But as the Second Circuit explained, the disclosure in Strubel was supposed to come at the beginning of an open-ended credit relationship between the plaintiff and the bank; it explained how she could protect her rights with respect to the transactions that she would undertake during that relationship. Id. at 190–91. The faulty disclosure thus put the plaintiff at some risk, because any subsequent transaction might be unsatisfactory, thereby triggering her obligation to object in writing. We don't offer an opinion on the Second Circuit's conclusion that the risk of harm to that plaintiff was substantial enough to be concrete. For present purposes, it is sufficient to note that Strubel is materially different from this case. When the plaintiff in Strubel received the incomplete notice, she did not yet know whether she would *337 ever object to a credit card purchase. When Casillas received the incomplete notice, she already knew that she would not dispute her debt. In other words, unlike Casillas, the plaintiff in Strubel alleged at least a possibility that the omission would hurt her.5 B. Casillas has a back-up argument. She claims that it doesn't matter whether she alleged a material risk of harm to her debt-verification rights because she suffered another kind of harm that was sufficiently concrete: an “informational injury.” According to Casillas, both the Supreme Court's precedent and ours hold that the deprivation of information is itself a concrete harm. Thus, she says, she did not need to allege anything more—for example, that she lost or was at risk of losing her statutory rights because she communicated orally with Madison. As she sees it, she has standing simply because Madison failed to provide her all of the information required by § 1692g(a)(4) and (5); being deprived of information was itself the injury. But Casillas misunderstands the relevant precedent. The seminal cases addressing “informational injury” are Federal Election Commission v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), and Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). In Akins, a group of voters sued to compel a political organization to disclose information that the voters believed the Federal Election Campaign Act required the organization to provide. 524 U.S. at 15–16, 118 S.Ct. 1777. The Court held that those voters had alleged an injury in fact sufficient to confer standing—namely, “their inability to obtain information ... that, on [the voters’] view of the law, the statute requires that [the political organization] make public.” Id. at 21, 118 S.Ct. 1777. In Public Citizen, the plaintiff sought the disclosure of consultations between the president and the American Bar Association regarding potential judicial nominees. When the Department of Justice refused to provide that information, the plaintiff sued it for violating the Federal Advisory Committee Act. 491 U.S. at 443, 447, 109 S.Ct. 2558. The Court held that those seeking disclosure under that law, like those seeking disclosure under the Freedom of Information Act, need to show nothing more “than that they sought and were denied specific agency records.” Id. at 449, 109 S.Ct. 2558.6 Casillas treats Akins and Public Citizen as if they settle the matter of her own standing. But those cases hold that the *338 denial of information subject to public disclosure is one of the intangible harms that Congress has the power to make legally cognizable. See Spokeo, 136 S.Ct. at 1549 (discussing “Congress’ role in identifying and elevating intangible harms”). Public-disclosure laws—sometimes called “sunshine laws”—protect the public's interest in evaluating matters of concern to the political community. And denying a request for information under a sunshine law necessarily implicates that interest. In Akins, the denial “directly related to voting, the most basic of political rights.” 524 U.S. at 24–25, 118 S.Ct. 1777. In Public Citizen, the denial hampered the plaintiffs’ ability to “participate more effectively in the judicial selection process.” 491 U.S. at 449, 109 S.Ct. 2558. Casillas, of course, did not allege that she sought and was denied information pursuant to a sunshine law. Indeed, she did not seek information at all. See id. (explaining that a plaintiff who “is not seeking to compel [the defendant] to provide him with information” has not suffered the kind of concrete harm that Akins and Public Citizen recognize). The Fair Debt Collection Practices Act protects an entirely different interest, and as we have already said, Casillas alleged no material risk of harm to that interest. Moreover, while the plaintiffs in the public-disclosure cases alleged that the respective defendants “impaired [their] ability to use [the information] for a substantive purpose that the statute envisioned,” Robertson, 902 F.3d at 694, Casillas did not allege that she would have used the information at all. Casillas's last line of defense is Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), which she claims stands for the proposition that a plaintiff suffers a concrete “informational injury” any time a defendant violates a statutory disclosure requirement. There, the plaintiff, who was black, sued the defendant after it falsely told her that an apartment complex had no vacancies. The plaintiff had no intention of actually renting an apartment; she had requested the information because she suspected that the defendant was engaged in unlawful racial steering practices. Id. at 368–69, 102 S.Ct. 1114. The Court held that she had alleged a concrete injury under the Fair Housing Act, which “conferred on all ‘persons’ a legal right to truthful information.” Id. at 373, 102 S.Ct. 1114. Casillas says that the Fair Debt Collection Practices Act has likewise conferred on all debtors a right to complete information about their statutory rights. And as in Havens Realty, Casillas says, it is enough for her to claim that she was deprived of the information to which she was legally entitled—even if she wouldn't use it. But the bare harm of receiving inaccurate or incomplete information is not the harm that the plaintiff in Havens Realty alleged. She claimed the harm of being lied to because of her race. That was an invasion of the very interest that the Fair Housing Act protects: freedom from racial discrimination in the pursuit of housing. Id. at 373, 102 S.Ct. 1114. Indeed, the statute itself does not prohibit all misrepresentations about housing availability, but only those made “because of race” or some other protected characteristic. 42 U.S.C. § 3604(d). In holding that the plaintiff could proceed without showing any additional harm, the Court recognized this kind of racial discrimination as an intangible injury that Congress has the authority to identify as legally cognizable. That is obviously neither the harm Casillas claimed nor the one that the Fair Debt Collection Practices Act protects against.7 *339 C. 15 In sum, Casillas alleged nothing more than a bare procedural violation of the Fair Debt Collection Practices Act. That is insufficient for purposes of Article III. See Spokeo, 136 S.Ct. at 1549. And while she asks that she be given the opportunity to file an amended complaint on remand if we find jurisdiction lacking, she has not indicated—either here or in the district court—what facts she would allege to cure the jurisdictional defect. The district court denied her request for leave to file an amended complaint, and it was right to do so. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“[A] district court does not abuse its discretion by denying a motion for leave to amend when the plaintiff fails to establish that the proposed amendment would cure the deficiencies identified in the earlier complaint.”). III. 16 Finally, we note that Casillas has forfeited her separate claim that the incomplete disclosure violated the Act's prohibition on “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Although her complaint presented that alleged violation as a separate claim, it was substantively identical to her § 1692g claim. On appeal, she has not challenged the district court's dismissal of her § 1692f claim, so she has forfeited any challenge to it. See Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019). * * * Casillas caught the defendant in a mistake, but it was not one that hurt her. The district court's judgment is AFFIRMED. Wood, Chief Judge, with whom Rovner and Hamilton, Circuit Judges, join, dissenting from the denial of en banc consideration. From 10,000 feet above the ground, the decision in this case that plaintiff Paula Casillas lacks standing to pursue her claim under the Fair Debt Collection Practices Act (“the Act”) against the debt-collection firm of Madison Avenue Associates seems sensible enough. Article III demands injury-in-fact, a causal link, and redressability, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As our panel sees this case, Casillas founders on the first criterion: actual injury. But the plot thickens when we look more particularly at the violation she asserted: Madison's failure to warn her, as required by 15 U.S.C. § 1692g, that a dispute over the debt or a request for information about the original creditor is ineffective unless it is made in writing. *340 The panel regards that omission as a “bare procedural injury” and thus not one that can support standing under Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). In so concluding, this court has created a conflict with the Sixth Circuit, which held otherwise in Macy v. GC Servs. Ltd. P'ship, 897 F.3d 747 (6th Cir. 2018), on materially indistinguishable facts. Recognizing that it was opening up this rift, the panel circulated its opinion to all judges of the Seventh Circuit in regular active service pursuant to Local Rule 40(e); the question was whether this is an important enough issue to warrant plenary consideration by the en banc court. A majority of my colleagues have answered that question in the negative, thereby signaling their approval of the panel's decision. I respectfully disagree with that assessment. The panel's opinion will make it much more difficult for consumers to enforce the protections against abusive debt collection practices that Congress conferred in the Act. That alone is troublesome. But what troubles me even more is the light this case shines on the need for a clear test in this circuit to distinguish between statutory protections that create, on the one hand, a “bare procedural injury” that does not support standing, and, on the other hand, statutory protections for the type of concrete, particularized, and actual or imminent injury that meet Article III standards. In my view, the rejection of standing in the case before us is not so self-evident that we should resolve it using the truncated Rule 40(e) process. We should instead have a full adversarial presentation before the en banc court. My concerns are both procedural and substantive. I begin with procedure. In demanding proof of injury, we need to guard against pushing a merits judgment into the Article III injury-in-fact inquiry; we also need to ensure that we are not, de facto, demanding fact pleading. The Supreme Court under-scored the standing/merits distinction in Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), in which it took care to distinguish between an adequate allegation of injury-in-fact for standing purposes and the question whether that asserted injury fell within the scope of the statute on which the plaintiff was relying (there, the Lanham Act). Id. at 125–28, 134 S.Ct. 1377. It is possible to point to a real injury (and thus pass the Article III hurdle) but still lose on the merits for failing to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). We additionally need to be sure that we are not returning to a fact pleading regime, as it is not required or even acceptable under Federal Rule of Civil Procedure 8(a)(2) and it is not specifically required under this Act. We repeatedly have stressed that the Federal Rules of Civil Procedure use a notice-pleading standard, not a fact-pleading standard. A complaint need not include allegations about every element of a claim, as long as it meets the plausibility standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Finally, nothing in Twombly or Iqbal changed the rule requiring both facts and reasonable inferences from those facts to be taken in the pleader's favor at the earliest stages of the litigation. Thus, for example, a person may plead that she was injured by a statutory violation. If she fails to prove that injury in the end, the court should conclude that she loses on the merits, not that she never had Article III standing to begin with. The panel opinion takes a step toward both unnecessary heightened requirements. *341 From a substantive point of view, as the panel said, plaintiff Casillas “must show that the violation [of the Act] harmed or presented an appreciable risk of harm to the underlying concrete interest that Congress sought to protect.” Ante at 333 (cleaned up), citing Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 887 (7th Cir. 2017). I agree with that statement. Where I believe the panel is on shakier ground—shaky enough to warrant full en banc attention—is in its application of that standard. It is helpful in this connection to look at the statutory provision that lies at the center of this dispute: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a) (emphasis added). In particular, we are concerned with the requirements in section 1692g(a)(4) and (5) that the consumer must communicate with the debt collector in writing. Failure to do that is anything but a picky procedural gaffe. Section 1692g(b) specifies that if the consumer makes such a written request, “the debt collector shall cease collection of the debt, or any disputed portion thereof,” until the debt collector takes the requested steps. The right to be left alone is a crucial part of the congressionally mandated scheme to eliminate abusive and unfair tactics from the debt-collection business. It is also worth noting that people might not appreciate the need for a written record of their dealings with the debt collector and thus without a reminder that they must reduce their concerns to writing, they are likely to forfeit the important substantive rights the Act provides for them. When they receive a letter, they are often encouraged to call a 1-800 telephone number. But someone who responds to a debt-collection letter in that way will be put into a “Gotcha!” situation. No notification in writing equals greatly diminished protection under the Act. It is a fair inference from Casillas's complaint that Madison's omissions at a minimum put her in imminent risk of losing the many protections in the Act that are designed to regulate the debt-collection process as it goes forward. The right to verification, the right to have the name and address of the original creditor, the right to cessation of debt-collection activities, and others, are far from bare procedural protections—they are protections that serve as the gateway to the Act's substantive *342 regime. The Supreme Court confirmed in Spokeo that intangible harms defined by Congress can qualify as injury-in-fact. 136 S.Ct. at 1549. The only type of injury it ruled out was “a bare procedural violation, divorced from any concrete harm.” Id. In addition, standing is not limited to cases in which the plaintiff already has suffered the harm. It may be “actual or imminent.” Id. at 1548, citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (emphasis added). Read in the proper light, Casillas's pleadings put forward enough to infer an imminent concrete and particular injury. The panel in our court reasons that “[b]ecause Madison's mistake didn't put Casillas in harm's way, it was nothing more than a ‘bare procedural violation.’ ” Ante at 334. It said this because Casillas's pleadings did not spell out the various types of harm that loomed because of Madison's failure to warn her that communications that were not in writing were a waste of time, and that but for the omitted information, Casillas would have (or would have considered) using the statutory procedures to assert her rights. But surely the panel means to do more than alert future plaintiffs in these cases that they should plead that they would stand on their rights and to highlight the imminent loss of numerous substantive protections afforded under the Act. A simple amendment to the complaint would solve that problem. Turning to substance, the key to differentiating between a “bare” procedural right and a right grounded in substantive interests lies in the concrete interest that the procedural right is designed to protect. The Sixth Circuit captured this insight nicely in Macy, where it said that “to determine whether a procedural violation manifests injury in fact, a court properly considers whether Congress conferred the procedural right in order to protect an individual's concrete interests.” 897 F.3d at 754, quoting Strubel v. Comenity Bank, 842 F.3d 181, 189 (2d Cir. 2016). The point is simple: what, and whose, interest is the procedural requirement designed to serve? If the procedural rule stated that all notices had to be printed on three-holed paper, then it might be fair to say that this was a purely administrative rule that did not implicate consumer rights. Or, as the Supreme Court observed in Spokeo, if the envelope reflected a mistaken zip code but the letter reached the consumer despite that error, there is no possible further injury and one can say conclusively that no harm resulted from the mistake. Yet some procedures—perhaps many—exist in order to protect underlying substantive interests rather than for simple administrative convenience. As the Sixth Circuit pointed out, the Ninth Circuit's decision in Spokeo on remand from the Supreme Court helpfully describes the type of procedural injury that implicates harm to those concrete substantive interests: [A]n alleged procedural violation [of a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a risk of real harm to that concrete interest. Macy, 897 F.3d at 755, quoting from Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017). By way of analogy, fundamental due process requires notice and an opportunity to be heard, not for the fun of reading the notice and listening to one's own voice, but because, as Mathews v. Eldridge said, those rights guard against mistakes when the government is poised to deprive someone of a protected interest. 424 U.S. 319, 333–35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). But taken to the extreme, even the right to *343 notice and an opportunity to be heard might be thought to be “bare” procedural rights, because neither one assures any particular outcome for the person involved. Given the fact that a person who is not told that the objections under sections 1692g(a)(4) and (5) must be made in writing, or else they are ineffective to preserve a host of rights under the Act, there is a strong case to be made that this case falls on the concrete injury side of the line, not on the “bare procedural” side. Unlike the mistaken zip code, the likelihood of ongoing injury from forfeited rights, misunderstandings, and abusive practices is great enough to support standing. Madison may have substantive defenses that apply to it, and so I express no view on the ultimate merits of this case. I also express no view on the appropriateness of class certification. I dissent, however, from the decision that the question whether Casillas herself has pleaded enough to pass the injury-in-fact bar for Article III standing is so straightforward, and the Sixth Circuit's view so misguided, that we should not hear this case en banc.

Barrett

majority

The bottom line of our opinion can be succinctly stated: no harm, no foul. Madison Avenue Associates, Inc. made a mistake. The Fair Debt Collection Practices Act requires debt collectors to notify consumers about the process that the statute provides for verifying a debt. Madison sent Paula Casillas a debt-collection letter that described the process, but it neglected to specify that she had to communicate in writing to trigger the statutory protections. Casillas noticed the omission and filed a class action against Madison. 1 2 The only harm that Casillas claimed to have suffered, however, was the *332 receipt of an incomplete letter—and that is insufficient to establish federal jurisdiction. As the Supreme Court emphasized in Inc. v. Robins, Casillas cannot claim “a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” ––– U.S. ––––, Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions. Because Madison's violation of the statute did not harm Casillas, there is no injury for a federal court to redress. I. Paula Casillas allegedly owed a debt to Harvester Financial Credit Union. Presumably acting as an agent of the credit union, Madison Avenue Associates, Inc. sent Casillas a letter demanding payment. The Fair Debt Collection Practices Act requires a debt collector to give a written notice to a consumer within five days of its initial communication. 15 U.S.C. 1692g(a). That notice must include, among other things, a description of two mechanisms that the debtor can use to verify her debt. First, a consumer can notify the debt collector “in writing” that she disputes all or part of the debt, which obligates the debt collector to obtain verification of the debt and mail a copy to the debtor. 1692g(a)(4). A failure to dispute the debt within 30 days means that the debt collector will assume that the debt is val 1692g(a)(3). Second, a consumer can make a “written request” that the debt collector provide her with the name and address of the original creditor, which the debt collector must do if a different creditor currently holds the debt. 1692g(a)(5). Madison's notice conveyed all of that information, except that it neglected to specify that Casillas's notification or request under those provisions must be in writing. Casillas filed a class action against Madison because of that omission. She did not allege that she tried—or even planned to try—to dispute the debt or verify that Harvester Financial Credit Union was actually her creditor. But the Act renders a debt collector liable for “fail[ing] to comply with any provision of [the Act],” 1692k(a), and by neglecting to notify Casillas of the writing requirement, Madison failed to comply with a provision of the Act. That, Casillas alleged, “constitute[d] a material/concrete breach of her rights under the [Act].” She sought to recover a $ 1000 statutory penalty for herself and a $ 5000 statutory penalty for the unnamed class members, along with attorneys’ fees and costs. 1692k(a)(2)(A)–(B). The parties eventually entered a joint motion for class certification and preliminary approval of a class settlement.1 While that motion was pending, we decided There, following the Supreme Court's decision in we held that a plaintiff cannot satisfy the injury-in-fact element of standing simply by alleging that the defendant violated a disclosure provision of a consumer-protection statute. The district court held that required it to dismiss Casillas's complaint. Casillas had not alleged that Madison's omission affected her in any way. And absent an allegation *333 that Madison's violation had caused her harm or put her at an appreciable risk of harm, the district court said, Casillas lacked standing to sue. II. 3 4 The elements of standing are well settled: the plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision. These requirements are rooted in Article III, which limits a federal court's authority to the resolution of “Cases” or “Controversies.” U.S. Const. art. III, 2. If the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve. 5 6 7 Casillas's appeal involves the injury-in-fact requirement, which the Supreme Court has described as the “[f]irst and foremost” element of standing. Steel An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” (citations and quotation marks omitted). An alleged harm need not be tangible to be “concrete,” but it must be “ ‘real,’ and not ‘abstract.’ ” The question here is whether Casillas has alleged that she suffered—or faced a real risk of suffering—a concrete harm.2 A. 8 9 We begin by emphasizing a basic point: the fact that Congress has authorized a plaintiff to sue a debt collector who “fails to comply with any requirement [of the Fair Debt Collection Practices Act],” 15 U.S.C. 1692k(a), does not mean that Casillas has standing. See 136 S.Ct. at Congress has the power to define intangible harms as legal injuries for which a plaintiff can seek relief, see and it has sought to exercise that power by enabling debtors to hold debt collectors liable for statutory violations. But Congress must operate within the confines of Article III, which “requires a concrete injury even in the context of a statutory violation.” 136 S.Ct. at Thus, Casillas cannot demonstrate standing simply by pointing to Madison's procedural violation. She must show that the violation harmed or “presented an ‘appreciable risk of harm’ to the underlying concrete interest that Congress sought to protect.” 865 F.3d 10 The Fair Debt Collection Practices Act seeks to protect debtors from “the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. 1692(a). Section 1692g serves this end by giving debtors a way to dispute or verify their supposed debts. And by obligating creditors to tell debtors how to do that, subsections (a)(4) *334 and (5) reduce the risk that debtors will inadvertently lose the protections given to those who observe the statutory requirements. 11 Casillas did not allege that Madison's actions harmed or posed any real risk of harm to her interests under the Act. She did not allege that she tried to dispute or verify her debt orally and therefore lost or risked losing the statutory protections. Indeed, she did not allege that she ever even considered contacting Madison or that she had any doubt about whether she owed Harvester Financial Credit Union the stated amount of money. She complained only that her notice was missing some information that she did not suggest that she would ever have used. Any risk of harm was entirely counterfactual: she was not at any risk of losing her statutory rights because there was no prospect that she would have tried to exercise them. Because Madison's mistake didn't put Casillas in harm's way, it was nothing more than a “bare procedural violation.” 136 S.Ct. at Casillas had no more use for the notice than she would have had for directions accompanying a product that she had no plans to assemble. Casillas insists that she suffered the same kind of harm that we held sufficient to confer standing in There, a prospective employer violated the Fair Credit Reporting Act's requirement that it provide the plaintiff with a copy of her background check before it revoked her offer of employment. We held that the plaintiff satisfied the injury-in-fact requirement even though she had not alleged that the report was inaccurate or that she could have persuaded the defendant to hire her if she had received it. Casillas says that she suffered an injury in fact even though she did not allege that she would have disputed or verified the debt if the notice had been complete. But the plaintiff in Robertson alleged that the defendant had not only violated the statute but also harmed the concrete interest that the statute protected. The Fair Credit Reporting Act required the prospective employer to give the applicant a copy of the background report before it took an adverse action so that she would have an opportunity to review and respond to the information in the report. If there were inaccuracies, she could identify them; if the negative information was accurate, she could try to put the bad facts in a better light. at 696–97. The plaintiff alleged that the employer took that opportunity from her: “[b]y withholding her background report [the employer] limited her ability to review the basis of the adverse employment decision and impeded her opportunity to respond.” 12 In holding that this allegation satisfied the injury-in-fact requirement, we emphasized that “Article III's strictures are met not only when a plaintiff complains of being deprived of some benefit, but also when a plaintiff complains that she was deprived of a chance to obtain a benefit.” The plaintiff in Robertson made just that complaint. She did not have to allege that she could have retained the job offer if she had access to the background report. Her lost opportunity to try to change the defendant's opinion of her was a sufficiently concrete injury to confer standing. Casillas did not allege any comparable lost opportunity. Nor could she. Unlike the Fair Credit Reporting Act, the provisions of the Fair Debt Collection Practices Act that Madison violated do not protect a consumer's interest in having an opportunity to review and respond to substantive information. See They instead protect a consumer's interest in knowing her statutory rights. And in Robertson, we expressly distinguished a defendant's obligation to provide substantive information from its obligation to give notice of statutory rights. There, the prospective employer had not only failed to provide the plaintiff with the background report; it had also failed to provide her with a written summary of her rights under the Fair Credit Reporting Act. See We didn't need to resolve whether the plaintiff would have had standing if the latter were her only complaint—so we didn't. But we observed that “[t]he problem with that argument is that it describes only a procedural injury. [The plaintiff] did not indicate how, if the procedures had properly been followed, she might have persuaded [the employer] to hire her. With or without written notice of her rights, [she] would not have become an [ ] employee.” at 694–95. So too here: receiving a complete notice would not have changed anything for Casillas. Casillas's case is not like Robertson. Instead, as the district court recognized, it is like those in which we have held that procedural injuries under consumer-protection statutes are insufficiently concrete to confer standing. In for example, the plaintiff sued a prospective employer for violating the Fair Credit Reporting Act. The defendant had complied with the Act by disclosing that it would obtain a credit report on the applicant. But it violated the Act's “stand-alone” requirement: the statute mandated that the disclosure appear on its own page, and the defendant had included other information along with it. at 885–86. We said that the plaintiff had alleged nothing more than a bare procedural violation. He hadn't claimed that the improper format had caused him to misunderstand the disclosure, he hadn't asserted that he would have withheld consent if the information had been presented correctly, and he hadn't said that he was unaware that the prospective employer would obtain a credit report on him. Instead, he had “alleged a statutory violation completely removed from any concrete harm or appreciable risk of harm.” Under we explained, that was not enough to satisfy Article III. ; see also Similarly here, Casillas did not allege that she even read the disclosure, much less that she relied on it to her detriment. Casillas's best case is from the Sixth Circuit, which sees things differently than we do. In v. GC Services Limited Partnership, the defendant violated the very same requirements that Madison did here: it failed to notify the plaintiffs that they had to dispute their debts in writing to trigger the protections of the Fair Debt Collection Practices Act. Like Casillas, the plaintiffs did not allege that they tried or had any intention of trying to contact the debt collector to verify the debt. Instead, they claimed that not knowing about the writing requirement “could lead the least-sophisticated consumer to waive or otherwise not properly vindicate her rights under the [Act].” The Sixth Circuit held that the plaintiffs had alleged a concrete injury because “[w]ithout the information about the in-writing requirement, Plaintiffs were placed at a materially *336 greater risk of falling victim to ‘abusive debt collection practices.’ ” (quoting 15 U.S.C. 1692(e)). 13 14 We disagree. It is certainly true that the omission put those consumers who sought to dispute the debt at risk of waiving statutory rights. But it created no risk for the plaintiffs in that case, who did not try (and, for that matter, expressed no plans to try) to dispute the debt. It is not enough that the omission risked harming someone—it must have risked harm to the plaintiffs.3 As the Supreme Court has explained, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra 405 U.S. Because didn't require the plaintiffs to allege a risk of harm to themselves, it is inconsistent with and Meyers, not to mention itself. We decline to follow it.4 Casillas also seeks help from the Second Circuit, but the case that she cites is distinguishable. In the plaintiff sued a bank because it provided, and she signed, a credit card agreement that allegedly omitted several disclosures required by the Truth in Lending Act. Casillas highlights one omission in particular: the bank's failure to notify the plaintiff that “a consumer dissatisfied with a credit card purchase must contact the creditor in writing or electronically.” The Second Circuit said that a consumer has a concrete interest in “avoid[ing] the uninformed use of credit,” (quoting 15 U.S.C. 1601(a)); thus, failing to notify the consumer of her obligations before she began exercising that credit created a serious risk that she would “unwittingly [ ] lose the very credit rights the law affords” her, The court held that the plaintiff had sufficiently alleged an injury in fact. There is some facial similarity between the omission in Strubel and the one in Casillas's case: both disclosures neglected to tell a consumer that she must exercise her rights in writing. But as the Second Circuit explained, the disclosure in Strubel was supposed to come at the beginning of an open-ended credit relationship between the plaintiff and the bank; it explained how she could protect her rights with respect to the transactions that she would undertake during that relationship. –91. The faulty disclosure thus put the plaintiff at some risk, because any subsequent transaction might be unsatisfactory, thereby triggering her obligation to object in writing. We don't offer an opinion on the Second Circuit's conclusion that the risk of harm to that plaintiff was substantial enough to be concrete. For present purposes, it is sufficient to note that Strubel is materially different from this case. When the plaintiff in Strubel received the incomplete notice, she did not yet know whether she would *337 ever object to a credit card purchase. When Casillas received the incomplete notice, she already knew that she would not dispute her debt. In other words, unlike Casillas, the plaintiff in Strubel alleged at least a possibility that the omission would hurt her.5 B. Casillas has a back-up argument. She claims that it doesn't matter whether she alleged a material risk of harm to her debt-verification rights because she suffered another kind of harm that was sufficiently concrete: an “informational injury.” According to Casillas, both the Supreme Court's precedent and ours hold that the deprivation of information is itself a concrete harm. Thus, she says, she did not need to allege anything more—for example, that she lost or was at risk of losing her statutory rights because she communicated orally with Madison. As she sees it, she has standing simply because Madison failed to provide her all of the information required by 1692g(a)(4) and (5); being deprived of information was itself the injury. But Casillas misunderstands the relevant precedent. The seminal cases addressing “informational injury” are Federal Election and Public In Akins, a group of voters sued to compel a political organization to disclose information that the voters believed the Federal Election Campaign Act required the organization to –16, The Court held that those voters had alleged an injury in fact sufficient to confer standing—namely, “their inability to obtain information that, on [the voters’] view of the law, the statute requires that [the political organization] make public.” In Public Citizen, the plaintiff sought the disclosure of consultations between the president and the American Bar Association regarding potential judicial nominees. When the Department of Justice refused to provide that information, the plaintiff sued it for violating the Federal Advisory Committee Act. 447, The Court held that those seeking disclosure under that law, like those seeking disclosure under the Freedom of Information Act, need to show nothing more “than that they sought and were denied specific agency records.”6 Casillas treats Akins and Public Citizen as if they settle the matter of her own standing. But those cases hold that the *338 denial of information subject to public disclosure is one of the intangible harms that Congress has the power to make legally cognizable. See 136 S.Ct. at Public-disclosure laws—sometimes called “sunshine laws”—protect the public's interest in evaluating matters of concern to the political community. And denying a request for information under a sunshine law necessarily implicates that interest. In Akins, the denial “directly related to voting, the most basic of political rights.” –25, In Public Citizen, the denial hampered the plaintiffs’ ability to “participate more effectively in the judicial selection process.” 491 U.S. Casillas, of course, did not allege that she sought and was denied information pursuant to a sunshine law. Indeed, she did not seek information at all. See The Fair Debt Collection Practices Act protects an entirely different interest, and as we have already said, Casillas alleged no material risk of harm to that interest. Moreover, while the plaintiffs in the public-disclosure cases alleged that the respective defendants “impaired [their] ability to use [the information] for a substantive purpose that the statute envisioned,” Robertson, Casillas did not allege that she would have used the information at all. Casillas's last line of defense is Havens Realty which she claims stands for the proposition that a plaintiff suffers a concrete “informational injury” any time a defendant violates a statutory disclosure requirement. There, the plaintiff, who was black, sued the defendant after it falsely told her that an apartment complex had no vacancies. The plaintiff had no intention of actually renting an apartment; she had requested the information because she suspected that the defendant was engaged in unlawful racial steering practices. at 368–69, The Court held that she had alleged a concrete injury under the Fair Housing Act, which “conferred on all ‘persons’ a legal right to truthful information.” Casillas says that the Fair Debt Collection Practices Act has likewise conferred on all debtors a right to complete information about their statutory rights. And as in Havens Realty, Casillas says, it is enough for her to claim that she was deprived of the information to which she was legally entitled—even if she wouldn't use it. But the bare harm of receiving inaccurate or incomplete information is not the harm that the plaintiff in Havens Realty alleged. She claimed the harm of being lied to because of her race. That was an invasion of the very interest that the Fair Housing Act protects: freedom from racial discrimination in the pursuit of housing. Indeed, the statute itself does not prohibit all misrepresentations about housing availability, but only those made “because of race” or some other protected characteristic. 42 U.S.C. 3604(d). In holding that the plaintiff could proceed without showing any additional harm, the Court recognized this kind of racial discrimination as an intangible injury that Congress has the authority to identify as legally cognizable. That is obviously neither the harm Casillas claimed nor the one that the Fair Debt Collection Practices Act protects against.7 *339 C. 15 In sum, Casillas alleged nothing more than a bare procedural violation of the Fair Debt Collection Practices Act. That is insufficient for purposes of Article III. See 136 S.Ct. at And while she asks that she be given the opportunity to file an amended complaint on remand if we find jurisdiction lacking, she has not indicated—either here or in the district court—what facts she would allege to cure the jurisdictional defect. The district court denied her request for leave to file an amended complaint, and it was right to do so. See III. 16 Finally, we note that Casillas has forfeited her separate claim that the incomplete disclosure violated the Act's prohibition on “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. 1692f. Although her complaint presented that alleged violation as a separate claim, it was substantively identical to her 1692g claim. On appeal, she has not challenged the district court's dismissal of her 1692f claim, so she has forfeited any challenge to it. See * * * Casillas caught the defendant in a mistake, but it was not one that hurt her. The district court's judgment is AFFIRMED. Wood, Chief Judge, with whom Rovner and Hamilton, Circuit Judges, join, dissenting from the denial of en banc consideration. From 10,000 feet above the ground, the decision in this case that plaintiff Paula Casillas lacks standing to pursue her claim under the Fair Debt Collection Practices Act (“the Act”) against the debt-collection firm of Madison Avenue Associates seems sensible enough. Article III demands injury-in-fact, a causal link, and redressability, As our panel sees this case, Casillas founders on the first criterion: actual injury. But the plot thickens when we look more particularly at the violation she asserted: Madison's failure to warn her, as required by 15 U.S.C. 1692g, that a dispute over the debt or a request for information about the original creditor is ineffective unless it is made in writing. *340 The panel regards that omission as a “bare procedural injury” and thus not one that can support standing under In so concluding, this court has created a conflict with the Sixth Circuit, which held otherwise in on materially indistinguishable facts. Recognizing that it was opening up this rift, the panel circulated its opinion to all judges of the Seventh Circuit in regular active service pursuant to Local Rule 40(e); the question was whether this is an important enough issue to warrant plenary consideration by the en banc court. A majority of my colleagues have answered that question in the negative, thereby signaling their approval of the panel's decision. I respectfully disagree with that assessment. The panel's opinion will make it much more difficult for consumers to enforce the protections against abusive debt collection practices that Congress conferred in the Act. That alone is troublesome. But what troubles me even more is the light this case shines on the need for a clear test in this circuit to distinguish between statutory protections that create, on the one hand, a “bare procedural injury” that does not support standing, and, on the other hand, statutory protections for the type of concrete, particularized, and actual or imminent injury that meet Article III standards. In my view, the rejection of standing in the case before us is not so self-evident that we should resolve it using the truncated Rule 40(e) process. We should instead have a full adversarial presentation before the en banc court. My concerns are both procedural and substantive. I begin with procedure. In demanding proof of injury, we need to guard against pushing a merits judgment into the Article III injury-in-fact inquiry; we also need to ensure that we are not, de facto, demanding fact pleading. The Supreme Court under-scored the standing/merits distinction in Lexmark Int'l, in which it took care to distinguish between an adequate allegation of injury-in-fact for standing purposes and the question whether that asserted injury fell within the scope of the statute on which the plaintiff was relying (there, the Lanham Act). at 125–28, It is possible to point to a real injury (and thus pass the Article III hurdle) but still lose on the merits for failing to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). We additionally need to be sure that we are not returning to a fact pleading regime, as it is not required or even acceptable under Federal Rule of Civil Procedure 8(a)(2) and it is not specifically required under this Act. We repeatedly have stressed that the Federal Rules of Civil Procedure use a notice-pleading standard, not a fact-pleading standard. A complaint need not include allegations about every element of a claim, as long as it meets the plausibility standard established in Bell Atlantic and Finally, nothing in Twombly or Iqbal changed the rule requiring both facts and reasonable inferences from those facts to be taken in the pleader's favor at the earliest stages of the litigation. Thus, for example, a person may plead that she was injured by a statutory violation. If she fails to prove that injury in the end, the court should conclude that she loses on the merits, not that she never had Article III standing to begin with. The panel opinion takes a step toward both unnecessary heightened requirements. *341 From a substantive point of view, as the panel said, plaintiff Casillas “must show that the violation [of the Act] harmed or presented an appreciable risk of harm to the underlying concrete interest that Congress sought to protect.” Ante at 333 (cleaned up), citing I agree with that statement. Where I believe the panel is on shakier ground—shaky enough to warrant full en banc attention—is in its application of that standard. It is helpful in this connection to look at the statutory provision that lies at the center of this dispute: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. 1692g(a) (emphasis added). In particular, we are concerned with the requirements in section 1692g(a)(4) and (5) that the consumer must communicate with the debt collector in writing. Failure to do that is anything but a picky procedural gaffe. Section 1692g(b) specifies that if the consumer makes such a written request, “the debt collector shall cease collection of the debt, or any disputed portion thereof,” until the debt collector takes the requested steps. The right to be left alone is a crucial part of the congressionally mandated scheme to eliminate abusive and unfair tactics from the debt-collection business. It is also worth noting that people might not appreciate the need for a written record of their dealings with the debt collector and thus without a reminder that they must reduce their concerns to writing, they are likely to forfeit the important substantive rights the Act provides for them. When they receive a letter, they are often encouraged to call a 1-800 telephone number. But someone who responds to a debt-collection letter in that way will be put into a “Gotcha!” situation. No notification in writing equals greatly diminished protection under the Act. It is a fair inference from Casillas's complaint that Madison's omissions at a minimum put her in imminent risk of losing the many protections in the Act that are designed to regulate the debt-collection process as it goes forward. The right to verification, the right to have the name and address of the original creditor, the right to cessation of debt-collection activities, and others, are far from bare procedural protections—they are protections that serve as the gateway to the Act's substantive *342 regime. The Supreme Court confirmed in that intangible harms defined by Congress can qualify as 136 S.Ct. at The only type of injury it ruled out was “a bare procedural violation, divorced from any concrete harm.” In addition, standing is not limited to cases in which the plaintiff already has suffered the harm. It may be “actual or imminent.” citing (emphasis added). Read in the proper light, Casillas's pleadings put forward enough to infer an imminent concrete and particular injury. The panel in our court reasons that “[b]ecause Madison's mistake didn't put Casillas in harm's way, it was nothing more than a ‘bare procedural violation.’ ” Ante at 334. It said this because Casillas's pleadings did not spell out the various types of harm that loomed because of Madison's failure to warn her that communications that were not in writing were a waste of time, and that but for the omitted information, Casillas would have (or would have considered) using the statutory procedures to assert her rights. But surely the panel means to do more than alert future plaintiffs in these cases that they should plead that they would stand on their rights and to highlight the imminent loss of numerous substantive protections afforded under the Act. A simple amendment to the complaint would solve that problem. Turning to substance, the key to differentiating between a “bare” procedural right and a right grounded in substantive interests lies in the concrete interest that the procedural right is designed to protect. The Sixth Circuit captured this insight nicely in where it said that “to determine whether a procedural violation manifests injury in fact, a court properly considers whether Congress conferred the procedural right in order to protect an individual's concrete interests.” quoting The point is simple: what, and whose, interest is the procedural requirement designed to serve? If the procedural rule stated that all notices had to be printed on three-holed paper, then it might be fair to say that this was a purely administrative rule that did not implicate consumer rights. Or, as the Supreme Court observed in if the envelope reflected a mistaken zip code but the letter reached the consumer despite that error, there is no possible further injury and one can say conclusively that no harm resulted from the mistake. Yet some procedures—perhaps many—exist in order to protect underlying substantive interests rather than for simple administrative convenience. As the Sixth Circuit pointed out, the Ninth Circuit's decision in on remand from the Supreme Court helpfully describes the type of procedural injury that implicates harm to those concrete substantive interests: [A]n alleged procedural violation [of a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a risk of real harm to that concrete interest. quoting from Robins v. Inc., By way of analogy, fundamental due process requires notice and an opportunity to be heard, not for the fun of reading the notice and listening to one's own voice, but because, as Mathews v. Eldridge said, those rights guard against mistakes when the government is poised to deprive someone of a protected interest. But taken to the extreme, even the right to *343 notice and an opportunity to be heard might be thought to be “bare” procedural rights, because neither one assures any particular outcome for the person involved. Given the fact that a person who is not told that the objections under sections 1692g(a)(4) and (5) must be made in writing, or else they are ineffective to preserve a host of rights under the Act, there is a strong case to be made that this case falls on the concrete injury side of the line, not on the “bare procedural” side. Unlike the mistaken zip code, the likelihood of ongoing injury from forfeited rights, misunderstandings, and abusive practices is great enough to support standing. Madison may have substantive defenses that apply to it, and so I express no view on the ultimate merits of this case. I also express no view on the appropriateness of class certification. I dissent, however, from the decision that the question whether Casillas herself has pleaded enough to pass the injury-in-fact bar for Article III standing is so straightforward, and the Sixth Circuit's view so misguided, that we should not hear this case en banc.

Chazen v. Marske

I join the panel's opinion because it has support in our precedent. I write separately, though, to express concern about the state of our precedent. As the opinion observes, the complexity of our cases in this area is “staggering.” We have stated the “saving clause” test in so many different ways that it is hard to identify exactly what it requires. And the resulting confusion has caused our law to drift beyond the course we set in In re Davenport. See 147 F.3d 605, 611 (7th Cir. 1998). At this point, our definition of “inadequacy” and “ineffectiveness” under § 2255(e) undermines the limits that § 2255(h) imposes on second or successive motions. Our patch for statutory cases has grown larger than the hole we identified in the statute. Davenport aims to fix a “glitch” in § 2255(h)(2). See Brown v. Caraway, 719 F.3d 583, 587 n.1 (7th Cir. 2013) (quoting Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008)). That provision permits a prisoner to bring a second or successive challenge to his detention if the motion is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” This permission does not apply, however, to a second or successive motion based on a new statutory interpretation—perhaps because of a congressional oversight. As one noted treatise explains, Congress appears to have modeled § 2255(h)(2) on § 2244(b), which governs second and successive collateral attacks by state prisoners. Hart & Wechsler's the Federal Courts and the Federal System 1362 (Richard H. Fallon Jr. et al. eds., 7th ed. 2015). But “Congress seems to have lost sight of the fact that federal convicts more often can raise federal statutory claims in their collateral attacks—notably in cases in which the federal criminal statute under which a prisoner was convicted has since been authoritatively interpreted more narrowly.” Id. Davenport holds that § 2255's failure to provide a federal prisoner “any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense” renders § 2255 “inadequate” or “ineffective” for purposes of § 2255(e)'s saving clause. 147 F.3d at 611. Thus, a *864 prisoner in that situation can seek a writ of habeas corpus under § 2241. Id.1 Davenport's test for “inadequacy” and “ineffectiveness” largely tracks § 2255(h)(2). That makes sense. The “structural problem” in § 2255 is that § 2255(h)(2) doesn't authorize second or successive motions based on statutory claims. See Poe v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016) (“Where Davenport recognized a structural problem in § 2255(h) is in the fact that it did not permit a successive petition for new rules of statutory law made retroactive by the Supreme Court.”). Davenport fixes that problem by effectively giving such prisoners the relief that they would have had if § 2255(h)(2) had included them. Our cases, however, have phrased Davenport's test inconsistently, and little by little, they have stopped tracking § 2255(h)(2). Most significantly, we have moved away from Davenport's requirement that the change in law come from the Supreme Court. 147 F.3d at 611. Sometimes we have included that requirement in our restatement of the test. See, e.g., Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014) (allowing for “a § 2241 challenge based on a new statutory interpretation by the Supreme Court” (emphasis added)). Sometimes we have not. See, e.g., Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). To be sure, almost all of our post-Davenport cases have dealt with petitions based on Supreme Court decisions, so in the mine-run of cases, nothing has turned on the source of the rule.2 Still, we stopped explicitly saying that the rule must come from the Supreme Court, and recently, we allowed a petitioner to obtain relief based on a circuit-level decision. Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019). Under our circuit's law, therefore, a prisoner with a second or successive statutory claim can secure relief based on a court of appeals case, while a prisoner with a second or successive constitutional claim can secure relief only when the Supreme Court acts. That is an odd state of affairs. It also raises the stakes for the choice-of-law question that we do not resolve today: which circuit's law applies to a Davenport petition. Chazen's case illustrates the point. Chazen was convicted in the Eighth Circuit, so its law governed his trial, sentencing, direct appeal, and first § 2255 motion. Even now, there is no controlling law in the Eighth Circuit on which Chazen could base a claim for relief, so a collateral attack filed there would fail.3 *865 But a § 2241 petition is filed in the circuit of confinement, and seeking the benefit of Van Cannon v. United States, 890 F.3d 656 (7th Cir. 2018), Chazen argues that we should apply Seventh Circuit law to resolve his petition. We should be skeptical of this argument. Applying the law of the circuit of confinement risks recreating some of the problems that § 2255 was designed to fix. See United States v. Hayman, 342 U.S. 205, 210–19, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (explaining that § 2255 directs post-conviction litigation to the district of conviction to avoid the practical problems that existed before § 2255, when all litigation was brought by a writ of habeas corpus in the district of confinement); see also Hart & Wechsler at 1356 (cataloguing the issues courts faced before § 2255's enactment). We have never decided the issue, but district courts confronting it have concluded that the law of the circuit of conviction applies. As one court explained: The rule ensures that the law that prevails in the judicial circuit of any federal prisoner's conviction, or a substantially similar law, is the law that will be applied to the prisoner's § 2241 petition seeking vacation of a conviction. Application of the law of the place of conviction is a consistent, reasonable rule, as is evidenced by the requirement that § 2255 motions be filed in the district of conviction. The rule [petitioner] believes appropriate—applying the substantive law of the place of confinement—is actually far more arbitrary. Such a rule would base the choice of law decision on the fortuitous placement of a prisoner by the Bureau of Prisons, not the more rational factor of the place of conviction. Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001); see also Cano v. Warden USP–Terre Haute, No. 2:17-cv-441, 2018 WL 3389746 (S.D. Ind. July 12, 2018); Roberts v. Watson, No. 16-cv-541, 2017 WL 6375812 (W.D. Wis. Dec. 12, 2017); accord Burgess v. Williams, No. 4:18-cv-2643, 2019 WL 2641902 (N.D. Ohio June 27, 2019); Eames v. Jones, 793 F. Supp. 2d 747, 749 (E.D.N.C. 2011). This position has force. Today's opinion avoids resolving the choice-of-law problem because the government conceded in the district court that Seventh Circuit law applies.4 I have reservations about whether we should accept this concession. While we have the discretion to accept a concession on a point of law, we are not obligated to do so. Krieger v. United States, 842 F.3d 490, 499 (7th Cir. 2016) (“Of course we are not bound to accept the government's concession when the point at issue is a question of law.”); see also Costello v. BeavEx, Inc., 810 F.3d 1045, 1061 n.4 (7th Cir. 2016) (rejecting a party's concession on a question of law). *866 Here, I worry that accepting the concession risks giving the impression that we settled the issue. Lest there be any confusion, we have not. In a later case, this is an issue that deserves our careful consideration; it is not one that we should resolve for all cases based on the government's litigating position in this one. Chazen's case implicates other issues that the full court should clarify at some point. For example, as today's opinion explains, we have articulated at least three different standards for determining whether a recently decided case qualifies as one that the petitioner could not have raised in his initial § 2255 motion. Maj. Op. at 861–62. We need to pick one. And when we do, we should focus on the fact that some of our formulations specify that the recently decided case must announce a “new rule” without explaining what this means. See, e.g., Light, 761 F.3d at 812 (asserting that a § 2241 petition must be “based on a new statutory interpretation by the Supreme Court” (emphasis added)). In particular, we have not discussed whether “newness” in the Davenport context bears any relationship to the “newness” requirements in § 2255(h)(2) and § 2255(f)(3). A “new” rule for purposes of these subsections is one that “breaks new ground” rather than clarifying established law. Headbird v. United States, 813 F.3d 1092, 1095 (8th Cir. 2016) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)) (explaining that “newness” has the same meaning in both § 2255(h)(2) and § 2255(f)(3)). Other circuits have held that Mathis, which the Supreme Court characterized as dictated by Taylor, does not satisfy this test. See, e.g., Washington v. United States, 868 F.3d 64, 65–66 (2d Cir. 2017); Arazola-Gates v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017); In re Conzelmann, 872 F.3d 375, 376–77 (6th Cir. 2017); United States v. Taylor, 672 F. App'x 860, 863 (10th Cir. 2016). Thus, if the Davenport test uses “new” in the standard habeas sense that it has in § 2255(h)(2) and § 2255(f)(3), Chazen's claim presumably cannot succeed. See Guenther v. Williams, No. 17-cv-231, 2017 WL 5054731 (W.D. Wis. Nov. 2, 2017) (holding that a Mathis claim is not cognizable under § 2241 because Mathis applied established law rather than announcing a “new” rule). But as Chazen points out, we have not expressly embraced this definition of “new” for Davenport petitions—and we have sometimes implied that a “new” case is nothing more than one that opens a previously foreclosed position. If that's right, cases like Mathis, which correct misapplications of “old” rules, qualify. Maybe that is the position that we want to take, but if so, we should expressly adopt and defend it. Doing so would require us to think through the implications of forgoing a “newness” requirement in this saving clause context. For example, that position might mean that § 2255(f)'s statute of limitations renders § 2255 “inadequate and ineffective” when it blocks even a first motion relying on Mathis. But see Boatwright v. Warden Fairton FCI, 742 F. App'x 701, 704 (3d Cir. 2018) (rejecting this position). In sum, this body of law is plagued by numerous complex issues. This might not be the case in which to untangle them, but at some point, we need to give litigants and district courts better guidance.

Barrett

majority

I join the panel's opinion because it has support in our precedent. I write separately, though, to express concern about the state of our precedent. As the opinion observes, the complexity of our cases in this area is “staggering.” We have stated the “saving clause” test in so many different ways that it is hard to identify exactly what it requires. And the resulting confusion has caused our law to drift beyond the course we set in In re Davenport. See At this point, our definition of “inadequacy” and “ineffectiveness” under 2255(e) undermines the limits that 2255(h) imposes on second or successive motions. Our patch for statutory cases has grown larger than the hole we identified in the statute. Davenport aims to fix a “glitch” in 2255(h)(2). See That provision permits a prisoner to bring a second or successive challenge to his detention if the motion is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” This permission does not apply, however, to a second or successive motion based on a new statutory interpretation—perhaps because of a congressional oversight. As one noted treatise explains, Congress appears to have modeled 2255(h)(2) on 2244(b), which governs second and successive collateral attacks by state prisoners. Hart & Wechsler's the Federal Courts and the Federal System 1362 (Richard H. Fallon Jr. et al. eds., 7th ed. 2015). But “Congress seems to have lost sight of the fact that federal convicts more often can raise federal statutory claims in their collateral attacks—notably in cases in which the federal criminal statute under which a prisoner was convicted has since been authoritatively interpreted more narrowly.” Davenport holds that 2255's failure to provide a federal prisoner “any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense” renders 2255 “inadequate” or “ineffective” for purposes of 2255(e)'s saving 147 F.3d at Thus, a *864 prisoner in that situation can seek a writ of habeas corpus under 2241. 1 Davenport's test for “inadequacy” and “ineffectiveness” largely tracks 2255(h)(2). That makes sense. The “structural problem” in 2255 is that 2255(h)(2) doesn't authorize second or successive motions based on statutory claims. See (“Where Davenport recognized a structural problem in 2255(h) is in the fact that it did not permit a successive petition for new rules of statutory law made retroactive by the Supreme ”). Davenport fixes that problem by effectively giving such prisoners the relief that they would have had if 2255(h)(2) had included them. Our cases, however, have phrased Davenport's test inconsistently, and little by little, they have stopped tracking 2255(h)(2). Most significantly, we have moved away from Davenport's requirement that the change in law come from the Supreme 147 F.3d at Sometimes we have included that requirement in our restatement of the test. See, e.g., (allowing for “a 2241 challenge based on a new statutory interpretation by the Supreme Court” (emphasis added)). Sometimes we have not. See, e.g., To be sure, almost all of our post-Davenport cases have dealt with petitions based on Supreme Court decisions, so in the mine-run of cases, nothing has turned on the source of the rule.2 Still, we stopped explicitly saying that the rule must come from the Supreme Court, and recently, we allowed a petitioner to obtain relief based on a circuit-level decision. Under our circuit's law, therefore, a prisoner with a second or successive statutory claim can secure relief based on a court of appeals case, while a prisoner with a second or successive constitutional claim can secure relief only when the Supreme Court acts. That is an odd state of affairs. It also raises the stakes for the choice-of-law question that we do not resolve today: which circuit's law applies to a Davenport petition. Chazen's case illustrates the point. Chazen was convicted in the Eighth Circuit, so its law governed his trial, sentencing, direct appeal, and first 2255 motion. Even now, there is no controlling law in the Eighth Circuit on which Chazen could base a claim for relief, so a collateral attack filed there would fail.3 *865 But a 2241 petition is filed in the circuit of confinement, and seeking the benefit of Van Chazen argues that we should apply Seventh Circuit law to resolve his petition. We should be skeptical of this argument. Applying the law of the circuit of confinement risks recreating some of the problems that 2255 was designed to fix. See United (explaining that 2255 directs post-conviction litigation to the district of conviction to avoid the practical problems that existed before 2255, when all litigation was brought by a writ of habeas corpus in the district of confinement); see also Hart & Wechsler at 1356 (cataloguing the issues courts faced before 2255's enactment). We have never decided the issue, but district courts confronting it have concluded that the law of the circuit of conviction applies. As one court explained: The rule ensures that the law that prevails in the judicial circuit of any federal prisoner's conviction, or a substantially similar law, is the law that will be applied to the prisoner's 2241 petition seeking vacation of a conviction. Application of the law of the place of conviction is a consistent, reasonable rule, as is evidenced by the requirement that 2255 motions be filed in the district of conviction. The rule [petitioner] believes appropriate—applying the substantive law of the place of confinement—is actually far more arbitrary. Such a rule would base the choice of law decision on the fortuitous placement of a prisoner by the Bureau of Prisons, not the more rational factor of the place of conviction. ; see also ; WL 6375 ; accord ; This position has force. Today's opinion avoids resolving the choice-of-law problem because the government conceded in the district court that Seventh Circuit law applies.4 I have reservations about whether we should accept this concession. While we have the discretion to accept a concession on a point of law, we are not obligated to do so. ; see also *866 Here, I worry that accepting the concession risks giving the impression that we settled the issue. Lest there be any confusion, we have not. In a later case, this is an issue that deserves our careful consideration; it is not one that we should resolve for all cases based on the government's litigating position in this one. Chazen's case implicates other issues that the full court should clarify at some point. For example, as today's opinion explains, we have articulated at least three different standards for determining whether a recently decided case qualifies as one that the petitioner could not have raised in his initial 2255 motion. Maj. Op. at 861–62. We need to pick one. And when we do, we should focus on the fact that some of our formulations specify that the recently decided case must announce a “new rule” without explaining what this means. See, e.g., 761 F.3d at (asserting that a 2241 petition must be “based on a new statutory interpretation by the Supreme Court” (emphasis added)). In particular, we have not discussed whether “newness” in the Davenport context bears any relationship to the “newness” requirements in 2255(h)(2) and 2255(f)(3). A “new” rule for purposes of these subsections is one that “breaks new ground” rather than clarifying established law. (explaining that “newness” has the same meaning in both 2255(h)(2) and 2255(f)(3)). Other circuits have held that Mathis, which the Supreme Court characterized as dictated by Taylor, does not satisfy this test. See, e.g., ; ; In re Conzelmann, ; United Thus, if the Davenport test uses “new” in the standard habeas sense that it has in 2255(h)(2) and 2255(f)(3), Chazen's claim presumably cannot succeed. See WL 5054731 (holding that a Mathis claim is not cognizable under 2241 because Mathis applied established law rather than announcing a “new” rule). But as Chazen points out, we have not expressly embraced this definition of “new” for Davenport petitions—and we have sometimes implied that a “new” case is nothing more than one that opens a previously foreclosed position. If that's right, cases like Mathis, which correct misapplications of “old” rules, qualify. Maybe that is the position that we want to take, but if so, we should expressly adopt and defend it. Doing so would require us to think through the implications of forgoing a “newness” requirement in this saving clause context. For example, that position might mean that 2255(f)'s statute of limitations renders 2255 “inadequate and ineffective” when it blocks even a first motion relying on Mathis. But see In sum, this body of law is plagued by numerous complex issues. This might not be the case in which to untangle them, but at some point, we need to give litigants and district courts better guidance.

Chronis v. United States

Before bringing a tort claim against the United States, a plaintiff must first exhaust her administrative remedies by presenting her claim to the appropriate federal agency. This means, among other things, that the plaintiff must demand a sum certain from the agency. Anna Chronis did not make such a demand before she sued, so the district court properly dismissed her complaint. I. In June 2015, Anna Chronis visited the University of Illinois Mile Square Health Center for her annual physical examination. The examination included a pap smear—a procedure used to detect cervical cancer—that Chronis alleges caused her pain and bruising. She claims that she tried to follow up on the examination with the physician, Dr. Tamika Alexander, but was unable to get in touch with her. She also says that the Health Center did not return her calls or allow her to make a follow-up appointment. Chronis filed a written complaint with the Health Center’s grievance committee, requesting $332 for the expenses that she incurred because of the injury. But after reviewing her complaint, the Health Center rejected her request. After her request was denied, Chronis sent a letter to the Centers for Medicare and Medicaid Services (CMS), an agency within the U.S. Department of Health and Human Services. In her letter, she requested “assistance in resolving a frustrating process of delay, unfulfilled promises, and documented willful ignorance of policy and procedures.” Though her letter mentioned the injuries that she allegedly sustained during her examination, it devoted most of its attention to the Health Center’s lack of responsiveness to her complaints. It also included a general statement that she wanted assistance in “receiving the restitution.” The conclusion of her letter summarized what she was asking for: “I have enclosed all relevant, previous correspondence between UIC Health, and myself, and look forward to your guidance on how to proceed.” Chronis also attached roughly sixty pages of documents relating primarily to the correspondence between Chronis and the Health Center. One of the pages included the fact that Chronis had previously sought $332 from the Health Center. Believing that Chronis was seeking advice about how to make an administrative complaint against the doctor and Health Center, CMS replied by directing her to contact the Illinois Department of Financial and Professional Regulation so that *546 she could file a formal complaint. CMS also invited Chronis to follow up if she needed any additional assistance. More than six months later, Chronis filed a pro se complaint in state court, alleging malpractice against Alexander and the Health Center. Because the Health Center receives federal funds from the Public Health Service and Alexander is a Health Center employee, the United States substituted itself as the sole defendant and removed the case to federal court to proceed under the Federal Tort Claims Act. See 42 U.S.C. § 233; 28 U.S.C. § 1346.1 The government then moved to dismiss, arguing that Chronis had not exhausted her administrative remedies because she had failed to first present her claim to the appropriate federal agency. It argued that her letter to CMS did not meet this requirement. The district court granted the government’s motion and dismissed the complaint. It explained that Chronis’s letter to CMS notified the agency only that she was pursuing “professional regulation allegations,” as opposed to making an administrative demand—and thus failed to present a claim. Chronis timely appealed pro se, and we appointed amicus curiae to assist in her appeal.2 Amicus argues that Chronis exhausted her administrative remedies when she sent the letter to CMS. We disagree. II. 1 Under the Federal Tort Claims Act, a plaintiff may bring a medical malpractice claim against the United States only after exhausting administrative remedies. 28 U.S.C. §§ 2401(b), 2675. To exhaust administrative remedies, the plaintiff must “have first presented the claim to the appropriate Federal agency,” id. § 2675, so that the agency has an opportunity to meaningfully consider and address the claim prior to suit, see Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997); Mader v. United States, 654 F.3d 794, 801 (8th Cir. 2011) (en banc) (explaining that the agency must have “a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit”). A claim has been presented to a federal agency once the plaintiff submits “an executed Standard Form 95 or other written notification *547 of an incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. § 14.2(a); see also Kanar, 118 F.3d at 528. We have held that this presentment requirement has four elements: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. Kanar, 118 F.3d at 528. Chronis’s letter fails to satisfy the second element of the presentment requirement. 2 Even liberally construed and read through the eyes of a “legally sophisticated reader,” Chronis’s letter does not contain a demand for money damages in a sum certain. See Buechel v. United States, 746 F.3d 753, 760 (7th Cir. 2014). The closest that the letter comes to requesting any money at all is a vague request for help in “receiving restitution.” Perhaps recognizing that this vague reference falls short of the mark, amicus argues that Chronis implicitly demanded a sum certain because one of the letter’s many attachments revealed that she once sought $332 from the Health Center. But she simply attached this, along with what amicus acknowledged were as many as sixty pages of attachments, as background information. And in any event, although the dissent makes much of these attachments, we have said before that we will not force agencies to search for claims buried within pages and pages of attachments. See Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991) (explaining that claims that “may be gleaned” from a sixty-three-page appendix to an administrative filing have not been asserted for purposes of exhaustion).3 3 To be sure, failing to put a number on the amount demanded is not necessarily fatal. See Smoke Shop, L.L.C. v. United States, 761 F.3d 779, 787 (7th Cir. 2014). It is “only fatal if it can be said to have ‘hindered’ or ‘thwarted’ the settlement process ‘that Congress created as a prelude to litigation.’ ” Id. (quoting Kanar, 118 F.3d at 531); see also Khan v. United States, 808 F.3d 1169, 1172 (7th Cir. 2015) (explaining that a precise sum of money is not always required because its absence typically won’t “derail the settlement process”). But a claimant who neither makes it clear that she is demanding money from the agency nor says how much she is demanding thwarts the settlement process envisioned by the FTCA. See Smoke Shop, 761 F.3d at 788 (asserting that “without being presented with an actual claim for money damages, the [government is] ill-equipped to make a fully informed assessment” concerning a plaintiff’s claim). How can an agency assess whether to make a settlement offer if it isn’t aware that a demand is being made, let alone how much is at stake? Take the facts here: believing that Chronis’s letter was simply requesting advice *548 about how to file an administrative complaint against the Health Center, the agency responded by providing information about how to file a formal complaint with the Illinois Department of Financial and Professional Regulation. The agency didn’t have a chance to begin the settlement process because nothing in the letter put it on notice that Chronis was asserting a claim against it. Chronis’s failure to make a clear demand of CMS “frustrate[d] the process of conciliation and settlement that the administrative demand is supposed to initiate.” See Kanar, 118 F.3d at 531. Indeed, the letter shows that Chronis wanted something other than money from CMS. The conclusion of her letter said it best: she wanted “guidance on how to proceed.” Requesting guidance is different than requesting money. And we have emphasized that a letter requesting “something other than money” fails to constitute an administrative demand for money. See Khan, 808 F.3d at 1173 (concluding that the claimant failed to make a demand because he “was seeking something other than money—such as an apology for the misconduct of the arresting marshals, or punishment of them, or better training of marshals”); Smoke Shop, 761 F.3d at 787 (“Unfortunately for Smoke Shop, we have never held that a request for the return of property—unaccompanied by a statement that the claimant would seek money damages if the property was not returned—satisfies the [money-damages element].”). In a final effort to show that Chronis actually made a demand for monetary damages, amicus points to a single phrase in her letter stating that she had to “pay out of pocket for follow up that resulted from [Dr. Alexander’s] malpractice and gross negligence.” But this wasn’t a demand. It was just background information, explaining Chronis’s frustration with her care. Especially in light of the rest of the letter, which made clear that Chronis was seeking advice, this alone could not have put the agency on notice that Chronis intended to file an administrative demand. See Palay v. United States, 349 F.3d 418, 426 (7th Cir. 2003) (explaining that a claimant must provide “sufficient notice to enable the agency to investigate the claim” (citation omitted)). We stress that our precedent does not make it difficult for pro se plaintiffs to sue the federal government. In almost any other circuit, Chronis’s claim would have failed for not including a sum certain. See, e.g., White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d. Cir. 2010) (“Providing a sum certain claim for damages is central to [the] policy of requiring presentment of claims to the appropriate federal agency because it enables the agency head to determine whether the claim can legally be settled by the agency and, if so, from where the payment should come ... [and] it goes without saying that an agency cannot consider settling a claim if it cannot ascertain the claim’s value.”); Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000) (holding that a district court lacks jurisdiction over an FTCA suit if the “administrative claim [did] not indicate a specific amount of money.”). And as we noted earlier, we insist that pro se administrative complaints receive a liberal construction. See Buechel, 746 F.3d at 760. But there is a difference between generously construing a pro se complaint and effectively excusing a pro se plaintiff from the statutorily mandated exhaustion requirement.4 Characterizing Chronis’s request *549 for guidance as a demand for money would pull us into the latter territory. In short, Chronis “simply did not tell the government that [she] intended to bring a tort suit against it.” See Smoke Shop, 761 F.3d at 788. She did not have to use lawyerly language to communicate that message. But she had to make it “clear to a legally sophisticated reader” that she was demanding payment from CMS. See Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 925 (7th Cir. 2018) (emphasis added). Her failure to make a clear demand meant that CMS lacked “a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit.” Mader, 654 F.3d at 801; see also Palay, 349 F.3d at 426. We conclude with a final observation. This case has been litigated as if it is about Chronis’s frustrated effort to put the Department of Health and Human Services (through its sub-agency, CMS) on notice that she was demanding money from it. The real problem, however, is that Chronis had no idea that the Department might owe her money. It is unsurprising that Chronis, a pro se plaintiff, didn’t know that the Health Center and Alexander would be treated as Public Health Service employees covered by the Federal Tort Claims Act. That is a mistake that even an experienced medical malpractice lawyer can make. See, e.g., Phillips v. Generations Family Health Ctr., 723 F.3d 144, 148 (2d Cir. 2013) (plaintiff’s lawyer failed to satisfy the exhaustion requirement because he failed to discover that the defendant clinic was a “deemed federal employee”). But the way to fix it is not for the court to read the presentment requirement out of the Federal Tort Claims Act. It is for the plaintiff to exhaust her administrative remedy once the error is discovered. If a plaintiff is within the statute of limitations, she can do that easily by asserting an administrative claim and returning to federal court if the claim does not settle. See, e.g., Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 892 (7th Cir. 2007).5 If the statute of limitations has expired, it is still possible, though it is more difficult, to remedy the mistake: the plaintiff can assert an administrative claim, and if the agency denies it, she can sue again and ask the court to equitably toll the statutory clock. See United States v. Kwai Fun Wong, ––– U.S. ––––, 135 S. Ct. 1625, 1633, 191 L.Ed.2d 533 (2015) (holding that a court can equitably toll the the Federal Tort Claims Act’s statute of limitations); Arteaga v. United States, 711 F.3d 828, 833–35 (7th Cir. 2013) (considering whether to equitably toll the statute of limitations when the plaintiff’s lawyer failed to discover that the defendant health center was “deemed federal”); Phillips v. Generations Family Health Ctr., 657 Fed. App'x 56 (2d Cir. 2016) (same). No one has discussed *550 the statute of limitations in this case, so it is unclear which situation Chronis is in. We raise the issue simply to note that this problem can be fixed, but not in the way that Chronis is seeking to do it. Because the district court correctly held that Chronis failed to satisfy the exhaustion requirement, its judgment is AFFIRMED. Rovner, Circuit Judge, dissenting. Our circuit applies a flexible standard to the exhaustion requirements for plaintiffs making claims under the Federal Tort Claims Act, excusing technical deficiencies so as not to preclude all but the savviest of plaintiffs from receiving a hearing on the merits. See Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 924 (7th Cir. 2018), as amended on denial of reh’g and reh’g en banc (June 19, 2018). The majority’s decision demands far more of Chronis than our precedent requires. Chronis, a pro se plaintiff, knew little about the complicated legal world of suing the federal government. She was simply looking for a solution to her problem. She alleged that she had been harmed during a medical appointment at a health center that receives federal funds. She looked for a solution by repeatedly telephoning the doctor whom she alleged harmed her, but that doctor did not help, and indeed did not return any of her numerous calls. (R. 10 at 24, 45, 57). She made calls to employees at the health center that employed the doctor, but they would not help. Id. She made several written complaints to the health center’s grievance committee, but it would not help. (R. 10 at 22, 45-47, 53-55, 56-59). She filed an appeal with the Illinois Department of Healthcare and Family Services, but it did not help. (R. 10 at 27-28). She mailed a submission to the Centers for Medicare and Medicaid Services (CMS), a federal administrator of the Medicaid Program, but it simply referred her to the Illinois Department of Financial and Professional Regulation. (R. 10 at 6). She filed a professional regulation complaint with the Illinois Department of Financial and Professional Regulation, but there is no record of any response. (R. 10 at 26). She filed a malpractice claim in state court, but the United States told her that was the wrong place too, and removed the case to federal court. And then, finally, the federal court told Chronis that, after all those calls, steps, letters, claims, and complaints, she had not given the government notice in the proper manner and it too would not help. Chronis’ odyssey is reminiscent of the famous children’s book by P.D. Eastman. In that book, a baby bird, having fallen out of the nest, is looking for a solution to its problem. Having just hatched, the baby bird knows little about the world, and thus asks for help in all the wrong places—asking a kitten, a hen, a dog, a cow, a boat, and an airplane, “Are you my mother?” Each answers indignantly that the baby bird has come to the wrong place for a solution. The last place the baby bird looks for a solution is with the powerful steam shovel. The steam shovel, knowing the rules and how to get things done, gently places the baby bird back into the nest. Unfortunately for Chronis, the steam shovel in her case just kept rolling along. The Federal Tort Claims Act requires a plaintiff to exhaust her administrative remedies and give notice to the government of her claim so that the agency can have a chance to settle “meritorious claims more quickly and without litigation.” Warrum v. United States, 427 F.3d 1048, 1050 (7th Cir. 2005); 28 U.S.C. § 2675(a). But we have long applied a flexible standard and have made clear that technical deficiencies in an administrative claim are not fatal, provided the “proper agency had the opportunity *551 to settle the claim for money damages before the point of suit.” Smoke Shop, LLC v. United States, 761 F.3d 779, 787 (7th Cir. 2014). Our flexible standard means that courts must construe pro se administrative complaints generously and deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader. Delgado, 880 F.3d at 925. Accordingly, a plaintiff may “litigate under the FTCA following an administrative demand” even if that initial administrative demand “does not comply with every jot and tittle of the rules defining a ‘claim.’ ” Kanar v. United States, 118 F.3d 527, 530 (7th Cir. 1997). “Why,” we asked, “should courts stand on punctilious adherence to unimportant elements of the regulatory definition of a ‘claim’ under the FTCA?” Id. at 531. Instead, we look to see whether the noncompliance has “hinder[ed] the settlement process that a claim is supposed to initiate;” if it has not, then there is no reason to foreclose litigation. Id. And yet the majority appears to be requiring the “punctilious adherence” that our precedent rejects. Our cases make clear that a potential plaintiff’s claim needs to meet two requirements: she must specify the facts behind the claim, and make a demand for money. That is it. Khan v. United States, 808 F.3d 1169, 1172–73 (7th Cir. 2015).1 The administrative regulation states that the claim must be one for “money damages in a sum certain.” 28 C.F.R. § 14.2(a). But our court has held that the “sum certain” requirement is more bark than bite. We have declared unquestionably that “[f]ailure to specify a ‘sum certain’ is not fatal.” Id. at 1172.2,3 In other words, the target is large and if the federal agency (which we presume to be legally sophisticated), sees the dart land anywhere on it, it has the chance to engage in the settlement process, and it has received a claim. No one disputes that Chronis notified the agency of the incident, and with good reason. In her November 7, 2015 submission to CMS, she described her “horrible” visit to the gynecologist, Dr. Alexander, that resulted in an alleged injury “that resulted from [Dr. Alexander’s] malpractice and gross negligence.” R. 10 at 41. She also enclosed her correspondence with the health center in which she detailed her injuries and her intent to pursue a claim.4 *552 The majority’s decision hangs on its conclusion that Chronis did not make a proper claim for money damages to CMS. Chronis’ letter to CMS, however, on the very first page asks for four things in a numbered list set out in its own paragraph, one of which (number 3) is “receiving restitution.” R. 10 at 41. The word “restitution” is common parlance for recompense for injury or loss. The OED defines it as “making reparation to a person for loss or injury previously inflicted.”5 Chronis’ request for restitution was coupled with other money-demanding language. She stated that she was injured and had to “pay out of pocket” due to the doctor’s “malpractice and gross negligence”—legal terms one uses when a person believes she has a claim against a tortfeasor. Id. The letter is speckled with all manner of references to money damages: The malpractice “is costing me money,” she wrote to CMS. Id. She later wrote of Dr. Alexander’s liability for malpractice. Id. at 43. To state that a request for restitution along with talk of out-of-pocket loss, malpractice, and liability is not a money demand defies credulity, and resembles the “punctilious adherence” that this court has rejected. See Kanar, 118 F.3d at 530–31. It is true that what Chronis stated in her letter to CMS was “I request your assistance in ... receiving restitution,” rather than stating “I want restitution from you, CMS.” See R. 10 at 41. The latter would have been more clear, for certain, but there is no legally relevant difference, particularly in a legal posture in which we are required to “deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader.” Delgado, 880 F.3d at 925. Chronis wanted restitution. She wanted CMS to help her get it. As far as she was concerned, CMS could do so either by pulling it out of its own pockets, if it was the responsible party, or helping her find the proper pocket, if it was not. The fact that Chronis was having trouble figuring out who the correct responsible party was, is not surprising. As the majority points out, “even an experienced medical malpractice lawyer” might not always be aware that a particular health center and its doctors “would be treated as Public Health Service employees covered by the Federal Tort Claims Act.” Majority Op. at 549. CMS, however, is the legally sophisticated, powerful steam shovel in this scenario. It knows that the federal government is the party responsible when someone files a malpractice claim against a federally funded community health center. In fact, based on this knowledge, after Chronis sued the health center in state court, the United States came forward and identified itself as the responsible party, substituted itself as the sole defendant, and removed the case to federal court. Chronis, on the other hand, is unfamiliar with the world of federal tort litigation. She had no way of knowing from where exactly the restitution should come, but she knew that she wanted the responsible party to provide it. This is why our case law is so solicitous of pro se plaintiffs facing sophisticated federal agencies. All that is required is enough to clue in the agency that the claimant has been injured and wants recompense. See Palay v. United States, 349 F.3d 418, 426 (7th Cir. 2003) (“All that is required is *553 sufficient notice to enable the agency to investigate the claim.”); see also Buechel v. United States, 746 F.3d 753, 760 (7th Cir. 2014) (elucidating the liberal standard for claims under the Federal Tort Claims Act). We expect federal agencies to be legally sophisticated and take the minimal information provided to them and investigate. Palay, 349 F.3d at 426. The request for money damages should have been clear from the language of the letter itself—the request for restitution coupled with claims of malpractice and notice about out-of-pocket expenses. But that is not all Chronis did. She also notified CMS that she had “enclosed all relevant, previous correspondence between UIC Health, and myself.” R. 10 at 43. Attachments to her Federal Tort Claims Act claim become part of that claim. See, e.g., Palay, 349 F.3d at 426 (noting that the plaintiff “attached to his Form 95 the letter from his attorney, and in so doing made that letter a part of his Form.”) The correspondence Chronis attached included her August 25 complaint to the health center’s grievance committee in which she requested reimbursement of $332 for out-of-pocket costs, and referenced her right to “retain an attorney.” R. 10 at 57, 59. In the letter she spoke of being out of pocket for medical fees, gas money, parking fees, and records fees “which I would like reimbursed.” Id. at 57. She also made requests for money damages in other attachments. For example, in another letter attached to the submission to CMS—this one to the health center dated November 2, 2015—she stated that because she “paid out of pocket [ ] for physical damage and medical care caused by your malpracticing physician, you owe me [ ] the reimbursement, as the doctor has already been paid.” R. 10 at 45. She also stated, “your doctor’s willful negligent [sic] and malpractice ... makes you liable for reimbursement to me, personally for the out of pocket costs that I have incurred from your employee’s actions.” Id. at 46. Even if the letter to CMS itself did not make a complete money demand (and I believe it did), the letter put CMS on notice that Chronis was seeking money and explicitly pointed to the attached documents for the details, including the sum certain. The majority asserts that we must not force agencies to search for claims buried within lengthy attachments. For this proposition, it cites Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991). We must reconcile this precedent, however, with a more recent one in which we explicitly stated that attachments to a Federal Tort Claims Act claim become part of that claim. Palay, 349 F.3d at 426 (citing Murrey v. United States, 73 F.3d 1448, 1452-53 (1996)). The facts in Deloria, however, are so far removed from the present case to make that precedent of no use here. In Deloria, the plaintiff’s claim form asserted that Veterans Administration employees conspired to alter his medical records to deny him benefits, but later he filed suit in district court alleging malpractice and negligence by VA doctors. We rejected the malpractice and negligence claims as not properly presented to the agency. Deloria claimed that the sixty-three page attachment to his administrative claim for conspiracy to deprive him of benefits, if read closely, “foreshadowed” his current malpractice and negligence allegations. Id. at 1012. We decided, however, that any “faint intimations of Deloria’s additional claims” that might be gleaned from his sixty-three page appendix did not constitute “the type of fair notice that Congress envisioned when it fashioned the presentment requirement.” Id. Deloria’s claims, if they were made at all (and the court thought they were only barely hinted at in the attachments), were buried deep within his attachments and not made at all *554 on the face of his claim. Chronis, in contrast, is not asking the court to tease out a buried glint of a foreshadowed claim from her attachments; far from that. She squarely asserted a claim for “restitution” on the face of the claim itself, and pointed to the attachments only to reveal an actual dollar amount of damages—the absence of which, we have held, would not have been fatal to her claim in any event. This makes her case more similar to Palay’s who asserted a claim on the face of the submitted documents and pointed to the attachments for details. The majority concedes that Chronis made a demand for a sum certain to the health center, but denies that she made such a demand to CMS. But of course the federal agency knew that any claim made against a federally supported health center is a claim against the federal government. See Majority Op. at 545, n.1. That is why the federal government moved to substitute itself in the litigation against the health center and remove the matter to federal court. The fact that the federal government was on the hook for malpractice claims alleged against the health center was information that was in the hands of the agency—an agency that had a duty to investigate Chronis’ claim. “After the claimant provides enough information to put a legally sophisticated reader on notice, it is up to the agency ‘to fill in the gaps, to the extent possible.’ ” Delgado, 880 F.3d at 925 (citing Buechel, 746 F.3d at 761.) The majority states that “Chronis wanted something other than money from CMS ... she wanted ‘guidance on how to proceed.’ ” Majority Op. at 548. It would be more accurate to say that she wanted something more than just money from CMS. We do not disagree that she wanted guidance, but she wanted guidance about how to proceed in order to receive the restitution that was listed as one of four enumerated solutions she requested on the front page of her letter. See R. 10 at 41. Guidance alone would not make her whole or pay the medical bills. The guidance was needed in order to recover for her loss. And when a person wants payment for medical malpractice from a designated federally-funded health center, the legally sophisticated reader (which we assume the agency to be) knows that payment must come from the federal government’s coffers. There is a reason we construe legal pleadings by pro se plaintiffs liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Our court has long been “cognizant of the unique challenges facing pro se litigants.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). Chronis claimed damages of $332. The fact that she needed reimbursement for the $332 medical and miscellaneous fees suggests that she could not afford to hire a lawyer to recover the sum. Clearly the $332 was a significant sum to Chronis, but few, if any lawyers would take a civil action to recover $332. Chronis had no choice but to seek a remedy on her own. And she is not alone. Few people can afford to pay an attorney for the amount of time it would take to recover such a small sum of money. And, as this case demonstrates all too well, modern litigation contains so many traps and barriers that it is near to impossible for non-lawyers to successfully navigate it. Despite Chronis’ valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums. *555 The majority says that all is not lost for Chronis, as there remains some possibility that she could squeeze her claim down another path—re-asserting her claim and relying on the Westfall Act to save any statute of limitations problems or by hoping for equitable tolling. Majority Op. at 549. The Westfall Act tolling provision applies only in very narrow conditions: it applies only if “the claim would have been timely had it been filed on the date the underlying civil action was commenced, and [ ] the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.” 28 U.S.C.A. § 2679. And, of course, equitable tolling is reserved only for the rarest of instances in which a plaintiff can demonstrate some “extraordinary circumstances” beyond her control. Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016). We must remind ourselves that a key point of this case is that Chronis is a pro se plaintiff. Therefore the ordinary lenience we give Federal Tort Claim Act claims is magnified all the more. Chronis was unrepresented throughout the administrative process, through removal from state to federal district court, and in this court as well. (We requested and received the capable and helpful assistance of amicus curiae, Travis S. Andrews, for which we are extremely grateful. Chronis, however, still does not have retained counsel and is unlikely to find it for her $332 claim). Chronis struggled to file a simple valid Federal Tort Claims Act claim. The odds of her successfully navigating these more complex alternative pathways that the majority suggests are slim, at best. Chronis wrote, called, filled out complaint forms, and wrote again. She attached exhibits, correspondence, forms, and e-mail. According to the government, and now the majority opinion, however, this was not enough: Chronis did not ask in the proper way.6 She did not state that she sought “money damages” in a sum certain. Instead, she said “I request your assistance ... in receiving the restitution.” And the amount of that restitution that she sought was not in the letter itself, but in an attachment to the letter. The majority is requiring stricter adherence to the requirements than our law requires and we must be careful not to block access to relief for pro se plaintiffs. See Kanar, 118 F.3d at 530–31. But if Chronis cannot jump through the proper hoops with her multi-page, well-documented, persistent, and multiple requests to myriad agencies, what pro se plaintiff would ever succeed? See, e.g., Delgado, 880 F.3d at 924 (stringent application of a statute’s “exhaustion requirement can effectively prevent all but the savviest [plaintiffs] from receiving a hearing on the merits.”). The majority’s decision has altered the requirements for plaintiffs making a claim pursuant to the Federal Tort Claims Act. No longer will we apply a flexible standard and overlook technical deficiencies; no longer will we construe pro se administrative complaints generously and “deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader.” Delgado, 880 F.3d at 925. We now require “punctilious adherence” to every “jot and tittle” of the rules defining a claim. I respectfully dissent.

Barrett

majority

Before bringing a tort claim against the United States, a plaintiff must first exhaust her administrative remedies by presenting her claim to the appropriate federal agency. This means, among other things, that the plaintiff must demand a sum certain from the agency. Anna Chronis did not make such a demand before she sued, so the district court properly dismissed her complaint. I. In June Anna Chronis visited the University of Illinois Mile Square Health Center for her annual physical examination. The examination included a pap smear—a procedure used to detect cervical cancer—that Chronis alleges caused her pain and bruising. She claims that she tried to follow up on the examination with the physician, Dr. Tamika Alexander, but was unable to get in touch with her. She also says that the Health Center did not return her calls or allow her to make a follow-up appointment. Chronis filed a written complaint with the Health Center’s grievance committee, requesting $332 for the expenses that she incurred because of the injury. But after reviewing her complaint, the Health Center rejected her request. After her request was denied, Chronis sent a letter to the Centers for Medicare and Medicaid Services (CMS), an agency within the U.S. Department of Health and Human Services. In her letter, she requested “assistance in resolving a frustrating process of delay, unfulfilled promises, and documented willful ignorance of policy and procedures.” Though her letter mentioned the injuries that she allegedly sustained during her examination, it devoted most of its attention to the Health Center’s lack of responsiveness to her complaints. It also included a general statement that she wanted assistance in “receiving the restitution.” The conclusion of her letter summarized what she was asking for: “I have enclosed all relevant, previous correspondence between UIC Health, and myself, and look forward to your guidance on how to proceed.” Chronis also attached roughly sixty pages of documents relating primarily to the correspondence between Chronis and the Health Center. One of the pages included the fact that Chronis had previously sought $332 from the Health Center. Believing that Chronis was seeking advice about how to make an administrative complaint against the doctor and Health Center, CMS replied by directing her to contact the Illinois Department of Financial and Professional Regulation so that *546 she could file a formal complaint. CMS also invited Chronis to follow up if she needed any additional assistance. More than six months later, Chronis filed a pro se complaint in state court, alleging malpractice against Alexander and the Health Center. Because the Health Center receives federal funds from the Public Health Service and Alexander is a Health Center employee, the United States substituted itself as the sole defendant and removed the case to federal court to proceed under the Federal Tort Claims Act. See ; The government then moved to dismiss, arguing that Chronis had not exhausted her administrative remedies because she had failed to first present her claim to the appropriate federal agency. It argued that her letter to CMS did not meet this requirement. The district court granted the government’s motion and dismissed the complaint. It explained that Chronis’s letter to CMS notified the agency only that she was pursuing “professional regulation allegations,” as opposed to making an administrative demand—and thus failed to present a claim. Chronis timely appealed pro se, and we appointed amicus curiae to assist in her appeal.2 Amicus argues that Chronis exhausted her administrative remedies when she sent the letter to CMS. We disagree. II. 1 Under the Federal Tort Claims Act, a plaintiff may bring a medical malpractice claim against the United States only after exhausting administrative remedies. (b), 2675. To exhaust administrative remedies, the plaintiff must “have first presented the claim to the appropriate Federal agency,” 2675, so that the agency has an opportunity to meaningfully consider and address the claim prior to suit, see ; (explaining that the agency must have “a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit”). A claim has been presented to a federal agency once the plaintiff submits “an executed Standard Form 95 or other written notification *547 of an incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. 14.2(a); see also 118 F.3d at We have held that this presentment requirement has four elements: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. 118 F.3d at Chronis’s letter fails to satisfy the second element of the presentment requirement. 2 Even liberally construed and read through the eyes of a “legally sophisticated reader,” Chronis’s letter does not contain a demand for money damages in a sum certain. See The closest that the letter comes to requesting any money at all is a vague request for help in “receiving restitution.” Perhaps recognizing that this vague reference falls short of the mark, amicus argues that Chronis implicitly demanded a sum certain because one of the letter’s many attachments revealed that she once sought $332 from the Health Center. But she simply attached this, along with what amicus acknowledged were as many as sixty pages of attachments, as background information. And in any event, although the dissent makes much of these attachments, we have said before that we will not force agencies to search for claims buried within pages and pages of attachments. See3 3 To be sure, failing to put a number on the amount demanded is not necessarily fatal. See Smoke It is “only fatal if it can be said to have ‘hindered’ or ‘thwarted’ the settlement process ‘that Congress created as a prelude to litigation.’ ” (quoting ); see also But a claimant who neither makes it clear that she is demanding money from the agency nor says how much she is demanding thwarts the settlement process envisioned by the FTCA. See Smoke How can an agency assess whether to make a settlement offer if it isn’t aware that a demand is being made, let alone how much is at stake? Take the facts here: believing that Chronis’s letter was simply requesting advice *548 about how to file an administrative complaint against the Health Center, the agency responded by providing information about how to file a formal complaint with the Illinois Department of Financial and Professional Regulation. The agency didn’t have a chance to begin the settlement process because nothing in the letter put it on notice that Chronis was asserting a claim against it. Chronis’s failure to make a clear demand of CMS “frustrate[d] the process of conciliation and settlement that the administrative demand is supposed to initiate.” See Indeed, the letter shows that Chronis wanted something other than money from CMS. The conclusion of her letter said it best: she wanted “guidance on how to proceed.” Requesting guidance is different than requesting money. And we have emphasized that a letter requesting “something other than money” fails to constitute an administrative demand for money. See ; Smoke 761 F.3d at (“Unfortunately for Smoke we have never held that a request for the return of property—unaccompanied by a statement that the claimant would seek money damages if the property was not returned—satisfies the [money-damages element].”). In a final effort to show that Chronis actually made a demand for monetary damages, amicus points to a single phrase in her letter stating that she had to “pay out of pocket for follow up that resulted from [Dr. Alexander’s] malpractice and gross negligence.” But this wasn’t a demand. It was just background information, explaining Chronis’s frustration with her care. Especially in light of the rest of the letter, which made clear that Chronis was seeking advice, this alone could not have put the agency on notice that Chronis intended to file an administrative demand. See We stress that our precedent does not make it difficult for pro se plaintiffs to sue the federal government. In almost any other circuit, Chronis’s claim would have failed for not including a sum certain. See, e.g., (“Providing a sum certain claim for damages is central to [the] policy of requiring presentment of claims to the appropriate federal agency because it enables the agency head to determine whether the claim can legally be settled by the agency and, if so, from where the payment should come [and] it goes without saying that an agency cannot consider settling a claim if it cannot ascertain the claim’s value.”); And as we noted earlier, we insist that pro se administrative complaints receive a liberal construction. See 746 F.3d at But there is a difference between generously construing a pro se complaint and effectively excusing a pro se plaintiff from the statutorily mandated exhaustion requirement.4 Characterizing Chronis’s request *549 for guidance as a demand for money would pull us into the latter territory. In short, Chronis “simply did not tell the government that [she] intended to bring a tort suit against it.” See Smoke She did not have to use lawyerly language to communicate that message. But she had to make it “clear to a legally sophisticated reader” that she was demanding payment from CMS. See Her failure to make a clear demand meant that CMS lacked “a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit.” 654 F.3d at ; see also 349 F.3d at We conclude with a final observation. This case has been litigated as if it is about Chronis’s frustrated effort to put the Department of Health and Human Services (through its sub-agency, CMS) on notice that she was demanding money from it. The real problem, however, is that Chronis had no idea that the Department might owe her money. It is unsurprising that Chronis, a pro se plaintiff, didn’t know that the Health Center and Alexander would be treated as Public Health Service employees covered by the Federal Tort Claims Act. That is a mistake that even an experienced medical malpractice lawyer can make. See, e.g., But the way to fix it is not for the court to read the presentment requirement out of the Federal Tort Claims Act. It is for the plaintiff to exhaust her administrative remedy once the error is discovered. If a plaintiff is within the statute of limitations, she can do that easily by asserting an administrative claim and returning to federal court if the claim does not settle. See, e.g.,5 If the statute of limitations has expired, it is still possible, though it is more difficult, to remedy the mistake: the plaintiff can assert an administrative claim, and if the agency denies it, she can sue again and ask the court to equitably toll the statutory clock. See United ; ; No one has discussed *550 the statute of limitations in this case, so it is unclear which situation Chronis is in. We raise the issue simply to note that this problem can be fixed, but not in the way that Chronis is seeking to do it. Because the district court correctly held that Chronis failed to satisfy the exhaustion requirement, its judgment is AFFIRMED. Rovner, Circuit Judge, dissenting. Our circuit applies a flexible standard to the exhaustion requirements for plaintiffs making claims under the Federal Tort Claims Act, excusing technical deficiencies so as not to preclude all but the savviest of plaintiffs from receiving a hearing on the merits. See as amended on denial of reh’g and reh’g en banc The majority’s decision demands far more of Chronis than our precedent requires. Chronis, a pro se plaintiff, knew little about the complicated legal world of suing the federal government. She was simply looking for a solution to her problem. She alleged that she had been harmed during a medical appointment at a health center that receives federal funds. She looked for a solution by repeatedly telephoning the doctor whom she alleged harmed her, but that doctor did not help, and indeed did not return any of her numerous calls. (R. 10 at 24, 45, 57). She made calls to employees at the health center that employed the doctor, but they would not help. She made several written complaints to the health center’s grievance committee, but it would not help. (R. 10 at 22, 45-47, 53-55, 56-59). She filed an appeal with the Illinois Department of Healthcare and Family Services, but it did not help. (R. 10 at 27-28). She mailed a submission to the Centers for Medicare and Medicaid Services (CMS), a federal administrator of the Medicaid Program, but it simply referred her to the Illinois Department of Financial and Professional Regulation. (R. 10 at 6). She filed a professional regulation complaint with the Illinois Department of Financial and Professional Regulation, but there is no record of any response. (R. 10 at 26). She filed a malpractice claim in state court, but the United States told her that was the wrong place too, and removed the case to federal court. And then, finally, the federal court told Chronis that, after all those calls, steps, letters, claims, and complaints, she had not given the government notice in the proper manner and it too would not help. Chronis’ odyssey is reminiscent of the famous children’s book by P.D. Eastman. In that book, a baby bird, having fallen out of the nest, is looking for a solution to its problem. Having just hatched, the baby bird knows little about the world, and thus asks for help in all the wrong places—asking a kitten, a hen, a dog, a cow, a boat, and an airplane, “Are you my mother?” Each answers indignantly that the baby bird has come to the wrong place for a solution. The last place the baby bird looks for a solution is with the powerful steam shovel. The steam shovel, knowing the rules and how to get things done, gently places the baby bird back into the nest. Unfortunately for Chronis, the steam shovel in her case just kept rolling along. The Federal Tort Claims Act requires a plaintiff to exhaust her administrative remedies and give notice to the government of her claim so that the agency can have a chance to settle “meritorious claims more quickly and without litigation.” ; 28 U.S.C. 2675(a). But we have long applied a flexible standard and have made clear that technical deficiencies in an administrative claim are not fatal, provided the “proper agency had the opportunity *551 to settle the claim for money damages before the point of suit.” Smoke Our flexible standard means that courts must construe pro se administrative complaints generously and deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader. 880 F.3d at Accordingly, a plaintiff may “litigate under the FTCA following an administrative demand” even if that initial administrative demand “does not comply with every jot and tittle of the rules defining a ‘claim.’ ” “Why,” we asked, “should courts stand on punctilious adherence to unimportant elements of the regulatory definition of a ‘claim’ under the FTCA?” Instead, we look to see whether the noncompliance has “hinder[ed] the settlement process that a claim is supposed to initiate;” if it has not, then there is no reason to foreclose litigation. And yet the majority appears to be requiring the “punctilious adherence” that our precedent rejects. Our cases make clear that a potential plaintiff’s claim needs to meet two requirements: she must specify the facts behind the claim, and make a demand for money. That is it. –731 The administrative regulation states that the claim must be one for “money damages in a sum certain.” 28 C.F.R. 14.2(a). But our court has held that the “sum certain” requirement is more bark than bite. We have declared unquestionably that “[f]ailure to specify a ‘sum certain’ is not fatal.” at2,3 In other words, the target is large and if the federal agency (which we presume to be legally sophisticated), sees the dart land anywhere on it, it has the chance to engage in the settlement process, and it has received a claim. No one disputes that Chronis notified the agency of the incident, and with good reason. In her November 7, submission to CMS, she described her “horrible” visit to the gynecologist, Dr. Alexander, that resulted in an alleged injury “that resulted from [Dr. Alexander’s] malpractice and gross negligence.” R. 10 at 41. She also enclosed her correspondence with the health center in which she detailed her injuries and her intent to pursue a claim.4 *552 The majority’s decision hangs on its conclusion that Chronis did not make a proper claim for money damages to CMS. Chronis’ letter to CMS, however, on the very first page asks for four things in a numbered list set out in its own paragraph, one of which (number 3) is “receiving restitution.” R. 10 at 41. The word “restitution” is common parlance for recompense for injury or loss. The OED defines it as “making reparation to a person for loss or injury previously inflicted.”5 Chronis’ request for restitution was coupled with other money-demanding language. She stated that she was injured and had to “pay out of pocket” due to the doctor’s “malpractice and gross negligence”—legal terms one uses when a person believes she has a claim against a tortfeasor. The letter is speckled with all manner of references to money damages: The malpractice “is costing me money,” she wrote to CMS. She later wrote of Dr. Alexander’s liability for malpractice. To state that a request for restitution along with talk of out-of-pocket loss, malpractice, and liability is not a money demand defies credulity, and resembles the “punctilious adherence” that this court has rejected. See 118 F.3d at –31. It is true that what Chronis stated in her letter to CMS was “I request your assistance in receiving restitution,” rather than stating “I want restitution from you, CMS.” See R. 10 at 41. The latter would have been more clear, for certain, but there is no legally relevant difference, particularly in a legal posture in which we are required to “deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader.” 880 F.3d at Chronis wanted restitution. She wanted CMS to help her get it. As far as she was concerned, CMS could do so either by pulling it out of its own pockets, if it was the responsible party, or helping her find the proper pocket, if it was not. The fact that Chronis was having trouble figuring out who the correct responsible party was, is not surprising. As the majority points out, “even an experienced medical malpractice lawyer” might not always be aware that a particular health center and its doctors “would be treated as Public Health Service employees covered by the Federal Tort Claims Act.” Majority Op. at 549. CMS, however, is the legally sophisticated, powerful steam shovel in this scenario. It knows that the federal government is the party responsible when someone files a malpractice claim against a federally funded community health center. In fact, based on this knowledge, after Chronis sued the health center in state court, the United States came forward and identified itself as the responsible party, substituted itself as the sole defendant, and removed the case to federal court. Chronis, on the other hand, is unfamiliar with the world of federal tort litigation. She had no way of knowing from where exactly the restitution should come, but she knew that she wanted the responsible party to provide it. This is why our case law is so solicitous of pro se plaintiffs facing sophisticated federal agencies. All that is required is enough to clue in the agency that the claimant has been injured and wants recompense. See ; see also We expect federal agencies to be legally sophisticated and take the minimal information provided to them and investigate. 349 F.3d at The request for money damages should have been clear from the language of the letter itself—the request for restitution coupled with claims of malpractice and notice about out-of-pocket expenses. But that is not all Chronis d She also notified CMS that she had “enclosed all relevant, previous correspondence between UIC Health, and myself.” R. 10 Attachments to her Federal Tort Claims Act claim become part of that claim. See, e.g., 349 F.3d at The correspondence Chronis attached included her August 25 complaint to the health center’s grievance committee in which she requested reimbursement of $332 for out-of-pocket costs, and referenced her right to “retain an attorney.” R. 10 59. In the letter she spoke of being out of pocket for medical fees, gas money, parking fees, and records fees “which I would like reimbursed.” She also made requests for money damages in other attachments. For example, in another letter attached to the submission to CMS—this one to the health center dated November 2, —she stated that because she “paid out of pocket [ ] for physical damage and medical care caused by your malpracticing physician, you owe me [ ] the reimbursement, as the doctor has already been pa” R. 10 at 45. She also stated, “your doctor’s willful negligent [sic] and malpractice makes you liable for reimbursement to me, personally for the out of pocket costs that I have incurred from your employee’s actions.” Even if the letter to CMS itself did not make a complete money demand (and I believe it did), the letter put CMS on notice that Chronis was seeking money and explicitly pointed to the attached documents for the details, including the sum certain. The majority asserts that we must not force agencies to search for claims buried within lengthy attachments. For this proposition, it cites We must reconcile this precedent, however, with a more recent one in which we explicitly stated that attachments to a Federal Tort Claims Act claim become part of that claim. 349 F.3d at ). The facts in Deloria, however, are so far removed from the present case to make that precedent of no use here. In Deloria, the plaintiff’s claim form asserted that Veterans Administration employees conspired to alter his medical records to deny him benefits, but later he filed suit in district court alleging malpractice and negligence by VA doctors. We rejected the malpractice and negligence claims as not properly presented to the agency. Deloria claimed that the sixty-three page attachment to his administrative claim for conspiracy to deprive him of benefits, if read closely, “foreshadowed” his current malpractice and negligence allegations. at We decided, however, that any “faint intimations of Deloria’s additional claims” that might be gleaned from his sixty-three page appendix did not constitute “the type of fair notice that Congress envisioned when it fashioned the presentment requirement.” Deloria’s claims, if they were made at all (and the court thought they were only barely hinted at in the attachments), were buried deep within his attachments and not made at all *554 on the face of his claim. Chronis, in contrast, is not asking the court to tease out a buried glint of a foreshadowed claim from her attachments; far from that. She squarely asserted a claim for “restitution” on the face of the claim itself, and pointed to the attachments only to reveal an actual dollar amount of damages—the absence of which, we have held, would not have been fatal to her claim in any event. This makes her case more similar to ’s who asserted a claim on the face of the submitted documents and pointed to the attachments for details. The majority concedes that Chronis made a demand for a sum certain to the health center, but denies that she made such a demand to CMS. But of course the federal agency knew that any claim made against a federally supported health center is a claim against the federal government. See Majority Op. at n.1. That is why the federal government moved to substitute itself in the litigation against the health center and remove the matter to federal court. The fact that the federal government was on the hook for malpractice claims alleged against the health center was information that was in the hands of the agency—an agency that had a duty to investigate Chronis’ claim. “After the claimant provides enough information to put a legally sophisticated reader on notice, it is up to the agency ‘to fill in the gaps, to the extent possible.’ ” 880 F.3d at (citing) The majority states that “Chronis wanted something other than money from CMS she wanted ‘guidance on how to proceed.’ ” Majority Op. at 548. It would be more accurate to say that she wanted something more than just money from CMS. We do not disagree that she wanted guidance, but she wanted guidance about how to proceed in order to receive the restitution that was listed as one of four enumerated solutions she requested on the front page of her letter. See R. 10 at 41. Guidance alone would not make her whole or pay the medical bills. The guidance was needed in order to recover for her loss. And when a person wants payment for medical malpractice from a designated federally-funded health center, the legally sophisticated reader (which we assume the agency to be) knows that payment must come from the federal government’s coffers. There is a reason we construe legal pleadings by pro se plaintiffs liberally. See Our court has long been “cognizant of the unique challenges facing pro se litigants.” Chronis claimed damages of $332. The fact that she needed reimbursement for the $332 medical and miscellaneous fees suggests that she could not afford to hire a lawyer to recover the sum. Clearly the $332 was a significant sum to Chronis, but few, if any lawyers would take a civil action to recover $332. Chronis had no choice but to seek a remedy on her own. And she is not alone. Few people can afford to pay an attorney for the amount of time it would take to recover such a small sum of money. And, as this case demonstrates all too well, modern litigation contains so many traps and barriers that it is near to impossible for non-lawyers to successfully navigate it. Despite Chronis’ valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums. *555 The majority says that all is not lost for Chronis, as there remains some possibility that she could squeeze her claim down another path—re-asserting her claim and relying on the Westfall Act to save any statute of limitations problems or by hoping for equitable tolling. Majority Op. at 549. The Westfall Act tolling provision applies only in very narrow conditions: it applies only if “the claim would have been timely had it been filed on the date the underlying civil action was commenced, and [ ] the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.” 28 U.S.C.A. 2679. And, of course, equitable tolling is reserved only for the rarest of instances in which a plaintiff can demonstrate some “extraordinary circumstances” beyond her control. We must remind ourselves that a key point of this case is that Chronis is a pro se plaintiff. Therefore the ordinary lenience we give Federal Tort Claim Act claims is magnified all the more. Chronis was unrepresented throughout the administrative process, through removal from state to federal district court, and in this court as well. (We requested and received the capable and helpful assistance of amicus curiae, Travis S. Andrews, for which we are extremely grateful. Chronis, however, still does not have retained counsel and is unlikely to find it for her $332 claim). Chronis struggled to file a simple valid Federal Tort Claims Act claim. The odds of her successfully navigating these more complex alternative pathways that the majority suggests are slim, at best. Chronis wrote, called, filled out complaint forms, and wrote again. She attached exhibits, correspondence, forms, and e-mail. According to the government, and now the majority opinion, however, this was not enough: Chronis did not ask in the proper way.6 She did not state that she sought “money damages” in a sum certain. Instead, she said “I request your assistance in receiving the restitution.” And the amount of that restitution that she sought was not in the letter itself, but in an attachment to the letter. The majority is requiring stricter adherence to the requirements than our law requires and we must be careful not to block access to relief for pro se plaintiffs. See 118 F.3d at –31. But if Chronis cannot jump through the proper hoops with her multi-page, well-documented, persistent, and multiple requests to myriad agencies, what pro se plaintiff would ever succeed? See, e.g., 880 F.3d at The majority’s decision has altered the requirements for plaintiffs making a claim pursuant to the Federal Tort Claims Act. No longer will we apply a flexible standard and overlook technical deficiencies; no longer will we construe pro se administrative complaints generously and “deem exhausted any claim fairly implicit in the facts that would be clear to a legally sophisticated reader.” 880 F.3d at We now require “punctilious adherence” to every “jot and tittle” of the rules defining a claim. I respectfully dissent.

Clanton v. United States

For four years, nurse practitioner Denise Jordan treated Kevin Clanton's severe hypertension. Jordan, an employee of the U.S. Public Health Service, failed to properly educate Clanton about his disease or to monitor its advancement. Clanton's hypertension eventually developed into Stage V kidney disease requiring dialysis and a transplant, and he sued the United States under the Federal Tort Claims Act for Jordan's negligent care. After a five-day bench trial, the district court found the United States liable. The court determined that Clanton had not contributed at all to his own injuries, noting that Clanton did not understand why it was so important to take his medication and to attend all appointments. The court awarded Clanton nearly $30 million in damages. The government *322 appeals the court's comparative-negligence determination and three aspects of the court's rulings on damages. We agree with the government that the court erred in its analysis of comparative negligence, so we vacate the judgment and remand for the court to apply the proper legal standard. As for damages, however, we find no reversible error. I. Kevin Clanton first visited nurse practitioner Denise Jordan for medical care after high blood pressure caused him to fail a pre-employment physical exam. Jordan, an employee of the Southern Illinois Healthcare Foundation, treated Clanton at two health clinics in East St. Louis, Illinois. At his first appointment, Jordan ordered routine lab work and diagnosed Clanton with obesity and hypertension. On Clanton's second visit, she gave him medication and asked him to come back in one week. Clanton did not return in a week; instead, he failed to return to see Jordan until he showed high blood pressure at another employment-related physical exam two years later. During the two years that followed, Clanton returned to Jordan for care ten times. Clanton often went long stretches without returning to see Jordan, and he failed to take his prescribed medicine if he was not feeling sick. For her part, Jordan never explained why it was important for Clanton to take his medications and to attend all appointments even if he was feeling fine. In fact, Jordan never educated Clanton about hypertension, its associated risks, or the factors that increased the risks for Clanton in particular. Three years after Clanton's first visit, Jordan ordered new lab tests, but she never reviewed the results. If Jordan had seen the lab work, she would have noticed signs of kidney disease and referred Clanton to a nephrologist. Instead, Clanton did not learn for another year and a half that his hypertension had caused serious damage to his kidneys. A doctor finally diagnosed Clanton with end-stage renal disease, and Clanton began hemodialysis treatment and joined the kidney transplant waiting list. Clanton eventually received a successful kidney transplant, but he will probably need further rounds of hemodialysis and one or more transplants in the future. Medicare Part B paid for Clanton's hemodialysis and may cover future rounds of hemodialysis as well. Clanton sued the United States under the Federal Tort Claims Act for Jordan's negligence because Jordan and her employer are employees of the U.S. Public Health Service. After a five-day bench trial, the district court determined that Jordan had deviated from the standard of care by failing to adequately educate Clanton about the severity of his condition, failing to refer him to a specialist, and failing to consult his lab reports. The court found no comparative negligence on Clanton's part and awarded him nearly $30 million in damages. In a motion to reconsider, the government challenged the court's damages rulings on three grounds. First, it argued that the court erred in rejecting the government's election to pay some future damages in periodic installments. Second, the government contended that the court should have conducted a damages comparison when it calculated noneconomic damages. And third, the government argued that the court should have deducted some of its damages obligations because Medicare had covered Clanton's hemodialysis. The district court agreed to conduct a damages comparison analysis, but after doing so, it declined to change its damages award. It refused to reconsider its rulings with respect to periodic payment and partial *323 offset. The government appeals the district court's determination that Clanton was not comparatively negligent and all three of its rulings on damages. II. 1 The government argues that the district court failed to apply the correct legal standard when it evaluated Clanton's comparative negligence. Because Jordan treated Clanton in Illinois, Illinois tort law applies. 28 U.S.C. § 1346(b)(1). We review de novo a district court's determination of state law in an FTCA case. Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001). 2 The parties agree on the proper standard to assess a plaintiff's comparative negligence under Illinois law. Courts must apply the familiar reasonable-person standard, an objective test that asks “whether plaintiff ... used that degree of care which an ordinarily careful person would have used ... under like circumstances.” McCarthy v. Kunicki, 355 Ill.App.3d 957, 291 Ill.Dec. 502, 823 N.E.2d 1088, 1101 (2005). But the district court here failed to articulate that standard—or to cite to any legal authority at all—in its discussion of Clanton's comparative negligence. 3 Clanton insists that the district court applied the correct standard in practice, even if not in name. But we are not convinced. The court focused its assessment of Clanton's negligence on his own limited understanding of his condition. Because Clanton didn't understand the seriousness of his severe hypertension, the court reasoned, he did not act negligently when he missed medical appointments or when he failed to take his medicine. But Clanton's subjective understanding does not properly end the inquiry. Illinois law requires the court to take the additional step of comparing Clanton's understanding of his condition to that of a reasonable person in his situation. Id. Clanton was in the position of a person whose caregiver had failed to provide information about the severity of his condition. Yet he also had a few external clues that he was seriously unwell—for example, two employment-related physicals showed that he had dangerously high blood pressure. The district court must determine how a reasonable person in the same position would have acted and compare Clanton's behavior to that objective standard of care. We vacate the judgment and remand to the district court so that it can assess Clanton's comparative negligence under Illinois's reasonable-person standard. III. 4 The government argues that on remand the district court should also revisit some of its rulings on damages. The government first focuses on the court's rejection of the government's election to pay Clanton some of the damages award in periodic installments. When the court calculated Clanton's damages, a since-repealed Illinois statute offered a medical-malpractice defendant that option. 735 ILCS 5/2-1705 to -1709 (repealed Aug. 16, 2019). But over the government's objection, the court held that the statute permitted it to reject the election—which the court did. The government contends that the court misread the statute. According to the government, the statute entitled it to elect a periodic-payment schedule, and in rejecting that election, the district court asserted discretion that the statute did not give it. Maybe so. But Illinois has now repealed the periodic-payment statute, and if periodic payment is no longer an option, it doesn't matter whether the district court made a mistake. Before we go any further, therefore, we must determine whether Illinois *324 law makes the repeal of this statute retroactive. 5 6 This question is controlled by Illinois's long-standing rule that the repeal of special remedial statutes applies retroactively to pending cases. A special remedial statute is one that creates a new remedy for one particular subject. See People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 320–21 (1939). In Shelton v. City of Chicago, for example, the Supreme Court of Illinois held that a law providing a damages remedy for victims of mob violence qualified as a special remedial statute. 42 Ill.2d 468, 248 N.E.2d 121, 123–24 (1969). Shelton points the way here. Like the statute in Shelton, the periodic-payment law created a new remedy for one particular subject—it provided a method for defendants to pay damages awards in medical-malpractice cases. Under Shelton’s reasoning, then, the periodic-payment statute qualifies as a special remedial statute. 7 When a special remedial statute is repealed, the effect under Illinois law is clear: “The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it can't be granted afterwards.” Lindheimer, 21 N.E.2d at 321. Since Illinois's periodic-payment statute was a special remedial statute with no saving clause, its repeal “stops all pending actions where [it] finds them.” Id. Periodic payment is no longer available to the government, even if the district court erred in interpreting the periodic-payment statute. Rather than addressing the rule about special remedial statutes, the government invokes Illinois's general rule about repeals: those “that are procedural in nature may be applied retroactively, while those that are substantive may not.” Caveney v. Bower, 207 Ill.2d 82, 278 Ill.Dec. 1, 797 N.E.2d 596, 602 (2003). Because Illinois's periodic-payment statute had substantive components—most notably, it entitled defendants to apply a 6% discount rate to certain damages—the government insists that the repeal does not retroactively eliminate the availability of periodic payment. The Caveney rule, however, is inapposite. The substantive/procedural distinction is the “clear legislative directive” of the general saving clause of section 4 of Illinois's Statute on Statutes, 5 ILCS 70/4. Caveney, 278 Ill.Dec. 1, 797 N.E.2d at 602. But the Supreme Court of Illinois has made clear that the general saving clause “does not apply to express repeals of special stat[u]tory remedies.” Shelton, 248 N.E.2d at 123; see also People v. Glisson, 202 Ill.2d 499, 270 Ill.Dec. 57, 782 N.E.2d 251, 257 (2002) (distinguishing repeals of special statutory remedies). It follows that even those special remedial statutes that seem more substantive than procedural are not applicable after repeal. Put differently, the rule regarding special remedial statutes is a carve-out from the general rule that the government invokes. The Supreme Court of Illinois reaffirmed the validity of this carve-out as recently as 2018. In Perry v. Department of Financial & Professional Regulation, the court held that the repeal of a particular provision of Illinois law was substantive and therefore applied only prospectively. 423 Ill.Dec. 848, 106 N.E.3d 1016, 1034 (2018). In explaining that conclusion, it emphasized that the provisions were not procedural in nature; “[n]or can [they] be said to be changes to special remedial statutes.” Id. Perry’s analysis thus confirms that remedial statutes are a category distinct from both substantive and procedural statutes. Perry went on to explain that “courts can apply retroactively statutory changes to procedural or remedial provisions.” Id. (quoting *325 Glisson, 270 Ill.Dec. 57, 782 N.E.2d at 257). The court thus reaffirmed that repeals of remedial statutes, like procedural repeals, apply retroactively to make the repealed statute unavailable in pending cases. Since periodic payment is no longer available to the government, the district court need not revisit its interpretation of the periodic-payment statute on remand. IV. The government's second challenge to the damages award addresses the district court's calculation of noneconomic damages. The district court initially awarded Clanton $13,750,000 in noneconomic damages. In response to the government's motion to reconsider, the court compared the damages in cases similar to Clanton's. The court employed two methods of comparison. The court first conducted a gross award comparison to determine that the initial award was appropriate. The court then confirmed that award using the ratio method. The government takes issue with both methods. We review the court's approach to determining damages with the recognition that the court's new comparative-negligence analysis may affect the actual damages values. A. 8 In its challenge to the gross award comparison, the government argues that the court improperly excluded two cases.1 To conduct a gross award comparison, a court compiles a list of cases from across districts that are factually similar to the one at hand. The court then culls from the list those cases that are sufficiently distinguishable to make them unhelpful comparators. Finally, it compares the total noneconomic damages awarded in those cases. Here, the district court began by creating a list of twenty potential cases for comparison. In its culling process, the court excluded two potential comparator cases that alleged torts occurring in Hawaii: Campano v. United States, No. 15-439, 2018 WL 1182571 (D. Haw. Mar. 7, 2018), and Mamea v. United States, 781 F. Supp. 2d 1025 (D. Haw. 2011). Hawaii caps the amount of pain-and-suffering damages that a court can award as part of the total noneconomic damages, but Illinois does not. The district court thus determined that Campano and Mamea were “not particularly useful” comparators because it had no way of determining the total noneconomic damages those plaintiffs would have won if the torts had occurred in Illinois. 9 The government argues that it was legal error to exclude Campano and Mamea from the comparison. We review a district court's damages methodology de novo, Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 419 (7th Cir. 2019), but we review the application of that methodology for abuse of discretion. The district court's methodology was gross award comparison; the court's decision to exclude Campano and Mamea was a choice it made in calculating damages using that methodology. We therefore review the exclusion of Campano and Mamea for abuse of discretion. Campano and Mamea might have provided the court with some information for comparison, but it is true that Hawaii's damages cap made them imperfect comparators. It was therefore within the district court's authority to determine that dissimilarities *326 between those cases and Clanton's outweighed their usefulness to the gross award comparison. The court did not abuse its discretion by excluding Campano and Mamea from its damages comparison. B. The government also objects to the court's second method of damages comparison: the ratio method. As with the gross award comparison method, a court applying the ratio method begins with a list of comparable cases. Yet rather than comparing the total noneconomic damages, the court compares the ratio between economic and noneconomic damages in the comparator cases. The court then works backward from the more concrete economic damages in the present case to arrive at a proportionate number for noneconomic damages. The government argues that the ratio method is inappropriate for calculating damages in a personal-injury case. We need not address that argument, though, because the court's application of the ratio method in this case did not affect the damages award. Cf. Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (declining to remand on a legal error of methodology in the calculation of attorneys’ fees because the error would not have affected the total fees awarded). The court first calculated noneconomic damages and then relied on the gross award comparison to determine how its damages determination compared to other similar cases. Only then did the court apply the ratio method, characterizing it as an alternative comparison methodology that merely confirmed the correctness of its award. In other words, the court gave every indication that it would have awarded the same damages if it had not applied the ratio method. There is therefore no reason for us to instruct the district court to do anything differently. V. 10 11 Finally, the government argues that the district court should have deducted a portion of Clanton's damages because Medicare Part B covered his hemodialysis. The collateral-source doctrine allows a tort victim whose out-of-pocket costs are compensated—for example, by insurance or a benefits program—to still recover his full losses from the tortfeasor if the compensation comes “from a source wholly independent of, and collateral to, the tortfeasor.” Wills v. Foster, 229 Ill.2d 393, 323 Ill.Dec. 26, 892 N.E.2d 1018, 1022 (2008) (citations omitted). The Supreme Court of Illinois has explained that “[t]he justification for [the collateral-source] rule is that the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons.” Wilson v. Hoffman Grp., Inc., 131 Ill.2d 308, 137 Ill.Dec. 579, 546 N.E.2d 524, 530 (1989). The government contends that Clanton's Medicare benefits do not come from a “collateral” source because general taxpayer revenues fully fund Clanton's damages and partially fund Medicare Part B, which fully covered (and may continue to cover) Clanton's hemodialysis. As the government sees it, Clanton will be double-dipping into the public purse if he receives the full amount of his damages. To prevent that, the government asked the district court to reduce Clanton's damages award by the fraction of his Medicare benefits that is traceable to general taxpayer funding. The district court refused to give the government this partial offset, characterizing the request as “an idea that was brought up in theory forty years ago, but, as best the Court can tell, has never been explicitly *327 approved of, much less implemented in practice.”2 The government urges us to reverse this ruling. 12 13 Whether a benefit is collateral to a damages payment is a question of state law. Molzof v. United States, 6 F.3d 461, 464 (7th Cir. 1993). To decide whether a payment is collateral, Illinois courts consider both the “source” of the benefits payments and the payments’ “purpose and nature.” Laird v. Ill. Cent. Gulf R.R. Co., 208 Ill.App.3d 51, 153 Ill.Dec. 94, 566 N.E.2d 944, 955 (1991). We therefore look to the source and the purpose and nature of Clanton's benefits to determine whether Illinois courts would grant the government the partial offset that it seeks. Laird v. Illinois Central Gulf Railroad Co. guides our analysis. In that case, a railroad was found liable to one of its employees for injuries that the employee's disability benefits had compensated. Both the railroad and the employee had contributed to the disability fund that covered the employee's injuries. 153 Ill.Dec. 94, 566 N.E.2d at 955. But the court decided that the defendant's contribution to the disability fund did not justify deducting any damages when the plaintiff had also contributed to the source of the benefits. Id. It focused on the purpose and nature of the disability benefits: they were meant to compensate employees for their service with the employer, and the plaintiff could collect them regardless of the defendant's liability. Id., 153 Ill.Dec. 94, 566 N.E.2d at 956. Thus, unlike a fund established to indemnify an employer from liability, the purpose of the disability benefits was independent of the obligation to pay damages to the plaintiff, which meant that they were collateral to the damages award. Id. Importantly, the court in Laird did not partially offset the defendant's damages to the extent of the defendant's contribution to the fund. Instead, the Laird court declined to deduct any damages at all. Both the source and the purpose of Clanton's benefits are analogous to the plaintiff's in Laird. Medicare Part B is funded in part by general taxpayer revenues and in part by monthly premiums paid by covered parties. So, as in Laird, the defendant and the plaintiff each contributed to the fund that paid Clanton's benefits.3 And as in Laird, the benefits here are not intended to indemnify the government. On the contrary, Clanton would have been able to collect his Medicare *328 benefits even if the government had not been liable for Jordan's negligence. We therefore agree with the district court that Clanton's benefits are collateral to his damages award under Illinois law, and the government is not entitled to a partial offset.

Barrett

majority

For four years, nurse practitioner Denise Jordan treated Kevin Clanton's severe hypertension. Jordan, an employee of the U.S. Public Health Service, failed to properly educate Clanton about his disease or to monitor its advancement. Clanton's hypertension eventually developed into Stage V kidney disease requiring dialysis and a transplant, and he sued the United States under the Federal Tort Claims Act for Jordan's negligent care. After a five-day bench trial, the district court found the United States liable. The court determined that Clanton had not contributed at all to his own injuries, noting that Clanton did not understand why it was so important to take his medication and to attend all appointments. The court awarded Clanton nearly $30 million in damages. The government *322 appeals the court's comparative-negligence determination and three aspects of the court's rulings on damages. We agree with the government that the court erred in its analysis of comparative negligence, so we vacate the judgment and remand for the court to apply the proper legal standard. As for damages, however, we find no reversible error. I. Kevin Clanton first visited nurse practitioner Denise Jordan for medical care after high blood pressure caused him to fail a pre-employment physical exam. Jordan, an employee of the Southern Illinois Healthcare Foundation, treated Clanton at two health clinics in East St. Louis, Illinois. At his first appointment, Jordan ordered routine lab work and diagnosed Clanton with obesity and hypertension. On Clanton's second visit, she gave him medication and asked him to come back in one week. Clanton did not return in a week; instead, he failed to return to see Jordan until he showed high blood pressure at another employment-related physical exam two years later. During the two years that followed, Clanton returned to Jordan for care ten times. Clanton often went long stretches without returning to see Jordan, and he failed to take his prescribed medicine if he was not feeling sick. For her part, Jordan never explained why it was important for Clanton to take his medications and to attend all appointments even if he was feeling fine. In fact, Jordan never educated Clanton about hypertension, its associated risks, or the factors that increased the risks for Clanton in particular. Three years after Clanton's first visit, Jordan ordered new lab tests, but she never reviewed the results. If Jordan had seen the lab work, she would have noticed signs of kidney disease and referred Clanton to a nephrologist. Instead, Clanton did not learn for another year and a half that his hypertension had caused serious damage to his kidneys. A doctor finally diagnosed Clanton with end-stage renal disease, and Clanton began hemodialysis treatment and joined the kidney transplant waiting list. Clanton eventually received a successful kidney transplant, but he will probably need further rounds of hemodialysis and one or more transplants in the future. Medicare Part B paid for Clanton's hemodialysis and may cover future rounds of hemodialysis as well. Clanton sued the United States under the Federal Tort Claims Act for Jordan's negligence because Jordan and her employer are employees of the U.S. Public Health Service. After a five-day bench trial, the district court determined that Jordan had deviated from the standard of care by failing to adequately educate Clanton about the severity of his condition, failing to refer him to a specialist, and failing to consult his lab reports. The court found no comparative negligence on Clanton's part and awarded him nearly $30 million in damages. In a motion to reconsider, the government challenged the court's damages rulings on three grounds. First, it argued that the court erred in rejecting the government's election to pay some future damages in periodic installments. Second, the government contended that the court should have conducted a damages comparison when it calculated noneconomic damages. And third, the government argued that the court should have deducted some of its damages obligations because Medicare had covered Clanton's hemodialysis. The district court agreed to conduct a damages comparison analysis, but after doing so, it declined to change its damages award. It refused to reconsider its rulings with respect to periodic payment and partial *323 offset. The government appeals the district court's determination that Clanton was not comparatively negligent and all three of its rulings on damages. II. 1 The government argues that the district court failed to apply the correct legal standard when it evaluated Clanton's comparative negligence. Because Jordan treated Clanton in Illinois, Illinois tort law applies. (b)(1). We review de novo a district court's determination of state law in an FTCA case. Del 2 The parties agree on the proper standard to assess a plaintiff's comparative negligence under Illinois law. Courts must apply the familiar reasonable-person standard, an objective test that asks “whether plaintiff used that degree of care which an ordinarily careful person would have used under like circumstances.” But the district court here failed to articulate that standard—or to cite to any legal authority at all—in its discussion of Clanton's comparative negligence. 3 Clanton insists that the district court applied the correct standard in practice, even if not in name. But we are not convinced. The court focused its assessment of Clanton's negligence on his own limited understanding of his condition. Because Clanton didn't understand the seriousness of his severe hypertension, the court reasoned, he did not act negligently when he missed medical appointments or when he failed to take his medicine. But Clanton's subjective understanding does not properly end the inquiry. Illinois law requires the court to take the additional step of comparing Clanton's understanding of his condition to that of a reasonable person in his situation. Clanton was in the position of a person whose caregiver had failed to provide information about the severity of his condition. Yet he also had a few external clues that he was seriously unwell—for example, two employment-related physicals showed that he had dangerously high blood pressure. The district court must determine how a reasonable person in the same position would have acted and compare Clanton's behavior to that objective standard of care. We vacate the judgment and remand to the district court so that it can assess Clanton's comparative negligence under Illinois's reasonable-person standard. III. 4 The government argues that on remand the district court should also revisit some of its rulings on damages. The government first focuses on the court's rejection of the government's election to pay Clanton some of the damages award in periodic installments. When the court calculated Clanton's damages, a since-repealed Illinois statute offered a medical-malpractice defendant that option. 735 ILCS 5/2-1705 to -1709 But over the government's objection, the court held that the statute permitted it to reject the election—which the court did. The government contends that the court misread the statute. According to the government, the statute entitled it to elect a periodic-payment schedule, and in rejecting that election, the district court asserted discretion that the statute did not give it. Maybe so. But Illinois has now repealed the periodic-payment statute, and if periodic payment is no longer an option, it doesn't matter whether the district court made a mistake. Before we go any further, therefore, we must determine whether Illinois *324 law makes the repeal of this statute retroactive. 5 6 This question is controlled by Illinois's long-standing rule that the repeal of special remedial statutes applies retroactively to pending cases. A special remedial statute is one that creates a new remedy for one particular subject. See People ex rel. In v. City of Chicago, for example, the Supreme Court of Illinois held that a law providing a damages remedy for victims of mob violence qualified as a special remedial statute. points the way here. Like the statute in the periodic-payment law created a new remedy for one particular subject—it provided a method for defendants to pay damages awards in medical-malpractice cases. Under ’s reasoning, then, the periodic-payment statute qualifies as a special remedial statute. 7 When a special remedial statute is repealed, the effect under Illinois law is clear: “The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it can't be granted afterwards.” Since Illinois's periodic-payment statute was a special remedial statute with no saving clause, its repeal “stops all pending actions where [it] finds them.” Periodic payment is no longer available to the government, even if the district court erred in interpreting the periodic-payment statute. Rather than addressing the rule about special remedial statutes, the government invokes Illinois's general rule about repeals: those “that are procedural in nature may be applied retroactively, while those that are substantive may not.” Because Illinois's periodic-payment statute had substantive components—most notably, it entitled defendants to apply a 6% discount rate to certain damages—the government insists that the repeal does not retroactively eliminate the availability of periodic payment. The Caveney rule, however, is inapposite. The substantive/procedural distinction is the “clear legislative directive” of the general saving clause of section 4 of Illinois's Statute on Statutes, 5 ILCS 70/4. Caveney, 797 N.E.2d at But the Supreme Court of Illinois has made clear that the general saving clause “does not apply to express repeals of special stat[u]tory remedies.” ; see also It follows that even those special remedial statutes that seem more substantive than procedural are not applicable after repeal. Put differently, the rule regarding special remedial statutes is a carve-out from the general rule that the government invokes. The Supreme Court of Illinois reaffirmed the validity of this carve-out as recently as In Perry v. Department of Financial & Professional Regulation, the court held that the repeal of a particular provision of Illinois law was substantive and therefore applied only prospectively. In explaining that conclusion, it emphasized that the provisions were not procedural in nature; “[n]or can [they] be said to be changes to special remedial statutes.” Perry’s analysis thus confirms that remedial statutes are a category distinct from both substantive and procedural statutes. Perry went on to explain that “courts can apply retroactively statutory changes to procedural or remedial provisions.” (quoting *325 Glisson, 782 N.E.2d at ). The court thus reaffirmed that repeals of remedial statutes, like procedural repeals, apply retroactively to make the repealed statute unavailable in pending cases. Since periodic payment is no longer available to the government, the district court need not revisit its interpretation of the periodic-payment statute on remand. IV. The government's second challenge to the damages award addresses the district court's calculation of noneconomic damages. The district court initially awarded Clanton $13,750,000 in noneconomic damages. In response to the government's motion to reconsider, the court compared the damages in cases similar to Clanton's. The court employed two methods of comparison. The court first conducted a gross award comparison to determine that the initial award was appropriate. The court then confirmed that award using the ratio method. The government takes issue with both methods. We review the court's approach to determining damages with the recognition that the court's new comparative-negligence analysis may affect the actual damages values. A. 8 In its challenge to the gross award comparison, the government argues that the court improperly excluded two cases.1 To conduct a gross award comparison, a court compiles a list of cases from across districts that are factually similar to the one at hand. The court then culls from the list those cases that are sufficiently distinguishable to make them unhelpful comparators. Finally, it compares the total noneconomic damages awarded in those cases. Here, the district court began by creating a list of twenty potential cases for comparison. In its culling process, the court excluded two potential comparator cases that alleged torts occurring in Hawaii: WL 1181 and Hawaii caps the amount of pain-and-suffering damages that a court can award as part of the total noneconomic damages, but Illinois does not. The district court thus determined that Campano and Mamea were “not particularly useful” comparators because it had no way of determining the total noneconomic damages those plaintiffs would have won if the torts had occurred in Illinois. 9 The government argues that it was legal error to exclude Campano and Mamea from the comparison. We review a district court's damages methodology de novo, Kreg Therapeutics, but we review the application of that methodology for abuse of discretion. The district court's methodology was gross award comparison; the court's decision to exclude Campano and Mamea was a choice it made in calculating damages using that methodology. We therefore review the exclusion of Campano and Mamea for abuse of discretion. Campano and Mamea might have provided the court with some information for comparison, but it is true that Hawaii's damages cap made them imperfect comparators. It was therefore within the district court's authority to determine that dissimilarities *326 between those cases and Clanton's outweighed their usefulness to the gross award comparison. The court did not abuse its discretion by excluding Campano and Mamea from its damages comparison. B. The government also objects to the court's second method of damages comparison: the ratio method. As with the gross award comparison method, a court applying the ratio method begins with a list of comparable cases. Yet rather than comparing the total noneconomic damages, the court compares the ratio between economic and noneconomic damages in the comparator cases. The court then works backward from the more concrete economic damages in the present case to arrive at a proportionate number for noneconomic damages. The government argues that the ratio method is inappropriate for calculating damages in a personal-injury case. We need not address that argument, though, because the court's application of the ratio method in this case did not affect the damages award. Cf. The court first calculated noneconomic damages and then relied on the gross award comparison to determine how its damages determination compared to other similar cases. Only then did the court apply the ratio method, characterizing it as an alternative comparison methodology that merely confirmed the correctness of its award. In other words, the court gave every indication that it would have awarded the same damages if it had not applied the ratio method. There is therefore no reason for us to instruct the district court to do anything differently. V. 10 11 Finally, the government argues that the district court should have deducted a portion of Clanton's damages because Medicare Part B covered his hemodialysis. The collateral-source doctrine allows a tort victim whose out-of-pocket costs are compensated—for example, by insurance or a benefits program—to still recover his full losses from the tortfeasor if the compensation comes “from a source wholly independent of, and collateral to, the tortfeasor.” The Supreme Court of Illinois has explained that “[t]he justification for [the collateral-source] rule is that the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons.” The government contends that Clanton's Medicare benefits do not come from a “collateral” source because general taxpayer revenues fully fund Clanton's damages and partially fund Medicare Part B, which fully covered (and may continue to cover) Clanton's hemodialysis. As the government sees it, Clanton will be double-dipping into the public purse if he receives the full amount of his damages. To prevent that, the government asked the district court to reduce Clanton's damages award by the fraction of his Medicare benefits that is traceable to general taxpayer funding. The district court refused to give the government this partial offset, characterizing the request as “an idea that was brought up in theory forty years ago, but, as best the Court can tell, has never been explicitly *327 approved of, much less implemented in practice.”2 The government urges us to reverse this ruling. 12 13 Whether a benefit is collateral to a damages payment is a question of state law. To decide whether a payment is collateral, Illinois courts consider both the “source” of the benefits payments and the payments’ “purpose and nature.” We therefore look to the source and the purpose and nature of Clanton's benefits to determine whether Illinois courts would grant the government the partial offset that it seeks. Laird v. Illinois Central Gulf Railroad Co. guides our analysis. In that case, a railroad was found liable to one of its employees for injuries that the employee's disability benefits had compensated. Both the railroad and the employee had contributed to the disability fund that covered the employee's injuries. 566 N.E.2d at But the court decided that the defendant's contribution to the disability fund did not justify deducting any damages when the plaintiff had also contributed to the source of the benefits. It focused on the purpose and nature of the disability benefits: they were meant to compensate employees for their service with the employer, and the plaintiff could collect them regardless of the defendant's liability. Thus, unlike a fund established to indemnify an employer from liability, the purpose of the disability benefits was independent of the obligation to pay damages to the plaintiff, which meant that they were collateral to the damages award. Importantly, the court in Laird did not partially offset the defendant's damages to the extent of the defendant's contribution to the fund. Instead, the Laird court declined to deduct any damages at all. Both the source and the purpose of Clanton's benefits are analogous to the plaintiff's in Laird. Medicare Part B is funded in part by general taxpayer revenues and in part by monthly premiums paid by covered parties. So, as in Laird, the defendant and the plaintiff each contributed to the fund that paid Clanton's benefits.3 And as in Laird, the benefits here are not intended to indemnify the government. On the contrary, Clanton would have been able to collect his Medicare *328 benefits even if the government had not been liable for Jordan's negligence. We therefore agree with the district court that Clanton's benefits are collateral to his damages award under Illinois law, and the government is not entitled to a partial offset.

Cleven v. Soglin

Gary Cleven, a stagehand for the City of Madison, Wisconsin, has been in a long-running dispute with the City about his participation in the Wisconsin Retirement System. At the outset of his employment with the City, it erroneously characterized him as an independent contractor ineligible for retirement benefits. When that mistake was rectified twenty years later, the City delayed reporting his backdated hours and wages to the Wisconsin Retirement System because of a subsidiary dispute about who was responsible for paying Cleven's overdue employee contribution to the fund. Cleven argues that this delay effectively deprived him of five years of retirement without due process of law. Even assuming that the City's delay deprived Cleven of a property right, he was not denied due process. According to Cleven's account, the City disobeyed an order from a state entity when it failed to immediately report his hours and wages to the Wisconsin Retirement System. But if the City deviated from the procedure that state law required it to follow, Cleven's right to obtain a writ of mandamus was an adequate remedy. We therefore affirm the district court's grant of summary judgment to the City. I. Gary Cleven began working as a stagehand for the City of Madison, Wisconsin in the early 1980s. When Cleven began his employment, the City classified him as an independent contractor. Because only employees are eligible to participate in the Wisconsin Retirement System, the City did not enroll him in it. But twenty years later, it turned out that Cleven had been misclassified—he had been an employee all along. That determination led to a messy dispute with the City about the terms of Cleven's participation in the Wisconsin Retirement System. A union that represented various theatrical employees prompted the change in Cleven's classification.1 In 2006, the union petitioned the Wisconsin Employment Relations Commission for an election to determine whether stagehands working for the City wished to be represented for purposes of collective bargaining. The City opposed the petition, arguing that the stagehands were independent contractors, not employees. The Commission sided with the union and granted the petition for an *616 election. The stagehands voted to be represented by the union, the union bargained with the City on the stagehands’ behalf, and the City agreed to review the stagehands’ hours to determine whether they qualified for enrollment in the Wisconsin Retirement System. (The City determined that Cleven qualified as of December 27, 2009.) In addition, the City agreed to pay the stagehands’ share of the required contribution to the Wisconsin Retirement System starting on January 1, 2010. But those commitments were forward-looking. The City reached no agreement with the union about whether it would backdate the stagehands’ hours and earnings for the period before the effective date of the labor agreement. Cleven took that question to the Employee Trust Funds Board, the state entity designated to hear appeals from employer determinations of eligibility for the Wisconsin Retirement System. He asked the Board to order the City to retroactively credit his hours and earnings for the period between January 1, 1983 and December 27, 2009; he also asked it to require the City to pay his share of the past-due mandatory contribution. Because Cleven had never paid into the system, his overdue share was substantial—roughly $200,000. In March 2013, the Board gave Cleven half of what he wanted: it concluded that he had become eligible to enroll in the Wisconsin Retirement System on January 1, 1983, but it declined to decide who was responsible for paying the past-due employee contribution. It said that the City had no statutory obligation to pay and that the Board had no authority to determine whether equitable principles required the City to do so. Cleven sought review of the Board's decision in a state court, which dismissed the appeal on procedural grounds. Cleven appealed the dismissal, the Wisconsin Court of Appeals affirmed it, and the Wisconsin Supreme Court denied his petition for review. By the time Cleven completed his run through the state court system, it was May 2015. While Cleven's appeal was pending in the state courts, the City stalled. Although the Board had not decided whether the City had to pay Cleven's employee contribution, it had ordered the City to report Cleven's hours and earnings between 1983 and 2010—the period in which he was eligible for but not enrolled in the Wisconsin Retirement System. But the City didn't do it. As soon as it reported Cleven's hours to the Wisconsin Retirement System, the City would receive an invoice for both the employer and employee contributions. In the normal course, the employee contribution consisted of money that the City had withheld from the employee's paychecks; in Cleven's situation, the City had never collected any money. If the City paid Cleven's share and the state court later determined that Cleven was responsible for it, the City would have to sue Cleven for reimbursement to recover the money. Rather than take that risk, the City chose to let the state court litigation play out before it reported his hours and earnings. Less than one month after the state supreme court denied his petition for review, Cleven filed another action in state court seeking a writ of mandamus that would require the City to report his hours and earnings since January 1, 1983 to the Wisconsin Retirement System. In April 2016, the state circuit court ordered the City to “immediately (with all reasonable dispatch) report [Cleven's hours and wages] to the [Wisconsin Retirement System] so [he] can be enrolled as a participating employee as of January 1, 1983.” The City complied, and the Wisconsin Retirement System invoiced it for both the employer and employee contributions. After the City paid the bill, it joined Cleven *617 as a third-party defendant in parallel litigation about whether the stagehands owed the past-due employee contribution. The City lost in the trial court, and its appeal of that decision is currently pending. In June 2016, a few days after the City finally reported Cleven's hours and earnings to the Wisconsin Retirement System, Cleven sued the City and two of its employees under 42 U.S.C. § 1983, alleging that they violated his procedural due process rights under the Fourteenth Amendment. Cleven said that he had wanted to retire on December 31, 2011, but because he couldn't afford to retire until he received his pension, the City's delay in reporting his hours forced him to wait until December 31, 2016. Thus, Cleven claimed, the City had taken five years of his retirement without a predeprivation hearing about whether it was entitled to “tak[e his] retirement benefits hostage” until the state decided who had to pay the overdue employee contribution. The district court entered summary judgment for the City, holding that Cleven's ability to seek a writ of mandamus was adequate postdeprivation process. II. 1 2 To establish a procedural due process violation, Cleven must show a deprivation of a right and a denial of due process. Schroeder v. City of Chicago, 927 F.2d 957, 959 (7th Cir. 1991). Like the district court, we will assume for the sake of argument that Cleven lost a property right when his retirement was delayed. Our focus is on whether he was denied due process when the City temporarily took that right. Cleven does not dispute that he received adequate process with respect to the fundamental issue of whether he was an “employee” entitled to participate in the Wisconsin Retirement System. When Cleven thought that he was owed retirement benefits that the City had not given him, he sought and received a hearing before the Employee Trust Funds Board. That proceeding was successful; the Board ordered the City to report his hours to the Wisconsin Retirement System. Cleven complains, however, that the Due Process Clause guaranteed him a hearing before the City refused to obey the Board's order. Yet the description of his desired procedure does not include a hearing. He asserts that “[t]he appropriate procedure was for the City to report [his] hours and earnings to the [Wisconsin Retirement System] as ordered by the Board of Employee Trust Funds,” pay his share, and sue him afterward to recover the money. In other words, Cleven wanted the City to follow the Board's directive. This wasn't a matter of resolving whether the City had to report his hours; the Board had already said that it did. This was a matter of forcing the City's compliance with that ruling. 3 The state offered him a procedure to accomplish exactly that: a writ of mandamus. Although Cleven does not say why, he let two years go by before he took advantage of that procedure. He responded to the Board's order by asking a state court to review it, and he did not seek a writ of mandamus until that action had run its course. As we have said before, a plaintiff “simply cannot refuse to pursue the available state remedies and then come into federal court complaining that he was not afforded due process.” Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951, 955 (7th Cir. 1988). Cleven says that a writ of mandamus is insufficient because he was entitled to a predeprivation remedy. He is incorrect. On Cleven's own account, the City acted without authorization when it failed to immediately comply with the state entity's directive that it report Cleven's hours and *618 earnings to the Wisconsin Retirement System. And when Cleven finally sought a writ of mandamus, the state court agreed. When officials act without authorization, “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Cleven argues that this principle doesn't apply because the City and its employees intentionally chose this course. But as the Supreme Court has explained, there is “no logical distinction between negligent and intentional deprivations of property insofar as the ‘practicability’ of affording predeprivation process is concerned.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In this situation, a meaningful postdeprivation hearing satisfies due process, id., and the State provided one here. See Schroeder, 927 F.2d at 960 (holding that mandamus is a sufficient postdeprivation remedy for city officials’ unauthorized delay of a benefits hearing); Kauth, 852 F.2d at 955–56 (“[I]f a state provides an adequate means of redressing a property deprivation, the victim of the deprivation has been accorded due process of law.”).

Barrett

majority

Gary Cleven, a stagehand for the City of Madison, Wisconsin, has been in a long-running dispute with the City about his participation in the Wisconsin Retirement System. At the outset of his employment with the City, it erroneously characterized him as an independent contractor ineligible for retirement benefits. When that mistake was rectified twenty years later, the City delayed reporting his backdated hours and wages to the Wisconsin Retirement System because of a subsidiary dispute about who was responsible for paying Cleven's overdue employee contribution to the fund. Cleven argues that this delay effectively deprived him of five years of retirement without due process of law. Even assuming that the City's delay deprived Cleven of a property right, he was not denied due process. According to Cleven's account, the City disobeyed an order from a state entity when it failed to immediately report his hours and wages to the Wisconsin Retirement System. But if the City deviated from the procedure that state law required it to follow, Cleven's right to obtain a writ of mandamus was an adequate remedy. We therefore affirm the district court's grant of summary judgment to the City. I. Gary Cleven began working as a stagehand for the City of Madison, Wisconsin in the early 1980s. When Cleven began his employment, the City classified him as an independent contractor. Because only employees are eligible to participate in the Wisconsin Retirement System, the City did not enroll him in it. But twenty years later, it turned out that Cleven had been misclassified—he had been an employee all along. That determination led to a messy dispute with the City about the terms of Cleven's participation in the Wisconsin Retirement System. A union that represented various theatrical employees prompted the change in Cleven's classification.1 In 2006, the union petitioned the Wisconsin Employment Relations Commission for an election to determine whether stagehands working for the City wished to be represented for purposes of collective bargaining. The City opposed the petition, arguing that the stagehands were independent contractors, not employees. The Commission sided with the union and granted the petition for an *616 election. The stagehands voted to be represented by the union, the union bargained with the City on the stagehands’ behalf, and the City agreed to review the stagehands’ hours to determine whether they qualified for enrollment in the Wisconsin Retirement System. (The City determined that Cleven qualified as of December 27, 2009.) In addition, the City agreed to pay the stagehands’ share of the required contribution to the Wisconsin Retirement System starting on January 1, 2010. But those commitments were forward-looking. The City reached no agreement with the union about whether it would backdate the stagehands’ hours and earnings for the period before the effective date of the labor agreement. Cleven took that question to the Employee Trust Funds Board, the state entity designated to hear appeals from employer determinations of eligibility for the Wisconsin Retirement System. He asked the Board to order the City to retroactively credit his hours and earnings for the period between January 1, 1983 and December 27, 2009; he also asked it to require the City to pay his share of the past-due mandatory contribution. Because Cleven had never paid into the system, his overdue share was substantial—roughly $200,000. In March 2013, the Board gave Cleven half of what he wanted: it concluded that he had become eligible to enroll in the Wisconsin Retirement System on January 1, 1983, but it declined to decide who was responsible for paying the past-due employee contribution. It said that the City had no statutory obligation to pay and that the Board had no authority to determine whether equitable principles required the City to do so. Cleven sought review of the Board's decision in a state court, which dismissed the appeal on procedural grounds. Cleven appealed the dismissal, the Wisconsin Court of Appeals affirmed it, and the Wisconsin Supreme Court denied his petition for review. By the time Cleven completed his run through the state court system, it was May 2015. While Cleven's appeal was pending in the state courts, the City stalled. Although the Board had not decided whether the City had to pay Cleven's employee contribution, it had ordered the City to report Cleven's hours and earnings between 1983 and 2010—the period in which he was eligible for but not enrolled in the Wisconsin Retirement System. But the City didn't do it. As soon as it reported Cleven's hours to the Wisconsin Retirement System, the City would receive an invoice for both the employer and employee contributions. In the normal course, the employee contribution consisted of money that the City had withheld from the employee's paychecks; in Cleven's situation, the City had never collected any money. If the City paid Cleven's share and the state court later determined that Cleven was responsible for it, the City would have to sue Cleven for reimbursement to recover the money. Rather than take that risk, the City chose to let the state court litigation play out before it reported his hours and earnings. Less than one month after the state supreme court denied his petition for review, Cleven filed another action in state court seeking a writ of mandamus that would require the City to report his hours and earnings since January 1, 1983 to the Wisconsin Retirement System. In April 2016, the state circuit court ordered the City to “immediately (with all reasonable dispatch) report [Cleven's hours and wages] to the [Wisconsin Retirement System] so [he] can be enrolled as a participating employee as of January 1, 1983.” The City complied, and the Wisconsin Retirement System invoiced it for both the employer and employee contributions. After the City paid the bill, it joined Cleven *617 as a third-party defendant in parallel litigation about whether the stagehands owed the past-due employee contribution. The City lost in the trial court, and its appeal of that decision is currently pending. In June 2016, a few days after the City finally reported Cleven's hours and earnings to the Wisconsin Retirement System, Cleven sued the City and two of its employees under alleging that they violated his procedural due process rights under the Fourteenth Amendment. Cleven said that he had wanted to retire on December 31, 2011, but because he couldn't afford to retire until he received his pension, the City's delay in reporting his hours forced him to wait until December 31, 2016. Thus, Cleven claimed, the City had taken five years of his retirement without a predeprivation hearing about whether it was entitled to “tak[e his] retirement benefits hostage” until the state decided who had to pay the overdue employee contribution. The district court entered summary judgment for the City, holding that Cleven's ability to seek a writ of mandamus was adequate postdeprivation process. II. 1 2 To establish a procedural due process violation, Cleven must show a deprivation of a right and a denial of due process. Like the district court, we will assume for the sake of argument that Cleven lost a property right when his retirement was delayed. Our focus is on whether he was denied due process when the City temporarily took that right. Cleven does not dispute that he received adequate process with respect to the fundamental issue of whether he was an “employee” entitled to participate in the Wisconsin Retirement System. When Cleven thought that he was owed retirement benefits that the City had not given him, he sought and received a hearing before the Employee Trust Funds Board. That proceeding was successful; the Board ordered the City to report his hours to the Wisconsin Retirement System. Cleven complains, however, that the Due Process Clause guaranteed him a hearing before the City refused to obey the Board's order. Yet the description of his desired procedure does not include a hearing. He asserts that “[t]he appropriate procedure was for the City to report [his] hours and earnings to the [Wisconsin Retirement System] as ordered by the Board of Employee Trust Funds,” pay his share, and sue him afterward to recover the money. In other words, Cleven wanted the City to follow the Board's directive. This wasn't a matter of resolving whether the City had to report his hours; the Board had already said that it did. This was a matter of forcing the City's compliance with that ruling. 3 The state offered him a procedure to accomplish exactly that: a writ of mandamus. Although Cleven does not say why, he let two years go by before he took advantage of that procedure. He responded to the Board's order by asking a state court to review it, and he did not seek a writ of mandamus until that action had run its course. As we have said before, a plaintiff “simply cannot refuse to pursue the available state remedies and then come into federal court complaining that he was not afforded due process.” Cleven says that a writ of mandamus is insufficient because he was entitled to a predeprivation remedy. He is incorrect. On Cleven's own account, the City acted without authorization when it failed to immediately comply with the state entity's directive that it report Cleven's hours and *618 earnings to the Wisconsin Retirement System. And when Cleven finally sought a writ of mandamus, the state court agreed. When officials act without authorization, “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” overruled in part on other grounds, Cleven argues that this principle doesn't apply because the City and its employees intentionally chose this course. But as the Supreme Court has explained, there is “no logical distinction between negligent and intentional deprivations of property insofar as the ‘practicability’ of affording predeprivation process is concerned.” In this situation, a meaningful postdeprivation hearing satisfies due process, and the State provided one here. See ; 852 F.2d at –56 (“[I]f a state provides an adequate means of redressing a property deprivation, the victim of the deprivation has been accorded due process of law.”).

Conroy v. Thompson

Bill Conroy filed a petition for a writ of habeas corpus in 2016 to challenge an Illinois state court conviction from 2007. Although he admitted that he had not filed his petition within the one-year limitations period, he claimed that his mental condition justified equitable tolling. The district court disagreed, concluding both that his petition was untimely and that he had not met the high bar necessary to establish equitable tolling. We agree and affirm. I. In 2004, Bill Conroy was indicted in Illinois state court for solicitation of murder, solicitation of murder for hire, and attempted first-degree murder. Before trial, the state court held a hearing to determine his competency to stand trial. After hearing from two state experts and one defense expert, the court determined that Conroy was fit to stand trial. On May 8, 2007, Conroy pleaded guilty and was sentenced to thirty years in prison. He did not appeal. Later in 2007, Conroy received mental health services through the Illinois Department of Corrections and was diagnosed with depressive and schizoaffective disorders. In 2008, however, Conroy's mental evaluations indicated that he was “alert and oriented,” that his “[t]hought processes were logical, coherent and goal directed,” and that his “[i]nsight and judgment were fair.” His psychiatrist also noted in one 2008 report that Conroy “denied any auditory [or] visual hallucinations or delusions.” In 2009, Conroy filed a postconviction petition in state court arguing, among other things, that his counsel provided ineffective assistance by not investigating his case and by coercing him into pleading guilty. The state trial court rejected Conroy's arguments, and the state appellate court affirmed. In 2014, Conroy filed several other postconviction motions in state court, which were denied. Throughout this time, Conroy unsuccessfully sought help with his legal issues from the prison library staff. He also says that because he had no money, he was unable to hire “prison lawyers” to help him. In 2016, Conroy filed a pro se petition in federal court under 28 U.S.C. § 2254, which permits persons in state custody to apply for habeas relief on the ground that their custody violates the Constitution or laws of the United States. Because Conroy named the wrong respondent, however, the district court dismissed his petition without prejudice and appointed a federal public defender to help him amend it. In the amended petition, Conroy alleged that his trial counsel was ineffective in arguing that he was not fit to stand trial. Conroy also argued that the timing for filing his petition should be equitably tolled because his mental limitations prevented him from understanding his legal rights from 2008 until he filed his petition in 2016. The state nevertheless moved to dismiss the petition as untimely and argued that Conroy was not entitled to equitable tolling. The district court agreed. It determined that Conroy's mental limitations were not an extraordinary circumstance *820 and that he had failed to show that he had been reasonably diligent in pursing his claim throughout the limitations period. So there was no basis for equitably tolling the time for filing the petition. The court also denied Conroy a certificate of appealability. Conroy sought a certificate of appealability, and we granted it on two questions: (1) whether Conroy is entitled to equitable tolling, and (2) “whether trial counsel was ineffective for not arguing that the state psychologist's evaluation revealed” that Conroy was unfit to stand trial. Because we agree with the district court that Conroy's untimely petition is not entitled to equitable tolling, we need only address the former. II. 1 The government initially argued that Conroy's amended petition constituted a second or successive petition because the district court dismissed his first petition without prejudice for failing to name the correct respondent. If that were true, it would have required Conroy to get our permission before filing with the district court. See 28 U.S.C. § 2244(b)(3). But as the government correctly acknowledged before oral argument, when a district court dismisses a petition without prejudice because of a technical or procedural deficiency, the cured second petition counts as the first. See Pavlovsky v. VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005). Conroy's petition, therefore, is not a second or successive petition, and his appeal is properly before us. 2 We next consider the timeliness of Conroy's § 2254 petition. We review for abuse of discretion the district court's decision concluding that Conroy's untimely petition was not entitled to equitable tolling, see Lombardo v. United States, 860 F.3d 547, 551 (7th Cir. 2017), and we see none here. A state prisoner generally has only one year from the date that his conviction becomes final to seek federal habeas corpus relief. § 2244(d)(1)(A). Conroy's conviction became final on June 7, 2007, so the limitations period for filing a habeas petition expired on June 7, 2008. Conroy didn't file his habeas petition until 2016. Although Conroy admits that he did not meet the one-year time bar, he argues that mental limitations—that he is illiterate, has emotional issues, and was diagnosed with schizoaffective disorder—entitle him to equitable tolling. 3 4 5 A petitioner is entitled to equitable tolling only if he can show both that extraordinary circumstances prevented him from timely filing and that he has been diligently pursuing his rights. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). We have repeatedly emphasized that such tolling is rare—reserved for those circumstances “far beyond the litigant's control.” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (citation omitted). Mental incompetency may constitute an extraordinary circumstance that justifies equitable tolling, but “only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.” Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). We've said that this means that the petitioner must provide evidence establishing that his mental issues “actually impaired his ability to pursue his claims” throughout the limitations period. See Mayberry v. Dittmann, 904 F.3d 525, 531 (7th Cir. 2018) (quoting Obriecht v. Foster, 727 F.3d 744, 751 (7th Cir. 2013)); see also Davis v. Humphreys, 747 F.3d 497, 500 (7th Cir. 2014) (explaining that the petitioner must show “[s]omething more than but-for causation”). *821 6 Conroy's evidence falls far short of this standard. We must note first that Conroy was found competent to stand trial by the Illinois state court in 2006. And he has not provided evidence establishing that his mental issues drastically deteriorated after that presumptively correct finding. See 28 U.S.C. § 2254(e). In fact, the record reveals that the opposite is true. Take the fact that, in 2008, Conroy's psychiatrist found that his “[t]hought processes were logical, coherent and goal directed” and that his “[i]nsight and judgment were fair.” This determination casts serious doubt on Conroy's assertion that he had the kind of mental deficiency that would constitute an extraordinary circumstance. Moreover, Conroy filed both a post-conviction petition and a request for counsel with the state court in 2009, and he filed several additional motions with the state court in 2014. These filings show that Conroy had the capacity to engage in the legal process. See Obriecht, 727 F.3d at 751 (concluding that the petitioner failed to establish a basis for equitable tolling when he “filed direct and collateral appeals in state court between 2003 and June 2005, the period during which he asserts that his mental health prevented him from seeking state review of his claims in this case”). Finally, most damning of all, Conroy originally attributed his failure to timely file his habeas petition not to mental limitation, but to the fact that he “was unaware of time limits.” See Davis, 747 F.3d at 500 (“[P]risoners' shortcomings of knowledge about the AEDPA or the law of criminal procedure in general do not support tolling.”). Given these facts, the district court was well within its discretion to conclude that Conroy failed to prove that extraordinary circumstances prevented him from timely filing. See Mayberry, 904 F.3d at 531 (“[A]lthough [the petitioner's] mental limitations undoubtedly made filing a petition for habeas corpus difficult, the district court did not abuse its discretion by concluding that he failed to show how those difficulties affected him during the relevant time period to such an extent that he qualifies for the extraordinary remedy of equitable tolling.”). We thus need not consider whether he diligently pursued his rights. We AFFIRM the district court's judgment concluding that Conroy's untimely petition did not warrant equitable tolling.

Barrett

majority

Bill Conroy filed a petition for a writ of habeas corpus in 2016 to challenge an Illinois state court conviction from 2007. Although he admitted that he had not filed his petition within the one-year limitations period, he claimed that his mental condition justified equitable tolling. The district court disagreed, concluding both that his petition was untimely and that he had not met the high bar necessary to establish equitable tolling. We agree and affirm. I. In 2004, Bill Conroy was indicted in Illinois state court for solicitation of murder, solicitation of murder for hire, and attempted first-degree murder. Before trial, the state court held a hearing to determine his competency to stand trial. After hearing from two state experts and one defense expert, the court determined that Conroy was fit to stand trial. On May 8, 2007, Conroy pleaded guilty and was sentenced to thirty years in prison. He did not appeal. Later in 2007, Conroy received mental health services through the Illinois Department of Corrections and was diagnosed with depressive and schizoaffective disorders. In 2008, however, Conroy's mental evaluations indicated that he was “alert and oriented,” that his “[t]hought processes were logical, coherent and goal directed,” and that his “[i]nsight and judgment were fair.” His psychiatrist also noted in one 2008 report that Conroy “denied any auditory [or] visual hallucinations or delusions.” In 2009, Conroy filed a postconviction petition in state court arguing, among other things, that his counsel provided ineffective assistance by not investigating his case and by coercing him into pleading guilty. The state trial court rejected Conroy's arguments, and the state appellate court affirmed. In 2014, Conroy filed several other postconviction motions in state court, which were denied. Throughout this time, Conroy unsuccessfully sought help with his legal issues from the prison library staff. He also says that because he had no money, he was unable to hire “prison lawyers” to help him. In 2016, Conroy filed a pro se petition in federal court under which permits persons in state custody to apply for habeas relief on the ground that their custody violates the Constitution or laws of the United States. Because Conroy named the wrong respondent, however, the district court dismissed his petition without prejudice and appointed a federal public defender to help him amend it. In the amended petition, Conroy alleged that his trial counsel was ineffective in arguing that he was not fit to stand trial. Conroy also argued that the timing for filing his petition should be equitably tolled because his mental limitations prevented him from understanding his legal rights from 2008 until he filed his petition in 2016. The state nevertheless moved to dismiss the petition as untimely and argued that Conroy was not entitled to equitable tolling. The district court agreed. It determined that Conroy's mental limitations were not an extraordinary circumstance *820 and that he had failed to show that he had been reasonably diligent in pursing his claim throughout the limitations period. So there was no basis for equitably tolling the time for filing the petition. The court also denied Conroy a certificate of appealability. Conroy sought a certificate of appealability, and we granted it on two questions: (1) whether Conroy is entitled to equitable tolling, and (2) “whether trial counsel was ineffective for not arguing that the state psychologist's evaluation revealed” that Conroy was unfit to stand trial. Because we agree with the district court that Conroy's untimely petition is not entitled to equitable tolling, we need only address the former. II. 1 The government initially argued that Conroy's amended petition constituted a second or successive petition because the district court dismissed his first petition without prejudice for failing to name the correct respondent. If that were true, it would have required Conroy to get our permission before filing with the district court. See (b)(3). But as the government correctly acknowledged before oral argument, when a district court dismisses a petition without prejudice because of a technical or procedural deficiency, the cured second petition counts as the first. See Conroy's petition, therefore, is not a second or successive petition, and his appeal is properly before us. 2 We next consider the timeliness of Conroy's 2254 petition. We review for abuse of discretion the district court's decision concluding that Conroy's untimely petition was not entitled to equitable tolling, see and we see none here. A state prisoner generally has only one year from the date that his conviction becomes final to seek federal habeas corpus relief. 2244(d)(1)(A). Conroy's conviction became final on June 7, 2007, so the limitations period for filing a habeas petition expired on June 7, 2008. Conroy didn't file his habeas petition until 2016. Although Conroy admits that he did not meet the one-year time bar, he argues that mental limitations—that he is illiterate, has emotional issues, and was diagnosed with schizoaffective disorder—entitle him to equitable tolling. 3 4 5 A petitioner is entitled to equitable tolling only if he can show both that extraordinary circumstances prevented him from timely filing and that he has been diligently pursuing his rights. We have repeatedly emphasized that such tolling is rare—reserved for those circumstances “far beyond the litigant's control.” Mental incompetency may constitute an extraordinary circumstance that justifies equitable tolling, but “only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.” We've said that this means that the petitioner must provide evidence establishing that his mental issues “actually impaired his ability to pursue his claims” throughout the limitations period. See ; see also *821 6 Conroy's evidence falls far short of this standard. We must note first that Conroy was found competent to stand trial by the Illinois state court in 2006. And he has not provided evidence establishing that his mental issues drastically deteriorated after that presumptively correct finding. See (e). In fact, the record reveals that the opposite is true. Take the fact that, in 2008, Conroy's psychiatrist found that his “[t]hought processes were logical, coherent and goal directed” and that his “[i]nsight and judgment were fair.” This determination casts serious doubt on Conroy's assertion that he had the kind of mental deficiency that would constitute an extraordinary circumstance. Moreover, Conroy filed both a post-conviction petition and a request for counsel with the state court in 2009, and he filed several additional motions with the state court in 2014. These filings show that Conroy had the capacity to engage in the legal process. See 727 F.3d at Finally, most damning of all, Conroy originally attributed his failure to timely file his habeas petition not to mental limitation, but to the fact that he “was unaware of time limits.” See 747 F.3d at Given these facts, the district court was well within its discretion to conclude that Conroy failed to prove that extraordinary circumstances prevented him from timely filing. See 904 F.3d at (“[A]lthough [the petitioner's] mental limitations undoubtedly made filing a petition for habeas corpus difficult, the district court did not abuse its discretion by concluding that he failed to show how those difficulties affected him during the relevant time period to such an extent that he qualifies for the extraordinary remedy of equitable tolling.”). We thus need not consider whether he diligently pursued his rights. We AFFIRM the district court's judgment concluding that Conroy's untimely petition did not warrant equitable tolling.

Cook County, Illinois v. Wolf

The plaintiffs have worked hard to show that the statutory term “public charge” is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term's historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of “public charge” in the Immigration and Nationality Act (INA) is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security (DHS) is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of “public charge.” That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs’ interpretive challenge is an uphill battle that they are unlikely to win. *235 I therefore disagree with the majority's conclusion that the plaintiffs’ challenge to DHS's definition of “public charge” is likely to succeed at Chevron step two. I express no view, however, on the majority's analysis of the plaintiffs’ other challenges to the rule under the Administrative Procedure Act. The district court did not reach them, and the plaintiffs barely briefed them. The preliminary injunction was based solely on the district court's interpretation of the term “public charge.” Because its analysis was flawed, I would vacate the injunction and remand the case to the district court, where the plaintiffs would be free to develop their other arguments. I. There is a lot of confusion surrounding the public charge rule, so I'll start by addressing who it affects and how it works. The plaintiffs emphasize that the rule will prompt many noncitizens to drop or forgo public assistance, lest their use of benefits jeopardize their immigration status. That's happening already, and it's why Cook County has standing: noncitizens who give up government-funded healthcare are likely to rely on the county-funded emergency room. But it's important to recognize that immigrants are dropping or for-going aid out of misunderstanding or fear because, with very rare exceptions, those entitled to receive public benefits will never be subject to the public charge rule. Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future. To see why, one must be clear-eyed about the fact that federal law is not particularly generous about extending public assistance to noncitizens. That is not a function of the public charge rule; it is a function of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996), commonly referred to as the “Welfare Reform Act.” Under the Act, undocumented noncitizens are ineligible for benefits. So are nonimmigrant visa holders, a category that encompasses noncitizens granted permission to be in the United States for a defined period—think of tourists, students, and temporary workers. See 8 U.S.C. §§ 1611(a), 1621(a), 1641(b) (excluding undocumented noncitizens and nonimmigrant visa holders from the list of noncitizens “qualified” for government benefits).1 Because of these restrictions, many noncitizens are altogether ineligible *236 for the benefits relevant to a public charge determination. Only two major groups are statutorily eligible to receive the benefits that the public charge rule addresses, and the rule has little to no effect on either. The first group is certain especially vulnerable populations—refugees and asylees, among others. Congress has entitled these vulnerable noncitizens to public assistance, 8 U.S.C. § 1641(b), and exempted them from the public charge exclusion, id. §§ 1157(c)(3), 1159(c). That means that their need for aid is not considered when they are admitted to the United States, nor is their actual receipt of aid considered in any later adjustment-of-status proceeding. The public charge rule is entirely irrelevant to the most vulnerable. The second group eligible for benefits is lawful permanent residents, often referred to as green card holders, and the rule is almost entirely irrelevant to them too. Here's why: The public charge exclusion applies to noncitizens at the admission stage or an adjustment-of-status proceeding. Id. § 1182(a)(4)(A). (“Admission” is a term of art referring to “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A).) Lawful permanent residents have already been admitted to the United States, and they already possess the most protected immigrant status. They are therefore not subject to the public charge exclusion unless they jeopardize their lawful permanent residency. See id. § 1101(a)(13)(C) (describing the narrow circumstances in which lawful permanent residents are considered to be “seeking an admission”). Most relevant here, a green card holder who leaves the country for more than 180 days puts her residency in question and might need to “seek[ ] an admission” upon returning to the United States. Id. § 1011(a)(13)(C)(iii). If she used benefits prior to her departure, then her use of those benefits might count against her at reentry. But this consequence is easy to avoid by keeping trips abroad shorter than six months. It's also worth noting that a lawful permanent resident is eligible to receive very few benefits until she has been here for five years—which is the point at which she is eligible for citizenship. Id. § 1427(a). Naturalization eliminates even the small risk that a lawful permanent resident would ever face the admission process again. Notably, the rule doesn't apply at the naturalization stage. See id. § 1429. The upshot is that the public charge rule will rarely apply to a noncitizen who has received benefits in the past.2 Indeed, in the Second Circuit case challenging this same rule, both the government and the plaintiffs conceded as much. When pressed to identify who could be penalized under the public charge rule for using benefits, neither side identified any example other than the 180-day departure of a lawful permanent resident. See Oral Argument at 36:06–38:47, 1:03:45–1:04:40, New York v. U.S. Dep't of Homeland Sec., Nos. 19-3591, 19-3595 (2d Cir. Mar. 2, 2020), https://www.cspan.org/video/?469804-1/oral-argument-trump-administration-public-charge. Notwithstanding all of this, many lawful permanent residents, refugees, asylees, and even naturalized citizens have disenrolled from government-benefit programs since the public charge rule was announced. *237 Given the complexity of immigration law, it is unsurprising that many are confused or fearful about how the rule might apply to them. Still, the pattern of disenrollment does not reflect the rule's actual scope. Focusing on the source of Cook County's injury can therefore be misleading. That does not mean, however, that the rule has no effect. Even though it is almost entirely inapplicable to those currently eligible for benefits, it significantly affects a different group: nonimmigrant visa holders applying for green cards. Recall that nonimmigrant visa holders, unlike lawful permanent residents and those holding humanitarian-based visas, are ineligible for the relevant benefits in their current immigration status. If granted lawful permanent residency, though, they would become eligible for these benefits in the future. The public charge rule is concerned with what use a green card applicant would make of this future eligibility. As a leading treatise puts it, the public charge determination is a “prophetic” one. 5 Charles Gordon et al., Immigration Law and Procedure § 63.05[3] (2019). If DHS predicts that an applicant is likely to rely too heavily on government assistance, it will deny her lawful permanent residency on the ground that she is likely to become a public charge. This case is about whether DHS has defined “public charge” too expansively and is therefore turning too many noncitizens away. There are four major routes to obtaining the status of lawful permanent resident: humanitarian protection (refugees and asylees), the sponsorship of a family member, employment, and winning what is known as the green card lottery.3 See U.S. Dep't of Homeland Sec., Office of Immigration Statistics, Annual Flow Report: Lawful Permanent Residents 3–4 (2018), https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2017.pdf. Those seeking humanitarian protection are not subject to the statutory provision rendering inadmissible any “alien who ... is likely at any time to become a public charge,” 8 U.S.C. § 1182(a)(4)(A), and only a subset of those in the remaining three categories will be subject to the DHS rule. That is because DHS only handles the applications of noncitizens who apply from within the United States; the State Department processes the applications of noncitizens who apply from abroad.4 This division of authority means that, as a practical matter, the regulation applies to those present in the United States on nonimmigrant visas who seek to adjust their status to that of lawful permanent residents. And because the green card lottery is processed almost entirely by the State Department, the DHS rule applies primarily to employment-based applicants and family-based applicants (by far the larger of these two groups).5 *238 As nonimmigrant visa holders, these applicants have not previously been eligible for the benefits designated by DHS's rule—so the determination is not a backward-looking inquiry into whether they have used such benefits in the past. Instead, it is a forward-looking inquiry into whether they are likely to use such benefits in the future. The rule guides this forward-looking inquiry. Under the 1999 Guidance, an applicant was excluded only if she was likely to be institutionalized or primarily dependent on government cash assistance for the long term. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26, 1999). Now, DHS considers the applicant's potential usage not only of cash assistance for income maintenance (including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and state cash assistance), but also of the Supplemental Nutrition Assistance Program (SNAP), the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. § 212.21. And if DHS concludes that an applicant is likely to use more than 12 months’ worth of these benefits—with the use of 2 benefits in 1 month counting as 2 months—it will deem her “likely to become a public charge” and deny the green card. Id. This heightened standard for admissibility is a significant change—but it's not the one that the plaintiffs’ emphasis on disenrollment suggests. Evaluating the rule requires a clear view of what it actually does; so, with the rule's scope in mind, I turn to the merits. II. While I agree with the majority's bottom-line conclusion at Chevron step one that “public charge” does not refer exclusively to one who is primarily and permanently dependent on government assistance, I have a little to add to the history and a lot to add to the statutory analysis. In my view, the majority takes several wrong turns in analyzing the statute that skew its thinking about Chevron step two. For purposes of this Part, the most significant is that the majority accepts the plaintiffs’ view that the 1996 amendments to the public charge provision were irrelevant. In what follows, I'll lay out my own analysis of the plaintiffs’ arguments, which will explain why I wind up in a different place than the majority does on the reasonableness of DHS's interpretation of the statute. The plaintiffs advance three basic arguments as to why the term “public charge” refers exclusively to one who is “primarily and permanently” dependent on government assistance. First, they say that the term had that meaning when it first appeared in the 1882 federal statute. Second, they contend that even if the term was unsettled in the late nineteenth century, subsequent judicial and administrative decisions narrowed it, and later amendments to the statute ratified these interpretations. Third, they argue that interpreting the term “public charge” to encompass anything short of primary and permanent dependence conflicts with Congress's choice to make supplemental government benefits available to immigrants. I'll take these arguments in turn. A. The plaintiffs first argue that in the late nineteenth century, “public charge” meant *239 primary and permanent dependence. See New Prime Inc. v. Oliveira, ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) (“[I]t's a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute.’ ” (citation omitted)). Evaluating this argument requires careful consideration of a term with a long history. The term “public charge” was borrowed from state “poor laws,” which were in turn modeled on their English counterparts. Hidetaka Hirota, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy 43–47 (2017). Early poor laws used “public charge” synonymously with “public expense,” referring to any burden on the public fisc. Thus, when someone sought assistance from a city or county overseer of the poor, the cost of the relief provided was entered on the overseer's books as a public charge—that is, an expense properly chargeable to, and therefore funded by, the public. Over time, the term “public charge” came to refer (at least in the context of poor relief and immigration laws) not only to expenditures made under the poor laws, but also to the people who depended on these expenditures.6 State legislatures, worried about the burden that destitute immigrants might place on programs to aid the needy, co-opted the poor-law language into immigration legislation. In 1847, New York created an administrative apparatus for dealing with the influx of immigrants. The new “Commissioners of Emigration” were tasked with examining incoming passengers to determine if “there shall be found among such passengers, any lunatic, idiot, deaf and dumb, blind or infirm persons ... who, from attending circumstances, are likely to become permanently a public charge”—language, incidentally, that suggests that one could be a public charge either temporarily or permanently. Act of May 5, 1847, ch. 195, § 3, 1847 N.Y. Laws 182, 184. These individuals were permitted to land in the state upon payment of a bond by the vessel's master “to indemnify ... each and every city, town and county within this state, from any cost or charge ... for the maintenance or support of the person ... within five years.” Id. The bonds paid for the landing of these immigrants were then used to pay for the state immigration infrastructure, including the provision of some temporary aid to new arrivals. Two years later, the state expanded the category of people for whom a bond was required. Still excluded were those “likely to become permanently a public charge” but also those “who have been paupers in any other country, or who from sickness or disease, existing at the time of departing from the foreign port, are or are likely to soon become a public charge.” Act of Apr. 11, 1849, ch. 350, § 3, 1849 N.Y. Laws 504, 506. By 1851, the New York statute contained the language which would be included in both the 1882 and 1891 federal statutes. Gone was the reference to those “likely to become permanently a public charge,” replaced by phrases referring to someone “unable to take care of himself or herself without becoming a public charge” and someone “likely to become a public charge.” Act of July 11, 1851, ch. 523, § 4, 1851 N.Y. Laws 969, 971. In the event that a bond was unpaid, New *240 York—and Massachusetts, which enacted a substantially similar law—ordered the exclusion of those immigrants deemed “likely to soon become a public charge.” Hirota, supra, at 71–72. The bond system was held unconstitutional by the U.S. Supreme Court on the ground that that the power to tax incoming foreign passengers “has been confided to Congress by the Constitution.” Henderson v. Mayor of New York, 92 U.S. 259, 274, 23 L.Ed. 543 (1876). The decision threw the state systems into uncertainty and created demand for federal legislation, largely to reenact the defunct state policies and to replace the lost funding. Since the states could no longer fund their immigration systems using state bonds, the 1882 federal statute levied “a duty of fifty cents for each and every passenger not a citizen of the United States” arriving by sea; this was to “constitute a fund ... to defray the expense of regulating immigration ... and for the care of immigrants arriving in the United States, for the relief of such as are in distress.” Act of Aug. 3, 1882, ch. 376, § 1, 22 Stat. 214, 214. The first federal statute therefore filled the space left by the now-ineffective state laws: it used funds raised from the immigrants or their carriers to provide some care for the newly arrived, while describing criteria for excluding those likely to financially burden state and local governments. Because the term “public charge” had been pulled directly from the state statutes, it presumably had the same meaning that it had come to have under the state laws: someone who depended, or would likely depend, on poor-relief programs. But when the term “public charge” was imported into federal law, it was unclear how much state aid qualified someone as a “public charge.” Neither state poor laws nor state immigration laws defined “public charge,” and no clear definition emerged in judicial opinions or secondary sources, either. Early efforts to enforce the 1882 statute bear out the uncertainty surrounding the term. In 1884, an association of ten steamship companies asked the Secretary of the Treasury, on whom responsibility for immigration fell at the time, to “specifically define ... the circumstances which shall constitute ‘a person unable to take care of himself or herself without becoming a public charge,’ and who shall not be permitted to land under ... the [1882] act.” Synopsis of the Decisions of the Treasury Department on the Construction of the Tariff, Navigation, and Other Laws for the Year Ended December 31, 1884, at 365 (1885). (The steamship companies had a stake because they were on the hook for the noncitizen's return ticket if she was rejected as a likely public charge.) The Secretary demurred, answering that “the determination of the liability of arriving immigrants to become public charges is vested ... in the commissioners of immigration appointed by the State in which such immigrants arrive,” and thus “this Department must decline to interfere in the matter.” Id. One year later, Treasury continued to recognize that “difficulties have arisen in regard to the construction of so much of section 2 of [the 1882 act] ... as refers to the landing of convicts, lunatics, idiots, or persons unable to take care of themselves without becoming a public charge,” though it still refused to offer clarification. Synopsis of the Decisions of the Treasury Department on the Construction of the Tariff, Navigation, and Other Laws for the Year Ending December 31, 1885, at 359 (1886). The term was not necessarily clarified in 1891, when immigration-enforcement authority was placed directly in the hands of federal officials. (From 1882 until Congress enacted the Immigration Act of 1891, states had continued to administer immigration enforcement, albeit under authority *241 conferred by the federal statute.) With the change in administration, the steamship companies continued to express confusion, informing Treasury officials that the phrase “was somewhat indefinite and [that they] desired to have a more specific explanation of its meaning.” 1 Letter from the Secretary of the Treasury, Transmitting a Report of the Commissioners of Immigration Upon the Causes Which Incite Immigration to the United States 109 (1892). At this point, Treasury offered an answer, but it was hardly clarifying. Pressed by Congress to describe the standards used by officials to determine whether an immigrant was “likely to become a public charge,” the Assistant Secretary in 1892 responded that “written instructions and an inflexible standard would be inapplicable and impracticable ... and the sound discretion of the inspection officer, subject to appeal as prescribed by law, must be the chief reliance.” H.R. Rep. No. 52-2090, at 4 (1892). Rather than conveying something narrow and definite, the term “public charge” seemed to refer in an imprecise way to someone who lacked self-sufficiency and therefore burdened taxpayers. Explanations of the term offered in a congressional hearing by John Weber, the first commissioner of immigration at Ellis Island, illustrate the point. He explained that “[t]he appearance of the man, his vocation, his willingness to work, his apparent industry, and the demand for the kind of work that he is ready to give, is what governs” whether an individual was likely to become a public charge. Id. at 359. When asked whether an immigrant would be considered likely to become a public charge if “it is necessary that a private charity shall furnish food and lodging ... for a period long or short after landing,” Weber responded that such a person would likely be considered a public charge, but that it would not violate the statute to allow him to land so long as it was obvious that he would be “supported on private charity only up to the time when [he got] employment, which may only be until the next day.” Id. at 425. The repeated requests for clarification from steamship operators and Congress, coupled with Treasury's reluctance to provide a concrete answer, indicate that the term did not have a definite and fixed meaning. That is unsurprising in the context of the time: it would have been difficult to have a one-size-fits-all definition of how much aid was too much, because there was not a one-size-fits-all system of welfare. Poor relief was largely handled by towns and counties, which made their own choices about how to deliver aid. Most localities deployed “outdoor relief”—in-kind and cash support without institutionalization. See Michael B. Katz, in the Shadow of the Poorhouse: a Social History of Welfare in America 37 (1986) (“[P]oorhouses did not end public outdoor relief. With a few exceptions, most towns, cities, and counties helped more people outside of poorhouses than within them.”). Other areas were more reliant on “indoor” relief in the form of poorhouses. Id. at 16–18. Some used a mixed system, adjusting the provision of indoor and outdoor relief as poorhouse populations ebbed and flowed. Id. at 39. And while the plaintiffs treat residence in a poorhouse as a proxy for primary and permanent dependence, that's not how poorhouses worked—they housed a mix of the permanently and temporarily dependent, serving as “both a short-term refuge for people in trouble and a home for the helpless and elderly.” Id. at 90. The bottom line is that in the closing decades of the nineteenth century, several different forms of public relief existed contiguously. And when nineteenth-century immigration officials determined whether someone was “likely to become a public *242 charge,” dependence on a particular kind or amount of relief does not appear to have been dispositive. Rather than serving as shorthand for a certain type or duration of aid, the term “public charge” referred to a lack of self-sufficiency that officials had broad discretion to estimate. Neither state legislatures nor Congress pinned down the term any more than that. B. The plaintiffs have a backup argument: even if the term was unsettled in the late nineteenth century, they claim that it became settled in the twentieth. According to the plaintiffs, courts and administrative agencies repeatedly held that “public charge” meant one who is “primarily and permanently dependent” on the government, and Congress ratified this settled meaning in its many reenactments of the public charge provision. See William N. Eskridge Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution app. at 421 (2016) (“When Congress reenacts a statute, it incorporates settled interpretations of the reenacted statute.”). Thus, the plaintiffs say, whatever uncertainty may have surrounded the term in 1882, there was no uncertainty when Congress reenacted the provision. And because Congress reenacted the provision many times—in 1891, 1907, 1917, 1952, 1990, and 1996—the plaintiffs canvass a century's worth of judicial and administrative precedent in an effort to show that a consensus existed before at least one of these reenactments. The bar for establishing a settled interpretation is high: at the time of reenactment, the judicial consensus must have been “so broad and unquestioned that we must presume Congress knew of and endorsed it.” Jama v. Immigration & Customs Enf't, 543 U.S. 335, 349, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). The plaintiffs rely heavily on Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915), to establish this consensus, but I share the majority's view that Gegiow doesn't do the work that the plaintiffs want it to. In that case, the Court did not define “public charge” other than to say that it cannot be defined with reference to labor conditions in the city in which an immigrant intends to settle. The Court concluded that immigrant arrivals “are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions unless the one phrase before us [public charge] is directed to different considerations than any other of those with which it is associated.” Id. at 10, 36 S.Ct. 2. In other words, classifying someone as a likely “public charge” does not depend on whether he is bound for Portland or St. Paul. The Court did not define the degree of reliance that renders someone a “public charge,” because that was not the question before it. Thus, Gegiow neither binds us nor offers a definition that Congress could have ratified.7 Without Gegiow, the plaintiffs face an uphill battle because satisfying the requirements of the reenactment canon typically requires at least one Supreme Court *243 decision. See, e.g., Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009); Cannon v. Univ. of Chi., 441 U.S. 677, 699, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). And for the reasons that the majority gives, this is not the rare case in which lower court and administrative decisions are enough to demonstrate a consensus. See Maj. Op. at 224–25; see also William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67, 83 (1988) (“[T]he Court often will not incorporate lower court decisions into a statute through the reenactment rule.”); cf. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 135 S. Ct. 2507, 2520, 192 L.Ed.2d 514 (2015) (applying the reenactment canon in light of “the unanimous holdings of the Courts of Appeals”) (emphasis added). In any event, the reenactment canon requires more than a judicial consensus—it applies only if Congress reenacted the provision without making material changes. Jama, 543 U.S. at 349, 125 S.Ct. 694; see also Holder v. Martinez Gutierrez, 566 U.S. 583, 593, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012) (“[T]he doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change.”). Whatever one thinks of earlier changes to the public charge provision, there can be no doubt that the 1996 amendments were material. The INA is notoriously complex, and these amendments are no exception. Making matters worse, the amendments came from two separate acts, themselves incredibly complex, that were passed a month apart: the Welfare Reform Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) (IIRIRA). But because the plaintiffs challenge the materiality of these amendments to the meaning of the term “public charge,” it is necessary to step through them at a level of detail that is, unfortunately, excruciating. Congress enacted IIRIRA, which made sweeping changes to the INA, in September of 1996. Among its changes were several material amendments to the public charge provision. For the first time in the provision's 114-year history, Congress required the Executive to consider an itemized list of factors in making the public charge determination, thereby ensuring that the inquiry was searching rather than superficial. See 8 U.S.C. § 1182(a)(4)(B)(i) (providing that “the consular officer or the Attorney General shall at a minimum consider” the noncitizen's age; health; family status; assets, resources, and financial status; and education and skills). Even more significantly, it added a subsection to the public charge provision rendering most family-sponsored applicants automatically inadmissible on public charge grounds unless they obtained an enforceable affidavit of support from a sponsor (usually the family member petitioning for their admission). Id. § 1182(a)(4)(C) (rendering a family-sponsored noncitizen “inadmissible under this paragraph” unless the sponsor executes an “affidavit of support described in [8 U.S.C. § 1183a] with respect to such alien”).8 The affidavit provision had been inserted into the INA weeks earlier by the Welfare Reform Act. See Welfare Reform Act § 423. In addition to making the affidavit of support mandatory under the public charge provision, IIRIRA significantly expanded *244 8 U.S.C. § 1183a by spelling out what the affidavit of support requires. The affidavit provision is meant to establish that the applicant “is not excludable as a public charge.” 8 U.S.C. § 1183a(a)(1). To that end, it empowers the federal government, as well as state and local governments, to demand reimbursement from the sponsor for any means-tested public benefit received by the sponsored noncitizen.9 Id. § 1183a(b)(1)(A). A “means-tested public benefit” is one available to those whose income falls below a certain level. The provision explicitly excludes certain benefits, regardless of whether they are means tested, from the sponsor's reimbursement obligation; by implication, receipt of every other means-tested benefit is included. See id. § 1183a note.10 If the sponsor doesn't pay upon request, the government can sue the sponsor. Id. § 1183a(b)(2). If the sponsor doesn't keep “the Attorney General and the State in which the sponsored alien is currently a resident” apprised of any change in the sponsor's address, she is subject to a civil penalty—and that penalty is higher if she fails to update her address “with knowledge that the sponsored alien has received any means-tested public benefits” other than those described in three cross-referenced provisions of the Welfare Reform Act. Id. § 1183a(d).11 The affidavit is generally enforceable for ten years or until the sponsored noncitizen is naturalized. Id. § 1183a(a)(2).12 Notwithstanding IIRIRA's obvious—and obviously significant—amendments to the public charge provision, the plaintiffs insist, and the majority agrees, that its amendments reveal nothing about the scope of the term “public charge.” Yet as I will explain below, the 1996 amendments were not only material, but they also increased the bite of the public charge exclusion. The plaintiffs characterize the affidavit provision as having nothing to do with admissibility; as they see it, the provision merely reinforces restrictions on government benefits for lawful permanent residents. They offer two basic arguments in support of that position: first, that the supporting-affidavit requirement appears in a different provision than does the public charge exclusion (8 U.S.C. § 1183a, as opposed to § 1182(a)(4)), and second, that the supporting-affidavit requirement doesn't apply to everyone who is subject to the public charge exclusion. The first argument is totally unpersuasive. The public charge provision explicitly *245 cross-references the affidavit provision, thereby tying the two together, and it makes obtaining an affidavit of support a condition of admissibility. Id. § 1182(a)(4)(C)(ii). What's more, the affidavit provision expressly states that the point of the affidavit is “to establish that an alien is not excludable as a public charge under section 1182(a)(4).” Id. § 1183a(a)(1). Because a family-sponsored applicant is inadmissible as a public charge without the affidavit, the coverage of the affidavit is very strong evidence of the nature of the burden with which the public charge exclusion is concerned.13 The plaintiffs’ second argument fails too. As an initial matter, the affidavit provision—which, it bears repeating, is tied by cross-reference to the public charge exclusion—uses the term “public charge,” and we “do[ ] not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes.” Azar v. Allina Health Servs., ––– U.S. ––––, 139 S. Ct. 1804, 1812, 204 L.Ed.2d 139 (2019); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (explaining that as a general rule, “identical words used in different parts of the same act are intended to have the same meaning” (citation omitted)). The plaintiffs don't specify what different meaning the term “public charge” might have in the affidavit provision; they just vaguely assert that the provision is getting at something else. They presumably don't want to embrace the logical implication of their position: that the term “public charge” means something more stringent for family-based immigrants, who need to produce an affidavit, than it does for the others, who don't. In any event, this argument assumes that if the affidavit were tied to the standard of admissibility, Congress would have required one from everyone subject to the exclusion. Its choice to require an affidavit only from family-based immigrants, the logic goes, means that the affidavit provision can't shed any light on the admissibility provision, which is more generally applicable. This argument is misguided. There is an obvious explanation for why Congress required supporting affidavits from family-based immigrants and not from employment-based immigrants or green card lottery winners: that is the only context in which it makes sense to demand this assurance. A connection to a citizen or lawful permanent resident is the basis for a family-based green card. 8 U.S.C. §§ 1151(b)(2), 1153(a). The same is not true for immigrants who obtain diversity or employment-based green cards, neither of which is based on a personal relationship—much less a relationship close enough that someone would be willing to take on ten years’ worth of potentially significant liability. Moreover, in the context of an employment-based green card, a supporting affidavit would add little. The affidavit is a means of providing the Executive with assurance that the green card applicant will not become a public charge if admitted. The stringent criteria for an employment-based green card provide similar assurance. Employment-based green cards are reserved largely for those with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim”; “outstanding professors and researchers” who are “recognized internationally”; *246 “multinational executives and managers”; those who hold advanced degrees and have job offers; and entrepreneurs prepared to invest a minimum of $1,000,000 in a venture that will benefit the United States economy and employ “not fewer than 10 United States citizens or [lawful permanent residents].” Id. § 1153(b)(1)–(5). Someone who meets these criteria is unlikely to have trouble supporting herself in the future. That said, if an employment-based applicant will be working for a relative, and therefore has a family connection, the statute still requires her to obtain a supporting affidavit—demonstrating that the affidavit is not uniquely applicable to those applying for family-based green cards. See id. § 1182(a)(4)(D). Despite the plaintiffs’ effort to show otherwise, it doesn't make sense to treat the affidavit provision as an anomalous carve-out rather than compelling evidence of the scope of the public charge inquiry. In fact, trying to categorize the supporting affidavit as limited by virtue of its application to family-based immigrants is a sleight of hand, because, as the plaintiffs surely know, the family-based category is not simply one among several to which the public charge exclusion applies. As a practical matter, it is the category for which the exclusion matters most. The number of lottery winners is considerably smaller than the number of family-based immigrants, and employment-based immigrants—also a smaller category than the family based—have other means of demonstrating self-sufficiency. In short, the 1996 amendments to the public charge provision—most notably, the addition of factors to guide the public charge determination and the insertion of the affidavit requirement—were material. What's more, the affidavit provision reflects Congress's view that the term “public charge” encompasses supplemental as well as primary dependence on public assistance. To establish that a family-based applicant is not excludable as a public charge, a sponsor must promise to pay for the noncitizen's use of any means-tested benefit outside the itemized exclusions. Without such an affidavit, the noncitizen is inadmissible. Congress's attempt to aggressively protect the public fisc through the supporting-affidavit requirement is at odds with the view that it used the term “public charge” to refer exclusively to primary and permanent dependence. C. Switching gears, the plaintiffs—with the support of the House of Representatives, appearing as amicus curiae—advance a creative structural argument for why the term “public charge” must be interpreted narrowly: they say that interpreting the term to include the receipt of supplemental benefits is inconsistent with Congress's choice in the Welfare Reform Act to make such benefits available to lawful permanent residents. According to the plaintiffs, Congress would not have authorized lawful permanent residents to receive supplemental benefits if it did not expect them to use those benefits. And it is inconsistent with Congress's generosity to deny someone a green card because she is likely to take advantage of benefits for which Congress has made her eligible. The statutory scheme therefore forecloses the possibility of interpreting “public charge” to mean anything other than primary and permanent dependence. There are several problems with this argument. To begin with, its logic would read the public charge provision out of the statute. The premise of the public charge inquiry has always been that immigrants in need of assistance would have access to it after their arrival—initially through state poor laws and later through modern *247 state and federal welfare systems. Indeed, it is difficult to imagine how someone could become a public charge under any conception of the term if it were impossible to receive public aid. For example, on the plaintiffs’ logic, DHS could not exclude an applicant even if it predicted that the applicant would eventually become permanently reliant on government benefits, because the future use of those benefits would, after all, be authorized. Barring the Executive from considering a green card applicant's potential use of authorized benefits would render the statutory public charge exclusion a dead letter. Moreover, the plaintiffs’ position assumes that tension exists between the public charge exclusion and the availability of benefits to lawful permanent residents—and that this tension can be resolved only by limiting the scope of the exclusion. In fact, the public charge exclusion and the availability of benefits are easily reconcilable. Immigration law has long distinguished between one who becomes a public charge because of a condition preexisting her arrival and one who becomes a public charge because of something that has happened since. See, e.g., id. § 1227(a)(5) (“Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.”); Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086 (“[A]ny alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as aforesaid.”). Providing benefits to immigrants who have been here for a designated period of time—generally five years under current law—takes care of immigrants in the latter situation. Life contains the unexpected: for instance, a pandemic may strike, leaving illness, death, and job loss in its wake. A lawful permanent resident who falls on hard times can rely on public assistance to get back on her feet. Congress's willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival. In any event, the plaintiffs’ argument is inconsistent not only with the statutory exclusion, but also with the Welfare Reform Act. As the plaintiffs tell it, Congress has generously supported noncitizens, thereby implicitly instructing the Executive to ignore a green card applicant's potential usage of supplemental benefits in the admissibility determination. But that is a totally implausible description of the Welfare Reform Act. The stated purpose of the Act is to ensure that noncitizens “within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations,” and that “the availability of public benefits not constitute an incentive for immigration to the United States.” 8 U.S.C. § 1601(2). To this end, the Act renders lawful permanent residents ineligible for most benefits until they have lived in the United States for at least five years. Id. § 1613(a). The Act's dramatic rollback of benefits for noncitizens sparked vociferous criticism. See Isabel Sawhill et al., Problems and Issues for Reauthorization, in Welfare Reform and Beyond: the Future of the Safety Net 20, 27 (Isabel Sawhill et al. eds., 2002) (referring to the five-year aid eligibility restriction as one of the Act's “most contentious features”). It blinks reality to describe the Welfare Reform Act as a “grant” of benefits, as the plaintiffs do, or to say that the Act took an immigrant's potential use of supplemental benefits off the table for purposes *248 of the admissibility determination.14 * * * Given the length and complexity of my analysis of the plaintiffs’ arguments at Chevron step one, a summary may be helpful. In my view, the plaintiffs can't show that the term “public charge” refers narrowly to someone who is primarily and permanently dependent on government assistance. The term “public charge” was broad when it entered federal immigration law in 1882, and it has not been pinned down since. IIRIRA, Congress's latest word on the public charge provision, cuts in the opposite direction of the plaintiffs’ argument, as does the Welfare Reform Act, which, contrary to the plaintiffs’ argument, hardly reflects a congressional desire that immigrants take advantage of available public assistance. In fact, the amendments that IIRIRA and the Welfare Reform Act together made to the INA reflect more than Congress's view that the term “public charge” is capacious enough to include supplemental dependence on public assistance. They reflect its preference that the Executive consider even supplemental dependence in enforcing the public charge exclusion. III. While the term “public charge” is indeterminate enough to leave room for interpretation, DHS can prevail only if its definition is reasonable. The majority holds that DHS is likely to lose on the merits of that argument; I disagree. My dissent from the majority on this score is inevitable, given how differently we analyze the statute at Chevron step one. The majority seems to understand “public charge” to mean something only slightly broader than “primarily and permanently dependent,” but I understand it to be a much more capacious term—not only as a matter of history, but also by virtue of the 1996 amendments to the public charge provision. On my reading, in contrast to the majority's, the statute gives DHS relatively wide discretion to specify the degree of benefit usage that renders someone a “public charge.” Thus, the majority and I approach Chevron step two from different starting points. The plaintiffs challenge the reasonableness of the rule's definition in two respects. First, they object to the particular benefits that DHS has chosen to designate in its definition of “public charge.” According to the plaintiffs, DHS has unreasonably interpreted the statute insofar as the rule counts in-kind aid. Second, they argue that DHS has set the relevant benefit usage so low that the definition captures people who cannot reasonably be characterized as “public charges.” I will address these arguments in turn. A. The plaintiffs don't contest DHS's authority to account for the receipt of state and federal cash assistance (like SSI and TANF) in the definition of “public charge.” But they insist that in-kind benefits (like *249 SNAP, public housing, and Medicaid) are off-limits. Their argument in support of that position is difficult to grasp. In their brief, the plaintiffs vaguely assert that in-kind benefits shouldn't be counted because they are categorically different from cash payments; they imply that the term “public charge” does not encompass someone who relies on in-kind public assistance. At oral argument, the plaintiffs wisely abandoned that position. For one thing, they could not articulate why it mattered whether the government chose to give someone $500 for groceries or $500 worth of food. For another, that argument is inconsistent with history: everyone agrees that someone living permanently in a late nineteenth-century poorhouse qualified as a public charge, and shelter in a poorhouse is in-kind relief. At least rhetorically, a great deal of the plaintiffs’ argument involves their repeated emphasis on the fact that the 1999 Guidance directed officers “not [to] place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance.” 1999 Guidance, 64 Fed. Reg. at 28,689. The implication is that the 1999 Guidance reflects the only reasonable interpretation of the statute. Of course, the fact that a prior administration interpreted a statute differently does not establish that the new interpretation is unreasonable—the premise of Chevron step two is that more than one reasonable interpretation of the statute exists. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863–64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.”). Moreover, the focus on cash benefits in the 1999 Guidance flowed from the Immigration and Naturalization Service's decision to interpret “public charge” to mean “primarily dependent on the government for subsistence.” 1999 Guidance, 64 Fed. Reg. at 28,692. As the Guidance explained, INS had decided “that the best evidence of whether an alien is primarily dependent on the government for subsistence is either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense.” Id. DHS has now taken a different approach—it has decided that projected reliance on government benefits need not be primary to trigger the public charge exclusion. And once DHS made that baseline choice, a broader range of benefits became relevant. Thus, the plaintiffs’ fundamental objection to the counting of benefits like Medicaid, housing, and SNAP—that they are supplemental—is really just a re-packaging of their argument under Chevron step one. The plaintiffs also advance a legislative-inaction argument: in 2013—twenty years after Congress enacted IIRIRA—the Senate Judiciary Committee, while debating the Border Security, Economic Opportunity, and Immigration Modernization Act, voted down a proposal to require applicants for lawful permanent resident status “to show they were not likely to qualify even for non-cash employment supports such as Medicaid, the SNAP program, or the Children's Health Insurance Program (CHIP).” S. REP. NO. 113-40, at 42 (2013). But the failure of this proposal is neither here nor there. As the Supreme Court has cautioned, “Congressional inaction lacks ‘persuasive significance’ because ‘several equally tenable inferences’ may be drawn from such inaction, ‘including the inference that the existing legislation already incorporated the offered change.’ ” *250 Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (citation omitted). This rejected proposal—which would have overridden the 1999 Guidance—is a case in point: the rejection is as consistent with the choice to leave the matter within the Executive's discretion as it is with the choice to force the Executive's hand. The plaintiffs’ argument has other problems too. Why should the views of the 2013 Senate Judiciary Committee be attributed to Congress as a whole? See Thompson v. Thompson, 484 U.S. 174, 191–92, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring in the judgment) (“Committee reports, floor speeches, and even colloquies between Congressmen, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President.” (citation omitted)). And how could the unenacted views of the 2013 Congress settle the meaning of language chosen by a different Congress at a different time? See United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960) (“[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”). Thus, the plaintiffs are wrong to insist that DHS is barred from considering the receipt of a particular benefit simply because the benefit is in-kind rather than cash. There is no such bar. Rather, the list of designated benefits is reasonable if receiving them is consistent with the lack of self-sufficiency conveyed by the term “public charge.” Answering this question requires fleshing out what it means to lack self-sufficiency for purposes of the public charge exclusion. As the majority observes, no one is self-sufficient in an “absolutist” sense because everyone relies on some nonmonetary government services—for example, public snow removal and emergency services. Maj. Op. at ––––, ––––. Importantly, the term “public charge” does not implicate self-sufficiency in this absolutist sense. Throughout its centuries-long history, “public charge” has always been associated with dependence on a particular category of government programs: those available based on financial need. In the nineteenth and early twentieth centuries, these were “poor relief” programs; now, they are the need-based programs of the modern welfare system. And what has always been implicit in the term “public charge” was made explicit by the 1996 amendments. The statutory exclusion requires the Executive to consider the noncitizen's age; health; family status; assets, resources, and financial status; and education and skills—factors plainly designed to determine whether a noncitizen will be able to support herself, not whether she will use generally available services like snow removal. In the same vein, the sponsor's reimbursement obligation covers only those benefits that are “means tested”—that is, available to those whose income falls below a certain threshold. As a matter of both history and text, a “public charge” lacks self-sufficiency in the sense that she lacks the financial resources to provide for herself. The benefits designated in DHS's definition are all consistent with this concept of self-sufficiency. Recall that DHS has designated the following benefits: cash assistance for income maintenance (including SSI, TANF, and state cash assistance), SNAP, the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. § 212.21. These benefits are all means tested; they are also squarely within the Welfare Reform Act's definition of “public benefit.” 8 U.S.C. §§ 1611(c), 1621(c) (defining “public benefit” to include welfare, food, health, and public-housing benefits funded by the federal, *251 state, or local governments). It is consistent with the term “public charge” to consider the potential receipt of cash, food, housing, and healthcare benefits—all of which fulfill fundamental needs—in evaluating whether someone is likely to depend on public assistance to get by. It is also worth noting some of the benefits that the rule does not include: significantly, the rule's definition accommodates the reimbursement limitations in the affidavit provision. Under the affidavit provision, the following benefits, even if means tested, are not subject to reimbursement: certain forms of emergency medical assistance; short-term, in-kind emergency disaster relief; school-lunch benefits; benefits under the Child Nutrition Act of 1966; public-health assistance for immunization, as well as treatment for the symptoms of communicable disease; certain foster-care and adoption payments; certain in-kind services such as soup kitchens and crisis counseling; student assistance for higher education; benefits under the Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and certain job-training benefits. Id. § 1183a note.15 These exemptions under the affidavit provision are excluded from the rule too. The rule's definition provides “an exhaustive list of public benefits,” Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,296, so any benefit not mentioned in the list is by implication excluded from the definition. And the list does not mention any of the benefits exempted in the affidavit provision of the statute. 8 C.F.R. § 212.21; see also Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,312 (noting that the rule's “definition does not include benefits related exclusively to emergency response, immunization, education, or social services”); id. at 41,482 (explaining that the rule's definition “does not include emergency aid, emergency medical assistance, or disaster relief”); id. at 41,389 (excluding benefits under the National School Lunch Act, the Child Nutrition Act, and the Head Start Act). Indeed, to highlight just how carefully the rule tracks the statutory exemptions to the affidavit of support, consider the rule's exclusion of Medicaid for those under the age of 21 and pregnant women. Id. at 41,367. These benefits do not appear in the list of exemptions to the affidavit of support, but they are exempted from the sponsor's reimbursement obligations under a different statutory provision. 42 U.S.C. § 1396b(v)(4)(B). The rule captures that exclusion even though it appears elsewhere; in other words, DHS did not simply copy and paste the statutory note. In sum, the designated benefits are not only consistent with the term “public charge,” but they also fit neatly within the statutory structure. Considering the potential receipt of these benefits to gauge the likelihood that a noncitizen will become a public charge is therefore not an unreasonable interpretation of the statute. B. The closer question is whether DHS's benefit-usage threshold stretches the meaning of “public charge” beyond the breaking point. The rule defines “public charge” to mean a noncitizen who receives one or more of the designated benefits “for more than twelve months in the aggregate *252 within any 36-month period.” One month of one benefit counts toward the twelve. As a result, an applicant expected to live in Section 8 housing for a year would be denied admission as someone who is likely to become a public charge, as would an applicant who is expected to receive three months’ worth of housing, TANF, Medicaid, and SNAP. The plaintiffs have a legislative-inaction argument for this feature of the rule too. They point out that during the enactment of IIRIRA, the Senate Judiciary Committee, while negotiating the House-passed version of the bill, dropped language that “would have clarified the definition of ‘public charge’ ” in the deportation provision to provide for deportation if a noncitizen “received Federal public benefits for an aggregate of 12 months over a period of 7 years.” 142 Cong. Rec. S11,872, S11,882 (daily ed. Sept. 30, 1996) (statement of Sen. Kyl). Thus, they say, Congress has foreclosed the possibility that 12 months’ worth of benefit usage renders someone a public charge. Whatever the statutory floor is, it must be higher than that. I've already identified some of the problems with legislative-inaction arguments, so I won't belabor them here. It's worth noting, though, that this legislative-inaction argument is even worse than the plaintiffs’ other. So far as the plaintiffs’ citation reveals, the proposal dropped out of the statute in the course of committee negotiations, not by a vote, and there is no explanation for why it did. See Thompson, 484 U.S. at 191, 108 S.Ct. 513 (Scalia, J., concurring in the judgment) (“An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed.”). Moreover, the dropped proposal involved the public charge deportation provision, not the public charge admissibility provision. See 8 U.S.C. § 1227(a)(5). Drawing general conclusions from a committee's decision to drop this language in a context with much higher stakes is a particularly dubious proposition. Despite the plaintiffs’ effort to demonstrate otherwise, the statute doesn't draw a bright line requiring something more than 12 months of benefit usage to meet the definition of “public charge.” At oral argument, DHS declined to identify any limit to its discretion, implying that it could define public charge to include someone who took any amount of benefits, no matter how small. It may have been grounding its theory in the affidavit provision, which triggers the sponsor's liability once the noncitizen receives “any means-tested public benefit” that falls within the sponsor's reimbursement obligation. Id. § 1183a(b)(1)(A) (emphasis added). That may well overread the affidavit provision, which does not purport to define “public charge.” Enforcement of the public charge exclusion has waxed and waned over time in response to economic conditions, immigration policy, and changes in the programs available to support the poor. The amendments made by IIRIRA and the Welfare Reform Act, including the affidavit provision, reflect Congress's interest in vigorous enforcement. Yet Congress left the centuries-old term in the statute, and that term has always been associated with a lack of self-sufficiency. So that's the principle that governs here: if it's reasonable to describe someone who takes one or more of the designated benefits “for more than twelve months in the aggregate within any 36-month period” as lacking in self-sufficiency, then DHS's definition falls within the permissible range. In deciding this question, it is wrong to focus exclusively on the durational requirement—duration must be viewed in the context of the benefits measured. Three features *253 are particularly important in this regard: the designated benefits are means tested, satisfy basic necessities, and are major welfare grants. To see the importance of these features, consider how different the durational threshold would look without them—for example, if the rule measured the usage of benefits that are not means tested (e.g., public education), that are means tested but don't satisfy a basic necessity (e.g., Pell grants), or that satisfy a basic necessity but are not major welfare grants (e.g., need-based emergency food assistance). Relying on the government to provide a year's worth of a basic necessity (food, shelter, medicine, or cash assistance for income maintenance) implicates self-sufficiency in a way that funding a year of college with the help of a Pell grant does not. The plaintiffs particularly object to the rule's stacking mechanism, which can reduce the durational requirement from 12 months to as little as 3 months. But here, too, the context matters: all of the designated benefits supply basic necessities, and the reduction is triggered in proportion to the degree of reliance on the government. The more supplemental the reliance, the longer it can go on before crossing the “public charge” threshold. The briefest durational threshold—three months of benefit usage—meets the definition only when the recipient relies on the government for all basic necessities (food, shelter, medicine, and cash assistance for income maintenance). In other words, such short-term reliance only counts if it's virtually total. The rule measures self-sufficiency along a sliding scale rather than by time alone. It is not unreasonable to describe someone who relies on the government to satisfy a basic necessity for a year, or multiple basic necessities for a period of months, as falling within the definition of a term that denotes a lack of self-sufficiency. To be sure, the rule reaches dependence that is supplemental and temporary rather than primary and permanent. But the definition of “public charge” is elastic enough to permit that. The rule's definition is exacting, and DHS could have exercised its discretion differently. The line that DHS chose to draw, however, does not exceed what the statutory term will bear. IV. This case involves more than the definition of “public charge.” The plaintiffs raised a host of objections to the rule in their complaint, and the majority addresses some of them. It concludes that the plaintiffs are likely to succeed in their challenge to the factors that DHS uses to implement its definition (the list of factors includes health, family size, and English proficiency), as well as in their argument that the rule is arbitrary and capricious. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (explaining that the agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made’ ” (citation omitted)). I wouldn't reach these issues. The district court didn't address them, and on appeal, the parties devoted their briefs almost entirely to the definition of “public charge.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”); see also Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (remanding to the district court for arbitrary-and-capricious review when the district court resolved a case at Chevron step one without reaching the issue and when *254 the agency's position was not well developed). And while it's generally prudent to refrain from deciding difficult issues without the benefit of arguments from the parties, the procedural posture of this case offers a particularly good reason to stop where the parties did. We are reviewing the issuance of the “extraordinary remedy” of a preliminary injunction. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). Based on the record developed thus far, the plaintiffs have not shown that they are entitled to this extraordinary remedy. I would remand so that the district court can assess whether the plaintiffs’ remaining challenges to the rule are likely to succeed. * * * The many critics of the “public charge” definition characterize it as too harsh. But the same can be said—and has been said—of IIRIRA and the Welfare Reform Act. The latter dramatically rolled back the availability of aid to noncitizens, and both statutes linked those cuts to the public charge provision by making the affidavit of support a condition of admissibility. The definition in the 1999 Guidance tried to blunt the force of these changes; now, DHS has chosen to exercise the leeway that Congress gave it. At bottom, the plaintiffs’ objections reflect disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes. Because I think that DHS's definition is a reasonable interpretation of the statutory term “public charge,” I respectfully dissent.

Barrett

majority

The plaintiffs have worked hard to show that the statutory term “public charge” is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term's historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of “public charge” in the Immigration and Nationality Act (INA) is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security (DHS) is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of “public charge.” That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs’ interpretive challenge is an uphill battle that they are unlikely to win. *235 I therefore disagree with the majority's conclusion that the plaintiffs’ challenge to DHS's definition of “public charge” is likely to succeed at Chevron step two. I express no view, however, on the majority's analysis of the plaintiffs’ other challenges to the rule under the Administrative Procedure Act. The district court did not reach them, and the plaintiffs barely briefed them. The preliminary injunction was based solely on the district court's interpretation of the term “public charge.” Because its analysis was flawed, I would vacate the injunction and remand the case to the district court, where the plaintiffs would be free to develop their other arguments. I. There is a lot of confusion surrounding the public charge rule, so I'll start by addressing who it affects and how it works. The plaintiffs emphasize that the rule will prompt many noncitizens to drop or forgo public assistance, lest their use of benefits jeopardize their immigration status. That's happening already, and it's why Cook County has standing: noncitizens who give up government-funded healthcare are likely to rely on the county-funded emergency room. But it's important to recognize that immigrants are dropping or for-going aid out of misunderstanding or fear because, with very rare exceptions, those entitled to receive public benefits will never be subject to the public charge rule. Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future. To see why, one must be clear-eyed about the fact that federal law is not particularly generous about extending public assistance to noncitizens. That is not a function of the public charge rule; it is a function of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Stat. 2105 (1996), commonly referred to as the “Welfare Reform Act.” Under the Act, undocumented noncitizens are ineligible for benefits. So are nonimmigrant visa holders, a category that encompasses noncitizens granted permission to be in the United States for a defined period—think of tourists, students, and temporary workers. See (a), 1621(a), 1641(b) (excluding undocumented noncitizens and nonimmigrant visa holders from the list of noncitizens “qualified” for government benefits).1 Because of these restrictions, many noncitizens are altogether ineligible *236 for the benefits relevant to a public charge determination. Only two major groups are statutorily eligible to receive the benefits that the public charge rule addresses, and the rule has little to no effect on either. The first group is certain especially vulnerable populations—refugees and asylees, among others. Congress has entitled these vulnerable noncitizens to public assistance, (b), and exempted them from the public charge exclusion, 1157(c)(3), 1159(c). That means that their need for aid is not considered when they are admitted to the United States, nor is their actual receipt of aid considered in any later adjustment-of-status proceeding. The public charge rule is entirely irrelevant to the most vulnerable. The second group eligible for benefits is lawful permanent residents, often referred to as green card holders, and the rule is almost entirely irrelevant to them too. Here's why: The public charge exclusion applies to noncitizens at the admission stage or an adjustment-of-status proceeding. 1182(a)(4)(A). (“Admission” is a term of art referring to “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 1(a)(13)(A).) Lawful permanent residents have already been admitted to the United States, and they already possess the most protected immigrant status. They are therefore not subject to the public charge exclusion unless they jeopardize their lawful permanent residency. See 1(a)(13)(C) (describing the narrow circumstances in which lawful permanent residents are considered to be “seeking an admission”). Most relevant here, a green card holder who leaves the country for more than 180 days puts her residency in question and might need to “seek[ ] an admission” upon returning to the United States. 1(a)(13)(C)(iii). If she used benefits prior to her departure, then her use of those benefits might count against her at reentry. But this consequence is easy to avoid by keeping trips abroad shorter than six months. It's also worth noting that a lawful permanent resident is eligible to receive very few benefits until she has been here for five years—which is the point at which she is eligible for citizenship. 1427(a). Naturalization eliminates even the small risk that a lawful permanent resident would ever face the admission process again. Notably, the rule doesn't apply at the naturalization stage. See 1429. The upshot is that the public charge rule will rarely apply to a noncitizen who has received benefits in the past.2 Indeed, in the Second Circuit case challenging this same rule, both the government and the plaintiffs conceded as much. When pressed to identify who could be penalized under the public charge rule for using benefits, neither side identified any example other than the 180-day departure of a lawful permanent resident. See Oral Argument at 36:06–38:47, 1:03:45–1:04:40, New York v. U.S. Dep't of Homeland Sec., Nos. 19-3591, 19-3595 (2d Cir. Mar. 2, 2020), https://www.cspan.org/video/?469804-1/oral-argument-trump-administration-public-charge. Notwithstanding all of this, many lawful permanent residents, refugees, asylees, and even naturalized citizens have disenrolled from government-benefit programs since the public charge rule was announced. *237 Given the complexity of immigration law, it is unsurprising that many are confused or fearful about how the rule might apply to them. Still, the pattern of disenrollment does not reflect the rule's actual scope. Focusing on the source of Cook County's injury can therefore be misleading. That does not mean, however, that the rule has no effect. Even though it is almost entirely inapplicable to those currently eligible for benefits, it significantly affects a different group: nonimmigrant visa holders applying for green cards. Recall that nonimmigrant visa holders, unlike lawful permanent residents and those holding humanitarian-based visas, are ineligible for the relevant benefits in their current immigration status. If granted lawful permanent residency, though, they would become eligible for these benefits in the future. The public charge rule is concerned with what use a green card applicant would make of this future eligibility. As a leading treatise puts it, the public charge determination is a “prophetic” one. 5 Charles Gordon et al., Immigration Law and Procedure 63.05[3] If DHS predicts that an applicant is likely to rely too heavily on government assistance, it will deny her lawful permanent residency on the ground that she is likely to become a public charge. This case is about whether DHS has defined “public charge” too expansively and is therefore turning too many noncitizens away. There are four major routes to obtaining the status of lawful permanent resident: humanitarian protection (refugees and asylees), the sponsorship of a family member, employment, and winning what is known as the green card lottery.3 See U.S. Dep't of Homeland Sec., Office of Immigration Statistics, Annual Flow Report: Lawful Permanent Residents 3–4 (2018), https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2017.pdf. Those seeking humanitarian protection are not subject to the statutory provision rendering inadmissible any “alien who is likely at any time to become a public charge,” 8 U.S.C. 1182(a)(4)(A), and only a subset of those in the remaining three categories will be subject to the DHS rule. That is because DHS only handles the applications of noncitizens who apply from within the United States; the State Department processes the applications of noncitizens who apply from abroad.4 This division of authority means that, as a practical matter, the regulation applies to those present in the United States on nonimmigrant visas who seek to adjust their status to that of lawful permanent residents. And because the green card lottery is processed almost entirely by the State Department, the DHS rule applies primarily to employment-based applicants and family-based applicants (by far the larger of these two groups).5 *238 As nonimmigrant visa holders, these applicants have not previously been eligible for the benefits designated by DHS's rule—so the determination is not a backward-looking inquiry into whether they have used such benefits in the past. Instead, it is a forward-looking inquiry into whether they are likely to use such benefits in the future. The rule guides this forward-looking inquiry. Under the 1999 Guidance, an applicant was excluded only if she was likely to be institutionalized or primarily dependent on government cash assistance for the long term. Field Guidance on Deportability and Inadmissibility on Public Charge 28,689 (Mar. 26, 1999). Now, DHS considers the applicant's potential usage not only of cash assistance for income maintenance (including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and state cash assistance), but also of the Supplemental Nutrition Assistance Program (SNAP), the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. 212.21. And if DHS concludes that an applicant is likely to use more than 12 months’ worth of these benefits—with the use of 2 benefits in 1 month counting as 2 months—it will deem her “likely to become a public charge” and deny the green card. This heightened standard for admissibility is a significant change—but it's not the one that the plaintiffs’ emphasis on disenrollment suggests. Evaluating the rule requires a clear view of what it actually does; so, with the rule's scope in mind, I turn to the merits. II. While I agree with the majority's bottom-line conclusion at Chevron step one that “public charge” does not refer exclusively to one who is primarily and permanently dependent on government assistance, I have a little to add to the history and a lot to add to the statutory analysis. In my view, the majority takes several wrong turns in analyzing the statute that skew its thinking about Chevron step two. For purposes of this Part, the most significant is that the majority accepts the plaintiffs’ view that the 1996 amendments to the public charge provision were irrelevant. In what follows, I'll lay out my own analysis of the plaintiffs’ arguments, which will explain why I wind up in a different place than the majority does on the reasonableness of DHS's interpretation of the statute. The plaintiffs advance three basic arguments as to why the term “public charge” refers exclusively to one who is “primarily and permanently” dependent on government assistance. First, they say that the term had that meaning when it first appeared in the 1882 federal statute. Second, they contend that even if the term was unsettled in the late nineteenth century, subsequent judicial and administrative decisions narrowed it, and later amendments to the statute ratified these interpretations. Third, they argue that interpreting the term “public charge” to encompass anything short of primary and permanent dependence conflicts with Congress's choice to make supplemental government benefits available to immigrants. I'll take these arguments in turn. A. The plaintiffs first argue that in the late nineteenth century, “public charge” meant *239 primary and permanent dependence. See New Prime Evaluating this argument requires careful consideration of a term with a long history. The term “public charge” was borrowed from state “poor laws,” which were in turn modeled on their English counterparts. Hidetaka Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy –47 Early poor laws used “public charge” synonymously with “public expense,” referring to any burden on the public fisc. Thus, when someone sought assistance from a city or county overseer of the poor, the cost of the relief provided was entered on the overseer's books as a public charge—that is, an expense properly chargeable to, and therefore funded by, the public. Over time, the term “public charge” came to refer (at least in the context of poor relief and immigration laws) not only to expenditures made under the poor laws, but also to the people who depended on these expenditures.6 State legislatures, worried about the burden that destitute immigrants might place on programs to aid the needy, co-opted the poor-law language into immigration legislation. In 1847, New York created an administrative apparatus for dealing with the influx of immigrants. The new “Commissioners of Emigration” were tasked with examining incoming passengers to determine if “there shall be found among such passengers, any lunatic, idiot, deaf and dumb, blind or infirm persons who, from attending circumstances, are likely to become permanently a public charge”—language, incidentally, that suggests that one could be a public charge either temporarily or permanently. Act of May 5, 1847, ch. 195, 3, 184. These individuals were permitted to land in the state upon payment of a bond by the vessel's master “to indemnify each and every city, town and county within this state, from any cost or charge for the maintenance or support of the person within five years.” The bonds paid for the landing of these immigrants were then used to pay for the state immigration infrastructure, including the provision of some temporary aid to new arrivals. Two years later, the state expanded the category of people for whom a bond was required. Still excluded were those “likely to become permanently a public charge” but also those “who have been paupers in any other country, or who from sickness or disease, existing at the time of departing from the foreign port, are or are likely to soon become a public charge.” Act of Apr. 11, 1849, ch. 350, 3, 506. By 1851, the New York statute contained the language which would be included in both the 1882 and 1891 federal statutes. Gone was the reference to those “likely to become permanently a public charge,” replaced by phrases referring to someone “unable to take care of himself or herself without becoming a public charge” and someone “likely to become a public charge.” Act of July 11, 1851, ch. 523, 4, 971. In the event that a bond was unpaid, New *240 York—and Massachusetts, which enacted a substantially similar law—ordered the exclusion of those immigrants deemed “likely to soon become a public charge.” at 71–72. The bond system was held unconstitutional by the U.S. Supreme Court on the ground that that the power to tax incoming foreign passengers “has been confided to Congress by the Constitution.” The decision threw the state systems into uncertainty and created demand for federal legislation, largely to reenact the defunct state policies and to replace the lost funding. Since the states could no longer fund their immigration systems using state bonds, the 1882 federal statute levied “a duty of fifty cents for each and every passenger not a citizen of the United States” arriving by sea; this was to “constitute a fund to defray the expense of regulating immigration and for the care of immigrants arriving in the United States, for the relief of such as are in distress.” Act of Aug. 3, 1882, ch. 376, 1, 214. The first federal statute therefore filled the space left by the now-ineffective state laws: it used funds raised from the immigrants or their carriers to provide some care for the newly arrived, while describing criteria for excluding those likely to financially burden state and local governments. Because the term “public charge” had been pulled directly from the state statutes, it presumably had the same meaning that it had come to have under the state laws: someone who depended, or would likely depend, on poor-relief programs. But when the term “public charge” was imported into federal law, it was unclear how much state aid qualified someone as a “public charge.” Neither state poor laws nor state immigration laws defined “public charge,” and no clear definition emerged in judicial opinions or secondary sources, either. Early efforts to enforce the 1882 statute bear out the uncertainty surrounding the term. In 1884, an association of ten steamship companies asked the Secretary of the Treasury, on whom responsibility for immigration fell at the time, to “specifically define the circumstances which shall constitute ‘a person unable to take care of himself or herself without becoming a public charge,’ and who shall not be permitted to land under the [1882] act.” Synopsis of the Decisions of the Treasury Department on the Construction of the Tariff, Navigation, and Other Laws for the Year Ended December 31, 1884, at 365 (1885). (The steamship companies had a stake because they were on the hook for the noncitizen's return ticket if she was rejected as a likely public charge.) The Secretary demurred, answering that “the determination of the liability of arriving immigrants to become public charges is vested in the commissioners of immigration appointed by the State in which such immigrants arrive,” and thus “this Department must decline to interfere in the matter.” One year later, Treasury continued to recognize that “difficulties have arisen in regard to the construction of so much of section 2 of [the 1882 act] as refers to the landing of convicts, lunatics, idiots, or persons unable to take care of themselves without becoming a public charge,” though it still refused to offer clarification. Synopsis of the Decisions of the Treasury Department on the Construction of the Tariff, Navigation, and Other Laws for the Year Ending December 31, 1885, (1886). The term was not necessarily clarified in 1891, when immigration-enforcement authority was placed directly in the hands of federal officials. (From 1882 until Congress enacted the Immigration Act of 1891, states had continued to administer immigration enforcement, albeit under authority *241 conferred by the federal statute.) With the change in administration, the steamship companies continued to express confusion, informing Treasury officials that the phrase “was somewhat indefinite and [that they] desired to have a more specific explanation of its meaning.” 1 Letter from the Secretary of the Treasury, Transmitting a Report of the Commissioners of Immigration Upon the Causes Which Incite Immigration to the United States 109 (1892). At this point, Treasury offered an answer, but it was hardly clarifying. Pressed by Congress to describe the standards used by officials to determine whether an immigrant was “likely to become a public charge,” the Assistant Secretary in 1892 responded that “written instructions and an inflexible standard would be inapplicable and impracticable and the sound discretion of the inspection officer, subject to appeal as prescribed by law, must be the chief reliance.” H.R. Rep. No. 52-2090, at 4 (1892). Rather than conveying something narrow and definite, the term “public charge” seemed to refer in an imprecise way to someone who lacked self-sufficiency and therefore burdened taxpayers. Explanations of the term offered in a congressional hearing by John Weber, the first commissioner of immigration at Ellis Island, illustrate the point. He explained that “[t]he appearance of the man, his vocation, his willingness to work, his apparent industry, and the demand for the kind of work that he is ready to give, is what governs” whether an individual was likely to become a public charge. When asked whether an immigrant would be considered likely to become a public charge if “it is necessary that a private charity shall furnish food and lodging for a period long or short after landing,” Weber responded that such a person would likely be considered a public charge, but that it would not violate the statute to allow him to land so long as it was obvious that he would be “supported on private charity only up to the time when [he got] employment, which may only be until the next day.” The repeated requests for clarification from steamship operators and Congress, coupled with Treasury's reluctance to provide a concrete answer, indicate that the term did not have a definite and fixed meaning. That is unsurprising in the context of the time: it would have been difficult to have a one-size-fits-all definition of how much aid was too much, because there was not a one-size-fits-all system of welfare. Poor relief was largely handled by towns and counties, which made their own choices about how to deliver a Most localities deployed “outdoor relief”—in-kind and cash support without institutionalization. See Michael B. Katz, in the Shadow of the Poorhouse: a Social History of Welfare in America 37 (1986) (“[P]oorhouses did not end public outdoor relief. With a few exceptions, most towns, cities, and counties helped more people outside of poorhouses than within them.”). Other areas were more reliant on “indoor” relief in the form of poorhouses. at 16–18. Some used a mixed system, adjusting the provision of indoor and outdoor relief as poorhouse populations ebbed and flowed. And while the plaintiffs treat residence in a poorhouse as a proxy for primary and permanent dependence, that's not how poorhouses worked—they housed a mix of the permanently and temporarily dependent, serving as “both a short-term refuge for people in trouble and a home for the helpless and elderly.” The bottom line is that in the closing decades of the nineteenth century, several different forms of public relief existed contiguously. And when nineteenth-century immigration officials determined whether someone was “likely to become a public *242 charge,” dependence on a particular kind or amount of relief does not appear to have been dispositive. Rather than serving as shorthand for a certain type or duration of aid, the term “public charge” referred to a lack of self-sufficiency that officials had broad discretion to estimate. Neither state legislatures nor Congress pinned down the term any more than that. B. The plaintiffs have a backup argument: even if the term was unsettled in the late nineteenth century, they claim that it became settled in the twentieth. According to the plaintiffs, courts and administrative agencies repeatedly held that “public charge” meant one who is “primarily and permanently dependent” on the government, and Congress ratified this settled meaning in its many reenactments of the public charge provision. See William N. Eskridge Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution app. at 421 (2016) (“When Congress reenacts a statute, it incorporates settled interpretations of the reenacted statute.”). Thus, the plaintiffs say, whatever uncertainty may have surrounded the term in 1882, there was no uncertainty when Congress reenacted the provision. And because Congress reenacted the provision many times—in 1891, 1907, 1917, 1952, and 1996—the plaintiffs canvass a century's worth of judicial and administrative precedent in an effort to show that a consensus existed before at least one of these reenactments. The bar for establishing a settled interpretation is high: at the time of reenactment, the judicial consensus must have been “so broad and unquestioned that we must presume Congress knew of and endorsed it.” The plaintiffs rely heavily on to establish this consensus, but I share the majority's view that Gegiow doesn't do the work that the plaintiffs want it to. In that case, the Court did not define “public charge” other than to say that it cannot be defined with reference to labor conditions in the city in which an immigrant intends to settle. The Court concluded that immigrant arrivals “are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions unless the one phrase before us [public charge] is directed to different considerations than any other of those with which it is associated.” In other words, classifying someone as a likely “public charge” does not depend on whether he is bound for Portland or St. Paul. The Court did not define the degree of reliance that renders someone a “public charge,” because that was not the question before it. Thus, Gegiow neither binds us nor offers a definition that Congress could have ratified.7 Without Gegiow, the plaintiffs face an uphill battle because satisfying the requirements of the reenactment canon typically requires at least one Supreme Court *2 decision. See, e.g., Forest Grove Sch. ; And for the reasons that the majority gives, this is not the rare case in which lower court and administrative decisions are enough to demonstrate a consensus. See Maj. Op. at 224–25; see also William N. Eskridge, Jr., Interpreting Legislative Inaction, ; cf. Tex. Dep't of Hous. & Cmty. (emphasis added). In any event, the reenactment canon requires more than a judicial consensus—it applies only if Congress reenacted the provision without making material changes. 5 U.S. at ; see also 566 U.S. 5, Whatever one thinks of earlier changes to the public charge provision, there can be no doubt that the 1996 amendments were material. The INA is notoriously complex, and these amendments are no exception. Making matters worse, the amendments came from two separate acts, themselves incredibly complex, that were passed a month apart: the Welfare Reform Act, Stat. 2105 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Stat. 3009-546 (1996) (IIRIRA). But because the plaintiffs challenge the materiality of these amendments to the meaning of the term “public charge,” it is necessary to step through them at a level of detail that is, unfortunately, excruciating. Congress enacted IIRIRA, which made sweeping changes to the INA, in September of 1996. Among its changes were several material amendments to the public charge provision. For the first time in the provision's 114-year history, Congress required the Executive to consider an itemized list of factors in making the public charge determination, thereby ensuring that the inquiry was searching rather than superficial. See 8 U.S.C. 1182(a)(4)(B)(i) Even more significantly, it added a subsection to the public charge provision rendering most family-sponsored applicants automatically inadmissible on public charge grounds unless they obtained an enforceable affidavit of support from a sponsor (usually the family member petitioning for their admission). 1182(a)(4)(C) (rendering a family-sponsored noncitizen “inadmissible under this paragraph” unless the sponsor executes an “affidavit of support described in [8 U.S.C. 11a] with respect to such alien”).8 The affidavit provision had been inserted into the INA weeks earlier by the Welfare Reform Act. See Welfare Reform Act 423. In addition to making the affidavit of support mandatory under the public charge provision, IIRIRA significantly expanded *244 8 U.S.C. 11a by spelling out what the affidavit of support requires. The affidavit provision is meant to establish that the applicant “is not excludable as a public charge.” 8 U.S.C. 11a(a)(1). To that end, it empowers the federal government, as well as state and local governments, to demand reimbursement from the sponsor for any means-tested public benefit received by the sponsored noncitizen.9 11a(b)(1)(A). A “means-tested public benefit” is one available to those whose income falls below a certain level. The provision explicitly excludes certain benefits, regardless of whether they are means tested, from the sponsor's reimbursement obligation; by implication, receipt of every other means-tested benefit is included. See 11a note.10 If the sponsor doesn't pay upon request, the government can sue the sponsor. 11a(b)(2). If the sponsor doesn't keep “the Attorney General and the State in which the sponsored alien is currently a resident” apprised of any change in the sponsor's address, she is subject to a civil penalty—and that penalty is higher if she fails to update her address “with knowledge that the sponsored alien has received any means-tested public benefits” other than those described in three cross-referenced provisions of the Welfare Reform Act. 11a(d).11 The affidavit is generally enforceable for ten years or until the sponsored noncitizen is naturalized. 11a(a)(2).12 Notwithstanding IIRIRA's obvious—and obviously significant—amendments to the public charge provision, the plaintiffs insist, and the majority agrees, that its amendments reveal nothing about the scope of the term “public charge.” Yet as I will explain below, the 1996 amendments were not only material, but they also increased the bite of the public charge exclusion. The plaintiffs characterize the affidavit provision as having nothing to do with admissibility; as they see it, the provision merely reinforces restrictions on government benefits for lawful permanent residents. They offer two basic arguments in support of that position: first, that the supporting-affidavit requirement appears in a different provision than does the public charge exclusion (8 U.S.C. 11a, as opposed to 1182(a)(4)), and second, that the supporting-affidavit requirement doesn't apply to everyone who is subject to the public charge exclusion. The first argument is totally unpersuasive. The public charge provision explicitly *245 cross-references the affidavit provision, thereby tying the two together, and it makes obtaining an affidavit of support a condition of admissibility. 1182(a)(4)(C)(ii). What's more, the affidavit provision expressly states that the point of the affidavit is “to establish that an alien is not excludable as a public charge under section 1182(a)(4).” 11a(a)(1). Because a family-sponsored applicant is inadmissible as a public charge without the affidavit, the coverage of the affidavit is very strong evidence of the nature of the burden with which the public charge exclusion is concerned.13 The plaintiffs’ second argument fails too. As an initial matter, the affidavit provision—which, it bears repeating, is tied by cross-reference to the public charge exclusion—uses the term “public charge,” and we “do[ ] not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes.” ; see also Desert Palace, U.S. 90, The plaintiffs don't specify what different meaning the term “public charge” might have in the affidavit provision; they just vaguely assert that the provision is getting at something else. They presumably don't want to embrace the logical implication of their position: that the term “public charge” means something more stringent for family-based immigrants, who need to produce an affidavit, than it does for the others, who don't. In any event, this argument assumes that if the affidavit were tied to the standard of admissibility, Congress would have required one from everyone subject to the exclusion. Its choice to require an affidavit only from family-based immigrants, the logic goes, means that the affidavit provision can't shed any light on the admissibility provision, which is more generally applicable. This argument is misguided. There is an obvious explanation for why Congress required supporting affidavits from family-based immigrants and not from employment-based immigrants or green card lottery winners: that is the only context in which it makes sense to demand this assurance. A connection to a citizen or lawful permanent resident is the basis for a family-based green card. 8 U.S.C. 1151(b)(2), 1153(a). The same is not true for immigrants who obtain diversity or employment-based green cards, neither of which is based on a personal relationship—much less a relationship close enough that someone would be willing to take on ten years’ worth of potentially significant liability. Moreover, in the context of an employment-based green card, a supporting affidavit would add little. The affidavit is a means of providing the Executive with assurance that the green card applicant will not become a public charge if admitted. The stringent criteria for an employment-based green card provide similar assurance. Employment-based green cards are reserved largely for those with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim”; “outstanding professors and researchers” who are “recognized internationally”; *246 “multinational executives and managers”; those who hold advanced degrees and have job offers; and entrepreneurs prepared to invest a minimum of $1,000,000 in a venture that will benefit the United States economy and employ “not fewer than 10 United States citizens or [lawful permanent residents].” 1153(b)(1)–(5). Someone who meets these criteria is unlikely to have trouble supporting herself in the future. That said, if an employment-based applicant will be working for a relative, and therefore has a family connection, the statute still requires her to obtain a supporting affidavit—demonstrating that the affidavit is not uniquely applicable to those applying for family-based green cards. See 1182(a)(4)(D). Despite the plaintiffs’ effort to show otherwise, it doesn't make sense to treat the affidavit provision as an anomalous carve-out rather than compelling evidence of the scope of the public charge inquiry. In fact, trying to categorize the supporting affidavit as limited by virtue of its application to family-based immigrants is a sleight of hand, because, as the plaintiffs surely know, the family-based category is not simply one among several to which the public charge exclusion applies. As a practical matter, it is the category for which the exclusion matters most. The number of lottery winners is considerably smaller than the number of family-based immigrants, and employment-based immigrants—also a smaller category than the family based—have other means of demonstrating self-sufficiency. In short, the 1996 amendments to the public charge provision—most notably, the addition of factors to guide the public charge determination and the insertion of the affidavit requirement—were material. What's more, the affidavit provision reflects Congress's view that the term “public charge” encompasses supplemental as well as primary dependence on public assistance. To establish that a family-based applicant is not excludable as a public charge, a sponsor must promise to pay for the noncitizen's use of any means-tested benefit outside the itemized exclusions. Without such an affidavit, the noncitizen is inadmissible. Congress's attempt to aggressively protect the public fisc through the supporting-affidavit requirement is at odds with the view that it used the term “public charge” to refer exclusively to primary and permanent dependence. C. Switching gears, the plaintiffs—with the support of the House of Representatives, appearing as amicus curiae—advance a creative structural argument for why the term “public charge” must be interpreted narrowly: they say that interpreting the term to include the receipt of supplemental benefits is inconsistent with Congress's choice in the Welfare Reform Act to make such benefits available to lawful permanent residents. According to the plaintiffs, Congress would not have authorized lawful permanent residents to receive supplemental benefits if it did not expect them to use those benefits. And it is inconsistent with Congress's generosity to deny someone a green card because she is likely to take advantage of benefits for which Congress has made her eligible. The statutory scheme therefore forecloses the possibility of interpreting “public charge” to mean anything other than primary and permanent dependence. There are several problems with this argument. To begin with, its logic would read the public charge provision out of the statute. The premise of the public charge inquiry has always been that immigrants in need of assistance would have access to it after their arrival—initially through state poor laws and later through modern *247 state and federal welfare systems. Indeed, it is difficult to imagine how someone could become a public charge under any conception of the term if it were impossible to receive public a For example, on the plaintiffs’ logic, DHS could not exclude an applicant even if it predicted that the applicant would eventually become permanently reliant on government benefits, because the future use of those benefits would, after all, be authorized. Barring the Executive from considering a green card applicant's potential use of authorized benefits would render the statutory public charge exclusion a dead letter. Moreover, the plaintiffs’ position assumes that tension exists between the public charge exclusion and the availability of benefits to lawful permanent residents—and that this tension can be resolved only by limiting the scope of the exclusion. In fact, the public charge exclusion and the availability of benefits are easily reconcilable. Immigration law has long distinguished between one who becomes a public charge because of a condition preexisting her arrival and one who becomes a public charge because of something that has happened since. See, e.g., 1227(a)(5) (“Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.”); Act of Mar. 3, 1891, ch. 551, 11, 1086 (“[A]ny alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as aforesa”). Providing benefits to immigrants who have been here for a designated period of time—generally five years under current law—takes care of immigrants in the latter situation. Life contains the unexpected: for instance, a pandemic may strike, leaving illness, death, and job loss in its wake. A lawful permanent resident who falls on hard times can rely on public assistance to get back on her feet. Congress's willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival. In any event, the plaintiffs’ argument is inconsistent not only with the statutory exclusion, but also with the Welfare Reform Act. As the plaintiffs tell it, Congress has generously supported noncitizens, thereby implicitly instructing the Executive to ignore a green card applicant's potential usage of supplemental benefits in the admissibility determination. But that is a totally implausible description of the Welfare Reform Act. The stated purpose of the Act is to ensure that noncitizens “within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations,” and that “the availability of public benefits not constitute an incentive for immigration to the United States.” 8 U.S.C. 1601(2). To this end, the Act renders lawful permanent residents ineligible for most benefits until they have lived in the United States for at least five years. 1613(a). The Act's dramatic rollback of benefits for noncitizens sparked vociferous criticism. See Isabel Sawhill et al., Problems and Issues for Reauthorization, in Welfare Reform and Beyond: the Future of the Safety Net 20, 27 (Isabel Sawhill et al. eds., 2002) (referring to the five-year aid eligibility restriction as one of the Act's “most contentious features”). It blinks reality to describe the Welfare Reform Act as a “grant” of benefits, as the plaintiffs do, or to say that the Act took an immigrant's potential use of supplemental benefits off the table for purposes *248 of the admissibility determination.14 * * * Given the length and complexity of my analysis of the plaintiffs’ arguments at Chevron step one, a summary may be helpful. In my view, the plaintiffs can't show that the term “public charge” refers narrowly to someone who is primarily and permanently dependent on government assistance. The term “public charge” was broad when it entered federal immigration law in 1882, and it has not been pinned down since. IIRIRA, Congress's latest word on the public charge provision, cuts in the opposite direction of the plaintiffs’ argument, as does the Welfare Reform Act, which, contrary to the plaintiffs’ argument, hardly reflects a congressional desire that immigrants take advantage of available public assistance. In fact, the amendments that IIRIRA and the Welfare Reform Act together made to the INA reflect more than Congress's view that the term “public charge” is capacious enough to include supplemental dependence on public assistance. They reflect its preference that the Executive consider even supplemental dependence in enforcing the public charge exclusion. III. While the term “public charge” is indeterminate enough to leave room for interpretation, DHS can prevail only if its definition is reasonable. The majority holds that DHS is likely to lose on the merits of that argument; I disagree. My dissent from the majority on this score is inevitable, given how differently we analyze the statute at Chevron step one. The majority seems to understand “public charge” to mean something only slightly broader than “primarily and permanently dependent,” but I understand it to be a much more capacious term—not only as a matter of history, but also by virtue of the 1996 amendments to the public charge provision. On my reading, in contrast to the majority's, the statute gives DHS relatively wide discretion to specify the degree of benefit usage that renders someone a “public charge.” Thus, the majority and I approach Chevron step two from different starting points. The plaintiffs challenge the reasonableness of the rule's definition in two respects. First, they object to the particular benefits that DHS has chosen to designate in its definition of “public charge.” According to the plaintiffs, DHS has unreasonably interpreted the statute insofar as the rule counts in-kind a Second, they argue that DHS has set the relevant benefit usage so low that the definition captures people who cannot reasonably be characterized as “public charges.” I will address these arguments in turn. A. The plaintiffs don't contest DHS's authority to account for the receipt of state and federal cash assistance (like SSI and TANF) in the definition of “public charge.” But they insist that in-kind benefits (like *249 SNAP, public housing, and Medicaid) are off-limits. Their argument in support of that position is difficult to grasp. In their brief, the plaintiffs vaguely assert that in-kind benefits shouldn't be counted because they are categorically different from cash payments; they imply that the term “public charge” does not encompass someone who relies on in-kind public assistance. At oral argument, the plaintiffs wisely abandoned that position. For one thing, they could not articulate why it mattered whether the government chose to give someone $500 for groceries or $500 worth of food. For another, that argument is inconsistent with history: everyone agrees that someone living permanently in a late nineteenth-century poorhouse qualified as a public charge, and shelter in a poorhouse is in-kind relief. At least rhetorically, a great deal of the plaintiffs’ argument involves their repeated emphasis on the fact that the 1999 Guidance directed officers “not [to] place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance.” 1999 Guidance, The implication is that the 1999 Guidance reflects the only reasonable interpretation of the statute. Of course, the fact that a prior administration interpreted a statute differently does not establish that the new interpretation is unreasonable—the premise of Chevron step two is that more than one reasonable interpretation of the statute exists. See Chevron U.S.A. 467 U.S. 7, Moreover, the focus on cash benefits in the 1999 Guidance flowed from the Immigration and Naturalization Service's decision to interpret “public charge” to mean “primarily dependent on the government for subsistence.” 1999 Guidance, As the Guidance explained, INS had decided “that the best evidence of whether an alien is primarily dependent on the government for subsistence is either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense.” DHS has now taken a different approach—it has decided that projected reliance on government benefits need not be primary to trigger the public charge exclusion. And once DHS made that baseline choice, a broader range of benefits became relevant. Thus, the plaintiffs’ fundamental objection to the counting of benefits like Medicaid, housing, and SNAP—that they are supplemental—is really just a re-packaging of their argument under Chevron step one. The plaintiffs also advance a legislative-inaction argument: in 2013—twenty years after Congress enacted IIRIRA—the Senate Judiciary Committee, while debating the Border Security, Economic Opportunity, and Immigration Modernization Act, voted down a proposal to require applicants for lawful permanent resident status “to show they were not likely to qualify even for non-cash employment supports such as Medicaid, the SNAP program, or the Children's Health Insurance Program (CHIP).” S. REP. NO. 113-40, at 42 (2013). But the failure of this proposal is neither here nor there. As the Supreme Court has cautioned, “Congressional inaction lacks ‘persuasive significance’ because ‘several equally tenable inferences’ may be drawn from such inaction, ‘including the inference that the existing legislation already incorporated the offered change.’ ” *250 Pension Benefit Guar. This rejected proposal—which would have overridden the 1999 Guidance—is a case in point: the rejection is as consistent with the choice to leave the matter within the Executive's discretion as it is with the choice to force the Executive's hand. The plaintiffs’ argument has other problems too. Why should the views of the 2013 Senate Judiciary Committee be attributed to Congress as a whole? See (“Committee reports, floor speeches, and even colloquies between Congressmen, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President.” ). And how could the unenacted views of the 2013 Congress settle the meaning of language chosen by a different Congress at a different time? See United Thus, the plaintiffs are wrong to insist that DHS is barred from considering the receipt of a particular benefit simply because the benefit is in-kind rather than cash. There is no such bar. Rather, the list of designated benefits is reasonable if receiving them is consistent with the lack of self-sufficiency conveyed by the term “public charge.” Answering this question requires fleshing out what it means to lack self-sufficiency for purposes of the public charge exclusion. As the majority observes, no one is self-sufficient in an “absolutist” sense because everyone relies on some nonmonetary government services—for example, public snow removal and emergency services. Maj. Op. at ––––, ––––. Importantly, the term “public charge” does not implicate self-sufficiency in this absolutist sense. Throughout its centuries-long history, “public charge” has always been associated with dependence on a particular category of government programs: those available based on financial need. In the nineteenth and early twentieth centuries, these were “poor relief” programs; now, they are the need-based programs of the modern welfare system. And what has always been implicit in the term “public charge” was made explicit by the 1996 amendments. The statutory exclusion requires the Executive to consider the noncitizen's age; health; family status; assets, resources, and financial status; and education and skills—factors plainly designed to determine whether a noncitizen will be able to support herself, not whether she will use generally available services like snow removal. In the same vein, the sponsor's reimbursement obligation covers only those benefits that are “means tested”—that is, available to those whose income falls below a certain threshold. As a matter of both history and text, a “public charge” lacks self-sufficiency in the sense that she lacks the financial resources to provide for herself. The benefits designated in DHS's definition are all consistent with this concept of self-sufficiency. Recall that DHS has designated the following benefits: cash assistance for income maintenance (including SSI, TANF, and state cash assistance), SNAP, the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. 212.21. These benefits are all means tested; they are also squarely within the Welfare Reform Act's definition of “public benefit.” (c), 1621(c) (defining “public benefit” to include welfare, food, health, and public-housing benefits funded by the federal, *251 state, or local governments). It is consistent with the term “public charge” to consider the potential receipt of cash, food, housing, and healthcare benefits—all of which fulfill fundamental needs—in evaluating whether someone is likely to depend on public assistance to get by. It is also worth noting some of the benefits that the rule does not include: significantly, the rule's definition accommodates the reimbursement limitations in the affidavit provision. Under the affidavit provision, the following benefits, even if means tested, are not subject to reimbursement: certain forms of emergency medical assistance; short-term, in-kind emergency disaster relief; school-lunch benefits; benefits under the Child Nutrition Act of 1966; public-health assistance for immunization, as well as treatment for the symptoms of communicable disease; certain foster-care and adoption payments; certain in-kind services such as soup kitchens and crisis counseling; student assistance for higher education; benefits under the Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and certain job-training benefits. 11a note.15 These exemptions under the affidavit provision are excluded from the rule too. The rule's definition provides “an exhaustive list of public benefits,” Inadmissibility on Public Charge so any benefit not mentioned in the list is by implication excluded from the definition. And the list does not mention any of the benefits exempted in the affidavit provision of the statute. 8 C.F.R. 212.21; see also Inadmissibility on Public Charge ; ; Indeed, to highlight just how carefully the rule tracks the statutory exemptions to the affidavit of support, consider the rule's exclusion of Medicaid for those under the age of 21 and pregnant women. These benefits do not appear in the list of exemptions to the affidavit of support, but they are exempted from the sponsor's reimbursement obligations under a different statutory provision. 42 U.S.C. 1396b(v)(4)(B). The rule captures that exclusion even though it appears elsewhere; in other words, DHS did not simply copy and paste the statutory note. In sum, the designated benefits are not only consistent with the term “public charge,” but they also fit neatly within the statutory structure. Considering the potential receipt of these benefits to gauge the likelihood that a noncitizen will become a public charge is therefore not an unreasonable interpretation of the statute. B. The closer question is whether DHS's benefit-usage threshold stretches the meaning of “public charge” beyond the breaking point. The rule defines “public charge” to mean a noncitizen who receives one or more of the designated benefits “for more than twelve months in the aggregate *252 within any 36-month period.” One month of one benefit counts toward the twelve. As a result, an applicant expected to live in Section 8 housing for a year would be denied admission as someone who is likely to become a public charge, as would an applicant who is expected to receive three months’ worth of housing, TANF, Medicaid, and SNAP. The plaintiffs have a legislative-inaction argument for this feature of the rule too. They point out that during the enactment of IIRIRA, the Senate Judiciary Committee, while negotiating the House-passed version of the bill, dropped language that “would have clarified the definition of ‘public charge’ ” in the deportation provision to provide for deportation if a noncitizen “received Federal public benefits for an aggregate of 12 months over a period of 7 years.” 142 Cong. Rec. S11,872, S11,882 (daily ed. Sept. 30, 1996) (statement of Sen. Kyl). Thus, they say, Congress has foreclosed the possibility that 12 months’ worth of benefit usage renders someone a public charge. Whatever the statutory floor is, it must be higher than that. I've already identified some of the problems with legislative-inaction arguments, so I won't belabor them here. It's worth noting, though, that this legislative-inaction argument is even worse than the plaintiffs’ other. So far as the plaintiffs’ citation reveals, the proposal dropped out of the statute in the course of committee negotiations, not by a vote, and there is no explanation for why it d See U.S. at 191, (“An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed.”). Moreover, the dropped proposal involved the public charge deportation provision, not the public charge admissibility provision. See 8 U.S.C. 1227(a)(5). Drawing general conclusions from a committee's decision to drop this language in a context with much higher stakes is a particularly dubious proposition. Despite the plaintiffs’ effort to demonstrate otherwise, the statute doesn't draw a bright line requiring something more than 12 months of benefit usage to meet the definition of “public charge.” At oral argument, DHS declined to identify any limit to its discretion, implying that it could define public charge to include someone who took any amount of benefits, no matter how small. It may have been grounding its theory in the affidavit provision, which triggers the sponsor's liability once the noncitizen receives “any means-tested public benefit” that falls within the sponsor's reimbursement obligation. 11a(b)(1)(A) (emphasis added). That may well overread the affidavit provision, which does not purport to define “public charge.” Enforcement of the public charge exclusion has waxed and waned over time in response to economic conditions, immigration policy, and changes in the programs available to support the poor. The amendments made by IIRIRA and the Welfare Reform Act, including the affidavit provision, reflect Congress's interest in vigorous enforcement. Yet Congress left the centuries-old term in the statute, and that term has always been associated with a lack of self-sufficiency. So that's the principle that governs here: if it's reasonable to describe someone who takes one or more of the designated benefits “for more than twelve months in the aggregate within any 36-month period” as lacking in self-sufficiency, then DHS's definition falls within the permissible range. In deciding this question, it is wrong to focus exclusively on the durational requirement—duration must be viewed in the context of the benefits measured. Three features *253 are particularly important in this regard: the designated benefits are means tested, satisfy basic necessities, and are major welfare grants. To see the importance of these features, consider how different the durational threshold would look without them—for example, if the rule measured the usage of benefits that are not means tested (e.g., public education), that are means tested but don't satisfy a basic necessity (e.g., Pell grants), or that satisfy a basic necessity but are not major welfare grants (e.g., need-based emergency food assistance). Relying on the government to provide a year's worth of a basic necessity (food, shelter, medicine, or cash assistance for income maintenance) implicates self-sufficiency in a way that funding a year of college with the help of a Pell grant does not. The plaintiffs particularly object to the rule's stacking mechanism, which can reduce the durational requirement from 12 months to as little as 3 months. But here, too, the context matters: all of the designated benefits supply basic necessities, and the reduction is triggered in proportion to the degree of reliance on the government. The more supplemental the reliance, the longer it can go on before crossing the “public charge” threshold. The briefest durational threshold—three months of benefit usage—meets the definition only when the recipient relies on the government for all basic necessities (food, shelter, medicine, and cash assistance for income maintenance). In other words, such short-term reliance only counts if it's virtually total. The rule measures self-sufficiency along a sliding scale rather than by time alone. It is not unreasonable to describe someone who relies on the government to satisfy a basic necessity for a year, or multiple basic necessities for a period of months, as falling within the definition of a term that denotes a lack of self-sufficiency. To be sure, the rule reaches dependence that is supplemental and temporary rather than primary and permanent. But the definition of “public charge” is elastic enough to permit that. The rule's definition is exacting, and DHS could have exercised its discretion differently. The line that DHS chose to draw, however, does not exceed what the statutory term will bear. IV. This case involves more than the definition of “public charge.” The plaintiffs raised a host of objections to the rule in their complaint, and the majority addresses some of them. It concludes that the plaintiffs are likely to succeed in their challenge to the factors that DHS uses to implement its definition (the list of factors includes health, family size, and English proficiency), as well as in their argument that the rule is arbitrary and capricious. See 5 U.S.C. 706(2)(A); Motor Vehicle Mfrs. Ass'n of the U.S., 77 L.Ed.2d 4 (19) (explaining that the agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made’ ” ). I wouldn't reach these issues. The district court didn't address them, and on appeal, the parties devoted their briefs almost entirely to the definition of “public charge.” ; see also Ctr. for Individual And while it's generally prudent to refrain from deciding difficult issues without the benefit of arguments from the parties, the procedural posture of this case offers a particularly good reason to stop where the parties d We are reviewing the issuance of the “extraordinary remedy” of a preliminary injunction. Whitaker ex rel. Based on the record developed thus far, the plaintiffs have not shown that they are entitled to this extraordinary remedy. I would remand so that the district court can assess whether the plaintiffs’ remaining challenges to the rule are likely to succeed. * * * The many critics of the “public charge” definition characterize it as too harsh. But the same can be said—and has been said—of IIRIRA and the Welfare Reform Act. The latter dramatically rolled back the availability of aid to noncitizens, and both statutes linked those cuts to the public charge provision by making the affidavit of support a condition of admissibility. The definition in the 1999 Guidance tried to blunt the force of these changes; now, DHS has chosen to exercise the leeway that Congress gave it. At bottom, the plaintiffs’ objections reflect disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes. Because I think that DHS's definition is a reasonable interpretation of the statutory term “public charge,” I respectfully dissent.

Crosby v. City of Chicago

This case is about the scope of a release in a settlement agreement. In 2015, Ronald Crosby settled a lawsuit against Eduardo Gonzalez, a Chicago police officer who allegedly shoved Crosby out of a third-floor window before arresting him. In the settlement stipulation, Crosby released “all claims he had, has, or may have in the future ... arising either directly or indirectly out of the incident” against Gonzalez, the City of Chicago, and all future, current, or former City officers. Crosby insists that this release does not bar his new suit against the City and its officers for torts they committed in the course of covering up Gonzalez's misconduct. We disagree. I. In 2010, Ronald Crosby plummeted three stories from a window before Eduardo Gonzalez, a Chicago police officer, arrested him. Crosby maintains that Gonzalez intentionally pushed him through the window and then tried to justify his actions by falsely claiming—with corroboration from other officers who were present—that Crosby possessed a gun during the arrest. This alleged lie had grave consequences for Crosby: he was charged under the Illinois armed career criminal statute, convicted by a jury, and sentenced to eight years in prison. His conviction was reversed in 2014 by an Illinois intermediate appellate court and again by the same court in 2016 after the Supreme Court of Illinois vacated the first reversal. Between the initial reversal of his conviction and the Illinois Supreme Court's order vacating that reversal, Crosby initiated a pro se lawsuit under 42 U.S.C. § 1983 against the arresting officers, alleging excessive force and an attempted coverup. Crosby was appointed counsel, who filed an amended complaint naming only Gonzalez and suing only for excessive force and improper entry. The parties settled, and the district court dismissed Gonzalez's claims with prejudice in May 2015. The settlement agreement was between Crosby, Gonzalez, and “Defendant, City of Chicago,” though the latter had not been *360 named as a defendant in the complaint. It provided that Crosby would receive $5,000 in exchange for releasing all claims he had or has against the individual Defendant, Eduardo Gonzalez, and the City of Chicago, and its future, current or former officers ..., including but not limited to all claims he had, has, or may have in the future, under local, state, or federal law, arising either directly or indirectly out of the incident which was the basis of this litigation, and that such release and discharge also is applicable to any and all unnamed and/or unserved defendants. The contract also stipulated that Crosby's attorney “interpreted, completely read and explained” its contents to Crosby, that it was governed by Illinois law, and that it was not to be “construed against a party merely because that party is or was the principal drafter.” Crosby, his attorney, and the City's attorneys signed the agreement. Three years after Crosby entered this settlement, he filed another suit, this one against the City, Gonzalez, and the officers who backed up Gonzalez's story. He did not rehash his claim for Gonzalez's use of excessive force; instead, he focused on the officers’ alleged lie that he possessed a gun during the arrest. Crosby characterized this as a fabrication designed to cover up Gonzalez's misconduct, and as a result of this lie, he said, he was unlawfully detained before trial, maliciously prosecuted, and wrongfully convicted and imprisoned. The defendants argued that Crosby's release of “all possible claims that arise directly or indirectly from the ‘incident’ ” plainly encompassed his claims regarding the defendants’ coverup of Gonzalez's misconduct. The district court agreed and entered judgment against Crosby; in a separate order, it dealt with the parties’ dispute over costs.1 While it rejected some of the City's claimed costs on the ground that they involved nonessential copying, it awarded the City $2,131.60 for the printing of transcripts of Crosby's state-court criminal proceedings. The City reasonably printed the transcripts, the district court concluded, because Crosby's state-court proceedings were relevant to this litigation. Crosby appeals both the judgment against him and the district court's award of costs to the City. II. Crosby acknowledges that the agreement releases “all claims he had, has, or may have in the future ... arising either directly or indirectly out of the incident which was the basis of this litigation.” But he insists that this language is not as broad as it appears. He points out that the first four paragraphs of the agreement refer to his complaint against Gonzalez; for example, the third paragraph states that “settlement of these claims is not an admission of liability ....” According to Crosby, these specific references narrow the scope of the general release that appears later in the contract, indicating that the claims that he asserted in his first suit—the ones against Gonzalez for excessive force—are the only ones encompassed by the release. Crosby invokes Illinois law, which governs the construction of the contract, to support his position. In Gladinus v. Laughlin, the front of a check from an insurance company was coded for property damage to a car, and the check was for the exact amount of damage to the plaintiff's *361 vehicle. Even though the back of the check noted that by endorsing the check, “the payee/s agree/s to release and discharge all claims against [the insurance company],” the court held that the front of the check established “the understanding of all concerned parties that the release affected her claim for property damage only and not her action for personal injuries.” 51 Ill.App.3d 694, 9 Ill.Dec. 173, 366 N.E.2d 430, 431–33 (1977). Similarly, in Chicago Transit Authority v. Yellow Cab Co., the plaintiff had signed a release containing a four-digit code that referred exclusively to a property damage claim, the settlement was for the exact amount of damage done to the bus involved in the accident, and affidavits of the plaintiff's claims adjusters stated that they contemplated releasing only the claim for property damage. Given this evidence, the court held that the release did not include claims for personal injuries arising from the accident despite broader language in the release. 123 Ill.App.3d 764, 79 Ill.Dec. 184, 463 N.E.2d 738, 741 (1984). 1 Crosby argues that these cases establish a rule that an agreement's reference to a specific claim always limits an otherwise general release to only the claim mentioned. That position reflects a significant misunderstanding of these cases. Under Illinois law, “the intention of the parties controls the scope and effect of the release; such intent is determined from the language of the instrument when read in light of the circumstances surrounding the transaction.” Gladinus, 366 N.E.2d at 432. Gladinus and Chicago Transit Authority simply apply that rule, holding that the language of the relevant contracts—which were coded for property damage with settlement amounts to match—reflected the parties’ intent to release only claims for property damage. 2 The contract between Crosby, Gonzalez, and the City is markedly different from those at issue in Gladinus and Chicago Transit Authority. The latter contracts contained very specific indicia of the parties’ intent to restrict ostensibly broad language; the references to the underlying suit in Crosby's settlement agreement are not analogous. It would have been odd for the settlement not to mention the underlying suit that prompted it; the desire to dispose of those claims is what drove the parties to the bargaining table. But the contract makes plain that in exchange for the settlement money, Crosby agreed to do more than dismiss his existing suit with prejudice: he also agreed to release the City, Gonzalez, and its officers from liability for “all claims he had, has, or may have in the future ... arising either directly or indirectly out of the incident which was the basis of this litigation.” The agreement was designed to resolve all claims related to the incident, not only the ones that Crosby asserted in his first suit. Crosby offers another reason why we should construe the scope-of-release clause narrowly. The clause releases claims “arising either directly or indirectly out of the incident which was the basis of this litigation.” As Crosby sees it, the “incident” to which the contract refers is Gonzalez's act of pushing him through the window; the alleged coverup is a distinct incident that the agreement does not reach. Thus, he maintains, the release bars additional claims related to the use of excessive force, not claims stemming from his pretrial confinement, conviction, and imprisonment. We rejected this very argument in Cannon v. Burge, which involved a similar release. 752 F.3d 1079 (7th Cir. 2014). In Cannon, the plaintiff sued Chicago police officers who tortured him to extract a confession of a crime for which he was ultimately convicted and imprisoned. He settled *362 the suit for a modest sum in a contract that released not only the claims asserted against the defendant officers, but also “all claims he has, or may have in the future, arising either directly or indirectly out of the incident which was the basis of this litigation.” Id. at 1083. Years later, the plaintiff sued the City and various employees for, among other things, malicious prosecution, deprivation of a fair trial, and false imprisonment. To escape the release, the plaintiff “attempt[ed] to carve out his claims for wrongful conviction and malicious prosecution as separate and distinct incidents not covered by the settlement.” We rebuffed that attempt, observing that it “ignore[d] ... the ‘arising from’ language in the 1988 Stipulation.” Id. at 1092. The same reasoning controls here. Crosby released all claims “arising either directly or indirectly out of the incident.” Even if “the incident” refers to Crosby's fall through the window rather than the arrest as a whole, Crosby's claims regarding the coverup plainly “aris[e] from” the incident that was being covered up. As in Cannon, the language of the release plainly encompasses his claims for wrongs committed after his arrest; it forecloses his attempt to carve those claims out. 3 4 5 Cannon dispenses with Crosby's next argument too. Crosby maintains that he did not release his claims for injuries caused by the coverup because they “did not exist” when he signed the settlement agreement. He could not assert his state-law claim for malicious prosecution until his conviction was vacated, see Cult Awareness Network v. Church of Scientology Int'l, 177 Ill.2d 267, 226 Ill.Dec. 604, 685 N.E.2d 1347, 1350 (1997), his federal claim for unlawful pretrial detention until he was released, Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018), or his federal claim for unlawful conviction until he obtained a favorable disposition, see Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). These were “future” claims, Crosby says, and Illinois disfavors the release of claims that have not accrued at the time the agreement is entered. But as we explained in Cannon, what matters under Illinois law is whether the parties could foresee these claims, not whether they had accrued at the time of the settlement. Like Crosby, the plaintiff in Cannon “had already been wrongfully convicted as a result of what he assert[ed] to be a malicious prosecution”; we noted that the fact “[t]hat he could not bring these claims until his conviction was set aside is irrelevant to the clear language of the ... Stipulation.” Cannon, 752 F.3d at 1092. The relevant question is whether these claims were within the contemplation of the parties. See Farm Credit Bank of St. Louis v. Whitlock, 144 Ill.2d 440, 163 Ill.Dec. 510, 581 N.E.2d 664, 667 (1991) (“[W]here both parties were aware of an additional claim at the time of signing the release, courts have given effect to the general release language of the agreement to release that claim as well.”); Rakowski v. Lucente, 104 Ill.2d 317, 84 Ill.Dec. 654, 472 N.E.2d 791, 794 (1984) (noting that the plaintiff “knew when he executed the release” that the defendant “may have contributed to the accident”). And harms that arose from the same incident that was the subject of the Cannon plaintiff's first suit—indeed, harms that he had already suffered at the time he signed the release—were necessarily within the contemplation of the parties. Crosby is similarly situated to the plaintiff in Cannon: he was well aware that he might have claims for malicious prosecution, unlawful detention, and unlawful conviction at the time he signed the release. In fact, he appeared to assert some of these claims in the first complaint that he *363 filed in the original suit, see Complaint at 2–3, Crosby v. Gonzalez, No. 12–cv–5622 (N.D. Ill. July 17, 2012), even though his amended complaint dropped them. Moreover, the Illinois intermediate appellate court had reversed his conviction more than a year before he signed the settlement agreement, so he knew at that point that bringing these claims was a very real—perhaps imminent—possibility.2 See People v. Crosby, 2014 IL App (1st) 121645-U, 2014 WL 992054, vacated, 406 Ill.Dec. 173, 60 N.E.3d 75 (Ill. 2016). 6 Still bucking Cannon, Crosby insists that a plaintiff's release of future claims is unenforceable. But again, the relevant question is whether the claims were within the contemplation of the parties. Illinois does not prohibit the release of foreseeable claims; it prohibits the blanket release of claims that are “not within the contemplation of the parties.” Feltmeier v. Feltmeier, 207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d 75, 89 (2003). And as we have already explained, claims related to Crosby's detention and prosecution were plainly foreseeable to the City, Gonzalez, and Crosby himself. But, Crosby protests, Illinois requires a “clear expression” of intent to extinguish future claims, see Chubb v. Amax Coal Co., 125 Ill.App.3d 682, 80 Ill.Dec. 917, 466 N.E.2d 369, 372 (1984), and his release is “inconsistent” and “ambiguous.” It “illogically” discharges “all claims he had [or] has” against the City and its officers, “including but not limited to all claims that he had, has, or may have in the future.” How, Crosby asks, can future claims be included in claims that one “had or has?” We will put aside Crosby's characterization of his post-arrest claims as “future” claims. As we have already explained, the relevant question is whether the claims were within the contemplation of the parties, not whether they had accrued. Regardless, Crosby's effort to gin up ambiguity is unavailing. The phrase is plainly designed to encompass any past, present, or future claims arising out of the incident that was the subject of his first suit. Illinois courts “will not strain to find an ambiguity where none exists,” so neither will we. Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill.2d 11, 291 Ill.Dec. 269, 823 N.E.2d 561, 564 (2005). Crosby is bound by the terms to which he agreed, even if he regrets them now. III. There is one final matter: costs. Crosby argues that the district court should not have permitted the City to recover the costs that it incurred in procuring court transcripts of Crosby's state criminal proceedings. As Crosby sees it, the defendants failed to show that their requested costs were reasonable under Rule 54(d). 7 8 9 Challenging a district court's award of costs is an uphill battle. “We have made it clear that Rule 54(d) creates a presumption that the prevailing party will recover costs, and that the ultimate decision to award costs is within the district court's discretion.” M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991); see also Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005) (“There is a presumption that the prevailing party will recover costs, and the losing party bears the *364 burden of an affirmative showing that taxed costs are not appropriate.”). As a result, “we will reverse the district court's determination on the reasonableness and necessity of the expenses only for an abuse of discretion.” M.T. Bonk Co., 945 F.2d at 1409; see also Beamon, 411 F.3d at 864. Crosby has done nothing to show that the City's requested costs were unreasonable, much less that the district court abused its discretion in granting the City's request.

Barrett

majority

This case is about the scope of a release in a settlement agreement. In 2015, Ronald Crosby settled a lawsuit against Eduardo Gonzalez, a Chicago police officer who allegedly shoved Crosby out of a third-floor window before arresting him. In the settlement stipulation, Crosby released “all claims he had, has, or may have in the future arising either directly or indirectly out of the incident” against Gonzalez, the City of Chicago, and all future, current, or former City officers. Crosby insists that this release does not bar his new suit against the City and its officers for torts they committed in the course of covering up Gonzalez's misconduct. We disagree. I. In 2010, Ronald Crosby plummeted three stories from a window before Eduardo Gonzalez, a Chicago police officer, arrested him. Crosby maintains that Gonzalez intentionally pushed him through the window and then tried to justify his actions by falsely claiming—with corroboration from other officers who were present—that Crosby possessed a gun during the arrest. This alleged lie had grave consequences for Crosby: he was charged under the Illinois armed career criminal statute, convicted by a jury, and sentenced to eight years in prison. His conviction was reversed in 2014 by an Illinois intermediate appellate court and again by the same court in 2016 after the Supreme Court of Illinois vacated the first reversal. Between the initial reversal of his conviction and the Illinois Supreme Court's order vacating that reversal, Crosby initiated a pro se lawsuit under against the arresting officers, alleging excessive force and an attempted coverup. Crosby was appointed counsel, who filed an amended complaint naming only Gonzalez and suing only for excessive force and improper entry. The parties settled, and the district court dismissed Gonzalez's claims with prejudice in May 2015. The settlement agreement was between Crosby, Gonzalez, and “Defendant, City of Chicago,” though the latter had not been *360 named as a defendant in the complaint. It provided that Crosby would receive $5,000 in exchange for releasing all claims he had or has against the individual Defendant, Eduardo Gonzalez, and the City of Chicago, and its future, current or former officers, including but not limited to all claims he had, has, or may have in the future, under local, state, or federal law, arising either directly or indirectly out of the incident which was the basis of this litigation, and that such release and discharge also is applicable to any and all unnamed and/or unserved defendants. The contract also stipulated that Crosby's attorney “interpreted, completely read and explained” its contents to Crosby, that it was governed by Illinois law, and that it was not to be “construed against a party merely because that party is or was the principal drafter.” Crosby, his attorney, and the City's attorneys signed the agreement. Three years after Crosby entered this settlement, he filed another suit, this one against the City, Gonzalez, and the officers who backed up Gonzalez's story. He did not rehash his claim for Gonzalez's use of excessive force; instead, he focused on the officers’ alleged lie that he possessed a gun during the arrest. Crosby characterized this as a fabrication designed to cover up Gonzalez's misconduct, and as a result of this lie, he said, he was unlawfully detained before trial, maliciously prosecuted, and wrongfully convicted and imprisoned. The defendants argued that Crosby's release of “all possible claims that arise directly or indirectly from the ‘incident’ ” plainly encompassed his claims regarding the defendants’ coverup of Gonzalez's misconduct. The district court agreed and entered judgment against Crosby; in a separate order, it dealt with the parties’ dispute over costs.1 While it rejected some of the City's claimed costs on the ground that they involved nonessential copying, it awarded the City $2,131.60 for the printing of transcripts of Crosby's state-court criminal proceedings. The City reasonably printed the transcripts, the district court concluded, because Crosby's state-court proceedings were relevant to this litigation. Crosby appeals both the judgment against him and the district court's award of costs to the City. II. Crosby acknowledges that the agreement releases “all claims he had, has, or may have in the future arising either directly or indirectly out of the incident which was the basis of this litigation.” But he insists that this language is not as broad as it appears. He points out that the first four paragraphs of the agreement refer to his complaint against Gonzalez; for example, the third paragraph states that “settlement of these claims is not an admission of liability” According to Crosby, these specific references narrow the scope of the general release that appears later in the contract, indicating that the claims that he asserted in his first suit—the ones against Gonzalez for excessive force—are the only ones encompassed by the release. Crosby invokes Illinois law, which governs the construction of the contract, to support his position. In Gladinus v. Laughlin, the front of a check from an insurance company was coded for property damage to a car, and the check was for the exact amount of damage to the plaintiff's *361 vehicle. Even though the back of the check noted that by endorsing the check, “the payee/s agree/s to release and discharge all claims against [the insurance company],” the court held that the front of the check established “the understanding of all concerned parties that the release affected her claim for property damage only and not her action for personal injuries.” Similarly, in Chicago Transit Authority v. Yellow Cab Co., the plaintiff had signed a release containing a four-digit code that referred exclusively to a property damage claim, the settlement was for the exact amount of damage done to the bus involved in the accident, and affidavits of the plaintiff's claims adjusters stated that they contemplated releasing only the claim for property damage. Given this evidence, the court held that the release did not include claims for personal injuries arising from the accident despite broader language in the release. 1 Crosby argues that these cases establish a rule that an agreement's reference to a specific claim always limits an otherwise general release to only the claim mentioned. That position reflects a significant misunderstanding of these cases. Under Illinois law, “the intention of the parties controls the scope and effect of the release; such intent is determined from the language of the instrument when read in light of the circumstances surrounding the transaction.” Gladinus, Gladinus and Chicago Transit Authority simply apply that rule, holding that the language of the relevant contracts—which were coded for property damage with settlement amounts to match—reflected the parties’ intent to release only claims for property damage. 2 The contract between Crosby, Gonzalez, and the City is markedly different from those at issue in Gladinus and Chicago Transit Authority. The latter contracts contained very specific indicia of the parties’ intent to restrict ostensibly broad language; the references to the underlying suit in Crosby's settlement agreement are not analogous. It would have been odd for the settlement not to mention the underlying suit that prompted it; the desire to dispose of those claims is what drove the parties to the bargaining table. But the contract makes plain that in exchange for the settlement money, Crosby agreed to do more than dismiss his existing suit with prejudice: he also agreed to release the City, Gonzalez, and its officers from liability for “all claims he had, has, or may have in the future arising either directly or indirectly out of the incident which was the basis of this litigation.” The agreement was designed to resolve all claims related to the incident, not only the ones that Crosby asserted in his first suit. Crosby offers another reason why we should construe the scope-of-release clause narrowly. The clause releases claims “arising either directly or indirectly out of the incident which was the basis of this litigation.” As Crosby sees it, the “incident” to which the contract refers is Gonzalez's act of pushing him through the window; the alleged coverup is a distinct incident that the agreement does not reach. Thus, he maintains, the release bars additional claims related to the use of excessive force, not claims stemming from his pretrial confinement, conviction, and imprisonment. We rejected this very argument in In Cannon, the plaintiff sued Chicago police officers who tortured him to extract a confession of a crime for which he was ultimately convicted and imprisoned. He settled *362 the suit for a modest sum in a contract that released not only the claims asserted against the defendant officers, but also “all claims he has, or may have in the future, arising either directly or indirectly out of the incident which was the basis of this litigation.” Years later, the plaintiff sued the City and various employees for, among other things, malicious prosecution, deprivation of a fair trial, and false imprisonment. To escape the release, the plaintiff “attempt[ed] to carve out his claims for wrongful conviction and malicious prosecution as separate and distinct incidents not covered by the settlement.” We rebuffed that attempt, observing that it “ignore[d] the ‘arising from’ language in the 1988 Stipulation.” The same reasoning controls here. Crosby released all claims “arising either directly or indirectly out of the incident.” Even if “the incident” refers to Crosby's fall through the window rather than the arrest as a whole, Crosby's claims regarding the coverup plainly “aris[e] from” the incident that was being covered up. As in Cannon, the language of the release plainly encompasses his claims for wrongs committed after his arrest; it forecloses his attempt to carve those claims out. 3 4 5 Cannon dispenses with Crosby's next argument too. Crosby maintains that he did not release his claims for injuries caused by the coverup because they “did not exist” when he signed the settlement agreement. He could not assert his state-law claim for malicious prosecution until his conviction was vacated, see Cult Awareness his federal claim for unlawful pretrial detention until he was released, or his federal claim for unlawful conviction until he obtained a favorable disposition, see These were “future” claims, Crosby says, and Illinois disfavors the release of claims that have not accrued at the time the agreement is entered. But as we explained in Cannon, what matters under Illinois law is whether the parties could foresee these claims, not whether they had accrued at the time of the settlement. Like Crosby, the plaintiff in Cannon “had already been wrongfully convicted as a result of what he assert[ed] to be a malicious prosecution”; we noted that the fact “[t]hat he could not bring these claims until his conviction was set aside is irrelevant to the clear language of the Stipulation.” Cannon, 752 F.3d The relevant question is whether these claims were within the contemplation of the parties. See Farm Credit Bank of St. ; And harms that arose from the same incident that was the subject of the Cannon plaintiff's first suit—indeed, harms that he had already suffered at the time he signed the release—were necessarily within the contemplation of the parties. Crosby is similarly situated to the plaintiff in Cannon: he was well aware that he might have claims for malicious prosecution, unlawful detention, and unlawful conviction at the time he signed the release. In fact, he appeared to assert some of these claims in the first complaint that he *363 filed in the original suit, see Complaint at 2–3, Crosby v. Gonzalez, No. 12–cv–5622 (N.D. Ill. July 17, 2012), even though his amended complaint dropped them. Moreover, the Illinois intermediate appellate court had reversed his conviction more than a year before he signed the settlement agreement, so he knew at that point that bringing these claims was a very real—perhaps imminent—possibility.2 See 6 Still bucking Cannon, Crosby insists that a plaintiff's release of future claims is unenforceable. But again, the relevant question is whether the claims were within the contemplation of the parties. Illinois does not prohibit the release of foreseeable claims; it prohibits the blanket release of claims that are “not within the contemplation of the parties.” And as we have already explained, claims related to Crosby's detention and prosecution were plainly foreseeable to the City, Gonzalez, and Crosby himself. But, Crosby protests, Illinois requires a “clear expression” of intent to extinguish future claims, see and his release is “inconsistent” and “ambiguous.” It “illogically” discharges “all claims he had [or] has” against the City and its officers, “including but not limited to all claims that he had, has, or may have in the future.” How, Crosby asks, can future claims be included in claims that one “had or has?” We will put aside Crosby's characterization of his post-arrest claims as “future” claims. As we have already explained, the relevant question is whether the claims were within the contemplation of the parties, not whether they had accrued. Regardless, Crosby's effort to gin up ambiguity is unavailing. The phrase is plainly designed to encompass any past, present, or future claims arising out of the incident that was the subject of his first suit. Illinois courts “will not strain to find an ambiguity where none exists,” so neither will we. Crosby is bound by the terms to which he agreed, even if he regrets them now. III. There is one final matter: costs. Crosby argues that the district court should not have permitted the City to recover the costs that it incurred in procuring court transcripts of Crosby's state criminal proceedings. As Crosby sees it, the defendants failed to show that their requested costs were reasonable under Rule 54(d). 7 8 9 Challenging a district court's award of costs is an uphill battle. “We have made it clear that Rule 54(d) creates a presumption that the prevailing party will recover costs, and that the ultimate decision to award costs is within the district court's discretion.” M.T. Bonk ; see also As a result, “we will reverse the district court's determination on the reasonableness and necessity of the expenses only for an abuse of discretion.” M.T. Bonk Co., 945 F.2d at ; see also 411 F.3d at Crosby has done nothing to show that the City's requested costs were unreasonable, much less that the district court abused its discretion in granting the City's request.

Dalton v. Teva North America

Cheryl Dalton appeals the summary judgment entered against her in this products liability case. The district court held that Dalton's claims failed under Indiana law because she did not provide expert evidence on the issue of causation. Dalton contends that she did not have to provide expert evidence because the cause of her injuries would be readily apparent to a lay juror. Because the district court correctly applied Indiana law, we affirm. I. In 2007, Dalton's doctor implanted a ParaGard Intrauterine Device (“IUD”) in her uterus. An IUD is a form of long-term birth control, and the one Dalton used is manufactured, marketed, and distributed by a group of corporate affiliates whom we will collectively call “Teva.” It is not clear what role each of those corporate affiliates plays in relation to this IUD, but this appeal does not require us to sort that out. Dalton became dissatisfied with the IUD in 2013 and asked her doctor to remove it. The doctor did so by grasping the IUD's strings with a ring forcep and pulling the IUD down. The procedure, however, removed only part of the IUD. A piece had broken off either before or during the removal, and that piece was now lodged in her uterus. Dalton's doctor advised her that removing the remaining portion of the IUD would require a hysterectomy. Dalton sued Teva in federal court. She asserted three products liability claims, which she styled as “strict liability,” “strict products liability failure to warn,” and “manufacturer's defect.” Under the case-management plan submitted by the parties and adopted by the district court, Dalton had until November 18th to disclose any expert witness and serve the expert witness report required by Federal Rule of Civil Procedure 26(a)(2). When Dalton made no expert disclosures, Teva moved for summary judgment. It argued that Indiana law requires expert testimony to show causation in products liability actions, and Dalton's failure to procure any meant that she could not prove an essential element of her claims. Dalton responded that the causation issue was so straightforward that expert testimony was unnecessary. The district court granted summary judgment to Teva. II. 1 2 It has been a struggle to get the information we need to determine whether *690 subject matter jurisdiction exists in this case. Because the claims in this suit arise under state law, Dalton relied on the diversity jurisdiction statute, 28 U.S.C. § 1332, to bring her case in federal court. That statute requires complete diversity among the parties, and proving the citizenship of each party is Dalton's burden.1 Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008). There is no problem with the five defendants whom Dalton sued under the name “John Doe.” Those defendants were nominal parties who served as placeholders in the event that Dalton found additional people to sue, and we have held that the citizenship of such defendants can be disregarded for diversity jurisdiction. Moore v. Gen. Motors Pension Plans, 91 F.3d 848, 850 (7th Cir. 1996). But Dalton must establish the citizenship of the eight other defendants who are purportedly within the Teva corporate family—Teva Pharmaceuticals USA Inc., Teva Neuroscience Inc., Teva Women's Health LLC, and so on. 3 4 Dalton's complaint did not allege the citizenship of these defendants. It asserted that the defendants as a group “are incorporated and have their headquarters in the state of Pennsylvania or another state different from the Plaintiff.” But a complaint may not merely allege diversity of citizenship without identifying the defendants’ states of citizenship, McCready v. eBay, Inc., 453 F.3d 882, 890–91 (7th Cir. 2006), and it is difficult to perceive any material difference between that practice and the bare assertion that the defendants are citizens of “another state different from the Plaintiff.” And even if we assume that all eight named defendants are corporations, what matters for the citizenship of a corporation is its state of incorporation and its principal place of business, not its “headquarters.” Hertz Corp. v. Friend, 559 U.S. 77, 93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Unfortunately, the citizenship of the Teva defendants was never clarified in the district court. 5 Dalton's opening brief on appeal was similarly deficient. In any case premised upon diversity jurisdiction, Circuit Rule 28(a)(1) requires the appellant to include a jurisdictional statement identifying “the jurisdictional amount and the citizenship of each party to the litigation.” Even though we have clearly stated that “an appellant's naked declaration that there is diversity of citizenship is never sufficient,” Thomas v. Guardsmark, LLC, 487 F.3d 531, 533 (7th Cir. 2007), Dalton stated only that the case “involves a diversity of citizenship.” After we ordered her to file a new jurisdictional statement, she asserted her own citizenship (Indiana), the citizenship of three corporate defendants (Pennsylvania), and the fact that two other corporate defendants were just prior names of those three Pennsylvania citizens. Teva's brief clarified that the three Pennsylvania citizens identified by Dalton are actually citizens of both Pennsylvania and Delaware. But rather than stating the citizenship of the remaining three defendants, Teva merely asserted that they were never served and did not appear in the district court. That may be, but because those parties were not dismissed from the case, we must still account for their citizenship. By failing to address it, Teva violated Circuit Rule 28, which obligates an appellee to provide a complete and correct jurisdictional statement when the appellant's statement falls short. *691 We raised these problems at oral argument, and in post-argument supplemental briefing, the parties finally accounted for the three remaining defendants. We now know that one unserved defendant is just the past name of another unserved defendant, who is a citizen of Delaware and Kansas, and that the final unserved defendant does not exist and has never existed. Having confirmed that no defendant is a citizen of Indiana, we are finally able to conclude that subject-matter jurisdiction exists. It should not have taken us two rounds of jurisdictional statements, oral argument, and supplemental briefing to extract this basic information from the parties. III. 6 7 Dalton's claims arise under the Indiana Products Liability Act, which governs all consumer actions against a manufacturer for physical harm caused by a product, “regardless of the substantive legal theory or theories upon which the action is brought.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 809 (Ind. 2007) (quoting Ind. Code § 34-20-1-1); see also Piltch v. Ford Motor Co., 778 F.3d 628, 632 (7th Cir. 2015) (applying the Indiana Products Liability Act to claims alleging “a design defect, a manufacturing defect, or a failure to warn”). Under any of those theories, she must prove that her injury was proximately caused by whatever defect or breach of duty underlies her claim. Id.; see also Rushford, 868 N.E.2d at 810. Dalton lost below because, believing it was unnecessary, she chose not to rely on expert testimony to prove the causation element in this case. Whether she is right about that depends on what the Indiana Products Liability Act requires. 8 9 10 The Act insists upon expert testimony when an issue “is not within the understanding of a lay person.” Piltch, 778 F.3d at 632. Causation is often such an issue. See, e.g., id. at 634; U-Haul Int'l, Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271, 285 n.3 (Ind. Ct. App. 2000); Daub v. Daub, 629 N.E.2d 873, 877–78 (Ind. Ct. App. 1994). If the circumstantial evidence in a case would require a lay juror to engage in “pure speculation” to find causation, then expert evidence is necessary under Indiana law. Piltch, 778 F.3d at 634. 11 Dalton contends that “proximate cause is obvious” in this case because it involves “uncomplicated facts that lead to only on[e] conclusion.” In Dalton's view, a juror could look at a broken IUD and plainly see that some error of Teva's caused the break. But as the district court held, that is exactly the sort of speculation that is insufficient to sustain a products liability action under the Indiana law. Dalton provides no explanation for how a lay juror faced with a broken IUD could identify the cause of the break—maybe the IUD was damaged after coming into the possession of the physician, maybe human error resulted in damage or some other problem during implantation or removal, or maybe there's another explanation entirely. This case is far removed from situations in which a causation issue is so obvious that a plaintiff may forgo expert testimony. See, e.g., Higgins v. Koch Dev. Corp., 794 F.3d 697, 702 (7th Cir. 2015) (“[W]hen a plaintiff suffers from a broken leg or a gash when hit by a vehicle, he doesn't need to produce expert testimony.” (quoting Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 643 (7th Cir. 2010) ). It is far more like Piltch, a products liability case in which we held that a similarly sparse set of facts was insufficient to override the need for expert evidence to show defect and causation. There, the plaintiffs suffered serious injuries when their SUV crashed. *692 Piltch, 778 F.3d at 631. They contended that a manufacturing or design defect had prevented their airbags from deploying, which increased the severity of their injuries. Id. But the plaintiffs designated no expert witness; instead, they chose to rely on their experience in the accident and the owner manual's statement that the airbags were supposed to deploy in a crash. Id. We held that the plaintiffs could not show the existence of a design defect without having an expert witness testify about potential alternative designs, and they could not show the existence of a manufacturing defect without expert testimony (or some other, more persuasive circumstantial evidence) showing that the airbags as designed should have deployed in the crash. Id. at 632–33. Just as in Piltch, a judgment for the plaintiff in this case would require the jurors to speculate about the existence of a defect, the reason for the proven defect, and that the proven defect caused the break. Contrary to Dalton's contention, the issue of causation in her case is not obvious. The district court was therefore correct to hold that Dalton could not prove her tort claims without expert testimony. IV. 12 Dalton's remaining argument is difficult to parse. She appears to contend that even if expert testimony is necessary on her manufacturing-defect claim, it is unnecessary on her claims that are denominated as “strict liability” and “failure to warn.” Her argument on this point is only one sentence, and inadequately briefed arguments are forfeited. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). Dalton shifts gears in her reply brief. This argument is also unclear, but she seems to fault the district court's opinion for failing to address why it was entering summary judgment on her failure-to-warn and strict-liability claims. She has misunderstood the district court's opinion. The court discussed Dalton's wholesale failure to provide evidence of causation, and all of her claims require proof of causation. Kovach v. Caligor Midwest, 913 N.E.2d 193, 199 (Ind. 2009) (holding that a plaintiff in a failure-to-warn case must establish causation); Rushford, 868 N.E.2d at 810 (“[W]ith respect to strict liability actions, the plaintiff must prove that ... the defective condition was the proximate cause of the plaintiff's injuries.”). Even if we were to consider an argument raised for the first time in a reply brief, there would be no cause for second-guessing here.

Barrett

majority

Cheryl Dalton appeals the summary judgment entered against her in this products liability case. The district court held that Dalton's claims failed under Indiana law because she did not provide expert evidence on the issue of causation. Dalton contends that she did not have to provide expert evidence because the cause of her injuries would be readily apparent to a lay juror. Because the district court correctly applied Indiana law, we affirm. I. In 2007, Dalton's doctor implanted a ParaGard Intrauterine Device (“IUD”) in her uterus. An IUD is a form of long-term birth control, and the one Dalton used is manufactured, marketed, and distributed by a group of corporate affiliates whom we will collectively call “Teva.” It is not clear what role each of those corporate affiliates plays in relation to this IUD, but this appeal does not require us to sort that out. Dalton became dissatisfied with the IUD in 2013 and asked her doctor to remove it. The doctor did so by grasping the IUD's strings with a ring forcep and pulling the IUD down. The procedure, however, removed only part of the IUD. A piece had broken off either before or during the removal, and that piece was now lodged in her uterus. Dalton's doctor advised her that removing the remaining portion of the IUD would require a hysterectomy. Dalton sued Teva in federal court. She asserted three products liability claims, which she styled as “strict liability,” “strict products liability failure to warn,” and “manufacturer's defect.” Under the case-management plan submitted by the parties and adopted by the district court, Dalton had until November 18th to disclose any expert witness and serve the expert witness report required by Federal Rule of Civil Procedure 26(a)(2). When Dalton made no expert disclosures, Teva moved for summary judgment. It argued that Indiana law requires expert testimony to show causation in products liability actions, and Dalton's failure to procure any meant that she could not prove an essential element of her claims. Dalton responded that the causation issue was so straightforward that expert testimony was unnecessary. The district court granted summary judgment to Teva. II. 1 2 It has been a struggle to get the information we need to determine whether *690 subject matter jurisdiction exists in this case. Because the claims in this suit arise under state law, Dalton relied on the diversity jurisdiction statute, to bring her case in federal court. That statute requires complete diversity among the parties, and proving the citizenship of each party is Dalton's burden.1 There is no problem with the five defendants whom Dalton sued under the name “John Doe.” Those defendants were nominal parties who served as placeholders in the event that Dalton found additional people to sue, and we have held that the citizenship of such defendants can be disregarded for diversity jurisdiction. But Dalton must establish the citizenship of the eight other defendants who are purportedly within the Teva corporate family—Teva Pharmaceuticals USA Inc., Teva Neuroscience Inc., Teva Women's Health LLC, and so on. 3 4 Dalton's complaint did not allege the citizenship of these defendants. It asserted that the defendants as a group “are incorporated and have their headquarters in the state of Pennsylvania or another state different from the Plaintiff.” But a complaint may not merely allege diversity of citizenship without identifying the defendants’ states of citizenship, and it is difficult to perceive any material difference between that practice and the bare assertion that the defendants are citizens of “another state different from the Plaintiff.” And even if we assume that all eight named defendants are corporations, what matters for the citizenship of a corporation is its state of incorporation and its principal place of business, not its “headquarters.” Hertz Unfortunately, the citizenship of the Teva defendants was never clarified in the district court. 5 Dalton's opening brief on appeal was similarly deficient. In any case premised upon diversity jurisdiction, Circuit Rule 28(a)(1) requires the appellant to include a jurisdictional statement identifying “the jurisdictional amount and the citizenship of each party to the litigation.” Even though we have clearly stated that “an appellant's naked declaration that there is diversity of citizenship is never sufficient,” Dalton stated only that the case “involves a diversity of citizenship.” After we ordered her to file a new jurisdictional statement, she asserted her own citizenship (Indiana), the citizenship of three corporate defendants (Pennsylvania), and the fact that two other corporate defendants were just prior names of those three Pennsylvania citizens. Teva's brief clarified that the three Pennsylvania citizens identified by Dalton are actually citizens of both Pennsylvania and Delaware. But rather than stating the citizenship of the remaining three defendants, Teva merely asserted that they were never served and did not appear in the district court. That may be, but because those parties were not dismissed from the case, we must still account for their citizenship. By failing to address it, Teva violated Circuit Rule 28, which obligates an appellee to provide a complete and correct jurisdictional statement when the appellant's statement falls short. *691 We raised these problems at oral argument, and in post-argument supplemental briefing, the parties finally accounted for the three remaining defendants. We now know that one unserved defendant is just the past name of another unserved defendant, who is a citizen of Delaware and Kansas, and that the final unserved defendant does not exist and has never existed. Having confirmed that no defendant is a citizen of Indiana, we are finally able to conclude that subject-matter jurisdiction exists. It should not have taken us two rounds of jurisdictional statements, oral argument, and supplemental briefing to extract this basic information from the parties. III. 6 7 Dalton's claims arise under the Indiana Products Liability Act, which governs all consumer actions against a manufacturer for physical harm caused by a product, “regardless of the substantive legal theory or theories upon which the action is brought.” Ford Motor ; see also Under any of those theories, she must prove that her injury was proximately caused by whatever defect or breach of duty underlies her claim. ; see also Dalton lost below because, believing it was unnecessary, she chose not to rely on expert testimony to prove the causation element in this case. Whether she is right about that depends on what the Indiana Products Liability Act requires. 8 9 10 The Act insists upon expert testimony when an issue “is not within the understanding of a lay person.” 778 F.3d at Causation is often such an issue. See, e.g., ; U-Haul Int'l, ; If the circumstantial evidence in a case would require a lay juror to engage in “pure speculation” to find causation, then expert evidence is necessary under Indiana law. 778 F.3d 11 Dalton contends that “proximate cause is obvious” in this case because it involves “uncomplicated facts that lead to only on[e] conclusion.” In Dalton's view, a juror could look at a broken IUD and plainly see that some error of Teva's caused the break. But as the district court held, that is exactly the sort of speculation that is insufficient to sustain a products liability action under the Indiana law. Dalton provides no explanation for how a lay juror faced with a broken IUD could identify the cause of the break—maybe the IUD was damaged after coming into the possession of the physician, maybe human error resulted in damage or some other problem during implantation or removal, or maybe there's another explanation entirely. This case is far removed from situations in which a causation issue is so obvious that a plaintiff may forgo expert testimony. See, e.g., ). It is far more like a products liability case in which we held that a similarly sparse set of facts was insufficient to override the need for expert evidence to show defect and causation. There, the plaintiffs suffered serious injuries when their SUV crashed. *692 They contended that a manufacturing or design defect had prevented their airbags from deploying, which increased the severity of their injuries. But the plaintiffs designated no expert witness; instead, they chose to rely on their experience in the accident and the owner manual's statement that the airbags were supposed to deploy in a crash. We held that the plaintiffs could not show the existence of a design defect without having an expert witness testify about potential alternative designs, and they could not show the existence of a manufacturing defect without expert testimony (or some other, more persuasive circumstantial evidence) showing that the airbags as designed should have deployed in the crash. at –33. Just as in a judgment for the plaintiff in this case would require the jurors to speculate about the existence of a defect, the reason for the proven defect, and that the proven defect caused the break. Contrary to Dalton's contention, the issue of causation in her case is not obvious. The district court was therefore correct to hold that Dalton could not prove her tort claims without expert testimony. IV. 12 Dalton's remaining argument is difficult to parse. She appears to contend that even if expert testimony is necessary on her manufacturing-defect claim, it is unnecessary on her claims that are denominated as “strict liability” and “failure to warn.” Her argument on this point is only one sentence, and inadequately briefed arguments are forfeited. See Dalton shifts gears in her reply brief. This argument is also unclear, but she seems to fault the district court's opinion for failing to address why it was entering summary judgment on her failure-to-warn and strict-liability claims. She has misunderstood the district court's opinion. The court discussed Dalton's wholesale failure to provide evidence of causation, and all of her claims require proof of causation. 913 N.E.2d 1, ; Even if we were to consider an argument raised for the first time in a reply brief, there would be no cause for second-guessing here.

Doe v. Purdue University

After finding John Doe guilty of sexual violence against Jane Doe, Purdue University suspended him for an academic year and imposed conditions on his readmission. As a result of that decision, John was expelled from the Navy ROTC program, which terminated both his ROTC scholarship and plan to pursue a career in the Navy. John sued the university and several of its officials, asserting two basic claims. First, he argued that they had violated the Fourteenth Amendment by using constitutionally flawed procedures to determine his guilt or innocence. Second, he argued that Purdue had violated Title IX by imposing a punishment infected by sex bias. A magistrate judge dismissed John's suit on the ground that he had failed to state a claim under either theory. We disagree. John has adequately alleged violations of both the Fourteenth Amendment and Title IX. I. We are reviewing the magistrate judge's decision to dismiss John's complaint for failing to state a claim. That means that we must recount the facts as he describes them, drawing every inference in his favor. See D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 682 (7th Cir. 2013). In other words, the story that follows is one-sided because the posture of the case requires it to be. Our task is not to determine what allegations are supported by the evidence but to determine whether John is entitled to relief if everything that he says is true. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). John and Jane were both students in Purdue's Navy ROTC program. They began dating in the fall of 2015, and between October and December, they had consensual sexual intercourse fifteen to twenty times. Jane's behavior became increasingly erratic over the course of that semester, and she told John that she felt hopeless, hated her life, and was contemplating running away. In December, Jane attempted suicide in front of John, and after that incident, they stopped having sex. They continued dating, however, until January, when John tried to get Jane help by reporting her suicide attempt to two resident assistants and an advisor. Jane was upset at John for reporting her, and she distanced herself from him. Soon thereafter, she began dating someone else. For a few months, things were quiet between John and Jane. That changed in April 2016, which was Sexual Assault Awareness Month. During that month, Purdue hosted over a dozen events to promote the reporting of sexual assaults. Many of the events were sponsored by the Center for Advocacy, Response, and Education (CARE), a university center dedicated to supporting victims of sexual violence. CARE promoted the events on its Facebook page, along with posts containing information about sexual assault. One of its posts was an article from The Washington Post titled “Alcohol isn't the cause of campus sexual assault. Men are.” During the first ten days of April, five students reported sexual assault to the university. Jane was one of them. She alleged that in November 2015, she was sleeping with John in his room when she woke to him groping her over her clothes *657 without her consent. According to Jane, she told John that this was not okay, and John then confessed that he had digitally penetrated her while the two were sleeping in Jane's room earlier that month. Jane told the university that John had engaged in other misconduct as well: she asserted that he had gone through her underwear drawer without her permission, chased her through a hallway while joking about tasering her, gone to her room unannounced after they broke up, and lost his temper in front of her. John learned about Jane's accusations in a letter from Katherine Sermersheim, Purdue's Dean of Students and a Title IX coordinator. Sermersheim informed John that the university had elected to pursue Jane's allegations even though Jane had not filed a formal complaint. She outlined the school's disciplinary procedures and explained that two employees who reported to her, Erin Oliver and Jacob Amberger, would investigate the case. She also instructed John not to have any contact with Jane. After he received the letter, John was suspended from the Navy ROTC, banned from all buildings where Jane had classes, and barred from eating in his usual dining hall because Jane also used it. John submitted a written response denying all of Jane's allegations. He asserted that he never had sexual contact with Jane while she was sleeping, through digital penetration or otherwise. He said that there was one night in December, after Jane's suicide attempt, when he touched Jane's knee while she was sleeping on a futon and he was on the floor next to her. But he denied groping her or engaging in any of the harassing behavior of which she had accused him. John also recounted evidence that he thought inconsistent with Jane's claim of sexual assault: she texted and talked to him over the holidays, sent his family a package of homemade Christmas cookies, and invited him to her room when they returned to school in January. He also provided details suggesting that Jane was troubled and emotionally unstable, which he thought might explain her false accusations. Under Purdue's procedures, John was allowed the assistance of a “supporter” at any meeting with investigators. In late April, John and his supporter met with Oliver and Amberger. As he had in his written response, John steadfastly denied Jane's allegations. He provided the investigators with some of the friendly texts that he thought belied her story, as well as a list of over thirty people who could speak to his integrity. When the investigators' report was complete, Sermersheim sent it to a three-person panel of Purdue's Advisory Committee on Equity, which was tasked with making a recommendation to her after reviewing the report and hearing from the parties. Sermersheim called John to appear before the panel, but consistent with Purdue's then-applicable procedures, she neither gave him a copy of the report nor shared its contents with him. Moments before his committee appearance, however, a Navy ROTC representative gave John a few minutes to review a redacted version of the report. To John's distress, he learned that it falsely claimed that he had confessed to Jane's allegations. The investigators' summary of John's testimony also failed to include John's description of Jane's suicide attempt. John and his supporter met with the Advisory Committee and Sermersheim, who chaired the meeting, for about thirty minutes. Jane neither appeared before the panel nor submitted a written statement. Instead, Monica Soto Bloom, the director of CARE, wrote the Advisory Committee *658 and Sermersheim a letter summarizing Jane's accusations. The meeting did not go well for John. Two members of the panel candidly stated that they had not read the investigative report. The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults. The panel refused John permission to present witnesses, including character witnesses and a roommate who would state that he was present in the room at the time of the alleged assault and that Jane's rendition of events was false. A week later, Sermersheim sent John a perfunctory letter informing him that she had found him guilty by a preponderance of the evidence of sexual violence. She suspended John from Purdue for one academic year. In addition, she conditioned John's reentry on his completion of a university-sponsored “bystander intervention training” and his agreement to meet with the Assistant Director of CARE during the first semester of his return. John appealed this decision to Alysa Rollock, Purdue's Vice President for Ethics and Compliance, who instructed Sermersheim to identify the factual basis of her determination. Sermersheim sent a revised letter to John adding the following: Specifically, a preponderance of the evidence supports that: 1. [Jane Doe] had fallen asleep on a futon with you on the floor beside her. She woke up and found that you inappropriately touched her over her clothing and without her consent by placing your hand above her knee, between her legs, and moved it up to her “crotch” areas; and 2. On another occasion, while she was sleeping and without her consent, you inappropriately touched [Jane Doe] by digitally penetrating her vagina. As the basis for these findings, Sermersheim offered: “I find by a preponderance of the evidence that [John Doe] is not a credible witness. I find by a preponderance of the evidence that [Jane Doe] is a credible witness.” John appealed to Rollock again, but this time, Rollock upheld Sermersheim's determination of guilt and accompanying sanctions. A few weeks after his second appeal was denied, John involuntarily resigned from the Navy ROTC, which has a “zero tolerance” policy for sexual harassment. John sued Mitch Daniels, the President of Purdue University; Rollock, the Vice President for Ethics and Compliance; Sermersheim, the Dean and a Title IX coordinator; and Oliver and Amberger, the investigators, in their individual capacities, seeking monetary relief under 42 U.S.C. § 1983.1 He sued these same defendants, along with the members of Purdue's Board of Trustees, in their official capacities, seeking injunctive relief under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to remedy the Fourteenth Amendment violation. And he sued Purdue University for discriminating against him on the basis of sex in violation of Title IX. The magistrate judge dismissed John's § 1983 claims with prejudice, holding that the disciplinary proceedings did not deprive John of either liberty or property, so *659 the Due Process Clause did not apply. He offered an additional reason for dismissing John's § 1983 claim against Daniels: John's theory of liability was based on Daniels's role as supervisor, and there is no supervisory liability under § 1983. As for John's claims for injunctive relief, the magistrate judge dismissed them without prejudice for lack of standing because John had not alleged that the violations posed any threat of future harm. And he dismissed John's claims under Title IX with prejudice on the ground that John had not alleged facts sufficient to show that Purdue discriminated against him on the basis of sex. John appeals each of these rulings. II. We begin with procedural due process. According to John, he was punished pursuant to a process that failed to satisfy the minimum standards of fairness required by the Due Process Clause. He alleges the following deficiencies: he was not provided with the investigative report or any of the evidence on which the decisionmakers relied in determining his guilt and punishment; Jane did not appear before the Advisory Committee; he had no opportunity to cross-examine Jane; Sermersheim found Jane credible even though neither Sermersheim nor the Advisory Committee talked to her in person; Jane did not write her own statement for the panel, much less a sworn one; Sermersheim was in charge of both the investigation and the adjudication of his case; the Advisory Committee was blatantly biased against him; and the Advisory Committee refused to allow him to present any evidence, including witnesses. Yet John cannot recover simply because the procedures were unfair, even if they were. The Due Process Clause is not a general fairness guarantee; its protection kicks in only when a state actor deprives someone of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. The threshold question, then, is whether John lost a liberty or property interest when he was found guilty of sexual violence and punished. We address whether the procedures satisfied minimum constitutional requirements of fairness only if the answer to that question is yes. A. Our precedent involving due process claims in the context of university discipline has focused on whether a student has a protected property interest in his education at a state university. We have explained that “[a] college education—any education—is not ‘property’ in the usual sense of the word.” Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008); see also Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013) (“[O]ur circuit has rejected the proposition that an individual has a stand-alone property interest in an education at a state university, including a graduate education.”).2 Instead, “we ask whether the student has shown that he has a legally protected entitlement to his continued education at the university.” *660 Charleston, 741 F.3d at 773 (emphasis in original). High school students (and, for that matter, elementary school students) have a property interest in their public education because state law entitles them to receive one. Goss v. Lopez, 419 U.S. 565, 573–74, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The same is not true, however, of students at public universities—certainly, John has not contended that Indiana guarantees its residents a college education. 1 2 3 In the context of higher education, any property interest is a matter of contract between the student and the university. Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 601 (7th Cir. 2009) (explaining that the “basic legal relation between a student and a private university or college is contractual in nature” (citation omitted)). And to demonstrate that he possesses the requisite property interest, a university student must do more than show that he has a contract with the university; he must establish that the contract entitled him to the specific right that the university allegedly took, “such as the right to a continuing education or the right not to be suspended without good cause.” Id. at 601. Generalities won't do; “the student's complaint must be specific about the source of this implied contract, the exact promises the university made to the student, and the promises the student made in return.” Charleston, 741 F.3d at 773. John has not adequately alleged that Purdue deprived him of property because his complaint does not point to any specific contractual promise that Purdue allegedly broke.3 To be sure, John asserts that he had a property interest in his continued enrollment at Purdue. But as support for that proposition, his complaint states only that the right arose “from the express and implied contractual relationship” between John and the university. It points to no “identifiable contractual promise that the [university] failed to honor.” Bissessur, 581 F.3d at 602 (alteration in original) (citation omitted). His brief does only slightly better. In it, John insists that the Indiana state courts have held that a student enrolled in a public institution has a property interest in continuing his education. He cites Reilly v. Daly, in which an Indiana court said: “It is without question that a student's interest in pursuing an education is included within the Fourteenth Amendment's protection of liberty and property and that a student facing expulsion or suspension from a public educational institution is therefore entitled to the protections of due process.” 666 N.E.2d 439, 444 (Ind. Ct. App. 1996). But John's reliance on Reilly is misplaced. To begin with, this cryptic sentence—the sum of what the case says on the topic—does not specify whether university disciplinary proceedings implicate liberty or property interests. And to the extent that Reilly refers to property, it does not purport to identify a state-granted property right to pursue higher education. Instead, it appears to express a view about federal law that we have already rejected: that the Due Process Clause protects a generalized property interest in higher education, irrespective of any specific state entitlement. While Indiana is free to align itself with courts taking that view, see supra note 2, our position is clear and to the contrary, see Williams, 530 F.3d at 589 (rejecting “the bald assertion that any student who is suspended from college has suffered a deprivation of constitutional property”). *661 4 John's failure to establish a property interest does not doom his claim, however, because he also maintains that Purdue deprived him of a protected liberty interest: his freedom to pursue naval service, his occupation of choice. To succeed on this theory, John must satisfy the “stigma plus” test, which requires him to show that the state inflicted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held. See Mann v. Vogel, 707 F.3d 872, 878 (7th Cir. 2013); see also Paul v. Davis, 424 U.S. 693, 708–09, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Hinkle v. White, 793 F.3d 764, 767–68 (7th Cir. 2015). John argues that he has satisfied this test because he alleges that Purdue inflicted reputational harm by wrongfully branding him as a sex offender; that Purdue changed his legal status by suspending him, subjecting him to readmission requirements, and causing the loss of his Navy ROTC scholarship; and that these actions impaired his right to occupational liberty by making it virtually impossible for him to seek employment in his field of choice, the Navy. See Lawson v. Sheriff of Tippecanoe Cty., Ind., 725 F.2d 1136, 1138 (7th Cir. 1984) (“The concept of liberty in Fourteenth Amendment jurisprudence has long included the liberty to follow a trade, profession, or other calling.”); Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001) (Liberty interests are impinged when someone's “good name, reputation, honor or integrity [are] called into question in a manner that makes it virtually impossible for ... [him] to find new employment in his chosen field.”). Purdue insists that John has not adequately alleged “stigma,” much less the necessary “plus.” The university maintains that it has not and will not divulge John's disciplinary record without his permission. The Navy knows about it only because John signed a form authorizing the disclosure after the investigation began. Because John permitted the disclosure, Purdue says, he cannot complain that Purdue stigmatized him. Purdue cites no cases in support of its position, but it is presumably trying to draw an analogy between John and a plaintiff who publishes damaging information about himself—because it is true that a plaintiff can't himself spill the beans and then blame the defendant for ruining his reputation. Olivieri v. Rodriguez illustrates the point. 122 F.3d 406 (7th Cir. 1997). There, a probationary police officer asserted a procedural due process claim against his superintendent after he was fired for sexually harassing other probationers. Id. at 407. We observed that “the defendant [had not] disclosed to anyone the grounds of the plaintiff's discharge.” Id. at 408. The plaintiff, however, insisted that the defendant's silence didn't matter because the plaintiff would have to tell potential employers why he was fired—and “[i]f he answers truthfully, he will reveal the ground of the termination as effectively as (actually more effectively than) if the Department had taken out a full-page ad in every newspaper in the nation announcing the termination of Felix A. Olivieri for sexually harassing female probationary officers at the Chicago police training academy.” Id. We rejected Olivieri's claim, holding that a plaintiff who publicizes negative information about himself cannot establish that the defendant deprived him of a liberty interest. Id. As an initial matter, we noted that it was uncertain whether Olivieri's prospective employers would ever find out why he was discharged. Id. at 408–09 (“A prospective employer might not ask him—might ask only the Chicago Police Department, which for all we know might refuse to disclose the grounds of Olivieri's discharge; many former employers refuse to answer such inquiries, because of fear of *662 being sued for defamation.”). In addition, we explained that “[t]he principle of self-defamation, applied in a case such as this, would encourage [the plaintiff] to apply for a job to every police force in the nation, in order to magnify his damages; and to blurt out to each of the them the ground of his discharge in the most lurid terms, to the same end.” Id. at 409. John's case is different. He does not claim simply that he might someday have to self-publish the guilty finding to future employers. Instead, John says that he had an obligation to authorize Purdue to disclose the proceedings to the Navy. That makes John's case more like Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005), than Olivieri. In Dupuy, we held that the publication requirement of the stigma-plus test was satisfied when the plaintiffs were obligated to authorize a state agency to disclose its finding that they were child abusers to the plaintiffs' current and prospective employers. 397 F.3d at 510. In contrast to Olivieri, where disclosure was voluntary and speculative, it was compelled and certain in Dupuy. And in Dupuy, unlike in Olivieri, the disclosure was not self-published—it came from the defendant, even if the plaintiff had been obligated to authorize it. So too here: Purdue, not John, revealed to the Navy that it had found him guilty of sexual violence, and John had a legal obligation to authorize the disclosure. Thus, if what John says is true, the university has stigmatized him by telling the Navy about the guilty finding. But the loss of reputation is not itself a loss of liberty, “even when it causes ‘serious impairment of one's future employment.’ ” Hojnacki v. Klein–Acosta, 285 F.3d 544, 548 (7th Cir. 2002) (alteration and citation omitted). John must also show that the stigma was accompanied by a change in legal status. In Paul v. Davis, for example, the Supreme Court held that the police did not trigger the Due Process Clause by posting flyers falsely asserting that the plaintiff was an active shoplifter. 424 U.S. at 712, 96 S.Ct. 1155. The flyers undoubtedly harmed the plaintiff's professional reputation, but their posting did not alter his legal status. Id. at 708–12, 96 S.Ct. 1155. Similarly, in Hinkle v. White, loose-lipped state police officers spread word that they were investigating the plaintiff for child molestation and that he might be guilty of arson to boot. 793 F.3d at 767. But the gossip did not alter his legal status—the plaintiff was not prosecuted, much less found guilty; nor did the county impose a consequence like firing him from his job as county sheriff. Id. at 768–69. Even though the rumors made it “virtually impossible” for him to change to a new job in his chosen field, the lack of a status change meant that he could not state a due process claim. Id. at 768–70. 6 John's situation is unlike that of the plaintiffs in Paul v. Davis and Hinkle v. White because it is not a matter of state-spread rumors or an investigation that was ultimately dropped. After conducting an adjudicatory proceeding, Purdue formally determined that John was guilty of a sexual offense. That determination changed John's status: he went from a full-time student in good standing to one suspended for an academic year. Cf. Mann, 707 F.3d at 878 (holding that the state deprived the plaintiff of occupational liberty when, after an investigation, it found that she had violated child-safety laws and suspended her ability to operate her daycare center); Doyle v. Camelot Care Ctrs., 305 F.3d 603, 617 (7th Cir. 2002) (holding that the state deprived the plaintiffs of occupational liberty when, after an investigation, it found that they had neglected a minor and informed their respective employers, who fired them). And it was this official determination of guilt, not the preceding *663 charges or any accompanying rumors, that allegedly deprived John of occupational liberty. It caused his expulsion from the Navy ROTC program (with the accompanying loss of scholarship) and foreclosed the possibility of his re-enrollment in it. John has satisfied the “stigma plus” test. B. Having determined that John has adequately alleged that Purdue deprived him of a liberty interest, we turn to whether he has adequately claimed that Purdue used fundamentally unfair procedures in determining his guilt. 7 8 When a right is protected by the Due Process Clause, a state “may not withdraw [it] on grounds of misconduct absent[ ] fundamentally fair procedures to determine whether the misconduct has occurred.” Goss, 419 U.S. at 574, 95 S.Ct. 729. Determining what is fundamentally fair is always a context-specific inquiry. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (“[W]e have frequently emphasized that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’ ” (citation omitted)). Thus, for example, a university has much more flexibility in administering academic standards than its code of conduct. See id. (“[T]here are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons which may call for hearings in connection with the former but not the latter.”). And even in the disciplinary context, the process due depends on a number of factors, including the severity of the consequence and the level of education. A 10-day suspension warrants fewer procedural safeguards than a longer one, Goss, 419 U.S. at 584, 95 S.Ct. 729, and universities are subject to more rigorous requirements than high schools, Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 663–64 (7th Cir. 2004). 9 10 John's circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue's process fell short of what even a high school must provide to a student facing a days-long suspension. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss, 419 U.S. at 581, 95 S.Ct. 729. John received notice of Jane's allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. See id. at 580, 95 S.Ct. 729 (“[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights....” (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring))). 11 John has adequately alleged that the process was deficient in other respects as well. To satisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016) (citation omitted). At John's meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. See id. at 630 *664 (stating that a hearing would be a sham if “members of the school board came to the hearing having predetermined [the plaintiff's] guilt”). And in a case that boiled down to a “he said/she said,” it is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement.4 It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane's credibility. Sermersheim and the Advisory Committee's failure to make any attempt to examine Jane's credibility is all the more troubling because John identified specific impeachment evidence. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt. His roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane's rendition of events was false. And John insisted that Jane's behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her. Sermersheim and the Advisory Committee may have concluded in the end that John's impeachment evidence did not undercut Jane's credibility. But their failure to even question Jane or John's roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John. 12 13 John also faults Sermersheim for being in charge of both the investigation and adjudication of his case. We have held, however, that blending these two functions in the university context does not necessarily render a process unfair. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016). To rebut the presumption that university administrators are “honest and impartial,” a plaintiff must “lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” Id. This burden is “heavy indeed,” typically requiring evidence that “the adjudicator had a pecuniary interest in the outcome of the case, or that he was previously the target of the plaintiff's abuse or criticism.” Id. (citations omitted). John has made no such allegation here. C. To this point, we have analyzed the due process claim without distinguishing between defendants. Now, however, we separate them. (1) 14 15 16 We begin with John's individual-capacity claim against Mitch Daniels, the president of Purdue. The magistrate judge was right to dismiss this claim. Section 1983 “does not allow actions against individuals merely for their supervisory role of others.” Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). To be liable, a supervisor “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Zentmyer v. Kendall Cty., Ill., 220 F.3d 805, 812 (7th Cir. 2000) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). John's *665 complaint asserts nothing more about Daniels than that “ ‘The Buck Stops Here’ with him.” There is no allegation that Daniels knew about the conduct, much less that he facilitated, approved, or condoned it. (2) The individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger present a different obstacle for John: qualified immunity. For the reasons that we have already explained, John has alleged facts that amount to a constitutional violation. But because the defendants have asserted qualified immunity, John can recover damages from them only if his right to receive procedural due process in the disciplinary proceeding was clearly established. See Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019). The magistrate judge did not address qualified immunity because he concluded that John had failed to state a due process claim. The defendants raised it below, however, and they press it again here as an alternative ground for affirmance. John insists that it would be premature for us to address the issue because we are reviewing the magistrate judge's dismissal of his claims under Rule 12(b)(6). As he points out, qualified immunity is generally addressed at summary judgment rather than on the pleadings. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (“[A] complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds.”); see also Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000) (“[T]he dismissal of a § 1983 suit under Rule 12(b)(6) is a delicate matter.”). Thus, John argues, we should send the case back to the district court for discovery. 17 There is no hard-and-fast rule, however, against resolving qualified immunity on the pleadings. The reason for deferring it to summary judgment is that an officer's entitlement to qualified immunity often “depend[s] on the particular facts of a given case,” Jacobs, 215 F.3d at 765 n.3, and the Federal Rules of Civil Procedure do not require a plaintiff to include much factual detail in a complaint, see Fed. R. Civ. P. 8 (providing that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”). See also Pearson v. Callahan, 555 U.S. 223, 238–39, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify.”). That said, the existence of qualified immunity is not always dependent on factual development—it is sometimes clear on the face of the complaint that the constitutional right invoked was not clearly articulated in the case law. In that circumstance, the existence of qualified immunity is a “purely legal question” that the court can address on a motion to dismiss. Jacobs, 215 F.3d at 765 n.3. 18 19 That is the situation here. Qualified immunity is a high standard. It protects government officials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (citation omitted). While the general stigma-plus test is well-settled in our law, see Hinkle, 793 F.3d at 768, we have never applied it specifically in the university setting. Instead, our cases in this area have considered only whether students have a property interest in their public university education—and to this point, no student has successfully shown the requisite interest. Because this is our first case addressing whether university discipline deprives a student of a liberty interest, the relevant legal rule was not “clearly established,” *666 and a reasonable university officer would not have known at the time of John's proceeding that her actions violated the Fourteenth Amendment. We therefore affirm the dismissal of John's individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger. (3) 20 That leaves John's claims for injunctive relief, which he seeks to obtain by suing Daniels, Rollock, Sermersheim, Oliver, and Amberger in their official capacities. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The magistrate judge dismissed this claim without prejudice on the ground that John lacked standing to bring it. In his complaint, John asked for “an injunction enjoining violations of the Fourteenth Amendment in the process of investigating and adjudicating sexual misconduct complaints.” But John doesn't have standing to claim such relief. He has not alleged that he intends to re-enroll at Purdue, much less that he faces a “real and immediate threat” that Purdue would again investigate him for sexual misconduct, much less that any such investigation would violate due process. See City of L.A. v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”). What John really seeks to do is champion the rights of other men at Purdue who might be investigated for sexual misconduct using the flawed procedures that he describes in his complaint. That is a no-go: John plainly lacks standing to assert the Fourteenth Amendment rights of other students, even if he had alleged (which he didn't) that the threat of injury to any one of them was “real and immediate.” Id. 21 John also seeks to remove the conditions of re-entry imposed by Purdue as part of his discipline. John lacks standing here too. As we already noted, he has not alleged that he intends to return to Purdue—a necessary fact to demonstrate a cognizable injury from the barriers to re-entry. That said, the magistrate judge dismissed this claim without prejudice, so on remand John can seek to remedy his lack of standing by pleading the necessary facts, if he has them. 22 In his response to the defendants' motion to dismiss, and then again in his brief and at oral argument, John argued that he is also entitled to an injunction ordering university officials to expunge the finding of guilt from his disciplinary record. For this relief, John has standing: John's marred record is a continuing harm for which he can seek redress. See, e.g., Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (pursuing expungement of university records “serve[s] the purpose of preventing present and future harm”); Doe v. Cummins, 662 F. App'x 437, 444 (6th Cir. 2016) (seeking to “remove the negative notation from appellants' disciplinary records” is “nothing more than prospective remedial action”); Shepard v. Irving, 77 F. App'x 615, 620 (4th Cir. 2003) (an “F” grade and a plagiarism conviction “constitute[d] a continuing injury to the plaintiff” and an action to remove them was “prospective in nature”). And he claims that if the guilty finding is expunged, a career in the Navy may once again be open to him. Because John did not specifically request this relief in his complaint, the university *667 officials object that it is too late for him to raise it now. But Federal Rule of Civil Procedure 54(c) states that “[e]very [ ] final judgment [other than default judgments] should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” That means that even though John may not have asked specifically for expungement, he may still be entitled to it. In Felce v. Fiedler, for example, the plaintiff did not request injunctive relief but instead—using language similar to that in John's complaint—asked for “other and further relief as the court may deem to be just and equitable.” 974 F.2d 1484, 1501 (7th Cir. 1992). The district court in Felce had not reached the question of injunctive relief because it had held—as the magistrate judge did in John's case—that the plaintiff had not alleged the necessary liberty interest. On appeal, we concluded that the plaintiff did have a liberty interest and instructed the district court to address the issue of injunctive relief on remand. Id. at 1502. We do the same here: having determined that John has pleaded a liberty interest, we instruct the court to address the issue of expungement on remand. III. John also asserts a claim against Purdue under Title IX, which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (explaining that Title IX is enforceable through an implied private right of action). It is undisputed that Purdue receives federal funding and that John was “excluded from participation in [or] denied the benefits of ... [an] education program” when Purdue suspended him. 20 U.S.C. § 1681(a). The success of John's claim depends on whether Purdue discriminated against him “on the basis of sex.” Id. Some circuits use formal doctrinal tests to identify general bias in the context of university discipline. For example, the Second Circuit channels such claims into two general categories. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). In what has come to be called the “erroneous outcome” category, the plaintiff must show that he “was innocent and wrongly found to have committed the offense.” Id. The other category, “selective enforcement,” requires a plaintiff to prove that “regardless of [his] guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender.” Id.; see also Plummer v. Univ. of Hous., 860 F.3d 767, 777–78 (5th Cir. 2017) (resolving the case by reference to the Yusuf framework); Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th Cir. 2018) (“[W]e will assume for present purposes that a student can show a violation of Title IX by satisfying the ‘erroneous outcome’ test applied by the Second Circuit in Yusuf.”). The Sixth Circuit has added two more categories to the mix: “deliberate indifference” and “archaic assumptions.” See Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018) (recognizing “at least four different theories of liability” in this context: “(1) ‘erroneous outcome,’ (2) ‘selective enforcement,’ (3) ‘deliberate indifference,’ and (4) ‘archaic assumptions’ ” (citations omitted)). We see no need to superimpose doctrinal tests on the statute. All of these categories simply describe ways in which a plaintiff might show that sex was a motivating factor in a university's decision to discipline a student. We prefer to ask the question more directly: do the alleged *668 facts, if true, raise a plausible inference that the university discriminated against John “on the basis of sex”? John casts his Title IX claim against the backdrop of a 2011 “Dear Colleague” letter from the U.S. Department of Education to colleges and universities. See United States Department of Education, Office of the Assistant Secretary for Civil Rights, Dear Colleague Letter (2011), https:/www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html. That letter ushered in a more rigorous approach to campus sexual misconduct allegations by, among other things, defining “sexual harassment” more broadly than in comparable contexts, id. at 3, mandating that schools prioritize the investigation and resolution of harassment claims, id. at 4, and requiring them to adopt a lenient “more likely than not” burden of proof when adjudicating claims against alleged perpetrators, id. at 11. The Department of Education made clear that it took the letter and its enforcement very seriously. See Examining Sexual Assault on Campus, Focusing on Working to Ensure Student Safety, Hearing Before the S. Comm. on Health, Educ., Labor, and Pensions, 113th Cong. 7 (2014) (statement of Catherine Lhamon, Assistant Secretary for Civil Rights, U.S. Dep't of Educ.) (“[S]ome schools still are failing their students by responding inadequately to sexual assaults on campus. For those schools, my office and this Administration have made it clear that the time for delay is over.”). And it warned schools that “[t]his Administration is committed to using all its tools to ensure that all schools comply with [T]itle IX so campuses will be safer for students across the country.” Id. In other words, a school's federal funding was at risk if it could not show that it was vigorously investigating and punishing sexual misconduct. According to John, this letter reveals that Purdue had a financial motive for discriminating against males in sexual assault investigations. To protect its federal funds, John says, the university tilted the process against men accused of sexual assault so that it could elevate the number of punishments imposed. The resulting track record of enforcement would permit Purdue to signal its commitment to cracking down on campus sexual assault, thereby fending off any suggestion that it was not complying with the Department of Education's directive. Cf. Doe v. Columbia Univ., 831 F.3d 46, 58 n.11 (2d Cir. 2016) (“A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”). And because the Office of Civil Rights—a sub-agency of the Department of Education—had opened two investigations into Purdue during 2016, the pressure on the university to demonstrate compliance was far from abstract. That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue's compliance. Other circuits have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim. For example, in Doe v. Miami University, the plaintiff alleged that “pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if it failed to comply, led Miami University to discriminate against men in its sexual-assault adjudication process.” 882 F.3d at 594. The Sixth Circuit held that this allegation, combined with others, “support[ed] a reasonable inference of gender discrimination.” Id.; see also Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018) *669 (explaining that the pressure of a Department of Education investigation and the resulting negative publicity “provides a backdrop, that, when combined with other circumstantial evidence of bias in Doe's specific proceeding, gives rise to a plausible claim.”); Columbia Univ., 831 F.3d at 58 (“There is nothing implausible or unreasonable about the Complaint's suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.”). That said, the letter, standing alone, is obviously not enough to get John over the plausibility line. See Baum, 903 F.3d at 586 (pressure from the Dear Colleague letter “alone is not enough to state a claim that the university acted with bias in this particular case”). The letter and accompanying pressure gives John a story about why Purdue might have been motivated to discriminate against males accused of sexual assault. But to state a claim, he must allege facts raising the inference that Purdue acted at least partly on the basis of sex in his particular case. See id. (the Dear Colleague letter “provides a backdrop that, when combined with other circumstantial evidence of bias in [a] specific proceeding, gives rise to a plausible claim”). 23 John has alleged such facts here, the strongest one being that Sermersheim chose to credit Jane's account without hearing directly from her. The case against him boiled down to a “he said/she said”—Purdue had to decide whether to believe John or Jane. Sermersheim's explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words to the Advisory Committee. Her side of the story was relayed in a letter submitted by Bloom, a Title IX coordinator and the director of CARE. For their part, the three panelists on Purdue's Advisory Committee on Equity were similarly biased in favor of Jane and against John. As John tells it—and again, we must accept his account as true—the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account. They made up their minds without reading the investigative report and before even talking to John. They refused to hear from John's witnesses, including his male roommate who maintained that he was in the room at the time of the alleged assault and that Jane's rendition of events was false. And the panel members' hostility toward John from the start of the brief meeting despite their lack of familiarity with the details of the case—including Jane's depression, suicide attempt, and anger at John for reporting the attempt—further supports the conclusion that Jane's allegation was all they needed to hear to make their decision. It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled “Alcohol isn't the cause of campus sexual assault. Men are.” Construing reasonable inferences in John's favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault. And it is pertinent here that Bloom, CARE's director, wrote the letter regarding Jane to which *670 Sermersheim apparently gave significant weight. Taken together, John's allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex. To be sure, John may face problems of proof, and the factfinder might not buy the inferences that he's selling. But his claim should have made it past the pleading stage, so we reverse the magistrate judge's premature dismissal of it. A final note: John seeks both money damages and injunctive relief for his claim under Title IX. Our earlier discussion of his entitlement to injunctive relief for his due process claim applies equally here. * * * John has pleaded facts sufficient to state a claim under both the Fourteenth Amendment and Title IX. We therefore REVERSE and REMAND this case to the district court for proceedings consistent with this opinion.

Barrett

majority

After finding John Doe guilty of sexual violence against Jane Doe, Purdue University suspended him for an academic year and imposed conditions on his readmission. As a result of that decision, John was expelled from the Navy ROTC program, which terminated both his ROTC scholarship and plan to pursue a career in the Navy. John sued the university and several of its officials, asserting two basic claims. First, he argued that they had violated the Fourteenth Amendment by using constitutionally flawed procedures to determine his guilt or innocence. Second, he argued that Purdue had violated Title IX by imposing a punishment infected by sex bias. A magistrate judge dismissed John's suit on the ground that he had failed to state a claim under either theory. We disagree. John has adequately alleged violations of both the Fourteenth Amendment and Title IX. I. We are reviewing the magistrate judge's decision to dismiss John's complaint for failing to state a claim. That means that we must recount the facts as he describes them, drawing every inference in his favor. See D.B. ex rel. Kurtis In other words, the story that follows is one-sided because the posture of the case requires it to be. Our task is not to determine what allegations are supported by the evidence but to determine whether John is entitled to relief if everything that he says is true. See John and Jane were both students in Purdue's Navy ROTC program. They began dating in the fall of 2015, and between October and December, they had consensual sexual intercourse fifteen to twenty times. Jane's behavior became increasingly erratic over the course of that semester, and she told John that she felt hopeless, hated her life, and was contemplating running away. In December, Jane attempted suicide in front of John, and after that incident, they stopped having sex. They continued dating, however, until January, when John tried to get Jane help by reporting her suicide attempt to two resident assistants and an advisor. Jane was upset at John for reporting her, and she distanced herself from him. Soon thereafter, she began dating someone else. For a few months, things were quiet between John and Jane. That changed in April 2016, which was Sexual Assault Awareness Month. During that month, Purdue hosted over a dozen events to promote the reporting of sexual assaults. Many of the events were sponsored by the Center for Advocacy, Response, and Education (CARE), a university center dedicated to supporting victims of sexual violence. CARE promoted the events on its Facebook page, along with posts containing information about sexual assault. One of its posts was an article from The Washington Post titled “Alcohol isn't the cause of campus sexual assault. Men are.” During the first ten days of April, five students reported sexual assault to the university. Jane was one of them. She alleged that in November 2015, she was sleeping with John in his room when she woke to him groping her over her clothes *657 without her consent. According to Jane, she told John that this was not okay, and John then confessed that he had digitally penetrated her while the two were sleeping in Jane's room earlier that month. Jane told the university that John had engaged in other misconduct as well: she asserted that he had gone through her underwear drawer without her permission, chased her through a hallway while joking about tasering her, gone to her room unannounced after they broke up, and lost his temper in front of her. John learned about Jane's accusations in a letter from Katherine Sermersheim, Purdue's Dean of Students and a Title IX coordinator. Sermersheim informed John that the university had elected to pursue Jane's allegations even though Jane had not filed a formal complaint. She outlined the school's disciplinary procedures and explained that two employees who reported to her, Erin Oliver and Jacob Amberger, would investigate the case. She also instructed John not to have any contact with Jane. After he received the letter, John was suspended from the Navy ROTC, banned from all buildings where Jane had classes, and barred from eating in his usual dining hall because Jane also used it. John submitted a written response denying all of Jane's allegations. He asserted that he never had sexual contact with Jane while she was sleeping, through digital penetration or otherwise. He said that there was one night in December, after Jane's suicide attempt, when he touched Jane's knee while she was sleeping on a futon and he was on the floor next to her. But he denied groping her or engaging in any of the harassing behavior of which she had accused him. John also recounted evidence that he thought inconsistent with Jane's claim of sexual assault: she texted and talked to him over the holidays, sent his family a package of homemade Christmas cookies, and invited him to her room when they returned to school in January. He also provided details suggesting that Jane was troubled and emotionally unstable, which he thought might explain her false accusations. Under Purdue's procedures, John was allowed the assistance of a “supporter” at any meeting with investigators. In late April, John and his supporter met with Oliver and Amberger. As he had in his written response, John steadfastly denied Jane's allegations. He provided the investigators with some of the friendly texts that he thought belied her story, as well as a list of over thirty people who could speak to his integrity. When the investigators' report was complete, Sermersheim sent it to a three-person panel of Purdue's Advisory Committee on Equity, which was tasked with making a recommendation to her after reviewing the report and hearing from the parties. Sermersheim called John to appear before the panel, but consistent with Purdue's then-applicable procedures, she neither gave him a copy of the report nor shared its contents with him. Moments before his committee appearance, however, a Navy ROTC representative gave John a few minutes to review a redacted version of the report. To John's distress, he learned that it falsely claimed that he had confessed to Jane's allegations. The investigators' summary of John's testimony also failed to include John's description of Jane's suicide attempt. John and his supporter met with the Advisory Committee and Sermersheim, who chaired the meeting, for about thirty minutes. Jane neither appeared before the panel nor submitted a written statement. Instead, Monica Soto Bloom, the director of CARE, wrote the Advisory Committee *658 and Sermersheim a letter summarizing Jane's accusations. The meeting did not go well for John. Two members of the panel candidly stated that they had not read the investigative report. The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults. The panel refused John permission to present witnesses, including character witnesses and a roommate who would state that he was present in the room at the time of the alleged assault and that Jane's rendition of events was false. A week later, Sermersheim sent John a perfunctory letter informing him that she had found him guilty by a preponderance of the evidence of sexual violence. She suspended John from Purdue for one academic year. In addition, she conditioned John's reentry on his completion of a university-sponsored “bystander intervention training” and his agreement to meet with the Assistant Director of CARE during the first semester of his return. John appealed this decision to Alysa Rollock, Purdue's Vice President for Ethics and Compliance, who instructed Sermersheim to identify the factual basis of her determination. Sermersheim sent a revised letter to John adding the following: Specifically, a preponderance of the evidence supports that: 1. [Jane Doe] had fallen asleep on a futon with you on the floor beside her. She woke up and found that you inappropriately touched her over her clothing and without her consent by placing your hand above her knee, between her legs, and moved it up to her “crotch” areas; and 2. On another occasion, while she was sleeping and without her consent, you inappropriately touched [Jane Doe] by digitally penetrating her vagina. As the basis for these findings, Sermersheim offered: “I find by a preponderance of the evidence that [John Doe] is not a credible witness. I find by a preponderance of the evidence that [Jane Doe] is a credible witness.” John appealed to Rollock again, but this time, Rollock upheld Sermersheim's determination of guilt and accompanying sanctions. A few weeks after his second appeal was denied, John involuntarily resigned from the Navy ROTC, which has a “zero tolerance” policy for sexual harassment. John sued Mitch Daniels, the President of Purdue University; Rollock, the Vice President for Ethics and Compliance; Sermersheim, the Dean and a Title IX coordinator; and Oliver and Amberger, the investigators, in their individual capacities, seeking monetary relief under He sued these same defendants, along with the members of Purdue's Board of Trustees, in their official capacities, seeking injunctive relief under Ex Parte Young, to remedy the Fourteenth Amendment violation. And he sued Purdue University for discriminating against him on the basis of sex in violation of Title IX. The magistrate judge dismissed John's claims with prejudice, holding that the disciplinary proceedings did not deprive John of either liberty or property, so *659 the Due Process Clause did not apply. He offered an additional reason for dismissing John's claim against Daniels: John's theory of liability was based on Daniels's role as supervisor, and there is no supervisory liability under As for John's claims for injunctive relief, the magistrate judge dismissed them without prejudice for lack of standing because John had not alleged that the violations posed any threat of future harm. And he dismissed John's claims under Title IX with prejudice on the ground that John had not alleged facts sufficient to show that Purdue discriminated against him on the basis of sex. John appeals each of these rulings. II. We begin with procedural due process. According to John, he was punished pursuant to a process that failed to satisfy the minimum standards of fairness required by the Due Process Clause. He alleges the following deficiencies: he was not provided with the investigative report or any of the evidence on which the decisionmakers relied in determining his guilt and punishment; Jane did not appear before the Advisory Committee; he had no opportunity to cross-examine Jane; Sermersheim found Jane credible even though neither Sermersheim nor the Advisory Committee talked to her in person; Jane did not write her own statement for the panel, much less a sworn one; Sermersheim was in charge of both the investigation and the adjudication of his case; the Advisory Committee was blatantly biased against him; and the Advisory Committee refused to allow him to present any evidence, including witnesses. Yet John cannot recover simply because the procedures were unfair, even if they were. The Due Process Clause is not a general fairness guarantee; its protection kicks in only when a state actor deprives someone of “life, liberty, or property.” U.S. Const. amend. XIV, 1. The threshold question, then, is whether John lost a liberty or property interest when he was found guilty of sexual violence and punished. We address whether the procedures satisfied minimum constitutional requirements of fairness only if the answer to that question is yes. A. Our precedent involving due process claims in the context of university discipline has focused on whether a student has a protected property interest in his education at a state university. We have explained that “[a] college education—any education—is not ‘property’ in the usual sense of the word.” ; see also2 Instead, “we ask whether the student has shown that he has a legally protected entitlement to his continued education at the university.” *660 High school students (and, for that matter, elementary school students) have a property interest in their public education because state law entitles them to receive one. The same is not true, however, of students at public universities—certainly, John has not contended that Indiana guarantees its residents a college education. 1 2 3 In the context of higher education, any property interest is a matter of contract between the student and the university. And to demonstrate that he possesses the requisite property interest, a university student must do more than show that he has a contract with the university; he must establish that the contract entitled him to the specific right that the university allegedly took, “such as the right to a continuing education or the right not to be suspended without good cause.” at Generalities won't do; “the student's complaint must be specific about the source of this implied contract, the exact promises the university made to the student, and the promises the student made in return.” John has not adequately alleged that Purdue deprived him of property because his complaint does not point to any specific contractual promise that Purdue allegedly broke.3 To be sure, John asserts that he had a property interest in his continued enrollment at Purdue. But as support for that proposition, his complaint states only that the right arose “from the express and implied contractual relationship” between John and the university. It points to no “identifiable contractual promise that the [university] failed to honor.” Bissessur, His brief does only slightly better. In it, John insists that the Indiana state courts have held that a student enrolled in a public institution has a property interest in continuing his education. He cites Reilly v. Daly, in which an Indiana court said: “It is without question that a student's interest in pursuing an education is included within the Fourteenth Amendment's protection of liberty and property and that a student facing expulsion or suspension from a public educational institution is therefore entitled to the protections of due process.” But John's reliance on Reilly is misplaced. To begin with, this cryptic sentence—the sum of what the case says on the topic—does not specify whether university disciplinary proceedings implicate liberty or property interests. And to the extent that Reilly refers to property, it does not purport to identify a state-granted property right to pursue higher education. Instead, it appears to express a view about federal law that we have already rejected: that the Due Process Clause protects a generalized property interest in higher education, irrespective of any specific state entitlement. While Indiana is free to align itself with courts taking that view, see our position is clear and to the contrary, see 530 F.3d at *661 4 John's failure to establish a property interest does not doom his claim, however, because he also maintains that Purdue deprived him of a protected liberty interest: his freedom to pursue naval service, his occupation of choice. To succeed on this theory, John must satisfy the “stigma plus” test, which requires him to show that the state inflicted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held. See ; see also ; John argues that he has satisfied this test because he alleges that Purdue inflicted reputational harm by wrongfully branding him as a sex offender; that Purdue changed his legal status by suspending him, subjecting him to readmission requirements, and causing the loss of his Navy ROTC scholarship; and that these actions impaired his right to occupational liberty by making it virtually impossible for him to seek employment in his field of choice, the Navy. See ; Purdue insists that John has not adequately alleged “stigma,” much less the necessary “plus.” The university maintains that it has not and will not divulge John's disciplinary record without his permission. The Navy knows about it only because John signed a form authorizing the disclosure after the investigation began. Because John permitted the disclosure, Purdue says, he cannot complain that Purdue stigmatized him. Purdue cites no cases in support of its position, but it is presumably trying to draw an analogy between John and a plaintiff who publishes damaging information about himself—because it is true that a plaintiff can't himself spill the beans and then blame the defendant for ruining his reputation. There, a probationary police officer asserted a procedural due process claim against his superintendent after he was fired for sexually harassing other probationers. We observed that “the defendant [had not] disclosed to anyone the grounds of the plaintiff's discharge.” The plaintiff, however, insisted that the defendant's silence didn't matter because the plaintiff would have to tell potential employers why he was fired—and “[i]f he answers truthfully, he will reveal the ground of the termination as effectively as (actually more effectively than) if the Department had taken out a full-page ad in every newspaper in the nation announcing the termination of Felix A. Olivieri for sexually harassing female probationary officers at the Chicago police training academy.” We rejected Olivieri's claim, holding that a plaintiff who publicizes negative information about himself cannot establish that the defendant deprived him of a liberty interest. As an initial matter, we noted that it was uncertain whether Olivieri's prospective employers would ever find out why he was discharged. –09 (“A prospective employer might not ask him—might ask only the Chicago Police Department, which for all we know might refuse to disclose the grounds of Olivieri's discharge; many former employers refuse to answer such inquiries, because of fear of *662 being sued for defamation.”). In addition, we explained that “[t]he principle of self-defamation, applied in a case such as this, would encourage [the plaintiff] to apply for a job to every police force in the nation, in order to magnify his damages; and to blurt out to each of the them the ground of his discharge in the most lurid terms, to the same end.” John's case is different. He does not claim simply that he might someday have to self-publish the guilty finding to future Instead, John says that he had an obligation to authorize Purdue to disclose the proceedings to the Navy. That makes John's case more like than Olivieri. In Dupuy, we held that the publication requirement of the stigma-plus test was satisfied when the plaintiffs were obligated to authorize a state agency to disclose its finding that they were child abusers to the plaintiffs' current and prospective In contrast to Olivieri, where disclosure was voluntary and speculative, it was compelled and certain in Dupuy. And in Dupuy, unlike in Olivieri, the disclosure was not self-published—it came from the defendant, even if the plaintiff had been obligated to authorize it. So too here: Purdue, not John, revealed to the Navy that it had found him guilty of sexual violence, and John had a legal obligation to authorize the disclosure. Thus, if what John says is true, the university has stigmatized him by telling the Navy about the guilty finding. But the loss of reputation is not itself a loss of liberty, “even when it causes ‘serious impairment of one's future employment.’ ” John must also show that the stigma was accompanied by a change in legal status. In for example, the Supreme Court held that the police did not trigger the Due Process Clause by posting flyers falsely asserting that the plaintiff was an active The flyers undoubtedly harmed the plaintiff's professional reputation, but their posting did not alter his legal status. at 708–12, Similarly, in loose-lipped state police officers spread word that they were investigating the plaintiff for child molestation and that he might be guilty of arson to But the gossip did not alter his legal status—the plaintiff was not prosecuted, much less found guilty; nor did the county impose a consequence like firing him from his job as county sheriff. at 768–69. Even though the rumors made it “virtually impossible” for him to change to a new job in his chosen field, the lack of a status change meant that he could not state a due process claim. at 768–70. 6 John's situation is unlike that of the plaintiffs in and because it is not a matter of state-spread rumors or an investigation that was ultimately dropped. After conducting an adjudicatory proceeding, Purdue formally determined that John was guilty of a sexual offense. That determination changed John's status: he went from a full-time student in good standing to one suspended for an academic year. Cf. Mann, 707 F.3d at ; And it was this official determination of guilt, not the preceding *663 charges or any accompanying rumors, that allegedly deprived John of occupational liberty. It caused his expulsion from the Navy ROTC program (with the accompanying loss of scholarship) and foreclosed the possibility of his re-enrollment in it. John has satisfied the “stigma plus” test. B. Having determined that John has adequately alleged that Purdue deprived him of a liberty interest, we turn to whether he has adequately claimed that Purdue used fundamentally unfair procedures in determining his guilt. 7 8 When a right is protected by the Due Process Clause, a state “may not withdraw [it] on grounds of misconduct absent[ ] fundamentally fair procedures to determine whether the misconduct has occurred.” Thus, for example, a university has much more flexibility in administering academic standards than its code of conduct. See And even in the disciplinary context, the process due depends on a number of factors, including the severity of the consequence and the level of education. A 10-day suspension warrants fewer procedural safeguards than a longer one, 9 10 John's circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue's process fell short of what even a high school must provide to a student facing a days-long suspension. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” John received notice of Jane's allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. See )). 11 John has adequately alleged that the process was deficient in other respects as well. To satisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Dietchweiler by At John's meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. See at 630 *664 (stating that a hearing would be a sham if “members of the school board came to the hearing having predetermined [the plaintiff's] guilt”). And in a case that boiled down to a “he said/she said,” it is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement.4 It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane's credibility. Sermersheim and the Advisory Committee's failure to make any attempt to examine Jane's credibility is all the more troubling because John identified specific impeachment evidence. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt. His roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane's rendition of events was false. And John insisted that Jane's behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her. Sermersheim and the Advisory Committee may have concluded in the end that John's impeachment evidence did not undercut Jane's credibility. But their failure to even question Jane or John's roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John. 12 13 John also faults Sermersheim for being in charge of both the investigation and adjudication of his case. We have held, however, that blending these two functions in the university context does not necessarily render a process unfair. To rebut the presumption that university administrators are “honest and impartial,” a plaintiff must “lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” This burden is “heavy indeed,” typically requiring evidence that “the adjudicator had a pecuniary interest in the outcome of the case, or that he was previously the target of the plaintiff's abuse or criticism.” John has made no such allegation here. C. To this point, we have analyzed the due process claim without distinguishing between defendants. Now, however, we separate them. (1) 14 15 16 We begin with John's individual-capacity claim against Mitch Daniels, the president of Purdue. The magistrate judge was right to dismiss this claim. Section “does not allow actions against individuals merely for their supervisory role of others.” To be liable, a supervisor “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” John's *665 complaint asserts nothing more about Daniels than that “ ‘The Buck Stops Here’ with him.” There is no allegation that Daniels knew about the conduct, much less that he facilitated, approved, or condoned it. (2) The individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger present a different obstacle for John: qualified immunity. For the reasons that we have already explained, John has alleged facts that amount to a constitutional violation. But because the defendants have asserted qualified immunity, John can recover damages from them only if his right to receive procedural due process in the disciplinary proceeding was clearly established. See The magistrate judge did not address qualified immunity because he concluded that John had failed to state a due process claim. The defendants raised it below, however, and they press it again here as an alternative ground for affirmance. John insists that it would be premature for us to address the issue because we are reviewing the magistrate judge's dismissal of his claims under Rule 12(b)(6). As he points out, qualified immunity is generally addressed at summary judgment rather than on the pleadings. See ; see also (“[T]he dismissal of a suit under Rule 12(b)(6) is a delicate matter.”). Thus, John argues, we should send the case back to the district court for discovery. 17 There is no hard-and-fast rule, however, against resolving qualified immunity on the pleadings. The reason for deferring it to summary judgment is that an officer's entitlement to qualified immunity often “depend[s] on the particular facts of a given case,” 215 F.3d at and the Federal Rules of Civil Procedure do not require a plaintiff to include much factual detail in a complaint, see Fed. R. Civ. P. 8 (providing that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”). See also That said, the existence of qualified immunity is not always dependent on factual development—it is sometimes clear on the face of the complaint that the constitutional right invoked was not clearly articulated in the case law. In that circumstance, the existence of qualified immunity is a “purely legal question” that the court can address on a motion to dismiss. 215 F.3d at 18 19 That is the situation here. Qualified immunity is a high standard. It protects government officials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” While the general stigma-plus test is well-settled in our law, see we have never applied it specifically in the university setting. Instead, our cases in this area have considered only whether students have a property interest in their public university education—and to this point, no student has successfully shown the requisite interest. Because this is our first case addressing whether university discipline deprives a student of a liberty interest, the relevant legal rule was not “clearly established,” *666 and a reasonable university officer would not have known at the time of John's proceeding that her actions violated the Fourteenth Amendment. We therefore affirm the dismissal of John's individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger. (3) 20 That leaves John's claims for injunctive relief, which he seeks to obtain by suing Daniels, Rollock, Sermersheim, Oliver, and Amberger in their official capacities. See Ex Parte Young, The magistrate judge dismissed this claim without prejudice on the ground that John lacked standing to bring it. In his complaint, John asked for “an injunction enjoining violations of the Fourteenth Amendment in the process of investigating and adjudicating sexual misconduct complaints.” But John doesn't have standing to claim such relief. He has not alleged that he intends to re-enroll at Purdue, much less that he faces a “real and immediate threat” that Purdue would again investigate him for sexual misconduct, much less that any such investigation would violate due process. See City of 75 L.Ed.2d (“That Lyons may have been illegally choked by the police on October 6, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”). What John really seeks to do is champion the rights of other men at Purdue who might be investigated for sexual misconduct using the flawed procedures that he describes in his complaint. That is a no-go: John plainly lacks standing to assert the Fourteenth Amendment rights of other students, even if he had alleged (which he didn't) that the threat of injury to any one of them was “real and immediate.” 21 John also seeks to remove the conditions of re-entry imposed by Purdue as part of his discipline. John lacks standing here too. As we already noted, he has not alleged that he intends to return to Purdue—a necessary fact to demonstrate a cognizable injury from the barriers to re-entry. That said, the magistrate judge dismissed this claim without prejudice, so on remand John can seek to remedy his lack of standing by pleading the necessary facts, if he has them. 22 In his response to the defendants' motion to dismiss, and then again in his brief and at oral argument, John argued that he is also entitled to an injunction ordering university officials to expunge the finding of guilt from his disciplinary record. For this relief, John has standing: John's marred record is a continuing harm for which he can seek redress. See, e.g., ; ; And he claims that if the guilty finding is expunged, a career in the Navy may once again be open to him. Because John did not specifically request this relief in his complaint, the university *667 officials object that it is too late for him to raise it now. But Federal Rule of Civil Procedure 54(c) states that “[e]very [ ] final judgment [other than default judgments] should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” That means that even though John may not have asked specifically for expungement, he may still be entitled to it. In Felce v. Fiedler, for example, the plaintiff did not request injunctive relief but instead—using language similar to that in John's complaint—asked for “other and further relief as the court may deem to be just and equitable.” The district court in Felce had not reached the question of injunctive relief because it had held—as the magistrate judge did in John's case—that the plaintiff had not alleged the necessary liberty interest. On appeal, we concluded that the plaintiff did have a liberty interest and instructed the district court to address the issue of injunctive relief on remand. We do the same here: having determined that John has pleaded a liberty interest, we instruct the court to address the issue of expungement on remand. III. John also asserts a claim against Purdue under Title IX, which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a); see also It is undisputed that Purdue receives federal funding and that John was “excluded from participation in [or] denied the benefits of [an] education program” when Purdue suspended him. 20 U.S.C. 1681(a). The success of John's claim depends on whether Purdue discriminated against him “on the basis of sex.” Some circuits use formal doctrinal tests to identify general bias in the context of university discipline. For example, the Second Circuit channels such claims into two general categories. In what has come to be called the “erroneous outcome” category, the plaintiff must show that he “was innocent and wrongly found to have committed the offense.” The other category, “selective enforcement,” requires a plaintiff to prove that “regardless of [his] guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender.” ; see also 0 F.3d 767, ; The Sixth Circuit has added two more categories to the mix: “deliberate indifference” and “archaic assumptions.” See (recognizing “at least four different theories of liability” in this context: “(1) ‘erroneous outcome,’ (2) ‘selective enforcement,’ (3) ‘deliberate indifference,’ and (4) ‘archaic assumptions’ ” ). We see no need to superimpose doctrinal tests on the statute. All of these categories simply describe ways in which a plaintiff might show that sex was a motivating factor in a university's decision to discipline a student. We prefer to ask the question more directly: do the alleged *668 facts, if true, raise a plausible inference that the university discriminated against John “on the basis of sex”? John casts his Title IX claim against the backdrop of a 2011 “Dear Colleague” letter from the U.S. Department of Education to colleges and universities. See United States Department of Education, Office of the Assistant Secretary for Civil Rights, Dear Colleague Letter https:/www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html. That letter ushered in a more rigorous approach to campus sexual misconduct allegations by, among other things, defining “sexual harassment” more broadly than in comparable contexts, mandating that schools prioritize the investigation and resolution of harassment claims, and requiring them to adopt a lenient “more likely than not” burden of proof when adjudicating claims against alleged perpetrators, The Department of Education made clear that it took the letter and its enforcement very seriously. See Examining Sexual Assault on Campus, Focusing on Working to Ensure Student Safety, Hearing Before the S. Comm. on Health, Educ., Labor, and Pensions, 113th Cong. 7 (2014) (statement of Catherine Lhamon, Assistant Secretary for Civil Rights, U.S. Dep't of Educ.) (“[S]ome schools still are failing their students by responding inadequately to sexual assaults on campus. For those schools, my office and this Administration have made it clear that the time for delay is over.”). And it warned schools that “[t]his Administration is committed to using all its tools to ensure that all schools comply with [T]itle IX so campuses will be safer for students across the country.” In other words, a school's federal funding was at risk if it could not show that it was vigorously investigating and punishing sexual misconduct. According to John, this letter reveals that Purdue had a financial motive for discriminating against males in sexual assault investigations. To protect its federal funds, John says, the university tilted the process against men accused of sexual assault so that it could elevate the number of punishments imposed. The resulting track record of enforcement would permit Purdue to signal its commitment to cracking down on campus sexual assault, thereby fending off any suggestion that it was not complying with the Department of Education's directive. Cf. (“A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”). And because the Office of Civil Rights—a sub-agency of the Department of Education—had opened two investigations into Purdue during 2016, the pressure on the university to demonstrate compliance was far from abstract. That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue's compliance. Other circuits have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim. For example, in Doe v. Miami University, the plaintiff alleged that “pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if it failed to comply, led Miami University to discriminate against men in its sexual-assault adjudication process.” The Sixth Circuit held that this allegation, combined with others, “support[ed] a reasonable inference of gender discrimination.” ; see also 5 *669 (explaining that the pressure of a Department of Education investigation and the resulting negative publicity “provides a backdrop, that, when combined with other circumstantial evidence of bias in Doe's specific proceeding, gives rise to a plausible claim.”); Columbia Univ., (“There is nothing implausible or unreasonable about the Complaint's suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.”). That said, the letter, standing alone, is obviously not enough to get John over the plausibility line. See 903 F.3d at 5 The letter and accompanying pressure gives John a story about why Purdue might have been motivated to discriminate against males accused of sexual assault. But to state a claim, he must allege facts raising the inference that Purdue acted at least partly on the basis of sex in his particular case. See 23 John has alleged such facts here, the strongest one being that Sermersheim chose to credit Jane's account without hearing directly from her. The case against him boiled down to a “he said/she said”—Purdue had to decide whether to believe John or Jane. Sermersheim's explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words to the Advisory Committee. Her side of the story was relayed in a letter submitted by Bloom, a Title IX coordinator and the director of CARE. For their part, the three panelists on Purdue's Advisory Committee on Equity were similarly biased in favor of Jane and against John. As John tells it—and again, we must accept his account as true—the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account. They made up their minds without reading the investigative report and before even talking to John. They refused to hear from John's witnesses, including his male roommate who maintained that he was in the room at the time of the alleged assault and that Jane's rendition of events was false. And the panel members' hostility toward John from the start of the brief meeting despite their lack of familiarity with the details of the case—including Jane's depression, suicide attempt, and anger at John for reporting the attempt—further supports the conclusion that Jane's allegation was all they needed to hear to make their decision. It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled “Alcohol isn't the cause of campus sexual assault. Men are.” Construing reasonable inferences in John's favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault. And it is pertinent here that Bloom, CARE's director, wrote the letter regarding Jane to which * Sermersheim apparently gave significant weight. Taken together, John's allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex. To be sure, John may face problems of proof, and the factfinder might not buy the inferences that he's selling. But his claim should have made it past the pleading stage, so we reverse the magistrate judge's premature dismissal of it. A final note: John seeks both money damages and injunctive relief for his claim under Title IX. Our earlier discussion of his entitlement to injunctive relief for his due process claim applies equally here. * * * John has pleaded facts sufficient to state a claim under both the Fourteenth Amendment and Title IX. We therefore REVERSE and REMAND this case to the district court for proceedings consistent with this opinion.

Elston v. County of Kane

Urija Elston and his friends were playing basketball at a park in DuPage County while Brian Demeter, an off-duty sheriff's deputy for neighboring Kane County, was watching his child's soccer game on an adjacent field. When Elston and his friends started heckling one another with salty language, Demeter confronted them and demanded that they stop using expletives. Flashing both his badge and gun from under his plainclothes, Demeter also warned the group to “watch who you're messing with.” When the boys refused to clean up their language, Demeter grabbed Elston by the neck, threw him to the ground, and climbed on top of him. At some point during the struggle, Demeter tried to pull Elston's arms behind his back, as though attempting to arrest him. Bystanders separated Demeter and Elston, but not before Demeter could rip Elston's shirt in an attempt to keep hold of him. After the fight broke up, Demeter called 911 from his personal cell phone, identifying himself as a police officer in need of assistance. When Elston's father, whom Elston had called for help, arrived at the park, Demeter explained the incident by saying something along the lines of “I just lost it” or “I snapped.” He then told Elston's father that he was a police officer attempting to take Elston into custody for disorderly conduct and that he intended to turn Elston over to the Aurora Police Department. Elston was never charged with any offense, but Demeter pleaded guilty to violating Aurora's ordinance against battery. Elston then sued Demeter under both 42 U.S.C. § 1983 and Illinois state law, winning a default judgment and an award of $110,000 in compensatory damages. Elston also sued Kane County under Illinois's Tort Immunity Act, which provides that “[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages ... for which it or an employee while acting within the scope of his employment is liable ... .” 745 ILCS 10/9-102.1 Elston maintained that the County *887 was obligated to pay the judgment that he had obtained against Demeter because Demeter was acting within the scope of his employment during the assault. The County moved for summary judgment, the district court granted the motion, and Elston appeals that determination. But the district court got it right. As a matter of law, Demeter was acting as a private citizen, not within the scope of his duties as a sheriff's deputy, when he injured Elston. 1 2 Under Illinois law, there are three necessary criteria for an employee's action to be within the scope of his employment. First, the relevant conduct must be of the kind that the employee was employed to perform. Second, the conduct must have occurred substantially within the time and space limits authorized by the employment. And third, the conduct must have been motivated, at least in part, by a purpose to serve the employer. See Adames v. Sheahan, 233 Ill.2d 276, 330 Ill.Dec. 720, 909 N.E.2d 742, 755 (2009) (citing Restatement (Second) of Agency § 228 (Am. Law Inst. 1958)). Because “all three criteria ... must be met,” failure to establish any one of them is sufficient to place conduct outside the scope of employment. Id. Thus, to survive the County's motion for summary judgment, Demeter must show that a reasonable jury could find in his favor on all three criteria. The parties dispute whether Demeter's action satisfied the first criterion—i.e., whether the conduct was of the kind that Demeter would perform as a sheriff's deputy. We're willing to assume for the sake of argument that it was. Even so, Elston cannot succeed because he has not met his burden on the second and third criteria. 3 4 5 On the second, Elston must show that there is a genuine dispute of material fact with respect to whether Demeter's conduct occurred substantially within the time and space limits authorized by his employment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In general, the fact that an employee engaged in conduct outside of work hours, standing alone, is not dispositive. See Brown v. King, 328 Ill.App.3d 717, 262 Ill.Dec. 897, 767 N.E.2d 357, 361 (2001) (“The fact that [an employee] was off duty at the time of the incident does not establish, as a matter of law, that he was acting outside the scope of his employment.”). Nor is the mere fact that conduct occurred outside of the spatial boundaries of one's employment. See Restatement (Second) of Agency § 234 cmt. a (Am. Law. Inst. 1958) (“One may be a servant, although a bad servant, in performing his master's business at a forbidden place if the place is within the general territory in which the servant is employed.”). The determination is a matter of degree: it is dependent on the interaction between both time and place, in light of all the facts. See id. § 234 cmts. b & c. 6 Here, that interaction leads to only one conclusion: that Demeter was not acting substantially within the time and space limits authorized by his employment. Demeter *888 was not on duty during his altercation with Elston; he was spending his day off with his family, watching his child's soccer game. Demeter was not in uniform when he attacked Elston; he was dressed in a t-shirt and shorts. And the assault took place in DuPage County, while Demeter is authorized as a sheriff's deputy only in Kane County. Thus, Demeter was neither on the clock nor within his jurisdiction when he attacked Elston. That, combined with the facts that Demeter was in casual dress and on a family outing, dictates a finding against Elston on this element. 7 Likewise, no reasonable jury could find for Elston on the third criterion—that Demeter's conduct was caused, at least in part, by a purpose to serve the Sheriff's Office. See Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505. We've characterized the inquiry as whether “the employee's motive, or at least a motive, in committing the tort was to serve his employer.” Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir. 2004). While a mixed motive may be enough to create liability, an employee who acts purely in his own personal interest cannot create liability for his employer. See Wolf v. Liberis, 153 Ill.App.3d 488, 106 Ill.Dec. 411, 505 N.E.2d 1202, 1206 (1987). 8 9 10 Demeter had no authority to make an arrest or take other actions to “keep the peace” during the incident. As we've noted, the Office's policy prohibits off-duty deputies from making arrests or performing other enforcement actions outside the jurisdictional limits of Kane County. It is true that an employee's actions do not automatically fall outside the scope of his employment simply because they are prohibited by his employer. See Gaffney v. City of Chicago, 302 Ill.App.3d 41, 236 Ill.Dec. 40, 706 N.E.2d 914, 923 (1998). But a plaintiff must show that the conduct, despite being nominally prohibited by the employer, was nonetheless undertaken to serve the employer's interests. For example, in Gaffney, the court held that an off-duty officer acted within the scope of his employment when he negligently stored his unlocked firearm in an unlocked cabinet at home. The gun was used by the officer's son to shoot and kill a victim. The court held that the officer served his employer's interest, at least in part, by storing his gun as he did because he was a Chicago police officer and “ ‘on call’ 24 hours a day” in the City of Chicago, so he “desire[d] to have the gun accessible in the event of an emergency.” Id., 236 Ill.Dec. 40, 706 N.E.2d at 922. And that was true notwithstanding the fact that the police department's policy prohibited storing official sidearms in that manner. Id., 236 Ill.Dec. 40, 706 N.E.2d at 923. But not every action motivated by notions of the public interest will count as furthering a government employer's purpose. For example, in Copeland v. County of Macon, we held that a correctional officer who encouraged inmates to physically assault a detainee accused of child abuse did not act in furtherance of his county-jail employer's purpose because the jail had no interest in extrajudicially punishing suspected criminals. 403 F.3d 929, 934 (7th Cir. 2005). Instead, the jail's only interest was in protecting the public by incarcerating and supervising offenders, not determining punishments to impose on its wards. Id. Like the correctional official in Copeland, Demeter's conduct did not advance any valid goal of his employer. The Kane County Sheriff's Office had no interest in “maintaining the peace” in a neighboring county. And it's not as though Demeter was responding to an emergency—no one would characterize the use of expletives as a crisis. No reasonable jury could conclude that Demeter's actions were motivated, even in part, by an intent to serve his *889 employer's interests. Instead, on his day off with his family, Demeter acted out of personal animus to accost, threaten, and physically assault a teenager for using foul language within earshot of spectators and players at his child's soccer game. The fact that Demeter used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment. The district court's entry of summary judgment in favor of the County is AFFIRMED.

Barrett

majority

Urija Elston and his friends were playing basketball at a park in DuPage County while Brian Demeter, an off-duty sheriff's deputy for neighboring Kane County, was watching his child's soccer game on an adjacent field. When Elston and his friends started heckling one another with salty language, Demeter confronted them and demanded that they stop using expletives. Flashing both his badge and gun from under his plainclothes, Demeter also warned the group to “watch who you're messing with.” When the boys refused to clean up their language, Demeter grabbed Elston by the neck, threw him to the ground, and climbed on top of him. At some point during the struggle, Demeter tried to pull Elston's arms behind his back, as though attempting to arrest him. Bystanders separated Demeter and Elston, but not before Demeter could rip Elston's shirt in an attempt to keep hold of him. After the fight broke up, Demeter called 911 from his personal cell phone, identifying himself as a police officer in need of assistance. When Elston's father, whom Elston had called for help, arrived at the park, Demeter explained the incident by saying something along the lines of “I just lost it” or “I snapped.” He then told Elston's father that he was a police officer attempting to take Elston into custody for disorderly conduct and that he intended to turn Elston over to the Aurora Police Department. Elston was never charged with any offense, but Demeter pleaded guilty to violating Aurora's ordinance against battery. Elston then sued Demeter under both and Illinois state law, winning a default judgment and an award of $110,000 in compensatory damages. Elston also sued Kane County under Illinois's Tort Immunity Act, which provides that “[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable” 745 ILCS 10/9-102.1 Elston maintained that the County *887 was obligated to pay the judgment that he had obtained against Demeter because Demeter was acting within the scope of his employment during the assault. The County moved for summary judgment, the district court granted the motion, and Elston appeals that determination. But the district court got it right. As a matter of law, Demeter was acting as a private citizen, not within the scope of his duties as a sheriff's deputy, when he injured Elston. 1 2 Under Illinois law, there are three necessary criteria for an employee's action to be within the scope of his employment. First, the relevant conduct must be of the kind that the employee was employed to perform. Second, the conduct must have occurred substantially within the time and space limits authorized by the employment. And third, the conduct must have been motivated, at least in part, by a purpose to serve the employer. See Because “all three criteria must be met,” failure to establish any one of them is sufficient to place conduct outside the scope of employment. Thus, to survive the County's motion for summary judgment, Demeter must show that a reasonable jury could find in his favor on all three criteria. The parties dispute whether Demeter's action satisfied the first criterion—i.e., whether the conduct was of the kind that Demeter would perform as a sheriff's deputy. We're willing to assume for the sake of argument that it was. Even so, Elston cannot succeed because he has not met his burden on the second and third criteria. 3 4 5 On the second, Elston must show that there is a genuine dispute of material fact with respect to whether Demeter's conduct occurred substantially within the time and space limits authorized by his employment. See In general, the fact that an employee engaged in conduct outside of work hours, standing alone, is not dispositive. See Nor is the mere fact that conduct occurred outside of the spatial boundaries of one's employment. See Restatement (Second) of Agency 234 cmt. a (Am. Law. Inst. 1958) (“One may be a servant, although a bad servant, in performing his master's business at a forbidden place if the place is within the general territory in which the servant is employed.”). The determination is a matter of degree: it is dependent on the interaction between both time and place, in light of all the facts. See 234 cmts. b & c. 6 Here, that interaction leads to only one conclusion: that Demeter was not acting substantially within the time and space limits authorized by his employment. Demeter *888 was not on duty during his altercation with Elston; he was spending his day off with his family, watching his child's soccer game. Demeter was not in uniform when he attacked Elston; he was dressed in a t-shirt and shorts. And the assault took place in DuPage County, while Demeter is authorized as a sheriff's deputy only in Kane County. Thus, Demeter was neither on the clock nor within his jurisdiction when he attacked Elston. That, combined with the facts that Demeter was in casual dress and on a family outing, dictates a finding against Elston on this element. 7 Likewise, no reasonable jury could find for Elston on the third criterion—that Demeter's conduct was caused, at least in part, by a purpose to serve the Sheriff's Office. See –49, While a mixed motive may be enough to create liability, an employee who acts purely in his own personal interest cannot create liability for his employer. See 8 9 10 Demeter had no authority to make an arrest or take other actions to “keep the peace” during the incident. As we've noted, the Office's policy prohibits off-duty deputies from making arrests or performing other enforcement actions outside the jurisdictional limits of Kane County. It is true that an employee's actions do not automatically fall outside the scope of his employment simply because they are prohibited by his employer. See But a plaintiff must show that the conduct, despite being nominally prohibited by the employer, was nonetheless undertaken to serve the employer's interests. For example, in Gaffney, the court held that an off-duty officer acted within the scope of his employment when he negligently stored his unlocked firearm in an unlocked cabinet at home. The gun was used by the officer's son to shoot and kill a victim. The court held that the officer served his employer's interest, at least in part, by storing his gun as he did because he was a Chicago police officer and “ ‘on call’ 24 hours a day” in the City of Chicago, so he “desire[d] to have the gun accessible in the event of an emergency.” And that was true notwithstanding the fact that the police department's policy prohibited storing official sidearms in that manner. 706 N.E.2d at But not every action motivated by notions of the public interest will count as furthering a government employer's purpose. For example, in Copeland v. County of Macon, we held that a correctional officer who encouraged inmates to physically assault a detainee accused of child abuse did not act in furtherance of his county-jail employer's purpose because the jail had no interest in extrajudicially punishing suspected criminals. Instead, the jail's only interest was in protecting the public by incarcerating and supervising offenders, not determining punishments to impose on its wards. Like the correctional official in Copeland, Demeter's conduct did not advance any valid goal of his employer. The Kane County Sheriff's Office had no interest in “maintaining the peace” in a neighboring county. And it's not as though Demeter was responding to an emergency—no one would characterize the use of expletives as a crisis. No reasonable jury could conclude that Demeter's actions were motivated, even in part, by an intent to serve his *889 employer's interests. Instead, on his day off with his family, Demeter acted out of personal animus to accost, threaten, and physically assault a teenager for using foul language within earshot of spectators and players at his child's soccer game. The fact that Demeter used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment. The district court's entry of summary judgment in favor of the County is AFFIRMED.

Equal Employment Opportunity Commission v. Costco Wholesale Corporation

Dawn Suppo, an employee of Costco Wholesale Corporation, was stalked by Thad Thompson, a customer of Costco, for over a year. Things got so bad at the end that Suppo secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave, and when she didn't come back, Costco terminated her employment. The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo's behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson's harassment. After the jury rendered a verdict in the EEOC's favor, Costco moved for judgment as a matter of law and the EEOC moved for backpay. The district court denied both motions, and both parties appeal. We conclude that the district court was right to deny Costco's motion for judgment as a matter of law, because a reasonable jury could conclude that Thompson's conduct was severe or pervasive enough to render Suppo's work environment hostile. The district court was only half right, however, with respect to the EEOC's motion for backpay. We agree with the district court that Suppo cannot recover backpay for the period of time after Costco fired her. But it should have considered whether Suppo was entitled to backpay for some or all of her time on unpaid medical leave. I. 1 2 The evidence frequently conflicted during the trial, but because the EEOC won a verdict on Suppo's behalf, we recount the facts in the light most favorable to her. We look at the record as a whole, give her the benefit of every inference, and refrain from making credibility determinations. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Walker v. Bd. of Regents of Univ. of Wis. Sys., 410 F.3d 387, 393 (7th Cir.2005). Our task is to determine whether a juror inclined to believe Suppo's side of the story could reasonably conclude that Costco subjected her to a hostile work environment. A. Costco is a warehouse club open to members who pay an annual fee. It offers a wide range of goods—everything from groceries to furniture—at its many locations around the country. In 2009, Suppo began working at Costco's store in Glenview, Illinois as a seasonal, part-time employee; in May of 2010, she transitioned to regular, part-time status. Her duties included doing “go-backs”—re-shelving *622 items that members decided not to purchase. Go-backs required Suppo to circulate around the large warehouse with a shopping cart, returning items to the sections where they belonged. Most, if not all, of her encounters with Thompson occurred while she was doing go-backs. Suppo encountered Thompson for the first time in May or June of 2010. Thompson referred to Suppo by her first name, which he read from her employee nametag. He noted that he had seen her “speaking to one of the guys up front” and asked what Suppo describes as “a few personal questions,” such as where she lived. Suppo replied that it was nice to meet him, but she had to return to work. A few days later, they had a similar encounter: Thompson approached her, asked questions that Suppo considered personal, and Suppo replied that she had to go back to work. Suppo did not immediately report these interactions to Costco management. But they had unnerved her, and two months later, she related them to Don Currier, her direct manager. She told Currier that she was scared, and he instructed her to notify him if she saw Thompson again. Shortly after her conversation with Currier, Suppo did see Thompson again. This time, he was wearing “sunglasses and a hat” while “watching [her] in different aisles and hiding behind the clothes.” When Thompson realized that she had seen him, he told Suppo that she “looked scared” and left. Suppo notified Currier, and Currier, Greg West (Assistant General Manager), and Daniro Hernandez (a loss-prevention officer) brought Thompson into the warehouse office, where they told him to “avoid [Suppo] and ... not talk to her.” Thompson was defensive and angry; he loudly stated that it is a “free country” and invoked his “freedom of speech.” He nonetheless agreed to stay away from Suppo. Currier told Suppo about the meeting and instructed her to follow up with him if she had future concerns about Thompson. Suppo remained frightened by this third interaction with Thompson and decided to contact the police. She filed a report stating that Thompson had been asking personal questions and “hiding behind clothes watching her.” Later that day, the police called Suppo about her report while she was in the warehouse office with Currier and West. After she hung up, West yelled at her and told her to “be friendly to” Thompson. The police interviewed Thompson, but they did not arrest or charge him. Instead, they filed a half-page report relating Suppo's claims that “Thompson was stalking her while she was at Costco,” that she could “feel him looking at her,” and that “when she looks at him he looks down.” The report also noted that Thompson had apologized and said that he would avoid Suppo in Costco. But Thompson did not avoid Suppo. The two encountered one another multiple times over the next 13 months, although Costco and the EEOC disagree about how many. Costco insists before us (as it did before the jury) that Thompson and Suppo could not have seen one another more than 20 times during this 13-month period, because Thompson's purchase record reflects that he was in the warehouse during only 20 of Suppo's 308 scheduled shifts. As the EEOC pointed out at trial, however, Costco only records when members purchase items, not when they enter the warehouse, and Suppo testified that Thompson's cart was sometimes empty when she saw him. Thus, Thompson could have been in the warehouse much more often than his purchase record reflects. Suppo also testified that Thompson “constantly” tried to talk to her and “constantly” tried to give her his phone number. Based on the EEOC's evidence, the jury could infer both that Thompson approached Suppo very frequently *623 and that he sometimes came to the warehouse to see her rather than to shop. It was not required to credit Costco's claim that the two saw one another no more than 20 times. Suppo described her interactions with Thompson as follows. On two occasions, she saw him “coming around the aisle just watching [her],” which made her “uncomfortable.” On other occasions, he talked to her. Suppo testified that Thompson expressed some (though not all) of his questions “in a sexual way.” He asked (often repeatedly) where she was from, what her nationality was, where else she worked, where else she went, where she lived, what else she did, if she had a boyfriend, which male employees she spoke to, and the identity of a man she shopped with. Suppo described each of these questions as “intimate” because each made her feel “uncomfortable.” On various occasions, he told her she was “pretty,” “beautiful,” and “exotic.” He asked how old she was. Two or three times Suppo told him she would not answer, and Thompson mused that “he couldn't tell if [she] was 17 or 27.” (Suppo was in her 40s at the time.) Thompson told her that she “look[ed] scared” and asked several times whether “he freak[ed her] out.” He tried to give her his business card on one occasion (pushing it into her hand “two, three, and four times”), asked her out on dates approximately six times, and “constantly” tried to give her his phone number. He also closely observed her appearance: For example, on a day that he saw her twice, he “noticed that she had obviously powdered her face” between the first and second times that he saw her. On another occasion, he noticed that her eye makeup had been applied unevenly. There was also some physical contact. Thompson used his shopping cart to bump into Suppo or her cart four times. He touched her twice: On one occasion, Thompson touched her face under her eye, noting some darkness. On another, he touched her wrist, commenting on her veins and a sore on her hand that was healing slowly. Thompson also attempted unsuccessfully to hug Suppo twice. Currier was present for two of these encounters: once when Thompson pulled his cart up next to Suppo before going to the restroom, and once when Thompson asked Suppo a few questions on the warehouse floor before she walked away from him and toward Currier. After the first instance, Currier told Suppo he was watching Thompson. After the second, Currier talked to Thompson. Suppo asked if she could park closer to the store's entrance to avoid being in the parking lot alone. When Costco denied her request, her father began picking her up from work. On September 1, 2011, Suppo was returning items throughout the warehouse as part of her “go-back” duties. While she was in the fish aisle, Thompson walked up to her and asked if they could talk. Suppo said no, and Thompson, red-faced, “whipped” his cart around and left. Shortly afterward, Suppo was in the candy aisle near the registers when she saw Thompson with his phone over his head, videotaping her “from afar.” She said, “I told you to leave me alone.” Thompson retorted, “Okay, I'll leave you alone, mysterious Dawn.” Suppo returned to work. In the meantime, Thompson saw Currier on the warehouse floor and claimed that while he had just encountered Suppo, she had initiated the contact. Things moved quickly after that. On September 8th, Suppo secured a Stalking No Contact Order against Thompson from the county circuit court; the order forbade Thompson from approaching Suppo at her residence or place of employment for 21 days. On September 11th, Suppo went on a medical leave of absence from Costco. And on September 19th, the General Manager *624 of the Glenview Costco told Thompson not to shop at the Glenview location anymore; he suggested that Thompson shop at Costco's Mettawa location, which was a comparable distance from Thompson's home. Thompson agreed. When the emergency no contact order expired at the end of the month, Suppo secured a plenary No Contact Order against Thompson for a full year. Costco continued its investigation after Suppo went on medical leave. On October 4th, the Assistant Vice President of the Midwest Region sent a letter to Thompson notifying him that Costco was aware of Suppo's complaints to both management and the Glenview police. The letter formally directed Thompson to shop at the Mettawa warehouse instead of the one in Glenview. On November 23rd, the General Manager of the Glenview store sent an investigation closure letter to Suppo, informing her that although the company could not confirm a violation of its harassment policy, it had instructed Thompson not to shop at the Glenview warehouse. Unfortunately, the closure letter did not mark the end of Suppo's interactions with Thompson. A few months later, she saw him while she was shopping with her father at Costco's Mettawa warehouse, where Thompson had been told to shop. Thompson screamed profanity at them. This happened on a Friday; Costco revoked Thompson's membership the following Monday. It forbade Thompson to enter any Costco warehouse without direct permission from the warehouse General Manager or the Assistant Vice President of the Midwest Region. In November of 2012, per company policy, Costco terminated Suppo because her unpaid medical leave of absence had extended beyond twelve months. B. The EEOC filed suit on Suppo's behalf. Its complaint alleged that Costco had discriminated against her because of her sex “by creating and tolerating a sexually hostile work environment of offensive comments of a sexual nature, unwelcome touching, unwelcome advances, and stalking by a customer.” It also accused Costco of constructively discharging Suppo. The district court granted Costco summary judgment on the constructive discharge claim, but it allowed the hostile work environment claim to go to trial. At the close of the EEOC's case, Costco moved for judgment as a matter of law, and the district court denied the motion. After the jury awarded Suppo $250,000 in compensatory damages, Costco renewed its motion for judgment as a matter of law and asked in the alternative for a new trial. The EEOC moved for backpay and various forms of injunctive relief. The district court denied all post-trial motions. Costco appeals the denial of its motion for judgment as a matter of law, and the EEOC cross-appeals the denial of backpay. II. 3 4 Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). An employer violates this provision when “discrimination based on sex ... create[s] a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). This case is unusual because it involves alleged sexual harassment by a customer rather than by a supervisor or coworker. That does not get Costco off the hook, however, because an employer can be liable for a hostile work environment that results from the acts of non-employees, including customers. *625 Dunn v. Washington Cty. Hosp., 429 F.3d 689, 691 (7th Cir.2005); see also Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir.1998) (“[T]he same standard of liability applies to both co-worker and customer harassment.”). 5 6 To establish a hostile work environment claim, a plaintiff must show that she was “(1) subjected to unwelcome sexual conduct, advances, or requests; (2) because of her sex; (3) that were severe or pervasive enough to create a hostile work environment; and (4) that there is a basis for employer liability.” Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir.2008). The third factor—the only one that Costco contests—requires the unwelcome conduct to be severe or pervasive from both a subjective and an objective point of view. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). This case turns on the objective prong: Costco concedes that Suppo subjectively perceived Thompson's conduct to be severe or pervasive, but it argues that no reasonable person would have experienced it that way. 7 8 9 To be severe or pervasive enough to create a hostile work environment, conduct must be “extreme.” Id. at 788, 118 S.Ct. 2275. Determining whether behavior crosses that threshold is not subject to “a mathematically precise test.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Rather, it depends on “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23, 114 S.Ct. 367. With that standard in mind, we evaluate Costco's appeal. A. 10 Costco grounds its attack on the jury's verdict in the content of Thompson's comments to Suppo and the nature of his physical contact with her. As for Thompson's comments, Costco insists that they were “tepid” compared to those that we have held insufficiently severe or pervasive to create a hostile work environment. On the scale of vulgarity, Costco is right—unsuccessful Title VII plaintiffs have endured far worse. Baskerville v. Culligan International Co. is a good example. There, we held that an employer was entitled to judgment in a case in which the behavior of the plaintiff's supervisor included making masturbation gestures while conversing with her, grunting suggestively as she turned to leave his office, referring to her as a “pretty girl,” and commenting that his office did not get “hot” until she walked in. 50 F.3d 428, 430 (7th Cir.1995). Thompson's attempts to solicit biographical information from Suppo, compliments on her appearance, and requests for dates were nowhere near this lewd. The same is true of the occasions on which Thompson touched Suppo. Costco correctly observes that we have held conduct that is more amorous and similarly pervasive to be insufficiently hostile to sustain a claim under Title VII. For example, in McPherson v. City of Waukegan, we held that a supervisor did not severely or pervasively harass plaintiff by asking what color bra she was wearing, pulling back the shoulder strap of her tank top to see for himself, and suggesting that he “make a house call” when she called in sick. 379 F.3d 430, 438–39 (7th Cir.2004). In Adusumilli v. City of Chicago, we held that a coworker did not severely or pervasively harass the plaintiff by making sexual comments and touching her arm, fingers, or buttocks, on four occasions. *626 164 F.3d 353, 361–62 (7th Cir.1998). Thompson's physical contact with Suppo—touches on the wrist and cheek, bumps with a shopping cart, and attempted hugs—was less sexually suggestive than conduct that we have already described as falling below the bar. Because Thompson's come-ons were so mild, Costco says, the district court should have granted it judgment as a matter of law. 11 12 Yet Costco's argument implies a position inconsistent with our case law: that harassment must be overtly sexual to be actionable under Title VII. To be sure, the alleged harassment must occur because of the plaintiff's sex.1 Smith v. Rosebud Farm, Inc., 898 F.3d 747, 750 (7th Cir.2018). But it need not consist of pressure for sex, intimate touching, or a barrage of deeply offensive sexual comments. Passananti v. Cook Cty., 689 F.3d 655, 664 (7th Cir.2012). Actionable discrimination can take other forms, such as demeaning, ostracizing, or even terrorizing the victim because of her sex. See, e.g., id. at 663–64 (supervisor created a hostile work environment by “demeaning, degrading and demoralizing” the plaintiff); Hall v. City of Chicago, 713 F.3d 325, 331 (7th Cir.2013) (supervisor isolated the plaintiff from her coworkers); Frazier v. Delco Elecs. Corp., 263 F.3d 663, 664–65, 667 (7th Cir.2001) (coworker terrorized the plaintiff). Here, we must decide whether a reasonable juror could find Thompson's conduct objectively intimidating or frightening. 13 14 In making this assessment, we do not—as Costco would have it—consider only what Thompson said and where he touched her. As we have emphasized before, “[c]ourts should not carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Hall, 713 F.3d at 331 (quoting Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir.2000) ). We determine whether a workplace was hostile based on “all the circumstances” of the case. Harris, 510 U.S. at 23, 114 S.Ct. 367; see also Hall, 713 F.3d at 331 (severity and pervasiveness must be judged by “the totality of the circumstances”). And in the circumstances of this case, Thompson's talking and touching took place in the context of his stalking. Suppo testified that Thompson's presence at the Glenview Costco was “constant.” He followed Suppo around the store, watching her from around corners. He stared at her from behind clothes racks, disguised in sunglasses and a hat. He monitored her movements and asked her to account for her conversations with men. He made trips to the warehouse to see Suppo rather than to shop. He “constantly” asked her out and “constantly” tried to give her his phone number. And Thompson continued this dogged pursuit of Suppo even after Don Currier told him to stay away from her, even after he knew that Suppo had gone to the police, even after he had assured both the police and Currier that he would avoid her, and even though he knew that his attention scared her. His behavior culminated in the bizarre, objectively frightening act of filming Suppo, whom he called “mysterious Dawn.” A reasonable juror could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person “of average steadfastness.” Frazier, 263 F.3d at 668. *627 Thompson's outburst in the Mettawa warehouse supports this conclusion. When Thompson saw Suppo and her father there, he screamed expletives. This outburst did not contribute to the hostility of Suppo's workplace because it occurred after Thompson had been banned from the Glenview store. It is relevant, however, to the jury's evaluation of Thompson's behavior during the 13-month period in which he interacted with Suppo at Glenview. Costco depicted Thompson as friendly but overeager; the EEOC portrayed him as unstable and obsessive. A reasonable juror aware of both the filming at Glenview and the outburst at Mettawa could view Thompson's behavior between May of 2010 and September of 2011 through the lens of the EEOC's portrayal. Last but certainly not least is the plenary “no contact” order issued by the state court.2 According to Costco, the evidence construed in the light most favorable to the EEOC permits only one conclusion: that Suppo is an eggshell plaintiff whom Thompson pestered rather than harassed. That position is exceedingly difficult to maintain in light of the state court's conclusion that Thompson violated the Illinois Stalking No Contact Order Act. The then-effective version of that Act provided that “ ‘[s]talking’ means engaging in a course of conduct directed at a specific person” when the stalker “knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety ... or suffer emotional distress.” 740 ILCS 21/10 § 10 (2010).3 It defined a “course of conduct” as “2 or more acts, including but not limited to acts in which a respondent directly [or] indirectly ... follows, monitors, observes, surveils, threatens, or communicates to or about, a person, [or] engages in other contact ....” Id. And it described “emotional distress” as “significant mental suffering, anxiety or alarm.” Id. After an adversarial hearing, the state court concluded that Thompson had violated this statute and issued a no-contact order prohibiting him from (among other things) coming within 200 feet of Suppo's place of employment for a year. Given the state court's judgment that Thompson engaged in a course of conduct that would “cause a reasonable person to fear for his or her safety ... or suffer emotional distress,” it would be quite something for us to say that a jury acted unreasonably by reaching the same conclusion. B. 15 16 17 It bears emphasis that an employer is not vicariously liable for the sexual harassment of its employee by a customer. There must be “a basis for employer liability,” Lapka, 517 F.3d at 982, and an employer is responsible for its own negligence if it is “reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises ... under his control.” Dunn, 429 F.3d at 691 (quoting the Restatement (2d) of Agency § 213(d) ); see also Lapka, 517 F.3d at 985 (“Title VII requires only that the employer take steps reasonably likely to stop the harassment.”); Frazier, 263 F.3d at 666 (“[A] violation of Title VII that is based on a claim of harassment by a coworker doesn't occur until the employer has failed to take reasonable steps to bring the harassment to an end.”). Costco's liability *628 therefore depends not only on what Thompson did, but also on how Costco responded. And while Costco did respond to Suppo's complaints about Thompson, it does not challenge the jury's decision that its response was unreasonably weak. Because Costco doesn't press that point, we don't address it. Costco's only challenge is to the jury's conclusion that Thompson severely or pervasively harassed Suppo, and as we have explained, that is a losing argument. III. On cross-appeal, the EEOC argues that the district court erred in denying its motion for backpay covering the period during which emotional distress rendered Suppo unable to work—a period that the EEOC defines as running from September of 2011, when Suppo went on unpaid medical leave, to December of 2014, a little more than two years after Costco terminated her. The district court's decision was driven by its view that backpay is available only to remedy discriminatory discharge. Suppo could not recover backpay for the time between September 11, 2011 and November 19, 2012 because she remained employed by Costco while she was on medical leave. And she was not constructively discharged on November 19, 2012 because she did not quit: Costco fired her because she had exhausted the 12-month leave of absence available under her Employee Agreement, and it could not reasonably accommodate her request for indefinite leave.4 Because Suppo could not show that she was constructively discharged either when she left for medical leave or when she was terminated, the district court reasoned, she was not entitled to backpay. 18 19 The district court got it right with respect to the EEOC's claim for backpay after Costco terminated Suppo. We have said that “[w]e can make it no plainer than to reiterate that constructive discharge ‘refers to a situation in which the employee is not fired but quits.’ ” Jordan v. City of Gary, 396 F.3d 825, 837 (7th Cir.2005) (quoting McPherson, 379 F.3d at 440). Suppo did not quit; she was fired because she did not comply with Costco's requirement that she return to work. That was the equivalent of walking off the job, and an employee who fails to return to work rather than resigning cannot bring a constructive discharge claim. Id. The district court misinterpreted our precedent, however, when it stated that backpay is unavailable to remedy wages lost during an unpaid leave. The district court reached that conclusion based on Hertzberg v. SRAM Corp., which holds that “[a] victim of discrimination [who] leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of [backpay].” 261 F.3d 651, 659 (7th Cir.2001). The district court understood this to mean that any victim of discrimination must show actual or constructive discharge to recover backpay. But Hertzberg only addresses what a plaintiff who “leaves his or her employment” must show—such a plaintiff must show that her employer made her working conditions so intolerable that she was forced to quit. Id. at 658. *629 Hertzberg does not address whether a plaintiff can recover backpay if she does not leave her employment. Townsend v. Indiana University answers that question. 995 F.2d 691, 693 (7th Cir.1993). There, the plaintiff took unpaid leave after being sexually assaulted at work. Her employer insisted that the she was not entitled to backpay because she remained an employee. We rejected the proposition that “involuntary termination, whether in the form of outright discharge or of constructive discharge (where the employer makes life so unbearable for the employee that the latter quits) is a sine qua non to prevailing under Title VII.” Id. at 693. We held that the plaintiff could seek backpay for the wages she lost while on an unpaid leave that sexual harassment had forced her to take. Id. The district court treated Hertzberg as superseding Townsend, because we decided Hertzberg after a 1991 amendment to Title VII authorized the recovery of compensatory and punitive damages. See 42 U.S.C. § 1981a(1) (providing that a plaintiff can recover compensatory and punitive damages in addition to equitable relief). But Hertzberg emphasizes that the new remedies provisions “left undisturbed” the previously available equitable remedies like backpay. Id. at 659. In so doing, it expressly embraces rather than impliedly overrules our preexisting case law on backpay.5 Id. (“There is nothing in the 1991 Amendments to suggest that the case law applying those prior [equitable] remedies is abrogated.”) (quoting Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir.2000) ). Townsend remains good law. 20 21 22 23 Thus, the EEOC can recover backpay on Suppo's behalf if it can show that Suppo's work environment was so hostile that she was “forced to take unpaid leave.” Townsend, 995 F.2d at 693. As with constructive discharge, a mere causal link between the discrimination and the change in employment status is insufficient. The victim of the harassment must establish that her working conditions were so objectively intolerable that they forced a change in employment status—here, from regular employment to unpaid leave. If a reasonable person in Suppo's shoes would have felt forced by unbearable working conditions to take an unpaid medical leave in September of 2011, then Suppo is entitled to recover backpay for some period of time following the involuntary leave.6 That period, however, cannot extend beyond the date that Costco terminated her employment. * * * The district court properly denied Costco's motion for judgment as a matter of law. But because it did not address whether the sexual harassment that Suppo suffered while at Costco forced her to take unpaid medical leave, we REMAND to the district court so that it can decide that question in the first instance.

Barrett

majority

Dawn Suppo, an employee of Costco Wholesale Corporation, was stalked by Thad Thompson, a customer of Costco, for over a year. Things got so bad at the end that Suppo secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave, and when she didn't come back, Costco terminated her employment. The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo's behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson's harassment. After the jury rendered a verdict in the EEOC's favor, Costco moved for judgment as a matter of law and the EEOC moved for backpay. The district court denied both motions, and both parties appeal. We conclude that the district court was right to deny Costco's motion for judgment as a matter of law, because a reasonable jury could conclude that Thompson's conduct was severe or pervasive enough to render Suppo's work environment hostile. The district court was only half right, however, with respect to the EEOC's motion for backpay. We agree with the district court that Suppo cannot recover backpay for the period of time after Costco fired her. But it should have considered whether Suppo was entitled to backpay for some or all of her time on unpaid medical leave. I. 1 2 The evidence frequently conflicted during the trial, but because the EEOC won a verdict on Suppo's behalf, we recount the facts in the light most favorable to her. We look at the record as a whole, give her the benefit of every inference, and refrain from making credibility determinations. ; see also (7th Cir.2005). Our task is to determine whether a juror inclined to believe Suppo's side of the story could reasonably conclude that Costco subjected her to a hostile work environment. A. Costco is a warehouse club open to members who pay an annual fee. It offers a wide range of goods—everything from groceries to furniture—at its many locations around the country. In 2009, Suppo began working at Costco's store in Glenview, Illinois as a seasonal, part-time employee; in May of 2010, she transitioned to regular, part-time status. Her duties included doing “go-backs”—re-shelving *6 items that members decided not to purchase. Go-backs required Suppo to circulate around the large warehouse with a shopping cart, returning items to the sections where they belonged. Most, if not all, of her encounters with Thompson occurred while she was doing go-backs. Suppo encountered Thompson for the first time in May or June of 2010. Thompson referred to Suppo by her first name, which he read from her employee nametag. He noted that he had seen her “speaking to one of the guys up front” and asked what Suppo describes as “a few personal questions,” such as where she lived. Suppo replied that it was nice to meet him, but she had to return to work. A few days later, they had a similar encounter: Thompson approached her, asked questions that Suppo considered personal, and Suppo replied that she had to go back to work. Suppo did not immediately report these interactions to Costco management. But they had unnerved her, and two months later, she related them to Don Currier, her direct manager. She told Currier that she was scared, and he instructed her to notify him if she saw Thompson again. Shortly after her conversation with Currier, Suppo did see Thompson again. This time, he was wearing “sunglasses and a hat” while “watching [her] in different aisles and hiding behind the clothes.” When Thompson realized that she had seen him, he told Suppo that she “looked scared” and left. Suppo notified Currier, and Currier, Greg West (Assistant General Manager), and Daniro Hernandez (a loss-prevention officer) brought Thompson into the warehouse office, where they told him to “avoid [Suppo] and not talk to her.” Thompson was defensive and angry; he loudly stated that it is a “free country” and invoked his “freedom of speech.” He nonetheless agreed to stay away from Suppo. Currier told Suppo about the meeting and instructed her to follow up with him if she had future concerns about Thompson. Suppo remained frightened by this third interaction with Thompson and decided to contact the police. She filed a report stating that Thompson had been asking personal questions and “hiding behind clothes watching her.” Later that day, the police called Suppo about her report while she was in the warehouse office with Currier and West. After she hung up, West yelled at her and told her to “be friendly to” Thompson. The police interviewed Thompson, but they did not arrest or charge him. Instead, they filed a half-page report relating Suppo's claims that “Thompson was stalking her while she was at Costco,” that she could “feel him looking at her,” and that “when she looks at him he looks down.” The report also noted that Thompson had apologized and said that he would avoid Suppo in Costco. But Thompson did not avoid Suppo. The two encountered one another multiple times over the next 13 months, although Costco and the EEOC disagree about how many. Costco insists before us (as it did before the jury) that Thompson and Suppo could not have seen one another more than 20 times during this 13-month period, because Thompson's purchase record reflects that he was in the warehouse during only 20 of Suppo's 308 scheduled shifts. As the EEOC pointed out at trial, however, Costco only records when members purchase items, not when they enter the warehouse, and Suppo testified that Thompson's cart was sometimes empty when she saw him. Thus, Thompson could have been in the warehouse much more often than his purchase record reflects. Suppo also testified that Thompson “constantly” tried to talk to her and “constantly” tried to give her his phone number. Based on the EEOC's evidence, the jury could infer both that Thompson approached Suppo very frequently *623 and that he sometimes came to the warehouse to see her rather than to shop. It was not required to credit Costco's claim that the two saw one another no more than 20 times. Suppo described her interactions with Thompson as follows. On two occasions, she saw him “coming around the aisle just watching [her],” which made her “uncomfortable.” On other occasions, he talked to her. Suppo testified that Thompson expressed some (though not all) of his questions “in a sexual way.” He asked (often repeatedly) where she was from, what her nationality was, where else she worked, where else she went, where she lived, what else she did, if she had a boyfriend, which male employees she spoke to, and the identity of a man she shopped with. Suppo described each of these questions as “intimate” because each made her feel “uncomfortable.” On various occasions, he told her she was “pretty,” “beautiful,” and “exotic.” He asked how old she was. Two or three times Suppo told him she would not answer, and Thompson mused that “he couldn't tell if [she] was 17 or 27.” (Suppo was in her 40s at the time.) Thompson told her that she “look[ed] scared” and asked several times whether “he freak[ed her] out.” He tried to give her his business card on one occasion (pushing it into her hand “two, three, and four times”), asked her out on dates approximately six times, and “constantly” tried to give her his phone number. He also closely observed her appearance: For example, on a day that he saw her twice, he “noticed that she had obviously powdered her face” between the first and second times that he saw her. On another occasion, he noticed that her eye makeup had been applied unevenly. There was also some physical contact. Thompson used his shopping cart to bump into Suppo or her cart four times. He touched her twice: On one occasion, Thompson touched her face under her eye, noting some darkness. On another, he touched her wrist, commenting on her veins and a sore on her hand that was healing slowly. Thompson also attempted unsuccessfully to hug Suppo twice. Currier was present for two of these encounters: once when Thompson pulled his cart up next to Suppo before going to the restroom, and once when Thompson asked Suppo a few questions on the warehouse floor before she walked away from him and toward Currier. After the first instance, Currier told Suppo he was watching Thompson. After the second, Currier talked to Thompson. Suppo asked if she could park closer to the store's entrance to avoid being in the parking lot alone. When Costco denied her request, her father began picking her up from work. On September 1, 2011, Suppo was returning items throughout the warehouse as part of her “go-back” duties. While she was in the fish aisle, Thompson walked up to her and asked if they could talk. Suppo said no, and Thompson, red-faced, “whipped” his cart around and left. Shortly afterward, Suppo was in the candy aisle near the registers when she saw Thompson with his phone over his head, videotaping her “from afar.” She said, “I told you to leave me alone.” Thompson retorted, “Okay, I'll leave you alone, mysterious Dawn.” Suppo returned to work. In the meantime, Thompson saw Currier on the warehouse floor and claimed that while he had just encountered Suppo, she had initiated the contact. Things moved quickly after that. On September 8th, Suppo secured a Stalking No Contact Order against Thompson from the county circuit court; the order forbade Thompson from approaching Suppo at her residence or place of employment for 21 days. On September 11th, Suppo went on a medical leave of absence from Costco. And on September 19th, the General Manager *624 of the Glenview Costco told Thompson not to shop at the Glenview location anymore; he suggested that Thompson shop at Costco's Mettawa location, which was a comparable distance from Thompson's home. Thompson agreed. When the emergency no contact order expired at the end of the month, Suppo secured a plenary No Contact Order against Thompson for a full year. Costco continued its investigation after Suppo went on medical leave. On October 4th, the Assistant Vice President of the Midwest Region sent a letter to Thompson notifying him that Costco was aware of Suppo's complaints to both management and the Glenview police. The letter formally directed Thompson to shop at the Mettawa warehouse instead of the one in Glenview. On November 23rd, the General Manager of the Glenview store sent an investigation closure letter to Suppo, informing her that although the company could not confirm a violation of its harassment policy, it had instructed Thompson not to shop at the Glenview warehouse. Unfortunately, the closure letter did not mark the end of Suppo's interactions with Thompson. A few months later, she saw him while she was shopping with her father at Costco's Mettawa warehouse, where Thompson had been told to shop. Thompson screamed profanity at them. This happened on a Friday; Costco revoked Thompson's membership the following Monday. It forbade Thompson to enter any Costco warehouse without direct permission from the warehouse General Manager or the Assistant Vice President of the Midwest Region. In November of 2012, per company policy, Costco terminated Suppo because her unpaid medical leave of absence had extended beyond twelve months. B. The EEOC filed suit on Suppo's behalf. Its complaint alleged that Costco had discriminated against her because of her sex “by creating and tolerating a sexually hostile work environment of offensive comments of a sexual nature, unwelcome touching, unwelcome advances, and stalking by a customer.” It also accused Costco of constructively discharging Suppo. The district court granted Costco summary judgment on the constructive discharge claim, but it allowed the hostile work environment claim to go to trial. At the close of the EEOC's case, Costco moved for judgment as a matter of law, and the district court denied the motion. After the jury awarded Suppo $250,000 in compensatory damages, Costco renewed its motion for judgment as a matter of law and asked in the alternative for a new trial. The EEOC moved for backpay and various forms of injunctive relief. The district court denied all post-trial motions. Costco appeals the denial of its motion for judgment as a matter of law, and the EEOC cross-appeals the denial of backpay. II. 3 4 Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of sex. 42 U.S.C. e-2(a)(1). An employer violates this provision when “discrimination based on sex create[s] a hostile or abusive work environment.” Meritor Sav. Bank, This case is unusual because it involves alleged sexual harassment by a customer rather than by a supervisor or coworker. That does not get Costco off the hook, however, because an employer can be liable for a hostile work environment that results from the acts of non-employees, including customers. *625 (7th Cir.2005); see also (“[T]he same standard of liability applies to both co-worker and customer harassment.”). 5 6 To establish a hostile work environment claim, a plaintiff must show that she was “(1) subjected to unwelcome sexual conduct, advances, or requests; (2) because of her sex; (3) that were severe or pervasive enough to create a hostile work environment; and (4) that there is a basis for employer liability.” (7th Cir.2008). The third factor—the only one that Costco contests—requires the unwelcome conduct to be severe or pervasive from both a subjective and an objective point of view. 141 L.Ed.2d 2 This case turns on the objective prong: Costco concedes that Suppo subjectively perceived Thompson's conduct to be severe or pervasive, but it argues that no reasonable person would have experienced it that way. 7 8 9 To be severe or pervasive enough to create a hostile work environment, conduct must be “extreme.” Rather, it depends on “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” With that standard in mind, we evaluate Costco's appeal. A. 10 Costco grounds its attack on the jury's verdict in the content of Thompson's comments to Suppo and the nature of his physical contact with her. As for Thompson's comments, Costco insists that they were “tepid” compared to those that we have held insufficiently severe or pervasive to create a hostile work environment. On the scale of vulgarity, Costco is right—unsuccessful Title VII plaintiffs have endured far worse. Baskerville v. Culligan International Co. is a good example. There, we held that an employer was entitled to judgment in a case in which the behavior of the plaintiff's supervisor included making masturbation gestures while conversing with her, grunting suggestively as she turned to leave his office, referring to her as a “pretty girl,” and commenting that his office did not get “hot” until she walked in. (7th Cir.1995). Thompson's attempts to solicit biographical information from Suppo, compliments on her appearance, and requests for dates were nowhere near this lewd. The same is true of the occasions on which Thompson touched Suppo. Costco correctly observes that we have held conduct that is more amorous and similarly pervasive to be insufficiently hostile to sustain a claim under Title VII. For example, in v. City of Waukegan, we held that a supervisor did not severely or pervasively harass plaintiff by asking what color bra she was wearing, pulling back the shoulder strap of her tank top to see for himself, and suggesting that he “make a house call” when she called in sick. 379 F.3d 438–39 (7th Cir.2004). In Adusumilli v. City of Chicago, we held that a coworker did not severely or pervasively harass the plaintiff by making sexual comments and touching her arm, fingers, or buttocks, on four occasions. *626 361–62 Thompson's physical contact with Suppo—touches on the wrist and cheek, bumps with a shopping cart, and attempted hugs—was less sexually suggestive than conduct that we have already described as falling below the bar. Because Thompson's come-ons were so mild, Costco says, the district court should have granted it judgment as a matter of law. 11 12 Yet Costco's argument implies a position inconsistent with our case law: that harassment must be overtly sexual to be actionable under Title VII. To be sure, the alleged harassment must occur because of the plaintiff's sex.1 (7th Cir.2018). But it need not consist of pressure for sex, intimate touching, or a barrage of deeply offensive sexual comments. 4 (7th Cir.2012). Actionable discrimination can take other forms, such as demeaning, ostracizing, or even terrorizing the victim because of her sex. See, e.g., at 3–64 (supervisor created a hostile work environment by “demeaning, degrading and demoralizing” the plaintiff); (7th Cir.2013) (supervisor isolated the plaintiff from her coworkers); 263 F.3d 3, 4–65, 7 (7th Cir.2001) (coworker terrorized the plaintiff). Here, we must decide whether a reasonable juror could find Thompson's conduct objectively intimidating or frightening. 13 14 In making this assessment, we do not—as Costco would have it—consider only what Thompson said and where he touched her. As we have emphasized before, “[c]ourts should not carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” 713 F.3d at ). We determine whether a workplace was hostile based on “all the circumstances” of the case. 510 U.S. ; see also 713 F.3d at And in the circumstances of this case, Thompson's talking and touching took place in the context of his stalking. Suppo testified that Thompson's presence at the Glenview Costco was “constant.” He followed Suppo around the store, watching her from around corners. He stared at her from behind clothes racks, disguised in sunglasses and a hat. He monitored her movements and asked her to account for her conversations with men. He made trips to the warehouse to see Suppo rather than to shop. He “constantly” asked her out and “constantly” tried to give her his phone number. And Thompson continued this dogged pursuit of Suppo even after Don Currier told him to stay away from her, even after he knew that Suppo had gone to the police, even after he had assured both the police and Currier that he would avoid her, and even though he knew that his attention scared her. His behavior culminated in the bizarre, objectively frightening act of filming Suppo, whom he called “mysterious Dawn.” A reasonable juror could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person “of average steadfastness.” 263 F.3d at 8. *627 Thompson's outburst in the Mettawa warehouse supports this conclusion. When Thompson saw Suppo and her father there, he screamed expletives. This outburst did not contribute to the hostility of Suppo's workplace because it occurred after Thompson had been banned from the Glenview store. It is relevant, however, to the jury's evaluation of Thompson's behavior during the 13-month period in which he interacted with Suppo at Glenview. Costco depicted Thompson as friendly but overeager; the EEOC portrayed him as unstable and obsessive. A reasonable juror aware of both the filming at Glenview and the outburst at Mettawa could view Thompson's behavior between May of 2010 and September of 2011 through the lens of the EEOC's portrayal. Last but certainly not least is the plenary “no contact” order issued by the state court.2 According to Costco, the evidence construed in the light most favorable to the EEOC permits only one conclusion: that Suppo is an eggshell plaintiff whom Thompson pestered rather than harassed. That position is exceedingly difficult to maintain in light of the state court's conclusion that Thompson violated the Illinois Stalking No Contact Order Act. The then-effective version of that Act provided that “ ‘[s]talking’ means engaging in a course of conduct directed at a specific person” when the stalker “knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or suffer emotional distress.” 740 ILCS 21/10 10 (2010).3 It defined a “course of conduct” as “2 or more acts, including but not limited to acts in which a respondent directly [or] indirectly follows, monitors, observes, surveils, threatens, or communicates to or about, a person, [or] engages in other contact” And it described “emotional distress” as “significant mental suffering, anxiety or alarm.” After an adversarial hearing, the state court concluded that Thompson had violated this statute and issued a no-contact order prohibiting him from (among other things) coming within 200 feet of Suppo's place of employment for a year. Given the state court's judgment that Thompson engaged in a course of conduct that would “cause a reasonable person to fear for his or her safety or suffer emotional distress,” it would be quite something for us to say that a jury acted unreasonably by reaching the same conclusion. B. 15 16 17 It bears emphasis that an employer is not vicariously liable for the sexual harassment of its employee by a customer. There must be “a basis for employer liability,” 517 F.3d at and an employer is responsible for its own negligence if it is “reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises under his control.” 429 F.3d at of Agency 213(d) ); see also ; 263 F.3d at 6 Costco's liability *628 therefore depends not only on what Thompson did, but also on how Costco responded. And while Costco did respond to Suppo's complaints about Thompson, it does not challenge the jury's decision that its response was unreasonably weak. Because Costco doesn't press that point, we don't address it. Costco's only challenge is to the jury's conclusion that Thompson severely or pervasively harassed Suppo, and as we have explained, that is a losing argument. III. On cross-appeal, the EEOC argues that the district court erred in denying its motion for backpay covering the period during which emotional distress rendered Suppo unable to work—a period that the EEOC defines as running from September of 2011, when Suppo went on unpaid medical leave, to December of 2014, a little more than two years after Costco terminated her. The district court's decision was driven by its view that backpay is available only to remedy discriminatory discharge. Suppo could not recover backpay for the time between September 11, 2011 and November 19, 2012 because she remained employed by Costco while she was on medical leave. And she was not constructively discharged on November 19, 2012 because she did not quit: Costco fired her because she had exhausted the 12-month leave of absence available under her Employee Agreement, and it could not reasonably accommodate her request for indefinite leave.4 Because Suppo could not show that she was constructively discharged either when she left for medical leave or when she was terminated, the district court reasoned, she was not entitled to backpay. 18 19 The district court got it right with respect to the EEOC's claim for backpay after Costco terminated Suppo. We have said that “[w]e can make it no plainer than to reiterate that constructive discharge ‘refers to a situation in which the employee is not fired but quits.’ ” (7th Cir.2005) (quoting ). Suppo did not quit; she was fired because she did not comply with Costco's requirement that she return to work. That was the equivalent of walking off the job, and an employee who fails to return to work rather than resigning cannot bring a constructive discharge claim. The district court misinterpreted our precedent, however, when it stated that backpay is unavailable to remedy wages lost during an unpaid leave. The district court reached that conclusion based on Hertzberg v. SRAM Corp., which holds that “[a] victim of discrimination [who] leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of [backpay].” (7th Cir.2001). The district court understood this to mean that any victim of discrimination must show actual or constructive discharge to recover backpay. But Hertzberg only addresses what a plaintiff who “leaves his or her employment” must show—such a plaintiff must show that her employer made her working conditions so intolerable that she was forced to quit. *629 Hertzberg does not address whether a plaintiff can recover backpay if she does not leave her employment. 995 F.2d There, the plaintiff took unpaid leave after being sexually assaulted at work. Her employer insisted that the she was not entitled to backpay because she remained an employee. We rejected the proposition that “involuntary termination, whether in the form of outright discharge or of constructive discharge (where the employer makes life so unbearable for the employee that the latter quits) is a sine qua non to prevailing under Title VII.” at We held that the plaintiff could seek backpay for the wages she lost while on an unpaid leave that sexual harassment had forced her to take. The district court treated Hertzberg as superseding because we decided Hertzberg after a 1991 amendment to Title VII authorized the recovery of compensatory and punitive damages. See 42 U.S.C. 1981a(1) (providing that a plaintiff can recover compensatory and punitive damages in addition to equitable relief). But Hertzberg emphasizes that the new remedies provisions “left undisturbed” the previously available equitable remedies like backpay. at In so doing, it expressly embraces rather than impliedly overrules our preexisting case law on backpay.5 ). remains good law. 20 21 23 Thus, the EEOC can recover backpay on Suppo's behalf if it can show that Suppo's work environment was so hostile that she was “forced to take unpaid leave.” 995 F.2d at As with constructive discharge, a mere causal link between the discrimination and the change in employment status is insufficient. The victim of the harassment must establish that her working conditions were so objectively intolerable that they forced a change in employment status—here, from regular employment to unpaid leave. If a reasonable person in Suppo's shoes would have felt forced by unbearable working conditions to take an unpaid medical leave in September of 2011, then Suppo is entitled to recover backpay for some period of time following the involuntary leave.6 That period, however, cannot extend beyond the date that Costco terminated her employment. * * * The district court properly denied Costco's motion for judgment as a matter of law. But because it did not address whether the sexual harassment that Suppo suffered while at Costco forced her to take unpaid medical leave, we REMAND to the district court so that it can decide that question in the first instance.

Estate of Biegert by Biegert v. Molitor

Joseph Biegert's mother called the police for help because she was concerned that her son was attempting to kill himself. Officers went to Biegert's apartment to check on him, and when they arrived, Biegert initially cooperated. He began resisting, though, when the officers tried to pat him down. A scuffle ensued, and the officers tried to subdue Biegert with fists, Tasers, and a baton. All of these efforts to restrain Biegert failed, and Biegert armed himself with a kitchen knife. When he began to stab one of the officers, they shot him, and he died at the scene. Biegert's mother, on behalf of his estate, argues that the officers used excessive force both by restraining Biegert during a pat down and by shooting him. The district court disagreed, concluding that the officers reasonably restrained Biegert and that they reasonably resorted to lethal force when Biegert threatened them with a knife. We reach the same conclusion, so we affirm the district court's judgment. I. On February 24, 2015, Joseph Biegert texted his mother that he had taken a number of pills in an apparent suicide attempt. His mother, concerned for his safety, called the Green Bay, Wisconsin, police and requested a welfare check. She told the dispatcher that Biegert was depressed, had a history of suicide attempts, was alone, and had access to neither weapons nor vehicles. Officers Brian Krueger and Matthew Dunn were dispatched to Biegert's apartment and requested that rescue personnel prepare nearby. After they arrived, the two officers went to Biegert's apartment without first pausing to formulate a plan. As they approached the apartment, Biegert called police dispatch, expressing concern that there were strangers outside his door who he believed were going to hurt him. While Biegert was on the call, Dunn knocked on the door and announced that they were the police. The officers did not know that Biegert had called dispatch and grew suspicious when they heard him walk away from the door, rummage for something, and return to open the door. Biegert's estate contends that the delay was due to Biegert being on the phone with dispatch. After Biegert opened the door, he confirmed his identity and that he was depressed. He then allowed both officers into the apartment. Three pill bottles lay on the floor, and Krueger asked Biegert how many pills he had ingested, to which Biegert responded “three”—Krueger believed this may have meant three bottles’ worth. Shortly after entering the apartment, Dunn and Krueger heard sounds from the bedroom and asked Biegert who else was there; Biegert said that he didn't know. Dunn conducted a protective sweep, discovering that the sound had been caused by a shade in front of an open window. During the sweep, Dunn noticed a knife block in the kitchen, but he did not secure the knives before returning to Krueger and Biegert in the living room. Though the apartment was dark, the officers did not turn on any lights, opting for flashlights instead. According to the estate, the officers questioned and instructed Biegert aggressively and became increasingly combative as the encounter went on. Biegert, seated on the couch, put his hand in his pocket and Krueger told him to remove it. Krueger then asked Dunn to pat down Biegert for weapons to ensure the safety of the rescue personnel waiting outside, though neither believed that Biegert was either armed or unwilling to accept help. Biegert stood and put his hands behind his back as *697 instructed. As he patted him down, Dunn held two of Biegert's fingers with one hand in a way that Dunn concedes may have been painful. While Dunn searched Biegert, Krueger advised the rescue team that they could approach the apartment. Biegert recoiled when Dunn's pat down neared Biegert's belt, and Biegert pulled his right hand out of Dunn's grasp. Krueger then grabbed Biegert's left hand while Dunn sought to regain control of Biegert's right hand. Biegert pulled away, dragging the officers toward the kitchen. Krueger told Biegert “[d]on't do anything stupid” and tried to put Biegert in a secure hold so that he could place him in handcuffs. Dunn attempted to block Biegert with his leg, and both Biegert and Dunn fell to the floor. Biegert rose again, pulled the officers into the kitchen and all three men fell to the floor while Biegert continued to thrash against the officers. Krueger drew his Taser and attempted to use it on Biegert, but it did not fire. When Krueger then tried to put the Taser directly against Biegert, Biegert squeezed Krueger's genitals and reached for the Taser. Krueger knocked the Taser out of Biegert's hand and began punching Biegert in the face, apparently with no effect. Dunn then drew his Taser, and although he tried to aim at Biegert, he hit Krueger instead. Once Krueger recovered from the shock, he expanded his baton and prepared to continue striking Biegert. At this point, Biegert managed to grab a knife from the kitchen counter, and he stood over Dunn with the knife in his right hand. Biegert lunged at Dunn, who initially deflected the knife with his hand. But Biegert lunged again, cutting Dunn's right arm. Dunn drew his sidearm and yelled that Biegert was stabbing him. Krueger threw his baton to keep it from Biegert and drew his own sidearm, stepping back. Biegert stepped toward Krueger and Krueger fired. Dunn then fired and Biegert fell on his back, still holding the knife. The estate alleges that officers stopped shooting when Biegert fell, only to resume moments later. Dunn reloaded his firearm and kept it pointed at Biegert while Biegert continued breathing for a short time. Other officers arrived to assist, and Dunn received care for two stab wounds to his upper right arm. Two minutes elapsed from the officers’ knocking on Biegert's door to the shooting. Biegert died at the scene. Biegert's mother brought this suit on behalf of her son's estate. The defendant officers moved for summary judgment and the district court granted their motion, concluding that the officers acted reasonably under the Fourth Amendment, without reaching the defendants’ alternative qualified immunity argument. The district court also granted summary judgment for the defendants on Biegert's due process claim and claims against Thomas Molitor, the officers’ supervisor, and other unidentified officers. Biegert appeals the grant of summary judgment with respect to Dunn and Krueger. II. On appeal, Biegert's estate argues that the officers violated Biegert's Fourth Amendment right to be free from excessive force both by painfully holding his fingers and by shooting him. According to the estate, the force was unreasonable because the officers created the danger through their aggressive questioning, pat down, and failure to secure the knife block. In addition, the estate says, the officers’ actions were contrary to both state law and police department policies. The estate does not challenge the reasonableness of the entry into Biegert's apartment or the seizure of Biegert. *698 1 2 3 We review the district court's grant of summary judgment de novo, construing the facts in favor of the nonmovant. Daza v. Indiana, 941 F.3d 303, 308 (7th Cir. 2019). We evaluate an excessive force claim under the Fourth Amendment's reasonableness standard, which “requires a careful balancing of the ‘nature and quality of the intrusion on the individual's Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation omitted). Ultimately, the reasonableness of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. A. 4 The estate contends that the officers acted unreasonably by creating the conditions that precipitated the violent encounter. As the estate sees it, the officers created the situation that ultimately led to Biegert's death by failing to make a plan for the encounter, failing to secure the knife block in the kitchen, and questioning Biegert aggressively. But none of these actions rendered the officers’ subsequent use of force unreasonable, nor did the officers’ creation of a dangerous situation constitute an independent violation of Biegert's constitutional rights. The officers might have made mistakes, and those mistakes might have provoked Biegert's violent resistance. Even if so, however, it does not follow that their actions violated the Fourth Amendment. City & County of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1777, 191 L.Ed.2d 856 (2015) (“[E]ven if [the officers] misjudged the situation, Sheehan cannot ‘establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.’ ” (citation omitted)). Only in narrow circumstances have we concluded that an officer acted unreasonably because he created a situation where deadly force became essentially inevitable. In Starks v. Enyart, for example, we held that an officer acted unreasonably when he jumped in front of a speeding cab, after which companion officers shot the driver to prevent the officer from being struck. 5 F.3d 230, 234 (7th Cir. 1993). The officer acted unreasonably, we explained, because he created a situation in which it was impossible for a person to react in a way that would “avoid presenting a deadly threat.” Id. Sledd v. Lindsay is another example. In that case, we concluded that the officers acted unreasonably when they failed to identify themselves while forcibly entering a home to execute a search warrant in plain clothes, which resulted in their shooting a man who had armed himself thinking that the officers were intruders. 102 F.3d 282, 288 (7th Cir. 1996). We explained that “in a situation where a person has no reason to know that someone is a police officer, and the officer's identity is concealed, the normal rules governing use of deadly force and right to resist are modified.” Id. In Starks and Sledd, the officers acted so far outside the bounds of reasonable behavior that the deadly force was almost entirely a result of the officers’ actions. That's not true in this case. Even if the defendants’ actions exacerbated the danger, Biegert's actions were an intervening cause of the deadly force. Dunn and Krueger escalated the force that they applied in response to the force with which Biegert resisted; the situation requiring them to use deadly force was not primarily of their own making. 5 6 The estate also emphasizes that the officers violated police department regulations *699 and that these violations bear on the officers’ reasonableness. But the district court was correct to give no weight to these arguments. As we have previously stated, § 1983 “protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.” Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Policies and procedures do not shed light on the reasonableness of an officer's behavior because, “even if they could be practicably assessed by a judge, [such policies] vary from place to place and from time to time,” and so “[w]e cannot accept that the search and seizure protections of the Fourth Amendment are so variable.” Whren v. United States, 517 U.S. 806, 815, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). B. 7 8 Next, the estate argues that the officers acted unreasonably when Dunn took hold of Biegert's fingers in a way that may have caused him pain. Restraining an individual may be appropriate in “inherently dangerous situations,” even where the officers do not suspect the restrained individual of a crime. Muehler v. Mena, 544 U.S. 93, 100, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (concluding that “the use of handcuffs minimizes the risk of harm to both officers and occupants” of the area being searched); see also United States v. Howard, 729 F.3d 655, 659 (7th Cir. 2013) (concluding that sometimes “it may be reasonable for police to detain people not suspected of criminal activity themselves, so long as the additional intrusion on individual liberty is marginal and is outweighed by the governmental interest in conducting legitimate police activities safely and free from interference”). At least when handcuffs are used, however, we have emphasized that “an officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight or threat of injury.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009); see also Payne v. Pauley, 337 F.3d 767, 779 (7th Cir. 2003) (holding that officers acted unreasonably by twisting the arms and handcuffing “a woman who was not threatening to harm the police officer or anyone else at the scene, was not resisting or evading arrest, was not attempting to flee, and was charged with ... minor offenses”). Here, Dunn acted reasonably in asserting some physical control over Biegert while he conducted a pat down. Biegert was reportedly suicidal, and the officers wanted to ensure that he posed no threat to the rescue personnel. If Biegert experienced pain in the way Dunn held his fingers, he did not give the officers any indication of it. See Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006) (holding that officers acted reasonably where “Tibbs complained only once ..., gave the officers no indication of the degree of his pain [and], experienced minimal (if any) injury”). The officers were permitted to restrain Biegert while conducting the pat down. There is no evidence that they did so in an unreasonably painful manner, nor does the estate allege that the officers intended to hurt Biegert. C. 9 10 11 12 Finally, we turn to the shooting. When evaluating the reasonableness of deadly force, we focus on the danger posed by the person to whom the force was applied. This requires asking “whether a reasonable officer in the circumstances would have probable cause to believe that the suspect poses an immediate threat to the safety of the officers or others.” Sanzone v. Gray, 884 F.3d 736, 740 (7th Cir. 2018). As a general matter, “[i]f the suspect *700 threatens the officer with a weapon, deadly force may be used.” Id. And police officers may resort to deadly force “even if a less deadly alternative is available to the officers.” King v. Hendricks Cty. Comm'rs, 954 F.3d 981, 985 (7th Cir. 2020). We have had a number of occasions to consider when officers may reasonably respond to a threat with deadly force. In Henning v. O'Leary, we concluded that it was reasonable for an officer to shoot a suspect when the officer believed the individual had armed himself with an officer's gun in the course of a “tense struggle.” 477 F.3d 492, 496 (7th Cir. 2007). In trying to handcuff Henning, officers initially employed “hand strikes, pepper spray, and baton blows to the torso and legs,” but Henning continued to resist. Id. at 494. At one point during the struggle, an officer noticed that his gun was missing from its holster. Fearing that the gun might be in Henning's possession, the officer reached beneath Henning, who was lying on his side, and felt both the gun and what he believed to be a finger reaching for the trigger. The officer then shouted to other officers on the scene, one of whom drew his own weapon and fired at Henning, killing him. We concluded that the officers acted reasonably because they did not need to wait until Henning posed an even more imminent threat than he did when reaching for the trigger. Id. at 496. More recently, in King v. Hendricks County Commissioners, we concluded that officers reasonably used deadly force during a welfare check when a mentally unstable man “pointed a large knife at them, disregarded their repeated commands to drop the knife, and then charged” at the officers. 954 F.3d at 985. We held that the officers reasonably applied deadly force—even though they did not first attempt to use less lethal means—because King “pose[d] an immediate threat of serious harm to the officers.” Id. We emphasize that someone does not pose “an immediate threat of serious harm” solely because he is armed. We made that point in Weinmann v. McClone, which involved an officer performing a wellness check on a man who had locked himself in the garage with a shotgun on his lap. 787 F.3d 444, 447 (7th Cir. 2015). Without making any attempt to communicate with the man, the officer barged into the garage and shot him. Id. We held that the case turned on whether the man had threatened the officer with the shotgun—if he hadn't, it was unreasonable for the officer to shoot him. Id. Having a weapon is not the same thing as threatening to use a weapon. Cf. Sanzone, 884 F.3d at 740 (holding that officers reasonably resorted to deadly force when an armed man threatened to “fire a warning shot” and then pointed his gun at the officers). Here, though, Biegert not only threatened to use the knife—he actually used it. By the time Biegert was shot, he had already stabbed Dunn multiple times. The officers, therefore, indisputably faced an immediate threat to their physical safety. And as in Henning, King, and Sanzone, the imminent threat of deadly harm posed by an aggressive, armed assailant justified the defendants’ use of lethal force. We also note that the officers did not resort to deadly force as their first line of defense to Biegert's resistance. Rather, the officers applied only mild physical force to restrain Biegert during the pat down and increased the force only as Biegert increased his physical resistance. When Biegert dragged the officers to the kitchen and onto the floor, Dunn and Krueger resorted to punches and Tasers. And when the Tasers proved ineffective, the officers continued to employ less lethal methods—fists, batons, and bodyweight—in *701 their attempts to restrain Biegert. Only after Dunn yelled that he had been stabbed and Biegert advanced toward Krueger with a knife did the officers employ lethal force. We must evaluate the reasonableness of the officers’ actions with the understanding that the situation they faced was “tense, uncertain, and rapidly evolving” and required them to “make split second judgements” about how much force to apply to counter the danger Biegert posed. Graham, 490 U.S. at 397, 109 S.Ct. 1865. As in Henning, the officers first attempted less lethal methods in response to Biegert's resistance. And, as in King, Biegert posed an imminent threat to the officers once he had armed himself with a knife, attacked Dunn, and advanced toward Krueger. At this point, the officers reasonably resorted to firing at Biegert in response to the imminent threat he posed. 13 14 15 16 The estate also contends that there was a pause in the shooting—that the officers stopped shooting when Biegert ceased to pose a threat and then resumed after he had collapsed to the ground. The estate's best evidence for this theory is the audio captured by one of the officers’ dash cameras. But the garbled audio, in which the officers can barely be heard over the background noise, contains no clearly audible pause. “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). A dispute of fact is not genuine if “the evidence supporting [one] version of events does not rise above speculation or conjecture.” King, 954 F.3d at 986. We must draw inferences in the estate's favor but “our favor toward the nonmoving party does not extend to drawing ‘[i]nferences that are supported by only speculation or conjecture.’ ” Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (alteration in original) (citation omitted). Because the audio provides no support for the estate's theory and it offers no other admissible evidence, no factual issue remained that would bar summary judgment.

Barrett

majority

Joseph Biegert's mother called the police for help because she was concerned that her son was attempting to kill himself. Officers went to Biegert's apartment to check on him, and when they arrived, Biegert initially cooperated. He began resisting, though, when the officers tried to pat him down. A scuffle ensued, and the officers tried to subdue Biegert with fists, Tasers, and a baton. All of these efforts to restrain Biegert failed, and Biegert armed himself with a kitchen knife. When he began to stab one of the officers, they shot him, and he died at the scene. Biegert's mother, on behalf of his estate, argues that the officers used excessive force both by restraining Biegert during a pat down and by shooting him. The district court disagreed, concluding that the officers reasonably restrained Biegert and that they reasonably resorted to lethal force when Biegert threatened them with a knife. We reach the same conclusion, so we affirm the district court's judgment. I. On February 24, Joseph Biegert texted his mother that he had taken a number of pills in an apparent suicide attempt. His mother, concerned for his safety, called the Green Bay, Wisconsin, police and requested a welfare check. She told the dispatcher that Biegert was depressed, had a history of suicide attempts, was alone, and had access to neither weapons nor vehicles. Officers Brian Krueger and Matthew Dunn were dispatched to Biegert's apartment and requested that rescue personnel prepare nearby. After they arrived, the two officers went to Biegert's apartment without first pausing to formulate a plan. As they approached the apartment, Biegert called police dispatch, expressing concern that there were strangers outside his door who he believed were going to hurt him. While Biegert was on the call, Dunn knocked on the door and announced that they were the police. The officers did not know that Biegert had called dispatch and grew suspicious when they heard him walk away from the door, rummage for something, and return to open the door. Biegert's estate contends that the delay was due to Biegert being on the phone with dispatch. After Biegert opened the door, he confirmed his identity and that he was depressed. He then allowed both officers into the apartment. Three pill bottles lay on the floor, and Krueger asked Biegert how many pills he had ingested, to which Biegert responded “three”—Krueger believed this may have meant three bottles’ worth. Shortly after entering the apartment, Dunn and Krueger heard sounds from the bedroom and asked Biegert who else was there; Biegert said that he didn't know. Dunn conducted a protective sweep, discovering that the sound had been caused by a shade in front of an open window. During the sweep, Dunn noticed a knife block in the kitchen, but he did not secure the knives before returning to Krueger and Biegert in the living room. Though the apartment was dark, the officers did not turn on any lights, opting for flashlights instead. According to the estate, the officers questioned and instructed Biegert aggressively and became increasingly combative as the encounter went on. Biegert, seated on the couch, put his hand in his pocket and Krueger told him to remove it. Krueger then asked Dunn to pat down Biegert for weapons to ensure the safety of the rescue personnel waiting outside, though neither believed that Biegert was either armed or unwilling to accept help. Biegert stood and put his hands behind his back as *697 instructed. As he patted him down, Dunn held two of Biegert's fingers with one hand in a way that Dunn concedes may have been painful. While Dunn searched Biegert, Krueger advised the rescue team that they could approach the apartment. Biegert recoiled when Dunn's pat down neared Biegert's belt, and Biegert pulled his right hand out of Dunn's grasp. Krueger then grabbed Biegert's left hand while Dunn sought to regain control of Biegert's right hand. Biegert pulled away, dragging the officers toward the kitchen. Krueger told Biegert “[d]on't do anything stupid” and tried to put Biegert in a secure hold so that he could place him in handcuffs. Dunn attempted to block Biegert with his leg, and both Biegert and Dunn fell to the floor. Biegert rose again, pulled the officers into the kitchen and all three men fell to the floor while Biegert continued to thrash against the Krueger drew his Taser and attempted to use it on Biegert, but it did not fire. When Krueger then tried to put the Taser directly against Biegert, Biegert squeezed Krueger's genitals and reached for the Taser. Krueger knocked the Taser out of Biegert's hand and began punching Biegert in the face, apparently with no effect. Dunn then drew his Taser, and although he tried to aim at Biegert, he hit Krueger instead. Once Krueger recovered from the shock, he expanded his baton and prepared to continue striking Biegert. At this point, Biegert managed to grab a knife from the kitchen counter, and he stood over Dunn with the knife in his right hand. Biegert lunged at Dunn, who initially deflected the knife with his hand. But Biegert lunged again, cutting Dunn's right arm. Dunn drew his sidearm and yelled that Biegert was stabbing him. Krueger threw his baton to keep it from Biegert and drew his own sidearm, stepping back. Biegert stepped toward Krueger and Krueger fired. Dunn then fired and Biegert fell on his back, still holding the knife. The estate alleges that officers stopped shooting when Biegert fell, only to resume moments later. Dunn reloaded his firearm and kept it pointed at Biegert while Biegert continued breathing for a short time. Other officers arrived to assist, and Dunn received care for two stab wounds to his upper right arm. Two minutes elapsed from the officers’ knocking on Biegert's door to the shooting. Biegert died at the scene. Biegert's mother brought this suit on behalf of her son's estate. The defendant officers moved for summary judgment and the district court granted their motion, concluding that the officers acted reasonably under the Fourth Amendment, without reaching the defendants’ alternative qualified immunity argument. The district court also granted summary judgment for the defendants on Biegert's due process claim and claims against Thomas Molitor, the officers’ supervisor, and other unidentified Biegert appeals the grant of summary judgment with respect to Dunn and Krueger. II. On appeal, Biegert's estate argues that the officers violated Biegert's Fourth Amendment right to be free from excessive force both by painfully holding his fingers and by shooting him. According to the estate, the force was unreasonable because the officers created the danger through their aggressive questioning, pat down, and failure to secure the knife block. In addition, the estate says, the officers’ actions were contrary to both state law and police department policies. The estate does not challenge the reasonableness of the entry into Biegert's apartment or the seizure of Biegert. *698 1 2 3 We review the district court's grant of summary judgment de novo, construing the facts in favor of the nonmovant. We evaluate an excessive force claim under the Fourth Amendment's reasonableness standard, which “requires a careful balancing of the ‘nature and quality of the intrusion on the individual's Fourth Amendment interests’ against the countervailing governmental interests at stake.” Ultimately, the reasonableness of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” A. 4 The estate contends that the officers acted unreasonably by creating the conditions that precipitated the violent encounter. As the estate sees it, the officers created the situation that ultimately led to Biegert's death by failing to make a plan for the encounter, failing to secure the knife block in the kitchen, and questioning Biegert aggressively. But none of these actions rendered the officers’ subsequent use of force unreasonable, nor did the officers’ creation of a dangerous situation constitute an independent violation of Biegert's constitutional rights. The officers might have made mistakes, and those mistakes might have provoked Biegert's violent resistance. Even if so, however, it does not follow that their actions violated the Fourth Amendment. City & County of San (“[E]ven if [the officers] misjudged the situation, Sheehan cannot ‘establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.’ ” ). Only in narrow circumstances have we concluded that an officer acted unreasonably because he created a situation where deadly force became essentially inevitable. In Starks v. Enyart, for example, we held that an officer acted unreasonably when he jumped in front of a speeding cab, after which companion officers shot the driver to prevent the officer from being struck. The officer acted unreasonably, we explained, because he created a situation in which it was impossible for a person to react in a way that would “avoid presenting a deadly threat.” Sledd v. Lindsay is another example. In that case, we concluded that the officers acted unreasonably when they failed to identify themselves while forcibly entering a home to execute a search warrant in plain clothes, which resulted in their shooting a man who had armed himself thinking that the officers were intruders. We explained that “in a situation where a person has no reason to know that someone is a police officer, and the officer's identity is concealed, the normal rules governing use of deadly force and right to resist are modified.” In Starks and Sledd, the officers acted so far outside the bounds of reasonable behavior that the deadly force was almost entirely a result of the officers’ actions. That's not true in this case. Even if the defendants’ actions exacerbated the danger, Biegert's actions were an intervening cause of the deadly force. Dunn and Krueger escalated the force that they applied in response to the force with which Biegert resisted; the situation requiring them to use deadly force was not primarily of their own making. 5 6 The estate also emphasizes that the officers violated police department regulations *699 and that these violations bear on the officers’ reasonableness. But the district court was correct to give no weight to these arguments. As we have previously stated, 1983 “protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.” Policies and procedures do not shed light on the reasonableness of an officer's behavior because, “even if they could be practicably assessed by a judge, [such policies] vary from place to place and from time to time,” and so “[w]e cannot accept that the search and seizure protections of the Fourth Amendment are so variable.” B. 7 8 Next, the estate argues that the officers acted unreasonably when Dunn took hold of Biegert's fingers in a way that may have caused him pain. Restraining an individual may be appropriate in “inherently dangerous situations,” even where the officers do not suspect the restrained individual of a crime. ; see also United (concluding that sometimes “it may be reasonable for police to detain people not suspected of criminal activity themselves, so long as the additional intrusion on individual liberty is marginal and is outweighed by the governmental interest in conducting legitimate police activities safely and free from interference”). At least when handcuffs are used, however, we have emphasized that “an officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight or threat of injury.” ; see also Here, Dunn acted reasonably in asserting some physical control over Biegert while he conducted a pat down. Biegert was reportedly suicidal, and the officers wanted to ensure that he posed no threat to the rescue personnel. If Biegert experienced pain in the way Dunn held his fingers, he did not give the officers any indication of it. See The officers were permitted to restrain Biegert while conducting the pat down. There is no evidence that they did so in an unreasonably painful manner, nor does the estate allege that the officers intended to hurt Biegert. C. 9 10 11 12 Finally, we turn to the shooting. When evaluating the reasonableness of deadly force, we focus on the danger posed by the person to whom the force was applied. This requires asking “whether a reasonable officer in the circumstances would have probable cause to believe that the suspect poses an immediate threat to the safety of the officers or others.” As a general matter, “[i]f the suspect *700 threatens the officer with a weapon, deadly force may be used.” And police officers may resort to deadly force “even if a less deadly alternative is available to the ” We have had a number of occasions to consider when officers may reasonably respond to a threat with deadly force. In Henning v. O'Leary, we concluded that it was reasonable for an officer to shoot a suspect when the officer believed the individual had armed himself with an officer's gun in the course of a “tense struggle.” In trying to handcuff Henning, officers initially employed “hand strikes, pepper spray, and baton blows to the torso and legs,” but Henning continued to resist. At one point during the struggle, an officer noticed that his gun was missing from its holster. Fearing that the gun might be in Henning's possession, the officer reached beneath Henning, who was lying on his side, and felt both the gun and what he believed to be a finger reaching for the trigger. The officer then shouted to other officers on the scene, one of whom drew his own weapon and fired at Henning, killing him. We concluded that the officers acted reasonably because they did not need to wait until Henning posed an even more imminent threat than he did when reaching for the trigger. at More recently, in v. Hendricks County Commissioners, we concluded that officers reasonably used deadly force during a welfare check when a mentally unstable man “pointed a large knife at them, disregarded their repeated commands to drop the knife, and then charged” at the 954 F.3d at We held that the officers reasonably applied deadly force—even though they did not first attempt to use less lethal means—because “pose[d] an immediate threat of serious harm to the ” We emphasize that someone does not pose “an immediate threat of serious harm” solely because he is armed. We made that point in Weinmann v. McClone, which involved an officer performing a wellness check on a man who had locked himself in the garage with a shotgun on his lap. Without making any attempt to communicate with the man, the officer barged into the garage and shot him. We held that the case turned on whether the man had threatened the officer with the shotgun—if he hadn't, it was unreasonable for the officer to shoot him. Having a weapon is not the same thing as threatening to use a weapon. Cf. 884 F.3d at Here, though, Biegert not only threatened to use the knife—he actually used it. By the time Biegert was shot, he had already stabbed Dunn multiple times. The officers, therefore, indisputably faced an immediate threat to their physical safety. And as in Henning, and the imminent threat of deadly harm posed by an aggressive, armed assailant justified the defendants’ use of lethal force. We also note that the officers did not resort to deadly force as their first line of defense to Biegert's resistance. Rather, the officers applied only mild physical force to restrain Biegert during the pat down and increased the force only as Biegert increased his physical resistance. When Biegert dragged the officers to the kitchen and onto the floor, Dunn and Krueger resorted to punches and Tasers. And when the Tasers proved ineffective, the officers continued to employ less lethal methods—fists, batons, and bodyweight—in *701 their attempts to restrain Biegert. Only after Dunn yelled that he had been stabbed and Biegert advanced toward Krueger with a knife did the officers employ lethal force. We must evaluate the reasonableness of the officers’ actions with the understanding that the situation they faced was “tense, uncertain, and rapidly evolving” and required them to “make split second judgements” about how much force to apply to counter the danger Biegert posed. As in Henning, the officers first attempted less lethal methods in response to Biegert's resistance. And, as in Biegert posed an imminent threat to the officers once he had armed himself with a knife, attacked Dunn, and advanced toward Krueger. At this point, the officers reasonably resorted to firing at Biegert in response to the imminent threat he posed. 13 14 15 16 The estate also contends that there was a pause in the shooting—that the officers stopped shooting when Biegert ceased to pose a threat and then resumed after he had collapsed to the ground. The estate's best evidence for this theory is the audio captured by one of the officers’ dash cameras. But the garbled audio, in which the officers can barely be heard over the background noise, contains no clearly audible pause. “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” A dispute of fact is not genuine if “the evidence supporting [one] version of events does not rise above speculation or conjecture.” We must draw inferences in the estate's favor but “our favor toward the nonmoving party does not extend to drawing ‘[i]nferences that are supported by only speculation or conjecture.’ ” Because the audio provides no support for the estate's theory and it offers no other admissible evidence, no factual issue remained that would bar summary judgment.

Fessenden v. Reliance Standard Life Ins. Co.

Donald Fessenden applied for long-term disability benefits through his former employer's benefits plan. After the plan administrator, Reliance Standard Life Insurance Company, denied the claim, Fessenden submitted a request for review with additional evidence supporting it. When Reliance failed to issue a decision within the timeline mandated by the regulations governing the Employee Retirement Income Security Act of 1974 (ERISA), he sought review of Reliance's decision in federal court. Eight days later, after Fessenden had already filed suit, Reliance finally issued a decision, again denying Fessenden's claim. We must decide whether Reliance's tardiness affects the standard of review in the district court. If the decision had been timely, the court would have applied an arbitrary and capricious standard because the plan gave Reliance the discretion to administer it. When a plan administrator commits a procedural violation, however, it *1000 loses the benefit of deference and a de novo standard applies. We have recognized an exception, though, and Reliance seeks to take advantage of it: if the administrator “substantially complies” with the prescribed procedures—in other words, if the violation is relatively minor—then the court will still defer to the administrator's decision. Reliance argues that it “substantially complied” with the deadline because it was only a little bit late. 1 We reject Reliance's argument because we hold that the “substantial compliance” exception does not apply to blown deadlines. An administrator may be able to “substantially comply” with other procedural requirements, but a deadline is a bright line. Because Reliance violated a hard-and-fast obligation, its late decision to deny Fessenden benefits is not entitled to deference. I. Fessenden worked as a Software Engineer Manager for Oracle USA until January 2008, when he stopped working due to fatigue and severe, chronic migraine headaches. He applied for short-term disability benefits through Oracle's employee welfare benefits plan, a fully funded group insurance policy issued by Reliance. The request was approved, and Fessenden received benefits through May 11, 2008. Oracle terminated Fessenden shortly thereafter. In March 2014, Fessenden submitted a claim to Reliance for long-term disability benefits dating back to his last day of work in 2008. His submission included medical records from 2006 to 2014, as well as statements from multiple doctors, all supporting his diagnosis of Chronic Fatigue Syndrome. Reliance denied his claim in an eleven-page letter stating the reasons for its decision and emphasizing the difficulties involved in reviewing a six-year-old claim. The letter told Fessenden how to request review of the decision and explained the timeline that would apply to Reliance's resolution of an appeal: Reliance would notify Fessenden in writing of its final decision within 45 days of the date that it received a request for review, unless special circumstances existed. In that event, Reliance would notify him of the final decision no later than 90 days from the date that it received the request. See 29 C.F.R. § 2560.503-1(i)(1)(i) & (i)(3)(i) (2002). On April 24, 2015, Fessenden submitted his request for review, complete with additional medical records and physicians' statements. But he sent it to an address different from the one included in the instructions, and Reliance did not confirm receipt of it until May 8. On June 17, Reliance notified Fessenden that it needed an additional 45 days to make its determination, and on August 27, it entered its final decision denying Fessenden's claim for long-term disability benefits. The parties disagree on when exactly Reliance's 90 days were up, but they all agree that Reliance made its final decision after the window had closed.1 2 Before the final decision issued, but after the deadline had passed, Fessenden sued Reliance and Oracle under ERISA, see 29 U.S.C. § 1132; 29 C.F.R. § 2560.503-1(l) (2002), maintaining that he qualified for disability benefits under the plan. Normally, the lack of a final decision would mean that Fessenden's suit was premature, *1001 because an insured must exhaust the plan's review process before taking the dispute to federal court. See Edwards v. Briggs & Stratton Retirement Plan, 639 F.3d 355, 360 (7th Cir. 2011). But when a plan administrator fails to follow required procedures, such as deadlines for issuing decisions, “a claimant shall be deemed to have exhausted the administrative remedies available under the plan,” 29 C.F.R. § 2560.503-1(l) (2002), and can seek judicial review even if the plan's internal process has not run its course, see Edwards, 639 F.3d at 360. 3 The absence of a final decision affects more than the timing of a suit—it also affects the standard of review. When a benefit plan gives the administrator discretionary authority to determine a claimant's eligibility for benefits, we typically review the denial of benefits under an arbitrary and capricious standard. See id. That standard reflects deference to the administrator's exercise of discretion. See id.; see also Conkright v. Frommert, 559 U.S. 506, 517–18, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010). But when an administrator fails to render a final decision, there is no valid exercise of discretion to which the court can defer, and it decides de novo whether the insured is entitled to benefits. See Trs. of Cent. States, Se. & Sw. Areas Health and Welfare Fund v. State Farm Mut. Auto. Ins. Co., 17 F.3d 1081, 1083 (7th Cir. 1994) (“Deferential review is appropriate only when the trust instrument allows the trustee to interpret the instrument and when the trustee has in fact interpreted the instrument.” (emphasis added)); see also Gritzer v. CBS, Inc., 275 F.3d 291, 296 (3d Cir. 2002) (“Where a trustee fails to act or to exercise his or her discretion, de novo review is appropriate because the trustee has forfeited the privilege to apply his or her discretion; it is the trustee's analysis, not his or her right to use discretion or a mere arbitrary denial, to which a court should defer.”). Here, however, Reliance did issue a final decision—it was just late in coming. Fessenden filed his suit on August 19, and Reliance denied his request for review on August 27. At that point, Fessenden sought to clarify the standard that the district court would apply in reviewing his claim. He urged the district court to ignore Reliance's August 27 decision and review his claim and supporting evidence de novo. According to Fessenden, Reliance forfeited the benefit of deference when it blew the deadline. Reliance, on the other hand, suggested that a late decision is different from a case in which an administrator altogether fails to render a decision. See, e.g., Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 632 (10th Cir. 2003); Gritzer, 275 F.3d at 295–96. Reliance complied with its obligation to resolve Fessenden's appeal; it was just a little bit late in doing so. And because it was only a little bit late, Reliance insisted that the district court should excuse its untimeliness under the doctrine of “substantial compliance.” Under that doctrine, “a plan administrator who has violated a technical rule under ERISA ... may be excused for the violation if the administrator has been substantially compliant with the requirements of ERISA.” Edwards, 639 F.3d at 361–62. In such cases, “a plan administrator, notwithstanding [its] error, is given the benefit of deferential review of the administrator's determination about a claim under the arbitrary and capricious standard ..., rather than more stringent de novo review.” Id. at 362. Fessenden argued that the timing regulation precluded application of the substantial compliance exception; that Reliance had not substantially complied with the deadline in any event; and that even if Reliance had substantially complied, its decision *1002 to deny him benefits was arbitrary and capricious. The district court sided with Reliance on all three issues and entered summary judgment in its favor. II. Fessenden suggests that we abandon the substantial compliance exception altogether. The exception is judge-made. See Burns v. Orthotek, Inc. Employees' Pension Plan & Tr., 657 F.3d 571, 575 (7th Cir. 2011) (“The concept of substantial compliance is part of the body of federal common law that the courts have developed for issues on which ERISA does not speak directly.” (quoting Davis v. Combes, 294 F.3d 931, 940 (7th Cir. 2002))). As a common-law doctrine, it cannot override regulations that ERISA has authorized the Department of Labor to adopt. And although both the statute and regulations were once silent about the effect of minor procedural violations on the standard of review, Fessenden claims that this changed in 2002, when an amendment adding a provision to specifically address “failure to establish and follow reasonable claims procedures” became effective: In the case of the failure of a plan to establish or follow claims procedures consistent with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim. 29 C.F.R. § 2560.503-1(l) (2002).2 While this provision does not explicitly discuss the relative severity of violations—or corresponding standards of review—Fessenden points to the regulations' preamble, which provides that “[t]he Department's intentions in including [subsection (l) ] in the proposal were to clarify that the procedural minimums of the regulation are essential to procedural fairness and that a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.” ERISA Rules and Regulations for Administration and Enforcement; Claims Procedures, 65 Fed. Reg. 70246, 70255 (Nov. 21, 2000). According to Fessenden, this is authoritative evidence that subsection (l) mandates the loss of judicial deference to plan administrators for any procedural violation. In other words, Fessenden says, the 2002 version of the regulation makes clear that the substantial compliance exception no longer applies. Fessenden invokes Halo v. Yale Health Plan to support his interpretation. See 819 F.3d 42 (2d Cir. 2016). In Halo, the Second Circuit vacated a district court opinion that had applied deferential arbitrary and capricious review to claim denials that failed to strictly comply—but nevertheless substantially complied—with ERISA regulations governing both the substance and timing of such decisions. Id. at 45–47. The court emphasized that the 2002 ERISA regulations radically overhauled the earlier version, and it focused particularly on the addition of subsection (l). Id. at 49–57. Because that provision “admittedly says nothing about standards of review,” id. at 53, the court determined that it was “at least ambiguous with respect to the standard of review” that should be applied to decisions that fail to comply with proper claims procedures, id. at 54. It also considered the Department's interpretation of subsection (l), as reflected in the preamble, *1003 which states that “a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.” Id. at 53 (citation omitted). While the court found the preamble instructive, the preamble did not resolve the question “whether a plan need only substantially comply with or must strictly adhere to the regulation to obtain the more deferential arbitrary and capricious standard of review.” Id. at 56. On this question, the court considered the Department of Labor's choices during the drafting of subsection (l) to be conclusive. Id. After the Department proposed adding subsection (l), “commentators representing employers and plans argued that this provision would impose unnecessarily harsh consequences on plans that substantially fulfill the requirements of the regulations, but fall short in minor respects.” Id. at 57 (citation omitted). Those commentators suggested replacing subsection (l) with a more flexible standard, but the Department rejected those suggestions and left the language as it was. Id. Thus, the court held, “[w]hatever the merits of applying the substantial compliance doctrine under the 1977 claims-procedure regulation, we conclude that the doctrine is flatly inconsistent with the [2002] regulation.” Id. at 56; see also Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1316 (10th Cir. 2009) (“The 2002 amendments have, however, called into question the continuing validity of the substantial compliance test we have used to avoid creating a rule that would automatically permit de novo review for every violation of the deadlines.”). Halo is inconsistent with our case law because we have applied the substantial compliance doctrine even since the 2002 regulations became effective. See, e.g., Edwards, 639 F.3d at 361–62; Ponsetti v. GE Pension Plan, 614 F.3d 684, 693 (7th Cir. 2010); Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d 621, 626–29 (7th Cir. 2005); Kough v. Teamsters' Local 301 Pension Plan, 437 F. App'x 483, 486 (7th Cir. 2011).3 But we need not decide whether we have been wrong to do so because we can decide the case on a narrower ground: even if the substantial compliance doctrine remains valid, it does not apply to the violation of regulatory deadlines. The 2002 regulations strike a delicate balance between the administrator's need for more time and the claimant's need for a timely decision. After all, the administrator's interests are not the only ones at stake; delaying payment of a claim imposes financial pressure on the claimant. That pressure is particularly acute for a disability claimant, who applies for disability benefits because she is unable to work and therefore unable to generate income. Given the seriousness of that burden, the new *1004 regulations single out disability claims for quicker review than other kinds of claims. 29 C.F.R. § 2560.503-1(i)(3)(i) (2002). When a claimant seeks review of an administrator's denial of benefits, the administrator must review the claim “not later than” a specified period of time—45 days for disability claims and 60 days for others. Id. § 2560.503-1(i)(1)(i); see also id. § 2560.503-1(i)(3)(i). The administrator can extend that time, but only when “special circumstances” apply. Id. § 2560.503-1(i)(1)(i) & (i)(3). During the extension period, a tolling mechanism protects the administrator from delay on the part of the claimant. Id. § 2560.503-1(i)(4) (“In the event that a period of time is extended ... the period for making the benefit determination on review shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information.”). But when that time is up, it's up: the regulation provides that “in no event shall such extension exceed [the allotted] period.” Id. § 2560.503-1(i)(1)(i) (emphasis added). That period is 45 days for disability claims and 60 days for others. Id. § 2560.503-1(i)(3)(i) (“[C]laims involving disability benefits ... shall be governed by paragraph (i)(1) of this section, except that a period of 45 days shall apply instead of 60 days for purposes of that paragraph.”). A court that excused even more administrative delay would upset the careful balance that the regulations strike between the competing interests of administrators and claimants.4 It would also run afoul of § 2560.503-1(i)(1)(i), which says that “in no event” can a deadline be extended further. That language excludes nothing—no event, however reasonable or harmless—from its scope. Substantial compliance with a deadline requiring strict compliance is a contradiction in terms. Cf. Burns, 657 F.3d at 575 (holding that the doctrine of substantial compliance “cannot cure” the violation of an “explicit statutory requirement” in ERISA's text). The very point of a deadline is to impose a hard stop. Cf. United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (“Foreclosing litigants from bringing their claim because they missed the filing deadline by one day may seem harsh, but courts have to draw lines somewhere ....”). Because the administrator lacks discretion to take longer than the regulations allow, its tardy decision is not entitled deference. The regulations are not the only reason that Reliance's argument fails—applying the substantial compliance doctrine to blown deadlines is incompatible with the doctrine itself. We have said that an administrator substantially complies with ERISA's requirements if, despite the regulatory violation, it provides sufficient process and information to permit “effective review” of its denial of benefits. See Schneider, 422 F.3d at 627–28 (explaining that the substantial compliance doctrine is subservient to ERISA's broad goal of ensuring that the process and explanation accompanying a denial of benefits “is adequate to ensure meaningful review of that denial.” (citation omitted)). For example, we might overlook an administrator's failure to strictly comply with the regulations governing the content of letters giving notice of benefit determinations so long as “the beneficiary [was] supplied with a statement of reasons that, under *1005 the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review.” Id. at 628 (citation omitted). This standard cannot be applied to an untimely decision because there is nothing to review at the time that administrative remedies are deemed exhausted. There is no explanation for a claimant to read and understand. And if the claimant files suit before the decision arrives, there is neither an exercise of discretion to which a court could defer nor anything for the court to use to measure the degree of the administrator's compliance. See Univ. Hosp. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 n.3 (6th Cir. 2000) (“[T]here is undeniable logic in the view that a plan administrator should forfeit deferential review by failing to exercise its discretion in a timely manner.”). Fessenden's case highlights the point. After Reliance's initial decision denying him benefits, Fessenden had the opportunity to submit additional evidence to Reliance to support his claim on review. See 29 C.F.R. § 2560.503-1(h)(2)(ii) (2002). He did so, providing extensive documentation and medical evaluations. After Reliance failed to issue a decision on this new record, Fessenden filed suit in federal court. Thus, when litigation began, the district court was presented with a claim for benefits based on evidence that, for all Fessenden and the court knew, Reliance had not yet considered, and had certainly not accounted for in any decision on Fessenden's claim. Both Fessenden and the court necessarily lacked a “sufficiently clear understanding of the administrator's position to permit effective review.” See Schneider, 422 F.3d at 628 (citation omitted). The court could not have measured how compliant Reliance had been because Reliance had not yet complied at all. And in the absence of a decision to which it could defer, the district court had no choice but to review the claim de novo. Reliance's position that an administrator can change the standard of review with a late-breaking decision would therefore be a novel application of the substantial compliance doctrine. And permitting that novelty would undercut the benefits of exhaustion for claimants. A claimant is entitled to sue as soon as a claim is deemed exhausted because the administrator has failed to make a timely decision. But Reliance's position would leave such a claimant in an uncertain position. Should she wait a little bit longer just in case the administrator makes a decision? Or should she go ahead, attempting to frame her case in a way that is responsive to a decision that hasn't yet—but may still—come? Moreover, an administrator who has more time may get an unfair advantage: it could sandbag a claimant who sues at the point of exhaustion by issuing a decision tailored to combat her complaint. See Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1104 (9th Cir. 2003) (“[A] contrary rule would allow claimants, who are entitled to sue once a claim had been ‘deemed denied,’ to be ‘sandbagged’ by a rationale the plan administrator adduces only after the suit has commenced.”); see also Fed. Power Comm. v. Texaco, Inc., 417 U.S. 380, 394–97, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (acknowledging that the Commission had “great discretion” but explaining that failure to exercise that discretion at the appropriate time cannot be remedied with “post hoc rationalizations” (citation omitted)). In short, giving administrators a post-exhaustion grace period creates problems. We acknowledge that some of our sister circuits have been willing to apply the substantial compliance exception to blown deadlines. See *1006 Gilbertson, 328 F.3d at 634–35 (applying the substantial compliance doctrine to an administrator's untimely decision under the pre-2002 regulation); Jebian, 349 F.3d at 1108 (“Absent unusual circumstances, an administrator engaged in a genuine, productive, ongoing dialogue that substantially complies with a plan's and the regulations' timelines should remain entitled to whatever discretion the plan documentation gives it.”); see also Becknell v. Severance Pay Plan of Johnson & Johnson, 644 F. App'x 205, 213 (3d Cir. 2016) (conducting deferential review because “[the plan administrator's] late decision does not rise to the level of a severe procedural violation”). These circuits have seen no difference between forgiving tardiness and forgiving violations of other procedural requirements. We disagree.5 As an initial matter, it is worth noting that many of the circuits currently applying the exception to missed deadlines have relied on precedent that predates the 2002 version of the regulations. The earlier version offered a much less nuanced approach to balancing the competing interests at stake, which subjected the goals of ERISA to different kinds of gamesmanship and perverse incentives. See Gilbertson, 328 F.3d at 634–35; see id. at 629 n.3, 631 n.4. For example, because the old regulations did not include tolling provisions to stop the clock while the administrator was waiting on information from the claimant, “claimants might [have been] encouraged to delay a final decision by suggesting that they intend[ed] to produce additional information, only to pull the plug and demand de novo review in federal court on the [last] day.” Id. at 635. The substantial compliance doctrine allowed courts the flexibility to police such gamesmanship and avoid results that would be “antithetical to the aims of ERISA.” Id. But the amendments reflected in the 2002 regulations address the incentives concern head-on by including more detailed and balanced provisions on timing and tolling. Thus, the oft-invoked rationale for applying the exception to missed deadlines no longer exists. Yet whatever its merits under prior versions of the regulations, we hold that excusing late decisions is both foreclosed by the 2002 regulations and incompatible with the doctrine. It is also in significant tension with our own precedent. In Edwards v. Briggs & Stratton Retirement Plan, a claimant who missed a deadline argued that the substantial compliance exception should excuse her untimeliness. 639 F.3d at 361–62. We rejected her argument. At the outset, we observed that we had never applied the doctrine to excuse the mistakes of claimants, as opposed to administrators. Id. at 362. But we also emphasized: [I]t seems consistent neither with the policies underlying the requirement of exhaustion of administrative remedies in ERISA cases nor with judicial economy to import into the exhaustion requirement the substantial compliance doctrine. To so hold would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving courts in detailed, case-by-case determinations as to whether a given claimant's failure to bring a timely appeal from a denial of benefits should be excused or not. Id.; see also id. (“[T]he Plan has fixed a clear deadline of 180 days for filing administrative appeals from denials of benefits, and the Plan has the right to enforce that *1007 deadline.”). That reasoning applies equally to deadlines that bind plan administrators. What's good for the goose is good for the gander. * * * Because the doctrine of substantial compliance does not apply to ERISA's regulatory deadlines, Fessenden's claim should have been reviewed de novo. We therefore VACATE the district court's summary judgment determination and REMAND for proceedings consistent with this opinion.

Barrett

majority

Donald Fessenden applied for long-term disability benefits through his former employer's benefits plan. After the plan administrator, Reliance Standard Life Insurance Company, denied the claim, Fessenden submitted a request for review with additional evidence supporting it. When Reliance failed to issue a decision within the timeline mandated by the regulations governing the Employee Retirement Income Security Act of (ERISA), he sought review of Reliance's decision in federal court. Eight days later, after Fessenden had already filed suit, Reliance finally issued a decision, again denying Fessenden's claim. We must decide whether Reliance's tardiness affects the standard of review in the district court. If the decision had been timely, the court would have applied an arbitrary and capricious standard because the plan gave Reliance the discretion to administer it. When a plan administrator commits a procedural violation, however, it *1000 loses the benefit of deference and a de novo standard applies. We have recognized an exception, though, and Reliance seeks to take advantage of it: if the administrator “substantially complies” with the prescribed procedures—in other words, if the violation is relatively minor—then the court will still defer to the administrator's decision. Reliance argues that it “substantially complied” with the deadline because it was only a little bit late. 1 We reject Reliance's argument because we hold that the “substantial compliance” exception does not apply to blown deadlines. An administrator may be able to “substantially comply” with other procedural requirements, but a deadline is a bright line. Because Reliance violated a hard-and-fast obligation, its late decision to deny Fessenden benefits is not entitled to deference. I. Fessenden worked as a Software Engineer Manager for Oracle USA until January 2008, when he stopped working due to fatigue and severe, chronic migraine headaches. He applied for short-term disability benefits through Oracle's employee welfare benefits plan, a fully funded group insurance policy issued by Reliance. The request was approved, and Fessenden received benefits through May 11, 2008. Oracle terminated Fessenden shortly thereafter. In March 2014, Fessenden submitted a claim to Reliance for long-term disability benefits dating back to his last day of work in 2008. His submission included medical records from 2006 to 2014, as well as statements from multiple doctors, all supporting his diagnosis of Chronic Fatigue Syndrome. Reliance denied his claim in an eleven-page letter stating the reasons for its decision and emphasizing the difficulties involved in reviewing a six-year-old claim. The letter told Fessenden how to request review of the decision and explained the timeline that would apply to Reliance's resolution of an appeal: Reliance would notify Fessenden in writing of its final decision within 45 days of the date that it received a request for review, unless special circumstances existed. In that event, Reliance would notify him of the final decision no later than 90 days from the date that it received the request. See (i)(1)(i) & (i)(3)(i) On April 24, 2015, Fessenden submitted his request for review, complete with additional medical records and physicians' statements. But he sent it to an address different from the one included in the instructions, and Reliance did not confirm receipt of it until May 8. On June 17, Reliance notified Fessenden that it needed an additional 45 days to make its determination, and on August 27, it entered its final decision denying Fessenden's claim for long-term disability benefits. The parties disagree on when exactly Reliance's 90 days were up, but they all agree that Reliance made its final decision after the window had closed.1 2 Before the final decision issued, but after the deadline had passed, Fessenden sued Reliance and Oracle under ERISA, see ; (l) maintaining that he qualified for disability benefits under the plan. Normally, the lack of a final decision would mean that Fessenden's suit was premature, *1001 because an insured must exhaust the plan's review process before taking the dispute to federal court. See But when a plan administrator fails to follow required procedures, such as deadlines for issuing decisions, “a claimant shall be deemed to have exhausted the administrative remedies available under the plan,” (l) and can seek judicial review even if the plan's internal process has not run its course, see 639 F.3d at 3 The absence of a final decision affects more than the timing of a suit—it also affects the standard of review. When a benefit plan gives the administrator discretionary authority to determine a claimant's eligibility for benefits, we typically review the denial of benefits under an arbitrary and capricious standard. See That standard reflects deference to the administrator's exercise of discretion. See ; see also But when an administrator fails to render a final decision, there is no valid exercise of discretion to which the court can defer, and it decides de novo whether the insured is entitled to benefits. See Trs. of Cent. States, Se. & Sw. Areas Health and Welfare ; see also (“Where a trustee fails to act or to exercise his or her discretion, de novo review is appropriate because the trustee has forfeited the privilege to apply his or her discretion; it is the trustee's analysis, not his or her right to use discretion or a mere arbitrary denial, to which a court should defer.”). Here, however, Reliance did issue a final decision—it was just late in coming. Fessenden filed his suit on August 19, and Reliance denied his request for review on August 27. At that point, Fessenden sought to clarify the standard that the district court would apply in reviewing his claim. He urged the district court to ignore Reliance's August 27 decision and review his claim and supporting evidence de novo. According to Fessenden, Reliance forfeited the benefit of deference when it blew the deadline. Reliance, on the other hand, suggested that a late decision is different from a case in which an administrator altogether fails to render a decision. See, e.g., ; –96. Reliance complied with its obligation to resolve Fessenden's appeal; it was just a little bit late in doing so. And because it was only a little bit late, Reliance insisted that the district court should excuse its untimeliness under the doctrine of “substantial compliance.” Under that doctrine, “a plan administrator who has violated a technical rule under ERISA may be excused for the violation if the administrator has been substantially compliant with the requirements of ERISA.” –62. In such cases, “a plan administrator, notwithstanding [its] error, is given the benefit of deferential review of the administrator's determination about a claim under the arbitrary and capricious standard, rather than more stringent de novo review.” Fessenden argued that the timing regulation precluded application of the substantial compliance exception; that Reliance had not substantially complied with the deadline in any event; and that even if Reliance had substantially complied, its decision *1002 to deny him benefits was arbitrary and capricious. The district court sided with Reliance on all three issues and entered summary judgment in its favor. II. Fessenden suggests that we abandon the substantial compliance exception altogether. The exception is judge-made. See )). As a common-law doctrine, it cannot override regulations that ERISA has authorized the Department of Labor to adopt. And although both the statute and regulations were once silent about the effect of minor procedural violations on the standard of review, Fessenden claims that this changed in when an amendment adding a provision to specifically address “failure to establish and follow reasonable claims procedures” became effective: In the case of the failure of a plan to establish or follow claims procedures consistent with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim. (l)2 While this provision does not explicitly discuss the relative severity of violations—or corresponding standards of review—Fessenden points to the regulations' preamble, which provides that “[t]he Department's intentions in including [subsection (l) ] in the proposal were to clarify that the procedural minimums of the regulation are essential to procedural fairness and that a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.” ERISA Rules and Regulations for Administration and Enforcement; Claims Procedures, 70255 According to Fessenden, this is authoritative evidence that subsection (l) mandates the loss of judicial deference to plan administrators for any procedural violation. In other words, Fessenden says, the version of the regulation makes clear that the substantial compliance exception no longer applies. Fessenden invokes Halo v. Yale Health Plan to support his interpretation. See In Halo, the Second Circuit vacated a district court opinion that had applied deferential arbitrary and capricious review to claim denials that failed to strictly comply—but nevertheless substantially complied—with ERISA regulations governing both the substance and timing of such decisions. at 45–47. The court emphasized that the ERISA regulations radically overhauled the earlier version, and it focused particularly on the addition of subsection (l). at 49–57. Because that provision “admittedly says nothing about standards of review,” the court determined that it was “at least ambiguous with respect to the standard of review” that should be applied to decisions that fail to comply with proper claims procedures, It also considered the Department's interpretation of subsection (l), as reflected in the preamble, *1003 which states that “a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.” While the court found the preamble instructive, the preamble did not resolve the question “whether a plan need only substantially comply with or must strictly adhere to the regulation to obtain the more deferential arbitrary and capricious standard of review.” On this question, the court considered the Department of Labor's choices during the drafting of subsection (l) to be conclusive. After the Department proposed adding subsection (l), “commentators representing employers and plans argued that this provision would impose unnecessarily harsh consequences on plans that substantially fulfill the requirements of the regulations, but fall short in minor respects.” Those commentators suggested replacing subsection (l) with a more flexible standard, but the Department rejected those suggestions and left the language as it was. Thus, the court held, “[w]hatever the merits of applying the substantial compliance doctrine under the 1977 claims-procedure regulation, we conclude that the doctrine is flatly inconsistent with the [] regulation.” ; see also Rasenack ex rel. (“The amendments have, however, called into question the continuing validity of the substantial compliance test we have used to avoid creating a rule that would automatically permit de novo review for every violation of the deadlines.”). Halo is inconsistent with our case law because we have applied the substantial compliance doctrine even since the regulations became effective. See, e.g., –62; ; ;3 But we need not decide whether we have been wrong to do so because we can decide the case on a narrower ground: even if the substantial compliance doctrine remains valid, it does not apply to the violation of regulatory deadlines. The regulations strike a delicate balance between the administrator's need for more time and the claimant's need for a timely decision. After all, the administrator's interests are not the only ones at stake; delaying payment of a claim imposes financial pressure on the claimant. That pressure is particularly acute for a disability claimant, who applies for disability benefits because she is unable to work and therefore unable to generate income. Given the seriousness of that burden, the new *1004 regulations single out disability claims for quicker review than other kinds of claims. (i)(3)(i) When a claimant seeks review of an administrator's denial of benefits, the administrator must review the claim “not later than” a specified period of time—45 days for disability claims and 60 days for others. 2560.503-1(i)(1)(i); see also 2560.503-1(i)(3)(i). The administrator can extend that time, but only when “special circumstances” apply. 2560.503-1(i)(1)(i) & (i)(3). During the extension period, a tolling mechanism protects the administrator from delay on the part of the claimant. 2560.503-1(i)(4) (“In the event that a period of time is extended the period for making the benefit determination on review shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information.”). But when that time is up, it's up: the regulation provides that “in no event shall such extension exceed [the allotted] period.” 2560.503-1(i)(1)(i) (emphasis added). That period is 45 days for disability claims and 60 days for others. 2560.503-1(i)(3)(i) (“[C]laims involving disability benefits shall be governed by paragraph (i)(1) of this section, except that a period of 45 days shall apply instead of 60 days for purposes of that paragraph.”). A court that excused even more administrative delay would upset the careful balance that the regulations strike between the competing interests of administrators and claimants.4 It would also run afoul of 2560.503-1(i)(1)(i), which says that “in no event” can a deadline be extended further. That language excludes nothing—no event, however reasonable or harmless—from its scope. Substantial compliance with a deadline requiring strict compliance is a contradiction in terms. Cf. 657 F.3d at The very point of a deadline is to impose a hard stop. Cf. United Because the administrator lacks discretion to take longer than the regulations allow, its tardy decision is not entitled deference. The regulations are not the only reason that Reliance's argument fails—applying the substantial compliance doctrine to blown deadlines is incompatible with the doctrine itself. We have said that an administrator substantially complies with ERISA's requirements if, despite the regulatory violation, it provides sufficient process and information to permit “effective review” of its denial of benefits. See –28 (explaining that the substantial compliance doctrine is subservient to ERISA's broad goal of ensuring that the process and explanation accompanying a denial of benefits “is adequate to ensure meaningful review of that denial.” ). For example, we might overlook an administrator's failure to strictly comply with the regulations governing the content of letters giving notice of benefit determinations so long as “the beneficiary [was] supplied with a statement of reasons that, under *1005 the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review.” This standard cannot be applied to an untimely decision because there is nothing to review at the time that administrative remedies are deemed exhausted. There is no explanation for a claimant to read and understand. And if the claimant files suit before the decision arrives, there is neither an exercise of discretion to which a court could defer nor anything for the court to use to measure the degree of the administrator's compliance. See Univ. Hosp. of Fessenden's case highlights the point. After Reliance's initial decision denying him benefits, Fessenden had the opportunity to submit additional evidence to Reliance to support his claim on review. See (h)(2)(ii) He did so, providing extensive documentation and medical evaluations. After Reliance failed to issue a decision on this new record, Fessenden filed suit in federal court. Thus, when litigation began, the district court was presented with a claim for benefits based on evidence that, for all Fessenden and the court knew, Reliance had not yet considered, and had certainly not accounted for in any decision on Fessenden's claim. Both Fessenden and the court necessarily lacked a “sufficiently clear understanding of the administrator's position to permit effective review.” See 422 F.3d The court could not have measured how compliant Reliance had been because Reliance had not yet complied at all. And in the absence of a decision to which it could defer, the district court had no choice but to review the claim de novo. Reliance's position that an administrator can change the standard of review with a late-breaking decision would therefore be a novel application of the substantial compliance doctrine. And permitting that novelty would undercut the benefits of exhaustion for claimants. A claimant is entitled to sue as soon as a claim is deemed exhausted because the administrator has failed to make a timely decision. But Reliance's position would leave such a claimant in an uncertain position. Should she wait a little bit longer just in case the administrator makes a decision? Or should she go ahead, attempting to frame her case in a way that is responsive to a decision that hasn't yet—but may still—come? Moreover, an administrator who has more time may get an unfair advantage: it could sandbag a claimant who sues at the point of exhaustion by issuing a decision tailored to combat her complaint. See ; see also Fed. Power (acknowledging that the Commission had “great discretion” but explaining that failure to exercise that discretion at the appropriate time cannot be remedied with “post hoc rationalizations” ). In short, giving administrators a post-exhaustion grace period creates problems. We acknowledge that some of our sister circuits have been willing to apply the substantial compliance exception to blown deadlines. See *1006 –35 (applying the substantial compliance doctrine to an administrator's untimely decision under the pre- regulation); ; see also These circuits have seen no difference between forgiving tardiness and forgiving violations of other procedural requirements. We disagree.5 As an initial matter, it is worth noting that many of the circuits currently applying the exception to missed deadlines have relied on precedent that predates the version of the regulations. The earlier version offered a much less nuanced approach to balancing the competing interests at stake, which subjected the goals of ERISA to different kinds of gamesmanship and perverse incentives. See –35; see at 629 n.3, 631 n.4. For example, because the old regulations did not include tolling provisions to stop the clock while the administrator was waiting on information from the claimant, “claimants might [have been] encouraged to delay a final decision by suggesting that they intend[ed] to produce additional information, only to pull the plug and demand de novo review in federal court on the [last] day.” The substantial compliance doctrine allowed courts the flexibility to police such gamesmanship and avoid results that would be “antithetical to the aims of ERISA.” But the amendments reflected in the regulations address the incentives concern head-on by including more detailed and balanced provisions on timing and tolling. Thus, the oft-invoked rationale for applying the exception to missed deadlines no longer exists. Yet whatever its merits under prior versions of the regulations, we hold that excusing late decisions is both foreclosed by the regulations and incompatible with the doctrine. It is also in significant tension with our own precedent. In a claimant who missed a deadline argued that the substantial compliance exception should excuse her –62. We rejected her argument. At the outset, we observed that we had never applied the doctrine to excuse the mistakes of claimants, as opposed to administrators. But we also emphasized: [I]t seems consistent neither with the policies underlying the requirement of exhaustion of administrative remedies in ERISA cases nor with judicial economy to import into the exhaustion requirement the substantial compliance doctrine. To so hold would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving courts in detailed, case-by-case determinations as to whether a given claimant's failure to bring a timely appeal from a denial of benefits should be excused or not. ; see also That reasoning applies equally to deadlines that bind plan administrators. What's good for the goose is good for the gander. * * * Because the doctrine of substantial compliance does not apply to ERISA's regulatory deadlines, Fessenden's claim should have been reviewed de novo. We therefore VACATE the district court's summary judgment determination and REMAND for proceedings consistent with this opinion.

Fiorentini v. Paul Revere Life Insurance Company

Henry Fiorentini is the owner and president of Panatech, Inc., a small technology company. When cancer treatment left him unable to perform his job, he received total disability benefits under a policy he held with the Paul Revere Life Insurance Company. Five years later, after Fiorentini was back at work and exercising full control of the company, Paul Revere notified him that he no longer qualified for the benefits. Fiorentini argued that he still satisfied the policy's requirements for total disability, because even though he could perform most of his job duties, he was unable to do what it takes to generate new business. Paul Revere rejected that argument, and Fiorentini sued it for breach of contract. We agree with the district court that Fiorentini does not qualify for total disability coverage under his policy. I. In 1982, Henry Fiorentini founded Panatech Computer Management, Inc., a small information-technology company that specializes in providing customized software to small businesses. In 1998, he was diagnosed with invasive basal cell carcinoma of the right ear. After minor surgeries failed to remove the cancer, Fiorentini had his right ear amputated in 2008. Several more surgeries and radiation followed, leaving him with permanent hearing loss, fatigue, migraines, dry mouth, tinnitus (a constant ringing sound), and an inability to localize sound. To compensate for the amputation, Fiorentini received a prosthetic ear that is virtually indistinguishable from his left ear. After the surgery, Fiorentini submitted a claim for “total disability” benefits under an occupational disability insurance policy he had purchased from the Paul Revere Life Insurance Company. The policy defines the key terms for total disability coverage as follows: “Total Disability” means that because of Injury or Sickness ... You are unable to perform the important duties of Your Occupation. *478 “Your Occupation” means the occupation in which You are regularly engaged at the time You become Disabled. Fiorentini listed his occupation as “President & Owner” of Panatech and said that his occupation entailed four “important duties”: sales (6–8 hours per week), consulting/meetings (7–10 hours per week), programming (15–25 hours per week), and administrative work (2–3 hours per week). Concluding that Fiorentini was unable to perform these duties, Paul Revere approved his claim and began paying total disability benefits in February 2009. Five years later, Paul Revere notified Fiorentini that he no longer met the total disability requirements of his policy. He had been cancer-free since 2009 and was working regularly again. He continued to suffer side effects from the surgery and worked fewer hours than he had before. Nonetheless, he was now well enough that he was exercising full control over Panatech. While it found him ineligible for total disability benefits, Paul Revere invited Fiorentini to apply for “residual disability” benefits under his policy. Coverage under that provision would have required Fiorentini to show that he was either unable to perform “one or more of the important duties” of his occupation or could only perform his important job duties for “80% of the time normally required to perform them” and that he earned at least 20% less than he did pre-disability. Fiorentini did not submit that information; instead, he let his policy lapse and sued Paul Revere, seeking damages for breach of contract, statutory penalties for unreasonable and vexatious conduct under Illinois law, and a declaratory judgment. The district court entered summary judgment for Paul Revere. II. Fiorentini argues vigorously that the “total disability” clause covers him even though he can still do almost everything his occupation requires him to do. He does not dispute that he is able to perform three of the important duties listed on his claim for total disability benefits: consulting with clients, programming, and administrative duties. His claim turns on his alleged inability to perform the fourth, which he characterizes as essential: sales. Ever since Fiorentini's surgery, Panatech has survived exclusively on work from its existing clients. Fiorentini says that he is the only one who can bring in new clients, and that he can do so only by meeting personally with prospects, giving presentations, and attending seminars. That kind of face-to-face contact is allegedly impossible for him because of his continuing symptoms, including tinnitus and fatigue. He dismisses the suggestion that he could solicit new business through phone calls, emails, the internet, or a marketing company; for his small business, he says, only in-person contact will do. Fiorentini's claim that his inability to execute one task renders him “unable to perform the important duties of [his] Occupation” seizes upon an opening in our case law. While we have refused to hold that the inability “to perform one task is always sufficient for total disability,” Cheney v. Standard Insurance Co., 831 F.3d 445, 452 (7th Cir. 2016), we have acknowledged that the inability to perform one task might sometimes qualify under similarly worded policies. For example, in McFarland v. General American Life Insurance Co., we noted that a shortstop who could no longer throw would be unable to do his job even if he could still run, hit, and catch. 149 F.3d 583, 588 (7th Cir. 2016). Fiorentini asserts that in-person solicitation is to him what throwing is to a shortstop—utterly essential. *479 And because he can't sell, he can't do his job even if he can program, consult with existing clients, and do administrative tasks. 1 2 Fiorentini's analogy is inapt. A shortstop who can't throw can't be a shortstop; Fiorentini, on the other hand, functions daily as Panatech's president. While his capacity as Panatech's president has been diminished by his inability to perform one of his important duties, he is not unable to continue his occupation. And critically, the total disability provision does not cover the insured who has a diminished ability to perform his occupation, but rather the insured who is unable to continue it. See McFarland, 149 F.3d at 587 (interpreting a similar total disability policy to “protect[ ] the insured from disabilities that prevent his continuing in his regular occupation”). The unambiguous language of an insurance policy controls in a coverage dispute. See Founders Ins. Co. v. Munoz, 237 Ill.2d 424, 341 Ill.Dec. 485, 930 N.E.2d 999, 1003–04 (2010). Fiorentini's ineligibility for benefits under the total disability provision of the policy is underscored by the policy's provision for residual disability benefits. Fiorentini says that he cannot perform one of his four important duties; the residual disability provision applies when “You are unable to perform one or more of the important duties of Your Occupation.” This is the clause that fits a claim like Fiorentini's. It protects an insured whose disability has reduced but not eliminated his capacity to work, so long as he is earning at least 20% less as a result. All of this said, we would affirm the district court even if we agreed with Fiorentini that making sales is essential to his occupation—and, for that matter, that face-to-face contact is the only way he can do it. Even if the language of the policy were on his side, Fiorentini has a problem of proof: the evidence would not permit a reasonable juror to conclude that he is unable to meet with potential clients in person. Fiorentini's own testimony contradicts his claim that he is unable to make face-to-face sales pitches. He admits that he meets regularly with existing clients at their businesses or over lunch; he also visits job sites weekly to discuss and address computer problems. Fiorentini offers no explanation for why he can meet with existing clients but not potential clients. Indeed, his own vocational expert conceded that he is currently able to conduct face-to-face meetings on a “limited basis,” and his own surgeon confirmed that he can “hear and communicate” in one-on-one meetings. Fiorentini's off-the-job activities also undercut his contention that his symptoms render him mentally and physically unable to meet personally with potential clients. In 2013, Fiorentini renewed his pilot's license—which he had originally obtained in the 1980s but had permitted to lapse—and bought an airplane. He spends 75–80 hours a year flying around the Midwest, primarily to have breakfast with other recreational pilots. And while Fiorentini claims that he can't put on work-related presentations to sell Panatech's product, he conducted a 90–minute seminar for other flying enthusiasts about an iPad application called ForeFlight. Nor is flying Fiorentini's only hobby. Just as his symptoms have not kept him out of the air, they have not kept him off the ice: Fiorentini plays in a weekly adult hockey league. To be sure, the record supports the inference that Fiorentini cannot discharge his duties as Panatech's president in precisely the same manner as he did before. The ongoing effects of his surgery—hearing loss, tinnitus, migraines, and difficulty localizing sound—have had an adverse impact *480 on his daily functioning. But as we have already said, a reduced capacity to perform job duties is addressed by the policy's “residual disability” provision. Fiorentini chose not to apply for those benefits. III. 3 Fiorentini bears the burden of proving that his loss falls within the terms of his insurance policy. St. Michael's Orthodox Catholic Church v. Preferred Risk Mut. Ins. Co., 146 Ill.App.3d 107, 100 Ill.Dec. 111, 496 N.E.2d 1176, 1179 (1986). His alleged inability to perform one of his four important job duties—sales—does not. Even if it did, and even if we credit the claim that he cannot make sales without in-person meetings, the evidence construed most favorably to him would not permit a reasonable juror to conclude that he is unable to meet with potential clients face-to-face. The judgment of the district court is AFFIRMED.

Barrett

majority

Henry Fiorentini is the owner and president of Panatech, Inc., a small technology company. When cancer treatment left him unable to perform his job, he received total disability benefits under a policy he held with the Paul Revere Life Insurance Company. Five years later, after Fiorentini was back at work and exercising full control of the company, Paul Revere notified him that he no longer qualified for the benefits. Fiorentini argued that he still satisfied the policy's requirements for total disability, because even though he could perform most of his job duties, he was unable to do what it takes to generate new business. Paul Revere rejected that argument, and Fiorentini sued it for breach of contract. We agree with the district court that Fiorentini does not qualify for total disability coverage under his policy. I. In 1982, Henry Fiorentini founded Panatech Computer Management, Inc., a small information-technology company that specializes in providing customized software to small businesses. In 1998, he was diagnosed with invasive basal cell carcinoma of the right ear. After minor surgeries failed to remove the cancer, Fiorentini had his right ear amputated in 2008. Several more surgeries and radiation followed, leaving him with permanent hearing loss, fatigue, migraines, dry mouth, tinnitus (a constant ringing sound), and an inability to localize sound. To compensate for the amputation, Fiorentini received a prosthetic ear that is virtually indistinguishable from his left ear. After the surgery, Fiorentini submitted a claim for “total disability” benefits under an occupational disability insurance policy he had purchased from the Paul Revere Life Insurance Company. The policy defines the key terms for total disability coverage as follows: “Total Disability” means that because of Injury or Sickness You are unable to perform the important duties of Your Occupation. *478 “Your Occupation” means the occupation in which You are regularly engaged at the time You become Disabled. Fiorentini listed his occupation as “President & Owner” of Panatech and said that his occupation entailed four “important duties”: sales (6–8 hours per week), consulting/meetings (7–10 hours per week), programming (15–25 hours per week), and administrative work (2–3 hours per week). Concluding that Fiorentini was unable to perform these duties, Paul Revere approved his claim and began paying total disability benefits in February 2009. Five years later, Paul Revere notified Fiorentini that he no longer met the total disability requirements of his policy. He had been cancer-free since 2009 and was working regularly again. He continued to suffer side effects from the surgery and worked fewer hours than he had before. Nonetheless, he was now well enough that he was exercising full control over Panatech. While it found him ineligible for total disability benefits, Paul Revere invited Fiorentini to apply for “residual disability” benefits under his policy. Coverage under that provision would have required Fiorentini to show that he was either unable to perform “one or more of the important duties” of his occupation or could only perform his important job duties for “80% of the time normally required to perform them” and that he earned at least 20% less than he did pre-disability. Fiorentini did not submit that information; instead, he let his policy lapse and sued Paul Revere, seeking damages for breach of contract, statutory penalties for unreasonable and vexatious conduct under Illinois law, and a declaratory judgment. The district court entered summary judgment for Paul Revere. II. Fiorentini argues vigorously that the “total disability” clause covers him even though he can still do almost everything his occupation requires him to do. He does not dispute that he is able to perform three of the important duties listed on his claim for total disability benefits: consulting with clients, programming, and administrative duties. His claim turns on his alleged inability to perform the fourth, which he characterizes as essential: sales. Ever since Fiorentini's surgery, Panatech has survived exclusively on work from its existing clients. Fiorentini says that he is the only one who can bring in new clients, and that he can do so only by meeting personally with prospects, giving presentations, and attending seminars. That kind of face-to-face contact is allegedly impossible for him because of his continuing symptoms, including tinnitus and fatigue. He dismisses the suggestion that he could solicit new business through phone calls, emails, the internet, or a marketing company; for his small business, he says, only in-person contact will do. Fiorentini's claim that his inability to execute one task renders him “unable to perform the important duties of [his] Occupation” seizes upon an opening in our case law. While we have refused to hold that the inability “to perform one task is always sufficient for total disability,” we have acknowledged that the inability to perform one task might sometimes qualify under similarly worded policies. For example, in v. General American Life Insurance Co., we noted that a shortstop who could no longer throw would be unable to do his job even if he could still run, hit, and catch. Fiorentini asserts that in-person solicitation is to him what throwing is to a shortstop—utterly essential. *479 And because he can't sell, he can't do his job even if he can program, consult with existing clients, and do administrative tasks. 1 2 Fiorentini's analogy is inapt. A shortstop who can't throw can't be a shortstop; Fiorentini, on the other hand, functions daily as Panatech's president. While his capacity as Panatech's president has been diminished by his inability to perform one of his important duties, he is not unable to continue his occupation. And critically, the total disability provision does not cover the insured who has a diminished ability to perform his occupation, but rather the insured who is unable to continue it. See The unambiguous language of an insurance policy controls in a coverage dispute. See Founders Ins. Fiorentini's ineligibility for benefits under the total disability provision of the policy is underscored by the policy's provision for residual disability benefits. Fiorentini says that he cannot perform one of his four important duties; the residual disability provision applies when “You are unable to perform one or more of the important duties of Your Occupation.” This is the clause that fits a claim like Fiorentini's. It protects an insured whose disability has reduced but not eliminated his capacity to work, so long as he is earning at least 20% less as a result. All of this said, we would affirm the district court even if we agreed with Fiorentini that making sales is essential to his occupation—and, for that matter, that face-to-face contact is the only way he can do it. Even if the language of the policy were on his side, Fiorentini has a problem of proof: the evidence would not permit a reasonable juror to conclude that he is unable to meet with potential clients in person. Fiorentini's own testimony contradicts his claim that he is unable to make face-to-face sales pitches. He admits that he meets regularly with existing clients at their businesses or over lunch; he also visits job sites weekly to discuss and address computer problems. Fiorentini offers no explanation for why he can meet with existing clients but not potential clients. Indeed, his own vocational expert conceded that he is currently able to conduct face-to-face meetings on a “limited basis,” and his own surgeon confirmed that he can “hear and communicate” in one-on-one meetings. Fiorentini's off-the-job activities also undercut his contention that his symptoms render him mentally and physically unable to meet personally with potential clients. In 2013, Fiorentini renewed his pilot's license—which he had originally obtained in the 1980s but had permitted to lapse—and bought an airplane. He spends 75–80 hours a year flying around the Midwest, primarily to have breakfast with other recreational pilots. And while Fiorentini claims that he can't put on work-related presentations to sell Panatech's product, he conducted a 90–minute seminar for other flying enthusiasts about an iPad application called ForeFlight. Nor is flying Fiorentini's only hobby. Just as his symptoms have not kept him out of the air, they have not kept him off the ice: Fiorentini plays in a weekly adult hockey league. To be sure, the record supports the inference that Fiorentini cannot discharge his duties as Panatech's president in precisely the same manner as he did before. The ongoing effects of his surgery—hearing loss, tinnitus, migraines, and difficulty localizing sound—have had an adverse impact *480 on his daily functioning. But as we have already said, a reduced capacity to perform job duties is addressed by the policy's “residual disability” provision. Fiorentini chose not to apply for those benefits. III. 3 Fiorentini bears the burden of proving that his loss falls within the terms of his insurance policy. St. Michael's Orthodox Catholic His alleged inability to perform one of his four important job duties—sales—does not. Even if it did, and even if we credit the claim that he cannot make sales without in-person meetings, the evidence construed most favorably to him would not permit a reasonable juror to conclude that he is unable to meet with potential clients face-to-face. The judgment of the district court is AFFIRMED.

Gadelhak v. AT&T Services, Inc.

The wording of the provision that we interpret today is enough to make a grammarian throw down her pen. The Telephone Consumer Protection Act bars certain uses of an “automatic telephone dialing system,” which it defines as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” as well as the capacity to dial those numbers. We must decide an issue that has split the circuits: what the phrase “using a random or sequential number generator” modifies. We'll save the intense grammatical parsing for the body of the opinion—here, we'll just give the punchline. We hold that “using a random or sequential number generator” modifies both “store” and “produce.” The system at issue in this case, AT&T's “Customer Rules Feedback Tool,” neither stores nor produces numbers using a random or sequential number generator; instead, it exclusively dials numbers stored in a customer database. Thus, it is not an “automatic telephone dialing system” as defined by the Act—which means that AT&T did not violate the Act when it sent unwanted automated text messages to Ali Gadelhak. I. 1 This dispute stems from AT&T's “Customer Rules Feedback Tool,” a device that sends surveys to customers who have interacted with AT&T's customer service department. Using this tool, AT&T sent Chicago resident Ali Gadelhak five text messages asking survey questions in Spanish. But Gadelhak is neither an AT&T customer nor a Spanish speaker, and his number is on the national “Do Not Call Registry.” Annoyed by the texts, Gadelhak brought a putative class action against AT&T for violating the Telephone Consumer Protection Act, which Congress enacted in 1991 to address the problem of intrusive telemarketing. With some exceptions not relevant here, the Act prohibits the use of an “automatic telephone dialing system” to call or text any cellular phone without the prior consent of the recipient, as well as to call certain hospital numbers. 47 U.S.C. § 227(b)(1). An “automatic telephone dialing system” is defined as: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. *461 Id. § 227(a)(1); see also Campbell-Ewald Co. v. Gomez, ––– U.S. ––––, 136 S. Ct. 663, 667, 193 L.Ed.2d 571 (2016) (clarifying that text messages are covered). The success of Gadelhak's suit depends on whether AT&T's feedback tool meets this definition. Unfortunately, the awkward statutory wording, combined with changes in technology, makes this a very difficult question. At the time that the Telephone Consumer Protection Act was passed, telemarketers primarily used systems that randomly generated numbers and dialed them, and everyone agrees that such systems meet the statutory definition. But that's not how AT&T's customer feedback tool works. The system, like others commonly used today, pulls and dials numbers from an existing database of customers rather than randomly generating them. (Given that its tool pulls exclusively from its customer database, AT&T posits that Gadelhak received messages because of a typographical error.) Determining whether such systems meet the statutory definition has forced courts to confront an awkwardness in the statutory language that apparently didn't matter much when the statute was enacted: it's not obvious what the phrase “using a random or sequential number generator” modifies. The answer to that question dictates whether the definition captures only the technology that predominated in 1991 or is broad enough to encompass some of the modern, database-focused systems. II. 2 3 Before we analyze the merits, though, we must address the preliminary matter of Gadelhak's standing to bring this suit. The doctrine of standing is rooted in Article III of the U.S. Constitution, which limits the federal judicial power to resolving “Cases” or “Controversies.” U.S. CONST. art. III, § 2. To satisfy the standing requirement, the plaintiff must claim “to have suffered an injury that the defendant caused and the court can remedy.” Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 2019). If a plaintiff lacks standing, a federal court lacks jurisdiction. 4 While AT&T does not challenge Gadelhak's standing, we have an independent obligation to confirm our jurisdiction before adjudicating a case. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). To be sure, the obligation to verify our jurisdiction in every case does not mean that we have to discuss it in every opinion. Here, though, the question whether plaintiffs like Gadelhak have standing is difficult enough to have divided the circuits. The Eleventh Circuit has held that the receipt of an unwanted automated text message is not a cognizable injury under Article III because it is insufficiently “concrete.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). The Second and Ninth Circuits have come out the other way. Melito v. Experian Mtkg. Sols., Inc., 923 F.3d 85, 92–93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042–43 (9th Cir. 2017). Given the split, it is important for us to show our work. 5 6 To qualify as “concrete,” an injury must be “real” rather than “abstract”—that is, “it must actually exist.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). A “bare procedural violation” does not qualify, even if it gives rise to a statutory cause of action. Id. at 1549. That is so because Article III cabins Congress's authority to create causes of action, and suits involving abstract injuries lie beyond “the judicial Power.” U.S. CONST. art. III, § 1. Thus, Gadelhak's standing to sue is not settled by the fact that the Telephone Consumer *462 Protection Act authorizes his suit. See 47 U.S.C. § 227(b)(3). It depends on whether the unwanted texts from AT&T caused him concrete harm or were merely a technical violation of the statute. 7 8 To determine whether the texts caused concrete harm, we look to both history and Congress's judgment. As the Court has explained, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549. And because Congress is particularly suited “to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Id. We'll start with history. The common law has long recognized actions at law against defendants who invaded the private solitude of another by committing the tort of “intrusion upon seclusion.” Restatement (Second) of Torts § 652B (Am. Law Inst. 1977). In rejecting standing in a similar case, the Eleventh Circuit suggested that the tort of intrusion upon seclusion addressed only invasions of privacy like eavesdropping and spying, which pose a different kind of harm altogether. Salcedo, 936 F.3d at 1171. We see things differently. Courts have also recognized liability for intrusion upon seclusion for irritating intrusions—such as when “telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff.” Restatement § 652B cmt. d; see id. cmt. b, illus. 5; see also Carey v. Statewide Fin. Co., 3 Conn.Cir.Ct. 716, 223 A.2d 405, 406–07 (1966); Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 344 (Ohio 1956); Household Credit Servs., Inc. v. Driscol, 989 S.W.2d 72, 84–85 (Tex. App. 1998). The harm posed by unwanted text messages is analogous to that type of intrusive invasion of privacy. Now, for Congress's judgment. In passing the Act, Congress decided that automated telemarketing can pose this same type of harm to privacy interests. Pub. L. No. 102-243, § 2, 105 Stat. 2394, 2394 (1991) (explaining in the findings that “[u]nrestricted telemarketing ... can be an intrusive invasion of privacy” and characterizing telemarketing as a “nuisance”). While Congress cannot transform a non-injury into an injury on its say-so, that is hardly what it did here. Instead, Congress identified a modern relative of a harm with long common law roots. And Gadelhak claims to have suffered the very harm that the Act is designed to prevent. Cf. Melito, 923 F.3d at 92–93 (reaching the same conclusion).1 The Eleventh Circuit treated the injury in its case as abstract partly because common law courts generally require a much more substantial imposition—typically, many calls—to support liability for intrusion upon seclusion. See, e.g., Sofka v. Thal, 662 S.W.2d 502, 511 (Mo. 1983). But when Spokeo instructs us to analogize to harms recognized by the common law, we are meant to look for a “close relationship” in kind, not degree. See 136 S. Ct. at 1549. In other words, while the common law *463 offers guidance, it does not stake out the limits of Congress's power to identify harms deserving a remedy. Congress's power is greater than that: it may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id. (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). A few unwanted automated text messages may be too minor an annoyance to be actionable at common law. But such texts nevertheless pose the same kind of harm that common law courts recognize—a concrete harm that Congress has chosen to make legally cognizable.2 Van Patten, 847 F.3d at 1043. 9 We therefore agree with the Second and Ninth Circuits that unwanted text messages can constitute a concrete injury-in-fact for Article III purposes. III. With standing out of the way, we turn to the merits. We previously addressed the same provision in Blow v. Bijora, Inc., 855 F.3d 793 (7th Cir. 2017), but at that time, a 2015 FCC Order interpreting the Act was on the books. We held that “absent a direct appeal to review the 2015 FCC Order's interpretation,” the Hobbs Act required us to adopt the FCC's definition of an “automatic telephone dialing system.” Id. at 802; see 28 U.S.C. § 2342(1). But since we decided Blow, there has been just such a “a direct appeal to review” the FCC Order: the D.C. Circuit struck down the 2015 FCC interpretation in ACA International v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018). And contrary to Gadelhak's assertion, ACA International did not leave prior FCC Orders intact. Instead, the D.C. Circuit clarified that its review also covered “the agency's pertinent pronouncements”—its prior Orders. Id. at 701. Neither Blow nor any FCC Order binds us in this case. See Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, –––– (11th Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049–50 (9th Cir. 2018); see also Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) (implicitly reaching the same conclusion by declining to defer to any FCC Order). We therefore interpret the statute's text as though for the first time. There are at least four ways of reading the statutory definition of an “automatic telephone dialing system.” First, the phrase “using a random or sequential number generator” might modify both store and produce, which would mean that a device must be capable of performing at least one of those functions using a random or sequential number generator to qualify as an “automatic telephone dialing system.” This is how the Third and Eleventh Circuits interpret the statute. Dominguez, 894 F.3d at 119; Glasser, 948 F.3d at ––––.3 Second, the phrase might describe *464 the telephone numbers themselves, specifying that the definition captures only equipment that dials randomly or sequentially generated numbers. This is how the district court interpreted the provision. Third, the phrase might limit only the word produce, which would mean that the definition captures not only equipment that can produce numbers randomly or sequentially, but also any equipment that can simply store and dial numbers. This is the Ninth Circuit's interpretation. Marks, 904 F.3d at 1052. Finally, the phrase could describe the manner in which the telephone numbers are to be called, regardless of how they are stored, produced, or generated. Some courts—including the district court in this case—have alluded to this possibility, although none has adopted it. See, e.g., Glasser, 948 F.3d at ––––. A. 10 We begin with the interpretation adopted by the Third and Eleventh Circuits. Under their reading, the phrase “using a random or sequential number generator” modifies both “store” and “produce,” defining the means by which either task must be completed for equipment to qualify as an “automatic telephone dialing system.” That is, the statute addresses: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. AT&T advocates this reading, which would exclude its customer feedback tool because the tool lacks the capacity either to store or to produce telephone numbers using a number generator. Instead, the tool dials numbers only from a customer database. This interpretation is certainly the most natural one based on sentence construction and grammar. As the Eleventh Circuit explained, “[w]hen two conjoined verbs (‘to store or produce’) share a direct object (‘telephone numbers to be called’), a modifier following that object (‘using a random or sequential number generator’) customarily modifies both verbs.” Glasser, 948 F.3d at 1306. The placement of the comma before “using a random or sequential number generator” in the statute further suggests that the modifier is meant to apply to the entire preceding clause. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 150 (2012). That clause is driven by the two verbs, “to store or produce.” The sentence's construction thus seems to encourage applying the phrase “using a random or sequential number generator” to both verbs. But this first interpretation runs into a problem: as one district court wrote, “it is hard to see how a number generator could be used to ‘store’ telephone numbers.” Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 938 (N.D. Ill. 2018). AT&T counters that a device that generates random numbers and then dials them does, technically, “store” such a number for the fleeting interval between those two functions. While that may be true as a technical matter, as a matter of ordinary usage it's hard to say that the random number *465 generator is “storing” in any notable way. More persuasive, however, is the point that some systems “store” randomly generated numbers for much longer than a few fleeting moments. The record before the FCC reveals that at the time of the statute's enactment, devices existed with the capacity to generate random numbers and then store them in a file for a significant time before selecting them for dialing.4 See Noble Systems Corp., Comments in Response to the FCC's Request for Comments of the Interpretation of the TCPA in Light of the 9th Circuit's Decision in Marks v. Crunch San Diego 12–15 (Oct. 16, 2018), https://ecfsapi.fcc.gov/file/1016271761504/Noble_System_Comments_FCC_DA18-1014_FINAL.pdf. The capacity for storage is more central to such a device's function. Gadelhak responds that if the Act had meant to capture random-generation devices defined by their storage capacities, it needn't have used the word “store” at all. After all, such a device also necessarily can “produce” numbers using a number generator, rendering the “store” option in the statute superfluous. That surplusage is not a deal-breaker. See Scalia & Garner, supra, at 176–77 (“Sometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach.”). Given the range of storage capacities among telemarketing devices at the time of enactment, it is plausible that Congress chose some redundancy in order to cover “the waterfront.” Glasser, 948 F.3d at 1307. Notwithstanding the difficulties posed by this interpretation, we think that the language bears it. But because of those difficulties, we proceed to consider whether any of the other possibilities fares better. B. The district court favored the next option: that “using a random or sequential number generator” modifies the “telephone numbers” that are dialed. Since the telephone numbers themselves obviously lack the capacity to “us[e]” a number generator, the phrase really describes the means by which telephone numbers are generated, as follows: equipment which has the capacity— (A) to store or produce telephone numbers to be called, [generated] using a random or sequential number generator; and (B) to dial such numbers. Under this interpretation, an “automatic telephone dialing system” is equipment with the capacity to store or produce telephone numbers generated using a random or sequential number generator as well as the capacity to dial those numbers. Because AT&T's system cannot generate random strings of numbers for itself and instead dials only existing numbers from AT&T accounts, the district court held that it could not satisfy the statutory definition. 11 The district court's interpretation avoids the problems associated with the word “store.” But it has a problem of its own: the grammatical structure of the sentence. The phrase “using a random or sequential number generator” is an adverbial phrase with an elided preposition—it means “[by] using a random or sequential number generator.” As an adverbial phrase that describes how something is to be done, it cannot modify a noun in this *466 context. So, to arrive at its reading, the district court had to insert a significant word into the statute that simply isn't there. Although the district court's version of the statute is clearer and therefore tempting, “our task is to interpret the words of Congress, not add to them.” Evans v. Portfolio Recovery Assocs., LLC, 889 F.3d 337, 346 (7th Cir. 2018) (citation omitted). The words of Congress, as written, do not permit this second interpretation. C. Gadelhak presses the third option: that the phrase “using a random or sequential number generator” modifies only the equipment's capacity to “produce.” With emphasis, the definition would read: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. To Gadelhak, it doesn't matter that AT&T's system cannot generate random or sequential ten-digit numerical strings. As he sees it, the capacity to produce numbers using a random number generator is only one means of meeting the statutory definition. Gadelhak argues that the disjunctive “or” in “store or produce” means that an “automatic telephone dialing system” need not produce numbers at all. Since “using a random or sequential number generator” modifies only “produce,” Gadelhak argues that all equipment with the capacity to store telephone numbers to be called and to dial those numbers qualifies as an automatic telephone dialing system. This is the interpretation that the Ninth Circuit adopted in Marks v. Crunch San Diego. This interpretation eliminates the problem of the first one—that the phrase is an admittedly imperfect fit for the verb “store.” And it does not require us to add a word to the statute as the second one does. But Gadelhak's approach has a fatal flaw of its own: it requires us to contort the statutory text almost beyond recognition. Everyone agrees that “telephone numbers to be called” is the object of both “store” and “produce.” That makes sense because “produce” is not set off from “store” in the text, either with the infinitive “to” or with a comma. See Scalia & Garner, supra, at 148–49. It would be unnatural, then, to splice “store” and “produce” to have the final phrase, “using a random or sequential number generator,” modify only the latter verb. Gadelhak asks us to reorder the sentence to separate “store” and “produce” but to clarify that “telephone numbers” is the object of both. That would be a significant judicial rewrite. Nonetheless, Gadelhak maintains that the statutory structure requires this reading. He emphasizes that the statute carves out a defense for recipients who have given their prior express consent. See 47 U.S.C. § 227(b)(1)(A) (authorizing the use of an automatic telephone dialing system for calls or texts “made with the prior express consent of the called party”). If an “automatic telephone dialing system” is defined by its capacity to generate numbers at random, Gadelhak says, it would be impossible for a party ever to take advantage of the consent defense except by coincidence. He explains that a caller could not know in advance whether the telephone number, having been randomly generated, would belong to a party who had previously consented to being called. See also Marks, 904 F.3d at 1051 (adopting this argument). But as another court explained, “it is possible to imagine a device that both has the capacity to generate numbers randomly or sequentially and can be programmed to avoid dialing certain numbers ....” Pinkus, 319 F. Supp. 3d at 939. Gadelhak's *467 rationale for choosing an atextual interpretation is therefore unpersuasive. 12 Gadelhak has one last card to play: he insists that Congress blessed his interpretation of the statute when it amended the Act in 2015. At that time, the D.C. Circuit had not yet struck down the 2015 FCC Order interpreting the statute in Gadelhak's favor. Gadelhak asserts that Congress essentially ratified that interpretation when it amended the statute in 2015 to add an exception for government debt collection and declined to amend the definition in any other respect. See Pub. L. No. 114-74, § 301, 129 Stat. 584, 588 (2015). We reject this argument, as has every circuit to consider it. See Glasser, 948 F.3d at –––– (collecting cases). Congressional failure to act does not necessarily reflect approval of the status quo. See Alexander v. Sandoval, 532 U.S. 275, 292, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). And in any event, the FCC's interpretation of the statute was hardly settled at the time of the congressional amendment—in 2015, the D.C. Circuit was already reviewing ACA International. It is therefore particularly difficult to attribute acquiescence to Congress's actions that year. Finally, it is worth noting the far-reaching consequences of Gadelhak's ungrammatical interpretation: it would create liability for every text message sent from an iPhone. That is a sweeping restriction on private consumer conduct that is inconsistent with the statute's narrower focus. Gadelhak argues that to qualify as an “automatic telephone dialing system” a device need only have the “capacity ... to store ... telephone numbers” and then to call or text them automatically. Every iPhone today has that capacity right out of the box. An iPhone of course can store telephone numbers; it can also send text messages automatically, for example by using the “Do Not Disturb While Driving” function. See How to Use Do Not Disturb While Driving, APPLE (Sept. 19, 2019), https://support.apple.com/en-us/HT208090 (“If someone sends you a message [while this feature is turned on], they receive an automatic reply letting them know that you're driving.”). Every iPhone, then, has the necessary capacities to meet the statutory definition. That means that under Gadelhak's interpretation, every call or text message sent from an iPhone without the prior express consent of the recipient could subject the sender to a $500 fine. See 47 U.S.C. § 227(b)(3)(B). Considering the statute as a whole, that result makes little sense. The Act's other provisions address narrow conduct much more likely to be performed by telemarketers than by private citizens—for example, the use of “an artificial or prerecorded voice.” Id. § 227(b)(1)(A). The definition of an “automatic telephone dialing system” would be an outlier within the statutory scheme if it were to capture such a wide swath of everyday conduct. D. There is one final possibility: that “using a random or sequential number generator” modifies how the telephone numbers are “to be called.” On this reading, an “automatic telephone dialing system” is: equipment which has the capacity— (A) to store or produce telephone numbers to be called[ ] using a random or sequential number generator; and (B) to dial such numbers. In other words, the definition captures devices with the capacity to store or to produce telephone numbers that will be dialed by a random or sequential number generator. The record does not fully explain whether AT&T's system has the necessary capabilities to be considered an “automatic telephone dialing system” under this definition; *468 neither party advanced this reading and other courts have only danced around it. See, e.g., Glasser, 948 F.3d at –––– (identifying this interpretation as “plausible” but rejecting it without comment). A close look convinces us that this fourth possibility is also inferior to the first interpretation. Congress chose to insert a comma between “to be called” and “using a random or sequential number generator.” And “[a] qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.” William N. Eskridge Jr., Interpreting Law: A Primer on How To Read Statutes and the Constitution 67–68 (2016) (citation omitted). The comma separating “to be called” and “using a random or sequential number generator” therefore indicates that the modifier refers to the entire clause that precedes it—a clause driven by the verbs “store” and “produce”—rather than the phrase immediately adjacent to it. 13 Of course, we are mindful that “a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning.” U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). We tread especially carefully here, since the comma seems to be ungrammatical under any interpretation. As mentioned above, “using a random or sequential number generator” is an adverbial phrase. To be more specific, it is a restrictive adverbial phrase, because it provides information that is essential to the meaning of the sentence. The grammar and style treatise of record dictates that a comma is inappropriate for a restrictive adverbial phrase found at the end of a sentence. The Chicago Manual of Style ¶ 6.31 (17th ed. 2017). But we have reason to be confident that the comma before the modifier deliberately separates it from “to be called.” A modifying clause following a comma tends not to modify the very last antecedent before it when that antecedent is “integrated” into a singular unit. Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, ––– U.S. ––––, 138 S. Ct. 1061, 1077, 200 L.Ed.2d 332 (2018) (citation omitted). In the context of autodialing, the phrase “telephone numbers to be called” has consistently been used as an integrated unit. A 1986 patent for a method of randomizing telephone numbers, for example, contains five references to “numbers to be called.” U.S. Patent No. 4,741,028 (filed July 30, 1986). The phrase was also common in the state antitelemarketing statutes that preceded the federal legislation. Across statutes with different sentence structures and different scopes, the phrase “telephone numbers to be called” appears again and again. See, e.g., Mass. Gen. Laws ch. 159 § 19B (1986); Miss. Code Ann. § 77-3-451 (1989); N.Y. Gen. Bus. Law § 399-p (1988). These uses suggest that “telephone numbers to be called” is a single noun unit characterized by the purpose of the numbers. The comma, therefore, seems to have been a deliberate drafting choice to separate the modifying clause from the words that immediately precede it. Satisfied that “using a random or sequential number generator” does not describe how the numbers are “to be called,” we are left again with the first interpretation. It is admittedly imperfect. But it lacks the more significant problems of the other three interpretations and is thus our best reading of a thorny statutory provision. We therefore hold that the phrase “using a random or sequential number generator” describes how the telephone numbers must be “stored” or “produced.” * * * *469 The district court held that AT&T's system did not qualify as an “automatic telephone dialing system” because it lacked the capacity to generate random or sequential numbers. Although we adopt a different interpretation of the statute, under our reading, too, the capacity to generate random or sequential numbers is necessary to the statutory definition. The district court's judgment is therefore AFFIRMED.

Barrett

majority

The wording of the provision that we interpret today is enough to make a grammarian throw down her pen. The Telephone Consumer Protection Act bars certain uses of an “automatic telephone dialing system,” which it defines as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” as well as the capacity to dial those numbers. We must decide an issue that has split the circuits: what the phrase “using a random or sequential number generator” modifies. We'll save the intense grammatical parsing for the body of the opinion—here, we'll just give the punchline. We hold that “using a random or sequential number generator” modifies both “store” and “produce.” The system at issue in this case, AT&T's “Customer Rules Feedback Tool,” neither stores nor produces numbers using a random or sequential number generator; instead, it exclusively dials numbers stored in a customer database. Thus, it is not an “automatic telephone dialing system” as defined by the Act—which means that AT&T did not violate the Act when it sent unwanted automated text messages to Ali Gadelhak. I. 1 This dispute stems from AT&T's “Customer Rules Feedback Tool,” a device that sends surveys to customers who have interacted with AT&T's customer service department. Using this tool, AT&T sent Chicago resident Ali Gadelhak five text messages asking survey questions in Spanish. But Gadelhak is neither an AT&T customer nor a Spanish speaker, and his number is on the national “Do Not Call Registry.” Annoyed by the texts, Gadelhak brought a putative class action against AT&T for violating the Telephone Consumer Protection Act, which Congress enacted in 1991 to address the problem of intrusive telemarketing. With some exceptions not relevant here, the Act prohibits the use of an “automatic telephone dialing system” to call or text any cellular phone without the prior consent of the recipient, as well as to call certain hospital numbers. (b)(1). An “automatic telephone dialing system” is defined as: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. *461 227(a)(1); see also Campbell-Ewald The success of Gadelhak's suit depends on whether AT&T's feedback tool meets this definition. Unfortunately, the awkward statutory wording, combined with changes in technology, makes this a very difficult question. At the time that the Telephone Consumer Protection Act was passed, telemarketers primarily used systems that randomly generated numbers and dialed them, and everyone agrees that such systems meet the statutory definition. But that's not how AT&T's customer feedback tool works. The system, like others commonly used today, pulls and dials numbers from an existing database of customers rather than randomly generating them. (Given that its tool pulls exclusively from its customer database, AT&T posits that Gadelhak received messages because of a typographical error.) Determining whether such systems meet the statutory definition has forced courts to confront an awkwardness in the statutory language that apparently didn't matter much when the statute was enacted: it's not obvious what the phrase “using a random or sequential number generator” modifies. The answer to that question dictates whether the definition captures only the technology that predominated in 1991 or is broad enough to encompass some of the modern, database-focused systems. II. 2 3 Before we analyze the merits, though, we must address the preliminary matter of Gadelhak's standing to bring this suit. The doctrine of standing is rooted in Article III of the U.S. Constitution, which limits the federal judicial power to resolving “Cases” or “Controversies.” U.S. CONST. art. III, 2. To satisfy the standing requirement, the plaintiff must claim “to have suffered an injury that the defendant caused and the court can remedy.” If a plaintiff lacks standing, a federal court lacks jurisdiction. 4 While AT&T does not challenge Gadelhak's standing, we have an independent obligation to confirm our jurisdiction before adjudicating a case. FW/PBS, To be sure, the obligation to verify our jurisdiction in every case does not mean that we have to discuss it in every opinion. Here, though, the question whether plaintiffs like Gadelhak have standing is difficult enough to have divided the circuits. The Eleventh Circuit has held that the receipt of an unwanted automated text message is not a cognizable injury under Article III because it is insufficiently “concrete.” The Second and Ninth Circuits have come out the other way. ; Van Given the split, it is important for us to show our work. 5 6 To qualify as “concrete,” an injury must be “real” rather than “abstract”—that is, “it must actually exist.” Spokeo, A “bare procedural violation” does not qualify, even if it gives rise to a statutory cause of action. That is so because Article III cabins Congress's authority to create causes of action, and suits involving abstract injuries lie beyond “the judicial Power.” U.S. CONST. art. III, 1. Thus, Gadelhak's standing to sue is not settled by the fact that the Telephone Consumer *462 Protection Act authorizes his suit. See (b)(3). It depends on whether the unwanted texts from AT&T caused him concrete harm or were merely a technical violation of the statute. 7 8 To determine whether the texts caused concrete harm, we look to both history and Congress's judgment. As the Court has explained, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. And because Congress is particularly suited “to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” We'll start with history. The common law has long recognized actions at law against defendants who invaded the private solitude of another by committing the tort of “intrusion upon seclusion.” Restatement (Second) of Torts 652B (Am. Law Inst. 1977). In rejecting standing in a similar case, the Eleventh Circuit suggested that the tort of intrusion upon seclusion addressed only invasions of privacy like eavesdropping and spying, which pose a different kind of harm altogether. We see things differently. Courts have also recognized liability for intrusion upon seclusion for irritating intrusions—such as when “telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff.” Restatement 652B cmt. d; see cmt. b, illus. 5; see also ; ; Household Credit Servs., The harm posed by unwanted text messages is analogous to that type of intrusive invasion of privacy. Now, for Congress's judgment. In passing the Act, Congress decided that automated telemarketing can pose this same type of harm to privacy interests. Pub. L. No. 102-243, 2, 2394 (1991) (explaining in the findings that “[u]nrestricted telemarketing can be an intrusive invasion of privacy” and characterizing telemarketing as a “nuisance”). While Congress cannot transform a non-injury into an injury on its say-so, that is hardly what it did here. Instead, Congress identified a modern relative of a harm with long common law roots. And Gadelhak claims to have suffered the very harm that the Act is designed to prevent. Cf. Melito, 923 F.3d at (reaching the same conclusion).1 The Eleventh Circuit treated the injury in its case as abstract partly because common law courts generally require a much more substantial imposition—typically, many calls—to support liability for intrusion upon seclusion. See, e.g., But when Spokeo instructs us to analogize to harms recognized by the common law, we are meant to look for a “close relationship” in kind, not degree. See 136 S. Ct. In other words, while the common law *463 offers guidance, it does not stake out the limits of Congress's power to identify harms deserving a remedy. Congress's power is greater than that: it may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” ). A few unwanted automated text messages may be too minor an annoyance to be actionable at common law. But such texts nevertheless pose the same kind of harm that common law courts recognize—a concrete harm that Congress has chosen to make legally cognizable.2 Van 9 We therefore agree with the Second and Ninth Circuits that unwanted text messages can constitute a concrete injury-in-fact for Article III purposes. III. With standing out of the way, we turn to the merits. We previously addressed the same provision in but at that time, a 2015 FCC Order interpreting the Act was on the books. We held that “absent a direct appeal to review the 2015 FCC Order's interpretation,” the Hobbs Act required us to adopt the FCC's definition of an “automatic telephone dialing system.” ; see 28 U.S.C. 2342(1). But since we decided Blow, there has been just such a “a direct appeal to review” the FCC Order: the D.C. Circuit struck down the 2015 FCC interpretation in ACA And contrary to Gadelhak's assertion, ACA International did not leave prior FCC Orders intact. Instead, the D.C. Circuit clarified that its review also covered “the agency's pertinent pronouncements”—its prior Orders. Neither Blow nor any FCC Order binds us in this case. See ; ; see also We therefore interpret the statute's text as though for the first time. There are at least four ways of reading the statutory definition of an “automatic telephone dialing system.” First, the phrase “using a random or sequential number generator” might modify both store and produce, which would mean that a device must be capable of performing at least one of those functions using a random or sequential number generator to qualify as an “automatic telephone dialing system.” This is how the Third and Eleventh Circuits interpret the statute. Dominguez, 894 F.3d at ; 948 F.3d at3 Second, the phrase might describe *464 the telephone numbers themselves, specifying that the definition captures only equipment that dials randomly or sequentially generated numbers. This is how the district court interpreted the provision. Third, the phrase might limit only the word produce, which would mean that the definition captures not only equipment that can produce numbers randomly or sequentially, but also any equipment that can simply store and dial numbers. This is the Ninth Circuit's interpretation. Finally, the phrase could describe the manner in which the telephone numbers are to be called, regardless of how they are stored, produced, or generated. Some courts—including the district court in this case—have alluded to this possibility, although none has adopted it. See, e.g., 948 F.3d at A. 10 We begin with the interpretation adopted by the Third and Eleventh Circuits. Under their reading, the phrase “using a random or sequential number generator” modifies both “store” and “produce,” defining the means by which either task must be completed for equipment to qualify as an “automatic telephone dialing system.” That is, the statute addresses: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. AT&T advocates this reading, which would exclude its customer feedback tool because the tool lacks the capacity either to store or to produce telephone numbers using a number generator. Instead, the tool dials numbers only from a customer database. This interpretation is certainly the most natural one based on sentence construction and grammar. As the Eleventh Circuit explained, “[w]hen two conjoined verbs (‘to store or produce’) share a direct object (‘telephone numbers to be called’), a modifier following that object (‘using a random or sequential number generator’) customarily modifies both verbs.” The placement of the comma before “using a random or sequential number generator” in the statute further suggests that the modifier is meant to apply to the entire preceding clause. See Antonin Scalia & Bryan A. Reading Law: The Interpretation of Legal Texts 150 (2012). That clause is driven by the two verbs, “to store or produce.” The sentence's construction thus seems to encourage applying the phrase “using a random or sequential number generator” to both verbs. But this first interpretation runs into a problem: as one district court wrote, “it is hard to see how a number generator could be used to ‘store’ telephone numbers.” AT&T counters that a device that generates random numbers and then dials them does, technically, “store” such a number for the fleeting interval between those two functions. While that may be true as a technical matter, as a matter of ordinary usage it's hard to say that the random number *465 generator is “storing” in any notable way. More persuasive, however, is the point that some systems “store” randomly generated numbers for much longer than a few fleeting moments. The record before the FCC reveals that at the time of the statute's enactment, devices existed with the capacity to generate random numbers and then store them in a file for a significant time before selecting them for dialing.4 See Noble Systems Corp., Comments in Response to the FCC's Request for Comments of the Interpretation of the TCPA in Light of the 9th Circuit's Decision in v. Crunch San Diego 12–15 https://ecfsapi.fcc.gov/file/1016271761504/Noble_System_Comments_FCC_DA18-1014_FINAL.pdf. The capacity for storage is more central to such a device's function. Gadelhak responds that if the Act had meant to capture random-generation devices defined by their storage capacities, it needn't have used the word “store” at all. After all, such a device also necessarily can “produce” numbers using a number generator, rendering the “store” option in the statute superfluous. That surplusage is not a deal-breaker. See Scalia & at 176–77 (“Sometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach.”). Given the range of storage capacities among telemarketing devices at the time of enactment, it is plausible that Congress chose some redundancy in order to cover “the waterfront.” Notwithstanding the difficulties posed by this interpretation, we think that the language bears it. But because of those difficulties, we proceed to consider whether any of the other possibilities fares better. B. The district court favored the next option: that “using a random or sequential number generator” modifies the “telephone numbers” that are dialed. Since the telephone numbers themselves obviously lack the capacity to “us[e]” a number generator, the phrase really describes the means by which telephone numbers are generated, as follows: equipment which has the capacity— (A) to store or produce telephone numbers to be called, [generated] using a random or sequential number generator; and (B) to dial such numbers. Under this interpretation, an “automatic telephone dialing system” is equipment with the capacity to store or produce telephone numbers generated using a random or sequential number generator as well as the capacity to dial those numbers. Because AT&T's system cannot generate random strings of numbers for itself and instead dials only existing numbers from AT&T accounts, the district court held that it could not satisfy the statutory definition. 11 The district court's interpretation avoids the problems associated with the word “store.” But it has a problem of its own: the grammatical structure of the sentence. The phrase “using a random or sequential number generator” is an adverbial phrase with an elided preposition—it means “[by] using a random or sequential number generator.” As an adverbial phrase that describes how something is to be done, it cannot modify a noun in this *466 context. So, to arrive at its reading, the district court had to insert a significant word into the statute that simply isn't there. Although the district court's version of the statute is clearer and therefore tempting, “our task is to interpret the words of Congress, not add to them.” The words of Congress, as written, do not permit this second interpretation. C. Gadelhak presses the third option: that the phrase “using a random or sequential number generator” modifies only the equipment's capacity to “produce.” With emphasis, the definition would read: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. To Gadelhak, it doesn't matter that AT&T's system cannot generate random or sequential ten-digit numerical strings. As he sees it, the capacity to produce numbers using a random number generator is only one means of meeting the statutory definition. Gadelhak argues that the disjunctive “or” in “store or produce” means that an “automatic telephone dialing system” need not produce numbers at all. Since “using a random or sequential number generator” modifies only “produce,” Gadelhak argues that all equipment with the capacity to store telephone numbers to be called and to dial those numbers qualifies as an automatic telephone dialing system. This is the interpretation that the Ninth Circuit adopted in v. Crunch San Diego. This interpretation eliminates the problem of the first one—that the phrase is an admittedly imperfect fit for the verb “store.” And it does not require us to add a word to the statute as the second one does. But Gadelhak's approach has a fatal flaw of its own: it requires us to contort the statutory text almost beyond recognition. Everyone agrees that “telephone numbers to be called” is the object of both “store” and “produce.” That makes sense because “produce” is not set off from “store” in the text, either with the infinitive “to” or with a comma. See Scalia & at 148–49. It would be unnatural, then, to splice “store” and “produce” to have the final phrase, “using a random or sequential number generator,” modify only the latter verb. Gadelhak asks us to reorder the sentence to separate “store” and “produce” but to clarify that “telephone numbers” is the object of both. That would be a significant judicial rewrite. Nonetheless, Gadelhak maintains that the statutory structure requires this reading. He emphasizes that the statute carves out a defense for recipients who have given their prior express consent. See (b)(1)(A) If an “automatic telephone dialing system” is defined by its capacity to generate numbers at random, Gadelhak says, it would be impossible for a party ever to take advantage of the consent defense except by coincidence. He explains that a caller could not know in advance whether the telephone number, having been randomly generated, would belong to a party who had previously consented to being called. See also But as another court explained, “it is possible to imagine a device that both has the capacity to generate numbers randomly or sequentially and can be programmed to avoid dialing certain numbers” Gadelhak's *467 rationale for choosing an atextual interpretation is therefore unpersuasive. 12 Gadelhak has one last card to play: he insists that Congress blessed his interpretation of the statute when it amended the Act in 2015. At that time, the D.C. Circuit had not yet struck down the 2015 FCC Order interpreting the statute in Gadelhak's favor. Gadelhak asserts that Congress essentially ratified that interpretation when it amended the statute in 2015 to add an exception for government debt collection and declined to amend the definition in any other respect. See Pub. L. No. 114-74, 301, 588 (2015). We reject this argument, as has every circuit to consider it. See 948 F.3d at (collecting cases). Congressional failure to act does not necessarily reflect approval of the status quo. See 121 S.Ct. 1, And in any event, the FCC's interpretation of the statute was hardly settled at the time of the congressional amendment—in 2015, the D.C. Circuit was already reviewing ACA International. It is therefore particularly difficult to attribute acquiescence to Congress's actions that year. Finally, it is worth noting the far-reaching consequences of Gadelhak's ungrammatical interpretation: it would create liability for every text message sent from an iPhone. That is a sweeping restriction on private consumer conduct that is inconsistent with the statute's narrower focus. Gadelhak argues that to qualify as an “automatic telephone dialing system” a device need only have the “capacity to store telephone numbers” and then to call or text them automatically. Every iPhone today has that capacity right out of the box. An iPhone of course can store telephone numbers; it can also send text messages automatically, for example by using the “Do Not Disturb While Driving” function. See How to Use Do Not Disturb While Driving, APPLE https://support.apple.com/en-us/HT208090 (“If someone sends you a message [while this feature is turned on], they receive an automatic reply letting them know that you're driving.”). Every iPhone, then, has the necessary capacities to meet the statutory definition. That means that under Gadelhak's interpretation, every call or text message sent from an iPhone without the prior express consent of the recipient could subject the sender to a $500 fine. See (b)(3)(B). Considering the statute as a whole, that result makes little sense. The Act's other provisions address narrow conduct much more likely to be performed by telemarketers than by private citizens—for example, the use of “an artificial or prerecorded voice.” 227(b)(1)(A). The definition of an “automatic telephone dialing system” would be an outlier within the statutory scheme if it were to capture such a wide swath of everyday conduct. D. There is one final possibility: that “using a random or sequential number generator” modifies how the telephone numbers are “to be called.” On this reading, an “automatic telephone dialing system” is: equipment which has the capacity— (A) to store or produce telephone numbers to be called[ ] using a random or sequential number generator; and (B) to dial such numbers. In other words, the definition captures devices with the capacity to store or to produce telephone numbers that will be dialed by a random or sequential number generator. The record does not fully explain whether AT&T's system has the necessary capabilities to be considered an “automatic telephone dialing system” under this definition; *468 neither party advanced this reading and other courts have only danced around it. See, e.g., 948 F.3d at (identifying this interpretation as “plausible” but rejecting it without comment). A close look convinces us that this fourth possibility is also inferior to the first interpretation. Congress chose to insert a comma between “to be called” and “using a random or sequential number generator.” And “[a] qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.” William N. Eskridge Jr., Interpreting Law: A Primer on How To Read Statutes and the Constitution 67–68 The comma separating “to be called” and “using a random or sequential number generator” therefore indicates that the modifier refers to the entire clause that precedes it—a clause driven by the verbs “store” and “produce”—rather than the phrase immediately adjacent to it. 13 Of course, we are mindful that “a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning.” U.S. Nat'l Bank of We tread especially carefully here, since the comma seems to be ungrammatical under any interpretation. As mentioned above, “using a random or sequential number generator” is an adverbial phrase. To be more specific, it is a restrictive adverbial phrase, because it provides information that is essential to the meaning of the sentence. The grammar and style treatise of record dictates that a comma is inappropriate for a restrictive adverbial phrase found at the end of a sentence. The Chicago Manual of Style ¶ 6.31 But we have reason to be confident that the comma before the modifier deliberately separates it from “to be called.” A modifying clause following a comma tends not to modify the very last antecedent before it when that antecedent is “integrated” into a singular unit. Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, ––– U.S. In the context of autodialing, the phrase “telephone numbers to be called” has consistently been used as an integrated unit. A 1986 patent for a method of randomizing telephone numbers, for example, contains five references to “numbers to be called.” The phrase was also common in the state antitelemarketing statutes that preceded the federal legislation. Across statutes with different sentence structures and different scopes, the phrase “telephone numbers to be called” appears again and again. See, e.g., Mass. Gen. Laws ch. 159 19B (1986); Miss. Code Ann. 77-3-451 (1989); N.Y. Gen. Bus. Law 399-p (1988). These uses suggest that “telephone numbers to be called” is a single noun unit characterized by the purpose of the numbers. The comma, therefore, seems to have been a deliberate drafting choice to separate the modifying clause from the words that immediately precede it. Satisfied that “using a random or sequential number generator” does not describe how the numbers are “to be called,” we are left again with the first interpretation. It is admittedly imperfect. But it lacks the more significant problems of the other three interpretations and is thus our best reading of a thorny statutory provision. We therefore hold that the phrase “using a random or sequential number generator” describes how the telephone numbers must be “stored” or “produced.” * * * *469 The district court held that AT&T's system did not qualify as an “automatic telephone dialing system” because it lacked the capacity to generate random or sequential numbers. Although we adopt a different interpretation of the statute, under our reading, too, the capacity to generate random or sequential numbers is necessary to the statutory definition. The district court's judgment is therefore AFFIRMED.

Goplin v. WeConnect, Incorporated

WeConnect, Inc. asks us to reverse the district court for making a factual mistake. The district court found that WeConnect was not a party to the arbitration agreement it sought to enforce. WeConnect says that the district court misunderstood the nature of its relationship with the entity named in the arbitration agreement. Because the district court did not clearly err, we affirm its ruling. I. Brooks Goplin worked for WeConnect, Inc. When he began his employment, he signed an arbitration agreement called the “AEI Alternative Entertainment Inc. Open Door Policy and Arbitration Program.” The agreement referred to an entity named AEI throughout; it never mentioned WeConnect. This error became significant several months later, when Goplin sued WeConnect in federal court. Goplin brought a collective action under the Fair Labor Standards Act and a class action asserting claims under Wisconsin law. Invoking the agreement Goplin had signed, WeConnect filed a motion to dismiss and compel arbitration. Fed. R. Civ. P. 12(b)(3). It attached an affidavit from its Director of Human Resources stating, among other things, that “I am employed by WeConnect, Inc.—formerly known as Alternative Entertainment, Inc. or AEI—as Director of Human Resources.” 1 Goplin raised several arguments in opposition, but only one is relevant here: he claimed that WeConnect was not a party to the agreement and therefore could not enforce it.1 He directed the district court to language on WeConnect's website, which stated the following: WeConnect formed when two privately held companies, Alternative Entertainment, Inc. (AEI) and WeConnect Enterprise Solutions, combined in September 2016 ... Working together, AEI and WeConnect Enterprises could be as nimble as the next great technological innovation required. Our founders ... saw that we were stronger together. And we officially became one company, WeConnect. Goplin contended that this language supported his position that AEI and WeConnect were two distinct legal entities. His arbitration agreement was with the now-defunct *490 AEI, and WeConnect could not enforce an agreement that he had entered with another company. Under Wisconsin law, which applies here, “[t]he general rule is that only a party to a contract may enforce it.” Sussex Tool & Supply, Inc. v. Mainline Sewer & Water, Inc., 231 Wis.2d 404, 605 N.W.2d 620, 622–23 (Ct. App. 1999). In its reply, WeConnect disputed Goplin's characterization of its relationship with AEI.2 It asserted that WeConnect and AEI were not two different legal entities, but rather two names for the same legal entity—AEI was the company's original name and WeConnect is its new one. It emphasized that the affidavit from the Director of Human Resources referred to WeConnect as a company “formerly known” as AEI. Thus, WeConnect argued, a contract with AEI was a contract with WeConnect. This was a name change, not a merger. The district court held that WeConnect failed to meet its burden of demonstrating that it was a party to the arbitration agreement or otherwise entitled to enforce it. It discounted the affidavit from the Director of Human Resources as conclusory and noted that “WeConnect's own website indicates that AEI ceased to exist in September 2016, when it merged with WeConnect Enterprise Solutions to form WeConnect, Inc.” Because the court found that “AEI isn't just another name for WeConnect,” it denied WeConnect's motion to compel arbitration. WeConnect filed a motion for reconsideration. This time, it attached more substantial evidence—including some corporate-form documents and affidavits from its lawyer and CEO—to support its claim that AEI had undergone a name change rather than a merger. But the district court pointed out that new evidence cannot be introduced in a motion for reconsideration unless the moving party shows “not only that [the] evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence [during the pendency of the motion].” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (citations omitted). WeConnect's evidence was neither newly discovered nor unknown; moreover, it could easily have produced these documents and affidavits the first time around. The district court thus denied the motion. II. 2 3 4 On appeal, WeConnect challenges the district court's factual finding that WeConnect and AEI are distinct legal entities. This argument is an uphill battle, because we will only reverse a district court's finding of fact if it is clearly erroneous. And in making that determination, we will consider only the evidence that was properly in the record when the district court ruled. The district court correctly declined to revisit its decision based on the additional materials that WeConnect attached to its motion for reconsideration; thus, we will not consider that evidence in our review of the district court's finding. WeConnect's primary complaint is that the district court should not have taken its website into account in ruling on the Rule 12(b)(3) motion. According to WeConnect, the district court violated the rules of judicial notice by relying on information it found in the course of its own internet *491 research. WeConnect emphasizes our warning that “it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011). WeConnect suggests that without the website, the district court's factual finding lacks any basis. WeConnect is incorrect. The website was not the determinative factor in the district court's decision. WeConnect bore the burden of establishing its right to enforce the arbitration agreement. It contended that it could enforce a contract entered by AEI, but the only evidence it introduced of its relationship to AEI was one sentence in an affidavit from its Director of Human Resources. The district court held that this affidavit was insufficient proof that WeConnect and AEI were different names for the same entity. To be sure, it viewed the website as confirmation that the entities were distinct. But the court's opinion makes clear that it would have reached the same result even without the website. It thought that WeConnect simply hadn't introduced enough evidence to show that it had an enforceable agreement with Goplin. 5 In any event, the district court did not violate the rules of judicial notice by reviewing WeConnect's website. Contrary to WeConnect's assertion, the district court did not engage in its own internet research to find the website; Goplin cited WeConnect's website in his briefing. WeConnect protests that it did not have the opportunity to put its website language in context for the court. But it could have done so in its reply brief; it simply failed to use that opportunity. We note too that the statements at issue are WeConnect's own assertions, not potentially unfamiliar information posted on third-party websites. Cf. Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015) (taking notice of medical reference websites); Pickett, 664 F.3d at 648 (addressing a court's taking notice of the Consumer Price Index and Laffey Matrix). Had WeConnect introduced the strongest evidence of its relationship with AEI from the get-go, it may well have convinced the district court that the two names referred to the same entity. But WeConnect miscalculated and relied on a conclusory sentence in a human resources affidavit to establish the corporate relationship between WeConnect and AEI. Based on the evidence it had before it, the district court's finding was not clearly erroneous. The decision of the district court is AFFIRMED and the case is remanded for further proceedings.

Barrett

majority

WeConnect, Inc. asks us to reverse the district court for making a factual mistake. The district court found that WeConnect was not a party to the arbitration agreement it sought to enforce. WeConnect says that the district court misunderstood the nature of its relationship with the entity named in the arbitration agreement. Because the district court did not clearly err, we affirm its ruling. I. Brooks Goplin worked for WeConnect, Inc. When he began his employment, he signed an arbitration agreement called the “AEI Alternative Entertainment Inc. Open Door Policy and Arbitration Program.” The agreement referred to an entity named AEI throughout; it never mentioned WeConnect. This error became significant several months later, when Goplin sued WeConnect in federal court. Goplin brought a collective action under the Fair Labor Standards Act and a class action asserting claims under Wisconsin law. Invoking the agreement Goplin had signed, WeConnect filed a motion to dismiss and compel arbitration. Fed. R. Civ. P. 12(b)(3). It attached an affidavit from its Director of Human Resources stating, among other things, that “I am employed by WeConnect, Inc.—formerly known as Alternative Entertainment, Inc. or AEI—as Director of Human Resources.” 1 Goplin raised several arguments in opposition, but only one is relevant here: he claimed that WeConnect was not a party to the agreement and therefore could not enforce it.1 He directed the district court to language on WeConnect's website, which stated the following: WeConnect formed when two privately held companies, Alternative Entertainment, Inc. (AEI) and WeConnect Enterprise Solutions, combined in September 2016 Working together, AEI and WeConnect Enterprises could be as nimble as the next great technological innovation required. Our founders saw that we were stronger together. And we officially became one company, WeConnect. Goplin contended that this language supported his position that AEI and WeConnect were two distinct legal entities. His arbitration agreement was with the now-defunct *490 AEI, and WeConnect could not enforce an agreement that he had entered with another company. Under Wisconsin law, which applies here, “[t]he general rule is that only a party to a contract may enforce it.” Sussex Tool & Supply, In its reply, WeConnect disputed Goplin's characterization of its relationship with AEI.2 It asserted that WeConnect and AEI were not two different legal entities, but rather two names for the same legal entity—AEI was the company's original name and WeConnect is its new one. It emphasized that the affidavit from the Director of Human Resources referred to WeConnect as a company “formerly known” as AEI. Thus, WeConnect argued, a contract with AEI was a contract with WeConnect. This was a name change, not a merger. The district court held that WeConnect failed to meet its burden of demonstrating that it was a party to the arbitration agreement or otherwise entitled to enforce it. It discounted the affidavit from the Director of Human Resources as conclusory and noted that “WeConnect's own website indicates that AEI ceased to exist in September 2016, when it merged with WeConnect Enterprise Solutions to form WeConnect, Inc.” Because the court found that “AEI isn't just another name for WeConnect,” it denied WeConnect's motion to compel arbitration. WeConnect filed a motion for reconsideration. This time, it attached more substantial evidence—including some corporate-form documents and affidavits from its lawyer and CEO—to support its claim that AEI had undergone a name change rather than a merger. But the district court pointed out that new evidence cannot be introduced in a motion for reconsideration unless the moving party shows “not only that [the] evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence [during the pendency of the motion].” Caisse Nationale de Credit WeConnect's evidence was neither newly discovered nor unknown; moreover, it could easily have produced these documents and affidavits the first time around. The district court thus denied the motion. II. 2 3 4 On appeal, WeConnect challenges the district court's factual finding that WeConnect and AEI are distinct legal entities. This argument is an uphill battle, because we will only reverse a district court's finding of fact if it is clearly erroneous. And in making that determination, we will consider only the evidence that was properly in the record when the district court ruled. The district court correctly declined to revisit its decision based on the additional materials that WeConnect attached to its motion for reconsideration; thus, we will not consider that evidence in our review of the district court's finding. WeConnect's primary complaint is that the district court should not have taken its website into account in ruling on the Rule 12(b)(3) motion. According to WeConnect, the district court violated the rules of judicial notice by relying on information it found in the course of its own internet *491 research. WeConnect emphasizes our warning that “it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.” WeConnect suggests that without the website, the district court's factual finding lacks any basis. WeConnect is incorrect. The website was not the determinative factor in the district court's decision. WeConnect bore the burden of establishing its right to enforce the arbitration agreement. It contended that it could enforce a contract entered by AEI, but the only evidence it introduced of its relationship to AEI was one sentence in an affidavit from its Director of Human Resources. The district court held that this affidavit was insufficient proof that WeConnect and AEI were different names for the same entity. To be sure, it viewed the website as confirmation that the entities were distinct. But the court's opinion makes clear that it would have reached the same result even without the website. It thought that WeConnect simply hadn't introduced enough evidence to show that it had an enforceable agreement with Goplin. 5 In any event, the district court did not violate the rules of judicial notice by reviewing WeConnect's website. Contrary to WeConnect's assertion, the district court did not engage in its own internet research to find the website; Goplin cited WeConnect's website in his briefing. WeConnect protests that it did not have the opportunity to put its website language in context for the court. But it could have done so in its reply brief; it simply failed to use that opportunity. We note too that the statements at issue are WeConnect's own assertions, not potentially unfamiliar information posted on third-party websites. Cf. ; 664 F.3d at Had WeConnect introduced the strongest evidence of its relationship with AEI from the get-go, it may well have convinced the district court that the two names referred to the same entity. But WeConnect miscalculated and relied on a conclusory sentence in a human resources affidavit to establish the corporate relationship between WeConnect and AEI. Based on the evidence it had before it, the district court's finding was not clearly erroneous. The decision of the district court is AFFIRMED and the case is remanded for further proceedings.

Graham v. Arctic Zone Iceplex, LLC

James Graham, Jr., sued Arctic Zone Iceplex, his former employer, for discrimination. According to Graham, Arctic Zone failed to accommodate his disability and ultimately fired him for it. The district court granted summary judgment to Arctic Zone. We affirm. I. In December 2014, Arctic Zone hired Graham as its head mechanic and maintenance supervisor. Graham's responsibilities included maintaining Arctic Zone's ice rink and operating its Zamboni, a machine that smooths the surface of ice on a rink. Graham's tenure at Arctic Zone was not without issues. Shortly after he began working at the rink, Arctic Zone received customer complaints about his attitude. And the customers were not the only ones who noticed. Arctic Zone observed Graham's attitude problems firsthand, as well as his difficulty completing tasks on time. Arctic Zone did not write Graham up, however, for either the insubordination or timeliness issues at the time that they occurred. In February 2015, Graham was injured on the job. He did not work from February to May of that year. During that time, he received worker's compensation. Graham returned to work in May with certain medical restrictions, including the requirement that he work sitting down. In an effort to accommodate him, Arctic Zone assigned Graham to the task of skate sharpening. Arctic Zone asserts that skate sharpening is a job that can be accomplished from a seated position; Graham maintains that the task requires standing. Yet he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions. He alleges that there were a few times when he was caught sitting down to rest and was told to get back to work. Starting in August 2015, Graham transitioned back to full-time work. Arctic Zone assigned him to work evenings rather than during the day, which it attributes to seasonal need. Graham characterizes this as a “demotion” to the position of “night mechanic.” In October 2015, Graham caused a Zamboni accident. Arctic Zone says that the accident resulted in “over two feet of jagged plastic” protruding from the rink wall and onto the rink itself. Arctic Zone suggests that the plastic was a hazard to its customers. Arctic Zone fired Graham on the day of the accident. It gave five reasons for doing so in his Termination Notice. They can be summarized as follows: (1) poor attitude about his change in position; (2) poor attitude toward customers (citing customer complaints); (3) lack of timeliness in completing his duties; (4) insubordination with management; and (5) the Zamboni accident, which put customers in danger and caused Arctic Zone to lose revenue while the rink was being repaired. Graham sued Arctic Zone for discrimination in violation of the Americans with Disabilities Act. See 42 U.S.C. § 12101. He alleged two violations: first, that Arctic Zone failed to reasonably accommodate his disability; and second, that it terminated him because of his disability. The district court granted summary judgment to Arctic Zone on both counts. Graham appeals. II. 1 We first address whether Arctic Zone failed to accommodate Graham's disability. “The [ADA] requires employers to make ‘reasonable accommodations that will allow a qualified individual with a disability to perform the essential functions of his or her job.’ ” Brown v. Milwaukee Bd. of Sch. Dirs., 855 F.3d 818, 820 (7th Cir. 2017) (citation omitted). Graham asserts that *929 Arctic Zone fell short of this standard when it assigned him to skate sharpening, which he says could not be accomplished while sitting down. 2 3 4 But “[i]dentifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process.” Id. at 821. If an employee “does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.” Id. (citations omitted). Graham acknowledges that he did not make Arctic Zone aware of his belief that his skate sharpening assignment didn't comport with his medical restrictions. This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Id. (citations omitted). Because he failed to uphold his end of the interactive process, we affirm the district court's grant of summary judgment on the accommodation issue. III. We next address whether Arctic Zone violated the ADA when it fired Graham. See 42 U.S.C. § 12112(a). While the district court assumed that Graham was disabled for purposes of the statute, it held that Graham had failed to provide sufficient evidence that his disability was the but-for cause of the termination. It granted Arctic Zone summary judgment on that ground, and it was right to do so. 5 6 7 Under Ortiz v. Werner Enterprises, Inc., the ultimate question in a discriminatory employment termination case is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept his job if he [was not disabled], and everything else had remained the same.” 834 F.3d 760, 764 (7th Cir. 2016). One way to demonstrate this is by showing that the stated reasons for the firing were pretextual. See Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737–38 (7th Cir. 2013). In evaluating pretext, “the question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge.” Monroe v. Ind. Dep't of Trans., 871 F.3d 495, 505 (7th Cir. 2017) (citation omitted). Pretext requires more than just “faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action.” Id. (alteration in original). Graham argues that the five reasons that Arctic Zone gave in its Termination Notice were pretextual. 8 To start, Graham asserts that the behavioral problems cited by the notice—his apparent bad attitude, inability to complete work on time, and insubordination—could not be legitimate bases for his termination because he had received no written notice or discipline for them before the Zamboni accident. His premise seems to be that by not addressing the issues earlier, Arctic Zone somehow forfeited its right to count these problems as black marks on his record. Not so. Arctic Zone's decision to let something slide without a formal response does not mean that it went unnoticed or untallied. And even minor grievances can accumulate into a record that justifies termination. A reasonable jury could not conclude that Arctic Zone was lying about the impact of these violations solely because Arctic Zone held its tongue when they occurred. 9 Graham next tries to show pretext by pointing to the testimony of his supervisor, Floyd Johnson. In a deposition, Johnson testified that Graham's “position” never changed when he began working nights. Graham says that this contradicts the Termination Notice's assertion that Graham was unhappy about his “change of position” *930 when he became the “night mechanic.” But Graham's “gotcha” argument relies on an overly technical reading of the word “position.” When he began working nights, Graham's schedule changed, and in that sense, his position could be thought to have changed as well. The Termination Notice acknowledges this fact, as well as the fact that Graham apparently saw this change as significant. But according to Johnson, Graham's schedule was the only meaningful change—his compensation and title remained constant. So in another sense, Johnson's assertion that Graham's “position” didn't change was a reasonable conclusion. The minor inconsistency in the usage of this nontechnical term does not support an inference of bad faith. Graham's last argument addresses the Zamboni incident. He disputes neither his responsibility for causing the accident nor the fact that it caused damage. Instead, he makes two arguments. First, he asserts that Arctic Zone overstated the seriousness of the accident, which ultimately cost only around $150 in repairs. Second, he argues that Arctic Zone treated him differently than another former employee, Geoff Heavner, who had previously caused a similar accident—which caused roughly $1,500 in damage—but was not fired. In response, Arctic Zone notes that when it fired Graham, it did not yet know how much his accident would end up costing. As to the differences between Graham and Heavner, Arctic Zone points to Heavner's otherwise sterling employee record prior to the accident. It also states that it was particularly concerned because Graham's accident created a hazard for its customers, whereas there is no suggestion that Heavner's accident did so. 10 Here too, Graham fails to provide enough evidence to support an inference of bad faith. Heavner ultimately caused more damage. But that was his first strike, whereas Graham had several strikes before the Zamboni incident. And the fact that Heavner's accident did not pose a danger to customers seals the deal—the two employees were not “similarly situated” enough for us to infer that the stated reasons for their different treatment were pretextual. See Lloyd v. Swifty Trans., Inc., 552 F.3d 594, 601 (7th Cir. 2009). * * * Graham has failed to establish an issue of material fact about whether Arctic Zone discriminated against him by failing to reasonably accommodate him or by terminating him. The district court's judgment is AFFIRMED.

Barrett

majority

James Graham, Jr., sued Arctic Zone Iceplex, his former employer, for discrimination. According to Graham, Arctic Zone failed to accommodate his disability and ultimately fired him for it. The district court granted summary judgment to Arctic Zone. We affirm. I. In December 2014, Arctic Zone hired Graham as its head mechanic and maintenance supervisor. Graham's responsibilities included maintaining Arctic Zone's ice rink and operating its Zamboni, a machine that smooths the surface of ice on a rink. Graham's tenure at Arctic Zone was not without issues. Shortly after he began working at the rink, Arctic Zone received customer complaints about his attitude. And the customers were not the only ones who noticed. Arctic Zone observed Graham's attitude problems firsthand, as well as his difficulty completing tasks on time. Arctic Zone did not write Graham up, however, for either the insubordination or timeliness issues at the time that they occurred. In February 2015, Graham was injured on the job. He did not work from February to May of that year. During that time, he received worker's compensation. Graham returned to work in May with certain medical restrictions, including the requirement that he work sitting down. In an effort to accommodate him, Arctic Zone assigned Graham to the task of skate sharpening. Arctic Zone asserts that skate sharpening is a job that can be accomplished from a seated position; Graham maintains that the task requires standing. Yet he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions. He alleges that there were a few times when he was caught sitting down to rest and was told to get back to work. Starting in August 2015, Graham transitioned back to full-time work. Arctic Zone assigned him to work evenings rather than during the day, which it attributes to seasonal need. Graham characterizes this as a “demotion” to the position of “night mechanic.” In October 2015, Graham caused a Zamboni accident. Arctic Zone says that the accident resulted in “over two feet of jagged plastic” protruding from the rink wall and onto the rink itself. Arctic Zone suggests that the plastic was a hazard to its customers. Arctic Zone fired Graham on the day of the accident. It gave five reasons for doing so in his Termination Notice. They can be summarized as follows: (1) poor attitude about his change in position; (2) poor attitude toward customers (citing customer complaints); (3) lack of timeliness in completing his duties; (4) insubordination with management; and (5) the Zamboni accident, which put customers in danger and caused Arctic Zone to lose revenue while the rink was being repaired. Graham sued Arctic Zone for discrimination in violation of the Americans with Disabilities Act. See He alleged two violations: first, that Arctic Zone failed to reasonably accommodate his disability; and second, that it terminated him because of his disability. The district court granted summary judgment to Arctic Zone on both counts. Graham appeals. II. 1 We first address whether Arctic Zone failed to accommodate Graham's disability. “The [ADA] requires employers to make ‘reasonable accommodations that will allow a qualified individual with a disability to perform the essential functions of his or her job.’ ” Graham asserts that *929 Arctic Zone fell short of this standard when it assigned him to skate sharpening, which he says could not be accomplished while sitting down. 2 3 4 But “[i]dentifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process.” If an employee “does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.” Graham acknowledges that he did not make Arctic Zone aware of his belief that his skate sharpening assignment didn't comport with his medical restrictions. This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Because he failed to uphold his end of the interactive process, we affirm the district court's grant of summary judgment on the accommodation issue. III. We next address whether Arctic Zone violated the ADA when it fired Graham. See (a). While the district court assumed that Graham was disabled for purposes of the statute, it held that Graham had failed to provide sufficient evidence that his disability was the but-for cause of the termination. It granted Arctic Zone summary judgment on that ground, and it was right to do so. 5 6 7 Under Ortiz v. Werner Enterprises, Inc., the ultimate question in a discriminatory employment termination case is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept his job if he [was not disabled], and everything else had remained the same.” One way to demonstrate this is by showing that the stated reasons for the firing were pretextual. See In evaluating pretext, “the question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge.” Pretext requires more than just “faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action.” Graham argues that the five reasons that Arctic Zone gave in its Termination Notice were pretextual. 8 To start, Graham asserts that the behavioral problems cited by the notice—his apparent bad attitude, inability to complete work on time, and insubordination—could not be legitimate bases for his termination because he had received no written notice or discipline for them before the Zamboni accident. His premise seems to be that by not addressing the issues earlier, Arctic Zone somehow forfeited its right to count these problems as black marks on his record. Not so. Arctic Zone's decision to let something slide without a formal response does not mean that it went unnoticed or untallied. And even minor grievances can accumulate into a record that justifies termination. A reasonable jury could not conclude that Arctic Zone was lying about the impact of these violations solely because Arctic Zone held its tongue when they occurred. 9 Graham next tries to show pretext by pointing to the testimony of his supervisor, Floyd Johnson. In a deposition, Johnson testified that Graham's “position” never changed when he began working nights. Graham says that this contradicts the Termination Notice's assertion that Graham was unhappy about his “change of position” *930 when he became the “night mechanic.” But Graham's “gotcha” argument relies on an overly technical reading of the word “position.” When he began working nights, Graham's schedule changed, and in that sense, his position could be thought to have changed as well. The Termination Notice acknowledges this fact, as well as the fact that Graham apparently saw this change as significant. But according to Johnson, Graham's schedule was the only meaningful change—his compensation and title remained constant. So in another sense, Johnson's assertion that Graham's “position” didn't change was a reasonable conclusion. The minor inconsistency in the usage of this nontechnical term does not support an inference of bad faith. Graham's last argument addresses the Zamboni incident. He disputes neither his responsibility for causing the accident nor the fact that it caused damage. Instead, he makes two arguments. First, he asserts that Arctic Zone overstated the seriousness of the accident, which ultimately cost only around $150 in repairs. Second, he argues that Arctic Zone treated him differently than another former employee, Geoff Heavner, who had previously caused a similar accident—which caused roughly $1,500 in damage—but was not fired. In response, Arctic Zone notes that when it fired Graham, it did not yet know how much his accident would end up costing. As to the differences between Graham and Heavner, Arctic Zone points to Heavner's otherwise sterling employee record prior to the accident. It also states that it was particularly concerned because Graham's accident created a hazard for its customers, whereas there is no suggestion that Heavner's accident did so. 10 Here too, Graham fails to provide enough evidence to support an inference of bad faith. Heavner ultimately caused more damage. But that was his first strike, whereas Graham had several strikes before the Zamboni incident. And the fact that Heavner's accident did not pose a danger to customers seals the deal—the two employees were not “similarly situated” enough for us to infer that the stated reasons for their different treatment were pretextual. See * * * Graham has failed to establish an issue of material fact about whether Arctic Zone discriminated against him by failing to reasonably accommodate him or by terminating him. The district court's judgment is AFFIRMED.

Green v. Howser

Tolstoy said that every unhappy family is unhappy in its own way, and that observation rings true here. When Jack and Angela Howser decided that Angela's estranged daughter, Jade Green, was failing to provide a suitable home for Jade's daughter, E.W., they enlisted the local police, the sheriff's office, the county prosecutor, and a private investigator to help them wrest custody of E.W. from Jade. Together, the group agreed that they would arrest Jade while Jade's husband *776 was out of the house so that the Howsers could take the child. So, after midnight one Sunday night, a caravan that included the sheriff, a sheriff's deputy, the Howsers, and the Howsers’ private investigator set out for Jade's home to arrest her for writing Angela a $200 check that had bounced. Once Jade was in handcuffs, an officer gave Jack the all-clear to come inside. The sheriff did not allow Jade to designate a custodian for E.W. or obtain her consent to giving E.W. to the Howsers. Instead, over Jade's protests, the sheriff let Jack carry her daughter away. Jade sued the Howsers under 42 U.S.C. § 1983 for conspiring with state officials to violate her due process right to make decisions regarding the care, custody, and control of her child. A jury returned a verdict in her favor, and the Howsers ask us to overturn it. They contend that there is insufficient evidence to support the verdict and that it is contaminated by an evidentiary error in any event. They also find fault with several aspects of the damages award. We reject all of the Howsers’ arguments. I. Before 2014, Jade Green lived with her four-year-old daughter, E.W., in a house owned by her mother, Angela Howser, and her mother's husband, Jack Howser. Jade also owed her job to the Howsers: she worked at a newspaper that they owned. By the time Jade married Josh Green in May 2014, however, her relationship with the Howsers had soured. In fact, to say that they had a falling out would be an understatement. The Howsers made no bones about telling Jade that they thought Josh was bad news. Nor did they hesitate to inform her that they had serious doubts about her fitness as a mother. Given their opinions, the Howsers were predictably upset when they learned that Jade planned to move with Josh and E.W. to a new home almost an hour away. The Howsers did more, however, than express disappointment or try to persuade Jade to stay. They blackmailed her with nude photos. If Jade took E.W., the Howsers threatened, they would publish the photos in their newspaper as well as mail them to Josh's workplace. They told her that Josh would want nothing to do with her after that. But if the nude photos weren't enough to drive him away, they warned Jade that they were willing to take another step. They would fire Jade from her job at the newspaper, and once she was unemployed, Josh would surely leave her. When Jade moved with Josh and E.W. anyway, the Howsers followed through on their threat to fire her, accusing her of malfeasance. And since blackmail had been a failure, they changed strategies: they decided to go directly for E.W. They hired a private investigator—a friend and former state police officer—to help them find a way to take E.W. away from Jade and Josh. They quickly formed a plan. After the Howsers fired her, Jade closed a bank account from which she had written a $200 check to Angela. Knowing that the account was closed, Angela tried to cash the check anyway. When it bounced, the Howsers had the ammunition they needed. Angela used the bounced check to file a complaint with the county prosecutor. The prosecutor then filed a felony information and obtained a warrant for Jade's arrest on the ground that she had passed a bad check. Once the warrant issued, the Howsers began calling local law enforcement officers to encourage them to execute it. The Howsers organized a meeting at the courthouse with the county sheriff, the chief of police, and the Howsers’ private investigator. At the meeting, the group decided that Jade's arrest would provide *777 the perfect opportunity for the Howsers to take custody of E.W. If they arrested Jade, the police would have to place the child in the protective custody of someone else. And if the police arrested Jade when Josh was not at home, they could give E.W. to the Howsers. The group decided to execute the plan on the upcoming Sunday night, and they agreed to have someone drive by Josh's workplace before they made the arrest to make sure that he would be working when the police arrived. On the night of the arrest, the Howsers and their private investigator met the police chief at his father's gun shop, as the four had planned to do. At first, everyone remained committed to the scheme. But when the group proceeded to the police station to meet the others, the police chief began to get cold feet. For starters, he couldn't find an active warrant for Jade's arrest in the department's system. Instead of being entered into the interagency database, which was protocol, this warrant had been faxed directly from the county prosecutor's office, which was unusual. On top of this, two of the department's officers expressed concern that the planned arrest might not be above board. They showed the police chief the Illinois statute governing child custody after an arrest; as the officers read the statute, it required either a parent's consent to the child's placement or placement into the custody of child services. They also told the police chief about the rift between the Howsers and the Greens. Neither wanted to be involved with the arrest because, as one put it, they “didn't want to break the law.” After hearing that, the police chief backed out of executing the warrant. Frustrated, Jack asked Angela to see if the sheriff would execute the warrant. Angela called the sheriff on his personal cell phone, and he agreed to come to the police station, where he met with the Howsers, their investigator, and the police chief. (Though the police chief had declined to execute the warrant himself, he continued to play a supporting role.) The group decided to stick with the plan to arrest Jade that night. During the discussion, the sheriff called the county prosecutor and put him on speakerphone. The prosecutor advised the sheriff and the police chief to move forward and told the sheriff that E.W. should be placed with the Howsers if no one but Jade was home. He justified the custody decision in part by telling the sheriff that there were multiple orders of protection against Josh, though the sheriff noted that there were no active orders in his office's system. The sheriff confirmed the prosecutor's directions with his dispatcher and told the group, “We're a go.” Shortly after midnight, the various law enforcement cars headed out in a caravan with the Howsers in the rear. In the squad car on the way to Jade's house, the sheriff asked his deputy if he was “okay with this.” After equivocating, the deputy replied that if things went south with the arrest, he would just “throw the state's attorney under the bus.” When the caravan arrived at Jade's home, Jack and Angela stationed themselves around the corner, where they waited for a signal that Jack could come inside. The deputy knocked on the door, Jade answered, and the deputy advised her that there was a warrant for her arrest. After she was handcuffed, a member of the party signaled to Jack, who joined the group in Jade's kitchen. Jade became agitated when she saw Jack, calling him a “fucking asshole” and demanding that he get away from her. Ignoring her protests, the officers allowed Jack to go upstairs, get E.W., and carry her off. Jade, meanwhile, was taken to the police station for booking. Over an hour later, she posted bond and returned home with *778 Josh. Distraught and frightened, Jade had no idea how to get E.W. back. She called the state police and the Department of Child and Family Services for help but was unable to obtain any information. The morning after her arrest, Jade tried to meet with the prosecutor at the county courthouse. But she was arrested again before she could make it there. In addition to filing a report regarding Jade's bad check, which occasioned the first arrest, Angela had filed a separate complaint alleging that Jade had refused to return the memory card from her company-issued cell phone. That gave the sheriff reason to take Jade into custody for misdemeanor theft, and Jade was again required to post bail. Following Jade's second arrest, the Howsers obtained guardianship of E.W. and orders of protection keeping both Jade and Josh away from E.W. These orders were the opening salvo in a custody battle that extended for months. After lengthy legal proceedings and a third arrest of Jade at Angela's behest, Jade finally regained custody of E.W. After the custody litigation concluded in Jade's favor, she sued the Howsers, the sheriff, and the county prosecutor under § 1983 for conspiring to violate her due process rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (holding that a private person who conspires with government actors to deprive a plaintiff of her constitutional rights acts “under color of law” for purposes of § 1983); Spiegel v. McClintic, 916 F.3d 611, 616 (7th Cir. 2019) (“[A] private citizen can act under color of law if there is ‘evidence of a concerted effort between a state actor and that individual.’ ” (citation omitted)). Her theory was that the group executed a plan to place E.W. in the Howsers’ custody in violation of the procedures dictated by Illinois law, thereby also violating her Fourteenth Amendment right to make decisions concerning the care, custody, and control of her child. See Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011) (recognizing that the Fourteenth Amendment protects parental custody rights). The prosecutor and sheriff settled, but the suit against the Howsers proceeded to a jury trial over which a magistrate judge presided. At the end of the trial, the jury awarded Jade $470,000 in compensatory damages and $500,000 in punitive damages, for a total of $970,000. The magistrate judge denied both the Howsers’ renewed motion for judgment as a matter of law and their motion for a new trial or remittitur of damages. II. The Howsers raise three challenges on appeal. First, they argue that there was insufficient evidence to support the jury's verdict. Second, they challenge the magistrate judge's pretrial decision to exclude unfavorable information about Jade and Josh. And third, they argue that the damages awards were excessive. A. 1 2 3 4 A § 1983 conspiracy claim requires both (1) an underlying constitutional violation and (2) an agreement among the defendants to inflict the unconstitutional harm. Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018). The Howsers do not challenge the magistrate judge's conclusion that violating the applicable Illinois procedures constitutes a due process violation, so we express no view about whether the judge was right. We also express no view about what Illinois law requires, because the Howsers accept that it entitled Jade to designate the relative or responsible adult with whom she wanted the officers to place E.W. Instead, we deal only with the arguments that the Howsers do *779 raise: (1) that no reasonable jury could have found that Jade objected to E.W.’s placement with the Howsers and (2) that no reasonable jury could have found that the Howsers had an agreement with law enforcement officials to take E.W.1 In evaluating these arguments, we view the record in the light most favorable to Jade. See Thorne v. Member Select Ins. Co., 882 F.3d 642, 644 (7th Cir. 2018); Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006). 5 We'll start with the Howsers’ contention that no reasonable jury could have found that Jade objected to E.W.’s placement with them. The Howsers point out that Jade admitted at trial that she never specifically told the arresting officers that she did not want E.W. to be placed with Jack. In their view, that concession compels the conclusion that Jade implicitly agreed to the sheriff's placement of E.W. in Jack's custody. But seen in light of all the evidence, it does no such thing. The jury heard testimony that Jade referred to Jack as “that fucking asshole” after he entered her house to take E.W. and protested to the arresting officers that she did not want to be anywhere near him. It also heard that the sheriff told Jade that E.W. had to go into protective custody with Jack; that he presented Jade with no alternatives; and that Jade never gave affirmative consent for E.W. to be placed in Jack's custody. Based on this evidence, a jury could reasonably find not only that the sheriff barred Jade from designating a custodian for E.W. but also that Jade made her objections to Jack known. 6 The Howsers also insist that no reasonable jury could have found that they had an agreement with law enforcement officials to forcibly gain custody of E.W. They begin by complaining that Jade didn't demonstrate that the state officials stood to gain anything from the plan. But Jade didn't have to prove that there was something in it for the state actors. She had to show that “(1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participant[s] in joint activity with the State or its agents.” Spiegel, 916 F.3d at 616 (citation omitted). And she had plenty of evidence to establish that. 7 As the Howsers tell the tale, the jury knew nothing more than that they reported Jade to the authorities for bouncing a check and taking a memory card. The record, however, tells a different story. The jury heard testimony that the Howsers arranged numerous meetings with law enforcement, got officers to agree to execute the warrant when Jade's husband wouldn't be home, called the sheriff on his personal cell phone to ensure that the arrest and transfer of custody went forward, rode in the law enforcement caravan on the night of the arrest, waited for an officer to signal that Jack could enter Jade's home, and took E.W. with the sheriff's approval. That is more than enough evidence to support the jury's finding that *780 the Howsers conspired with law enforcement officials to take custody of E.W. over Jade's objection. B. 8 Before trial, the magistrate judge granted Jade's motion to exclude any reference to her criminal history, any suggestion that she neglected E.W., any suggestion that Josh Green was dangerous, any evidence that either of the Greens ever injured E.W., and any evidence of the living conditions in the Greens’ home. The Howsers wanted to introduce such evidence to give the jury an understanding of why they sought custody of E.W., but the judge noted that the evidence had little probative value on their liability because “[p]laintiff's bad behavior is not a defense to violating her rights.” The evidence also carried a substantial risk of unfairly prejudicing the jury against Jade. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice.”); Thompson v. City of Chicago, 722 F.3d 963, 971 (7th Cir. 2013) (“Unfair prejudice is ‘an undue tendency to suggest decision on an improper basis, commonly ... an emotional one.’ ” (citation omitted)). The magistrate judge acknowledged, though, that “some or all of this evidence could be permissibly used to impeach Plaintiff's testimony on the issue of damages” and that he would consider admitting it for that purpose if Jade opened the door. Either Jade never opened the door or the Howsers didn't try to impeach her with this evidence, because it never came in. The Howsers maintain that the magistrate judge was wrong to exclude this evidence because without it, the jury lacked a full picture of why they thought that their actions were justified. And that's about all the Howsers say—their position is more of an assertion than an argument. They don't explain why the magistrate judge abused his discretion by excluding the evidence, much less why any error was prejudicial. See Davies v. Benbenek, 836 F.3d 887, 889–90 (7th Cir. 2016) (noting that evidentiary rulings are reviewed for abuse of discretion); see also Young v. James Green Mgmt., Inc., 327 F.3d 616, 621 (7th Cir. 2003) (“[E]ven where an error is demonstrated to exist, ‘a jury verdict will stand if the trial court's evidentiary ruling was harmless error.’ ” (citation omitted)); accord Goodman v. Ill. Dep't of Fin. & Prof'l Regulation, 430 F.3d 432, 439 (7th Cir. 2005) (noting that “an erroneous evidentiary ruling can be deemed harmless if the record indicates that the same judgment would have been rendered regardless of the error”). Having been given no reason to question this evidentiary ruling, we won't. C. Finally, the Howsers contend that the damages award is excessive. The jury awarded Jade $970,000. That included $470,000 in compensatory damages (which was comprised of $120,000 in attorneys’ fees and $350,000 for mental and emotional pain and loss of companionship) and $500,000 in punitive damages ($250,000 imposed on Jack and $250,000 imposed on Angela). The Howsers challenge each component of the damages award. 1. 9 10 We review the magistrate judge's refusal to remit compensatory damages for an abuse of discretion. Farfaras v. Citizens Bank & Tr. of Chi., 433 F.3d 558, 566 (7th Cir. 2006). Two factors guide our analysis: whether the jury's verdict is rationally related to the evidence and “whether the award is roughly comparable to awards made in similar cases.” *781 Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir. 2015).2 11 We'll start with the $350,000 that the jury awarded Jade for mental and emotional pain and loss of companionship. The Howsers’ argument that this amount is irrational boils down to this: Jade couldn't have been that upset because she didn't seek medical treatment and didn't try hard enough to contact E.W. during their period of separation. But the jury was free to reach a different conclusion about the toll that these events took on Jade. Over her objection, the county sheriff placed her daughter in the custody of people who had recently blackmailed her with nude photos, tried to break up her marriage, vindictively fired her from her job, and conspired with law enforcement officers to forcibly take her child. Jade was separated from her daughter and underwent the strain of a lengthy custody battle with people who had violated her rights by taking E.W. in the first place. The award is rationally related to the evidence, and the Howsers don't try to argue that it is excessive compared to awards in similar cases. The compensatory damages also included attorneys’ fees from the custody litigation caused by the Howsers’ actions. Jade testified that her attorneys’ fees totaled $250,000; the jury valued them at $120,000. The Howsers’ challenge to this amount is frankly hard to follow. Their jumbled description of the state-court custody litigation is nowhere close to a sufficient explanation of why the costs incurred were not rationally attributable to their actions. Nor did they introduce any other evidence that the fees were excessive—for example, evidence that Jade's counsel charged above-market rates. They have therefore given us no reason to second-guess the jury's valuation. In an action under § 1983, “a jury may be permitted to assess punitive damages ... when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The Howsers do not contend that the magistrate judge abused his discretion by submitting the punitive damages issue to the jury. Alexander v. City of Milwaukee, 474 F.3d 437, 454 (7th Cir. 2007) (“This court reviews whether the issue of punitive damages was properly submitted to the jury for an abuse of discretion.”). They do, however, protest the amount that the jury awarded. According to the Howsers, each of the $250,000 punitive damages awards is “grossly excessive” under the Due Process Clause. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 569, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). 13 14 15 16 While defendants have joint and several liability for compensatory damages, punitive damages are assessed separately against each defendant. See Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir. 2010); Cooper v. Casey, 97 F.3d 914, 920 (7th Cir. 1996). To ensure that a punitive damages award complies with the constitutional *782 demand of fairness, we review it in light of “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Our review is de novo. Rainey v. Taylor, Nos. 16-4153 & 18-2990, 941 F.3d 243, 254, 2019 WL 5257963 at *7 (7th Cir. Oct. 17, 2019). The Court has described the first prong as the most important. BMW, 517 U.S. at 575, 116 S.Ct. 1589. Evaluating the reprehensibility of a defendant's conduct requires us to consider whether[ ] the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm, 538 U.S. at 419, 123 S.Ct. 1513. 17 These factors indicate that both Howsers engaged in reprehensible conduct. Their conspiracy with law enforcement officers to forcibly take E.W. was intentional, manipulative, and deceitful. And though they did not physically hurt Jade, their behavior reflected total indifference to her mental and emotional health, not to mention her federally protected rights. They committed only one constitutional violation—conspiring to take E.W.—but it was hardly an isolated incident. It followed on the heels of their attempts to blackmail Jade, and they battled to keep their unlawfully obtained custody rather than thinking better of their behavior and trying to remedy it. We don't know anything about Jade's financial vulnerability—but the fact that she was unemployed suggests that she did not have the resources to foot the bill for the custody battle into which the Howsers dragged her. The Howsers’ conduct was reprehensible enough to warrant a punitive sanction. That brings us to the second prong, the disparity between the compensatory and punitive damages. The jury imposed a $250,000 award on Jack and a $250,000 award on Angela. The ratio between each of these awards and the compensatory damages award is approximately 0.5 to 1. That means that neither award is a candidate for remittitur based on disparity. See Estate of Moreland v. Dieter, 395 F.3d 747, 757 (7th Cir. 2005) (refusing to question the constitutionality of a punitive damages award that was a fraction of the compensatory damages award). We have approved ratios as high as 37:1, as well has more modest but still larger ratios like 5:1 and 6:1. Rainey, 941 F.3d at 255, 2019 WL 5257963, at *8 (discussing cases). The one-half ratio here reflects a punishment tailored to the offense rather than one that is grossly excessive relative to the State's interests in punishment and deterrence. See BMW, 517 U.S. at 568, 116 S.Ct. 1589. Finally, the third prong requires a comparative analysis to analogous punitive damages awards. But as with their challenge to compensatory damages, the Howsers fail to point us to any comparable cases involving lower punitive awards. That failure deals the final blow to their appeal.

Barrett

majority

Tolstoy said that every unhappy family is unhappy in its own way, and that observation rings true here. When Jack and Angela Howser decided that Angela's estranged daughter, Jade Green, was failing to provide a suitable home for Jade's daughter, E.W., they enlisted the local police, the sheriff's office, the county prosecutor, and a private investigator to help them wrest custody of E.W. from Jade. Together, the group agreed that they would arrest Jade while Jade's husband *776 was out of the house so that the Howsers could take the child. So, after midnight one Sunday night, a caravan that included the sheriff, a sheriff's deputy, the Howsers, and the Howsers’ private investigator set out for Jade's home to arrest her for writing Angela a $200 check that had bounced. Once Jade was in handcuffs, an officer gave Jack the all-clear to come inside. The sheriff did not allow Jade to designate a custodian for E.W. or obtain her consent to giving E.W. to the Howsers. Instead, over Jade's protests, the sheriff let Jack carry her daughter away. Jade sued the Howsers under for conspiring with state officials to violate her due process right to make decisions regarding the care, custody, and control of her child. A jury returned a verdict in her favor, and the Howsers ask us to overturn it. They contend that there is insufficient evidence to support the verdict and that it is contaminated by an evidentiary error in any event. They also find fault with several aspects of the damages award. We reject all of the Howsers’ arguments. I. Before 2014, Jade Green lived with her four-year-old daughter, E.W., in a house owned by her mother, Angela Howser, and her mother's husband, Jack Howser. Jade also owed her job to the Howsers: she worked at a newspaper that they owned. By the time Jade married Josh Green in May 2014, however, her relationship with the Howsers had soured. In fact, to say that they had a falling out would be an understatement. The Howsers made no bones about telling Jade that they thought Josh was bad news. Nor did they hesitate to inform her that they had serious doubts about her fitness as a mother. Given their opinions, the Howsers were predictably upset when they learned that Jade planned to move with Josh and E.W. to a new home almost an hour away. The Howsers did more, however, than express disappointment or try to persuade Jade to stay. They blackmailed her with nude photos. If Jade took E.W., the Howsers threatened, they would publish the photos in their newspaper as well as mail them to Josh's workplace. They told her that Josh would want nothing to do with her after that. But if the nude photos weren't enough to drive him away, they warned Jade that they were willing to take another step. They would fire Jade from her job at the newspaper, and once she was unemployed, Josh would surely leave her. When Jade moved with Josh and E.W. anyway, the Howsers followed through on their threat to fire her, accusing her of malfeasance. And since blackmail had been a failure, they changed strategies: they decided to go directly for E.W. They hired a private investigator—a friend and former state police officer—to help them find a way to take E.W. away from Jade and Josh. They quickly formed a plan. After the Howsers fired her, Jade closed a bank account from which she had written a $200 check to Angela. Knowing that the account was closed, Angela tried to cash the check anyway. When it bounced, the Howsers had the ammunition they needed. Angela used the bounced check to file a complaint with the county prosecutor. The prosecutor then filed a felony information and obtained a warrant for Jade's arrest on the ground that she had passed a bad check. Once the warrant issued, the Howsers began calling local law enforcement officers to encourage them to execute it. The Howsers organized a meeting at the courthouse with the county sheriff, the chief of police, and the Howsers’ private investigator. At the meeting, the group decided that Jade's arrest would provide *777 the perfect opportunity for the Howsers to take custody of E.W. If they arrested Jade, the police would have to place the child in the protective custody of someone else. And if the police arrested Jade when Josh was not at home, they could give E.W. to the Howsers. The group decided to execute the plan on the upcoming Sunday night, and they agreed to have someone drive by Josh's workplace before they made the arrest to make sure that he would be working when the police arrived. On the night of the arrest, the Howsers and their private investigator met the police chief at his father's gun shop, as the four had planned to do. At first, everyone remained committed to the scheme. But when the group proceeded to the police station to meet the others, the police chief began to get cold feet. For starters, he couldn't find an active warrant for Jade's arrest in the department's system. Instead of being entered into the interagency database, which was protocol, this warrant had been faxed directly from the county prosecutor's office, which was unusual. On top of this, two of the department's officers expressed concern that the planned arrest might not be above board. They showed the police chief the Illinois statute governing child custody after an arrest; as the officers read the statute, it required either a parent's consent to the child's placement or placement into the custody of child services. They also told the police chief about the rift between the Howsers and the Greens. Neither wanted to be involved with the arrest because, as one put it, they “didn't want to break the law.” After hearing that, the police chief backed out of executing the warrant. Frustrated, Jack asked Angela to see if the sheriff would execute the warrant. Angela called the sheriff on his personal cell phone, and he agreed to come to the police station, where he met with the Howsers, their investigator, and the police chief. (Though the police chief had declined to execute the warrant himself, he continued to play a supporting role.) The group decided to stick with the plan to arrest Jade that night. During the discussion, the sheriff called the county prosecutor and put him on speakerphone. The prosecutor advised the sheriff and the police chief to move forward and told the sheriff that E.W. should be placed with the Howsers if no one but Jade was home. He justified the custody decision in part by telling the sheriff that there were multiple orders of protection against Josh, though the sheriff noted that there were no active orders in his office's system. The sheriff confirmed the prosecutor's directions with his dispatcher and told the group, “We're a go.” Shortly after midnight, the various law enforcement cars headed out in a caravan with the Howsers in the rear. In the squad car on the way to Jade's house, the sheriff asked his deputy if he was “okay with this.” After equivocating, the deputy replied that if things went south with the arrest, he would just “throw the state's attorney under the bus.” When the caravan arrived at Jade's home, Jack and Angela stationed themselves around the corner, where they waited for a signal that Jack could come inside. The deputy knocked on the door, Jade answered, and the deputy advised her that there was a warrant for her arrest. After she was handcuffed, a member of the party signaled to Jack, who joined the group in Jade's kitchen. Jade became agitated when she saw Jack, calling him a “fucking asshole” and demanding that he get away from her. Ignoring her protests, the officers allowed Jack to go upstairs, get E.W., and carry her off. Jade, meanwhile, was taken to the police station for booking. Over an hour later, she posted bond and returned home with *778 Josh. Distraught and frightened, Jade had no idea how to get E.W. back. She called the state police and the Department of Child and Family Services for help but was unable to obtain any information. The morning after her arrest, Jade tried to meet with the prosecutor at the county courthouse. But she was arrested again before she could make it there. In addition to filing a report regarding Jade's bad check, which occasioned the first arrest, Angela had filed a separate complaint alleging that Jade had refused to return the memory card from her company-issued cell phone. That gave the sheriff reason to take Jade into custody for misdemeanor theft, and Jade was again required to post bail. Following Jade's second arrest, the Howsers obtained guardianship of E.W. and orders of protection keeping both Jade and Josh away from E.W. These orders were the opening salvo in a custody battle that extended for months. After lengthy legal proceedings and a third arrest of Jade at Angela's behest, Jade finally regained custody of E.W. After the custody litigation concluded in Jade's favor, she sued the Howsers, the sheriff, and the county prosecutor under for conspiring to violate her due process rights. See ; Her theory was that the group executed a plan to place E.W. in the Howsers’ custody in violation of the procedures dictated by Illinois law, thereby also violating her Fourteenth Amendment right to make decisions concerning the care, custody, and control of her child. See Hernandez ex rel. The prosecutor and sheriff settled, but the suit against the Howsers proceeded to a jury trial over which a magistrate judge presided. At the end of the trial, the jury awarded Jade $470,000 in compensatory damages and $500,000 in punitive damages, for a total of $970,000. The magistrate judge denied both the Howsers’ renewed motion for judgment as a matter of law and their motion for a new trial or remittitur of damages. II. The Howsers raise three challenges on appeal. First, they argue that there was insufficient evidence to support the jury's verdict. Second, they challenge the magistrate judge's pretrial decision to exclude unfavorable information about Jade and Josh. And third, they argue that the damages awards were excessive. A. 1 2 3 4 A conspiracy claim requires both (1) an underlying constitutional violation and (2) an agreement among the defendants to inflict the unconstitutional harm. The Howsers do not challenge the magistrate judge's conclusion that violating the applicable Illinois procedures constitutes a due process violation, so we express no view about whether the judge was right. We also express no view about what Illinois law requires, because the Howsers accept that it entitled Jade to designate the relative or responsible adult with whom she wanted the officers to place E.W. Instead, we deal only with the arguments that the Howsers do *779 raise: (1) that no reasonable jury could have found that Jade objected to E.W.’s placement with the Howsers and (2) that no reasonable jury could have found that the Howsers had an agreement with law enforcement officials to take E.W.1 In evaluating these arguments, we view the record in the light most favorable to Jade. See ; 5 We'll start with the Howsers’ contention that no reasonable jury could have found that Jade objected to E.W.’s placement with them. The Howsers point out that Jade admitted at trial that she never specifically told the arresting officers that she did not want E.W. to be placed with Jack. In their view, that concession compels the conclusion that Jade implicitly agreed to the sheriff's placement of E.W. in Jack's custody. But seen in light of all the evidence, it does no such thing. The jury heard testimony that Jade referred to Jack as “that fucking asshole” after he entered her house to take E.W. and protested to the arresting officers that she did not want to be anywhere near him. It also heard that the sheriff told Jade that E.W. had to go into protective custody with Jack; that he presented Jade with no alternatives; and that Jade never gave affirmative consent for E.W. to be placed in Jack's custody. Based on this evidence, a jury could reasonably find not only that the sheriff barred Jade from designating a custodian for E.W. but also that Jade made her objections to Jack known. 6 The Howsers also insist that no reasonable jury could have found that they had an agreement with law enforcement officials to forcibly gain custody of E.W. They begin by complaining that Jade didn't demonstrate that the state officials stood to gain anything from the plan. But Jade didn't have to prove that there was something in it for the state actors. She had to show that “(1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participant[s] in joint activity with the State or its agents.” Spiegel, 916 F.3d at And she had plenty of evidence to establish that. 7 As the Howsers tell the tale, the jury knew nothing more than that they reported Jade to the authorities for bouncing a check and taking a memory card. The record, however, tells a different story. The jury heard testimony that the Howsers arranged numerous meetings with law enforcement, got officers to agree to execute the warrant when Jade's husband wouldn't be home, called the sheriff on his personal cell phone to ensure that the arrest and transfer of custody went forward, rode in the law enforcement caravan on the night of the arrest, waited for an officer to signal that Jack could enter Jade's home, and took E.W. with the sheriff's approval. That is more than enough evidence to support the jury's finding th80 the Howsers conspired with law enforcement officials to take custody of E.W. over Jade's objection. B. 8 Before trial, the magistrate judge granted Jade's motion to exclude any reference to her criminal history, any suggestion that she neglected E.W., any suggestion that Josh Green was dangerous, any evidence that either of the Greens ever injured E.W., and any evidence of the living conditions in the Greens’ home. The Howsers wanted to introduce such evidence to give the jury an understanding of why they sought custody of E.W., but the judge noted that the evidence had little probative value on their liability because “[p]laintiff's bad behavior is not a defense to violating her rights.” The evidence also carried a substantial risk of unfairly prejudicing the jury against Jade. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice.”); (“Unfair prejudice is ‘an undue tendency to suggest decision on an improper basis, commonly an emotional one.’ ” ). The magistrate judge acknowledged, though, that “some or all of this evidence could be permissibly used to impeach Plaintiff's testimony on the issue of damages” and that he would consider admitting it for that purpose if Jade opened the door. Either Jade never opened the door or the Howsers didn't try to impeach her with this evidence, because it never came in. The Howsers maintain that the magistrate judge was wrong to exclude this evidence because without it, the jury lacked a full picture of why they thought that their actions were justified. And that's about all the Howsers say—their position is more of an assertion than an argument. They don't explain why the magistrate judge abused his discretion by excluding the evidence, much less why any error was prejudicial. See ; see also 327 F.3d (“[E]ven where an error is demonstrated to exist, ‘a jury verdict will stand if the trial court's evidentiary ruling was harmless error.’ ” ); accord Having been given no reason to question this evidentiary ruling, we won't. C. Finally, the Howsers contend that the damages award is excessive. The jury awarded Jade $970,000. That included $470,000 in compensatory damages (which was comprised of $120,000 in attorneys’ fees and $350,000 for mental and emotional pain and loss of companionship) and $500,000 in punitive damages ($250,000 imposed on Jack and $250,000 imposed on Angela). The Howsers challenge each component of the damages award. 1. 9 10 We review the magistrate judge's refusal to remit compensatory damages for an abuse of discretion. Two factors guide our analysis: whether the jury's verdict is rationally related to the evidence and “whether the award is roughly comparable to awards made in similar cases.” *7812 11 We'll start with the $350,000 that the jury awarded Jade for mental and emotional pain and loss of companionship. The Howsers’ argument that this amount is irrational boils down to this: Jade couldn't have been that upset because she didn't seek medical treatment and didn't try hard enough to contact E.W. during their period of separation. But the jury was free to reach a different conclusion about the toll that these events took on Jade. Over her objection, the county sheriff placed her daughter in the custody of people who had recently blackmailed her with nude photos, tried to break up her marriage, vindictively fired her from her job, and conspired with law enforcement officers to forcibly take her child. Jade was separated from her daughter and underwent the strain of a lengthy custody battle with people who had violated her rights by taking E.W. in the first place. The award is rationally related to the evidence, and the Howsers don't try to argue that it is excessive compared to awards in similar cases. The compensatory damages also included attorneys’ fees from the custody litigation caused by the Howsers’ actions. Jade testified that her attorneys’ fees totaled $250,000; the jury valued them at $120,000. The Howsers’ challenge to this amount is frankly hard to follow. Their jumbled description of the state-court custody litigation is nowhere close to a sufficient explanation of why the costs incurred were not rationally attributable to their actions. Nor did they introduce any other evidence that the fees were excessive—for example, evidence that Jade's counsel charged above-market rates. They have therefore given us no reason to second-guess the jury's valuation. In an action under “a jury may be permitted to assess punitive damages when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” The Howsers do not contend that the magistrate judge abused his discretion by submitting the punitive damages issue to the jury. They do, however, protest the amount that the jury awarded. According to the Howsers, each of the $250,000 punitive damages awards is “grossly excessive” under the Due Process Clause. See of N. Am., 9, 13 14 15 16 While defendants have joint and several liability for compensatory damages, punitive damages are assessed separately against each defendant. See ; To ensure that a punitive damages award complies with the constitutional *782 demand of fairness, we review it in light of “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Mut. Auto. Ins. Our review is de novo. WL 5257963 The Court has described the first prong as the most important. Evaluating the reprehensibility of a defendant's conduct requires us to consider whether[ ] the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. State 17 These factors indicate that both Howsers engaged in reprehensible conduct. Their conspiracy with law enforcement officers to forcibly take E.W. was intentional, manipulative, and deceitful. And though they did not physically hurt Jade, their behavior reflected total indifference to her mental and emotional health, not to mention her federally protected rights. They committed only one constitutional violation—conspiring to take E.W.—but it was hardly an isolated incident. It followed on the heels of their attempts to blackmail Jade, and they battled to keep their unlawfully obtained custody rather than thinking better of their behavior and trying to remedy it. We don't know anything about Jade's financial vulnerability—but the fact that she was unemployed suggests that she did not have the resources to foot the bill for the custody battle into which the Howsers dragged her. The Howsers’ conduct was reprehensible enough to warrant a punitive sanction. That brings us to the second prong, the disparity between the compensatory and punitive damages. The jury imposed a $250,000 award on Jack and a $250,000 award on Angela. The ratio between each of these awards and the compensatory damages award is approximately 0.5 to 1. That means that neither award is a candidate for remittitur based on disparity. See Estate of We have approved ratios as high as 37:1, as well has more modest but still larger ratios like 5:1 and 6:1. WL 5257963, (discussing cases). The one-half ratio here reflects a punishment tailored to the offense rather than one that is grossly excessive relative to the State's interests in punishment and deterrence. See 517 U.S. at 8, Finally, the third prong requires a comparative analysis to analogous punitive damages awards. But as with their challenge to compensatory damages, the Howsers fail to point us to any comparable cases involving lower punitive awards. That failure deals the final blow to their appeal.

Groves v. United States

When a district court certifies an order for review before final judgment, parties have only ten days to petition us to hear the interlocutory appeal. Decades ago, we provided a way to circumvent that deadline: district courts could reenter or recertify their orders, restarting the clock, whenever doing so would further the purpose of the interlocutory review statute. But more recent Supreme Court cases call that workaround into question. The Court has emphasized—as recently as a few months ago—that federal courts have no authority to read equitable exceptions into fixed filing deadlines. In light of the Court's precedent, we conclude that we were wrong to hold that district courts can extend the ten-day window by simply reentering or recertifying their orders. We therefore dismiss this appeal for lack of jurisdiction. I. Philip Groves is an accountant who allegedly organized, sold, and promoted abusive tax shelters related to distressed Chinese debts in 2005. Ten years later, the IRS assessed a tax penalty against him for this behavior. Groves sued the government, arguing (among other things) that the catch-all five-year statute of limitations for civil penalties, found in 28 U.S.C. § 2462, applied to the assessment against him—and thus that the IRS acted too late. The district court concluded that § 2462 didn't apply, so in May 2017 it granted the government's motion to strike Groves's statute-of-limitations defense; in July, it denied Groves's motion for judgment on the pleadings for the same reasons. But because it believed that the orders satisfied the standard for immediate appeal provided in 28 U.S.C. § 1292(b), the court certified the orders for interlocutory review on August 8th. Groves had the district court's permission to appeal, but § 1292(b) also required him to seek permission from this court within ten days of the district court's certification. He attempted to obtain our permission on August 18th, the tenth day after the district court's certification order, by emailing an application to appeal to the Seventh Circuit Clerk's Office. But a paralegal mistyped the email address, so the email was not delivered. An automated message noting the failure, sent to the paralegal within minutes, landed in a spam folder. The paralegal discovered that notification on Sunday, August 20th, and emailed the application to the correct address that day. On August 21st, Groves informed the district court of the mix-up and *319 asked it to recertify its orders to restart the ten-day clock. The court complied, entering an otherwise identical second order certifying its May and July orders for interlocutory appeal. Groves refiled his application the next day, and we provisionally granted it. Both parties argue that we have jurisdiction to hear this appeal even though Groves missed the initial deadline. The government, consistent with the position we took in Nuclear Engineering Co. v. Scott, maintains that § 1292(b)’s deadline is jurisdictional but that the statute allows a district court to recertify an order in order to reset the clock. See 660 F.2d 241 (7th Cir. 1981). Groves likewise urges us to adhere to Nuclear Engineering, but he also advances an alternative argument: he maintains that § 1292(b)’s ten-day deadline is not jurisdictional, but rather a claim-processing rule that the government has waived here. II. 1 2 The general rule is that “appellate review must await final judgment.” Nutraceutical Corp. v. Lambert, ––– U.S. ––––, 139 S. Ct. 710, 716, 203 L.Ed.2d 43 (2019). But when a district court determines that one of its orders “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” it can say so in the order, enabling the disappointed litigant to ask the court of appeals to review the order immediately. 28 U.S.C. § 1292(b). The court of appeals has discretion to permit the appeal “if application is made to it within ten days after the entry of the order.” Id. A district court can include the certification in the original order or add it afterward by amendment; in the latter circumstance, “the time to petition runs from entry of the amended order.” Fed. R. App. P. 5(a)(3). In other words, the clock does not start until the litigant is actually authorized to file a petition. 3 4 Despite Groves's argument to the contrary, the ten-day deadline is not a claim-processing rule. The Supreme Court has drawn a bright line: “If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise the time specification fits within the claim-processing category.” Hamer v. Neighborhood Hous. Servs. of Chi., ––– U.S. ––––, 138 S. Ct. 13, 20, 199 L.Ed.2d 249 (2017) (citations omitted). Section 1292(b) is jurisdictional because it “govern[s] the transfer of adjudicatory authority” from the district court, which issued the order, to the court of appeals, which reviews it. Id. Under a straight-forward application of Hamer, § 1292(b)’s time bar is jurisdictional. 5 6 Groves resists this conclusion by arguing that no statutory deadline is jurisdictional unless Congress clearly says so. And he maintains that “Congress did [nothing] ‘special’ to suffuse the ten-day deadline to petition for permission to file an interlocutory appeal with jurisdictional significance.” Groves Supp. Br. at 12. But Groves's premise—that the jurisdictional status of a deadline always depends on a clear-statement rule—is mistaken. The clear-statement rule applies only when a time limit appears in a statute that does not govern an Article III court's adjudicatory authority. See id. at n.9 (“In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another, we have additionally applied a clear-statement rule ....” (emphasis *320 added)).1 In that circumstance, the clear-statement rule helps the court determine whether Congress has exercised its power “to attach the conditions that go with the jurisdictional label to a rule that we would prefer to call a claim-processing rule.” Henderson, 562 U.S. at 435, 131 S.Ct. 1197; see also Hamer, 138 S. Ct. at 20 n.9. But when a time limit appears in a statute that addresses an Article III court's adjudicatory authority, as § 1292(b) does, the default runs the other way—the limit is presumptively jurisdictional. That presumption is consistent with the “longstanding treatment of statutory time limits for taking an appeal as jurisdictional”—a principle that the Court emphasized in Bowles v. Russell, 551 U.S. 205, 210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). See also Hamer, 138 S. Ct. at 20. Groves has a backup argument. Even if the clear-statement rule is narrower in scope, he says, it applies here because § 1292(b) does not really “govern[ ] the transfer of adjudicatory authority” from the district court to the court of appeals. See Hamer, 138 S. Ct. at 20. A petition for permissive appeal does not stay the proceedings in the district court, and the district court retains jurisdiction over the case even if the petition is granted. See § 1292(b); United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir. 1976) (“An appeal from an interlocutory order does not divest the trial court of jurisdiction.”). Thus, Groves says, the statute does not actually “transfer” jurisdiction to the court of appeals. And without such a transfer, he contends, the statute's deadline falls in the “claim processing” category unless Congress expressly says otherwise. 7 8 This argument is meritless. For one thing, § 1292(b) does govern the transfer of adjudicatory authority to the courts of appeals; it empowers the court of appeals to review a district-court order, and once that order is on appeal, the district court can no longer modify it. See Aljabri v. Holder, 745 F.3d 816, 820 (7th Cir. 2014) (“The retained jurisdiction [under § 1292(b)] allows the district court to proceed with other aspects of the case; it does not mean that the district court can continue to modify the same order that is up on interlocutory appeal.”). But in any event, Groves puts far too much weight on Hamer’s use of the word “transfer.” Hamer does not suggest that the jurisdictional status of a deadline (or other limitation) turns on the details of a transfer—for example, whether the transferred authority encompasses the whole case or a single order. Hamer, synthesizing a line of precedent, makes clear that the relevant inquiry is whether the time limit appears in a jurisdictional statute—one that “speak[s] to the power of the court rather than to the rights or obligations of the parties.” See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (citations omitted). If the limit appears in a statute that speaks to the power of the court, it is a limitation on the power of the court. See In re Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016) (explaining that a timeliness condition located in a jurisdiction-granting statute is jurisdictional); see also *321 Hamer, 138 S. Ct. at 20; Bowles, 551 U.S. at 210, 127 S.Ct. 2360. If it appears in a statute that speaks to the rights or obligations of parties, it is a claim-processing rule unless Congress says otherwise. See Kwai Fun Wong, 135 S. Ct. at 1633 (“This Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional.”); Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (concluding that a statutory threshold that “appears in a separate provision and does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts” was not jurisdictional in nature (citation omitted)). There can be no doubt that § 1292(b) “speak[s] to the power of the court rather than to the rights or obligations of the parties.” See Reed Elsevier, 559 U.S. at 160, 130 S.Ct. 1237; see also Tidewater Oil Co. v. United States, 409 U.S. 151, 168, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972) (“[Section] 1292(b) was intended to establish jurisdiction in the courts of appeals to review interlocutory orders ....”); Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (“As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals .... But the appellate court may address any issue fairly included within the certified order ....” (emphasis removed)). That means that § 1292(b)’s deadline is jurisdictional. See Hamer, 138 S. Ct. at 20. And indeed, neither we nor any other circuit has questioned the jurisdictional status of the ten-day limit. See Nuclear Engineering, 660 F.2d at 245 (“Appeals brought pursuant to § 1292(b) must be filed within 10 days of the entry of the certification order, and that requirement is jurisdictional.”); see also, e.g., In re City of Memphis, 293 F.3d 345, 348 (6th Cir. 2002) (“Failure to file an appeal within the 10-day period is a jurisdictional defect that deprives this court of the power to entertain an appeal.”); Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 866 (4th Cir. 2001) (“The ten-day filing requirement is jurisdictional and therefore may not be waived.”). The question with which we and other circuits have struggled is whether this jurisdictional deadline can be extended. We now turn to that issue. III. The statute does not authorize either district courts or the courts of appeals to extend § 1292(b)’s deadline for any reason. Yet we have permitted district courts to do indirectly what they cannot do directly: give litigants more time to file a petition in the court of appeals. In Nuclear Engineering Co., we held that if there are equitable reasons to permit an appeal even after the statutory deadline has passed, a district court may restart the ten-day clock by either vacating and reentering or simply by recertifying its order. 660 F.2d at 246–47. We reasoned that a district court should not be driven by “rigid” adherence to the statutory deadline but should instead consider the value of an immediate appeal, along with the litigant's culpability for the delay and whether recertification would prejudice the opposing party. Id. at 247. Other circuits have approved this sort of indirect extension as well, although there is disagreement about the factors that a district court should apply in deciding whether to grant it. All of these cases were decided before Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), introduced the Court's renewed emphasis on the federal courts’ lack of authority to read equitable exceptions into fixed statutory deadlines. See *322 In re City of Memphis, 293 F.3d at 350;2 Safety-Kleen, Inc. (Pinewood), 274 F.3d at 866–67; Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1291 n.9 (11th Cir. 1998); English v. Cody, 146 F.3d 1257, 1259 n.1 (10th Cir. 1998); Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524, 528–29 (2d Cir. 1996); In re Benny, 812 F.2d 1133, 1137 (9th Cir. 1987); Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981); Braden v. Univ. of Pittsburgh, 552 F.2d 948, 954–55 (3d Cir. 1977) (en banc); In re La Providencia Dev. Corp., 515 F.2d 94, 95 n.1 (1st Cir. 1975).3 9 We acknowledged in Nuclear Engineering Co. that this is a “rather thorny question” given the ostensibly clear language of the statute, 660 F.2d at 245, and while we have never revisited the case, we have never exercised § 1292(b) jurisdiction in reliance on it either.4 Nuclear Engineering Co., however, has become more than a debatable one-off; intervening Supreme Court precedent has undermined it. Just a few months ago, the Court emphasized the rigidity of filing deadlines for interlocutory appeals even when they appear in claim-processing rules. See Nutraceutical Corp., 139 S. Ct. at 714–15. Nuclear Engineering Co. permits a district court to make an end-run around a jurisdictional deadline—and jurisdictional deadlines are even more immoveable because they cannot be waived or forfeited. See Nestorovic v. Metro. Water Reclamation Dist. of Greater Chi., 926 F.3d 427, 430 (7th Cir. 2019). Because Nuclear Engineering Co. is inconsistent with the Court's approach to fixed filing deadlines, we overrule it.5 *323 10 11 In doing so, we begin with the basic principle that when a jurisdictional statute sets a firm deadline, courts have no authority to extend it. Bowles, 551 U.S. at 209, 127 S.Ct. 2360 (“[T]he taking of an appeal within the [statutorily] prescribed time is ‘mandatory and jurisdictional.’ ” (citation omitted)). This can lead to harsh results, especially when there are strong equitable reasons to give a litigant more time. In Bowles, for example, a criminal defendant—seeking to appeal his fifteen-year-to-life sentence—filed his notice of appeal three days after the statutory deadline because the district court told him the wrong due date. 551 U.S. at 207, 127 S.Ct. 2360. Still, the Court concluded that it had “no authority to create equitable exceptions to jurisdictional requirements.” Id. at 214, 127 S.Ct. 2360. And in In re Sobczak-Slomczewski, we held that a district court lacked jurisdiction over a bankruptcy appeal filed one day after the fourteen-day deadline, even though the appellant didn't receive the order in the mail until the fourteenth day. 826 F.3d at 432. Deadlines are by nature arbitrary, which can make dismissal for failure to comply with them seem particularly harsh. But the Court has been unwavering in its insistence that our adjudicatory authority is limited by the Constitution and Congress, and no result justifies our intervening where we have not been granted the power to do so. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101–02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.”). 12 Indeed, the Court has emphasized that even non-jurisdictional time limits may require bright-line application. See Nutraceutical Corp., 139 S. Ct. at 714 (explaining that “some claim-processing rules are ‘mandatory’—that is, they are ‘unalterable’ if properly raised by an opposing party” (citation omitted)). In Nutraceutical Corp., the Court concluded that the fourteen-day deadline to petition to appeal a class-certification decision—an interlocutory order—could not be extended by a court of appeals. Id. at 715. The Court based that conclusion on the “plain import” of the time limit, Federal Rule of Appellate Procedure 26(b)(1)’s prohibition on courts of appeals extending the deadline for petitions for permission to appeal, and the lack of any provision allowing for equitable override of those rules. Id. Altogether, the relevant rules “express[ed] a clear intent to compel rigorous enforcement of [the fourteen-day] deadline, even where good cause for equitable tolling might otherwise exist.” Id. And “[w]here the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.” Id. at 714. Section 1292(b) indisputably bars the courts of appeals from granting litigants more time—even Nuclear Engineering Co. recognized that. See 660 F.2d at 246. The statute authorizes a court of appeals to grant a petition to appeal only “if application is made to it within ten days after entry of the order.” 28 U.S.C. § 1292(b). And Rule 26(b)(1) reinforces that limit by expressly prohibiting courts of appeals from extending the time to petition for permission to appeal. See also Fed. R. App. P. 5(a)(2) (“The petition [for permission to appeal] must be filed within the time specified by the statute or rule authorizing the appeal.” (emphasis added)). If a litigant asked us to toll the clock, there is no question that we would have to refuse. 13 It is similarly indisputable that § 1292 prohibits district courts from granting *324 litigants extensions outright. An order purporting to allow a litigant fifteen days in which to file a § 1292(b) petition would be flatly inconsistent with the statute's ten-day limit. Cf. Bowles, 551 U.S. at 207–08 (holding that a district court lacks authority to grant a litigant a seventeen-day extension to file a notice of appeal when the statute set a fourteen-day limit). And while district courts can extend the time for filing a notice of appeal on grounds of excusable neglect, 28 U.S.C. § 2107(c), no statute gives them similar authority to extend the time for filing a petition for permission to appeal. Cf. Fed. R. App. P. 26(b)(1) (treating notices of appeal and petitions for permission to appeal differently). That distinction makes sense: a litigant who loses the opportunity to appeal a final judgment forever loses the ability to appeal, but a litigant who loses the opportunity to file an interlocutory appeal has another chance later. Interlocutory appeals are exceptional, so their limitations are “purposefully unforgiving.” Nutraceutical Corp., 139 S. Ct. at 716. 14 15 16 Nuclear Engineering Co. permits a district court to make an end-run around this limit with the fiction that recertifying an order isn't the same thing as granting more time. But we have foreclosed that tactic in analogous contexts. The reentry of a collateral order does not restart the time to appeal. See People Who Care v. Rockford Bd. of Educ. Dist. No. 205, 921 F.2d 132, 135 (7th Cir. 1991). Nor does mere reentry of a judgment. See FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211, 73 S.Ct. 245, 97 L.Ed. 245 (1952) (“[T]he mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought.”); Wilson v. United States, 413 F.3d 685, 687 (7th Cir. 2005) (noting that district courts cannot simply restart the clock “by vacating and reentering a judgment”). And we have made clear that motions for post-judgment relief, Fed. R. Civ. P. 60(b), may not be used to make “an end run around the deadline for filing an appeal” either. See Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). Treating reentry of an order or judgment as a mechanism for restarting the clock renders a deadline subject to tolling, even when tolling is otherwise prohibited. That's what Nuclear Engineering Co. does to § 1292(b). The statute sets a ten-day limit that district courts can't toll, yet Nuclear Engineering Co. permits them to toll it anyway. This tactic is inconsistent with the statute's imposition of a fixed jurisdictional deadline, and its text underscores that. The statute provides that when a district court enters “an order not otherwise appealable” and concludes that it meets the statutory standards for interlocutory appeal, it “shall so state in writing in such order.” 28 U.S.C. § 1292(b) (emphasis added). That statement may appear in the merits order when it issues or be added by amendment. Fed. R. App. P. 5(a)(3). But once it is certified, it becomes “the order” from which the clock runs, and accordingly “the order” from which a court of appeals may permit an appeal—so long as it receives the application within ten days of the order's entry. See 28 U.S.C. § 1292(b) (the court of appeals may “permit an appeal to be taken from such order, if application is made to it within ten days after entry of the order” (emphasis added)). If the application is not made within ten days, the order is no longer appealable. The statute does not contemplate that the order's appealability can be revived by a new certification; rather, the course has run for “such order” once the statutory period lapses. 17 Where, as here, a deadline for appeal is fixed, it “cannot be enlarged just because [a] court in its discretion thinks it should be enlarged.” See *325 Minneapolis-Honeywell Regulator Co., 344 U.S. at 211, 73 S.Ct. 245. Accordingly, we overrule the portion of Nuclear Engineering Co. holding that mere recertification (or vacatur and reentry) of an order for interlocutory appeal may extend the jurisdictional deadline.6 This will not work a sea change in our case law. Interlocutory appeals under § 1292(b) are rare, and, as we noted earlier, we have never relied on Nuclear Engineering Co. to exercise jurisdiction in this circumstance. Cf. Bowles, 551 U.S. at 214, 127 S.Ct. 2360 (overruling the “unique circumstances” doctrine, which permitted a district court to excuse compliance with a jurisdictional requirement, when the Court had relied on it “only once in the last half century”). Nor are we disturbing the reliance interests of litigants, who have minimal reliance interests in procedural and jurisdictional rules. See Hohn v. United States, 524 U.S. 236, 251, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“The role of stare decisis [ ] is ‘somewhat reduced in the case of a procedural rule which does not serve as a guide to lawful behavior.’ ” (citation and alterations omitted)). Most important, though, is that the Court's intervening precedent, not to mention our own, has rendered Nuclear Engineering Co. an aberration.

Barrett

majority

When a district court certifies an order for review before final judgment, parties have only ten days to petition us to hear the interlocutory appeal. Decades ago, we provided a way to circumvent that deadline: district courts could reenter or recertify their orders, restarting the clock, whenever doing so would further the purpose of the interlocutory review But more recent Supreme Court cases call that workaround into question. The Court has emphasized—as recently as a few months ago—that federal courts have no authority to read equitable exceptions into fixed filing deadlines. In light of the Court's precedent, we conclude that we were wrong to hold that district courts can extend the ten-day window by simply reentering or recertifying their orders. We therefore dismiss this appeal for lack of jurisdiction. I. Philip Groves is an accountant who allegedly organized, sold, and promoted abusive tax shelters related to distressed Chinese debts in 05. Ten years later, the IRS assessed a tax penalty against him for this behavior. Groves sued the government, arguing (among other things) that the catch-all five-year of limitations for civil penalties, found in applied to the assessment against him—and thus that the IRS acted too late. The district court concluded that 2462 didn't apply, so in May 17 it granted the government's motion to strike Groves's -of-limitations defense; in July, it denied Groves's motion for judgment on the pleadings for the same reasons. But because it believed that the orders satisfied the standard for immediate appeal provided in 28 U.S.C. 1292(b), the court certified the orders for interlocutory review on August 8th. Groves had the district court's permission to appeal, but 1292(b) also required him to seek permission from this court within ten days of the district court's certification. He attempted to obtain our permission on August 18th, the tenth day after the district court's certification order, by emailing an application to appeal to the Seventh Circuit Clerk's Office. But a paralegal mistyped the email address, so the email was not delivered. An automated message noting the failure, sent to the paralegal within minutes, landed in a spam folder. The paralegal discovered that notification on Sunday, August th, and emailed the application to the correct address that On August 21st, Groves informed the district court of the mix-up and *319 asked it to recertify its orders to restart the ten-day clock. The court complied, entering an otherwise identical second order certifying its May and July orders for interlocutory appeal. Groves refiled his application the next day, and we provisionally granted it. Both parties argue that we have jurisdiction to hear this appeal even though Groves missed the initial deadline. The government, consistent with the position we took in Nuclear v. Scott, maintains that 1292(b)’s deadline is jurisdictional but that the allows a district court to recertify an order in order to reset the clock. See Groves likewise urges us to adhere to Nuclear but he also advances an alternative argument: he maintains that 1292(b)’s ten-day deadline is not jurisdictional, but rather a claim-processing rule that the government has waived here. II. 1 2 The general rule is that “appellate review must await final judgment.” Nutraceutical But when a district court determines that one of its orders “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” it can say so in the order, enabling the disappointed litigant to ask the court of appeals to review the order immediately. 28 U.S.C. 1292(b). The court of appeals has discretion to permit the appeal “if application is made to it within ten days after the entry of the ” A district court can include the certification in the original order or add it afterward by amendment; in the latter circumstance, “the time to petition runs from entry of the amended ” Fed. R. App. P. 5(a)(3). In other words, the clock does not start until the litigant is actually authorized to file a petition. 3 4 Despite Groves's argument to the contrary, the ten-day deadline is not a claim-processing rule. The Supreme Court has drawn a bright line: “If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a the limitation is jurisdictional; otherwise the time specification fits within the claim-processing category.” Section 1292(b) is jurisdictional because it “govern[s] the transfer of adjudicatory authority” from the district court, which issued the order, to the court of appeals, which reviews it. Under a straight-forward application of 1292(b)’s time bar is jurisdictional. 5 6 Groves resists this conclusion by arguing that no statutory deadline is jurisdictional unless Congress clearly says so. And he maintains that “Congress did [nothing] ‘special’ to suffuse the ten-day deadline to petition for permission to file an interlocutory appeal with jurisdictional significance.” Groves Supp. Br. at 12. But Groves's premise—that the jurisdictional status of a deadline always depends on a clear-statement rule—is mistaken. The clear-statement rule applies only when a time limit appears in a that does not govern an Article III court's adjudicatory authority. See (“In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another, we have additionally applied a clear-statement rule” (emphasis *3 added)).1 In that circumstance, the clear-statement rule helps the court determine whether Congress has exercised its power “to attach the conditions that go with the jurisdictional label to a rule that we would prefer to call a claim-processing rule.” Henderson, ; see also 138 S. Ct. at n.9. But when a time limit appears in a that addresses an Article III court's adjudicatory authority, as 1292(b) does, the default runs the other way—the limit is presumptively jurisdictional. That presumption is consistent with the “longstanding treatment of statutory time limits for taking an appeal as jurisdictional”—a principle that the Court emphasized in 551 U.S. 5, (07). See also 138 S. Ct. at Groves has a backup argument. Even if the clear-statement rule is narrower in scope, he says, it applies here because 1292(b) does not really “govern[ ] the transfer of adjudicatory authority” from the district court to the court of appeals. See 138 S. Ct. at A petition for permissive appeal does not stay the proceedings in the district court, and the district court retains jurisdiction over the case even if the petition is granted. See 1292(b); United Thus, Groves says, the does not actually “transfer” jurisdiction to the court of appeals. And without such a transfer, he contends, the 's deadline falls in the “claim processing” category unless Congress expressly says otherwise. 7 8 This argument is meritless. For one thing, 1292(b) does govern the transfer of adjudicatory authority to the courts of appeals; it empowers the court of appeals to review a district-court order, and once that order is on appeal, the district court can no longer modify it. See 8 (7th Cir. 14) (“The retained jurisdiction [under 1292(b)] allows the district court to proceed with other aspects of the case; it does not mean that the district court can continue to modify the same order that is up on interlocutory appeal.”). But in any event, Groves puts far too much weight on ’s use of the word “transfer.” does not suggest that the jurisdictional status of a deadline (or other limitation) turns on the details of a transfer—for example, whether the transferred authority encompasses the whole case or a single synthesizing a line of precedent, makes clear that the relevant inquiry is whether the time limit appears in a jurisdictional —one that “speak[s] to the power of the court rather than to the rights or obligations of the parties.” See Reed (10) If the limit appears in a that speaks to the power of the court, it is a limitation on the power of the court. See In re Sobczak-Slomczewski, (7th Cir. 16) ; see also *321 138 S. Ct. at ; 551 U.S. at If it appears in a that speaks to the rights or obligations of parties, it is a claim-processing rule unless Congress says otherwise. See Kwai Fun ; (06) There can be no doubt that 1292(b) “speak[s] to the power of the court rather than to the rights or obligations of the parties.” See Reed 559 U.S. at ; Yamaha Motor 5, (“As the text of 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals But the appellate court may address any issue fairly included within the certified order” (emphasis removed)). That means that 1292(b)’s deadline is jurisdictional. See 138 S. Ct. at And indeed, neither we nor any other circuit has questioned the jurisdictional status of the ten-day limit. See Nuclear (“Appeals brought pursuant to 1292(b) must be filed within 10 days of the entry of the certification order, and that requirement is jurisdictional.”); see also, e.g., In re City of (6th Cir. 02) ; Safety-Kleen, Inc. (4th Cir. 01) The question with which we and other circuits have struggled is whether this jurisdictional deadline can be extended. We now turn to that issue. III. The does not authorize either district courts or the courts of appeals to extend 1292(b)’s deadline for any reason. Yet we have permitted district courts to do indirectly what they cannot do directly: give litigants more time to file a petition in the court of appeals. In Nuclear we held that if there are equitable reasons to permit an appeal even after the statutory deadline has passed, a district court may restart the ten-day clock by either vacating and reentering or simply by recertifying its –47. We reasoned that a district court should not be driven by “rigid” adherence to the statutory deadline but should instead consider the value of an immediate appeal, along with the litigant's culpability for the delay and whether recertification would prejudice the opposing party. Other circuits have approved this sort of indirect extension as well, although there is disagreement about the factors that a district court should apply in deciding whether to grant it. All of these cases were decided before 551 U.S. 5, (07), introduced the Court's renewed emphasis on the federal courts’ lack of authority to read equitable exceptions into fixed statutory deadlines. See *322 In re City of ;2 Safety-Kleen, Inc. (Pinewood), 274 F.3d at –67; ; ; Marisol A. ex rel. ; In re Benny, ; ; ; In re La Providencia Dev. F.2d 94,3 9 We acknowledged in Nuclear that this is a “rather thorny question” given the ostensibly clear language of the and while we have never revisited the case, we have never exercised 1292(b) jurisdiction in reliance on it either.4 Nuclear however, has become more than a debatable one-off; intervening Supreme Court precedent has undermined it. Just a few months ago, the Court emphasized the rigidity of filing deadlines for interlocutory appeals even when they appear in claim-processing rules. See Nutraceutical –15. Nuclear permits a district court to make an end-run around a jurisdictional deadline—and jurisdictional deadlines are even more immoveable because they cannot be waived or forfeited. See Because Nuclear is inconsistent with the Court's approach to fixed filing deadlines, we overrule it.5 *323 10 11 In doing so, we begin with the basic principle that when a jurisdictional sets a firm deadline, courts have no authority to extend it. 551 U.S. at 9, (“[T]he taking of an appeal within the [statutorily] prescribed time is ‘mandatory and jurisdictional.’ ” (citation omitted)). This can lead to harsh results, especially when there are strong equitable reasons to give a litigant more time. In for example, a criminal defendant—seeking to appeal his fifteen-year-to-life sentence—filed his notice of appeal three days after the statutory deadline because the district court told him the wrong due date. 551 U.S. at 7, Still, the Court concluded that it had “no authority to create equitable exceptions to jurisdictional requirements.” at And in In re Sobczak-Slomczewski, we held that a district court lacked jurisdiction over a bankruptcy appeal filed one day after the fourteen-day deadline, even though the appellant didn't receive the order in the mail until the fourteenth 826 F.3d at Deadlines are by nature arbitrary, which can make dismissal for failure to comply with them seem particularly harsh. But the Court has been unwavering in its insistence that our adjudicatory authority is limited by the Constitution and Congress, and no result justifies our intervening where we have not been granted the power to do so. See Steel 101–02, 140 L.Ed.2d 12 Indeed, the Court has emphasized that even non-jurisdictional time limits may require bright-line application. See Nutraceutical In Nutraceutical the Court concluded that the fourteen-day deadline to petition to appeal a class-certification decision—an interlocutory order—could not be extended by a court of appeals. The Court based that conclusion on the “plain import” of the time limit, Federal Rule of Appellate Procedure 26(b)(1)’s prohibition on courts of appeals extending the deadline for petitions for permission to appeal, and the lack of any provision allowing for equitable override of those rules. Altogether, the relevant rules “express[ed] a clear intent to compel rigorous enforcement of [the fourteen-day] deadline, even where good cause for equitable tolling might otherwise exist.” And “[w]here the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.” Section 1292(b) indisputably bars the courts of appeals from granting litigants more time—even Nuclear recognized that. See The authorizes a court of appeals to grant a petition to appeal only “if application is made to it within ten days after entry of the ” 28 U.S.C. 1292(b). And Rule 26(b)(1) reinforces that limit by expressly prohibiting courts of appeals from extending the time to petition for permission to appeal. See also Fed. R. App. P. 5(a)(2) (“The petition [for permission to appeal] must be filed within the time specified by the or rule authorizing the appeal.” ). If a litigant asked us to toll the clock, there is no question that we would have to refuse. 13 It is similarly indisputable that 1292 prohibits district courts from granting *324 litigants extensions outright. An order purporting to allow a litigant fifteen days in which to file a 1292(b) petition would be flatly inconsistent with the 's ten-day limit. Cf. 551 U.S. at 7–08 (holding that a district court lacks authority to grant a litigant a seventeen-day extension to file a notice of appeal when the set a fourteen-day limit). And while district courts can extend the time for filing a notice of appeal on grounds of excusable neglect, 28 U.S.C. 7(c), no gives them similar authority to extend the time for filing a petition for permission to appeal. Cf. Fed. R. App. P. 26(b)(1) (treating notices of appeal and petitions for permission to appeal differently). That distinction makes sense: a litigant who loses the opportunity to appeal a final judgment forever loses the ability to appeal, but a litigant who loses the opportunity to file an interlocutory appeal has another chance later. Interlocutory appeals are exceptional, so their limitations are “purposefully unforgiving.” Nutraceutical 139 S. Ct. at 14 15 16 Nuclear permits a district court to make an end-run around this limit with the fiction that recertifying an order isn't the same thing as granting more time. But we have foreclosed that tactic in analogous contexts. The reentry of a collateral order does not restart the time to appeal. See People Who Care v. Rockford Bd. of Educ. Dist. No. 5, Nor does mere reentry of a judgment. See 344 U.S. 6, ; (7th Cir. 05) And we have made clear that motions for post-judgment relief, Fed. R. Civ. P. 60(b), may not be used to make “an end run around the deadline for filing an appeal” either. See (7th Cir. 13). Treating reentry of an order or judgment as a mechanism for restarting the clock renders a deadline subject to tolling, even when tolling is otherwise prohibited. That's what Nuclear does to 1292(b). The sets a ten-day limit that district courts can't toll, yet Nuclear permits them to toll it anyway. This tactic is inconsistent with the 's imposition of a fixed jurisdictional deadline, and its text underscores that. The provides that when a district court enters “an order not otherwise appealable” and concludes that it meets the statutory standards for interlocutory appeal, it “shall so state in writing in such ” 28 U.S.C. 1292(b) That statement may appear in the merits order when it issues or be added by amendment. Fed. R. App. P. 5(a)(3). But once it is certified, it becomes “the order” from which the clock runs, and accordingly “the order” from which a court of appeals may permit an appeal—so long as it receives the application within ten days of the order's entry. See 28 U.S.C. 1292(b) (the court of appeals may “permit an appeal to be taken from such order, if application is made to it within ten days after entry of the order” ). If the application is not made within ten days, the order is no longer appealable. The does not contemplate that the order's appealability can be revived by a new certification; rather, the course has run for “such order” once the statutory period lapses. 17 Where, as here, a deadline for appeal is fixed, it “cannot be enlarged just because [a] court in its discretion thinks it should be enlarged.” See *325 Minneapolis-Honeywell Regulator 344 U.S. at Accordingly, we overrule the portion of Nuclear holding that mere recertification (or vacatur and reentry) of an order for interlocutory appeal may extend the jurisdictional deadline.6 This will not work a sea change in our case law. Interlocutory appeals under 1292(b) are rare, and, as we noted earlier, we have never relied on Nuclear to exercise jurisdiction in this circumstance. Cf. 551 U.S. at (overruling the “unique circumstances” doctrine, which permitted a district court to excuse compliance with a jurisdictional requirement, when the Court had relied on it “only once in the last half century”). Nor are we disturbing the reliance interests of litigants, who have minimal reliance interests in procedural and jurisdictional rules. See Most important, though, is that the Court's intervening precedent, not to mention our own, has rendered Nuclear an aberration.

Herrera-Garcia v. Barr

Rafael Giovanni Herrera-Garcia seeks to avoid removal to El Salvador because he says that he will be tortured by gangs or corrupt government authorities if he is forced to return there. An immigration judge found that Herrera-Garcia had not shown that he, specifically, would be in danger and denied his request for relief. The judge also concluded that Herrera-Garcia had not established that the government would have inflicted or allowed the alleged torture. The Board adopted and affirmed that decision. Because the administrative decisions are supported by substantial evidence in the record, we deny Herrera-Garcia’s petition for review of these decisions. We also reject his second petition for review on the denial of his motion for reconsideration because we agree with the Board that it was untimely. I. Herrera-Garcia is a native and citizen of El Salvador. He entered the United States illegally in 1990 and has remained here for the past twenty-seven years. In 2016, the Department of Homeland Security initiated removal proceedings against him under 8 U.S.C. § 1229a.1 It alleged that he was removable as an alien because he was (1) convicted of a crime of moral turpitude and (2) present in the United States without being admitted or paroled. In his removal proceedings before the immigration judge (IJ), Herrera-Garcia denied both claims and argued that he qualified for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Herrera-Garcia’s argument for withholding centered on his time growing up in El Salvador. He testified that when he was nine years old, guerrillas stopped him and his friends to get information about people in his neighborhood who might be working for the military—because at that time, the guerillas and the El Salvadoran government were fighting a civil war. Herrera-Garcia said that the guerrillas continued to stop by every three weeks or so to ask similar questions. He admitted, however, that he never saw any of the guerillas with guns. He also said that during one encounter, the guerrillas stopped him and a few friends and forced his friend, Franklin, to smoke marijuana. He claimed that although he escaped from the guerillas, they kidnapped Franklin. Herrera-Garcia also testified that several of his friends were forced to join the military. He explained that he didn’t want to be involved in the violence between the military and the guerillas. Ultimately, out of fear of both the military and the guerillas, he fled to the United States in 1990 and has remained here illegally since then. Herrera-Garcia testified that his fear of living in El Salvador is worse today than it was twenty-seven years ago because of the growing number of gangs and kidnappings there. His parents also testified about the current state of gang violence in the country. *561 They said that they worry about El Salvadoran gangs kidnapping him for ransom given his American accent—because the gangs believe that Americans are wealthy. The IJ found Herrera-Garcia removable and denied his applications for asylum, withholding of removal, and relief under CAT. On his CAT claim, the IJ held that Herrera-Garcia had failed to show that it was more likely than not that he would be tortured if he returned to El Salvador. The IJ also found “entirely speculative” his claims that he would be tortured by gangs. Lastly, the IJ concluded that Herrera-Garcia had failed to provide sufficient evidence that the El Salvadoran government would participate or acquiesce in the alleged torture. Herrera-Garcia appealed to the Board of Immigration Appeals, which adopted and affirmed the IJ’s decision. Herrera-Garcia’s petition for review makes only one argument: he claims that he is entitled to relief under CAT. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1990), 1465 U.N.T.S. 85. While his petition was pending before us, he filed a motion to reconsider with the Board, asserting that a new Supreme Court decision, Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), affected his case. Pereira held that a notice to appear that fails to specify the time or place of a removal hearing does not trigger the “stop-time rule” for purposes of cancellation of removal. 138 S.Ct. at 2115. Herrera-Garcia argued that Pereira should be extended outside the context of the stop-time rule to preclude the agency’s jurisdiction over his proceedings. The Board denied his motion, concluding that it was both untimely and, in any event, failed on the merits. Because he also filed a petition for review from that order, we consolidated the two petitions but concluded that oral argument was unnecessary for the second. See Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Fed. R. App. P. 34(a)(2)(C). II. 1 2 When the Board adopts and supplements an IJ’s decision, we review the IJ’s decision as well as any additional reasoning provided by the Board. Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir. 2008). We consider the decisions “under the deferential substantial evidence standard, meaning that we may only reverse their factual findings if the facts compel an opposite conclusion.” Minghai Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014). 3 4 5 To qualify for relief under CAT, an alien must prove that he would more likely than not be tortured if removed. 8 C.F.R. § 1208.16(c)(2); see Perez-Montes v. Sessions, 880 F.3d 849, 850 (7th Cir. 2018). Torture is defined as the intentional infliction of “ ‘severe pain or suffering’ for the purpose of coercion, punishment, or discrimination.” Borovsky v. Holder, 612 F.3d 917, 923 (7th Cir. 2010) (citing § 1208.18(a)(1)). We consider several factors in assessing possible future torture: “evidence of past torture; evidence that the applicant could relocate to a different part of [his] home country; evidence of ‘gross, flagrant or mass violations of human rights within the country of removal’; and other relevant country conditions.” Tchemkou v. Gonzales, 495 F.3d 785, 795 (7th Cir. 2007) (citing 8 C.F.R. § 208.16(c)(3)(i)–(iv)). To receive protection under CAT, an alien must also prove that he would be tortured by the government or with its acquiescence. Jabateh v. Lynch, 845 F.3d 332, 342 (7th Cir. 2017). We agree with both the Board and the IJ that Herrera-Garcia failed to meet this standard. *562 For one, as the IJ pointed out, Herrera-Garcia provided no evidence of past torture or persecution. See 8 C.F.R. § 1208.16(c)(3)(i). Though his interactions with guerillas when he was a child may have been stressful, they do not rise to the level of “severe pain or suffering.” More importantly, we agree with the IJ that Herrera-Garcia’s allegation of future torture is too speculative. He argues that he fears both corrupt government authorities and the growing number of gangs in El Salvador. But this has nothing to do with his experience in El Salvador over twenty-seven years ago. His argument instead focuses on a general fear of violence that any person moving to El Salvador might have. And as we have said before, “[e]vidence of generalized violence is not enough”; there must be “a substantial risk that the petitioner will be targeted specifically.” Bernard v. Sessions, 881 F.3d 1042, 1047 (7th Cir. 2018) (emphasis added); see Ramos-Braga v. Sessions, 900 F.3d 871, 882 (7th Cir. 2018) (explaining that “fear of generalized violence is insufficient to establish that [the petitioner] in particular is more likely than not to be tortured”); Rashiah v. Ashcroft, 388 F.3d 1126, 1133 (7th Cir. 2004). Herrera-Garcia does claim that gangs will target him because of his American accent. And although there is some evidence in the record showing that gangs have extorted Americans, we agree with the IJ that this allegation is again too speculative. There is insufficient evidence to show that it is likely that Herrera-Garcia specifically will be extorted or that any extortion would rise to the level of torture. See AR at 422, 441, 460, 501. And as the IJ also pointed out, no one in Herrera-Garcia’s extended family has been harmed while living in El Salvador. Nor have his parents, who are American citizens, been harmed on any of their regular trips there. Finally, Herrera-Garcia fails to tie his claims of future torture to government action. To receive relief under CAT, the government must inflict or acquiesce in the torture. 8 C.F.R § 1208.18(a)(1); id. § 1208.18(a)(8) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”) The IJ emphasized that the El Salvadoran government recently put in place “extraordinary measures” to thwart the rising gang violence, including focusing “on moving gang members to maximum security prisons, putting up cell phone signal blockers around the prisons, and conducting coordinated law enforcement operations.” Although not dispositive of a lack of government acquiescence, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1139 (7th Cir. 2015), these efforts contradict Herrera-Garcia’s claim that the El Salvadoran government is generally complicit in the ongoing gang violence. And Herrera-Garcia hasn’t provided any other evidence—besides broad allegations that “gangs operate with impunity throughout El Salvador”—that would indicate that it is likely that the government would acquiesce in Herrera-Garcia’s torture. Cf. id. at 1138–39 (finding acquiescence when petitioner provided evidence that he had been previously tortured by Mexican police). In short, Herrera-Garcia fails to prove that if he returned to El Salvador (1) he would be specifically targeted by gangs or the military or (2) that the government would acquiesce in any torture. There is thus substantial evidence to support the IJ’s and Board’s decisions, and so we deny Herrera-Garcia’s petition. *563 III. 6 Herrera-Garcia contends in his second petition that the Board erred in denying his motion for reconsideration. We review the Board’s decision under the deferential abuse of discretion standard and “will uphold the BIA’s decision unless it ‘was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.’ ” Khan, 766 F.3d at 696 (citation omitted). We agree with the Board that Herrera-Garcia’s motion was untimely because it was filed over four months after the due date. See 8 C.F.R. 1003.2(b)(2) (stating that motions to reconsider a Board decision must be filed within 30 days of that decision). 7 And Herrera-Garcia has not established that equitable tolling excused this failure. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (explaining that to prove equitable tolling, one must show diligence and extraordinary circumstances). He has provided no evidence that he acted diligently in preserving his rights over the initial 30 days or the four-months after. See El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012) (“In light of his failure to offer any support for his claim that he acted diligently to preserve his rights during that time, we cannot say that the BIA abused its discretion in finding that [the petitioner] failed to meet the standard for due diligence.”). Nor has he shown that extraordinary circumstances prevented him from filing. He implies that he was prevented from filing as long as Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), remained pending. But Herrera-Garcia ignores the fact that he could have raised the issue under consideration in Pereira with the IJ or the Board earlier or at least requested a stay until the case was decided. Cf. Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (“It is hardly extraordinary that subsequently, after petitioner’s case was no longer pending, this Court arrived at a different interpretation.”). In sum, we do not think that the Board abused its discretion in concluding that Herrera-Garcia’s motion was untimely and that no exception applied.

Barrett

majority

Rafael Giovanni Herrera-Garcia seeks to avoid removal to El Salvador because he says that he will be tortured by gangs or corrupt government authorities if he is forced to return there. An immigration judge found that Herrera-Garcia had not shown that he, specifically, would be in danger and denied his request for relief. The judge also concluded that Herrera-Garcia had not established that the government would have inflicted or allowed the alleged torture. The Board adopted and affirmed that decision. Because the administrative decisions are supported by substantial evidence in the record, we deny Herrera-Garcia’s petition for review of these decisions. We also reject his second petition for review on the denial of his motion for reconsideration because we agree with the Board that it was untimely. I. Herrera-Garcia is a native and citizen of El Salvador. He entered the United States illegally in 1990 and has remained here for the past twenty-seven years. In 2016, the Department of Homeland Security initiated removal proceedings against him under 8 U.S.C. 1229a.1 It alleged that he was removable as an alien because he was (1) convicted of a crime of moral turpitude and (2) present in the United States without being admitted or paroled. In his removal proceedings before the immigration judge (IJ), Herrera-Garcia denied both claims and argued that he qualified for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Herrera-Garcia’s argument for withholding centered on his time growing up in El Salvador. He testified that when he was nine years old, guerrillas stopped him and his friends to get information about people in his neighborhood who might be working for the military—because at that time, the guerillas and the El Salvadoran government were fighting a civil war. Herrera-Garcia said that the guerrillas continued to stop by every three weeks or so to ask similar questions. He admitted, however, that he never saw any of the guerillas with guns. He also said that during one encounter, the guerrillas stopped him and a few friends and forced his friend, Franklin, to smoke marijuana. He claimed that although he escaped from the guerillas, they kidnapped Franklin. Herrera-Garcia also testified that several of his friends were forced to join the military. He explained that he didn’t want to be involved in the violence between the military and the guerillas. Ultimately, out of fear of both the military and the guerillas, he fled to the United States in 1990 and has remained here illegally since then. Herrera-Garcia testified that his fear of living in El Salvador is worse today than it was twenty-seven years ago because of the growing number of gangs and kidnappings there. His parents also testified about the current state of gang violence in the country. *561 They said that they worry about El Salvadoran gangs kidnapping him for ransom given his American accent—because the gangs believe that Americans are wealthy. The IJ found Herrera-Garcia removable and denied his applications for asylum, withholding of removal, and relief under CAT. On his CAT claim, the IJ held that Herrera-Garcia had failed to show that it was more likely than not that he would be tortured if he returned to El Salvador. The IJ also found “entirely speculative” his claims that he would be tortured by gangs. Lastly, the IJ concluded that Herrera-Garcia had failed to provide sufficient evidence that the El Salvadoran government would participate or acquiesce in the alleged torture. Herrera-Garcia appealed to the Board of Immigration Appeals, which adopted and affirmed the IJ’s decision. Herrera-Garcia’s petition for review makes only one argument: he claims that he is entitled to relief under CAT. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1990), 1465 U.N.T.S. 85. While his petition was pending before us, he filed a motion to reconsider with the Board, asserting that a new Supreme Court decision, affected his case. Pereira held that a notice to appear that fails to specify the time or place of a removal hearing does not trigger the “stop-time rule” for purposes of cancellation of Herrera-Garcia argued that Pereira should be extended outside the context of the stop-time rule to preclude the agency’s jurisdiction over his proceedings. The Board denied his motion, concluding that it was both untimely and, in any event, failed on the merits. Because he also filed a petition for review from that order, we consolidated the two petitions but concluded that oral argument was unnecessary for the second. See ; Fed. R. App. P. 34(a)(2)(C). II. 1 2 When the Board adopts and supplements an IJ’s decision, we review the IJ’s decision as well as any additional reasoning provided by the Board. We consider the decisions “under the deferential substantial evidence standard, meaning that we may only reverse their factual findings if the facts compel an opposite conclusion.” Minghai 3 4 5 To qualify for relief under CAT, an alien must prove that he would more likely than not be tortured if removed. 8 C.F.R. 1208.16(c)(2); see Torture is defined as the intentional infliction of “ ‘severe pain or suffering’ for the purpose of coercion, punishment, or discrimination.” (citing 1208.18(a)(1)). We consider several factors in assessing possible future torture: “evidence of past torture; evidence that the applicant could relocate to a different part of [his] home country; evidence of ‘gross, flagrant or mass violations of human rights within the country of removal’; and other relevant country conditions.” (citing 8 C.F.R. 208.16(c)(3)(i)–(iv)). To receive protection under CAT, an alien must also prove that he would be tortured by the government or with its acquiescence. We agree with both the Board and the IJ that Herrera-Garcia failed to meet this standard. *562 For one, as the IJ pointed out, Herrera-Garcia provided no evidence of past torture or persecution. See 8 C.F.R. 1208.16(c)(3)(i). Though his interactions with guerillas when he was a child may have been stressful, they do not rise to the level of “severe pain or suffering.” More importantly, we agree with the IJ that Herrera-Garcia’s allegation of future torture is too speculative. He argues that he fears both corrupt government authorities and the growing number of gangs in El Salvador. But this has nothing to do with his experience in El Salvador over twenty-seven years ago. His argument instead focuses on a general fear of violence that any person moving to El Salvador might have. And as we have said before, “[e]vidence of generalized violence is not enough”; there must be “a substantial risk that the petitioner will be targeted specifically.” ; see ; Herrera-Garcia does claim that gangs will target him because of his American accent. And although there is some evidence in the record showing that gangs have extorted Americans, we agree with the IJ that this allegation is again too speculative. There is insufficient evidence to show that it is likely that Herrera-Garcia specifically will be extorted or that any extortion would rise to the level of torture. See AR at 422, 441, 460, 501. And as the IJ also pointed out, no one in Herrera-Garcia’s extended family has been harmed while living in El Salvador. Nor have his parents, who are American citizens, been harmed on any of their regular trips there. Finally, Herrera-Garcia fails to tie his claims of future torture to government action. To receive relief under CAT, the government must inflict or acquiesce in the torture. 8 C.F.R 1208.18(a)(1); 1208.18(a)(8) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”) The IJ emphasized that the El Salvadoran government recently put in place “extraordinary measures” to thwart the rising gang violence, including focusing “on moving gang members to maximum security prisons, putting up cell phone signal blockers around the prisons, and conducting coordinated law enforcement operations.” Although not dispositive of a lack of government acquiescence, see these efforts contradict Herrera-Garcia’s claim that the El Salvadoran government is generally complicit in the ongoing gang violence. And Herrera-Garcia hasn’t provided any other evidence—besides broad allegations that “gangs operate with impunity throughout El Salvador”—that would indicate that it is likely that the government would acquiesce in Herrera-Garcia’s torture. Cf. at 1138–39 (finding acquiescence when petitioner provided evidence that he had been previously tortured by Mexican police). In short, Herrera-Garcia fails to prove that if he returned to El Salvador (1) he would be specifically targeted by gangs or the military or (2) that the government would acquiesce in any torture. There is thus substantial evidence to support the IJ’s and Board’s decisions, and so we deny Herrera-Garcia’s petition. *563 III. 6 Herrera-Garcia contends in his second petition that the Board erred in denying his motion for reconsideration. We review the Board’s decision under the deferential abuse of discretion standard and “will uphold the BIA’s decision unless it ‘was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.’ ” Khan, We agree with the Board that Herrera-Garcia’s motion was untimely because it was filed over four months after the due date. See 8 C.F.R. 1003.2(b)(2) (stating that motions to reconsider a Board decision must be filed within 30 days of that decision). 7 And Herrera-Garcia has not established that equitable tolling excused this failure. See He has provided no evidence that he acted diligently in preserving his rights over the initial 30 days or the four-months after. See Nor has he shown that extraordinary circumstances prevented him from filing. He implies that he was prevented from filing as long as remained pending. But Herrera-Garcia ignores the fact that he could have raised the issue under consideration in Pereira with the IJ or the Board earlier or at least requested a stay until the case was decided. Cf. In sum, we do not think that the Board abused its discretion in concluding that Herrera-Garcia’s motion was untimely and that no exception applied.

Herrington v. Waterstone Mortgage Corporation

Pamela Herrington filed class and collective actions against Waterstone Mortgage Corporation, her former employer, for wage and hour violations. The district court compelled arbitration pursuant to an agreement between Herrington and Waterstone, but it struck as unlawful a waiver clause that appeared to forbid class or collective arbitration of Herrington's claims. The arbitrator conducted a collective arbitration over Waterstone's objection and ultimately awarded more than $10 million in damages and fees to Herrington and 174 similarly situated employees. A recent Supreme Court decision has now put this award in doubt. In Epic Systems Corp. v. Lewis, ––– U.S. ––––, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018), the Court upheld the validity of waiver provisions like the one in Herrington's agreement with Waterstone. If imposing collective arbitration on Waterstone violated that waiver, we must instruct the district court to vacate the award, which would put Herrington back at square one. But Herrington does not concede that the collective arbitration violated the waiver. In an attempt to save her award, she insists that her agreement with Waterstone affirmatively permits class or collective arbitration of her claims despite the presence of a valid waiver indicating otherwise. While this argument is weak, someone must evaluate it—and we must decide who has that job. If the availability of class or collective arbitration is a threshold question of arbitrability, the district court has to decide it. Otherwise, it falls to the arbitrator. For reasons we explain below, we conclude that the availability of class or collective arbitration is a threshold question of *504 arbitrability. On remand, the district court, rather than the arbitrator, must evaluate Herrington's contract with Waterstone to determine whether it permits class or collective arbitration. I. Pamela Herrington sued Waterstone Mortgage Corporation in federal court, asserting two claims. First, she alleged that Waterstone had failed to pay her minimum wages and overtime pay under the Fair Labor Standards Act. She brought that claim as a collective action under the Act, which meant that other employees could opt in to the lawsuit. 29 U.S.C. § 216(b). Second, she claimed that Waterstone had breached its contract with her. She brought that claim as a class action under Federal Rule of Civil Procedure 23, which meant that Herrington would represent a class of absent claimants unless they opted out. But Herrington had signed an agreement to arbitrate employment disputes, and Waterstone moved to enforce it. Herrington's employment agreement with Waterstone contained an arbitration clause, which provided in part: In the event that the parties cannot resolve a dispute by the [alternative dispute resolution] provisions contained herein, any dispute between the parties concerning the wages, hours, working conditions, terms, rights, responsibilities or obligations between them or arising out of their employment relationship shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association applicable to employment claims. Such arbitration may not be joined with or join or include any claims by any persons not party to this Agreement. Based on this language, Waterstone asked the district court to either dismiss the suit for lack of jurisdiction or stay it and compel arbitration. Herrington responded that the arbitration clause was unenforceable. She argued that the entire clause, which required her to pay half of the arbitration costs, was invalid because it imposed excessive costs on her. She also challenged the validity of the sentence waiving her right to join the claims of others in the proceeding. According to Herrington, this waiver violated both the Fair Labor Standards Act, which permits collective actions, and the National Labor Relations Act, which protects concerted activity. She did not contest Waterstone's position that her claims were within the scope of the waiver in the arbitration clause; indeed, her arguments under the Fair Labor Standards Act and National Labor Relations Act assumed that the waiver, if valid, would bar both class and collective arbitration. The court rejected Herrington's contention that the agreement to arbitrate was unenforceable. It said that Herrington had failed to show that the agreement imposed excessive costs on her because she “failed to show that arbitration would be any more expensive than litigation in federal court.” But it accepted her argument that the waiver in the arbitration agreement was unlawful. The Fair Labor Standards Act was not the problem; the court agreed with the many courts that have held that the Fair Labor Standards Act does not mandate the availability of collective arbitration. See, e.g., Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 298 (5th Cir. 2004). The National Labor Relations Act, however, was a different story. That Act gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U.S.C. § 157, and instructs employers not “to interfere with, restrain, or coerce employees in the *505 exercise of” that right, 29 U.S.C. § 158(a)(1). At the time the court ruled on Waterstone's motion to compel arbitration, the National Labor Relations Board had just decided that the right “to engage in other concerted activities for ... mutual aid or protection” includes the right to pursue claims collectively; accordingly, employers who condition employment on accepting arbitration agreements that waive class and collective actions violate that Act. In re D.R. Horton, Inc., 357 NLRB 2277, 2289 (2012), enforcement denied in relevant part, D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Relying on the Board's decision, the court struck the sentence waiving Herrington's right to bring a class or collective proceeding in arbitration. It sent the parties to arbitration with an order unequivocally instructing the arbitrator that Herrington “must be allowed to join other employees to her case.” The court left it to the arbitrator to determine whether to accomplish that through joinder, an opt-in procedure similar to a collective action under the Fair Labor Standards Act, or an opt-out proceeding similar to a class action under Rule 23. Herrington asked for class arbitration, which is available only if the arbitration agreement contains evidence that the parties affirmatively consented to that procedure. Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 687, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010). Because class arbitration “fundamental[ly] changes” the nature of the proceeding, “the parties' mere silence on the issue of class-action arbitration” does not signify assent. Id. at 686–87, 130 S.Ct. 1758. The arbitrator had to find more. Waterstone argued that the waiver settled the question: the waiver prohibited class arbitration, so Waterstone had obviously not assented to it. The arbitrator rejected that argument, reasoning that he was bound to ignore the waiver because the district court had invalidated it. Yet even without the waiver, Waterstone contended, the agreement contained no evidence that the parties consented to class arbitration. The arbitrator rejected that argument as well, reasoning that the parties had agreed to class arbitration when they agreed to proceed under the rules of the American Arbitration Association “applicable to employment claims.” Waterstone maintained that this language incorporated only the general set of rules for employment claims, which are embodied in a rule-book titled “Employment Arbitration Rules and Mediation Procedures.” But the arbitrator interpreted it to also incorporate the Association's “Supplementary Rules for Class Arbitrations.” By incorporating both sets of rules, he said, the agreement authorized class arbitration. In passing, the arbitrator added that even if the waiver were intact, the agreement's incorporation of the Association's rules created an ambiguity that he would construe against Waterstone. He decided to proceed with a class arbitration modeled on Rule 23 but later switched to a collective arbitration that required additional claimants to opt in.1 Throughout the arbitration, Waterstone repeatedly asked the district court to reconsider its initial decision and to change various decisions that the arbitrator made along the way; those efforts were all unsuccessful. In the end, the arbitrator issued an award of over $10 million in damages and fees in favor of Herrington and 174 other claimants who had opted in to the proceeding. Waterstone appeals from the final judgment enforcing the arbitrator's *506 award, see 28 U.S.C. § 1291, arguing that because the waiver is valid, the collective arbitration violated Waterstone's agreement with Herrington. II. Herrington agreed to arbitrate employment disputes with Waterstone and that any “[s]uch arbitration may not be joined with or join or include any claims by any persons not party to this Agreement.” The first issue in this appeal is whether the district court incorrectly struck this waiver from the parties' arbitration agreement. Had we issued this opinion a year ago, the answer would be a simple “no.” The district court interpreted the National Labor Relations Act to prohibit agreements that require single-claimant arbitration of employment claims, and we later reached the same conclusion in an unrelated case. Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1161 (7th Cir. 2016). But the Supreme Court reversed our decision while Waterstone's appeal was pending. Epic Sys. Corp. v. Lewis, ––– U.S. ––––, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018). After examining both the Federal Arbitration Act and the National Labor Relations Act, the Court held that an arbitration agreement does not violate the National Labor Relations Act's protection of “other concerted activities for ... mutual aid or protection” when it requires plaintiffs to pursue employment-related claims in single-claimant arbitrations. Id. at 1624–29. Epic Systems means that the district court was wrong to treat the waiver in Herrington's agreement with Waterstone as unlawful. III. 1 The lawfulness of the waiver is the easy part of this appeal. The hard part is a question that Epic Systems does not address: what happens next? Epic Systems makes clear that a waiver of the right to proceed in a class or collective arbitration is valid. But someone has to interpret the arbitration agreement—this time, including the waiver—to determine whether it authorized the collective arbitration that occurred. One could reasonably wonder why the availability of collective arbitration is in dispute, given that Herrington agreed that her “arbitration may not be joined with or join or include any claims by any persons not party to this Agreement.” Indeed, until recently, Herrington herself assumed that this waiver, if enforceable, would require her to proceed in a bilateral arbitration.2 But she has now changed her tune: she claims that not-withstanding the waiver, the agreement reflects the parties' affirmative consent to class and collective arbitration. As implausible as this argument may be, either the court or the arbitrator has to settle it. We must decide which. 2 3 4 5 6 The choice between them turns on whether the availability of class or collective arbitration is a question of arbitrability, which the court decides, or a subsidiary issue, which goes to the arbitrator. Questions of arbitrability involve “gateway matters, such as whether parties have a valid arbitration agreement at all or whether a concededly binding arbitration *507 clause applies to a certain type of controversy.” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569 n.2, 133 S.Ct. 2064, 186 L.Ed.2d 113 (2013) (quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) (plurality opinion) ). Subsidiary questions “grow out of the dispute and bear on its final disposition.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Whether the availability of class or collective arbitration is a gateway issue of arbitrability is an open question in our circuit. The Supreme Court has expressly reserved it, see Oxford Health, 569 U.S. at 569 n.2, 133 S.Ct. 2064, and we have never addressed it. But every federal court of appeals to reach the question has held that the availability of class arbitration is a question of arbitrability. See Del Webb Cmties., Inc. v. Carlson, 817 F.3d 867, 877 (4th Cir. 2016); Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013); Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966, 972 (8th Cir. 2017); JPay, Inc. v. Kobel, 904 F.3d 923, 935–36 (11th Cir. 2018); see also Eshagh v. Terminix Int'l Co., 588 F. App'x 703, 704 (9th Cir. 2014) (unpublished). We agree.3 And while Herrington's arbitration with Waterstone was conducted as a collective rather than class proceeding, the forms are so closely related that the same analysis applies. See Opalinski v. Robert Half Int'l, Inc., 761 F.3d 326, 335 (3d Cir. 2014) (treating class and collective arbitration as interchangeable for purposes of arbitrability).4 7 The availability of class or collective arbitration involves a foundational question of arbitrability: whether the potential parties to the arbitration agreed to arbitrate. See John Wiley & Sons, 376 U.S. at 546–47, 84 S.Ct. 909; see also *508 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). When Herrington filed her putative class action and then sought to proceed in a class arbitration, she asked the court and then the arbitrator to resolve the claims of absent class members. By proposing that the arbitration include additional employees, Herrington raised the question whether those employees had agreed to submit their claims against Waterstone to arbitration, not to mention whether Waterstone had agreed to arbitrate rather than litigate with them. See Opalinski, 761 F.3d at 332–33 (holding that the availability of class arbitration is a question of arbitrability because it “affects whose claims may be arbitrated”).5 To be sure, an opt-in procedure—in contrast to an opt-out procedure—ensures that absent class members consent to the arbitration of their claims. See Oxford Health, 569 U.S. at 574–75, 133 S.Ct. 2064 (Alito, J., concurring). But it does not avoid the arbitrability question, because an opt-in claimant's willingness to arbitrate with the defendant does not establish that the defendant agreed to arbitrate with the opt-in claimant.6 The Supreme Court has emphasized that “parties may specify with whom they choose to arbitrate their disputes.” Stolt-Nielsen, 559 U.S. at 683, 130 S.Ct. 1758; see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“[Arbitration] is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” (emphasis added) ). Deciding whether Herrington's agreement with Waterstone permits class or collective arbitration requires the adjudicator to determine whether Waterstone agreed to arbitrate not only with Herrington, but also with members of her proposed class. It thus resolves the foundational question of “with whom” Waterstone chose to arbitrate. See Stolt-Nielsen, 559 U.S. at 683, 130 S.Ct. 1758. Deciding whether a contract permits class or collective arbitration involves a second (and in this case, related) question of arbitrability: whether the agreement to arbitrate covers a particular controversy. See John Wiley & Sons, 376 U.S. at 547, 84 S.Ct. 909 (“[W]hether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” (quotation omitted) ); see also Rent-A-Center, 561 U.S. at 68–69, 130 S.Ct. 2772. Herrington's contract with Waterstone required arbitration of employment-related disputes “between them or arising out of their employment relationship.” But Herrington requested that the arbitration resolve not only the disputes “between them,” but also disputes between Waterstone and many other employees. Determining whether the agreement reflects the parties' consent to class or collective arbitration requires the decisionmaker to determine whether the parties agreed to arbitrate those disputes as well. And that is a gateway matter for the court to decide. See Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 297, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (explaining that a court may order arbitration of a dispute “only where the court is satisfied *509 that the parties agreed to arbitrate that dispute.”). Our final reason for treating the availability of a class or collective proceeding as a question of arbitrability is the most important. “Fundamental” questions belong in the “gateway” category, Reed Elsevier, 734 F.3d at 598, and the Supreme Court has repeatedly emphasized that the structural features of class arbitration make it a “fundamental” change from the norm of bilateral arbitration. Stolt-Nielsen, 559 U.S. at 686, 130 S.Ct. 1758; AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 347–50, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). In a class proceeding, the arbitrator “resolves many disputes between hundreds or perhaps even thousands of parties.” Stolt-Nielsen, 559 U.S. at 686, 130 S.Ct. 1758. And rather than binding only the parties to the arbitration, the arbitrator can now “adjudicate[ ] the rights of absent parties as well.” Id. These features—the size of the suit and its potential impact on absent class members—cause class arbitration to diverge sharply from the bilateral model. Collective arbitration causes similar divergence, even though members of the class are not absent. It too can involve hundreds of claimants, and those who opt in to the proceeding have no more control over the proceeding than completely absent class members would. See Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 635, 640 (7th Cir. 2011) (noting, with respect to a class action, that “[a]s a practical matter the representative's small stake means that lawyers are in charge, which creates a further need for the adjudicator to protect the class.”). Because of their distinct structure, class and collective arbitration require procedural rigor that bilateral arbitrations do not. Both involve the threshold decision whether to certify a class, and the arbitrator typically tracks Federal Rule of Civil Procedure 23 in making that choice. Thus, the arbitrator must investigate a variety of issues incidental to the parties' actual dispute, including whether the putative class is so numerous that joinder of all members is impracticable; whether there are questions of law or fact common to the class; whether the claims or defenses of the representative parties are typical of the claims or defenses of the class; and whether the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).7 And both class and collective arbitration typically involve extensive and contested efforts to notify absent class members of the proceedings. Because of these additional procedures, “the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” AT&T Mobility, 563 U.S. at 348, 131 S.Ct. 1740. 8 While parties to class or collective arbitration accept reduced efficiency, they continue to shoulder arbitration's primary detriment: a drastically narrowed ability to seek error correction through appellate review.8 The stakes of a class or collective *510 proceeding render the loss of appellate review particularly significant for the defendant. A defendant willing to accept the cost of error in a bilateral arbitration is not necessarily willing to accept it “when damages allegedly owed to tens of thousands of potential claimants are aggregated and decided at once.” Id. Here, for example, Waterstone's potential liability to Herrington was a fraction of the $10 million that the arbitrator awarded to the class as a whole. Transforming an individual dispute into a class or collective action “can turn a small claim into a whopping one.” Blue Cross Blue Shield, 671 F.3d at 640. When that whopping claim is arbitrated, the defendant might find itself “bet[ting] the company with no effective means of review” of either class certification or final judgment. AT&T Mobility, 563 U.S. at 351, 131 S.Ct. 1740. Of course, not every class or collective action will be a “bet the company” affair. It depends on the size of the class and the size of the company. But the availability of class or collective arbitration is either a threshold question of arbitrability or it isn't; classifying an issue as a “gateway” question does not depend on case-by-case analysis. Nor, in any event, is this question susceptible to case-by-case resolution. The size of the class—and therefore the amount at stake—does not take shape until the class is certified, and deciding whether the parties agreed to class or collective arbitration is antecedent to certification. 9 Herrington's primary argument against our treating the availability of class or collective arbitration as a question of arbitrability is that our precedent precludes it. We have held that an arbitrator may decide whether to consolidate multiple arbitrations into a single proceeding. See Blue Cross Blue Shield, 671 F.3d at 639–40; Employers Ins. Co. of Wausau v. Century Indem. Co., 443 F.3d 573, 581 (7th Cir. 2006).9 According to Herrington, certifying a class or collective action is functionally the same as consolidating proceedings; thus, we must treat them the same way. Herrington misreads our precedent, which expressly recognizes the difference between consolidating bilateral arbitrations and authorizing class arbitration. We explained in Blue Cross Blue Shield that class actions “always have been treated as special” because of numerous characteristics not present in consolidated arbitration. Blue Cross Blue Shield, 671 F.3d at 640. In class and collective actions, a “self-selected plaintiff represents others”; the rules entitle the represented parties “to protection from the representative's misconduct or incompetence”; there is often a *511 costly process to notify individual class members; the lawyers are effectively in charge of the process because of the representative plaintiff's small stake in the suit; and the class nature of the actions can dramatically increase the amount of money at stake. Id. We categorized the “[c]onsolidation of suits that are going to proceed anyway” as procedural precisely because it poses none of those same concerns. Id.; see also id. (“Consolidation of the plans' claims would not change the fundamental nature of arbitration.”).10 Blue Cross Blue Shield therefore strongly supports rather than precludes our conclusion that the availability of a class or collective proceeding is a question of arbitrability. * * * Because the district court erred in invalidating the waiver clause in the parties' arbitration agreement, we vacate the district court's order enforcing the arbitration award. On remand, the district court should conduct the threshold inquiry regarding class or collective arbitrability to determine whether Herrington's agreement with Waterstone authorizes the kind of arbitration that took place. If the district court determines that the agreement allows such an arbitration, our decision leaves the district court free to confirm the award. If, however, the district court determines that Herrington's agreement with Waterstone requires single-plaintiff arbitration, it should vacate the award and send the dispute to the arbitrator for a new proceeding.

Barrett

majority

Pamela Herrington filed class and collective actions against Waterstone Mortgage Corporation, her former employer, for wage and hour violations. The district court compelled arbitration pursuant to an agreement between Herrington and Waterstone, but it struck as unlawful a waiver clause that appeared to forbid class or collective arbitration of Herrington's claims. The arbitrator conducted a collective arbitration over Waterstone's objection and ultimately awarded more than $10 million in damages and fees to Herrington and 174 similarly situated employees. A recent Supreme Court decision has now put this award in doubt. In Epic Systems the Court upheld the validity of waiver provisions like the one in Herrington's agreement with Waterstone. If imposing collective arbitration on Waterstone violated that waiver, we must instruct the district court to vacate the award, which would put Herrington back at square one. But Herrington does not concede that the collective arbitration violated the waiver. In an attempt to save her award, she insists that her agreement with Waterstone affirmatively permits class or collective arbitration of her claims despite the presence of a valid waiver indicating otherwise. While this argument is weak, someone must evaluate it—and we must decide who has that job. If the availability of class or collective arbitration is a threshold question of arbitrability, the district court has to decide it. Otherwise, it falls to the arbitrator. For reasons we explain below, we conclude that the availability of class or collective arbitration is a threshold question of *504 arbitrability. On remand, the district court, rather than the arbitrator, must evaluate Herrington's contract with Waterstone to determine whether it permits class or collective arbitration. I. Pamela Herrington sued Waterstone Mortgage Corporation in federal court, asserting two claims. First, she alleged that Waterstone had failed to pay her minimum wages and overtime pay under the Fair Labor Standards Act. She brought that claim as a collective action under the Act, which meant that other employees could opt in to the lawsuit. (b). Second, she claimed that Waterstone had breached its contract with her. She brought that claim as a class action under Federal Rule of Civil Procedure 23, which meant that Herrington would represent a class of absent claimants unless they opted out. But Herrington had signed an agreement to arbitrate employment disputes, and Waterstone moved to enforce it. Herrington's employment agreement with Waterstone contained an arbitration clause, which provided in part: In the event that the parties cannot resolve a dispute by the [alternative dispute resolution] provisions contained herein, any dispute between the parties concerning the wages, hours, working conditions, terms, rights, responsibilities or obligations between them or arising out of their employment relationship shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association applicable to employment claims. Such arbitration may not be joined with or join or include any claims by any persons not party to this Agreement. Based on this language, Waterstone asked the district court to either dismiss the suit for lack of jurisdiction or stay it and compel arbitration. Herrington responded that the arbitration clause was unenforceable. She argued that the entire clause, which required her to pay half of the arbitration costs, was invalid because it imposed excessive costs on her. She also challenged the validity of the sentence waiving her right to join the claims of others in the proceeding. According to Herrington, this waiver violated both the Fair Labor Standards Act, which permits collective actions, and the National Labor Relations Act, which protects concerted activity. She did not contest Waterstone's position that her claims were within the scope of the waiver in the arbitration clause; indeed, her arguments under the Fair Labor Standards Act and National Labor Relations Act assumed that the waiver, if valid, would bar both class and collective arbitration. The court rejected Herrington's contention that the agreement to arbitrate was unenforceable. It said that Herrington had failed to show that the agreement imposed excessive costs on her because she “failed to show that arbitration would be any more expensive than litigation in federal court.” But it accepted her argument that the waiver in the arbitration agreement was unlawful. The Fair Labor Standards Act was not the problem; the court agreed with the many courts that have held that the Fair Labor Standards Act does not mandate the availability of collective arbitration. See, e.g., The National Labor Relations Act, however, was a different story. That Act gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and instructs employers not “to interfere with, restrain, or coerce employees in the *505 exercise of” that right, (a)(1). At the time the court ruled on Waterstone's motion to compel arbitration, the National Labor Relations Board had just decided that the right “to engage in other concerted activities for mutual aid or protection” includes the right to pursue claims collectively; accordingly, employers who condition employment on accepting arbitration agreements that waive class and collective actions violate that Act. In re D.R. Horton, Inc., enforcement denied in relevant part, D.R. Horton, Relying on the Board's decision, the court struck the sentence waiving Herrington's right to bring a class or collective proceeding in arbitration. It sent the parties to arbitration with an order unequivocally instructing the arbitrator that Herrington “must be allowed to join other employees to her case.” The court left it to the arbitrator to determine whether to accomplish that through joinder, an opt-in procedure similar to a collective action under the Fair Labor Standards Act, or an opt-out proceeding similar to a class action under Rule 23. Herrington asked for class arbitration, which is available only if the arbitration agreement contains evidence that the parties affirmatively consented to that procedure. Because class arbitration “fundamental[ly] changes” the nature of the proceeding, “the parties' mere silence on the issue of class-action arbitration” does not signify assent. at 686–87, The arbitrator had to find more. Waterstone argued that the waiver settled the question: the waiver prohibited class arbitration, so Waterstone had obviously not assented to it. The arbitrator rejected that argument, reasoning that he was bound to ignore the waiver because the district court had invalidated it. Yet even without the waiver, Waterstone contended, the agreement contained no evidence that the parties consented to class arbitration. The arbitrator rejected that argument as well, reasoning that the parties had agreed to class arbitration when they agreed to proceed under the rules of the American Arbitration Association “applicable to employment claims.” Waterstone maintained that this language incorporated only the general set of rules for employment claims, which are embodied in a rule-book titled “Employment Arbitration Rules and Mediation Procedures.” But the arbitrator interpreted it to also incorporate the Association's “Supplementary Rules for Class Arbitrations.” By incorporating both sets of rules, he said, the agreement authorized class arbitration. In passing, the arbitrator added that even if the waiver were intact, the agreement's incorporation of the Association's rules created an ambiguity that he would construe against Waterstone. He decided to proceed with a class arbitration modeled on Rule 23 but later switched to a collective arbitration that required additional claimants to opt in.1 Throughout the arbitration, Waterstone repeatedly asked the district court to reconsider its initial decision and to change various decisions that the arbitrator made along the way; those efforts were all unsuccessful. In the end, the arbitrator issued an award of over $10 million in damages and fees in favor of Herrington and 174 other claimants who had opted in to the proceeding. Waterstone appeals from the final judgment enforcing the arbitrator's *506 award, see arguing that because the waiver is valid, the collective arbitration violated Waterstone's agreement with Herrington. II. Herrington agreed to arbitrate employment disputes with Waterstone and that any “[s]uch arbitration may not be joined with or join or include any claims by any persons not party to this Agreement.” The first issue in this appeal is whether the district court incorrectly struck this waiver from the parties' arbitration agreement. Had we issued this opinion a year ago, the answer would be a simple “no.” The district court interpreted the National Labor Relations Act to prohibit agreements that require single-claimant arbitration of employment claims, and we later reached the same conclusion in an unrelated case. But the Supreme Court reversed our decision while Waterstone's appeal was pending. Epic Sys. After examining both the Federal Arbitration Act and the National Labor Relations Act, the Court held that an arbitration agreement does not violate the National Labor Relations Act's protection of “other concerted activities for mutual aid or protection” when it requires plaintiffs to pursue employment-related claims in single-claimant arbitrations. at 1624–29. Epic Systems means that the district court was wrong to treat the waiver in Herrington's agreement with Waterstone as unlawful. III. 1 The lawfulness of the waiver is the easy part of this appeal. The hard part is a question that Epic Systems does not address: what happens next? Epic Systems makes clear that a waiver of the right to proceed in a class or collective arbitration is val But someone has to interpret the arbitration agreement—this time, including the waiver—to determine whether it authorized the collective arbitration that occurred. One could reasonably wonder why the availability of collective arbitration is in dispute, given that Herrington agreed that her “arbitration may not be joined with or join or include any claims by any persons not party to this Agreement.” Indeed, until recently, Herrington herself assumed that this waiver, if enforceable, would require her to proceed in a bilateral arbitration.2 But she has now changed her tune: she claims that not-withstanding the waiver, the agreement reflects the parties' affirmative consent to class and collective arbitration. As implausible as this argument may be, either the court or the arbitrator has to settle it. We must decide which. 2 3 4 5 6 The choice between them turns on whether the availability of class or collective arbitration is a question of arbitrability, which the court decides, or a subsidiary issue, which goes to the arbitrator. Questions of arbitrability involve “gateway matters, such as whether parties have a valid arbitration agreement at all or whether a concededly binding arbitration *507 clause applies to a certain type of controversy.” Oxford Plans Subsidiary questions “grow out of the dispute and bear on its final disposition.” John Wiley & Whether the availability of class or collective arbitration is a gateway issue of arbitrability is an open question in our circuit. The Supreme Court has expressly reserved it, see Oxford n.2, ; Reed Inc. ex rel. LexisNexis ; Catamaran ; JPay, ; see also We agree.3 And while Herrington's arbitration with Waterstone was conducted as a collective rather than class proceeding, the forms are so closely related that the same analysis applies. See4 7 The availability of class or collective arbitration involves a foundational question of arbitrability: whether the potential parties to the arbitration agreed to arbitrate. See John Wiley & –47, When Herrington filed her putative class action and then sought to proceed in a class arbitration, she asked the court and then the arbitrator to resolve the claims of absent class members. By proposing that the arbitration include additional employees, Herrington raised the question whether those employees had agreed to submit their claims against Waterstone to arbitration, not to mention whether Waterstone had agreed to arbitrate rather than litigate with them. See –33 (holding that the availability of class arbitration is a question of arbitrability because it “affects whose claims may be arbitrated”).5 To be sure, an opt-in procedure—in contrast to an opt-out procedure—ensures that absent class members consent to the arbitration of their claims. See Oxford –75, (Alito, J., concurring). But it does not avoid the arbitrability question, because an opt-in claimant's willingness to arbitrate with the defendant does not establish that the defendant agreed to arbitrate with the opt-in claimant.6 The Supreme Court has emphasized that “parties may specify with whom they choose to arbitrate their disputes.” Deciding whether Herrington's agreement with Waterstone permits class or collective arbitration requires the adjudicator to determine whether Waterstone agreed to arbitrate not only with Herrington, but also with members of her proposed class. It thus resolves the foundational question of “with whom” Waterstone chose to arbitrate. See Deciding whether a contract permits class or collective arbitration involves a second (and in this case, related) question of arbitrability: whether the agreement to arbitrate covers a particular controversy. See John Wiley & (“[W]hether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” (quotation omitted) ); see also –69, Herrington's contract with Waterstone required arbitration of employment-related disputes “between them or arising out of their employment relationship.” But Herrington requested that the arbitration resolve not only the disputes “between them,” but also disputes between Waterstone and many other employees. Determining whether the agreement reflects the parties' consent to class or collective arbitration requires the decisionmaker to determine whether the parties agreed to arbitrate those disputes as well. And that is a gateway matter for the court to decide. See Granite Rock Our final reason for treating the availability of a class or collective proceeding as a question of arbitrability is the most important. “Fundamental” questions belong in the “gateway” category, Reed and the Supreme Court has repeatedly emphasized that the structural features of class arbitration make it a “fundamental” change from the norm of bilateral arbitration. In a class proceeding, the arbitrator “resolves many disputes between hundreds or perhaps even thousands of parties.” And rather than binding only the parties to the arbitration, the arbitrator can now “adjudicate[ ] the rights of absent parties as well.” These features—the size of the suit and its potential impact on absent class members—cause class arbitration to diverge sharply from the bilateral model. Collective arbitration causes similar divergence, even though members of the class are not absent. It too can involve hundreds of claimants, and those who opt in to the proceeding have no more control over the proceeding than completely absent class members would. See Blue Cross Blue of Mass., Because of their distinct structure, class and collective arbitration require procedural rigor that bilateral arbitrations do not. Both involve the threshold decision whether to certify a class, and the arbitrator typically tracks Federal Rule of Civil Procedure 23 in making that choice. Thus, the arbitrator must investigate a variety of issues incidental to the parties' actual dispute, including whether the putative class is so numerous that joinder of all members is impracticable; whether there are questions of law or fact common to the class; whether the claims or defenses of the representative parties are typical of the claims or defenses of the class; and whether the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).7 And both class and collective arbitration typically involve extensive and contested efforts to notify absent class members of the proceedings. Because of these additional procedures, “the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” AT&T 8 While parties to class or collective arbitration accept reduced efficiency, they continue to shoulder arbitration's primary detriment: a drastically narrowed ability to seek error correction through appellate review.8 The stakes of a class or collective *510 proceeding render the loss of appellate review particularly significant for the defendant. A defendant willing to accept the cost of error in a bilateral arbitration is not necessarily willing to accept it “when damages allegedly owed to tens of thousands of potential claimants are aggregated and decided at once.” Here, for example, Waterstone's potential liability to Herrington was a fraction of the $10 million that the arbitrator awarded to the class as a whole. Transforming an individual dispute into a class or collective action “can turn a small claim into a whopping one.” Blue Cross Blue 671 F.3d at When that whopping claim is arbitrated, the defendant might find itself “bet[ting] the company with no effective means of review” of either class certification or final judgment. AT&T Of course, not every class or collective action will be a “bet the company” affair. It depends on the size of the class and the size of the company. But the availability of class or collective arbitration is either a threshold question of arbitrability or it isn't; classifying an issue as a “gateway” question does not depend on case-by-case analysis. Nor, in any event, is this question susceptible to case-by-case resolution. The size of the class—and therefore the amount at stake—does not take shape until the class is certified, and deciding whether the parties agreed to class or collective arbitration is antecedent to certification. 9 Herrington's primary argument against our treating the availability of class or collective arbitration as a question of arbitrability is that our precedent precludes it. We have held that an arbitrator may decide whether to consolidate multiple arbitrations into a single proceeding. See Blue Cross Blue –40; Employers Ins. Co. of9 According to Herrington, certifying a class or collective action is functionally the same as consolidating proceedings; thus, we must treat them the same way. Herrington misreads our precedent, which expressly recognizes the difference between consolidating bilateral arbitrations and authorizing class arbitration. We explained in Blue Cross Blue that class actions “always have been treated as special” because of numerous characteristics not present in consolidated arbitration. Blue Cross Blue 671 F.3d at In class and collective actions, a “self-selected plaintiff represents others”; the rules entitle the represented parties “to protection from the representative's misconduct or incompetence”; there is often a *511 costly process to notify individual class members; the lawyers are effectively in charge of the process because of the representative plaintiff's small stake in the suit; and the class nature of the actions can dramatically increase the amount of money at stake. We categorized the “[c]onsolidation of suits that are going to proceed anyway” as procedural precisely because it poses none of those same concerns. ; see also10 Blue Cross Blue therefore strongly supports rather than precludes our conclusion that the availability of a class or collective proceeding is a question of arbitrability. * * * Because the district court erred in invalidating the waiver clause in the parties' arbitration agreement, we vacate the district court's order enforcing the arbitration award. On remand, the district court should conduct the threshold inquiry regarding class or collective arbitrability to determine whether Herrington's agreement with Waterstone authorizes the kind of arbitration that took place. If the district court determines that the agreement allows such an arbitration, our decision leaves the district court free to confirm the award. If, however, the district court determines that Herrington's agreement with Waterstone requires single-plaintiff arbitration, it should vacate the award and send the dispute to the arbitrator for a new proceeding.

J.S.T. Corporation v. Foxconn Interconnect Technology Ltd.

J.S.T. Corporation, which is based in Illinois, produces a type of electronic equipment called a connector. Bosch, an engineering company, asked J.S.T. to design and manufacture a connector that Bosch could incorporate into a part that it builds for General Motors. For a time, Bosch retained J.S.T. as its sole supplier of those connectors. Then, according to J.S.T., Bosch wrongfully acquired J.S.T.’s proprietary designs and provided them to J.S.T.’s competitors. The competitors used the stolen designs—allegedly with full knowledge of their provenance—to build their own knockoff connectors and eventually to displace J.S.T. from its role as Bosch's supplier. After filing various lawsuits against Bosch, J.S.T. filed this suit in Illinois against the competitors, alleging misappropriation of trade secrets and unjust enrichment. The district court dismissed the case for lack of personal jurisdiction. The competitors’ only link to Illinois is that they *574 sell their connectors to Bosch, knowing that the connectors will end up in General Motors cars and parts that are sold in Illinois. For personal jurisdiction to exist, though, there must be a causal relationship between the competitors’ dealings in Illinois and the claims that J.S.T. has asserted against them. Because no such causal relationship exists, we affirm the judgment of the district court. I. We draw the facts in this case from the well-pleaded allegations in J.S.T.’s complaint. be2 LLC v. Ivanov, 642 F.3d 555, 556 (7th Cir. 2011). And as we must for a case in this posture, we assume the truth of the facts that J.S.T. alleges. uBid, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423–24 (7th Cir. 2010). What follows, then, is the story as J.S.T. tells it. In 2005, General Motors retained engineering company Bosch to build a “body control module” for some of its cars. A body control module is essentially a computer system that controls certain electronic functions inside a car, like its locks and its power windows. To build the body control module, Bosch required a “183-pin connector”—an electrical adapter that can connect 183 electrical circuits. Bosch turned to Illinois company J.S.T. Corporation for the task. J.S.T. accepted the contract and designed and built for Bosch a 183-pin connector. J.S.T.’s connectors performed well in Bosch's body control modules, and for years, Bosch retained J.S.T. as its sole supplier of the product. Then Bosch took advantage of its relationship with J.S.T. Bosch tricked J.S.T. into handing over its proprietary design specifications and drawings for its 183-pin connectors, falsely representing that General Motors needed them and that Bosch would keep them confidential. Instead, Bosch gave those designs to some of J.S.T.’s competitors based in the United States and abroad, presumably hoping that the competitors could make an identical product more cheaply. The competitors accepted the wrongfully acquired designs with full knowledge of their source and then used those designs to produce their own knockoff 183-pin connectors. Upon learning what Bosch had done, J.S.T. stopped building 183-pin connectors for Bosch, and the competitors displaced J.S.T. from its role as Bosch's supplier. J.S.T. filed several lawsuits against Bosch and the competitors. It first sued Bosch for misappropriation of trade secrets in Michigan, where Bosch is headquartered. That lawsuit remains pending. Next, J.S.T. sued Bosch and the competitors for patent infringement, both in Illinois and at the International Trade Commission. Those lawsuits are also ongoing. Finally, J.S.T. filed the present suit in Illinois against several of the competitors—TE Connectivity Corporation, known as TEC, and a group of related companies under the umbrella of Foxconn. The suit alleges misappropriation of trade secrets under the Illinois Trade Secrets Act, 765 ILCS 1065/1, and unjust enrichment. TEC and the Foxconn companies moved to dismiss for lack of personal jurisdiction. They emphasized that none of the defendants is headquartered in Illinois or has its primary place of business there. In fact, only two of the Foxconn companies even have an office in Illinois, and neither office is involved in producing the connector at issue. Further, none of the defendants manufactured the 183-pin connectors in Illinois, nor did they sell them in Illinois. Instead, they sold the connectors to Bosch in Texas and in China, where Bosch put them into body control modules that it sold to General Motors. The only relevant connection to Illinois is that General Motors incorporates some of those body control *575 modules into cars and sets some aside to be sold as spare auto parts. General Motors then sells those cars and parts to authorized dealers for distribution nationwide, including in Illinois. The defendants argued that this connection is too attenuated to support personal jurisdiction over them. The district court agreed and dismissed the suit under Federal Rule of Civil Procedure 12(b)(2), holding that J.S.T. had failed to make a prima facie showing of facts that would support personal jurisdiction in Illinois. See Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). J.S.T. now appeals. II. 1 2 The federal district court's jurisdiction over J.S.T.’s state-law claims is circumscribed by both Illinois law and the U.S. Constitution. Matlin v. Spin Master Corp., 921 F.3d 701, 705 (7th Cir. 2019); see Fed. R. Civ. P. 4(k)(1)(A). The parties agree that the Illinois long-arm statute, 735 ILCS 5/2-209(c), is coextensive with the Federal Constitution's Due Process Clause. See Matlin, 921 F.3d at 705. We therefore ask only whether the exercise of jurisdiction comports with federal due process. 3 4 5 6 There are two types of personal jurisdiction: general and specific. General jurisdiction permits a defendant to be sued in a particular forum for any claim, regardless of whether the claim has any connection to the forum state. Lexington Ins. Co. v. Hotai Ins. Co., 938 F.3d 874, 878 (7th Cir. 2019). For a court to exercise general jurisdiction over an out-of-state defendant, the defendant's connection to the forum state must be “so ‘continuous and systematic’ as to render [it] essentially at home” there. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (citation omitted). By contrast, specific jurisdiction “is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” Id. (citation omitted). J.S.T. concedes that the defendants lack a sufficient relationship with Illinois to permit general jurisdiction. The only question before us is whether the district court had specific personal jurisdiction over this particular controversy. 7 8 J.S.T. contends that the defendants are subject to specific jurisdiction in Illinois because cars and parts containing their knockoff connectors are sold to consumers in Illinois. To make this argument, J.S.T. relies on the “stream of commerce” theory first articulated by the Supreme Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), a case about personal jurisdiction over a products liability suit for personal injury. That theory posits that personal jurisdiction may be appropriate over “a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. Since World-Wide Volkswagen, the viability of the stream of commerce theory has been uncertain; circuit courts have split on the issue and the Supreme Court has twice failed to resolve it conclusively. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). J.S.T. is correct that our circuit is among those that apply the stream of commerce theory in products liability cases. In the absence of intervening guidance from the Supreme Court, we have reasoned that the Court adopted the stream of commerce theory in World-Wide Volkswagen and has not overruled it since. *576 Dehmlow v. Austin Fireworks, 963 F.2d 941, 946–47 (7th Cir. 1992); see also Jennings v. AC Hydraulic A/S, 383 F.3d 546, 550 & n.2 (7th Cir. 2004) (affirming Dehmlow while acknowledging that Asahi left the issue unresolved by the Supreme Court). On that basis, we have found personal jurisdiction in a products liability suit because a defendant sold fireworks to a middleman “with the knowledge that its fireworks would reach Illinois consumers in the stream of commerce.” Dehmlow, 963 F.2d at 947. 9 10 But J.S.T. fails to acknowledge that there is a reason why the stream of commerce theory is typically associated only with products liability suits. In the context of products liability, downstream sales to consumers can support personal jurisdiction because they bear on “the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) (emphasis added) (citation omitted). Specific jurisdiction requires not only that a defendant establish minimum contacts with the forum state, but also that the litigation arise out of those contacts. Lexington Ins. Co., 938 F.3d at 878. In a products liability suit, the underlying litigation alleges the development of a product that harms consumers. Thus, when a defendant takes steps to reach consumers in a forum state, it has created a relationship with the forum state that has special relevance to the litigation at issue. The stream of commerce theory contemplates that a defendant's product may go through middlemen before reaching consumers, but the point of consumer sale remains relevant to the relationship between the defendant, the forum, and the consumer-injury litigation. But the point of consumer sale will not have the same relevance to specific jurisdiction in every suit. Bristol-Myers Squibb Co. v. Superior Court, ––– U.S. ––––, 137 S. Ct. 1773, 1781, 198 L.Ed.2d 395 (2017) (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.” (citation omitted)). For the point of consumer sale to be as relevant to this litigation as it is to products liability suits, there must also be a connection here between downstream consumer sales and J.S.T.’s underlying claims. See Curry v. Revolution Labs., LLC, 949 F.3d 385, 400–02 (7th Cir. 2020); Illinois v. Hemi Grp. LLC, 622 F.3d 754, 759 (7th Cir. 2010). If there is only an attenuated connection between J.S.T.’s claims and the downstream sales in Illinois, then these claims cannot be adjudicated in this forum. See, e.g., Matlin, 921 F.3d at 706; Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801–02 (7th Cir. 2014). 11 The parties focus on J.S.T.’s claim that the defendants misappropriated J.S.T.’s trade secrets, so we'll begin there too. Unlike products liability, the tort of trade secret misappropriation is not intrinsically linked to interactions with a consumer. Trade secret law is not like trademark law, in which consumer confusion can be at the heart of the underlying claim. Cf. Curry, 949 F.3d at 400–02. Nor is it like patent law, in which the sale of a patented invention to a consumer can be an act of infringement, even if the seller is unaware of the patent. 35 U.S.C. § 271(a); Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 761 n.2, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011); cf. Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir. 1975) (finding personal jurisdiction over a patent infringement claim on the basis of downstream sales). Instead, under Illinois law, trade secret misappropriation is the unauthorized acquisition, disclosure, or use of a trade secret by a person who knows or has reason to know that the secret was improperly acquired. *577 765 ILCS 1065/2(b).1 The knowing acquisition, disclosure, and use of a secret are all actions that can be completed long before an offending product ever comes into contact with a consumer. And here, if the defendants knowingly acquired, disclosed, or used J.S.T.’s trade secrets anywhere, it was not in Illinois. They did not receive the stolen designs and drawings from Bosch in Illinois. They neither designed nor manufactured their knockoffs in Illinois. And assuming that the defendants’ sale of their connectors counted as a “use” of a trade secret, the defendants only sold their products to Bosch at its facilities in Texas and China. Bosch then sold the products to General Motors, which sold to consumers in Illinois and else-where.2 Because the defendants themselves did not acquire, disclose, or use J.S.T.’s trade secrets in Illinois, the link between the Illinois sales and their misappropriation of J.S.T.’s trade secrets is attenuated. J.S.T.’s attempt to tighten that link fails to persuade us. J.S.T. contends that consumer sales in Illinois bear on trade secret misappropriation just as they bear on products liability suits for personal injury. Its argument proceeds in two steps. First, J.S.T. posits that a contact—here, downstream sales—is relevant to the underlying claim if it tracks one of the “elements” of the claim that “establish liability.” See Young v. Colgate-Palmolive Co., 790 F.2d 567, 570 (7th Cir. 1986). Second, it notes that Illinois courts have said, “[T]he three elements of trade secret misappropriation ... are: (1) a trade secret existed; (2) the secret was misappropriated ...; and (3) the owner of the trade secret was damaged by the misappropriation.” Liebert Corp. v. Mazur, 357 Ill.App.3d 265, 293 Ill.Dec. 28, 827 N.E.2d 909, 925 (2005) (citation omitted). J.S.T. contends that the downstream consumer sales in Illinois damaged its bottom line, thereby satisfying the third element of the tort. And, J.S.T. says, a state in which an element of a tort is satisfied necessarily has a close relationship to litigation concerning that tort. 12 13 14 While clever, this argument has problems. To begin with, J.S.T.’s focus on the damages element is in tension with the admonition in Walden that “it is the defendant's conduct,” not the plaintiff's injury, “that must form the necessary connection with the forum State.” 134 S. Ct. at 1122 (emphasis added). It is true that courts look to the elements of a tort in determining whether a plaintiff's claims arise out of a defendant's contacts. Id. at 1124; Young, 790 F.2d at 570. And here, J.S.T. is right that damage to the plaintiff is an element of the tort of trade secret misappropriation. (That's hardly surprising, given that harm to the plaintiff is a classic element of every tort.) But our *578 interest in the elements of a tort is not a mechanical scan for anything that courts label an “element.” Instead, we consider the elements of the underlying tort for the light that they cast on “the relationship between the defendant, the forum, and the litigation.” Walden, 134 S. Ct. at 1121 (citation omitted). In that inquiry, our core focus is always on the defendants’ conduct, not the plaintiff's damages. J.S.T. therefore has framed the issue incorrectly. Contrary to its argument, the fact that damages are an element of the alleged tort does not necessarily mean that personal jurisdiction exists in any state where that element is satisfied. When we put the focus where it should be—on the defendants’ conduct—it becomes clear why J.S.T.’s argument fails. The defendants harmed J.S.T. both by illicitly using J.S.T.’s designs to turn a profit and by displacing J.S.T. as Bosch's supplier. Both harms flowed from the defendants’ sales to Bosch, which were the source of the defendants’ ill-gotten gains, as well as the reason for J.S.T.’s lost opportunity. General Motors’ sales to Illinois consumers are relevant only insofar as demand for General Motors’ cars helped drive demand for Bosch parts, and, in turn, for the defendants’ connectors. But Illinois consumers have virtually nothing to do with the defendants’ interactions with Bosch, which are the foundation of J.S.T.’s trade secret claim. Because the downstream sales to Illinois consumers have only an attenuated relationship to this litigation, those sales do not entitle Illinois courts to adjudicate the defendants’ liability for misappropriating J.S.T.’s drawings. 15 J.S.T. raised another claim in its complaint: unjust enrichment.3 But the sales to consumers in Illinois are not sufficient to establish personal jurisdiction for this claim either. If the defendants had made money in Illinois from J.S.T.’s drawings, then we might be able to conclude that J.S.T.’s unjust enrichment claim arose from those downstream sales. But the defendants were not enriched by those sales. The enriching sales were the defendants’ sales to Bosch, which took place at Bosch's locations in China and Texas. The connection between J.S.T.’s unjust enrichment claim and the downstream sales in Illinois of General Motors products is thus too attenuated to support personal jurisdiction over the defendants. Neither of J.S.T.’s claims arise out of the defendants’ contacts in Illinois, so the district court's dismissal for lack of personal jurisdiction is AFFIRMED.

Barrett

majority

J.S.T. Corporation, which is based in Illinois, produces a type of electronic equipment called a connector. Bosch, an engineering company, asked J.S.T. to design and manufacture a connector that Bosch could incorporate into a part that it builds for General Motors. For a time, Bosch retained J.S.T. as its sole supplier of those connectors. Then, according to J.S.T., Bosch wrongfully acquired J.S.T.’s proprietary designs and provided them to J.S.T.’s competitors. The competitors used the stolen designs—allegedly with full knowledge of their provenance—to build their own knockoff connectors and eventually to displace J.S.T. from its role as Bosch's supplier. After filing various lawsuits against Bosch, J.S.T. filed this suit in Illinois against the competitors, alleging misappropriation of trade secrets and unjust enrichment. The district court dismissed the case for lack of personal jurisdiction. The competitors’ only link to Illinois is that they *574 sell their connectors to Bosch, knowing that the connectors will end up in General Motors cars and parts that are sold in Illinois. For personal jurisdiction to exist, though, there must be a causal relationship between the competitors’ dealings in Illinois and the claims that J.S.T. has asserted against them. Because no such causal relationship exists, we affirm the judgment of the district court. I. We draw the facts in this case from the well-pleaded allegations in J.S.T.’s complaint. be2 And as we must for a case in this posture, we assume the truth of the facts that J.S.T. alleges. uBid, What follows, then, is the story as J.S.T. tells it. In General Motors retained engineering company Bosch to build a “body control module” for some of its cars. A body control module is essentially a computer system that controls certain electronic functions inside a car, like its locks and its power windows. To build the body control module, Bosch required a “183-pin connector”—an electrical adapter that can connect 183 electrical circuits. Bosch turned to Illinois company J.S.T. Corporation for the task. J.S.T. accepted the contract and designed and built for Bosch a 183-pin connector. J.S.T.’s connectors performed well in Bosch's body control modules, and for years, Bosch retained J.S.T. as its sole supplier of the product. Then Bosch took advantage of its relationship with J.S.T. Bosch tricked J.S.T. into handing over its proprietary design specifications and drawings for its 183-pin connectors, falsely representing that General Motors needed them and that Bosch would keep them confidential. Instead, Bosch gave those designs to some of J.S.T.’s competitors based in the United States and abroad, presumably hoping that the competitors could make an identical product more cheaply. The competitors accepted the wrongfully acquired designs with full knowledge of their source and then used those designs to produce their own knockoff 183-pin connectors. Upon learning what Bosch had done, J.S.T. stopped building 183-pin connectors for Bosch, and the competitors displaced J.S.T. from its role as Bosch's supplier. J.S.T. filed several lawsuits against Bosch and the competitors. It first sued Bosch for misappropriation of trade secrets in Michigan, where Bosch is headquartered. That lawsuit remains pending. Next, J.S.T. sued Bosch and the competitors for patent infringement, both in Illinois and at the International Trade Commission. Those lawsuits are also ongoing. Finally, J.S.T. filed the present suit in Illinois against several of the competitors—TE Connectivity Corporation, known as TEC, and a group of related companies under the umbrella of Foxconn. The suit alleges misappropriation of trade secrets under the Illinois Trade Secrets Act, 765 ILCS 1065/1, and unjust enrichment. TEC and the Foxconn companies moved to dismiss for lack of personal jurisdiction. They emphasized that none of the defendants is headquartered in Illinois or has its primary place of business there. In fact, only two of the Foxconn companies even have an office in Illinois, and neither office is involved in producing the connector at issue. Further, none of the defendants manufactured the 183-pin connectors in Illinois, nor did they sell them in Illinois. Instead, they sold the connectors to Bosch in Texas and in China, where Bosch put them into body control modules that it sold to General Motors. The only relevant connection to Illinois is that General Motors incorporates some of those body control *575 modules into cars and sets some aside to be sold as spare auto parts. General Motors then sells those cars and parts to authorized dealers for distribution nationwide, including in Illinois. The defendants argued that this connection is too attenuated to support personal jurisdiction over them. The district court agreed and dismissed the suit under Federal Rule of Civil Procedure 12(b)(2), holding that J.S.T. had failed to make a prima facie showing of facts that would support personal jurisdiction in Illinois. See J.S.T. now appeals. II. 1 2 The federal district court's jurisdiction over J.S.T.’s state-law claims is circumscribed by both Illinois law and the U.S. Constitution. ; see Fed. R. Civ. P. 4(k)(1)(A). The parties agree that the Illinois long-arm statute, 735 ILCS 5/2-209(c), is coextensive with the Federal Constitution's Due Process Clause. See 921 F.3d at We therefore ask only whether the exercise of jurisdiction comports with federal due process. 3 4 5 6 There are two types of personal jurisdiction: general and specific. General jurisdiction permits a defendant to be sued in a particular forum for any claim, regardless of whether the claim has any connection to the forum state. Lexington Ins. For a court to exercise general jurisdiction over an out-of-state defendant, the defendant's connection to the forum state must be “so ‘continuous and systematic’ as to render [it] essentially at home” there. Goodyear Dunlop Tires Operations, By contrast, specific jurisdiction “is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” J.S.T. concedes that the defendants lack a sufficient relationship with Illinois to permit general jurisdiction. The only question before us is whether the district court had specific personal jurisdiction over this particular controversy. 7 8 J.S.T. contends that the defendants are subject to specific jurisdiction in Illinois because cars and parts containing their knockoff connectors are sold to consumers in Illinois. To make this argument, J.S.T. relies on the “stream of commerce” theory first articulated by the Supreme Court in World-Wide Volkswagen a case about personal jurisdiction over a products liability suit for personal injury. That theory posits that personal jurisdiction may be appropriate over “a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Since World-Wide Volkswagen, the viability of the stream of commerce theory has been uncertain; circuit courts have split on the issue and the Supreme Court has twice failed to resolve it conclusively. J. McIntyre Mach., ; Asahi Metal Indus. J.S.T. is correct that our circuit is among those that apply the stream of commerce theory in products liability cases. In the absence of intervening guidance from the Supreme Court, we have reasoned that the Court adopted the stream of commerce theory in World-Wide Volkswagen and has not overruled it since. *576 ; see also On that basis, we have found personal jurisdiction in a products liability suit because a defendant sold fireworks to a middleman “with the knowledge that its fireworks would reach Illinois consumers in the stream of commerce.” Dehmlow, 9 10 But J.S.T. fails to acknowledge that there is a reason why the stream of commerce theory is typically associated only with products liability suits. In the context of products liability, downstream sales to consumers can support personal jurisdiction because they bear on “the relationship among the defendant, the forum, and the litigation.” Specific jurisdiction requires not only that a defendant establish minimum contacts with the forum state, but also that the litigation arise out of those contacts. Lexington Ins. 938 F.3d at In a products liability suit, the underlying litigation alleges the development of a product that harms consumers. Thus, when a defendant takes steps to reach consumers in a forum state, it has created a relationship with the forum state that has special relevance to the litigation at issue. The stream of commerce theory contemplates that a defendant's product may go through middlemen before reaching consumers, but the point of consumer sale remains relevant to the relationship between the defendant, the forum, and the consumer-injury litigation. But the point of consumer sale will not have the same relevance to specific jurisdiction in every suit. Bristol-Myers Squibb ––– U.S. ––––, (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.” ). For the point of consumer sale to be as relevant to this litigation as it is to products liability suits, there must also be a connection here between downstream consumer sales and J.S.T.’s underlying claims. See ; If there is only an attenuated connection between J.S.T.’s claims and the downstream sales in Illinois, then these claims cannot be adjudicated in this forum. See, e.g., ; Advanced Tactical Ordnance Sys., 11 The parties focus on J.S.T.’s claim that the defendants misappropriated J.S.T.’s trade secrets, so we'll begin there too. Unlike products liability, the tort of trade secret misappropriation is not intrinsically linked to interactions with a consumer. Trade secret law is not like trademark law, in which consumer confusion can be at the heart of the underlying claim. Cf. 949 F.3d at Nor is it like patent law, in which the sale of a patented invention to a consumer can be an act of infringement, even if the seller is unaware of the patent. (a); Glob.-Tech Appliances, ; cf. Honeywell, Instead, under Illinois law, trade secret misappropriation is the unauthorized acquisition, disclosure, or use of a trade secret by a person who knows or has reason to know that the secret was improperly acquired. *577 765 ILCS 1065/2(b).1 The knowing acquisition, disclosure, and use of a secret are all actions that can be completed long before an offending product ever comes into contact with a consumer. And here, if the defendants knowingly acquired, disclosed, or used J.S.T.’s trade secrets anywhere, it was not in Illinois. They did not receive the stolen designs and drawings from Bosch in Illinois. They neither designed nor manufactured their knockoffs in Illinois. And assuming that the defendants’ sale of their connectors counted as a “use” of a trade secret, the defendants only sold their products to Bosch at its facilities in Texas and China. Bosch then sold the products to General Motors, which sold to consumers in Illinois and else-where.2 Because the defendants themselves did not acquire, disclose, or use J.S.T.’s trade secrets in Illinois, the link between the Illinois sales and their misappropriation of J.S.T.’s trade secrets is attenuated. J.S.T.’s attempt to tighten that link fails to persuade us. J.S.T. contends that consumer sales in Illinois bear on trade secret misappropriation just as they bear on products liability suits for personal injury. Its argument proceeds in two steps. First, J.S.T. posits that a contact—here, downstream sales—is relevant to the underlying claim if it tracks one of the “elements” of the claim that “establish liability.” See v. Colgate-Palmolive Second, it notes that Illinois courts have said, “[T]he three elements of trade secret misappropriation are: (1) a trade secret existed; (2) the secret was misappropriated; and (3) the owner of the trade secret was damaged by the misappropriation.” Liebert J.S.T. contends that the downstream consumer sales in Illinois damaged its bottom line, thereby satisfying the third element of the tort. And, J.S.T. says, a state in which an element of a tort is satisfied necessarily has a close relationship to litigation concerning that tort. 12 13 14 While clever, this argument has problems. To begin with, J.S.T.’s focus on the damages element is in tension with the admonition in Walden that “it is the defendant's conduct,” not the plaintiff's injury, “that must form the necessary connection with the forum State.” It is true that courts look to the elements of a tort in determining whether a plaintiff's claims arise out of a defendant's contacts. ; 790 F.2d at And here, J.S.T. is right that damage to the plaintiff is an element of the tort of trade secret misappropriation. (That's hardly surprising, given that harm to the plaintiff is a classic element of every tort.) But our *578 interest in the elements of a tort is not a mechanical scan for anything that courts label an “element.” Instead, we consider the elements of the underlying tort for the light that they cast on “the relationship between the defendant, the forum, and the litigation.” Walden, 134 S. Ct. at In that inquiry, our core focus is always on the defendants’ conduct, not the plaintiff's damages. J.S.T. therefore has framed the issue incorrectly. Contrary to its argument, the fact that damages are an element of the alleged tort does not necessarily mean that personal jurisdiction exists in any state where that element is satisfied. When we put the focus where it should be—on the defendants’ conduct—it becomes clear why J.S.T.’s argument fails. The defendants harmed J.S.T. both by illicitly using J.S.T.’s designs to turn a profit and by displacing J.S.T. as Bosch's supplier. Both harms flowed from the defendants’ sales to Bosch, which were the source of the defendants’ ill-gotten gains, as well as the reason for J.S.T.’s lost opportunity. General Motors’ sales to Illinois consumers are relevant only insofar as demand for General Motors’ cars helped drive demand for Bosch parts, and, in turn, for the defendants’ connectors. But Illinois consumers have virtually nothing to do with the defendants’ interactions with Bosch, which are the foundation of J.S.T.’s trade secret claim. Because the downstream sales to Illinois consumers have only an attenuated relationship to this litigation, those sales do not entitle Illinois courts to adjudicate the defendants’ liability for misappropriating J.S.T.’s drawings. 15 J.S.T. raised another claim in its complaint: unjust enrichment.3 But the sales to consumers in Illinois are not sufficient to establish personal jurisdiction for this claim either. If the defendants had made money in Illinois from J.S.T.’s drawings, then we might be able to conclude that J.S.T.’s unjust enrichment claim arose from those downstream sales. But the defendants were not enriched by those sales. The enriching sales were the defendants’ sales to Bosch, which took place at Bosch's locations in China and Texas. The connection between J.S.T.’s unjust enrichment claim and the downstream sales in Illinois of General Motors products is thus too attenuated to support personal jurisdiction over the defendants. Neither of J.S.T.’s claims arise out of the defendants’ contacts in Illinois, so the district court's dismissal for lack of personal jurisdiction is AFFIRMED.

Kanter v. Barr

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. 18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments' undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.1 I. At the outset, it is worth clarifying a conceptual point. There are competing ways of approaching the constitutionality of gun dispossession laws. Some maintain that there are certain groups of people—for example, violent felons—who fall entirely outside the Second Amendment’s scope. See, e.g., Binderup v. Attorney Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (“[T]he *452 Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among ‘the people’ entitled to keep and bear arms.”). Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1497–98 (2009) (describing these competing views). These approaches will typically yield the same result; one uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature’s power to take it away. In my view, the latter is the better way to approach the problem. It is one thing to say that certain weapons or activities fall outside the scope of the right. See District of Columbia v. Heller, 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (explaining that “the sorts of weapons protected were those ‘in common use at the time’ ” (citation omitted)); Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017) (Ezell II) (“[I]f ... the challenged law regulates activity falling outside the scope of the right as originally understood, then ‘the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.’ ” (citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Ezell I) (drawing an analogy between categories of speech, like obscenity, that fall outside the First Amendment and activities that fall outside the Second Amendment). It is another thing to say that certain people fall outside the Amendment’s scope. Arms and activities would always be in or out. But a person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status. No state action would be required. To be sure, under this theory such a person could possess a gun as a matter of legislative grace. But he would lack standing to assert constitutional claims that other citizens could assert. For example, imagine that a legislature disqualifies those convicted of crimes of domestic violence from possessing a gun for a period of ten years following release from prison. See United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010) (en banc) (holding constitutional 18 U.S.C. § 922(g)(9), which forbids those convicted of crimes of domestic violence to possess a gun). After fifteen years pass, a domestic violence misdemeanant challenges a handgun ban identical to the one that the Court held unconstitutional in Heller. Despite the legislative judgment that such a person could safely possess a gun after ten years, a court would still have to determine whether the person had standing to assert a Second Amendment claim. If the justification for the initial deprivation is that the person falls outside the protection of the Second Amendment, it doesn't matter if the statutory disqualification expires. If domestic violence misdemeanants are out, they're out.2 That is an unusual way of thinking about rights. In other contexts that involve the loss of a right, the deprivation occurs because of state action, and state action determines the scope of the loss (subject, of course, to any applicable constitutional *453 constraints). Felon voting rights are a good example: a state can disenfranchise felons, but if it refrains from doing so, their voting rights remain constitutionally protected.3 So too with the right to keep and bear arms: a state can disarm certain people (for example, those convicted of crimes of domestic violence), but if it refrains from doing so, their rights remain constitutionally protected. In other words, a person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it. In addition to being analytically awkward, the “scope of the right” approach is at odds with Heller itself. There, the Court interpreted the word “people” as referring to “all Americans.” 554 U.S. at 580–81, 128 S.Ct. 2783; see also id. at 580, 128 S.Ct. 2783 (asserting that “the people” “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” (citation omitted)). Neither felons nor the mentally ill are categorically excluded from our national community. That does not mean that the government cannot prevent them from possessing guns. Instead, it means that the question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all. Thus, I treat Kanter as falling within the scope of the Second Amendment and ask whether Congress and Wisconsin can nonetheless prevent him from possessing a gun. II. Heller did not “undertake an exhaustive historical analysis ... of the full scope of the Second Amendment,” but it did offer a list of “presumptively lawful regulatory measures,” including “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” See Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783. Like the majority, I am “reluctant to place more weight on these passing references than the Court itself did.” See Maj. Op. at 445 (quoting United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015)). The constitutionality of felon dispossession was not before the Court in Heller, and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear. For example, does “presumptively lawful” mean that such regulations are presumed lawful unless a historical study shows otherwise? Does it mean that as-applied challenges are available? Does the Court’s reference to “felons” suggest that the legislature cannot disqualify misdemeanants from possessing guns? Does the *454 word “longstanding” mean that prohibitions of recent vintage are suspect? As we observed in Skoien, judicial opinions are not statutes, and we don't dissect them word-by-word as if they were. 614 F.3d at 640. Thus, I agree with the majority that Heller’s dictum does not settle the question before us. It does, however, give us a place to start. Heller’s reference endorses the proposition that the legislature can impose some categorical bans on the possession of firearms. See id. (“That some categorical limits are proper is part of the original meaning.”). Our task is to determine whether all felons—violent and nonviolent alike—comprise one such category. Wisconsin and the United States advance three basic historical arguments in support of this categorical exclusion. First, they say that there is some evidence suggesting that founding-era legislatures deprived felons of the right. Second, they argue that because the states put felons to death at the time of the founding, no one would have questioned their authority to take felons' guns too. And third, they insist that founding-era legislatures permitted only virtuous citizens to have guns, and felons are not virtuous citizens. As I explain below, none of these rationales supports the proposition that the legislature can permanently deprive felons of the right to possess arms simply because of their status as felons. The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than “felons”—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness. A. The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. The only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and Pennsylvania ratifying conventions. In recommending that protection for the right to arms be added to the Constitution, each of these proposals included limiting language arguably tied to criminality. See, e.g., Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 222, 266 (1983); Steven P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, 26 Val. U. L. Rev. 131, 147, 185 (1991); see also C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 712 (2009) (“For relevant authority before World War I for disabling felons from keeping firearms, then, one is reduced to three proposals emerging from the ratification of the Constitution.”). A majority of the New Hampshire convention recommended that a bill of rights include the following protection: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” See 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1891) (emphasis added). In the Massachusetts convention, Samuel Adams proposed to protect the right to arms with the following language: “And that the said Constitution be never construed to authorize Congress to ... prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” See 2 Bernard Schwartz, The Bill of Rights: A *455 Documentary History 675, 681 (1971) (emphasis added). Finally, the influential Pennsylvania Minority suggested an addition stating: “That the people have a right to bear arms for the defense of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals ....” 2 Schwartz, supra, at 662, 665 (emphasis added). On the basis of these three proposals some conclude that “[a]ll the ratifying convention proposals which most explicitly detailed the recommended right-to-arms amendment excluded criminals and the violent.” See, e.g., Kates, 82 Mich. L. Rev. at 266. Several things bear emphasis here. First, none of the relevant limiting language made its way into the Second Amendment. Second, only New Hampshire’s proposal—the least restrictive of the three—even carried a majority of its convention. See 2 Schwartz, supra, at 628, 675, 758. Third, proposals from other states that advocated a constitutional right to arms did not contain similar language of limitation or exclusion. See Kates, 82 Mich. L. Rev. at 222 (citing 1 Elliot, supra, at 328, 335). And finally, similar limitations or exclusions do not appear in any of the four parallel state constitutional provisions enacted before ratification of the Second Amendment. See Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 208 (2006) (North Carolina, Pennsylvania, Vermont, Massachusetts). All that said, these proposals may “indicate some common if imprecise understanding at the Founding regarding the boundaries of a right to keep and bear arms.” Marshall, 32 Harv. J.L. & Pub. Pol'y at 713. And at a minimum, the fact that they are routinely invoked in support of blanket felon disarmament makes it necessary to consider them. I'll begin with the New Hampshire proposal, which did not embrace the disarmament of all felons, but rather of those citizens who “are or have been in actual rebellion.” 1 Elliot, supra, at 326 (emphasis added). This limitation targeted a narrow group because “rebellion” was a very specific crime. See Rebellion, 2 New Universal Etymological English Dictionary (4th ed. 1756) (explaining that the term is “now used for a traiterous taking up arms, or a tumultuous opposing the authority of the king, etc. or supreme power in a nation”). There are obvious reasons why the government would take guns away from those bent on overthrowing it, and, as I discuss later, stripping rebels of their gun rights followed well-established practice in both England and the colonies. Thus, while this proposal reflects support for disarming rebels, it does not say anything about disarming those who have committed other crimes, much less nonviolent ones. Samuel Adams’s proposed language to the Massachusetts convention, which would have limited the right to “peaceable citizens,” see 2 Schwartz, supra, at 681, sweeps more broadly—but not so broadly that it encompasses all criminals, or even all felons. At the time, “peaceable” was defined as “[f]ree from war; free from tumult”; “[q]uiet; undisturbed”; “[n]ot violent; not bloody”; “[n]ot quarrelsome; not turbulent.” 1 Samuel Johnson, A Dictionary of the English Language (5th ed. 1773). Those who “breach[ed] the peace” caused “[a] violation of the public peace, as by a riot, affray, or any tumult which is contrary to law, and destructive to the public tranquility.” See Breach, Noah Webster, An American Dictionary of the English Language (1828); see also Atwater v. City of Lago Vista, 532 U.S. 318, 327 & n.2, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (noting some “variations in the common-law usage of the term ‘breach of the *456 peace’ ” but assuming that the definition “entail[ed] at least a threat of violence”); id. (quoting Michael Dalton, The Country Justice 9 (1727) (“The Breach of th[e] Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands, or other Possessions, whether by threatening words, or by furious Gesture, or Force of the Body, or any other Force used in terrorem.”)); Pearce v. Atwood, 13 Mass. 324, 332 (1816) (“Breaches of the peace comprise not only cases of actual violence to the person of another, but any unlawful acts, tending to produce an actual breach of the peace; whether the peace of the public, or an individual, be in fact disturbed or not.”). Not all crimes are violent; nor, for that matter, is every non-peaceable person a criminal. In short, the phrase “peaceable citizens” was not a synonym for “non-felons” or even “non-criminals.” That leaves the strongest support for a blanket felon exclusion: the Pennsylvania Minority’s suggested guarantee of the right to arms “unless for crimes committed, or real danger of public injury from individuals.” 2 Schwartz, supra, at 665. This proposal can be read in two ways. The first, which would support a broad exclusion, is to interpret it as capturing two groups: (1) those who have committed any crime—felony or misdemeanor, violent or nonviolent—and (2) those who have not committed a crime but nonetheless pose a danger to public safety. The second, which would support a more targeted exclusion, is to interpret it as capturing one group: those who pose a danger to public safety, whether or not they have committed a crime. On this reading, the catchall phrase limiting the rights of individuals who pose a “real danger of public injury” would be an effort to capture non-criminals whose possession of guns would pose the same kind of danger as possession by those who have committed crimes. And unless the founding generation understood all crimes—even nonviolent misdemeanors—to be markers for that risk, the relevant “crimes committed” would be the subset of crimes suggesting a proclivity for violence. (As far as I can find, no one even today reads this provision to support the disarmament of literally all criminals, even nonviolent misdemeanants.) If “crimes committed” refers only to a subset of crimes, that subset must be defined; using “real danger of public injury” to draw the line is both internally coherent and consistent with founding-era practice. Whatever else may be said about the particulars of each of these three proposals, they are most helpful taken together as evidence of the scope of founding-era understandings regarding categorical exclusions from the enjoyment of the right to keep and bear arms. The concern common to all three is not about felons in particular or even criminals in general; it is about threatened violence and the risk of public injury. See Binderup, 836 F.3d at 368 (Hardiman, J., concurring in part and concurring in the judgments). This is the same concern that animated English and early American restrictions on arms possession. In England, officers of the Crown had the power to disarm anyone they judged to be “dangerous to the Peace of the Kingdom.” Militia Act of 1662, 13 & 14 Car. 2, c. 3, § 13 (1662). Relatedly, English common law “punish[ed] people who [went] armed to terrify the King’s subjects” with imprisonment and forfeiture of their “armour.”4 Sir John Knight’s Case, 87 Eng. *457 Rep. 75, 76 (K.B. 1686). And—perhaps unsurprisingly because they were presumptively thought to pose a similar threat or terror—Parliament also disarmed Catholics. See Joyce Lee Malcolm, To Keep and Bear Arms 18–19, 122 (1994) (explaining that Protestants feared revolt, massacre, and counter-revolution from Catholics); see also Adam Winkler, Gunfight 115 (2011) (explaining that Parliament disarmed Catholics because the Protestant majority found them “untrustworthy”); Marshall, 32 Harv. J.L. & Pub. Pol'y at 723 (“In short, the stated principle supporting the disability was cause to fear that a person, although technically an English subject, was because of his beliefs effectively a resident enemy alien liable to violence against the king.”). Similar laws and restrictions appeared in the American colonies, adapted to the fears and threats of that time and place. See Alexander DeConde, Gun Violence in America 22 (2001) (“Although the colonial demand for such discriminatory controls sprang from circumstances different from those in England, as in applying them against Indians and blacks, colonists usually followed home-country practices of excluding other distrusted people from ownership.”). In some places, Catholics were still disarmed, but “on the basis of allegiance, not on the basis of faith.” See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 157 (2007) (citing Virginia’s 1756 “disarmament of all those refusing the test of allegiance”)6; see also DeConde, supra, at 22–23 (associating Catholics with the “distrusted inhabitants” from whom the colonies seized guns “with the intent of preventing social upheavals” and “rebellion”). Those “willing to swear undivided allegiance to the sovereign” were permitted to keep their arms. See Churchill, 25 Law & Hist. Rev. at 157. After all, confiscation of guns from those who refused to swear an oath of allegiance was meant to “deal with the potential threat coming from armed citizens who remained loyal to” another sovereign. See Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 506 (2004); see also NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 200 (5th Cir. 2012) (“American legislators had determined that permitting [those who refused to swear an oath of allegiance] to keep and bear arms posed a potential danger.”). *458 But that particular threat dissipated when a person pledged his allegiance to the United States or to a particular state. Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course. See Malcolm, supra, at 140–41; Winkler, supra, at 115–16 (noting “forcible disarmament” out of “fear that these groups would use guns to revolt” or otherwise threaten the “public safety”); DeConde, supra, at 21–22 (noting “anxiety that slaves would rebel”). And this practice of keeping guns out of the hands of “distrusted” groups continued after the Revolution. For example, many states even constitutionalized the disarmament of slaves and Native Americans. See Volokh, 11 Tex. Rev. L. & Pol. at 208–09.7 In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety. But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons. B. A common response to the dearth of felon-disarmament laws in the eighteenth and nineteenth centuries is to say that such laws would have been unnecessary given the severity with which felons were punished. Because felons were routinely executed or stripped of all rights, the argument goes, explicit provisions depriving them of firearms would have been redundant. See, e.g., Brief of Defendant-Appellee Brad D. Schimel at 9 (“[I]n eighteenth-century America, felonies were punishable by death, so no early American lawmaker would have questioned the propriety of a proposal to disarm serious offenders.”); Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms.”). One scholar puts it this way: The constitutionality of [bans on felon possession] cannot seriously be questioned ... [because f]elons simply did not fall within the benefits of the common law right to possess arms. That law punished felons with automatic forfeiture of all goods, usually accompanied by death. We may presume that persons confined in gaols awaiting trial on criminal charges were also debarred from the possession of arms. Kates, 82 Mich. L. Rev. at 266. On this view, the criminal law provides a historical justification for felon disarmament even if laws regulating gun safety do not. The premise of this argument—that the states permanently extinguished the rights of felons, either by death or operation of law, in the eighteenth and nineteenth centuries—is shaky. While it accurately describes the punishment of felons at English common law, the American picture is far more complex. It is true that at common law, the “idea of felony” was intertwined with the punishments of death and civil death. 4 William Blackstone, Commentaries on the Laws of England 98 (1769) (“The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them ....”); Avery v. Everett, 110 N.Y. 317, 18 N.E. 148, 150 (1888) (“By the ancient common law ... [t]here were three principle incidents consequent upon an attainder for *459 treason or felony, forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death.”). Civil death was a state in which a person “though living, was considered dead”—a status “very similar to natural death in that all civil rights were extinguished.” See Harry David Saunders, Note, Civil Death—A New Look at an Ancient Doctrine, 11 Wm. & Mary L. Rev. 988, 988–89 (1970). As originally conceived, civil death signified “a transitional status in the period between a capital sentence and its execution.” Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Incarceration, 160 U. Pa. L. Rev. 1789, 1797 (2012). It “was intended to merely settle the estate of an executed or banished felon.” Saunders, 11 Wm. & Mary L. Rev. at 990. During the period leading up to the founding, the connection between felonies and capital punishment started to fray. Once a short, specified list of offenses, felonies in England grew to “no less than an hundred and sixty,” which is likely what forced Blackstone to define them in terms of their most common characteristic: capital punishment. See 4 Blackstone, supra, at 18, 97–98. But as the number of designated felonies continued to grow, so did the variations on punishment, especially in the American colonies. Throughout the seventeenth and eighteenth centuries, capital punishment in the colonies was used “sparingly,” and property crimes including variations on theft, burglary, and robbery “were, on the whole, not capital.” Lawrence M. Friedman, Crime and Punishment in American History 42 (1993). By the time the Constitution was ratified, James Wilson observed that while the term “felony” was once “very strongly connected with capital punishment,” that was no longer true. John D. Bessler, Cruel & Unusual 52–53 (2012) (quoting 2 The Works of James Wilson 348 (James DeWitt Andrews ed., 1896)); see also 6 Nathan Dane, Digest of American Law 715 (1823) (“[W]e have many felonies, not one punished with forfeiture of estate, and but a very few with death.”). Of course, many crimes remained eligible for the death penalty, and the extent to which that was true varied by state. Death, however, no longer inevitably followed a felony conviction. Because it was no longer defined with reference to a list of specific crimes or even a specific punishment, the definition of “felony” was difficult to pin down at the time of the founding. See Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461, 465 (2009) (emphasizing the “ambiguity in the meaning of felony” at the founding). According to James Madison, “felony” was “a term of loose signification even in the common law of England,” but more so in the States where “[t]he meaning of the term ... [was] not precisely the same in any two of the States; and varie[d] in each with every revision of its criminal laws.” The Federalist No. 42, at 228 (J. R. Pole ed., 2005); see also Dane, supra, at 715 (“[T]he word felony, in the process of many centuries, has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is now impossible to know precisely in what sense we are to understand this word.”). The shift in punishment for felonies necessitated a shift in the meaning of civil death, which had been previously connected to a capital sentence. And so civil death came to be understood “as an incident of life conviction.” See Saunders, 11 Wm. & Mary L. Rev. at 990; see also Troup v. Wood, 4 Johns. Ch. 228, 248 (N.Y. Ch. 1820) (a person convicted of felony and sentenced to imprisonment in the state *460 prison for life is “civiliter mortuus”). But applying the ancient concept of civil death in this context proved difficult. Because “[i]mprisonment for life was a punishment unknown to the common law,” courts quickly realized that common-law civil death did not automatically apply. See Platner v. Sherwood, 6 Johns. Ch. 118, 122 (N.Y. Ch. 1822) (¶ 2 argument of Butler and Henry, counsel for the plaintiff); id. at 128 (Opinion of the Chancellor). Thus, courts soon decided that civil death applied only when statutes explicitly attached it to life sentences, and statutes did not universally do so. Id. at 129 (holding that a person convicted of a felony and sentenced to life imprisonment was not “deemed and taken to be civilly dead, to all intents and purposes in the law” until an act of the legislature made it so)8; see also Frazer v. Fulcher, 17 Ohio 260, 262 (1848) (“But it is said that, by the rules of the common law, there is such a thing as a civil death as well as a natural death. We know that in England there are cases in which a man, although in full life, is said to be civilly dead, but I have not learned, until this case was brought before us, that there was but one kind of death known to our laws.”); Cannon v. Windsor, 1 Houst. 143, 144, 6 Del. 143 (1855) (“But here there is no such general forfeiture of property, or the right to maintain an action, on a conviction for treason or felony, and the maxim or principle of civilter mortuus cannot therefore apply in this State, even when he is a party plaintiff.”); Chin, 160 U. Pa. L. Rev. at 1796 (“In England, civil death was a common law punishment, but in the United States, it existed only if authorized by statute. It was far from universal....”). And even when it applied to life sentences, the doctrine of civil death had to be at least partially reconceived because it had begun as a time-limited doctrine justified by the anticipation of natural death—it was “not a condition applicable potentially for decades.” See Chin, 160 U. Pa. L. Rev. at 1797. As courts hammered out the incongruities between civil death and continued life over the next century, they settled uncomfortably on an American version of civil death that required explicit statutory authorization and deprived a felon of many, but not all, rights.9 See, e.g., *461 Avery, 18 N.E. at 154–55 (suggesting that a life convict maintained a right to defend an action brought against him and certain property rights, including the ability to transfer property by will or deed). Of particular relevance to Kanter’s case, courts also struggled to determine how—if at all—the old concept of civil death applied to felons serving sentences for a term of years. Cases decided in the early nineteenth century, like Troup v. Wood and Platner v. Sherwood, associated the loss of rights under a theory of civil death only with capital and life sentences. Later cases building on that reasoning held that the rights of felons serving less than life were merely suspended during the term of the sentence. See, e.g., In re Estate of Nerac, 35 Cal. 392, 396 (1868) (“If the convict be sentenced for life, he becomes civiliter mortuus, or dead in law.... If, however, he be sentenced for a term less than life, his civil rights are only suspended during the term.”); Ruffin v. Commonwealth, 62 Va. 790, 796 (1871) (explaining that a convict is “civiliter mortuus,” but only “[f]or the time being, during his term of service in the penitentiary”); Bowles v. Habermann, 95 N.Y. 246, 247 (1884) (applying a statute, which provided that “a sentence of imprisonment in a State prison for any term less than for life ... suspends, during the term of the sentence, all the civil rights ... of, or held by, the person sentenced.”). The upshot of this history for present purposes is that the consequences of a felony conviction were not as categorically severe as the governments suggest. Capital punishment was less pervasive than one might think. Outside the capital context, civil death applied exclusively to life sentences and only if authorized by statute—and even then, it was more modest than the ancient version because the convict retained some rights. Felons serving a term of years did not suffer civil death; their rights were suspended but not destroyed. In sum, a felony conviction and the loss of all rights did not necessarily go hand-in-hand. Because they did not go hand-in-hand, the argument that the severity of punishment at the founding implicitly sanctions the blanket stripping of rights from all felons, including those serving a term of years, is misguided. Those who ratified the Second Amendment would not have assumed that a free man, previously convicted, lived in a society without any rights and without the protection of law. This is not to say that felons could not lose rights under another theory. Indeed, state legislatures did explicitly exclude felons from the enjoyment of particular rights. See infra Section II.C. But history confirms that the basis for the permanent and pervasive loss of all rights cannot be tied generally to one’s status as a convicted felon or to the uniform severity of punishment that befell the class. Even if it could be, though, one might reasonably ask: “So what?” We wouldn't draw this inference from the severity of founding-era punishment in other contexts—for example, we wouldn't say that *462 the state can deprive felons of the right to free speech because felons lost that right via execution at the time of the founding. The obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society. C. While scholars have not identified eighteenth or nineteenth century laws depriving felons of the right to bear arms, history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens. See Thomas M. Cooley, A Treatise on the Constitutional Limitations 29 (1st ed. 1868) (explaining that certain classes of people were “almost universally excluded” from the franchise for “want of capacity or of moral fitness”); Saul Cornell, “Don't Know Much About History” The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002) (identifying the “right to sit on juries” as “limited to those members of the polity who were deemed capable of exercising it in a virtuous manner”). Some maintain that the right to bear arms is similarly limited by a virtue requirement. See, e.g., Don. B. Kates Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs., Winter 1986, at 143, 146 (“[T]he right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally unbalanced, are deemed incapable of virtue.”). On this view, the legislature can disarm felons because of their poor character, without regard to whether they are dangerous. See Medina, 913 F.3d at 159 (endorsing the view that the Second Amendment excludes not only the dangerous, but also the “unvirtuous”) The majority is sympathetic to this view. See Maj. Op. at 446. The problem with this argument is that virtue exclusions are associated with civic rights—individual rights that “require[ ] citizens to act in a collective manner for distinctly public purposes.” See Saul Cornell, A New Paradigm for the Second Amendment, 22 Law & Hist. Rev. 161, 165 (2004). For example, the right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance. Similarly, individuals do not serve on juries for their own sake, but as part of the collective enterprise of administering justice. Some scholars have characterized the right to keep and bear arms as a civic right, because it was “one exercised by citizens, not individuals ..., who act together in a collective manner, for a distinctly public purpose: participation in a well regulated militia.” See Cornell & DeDino, 73 Fordham L. Rev. at 491 (“[T]he text [of the Second Amendment] fits a civic rights model better than either the individual or collective rights paradigms.”). Saul Cornell explains: Perhaps the most accurate way to describe the dominant understanding of the right to bear arms in the Founding era is as a civic right. Such a right was not something that all persons could claim, but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner. Freedom of religion, freedom of the press, trial by jury were genuinely rights belonging to individuals and were treated differently than were civic rights such as militia service, or the right to sit on juries. Cornell, 29 N. Ky. L. Rev. at 679 (footnotes omitted). And as a right that was exercised *463 for the benefit of the community (like voting and jury service), rather than for the benefit of the individual (like free speech or free exercise), it belonged only to virtuous citizens. Heller, however, expressly rejects the argument that the Second Amendment protects a purely civic right. Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012). It squarely holds that “the Second Amendment confer[s] an individual right to keep and bear arms,” Heller, 554 U.S. at 595, 128 S.Ct. 2783 (emphasis added), and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia, id. at 582–86, 128 S.Ct. 2783. The “civic rights” approach runs headlong into both propositions. See Binderup, 836 F.3d at 371 (Hardiman, J., concurring in part and concurring in the judgments) (“[T]his virtuous-citizens-only conception of the right to keep and bear arms is closely associated with pre-Heller interpretations of the Second Amendment by proponents of the ‘sophisticated collective rights model’ who rejected the view that the Amendment confers an individual right and instead characterized the right as a ‘civic right....’ ” (citation omitted)). The parties have introduced no evidence that virtue exclusions ever applied to individual, as opposed to civic, rights.10 And if virtue exclusions don't apply to individual rights, they don't apply to the Second Amendment. It bears emphasis that virtue exclusions from the exercise of civic rights were explicit. If the right to bear arms was similarly subject to a virtue exclusion, we would expect to see provisions expressly depriving felons of that right too—but we don't. By 1820, ten states' constitutions included provisions excluding or authorizing the exclusion of those who “had committed crimes, particularly felonies or so-called infamous crimes” from the franchise. See Alexander Keyssar, The Right to Vote 62–63 & tbl. A.7 (Kentucky, Vermont, Ohio, Louisiana, Indiana, Mississippi, Connecticut, Illinois, Alabama, Missouri). By 1857, twenty-four state constitutions included such provisions. Id. The same crimes often “made a person ineligible to serve as a witness in a legal proceeding,” id. at 62, and to serve on a jury.11 State constitutions protecting the right to bear arms do not follow a similar pattern. Between 1790 and 1820, nine states enacted their own right-to-arms provisions in their constitutions. See Volokh, 11 Tex. Rev. L. & Pol. at 208–09 (four more had *464 enacted such provisions prior to 1790). None of those provisions made an exception for criminals. Id. And notably, seven of those nine states explicitly excluded or authorized the exclusion of certain criminals from the right to vote. Compare id. (identifying Kentucky, Ohio, Indiana, Mississippi, Connecticut, Alabama, and Missouri as seven of the nine states with right-to-arms provisions in their constitutions by 1820), with Keyssar, supra, at tbl. A.7 (the same seven state constitutions specifically excluded certain criminals from the right to vote). The same pattern held true in 1857. Compare Volokh, 11 Tex. Rev. L. & Pol. at 209–10, with Keyssar, supra, at tbl. A.7. There is no basis, then, for assuming that a virtue requirement on the right to vote applies equally to the right to keep and bear arms. See Binderup, 836 F.3d at 372 (Hardiman, J., concurring in part and concurring in the judgments) (“We have found no historical evidence on the public meaning of the right to keep and bear arms indicating that ‘virtuousness’ was a limitation on one’s qualification for the right—contemporary insistence to the contrary falls somewhere between guesswork and ipse dixit.”).12 In sum, the available evidence suggests that the right to arms differs from rights that depend on civic virtue for enjoyment. The Second Amendment confers an individual right, intimately connected with the natural right of self-defense, and not limited to civic participation (i.e., militia service). By the very terms of the civic-rights argument, then, the right to arms would have been “treated differently” than rights like the right to vote or to sit on juries. See Cornell, 29 N. Ky. L. Rev. at 679 (“[R]ights belonging to individuals ... were treated differently than were civic rights such as militia service, or the right to sit on juries.”). And that difference is borne out by historical treatment: we see no explicit criminal, or even more general virtue-based, exclusions from the right to bear arms like we do in other contexts. Thus, although the right protected by the Second Amendment is not unlimited, see Heller, 554 U.S. at 595, 128 S.Ct. 2783, its limits are not defined by a general felon ban tied to a lack of virtue or good character. III. The history canvassed in Part II yields two conclusions that are important for present purposes. History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous. Our precedent is consistent with this principle: we have held that “Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.” Skoien, 614 F.3d at 641. Instead, the legislature can make that judgment on a class-wide basis. See id. at 640 (“That some categorical limits are proper is part of the original meaning, leaving to the people’s elected representatives the filling in of details.”). And it may do so based on present-day judgments about categories of people whose possession of guns would endanger the public safety; as we said in Skoien, *465 “exclusions need not mirror limits that were on the books in 1791.” Id. at 641. Such restrictions are “lineal descendants” of historical laws banning dangerous people from possessing guns. See Transcript of Oral Argument at 77, Heller, 554 U.S. 570 (No. 07290) (Chief Justice Roberts: “[W]e are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.”). That said, “the government does not get a free pass simply because Congress has established a ‘categorical ban.’ ” United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010). The government could quickly swallow the right if it had broad power to designate any group as dangerous and thereby disqualify its members from having a gun. See Skoien, 614 F.3d at 641 (“We do not mean that a categorical limit on the possession of firearms can be justified under the rational-basis test, which deems a law valid if any justification for it may be imagined.”). The legislature must be able to justify its designation, and the rigor with which we review this justification “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’ ” Ezell II, 846 F.3d at 892 (citation omitted). “Severe burdens on the core right of armed defense require a very strong public-interest justification and a close means-ends fit....” Id. The majority contends that the means-end review should be “arguably less rigorous in this case because ... felon dispossession laws do not restrict the ‘core right of armed defense,’ but rather burden ‘activity lying closer to the margins of the right.’ ” Maj. Op. at 448 n.10 (quoting Ezell II, 846 F.3d at 892). I disagree. First, felon dispossession statutes target the whole right, including its core: they restrict even mere possession of a firearm in the home for the purpose of self-defense. Cf. Heller, 554 U.S. at 630–35, 128 S.Ct. 2783 (finding unconstitutional a law that made it impossible for citizens to use firearms for “the core lawful purpose of self-defense”); id. at 628, 128 S.Ct. 2783 (“[T]he inherent right of self-defense has been central to the Second Amendment right.”).13 And second, the burden is severe: it is a permanent disqualification from the exercise of a fundamental right. See Maj. Op. at 439–40; see also United States v. McCane, 573 F.3d 1037, 1048–49 (10th Cir. 2009) (Tymkovich, J., concurring) (“[T]he broad scope of § 922(g)(1)—which permanently disqualifies all felons from possessing firearms—would conflict with the ‘core’ self-defense right embodied in the Second Amendment.”). Thus, “a very strong public-interest justification and a close means-ends fit” is required before Kanter may be constitutionally subject to the United States and Wisconsin dispossession statutes. Ezell II, 846 F.3d at 892. There is no question that the interest identified by the governments and supported by history—keeping guns out of the hands of those who are likely to misuse them—is very strong. And we have held *466 that several of the other categorical bans within § 922(g) demonstrate the necessary fit between this public-safety end and the government’s chosen means. In Skoien, we upheld § 922(g)(9), which prohibits those convicted of domestic violence misdemeanors from possessing firearms, because “no one doubts that the goal of § 922(g)(9), preventing armed mayhem, is an important governmental objective” and “[b]oth logic and data establish a substantial relation between § 922(g)(9) and this objective.” 614 F.3d at 642; see also id. at 644 (“[N]o matter how you slice these numbers, people convicted of domestic violence remain dangerous to their spouses and partners.”). In United States v. Yancey, we sustained § 922(g)(3), which prohibits any person “who is an unlawful user of or addicted to any controlled substance” from possessing a gun, because “studies amply demonstrate the connection between chronic drug abuse and violent crime, and illuminate the nexus between Congress’s attempt to keep firearms away from habitual drug abusers and its goal of reducing violent crime.” 621 F.3d 681, 686 (7th Cir. 2010). And in United States v. Meza-Rodriguez, we rejected a challenge to § 922(g)(5), which prohibits aliens unlawfully present in the United States from possessing firearms, reasoning that keeping guns out of the hands of “persons who are difficult to track and who have an interest in eluding law enforcement” serves the public-safety objectives of § 922(g). 798 F.3d 664, 673 (7th Cir. 2015). In contrast to these narrowly defined categorical bans, § 922(g)(1), which applies to all felons, is “wildly overinclusive.” Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 721 (2007). Its application is not limited to those who have committed violent crimes like murder, assault, and rape.14 It also encompasses those who have committed any nonviolent felony or qualifying state-law misdemeanor—and that is an immense and diverse category. It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses. See Mass. Gen. Laws ch. 129, §§ 39, 43; Mich. Comp. Laws § 445.574a(1)(a), (2)(d); see also, e.g., 21 U.S.C. § 676 (violating the Federal Meat Inspection Act in certain ways); 18 U.S.C. § 1621 (committing perjury); Mass. Gen. Laws ch. 266, § 30A (shoplifting goods valued at $100).15 These *467 crimes, like many others captured by § 922(g), “rais[e] no particular suspicion that the convict is a threat to public safety.” Winkler, 105 Mich. L. Rev. at 721. Put more colorfully, “It is hard to imagine how banning Martha Stewart or Enron’s Andrew Fastow from possessing a gun furthers public safety.” Id. We have addressed the constitutionality of § 922(g)(1) before. In United States v. Williams, a defendant with a prior robbery conviction challenged the statute as applied to him. 616 F.3d at 691. We held that the provision is constitutional as applied to violent felons, including the defendant in that case. 616 F.3d at 694 (“Because Williams was convicted of a violent felony, his claim that § 922(g)(1) unconstitutionally infringes on his right to possess a firearm is without merit.”). But our decision came with an important qualification: we expressly noted that “§ 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.” Id. at 693. We asserted that “[e]ven if the government may face a difficult burden of proving § 922(g)(1)’s ‘strong showing’ in future cases, it certainly satisfies its burden in this case, where [the defendant] challenges § 922(g)(1) as it was applied to him.” Id. As a violent felon, the defendant in Williams was in no position to challenge § 922(g)(1) on the ground that its application to nonviolent felons is unconstitutional. See Skoien, 614 F.3d at 645 (“A person to whom a statute properly applies can't obtain relief based on arguments that a differently situated person might present.”). As a nonviolent felon, however, Kanter is in a position to make that argument. The first step in analyzing Kanter’s as-applied challenge is to consider whether banning all nonviolent felons is substantially related to the governments' interest in preventing future gun violence. See Williams, 616 F.3d at 692–93. Williams held that because the characteristic common to all violent felons is a demonstrated propensity for violence, the ban on possessing firearms is constitutional as applied to all members of that class. Id. at 693–94. In contrast, and to state the obvious, the characteristic common to all nonviolent felons is that their criminal conduct was nonviolent.16 Thus, the reasoning that supports the categorical disarmament of violent felons—that past violence is predictive of future violence—simply does not apply. The governments argue, though, that being convicted of a nonviolent crime is also predictive of future violence. They try to support that position with statistics showing that nonviolent felons are likely to commit violent crimes in the future. These statistics are entirely unhelpful, however, because they lump all nonviolent felons together—and while some nonviolent felons may be likely to misuse firearms, the characteristics that make them risky cannot *468 be generalized to the whole class. For example, the characteristics of an individual convicted of a drug-related offense tell us little if anything about the tendency of an individual convicted of perjury—or, for that matter, mail fraud—to commit gun violence. The sheer diversity of crimes encompassed by these statutes makes it virtually impossible for the governments to show that banning all nonviolent felons from possessing guns is closely tailored to the goal of protecting the public safety. Thus, we must decide whether the statutes are unconstitutional as applied to Kanter in particular. See Williams, 616 F.3d at 692–93. If Kanter’s conviction—mail fraud—is substantially related to violent behavior, the governments can disarm him without regard to any personal circumstances or characteristics suggesting that he poses a low risk to public safety. But their case for tying mail fraud to a risk of future violence rests on a single study related to mail-fraud recidivism. See David Weisburd et al., White-Collar Crime and Criminal Careers (2004). This study suggests that almost 40% of individuals convicted of mail fraud were later rearrested. Id. at 29. It does not say, however, whether those arrests were for violent or nonviolent offenses. Nor does it say what percentage of those individuals were convicted. A different portion of the same study suggests that 25% of all white-collar repeat offenders (on the numbers provided, I'll assume that means roughly 10% of those with a mail-fraud conviction, though we have been given no way to know)17 have an arrest for a violent crime. Id at 45. But it does not specify whether the violent arrest preceded or post-dated the white-collar arrests, and the numbers drop dramatically for those with only two total offenses, id., suggesting that a pattern of criminality, rather than a particular mail-fraud arrest, might be an indication of future dangerousness, see id. at 46 (“[T]hose with fewer arrests seldom had violent crimes in their criminal histories.”). This study falls well short of establishing the “close means-ends fit” required before the governments may totally and permanently strip offenders like Kanter of the ability to exercise a fundamental right.18 This does not mean that Wisconsin and the United States cannot disarm Kanter. Even though the mail-fraud conviction, standing alone, is not enough, they might still be able to show that Kanter’s history or characteristics make him likely to misuse firearms. And if banning Kanter, in particular, from possessing a gun is substantially related to the governments' goal of “preventing armed mayhem,” then the statutes could be constitutionally applied to him. Skoien, 614 F.3d at 642. At this point, however, neither Wisconsin nor the United States has presented any evidence that Kanter would be dangerous if armed. Instead, as the majority notes, “Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions,” and he is “employed, married, and does not use illicit drugs, all of which correspond *469 with lower rates of recidivism.” Maj. Op. at 449. Absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms. * * * If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[ ] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality opinion). I therefore dissent.

Barrett

majority

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. (g)(1) and Wisconsin Statute 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments' undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.1 I. At the outset, it is worth clarifying a conceptual point. There are competing ways of approaching the constitutionality of gun dispossession laws. Some maintain that there are certain groups of people—for example, violent felons—who fall entirely outside the Second Amendment’s scope. See, e.g., (“[T]he *452 Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among ‘the people’ entitled to keep and bear arms.”). Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right. See Eugene Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 1497–98 (describing these competing views). These approaches will typically yield the same result; one uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature’s power to take it away. In my view, the latter is the better way to approach the problem. It is one thing to say that certain weapons or activities fall outside the scope of the right. See District of ; (“[I]f the challenged law regulates activity falling outside the scope of the right as originally understood, then ‘the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.’ ” ); (drawing an analogy between categories of speech, like obscenity, that fall outside the First Amendment and activities that fall outside the Second Amendment). It is another thing to say that certain people fall outside the Amendment’s scope. Arms and activities would always be in or out. But a person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status. No state action would be required. To be sure, under this theory such a person could possess a gun as a matter of legislative grace. But he would lack standing to assert constitutional claims that other citizens could assert. For example, imagine that a legislature disqualifies those convicted of crimes of domestic violence from possessing a gun for a period of ten years following release from prison. See United (holding constitutional (g)(9), which forbids those convicted of crimes of domestic violence to possess a gun). After fifteen years pass, a domestic violence misdemeanant challenges a handgun ban identical to the one that the Court held unconstitutional in Despite the legislative judgment that such a person could safely possess a gun after ten years, a court would still have to determine whether the person had standing to assert a Second Amendment claim. If the justification for the initial deprivation is that the person falls outside the protection of the Second Amendment, it doesn't matter if the statutory disqualification expires. If domestic violence misdemeanants are out, they're out.2 That is an unusual way of thinking about rights. In other contexts that involve the loss of a right, the deprivation occurs because of state action, and state action determines the scope of the loss (subject, of course, to any applicable constitutional *453 constraints). Felon voting rights are a good example: a state can disenfranchise felons, but if it refrains from doing so, their voting rights remain constitutionally protected.3 So too with the right to keep and bear arms: a state can disarm certain people (for example, those convicted of crimes of domestic violence), but if it refrains from doing so, their rights remain constitutionally protected. In other words, a person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it. In addition to being analytically awkward, the “scope of the right” approach is at odds with itself. There, the Court interpreted the word “people” as referring to “all Americans.” –81, ; see also (asserting that “the people” “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” ). Neither felons nor the mentally ill are categorically excluded from our national community. That does not mean that the government cannot prevent them from possessing guns. Instead, it means that the question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all. Thus, I treat Kanter as falling within the scope of the Second Amendment and ask whether Congress and Wisconsin can nonetheless prevent him from possessing a gun. did not “undertake an exhaustive historical analysis of the full scope of the Second Amendment,” but it did offer a list of “presumptively lawful regulatory measures,” including “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” See –27 & n.26, Like the majority, I am “reluctant to place more weight on these passing references than the Court itself d” See Maj. Op. at 445 ). The constitutionality of felon dispossession was not before the Court in and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear. For example, does “presumptively lawful” mean that such regulations are presumed lawful unless a historical study shows otherwise? Does it mean that as-applied challenges are available? Does the Court’s reference to “felons” suggest that the legislature cannot disqualify misdemeanants from possessing guns? Does the *454 word “longstanding” mean that prohibitions of recent vintage are suspect? As we observed in judicial opinions are not statutes, and we don't dissect them word-by-word as if they were. Thus, I agree with the majority that ’s dictum does not settle the question before us. It does, however, give us a place to start. ’s reference endorses the proposition that the legislature can impose some categorical bans on the possession of firearms. See Our task is to determine whether all felons—violent and nonviolent alike—comprise one such category. Wisconsin and the United States advance three basic historical arguments in support of this categorical exclusion. First, they say that there is some evidence suggesting that founding-era legislatures deprived felons of the right. Second, they argue that because the states put felons to death at the time of the founding, no one would have questioned their authority to take felons' guns too. And third, they insist that founding-era legislatures permitted only virtuous citizens to have guns, and felons are not virtuous citizens. As I explain below, none of these rationales supports the proposition that the legislature can permanently deprive felons of the right to possess arms simply because of their status as felons. The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than “felons”—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness. A. The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. The only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and Pennsylvania ratifying conventions. In recommending that protection for the right to arms be added to the Constitution, each of these proposals included limiting language arguably tied to criminality. See, e.g., Don B. Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, ; Steven P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, ; see also C. Kevin Why Can't Martha Stewart Have a Gun?, A majority of the New Hampshire convention recommended that a bill of rights include the following protection: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” See 1 Jonathan The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1891) In the Massachusetts convention, Samuel Adams proposed to protect the right to arms with the following language: “And that the said Constitution be never construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” See 2 Bernard The Bill of Rights: A *455 Documentary History 675, 681 (1971) Finally, the influential Pennsylvania Minority suggested an addition stating: “That the people have a right to bear arms for the defense of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals” 2 On the basis of these three proposals some conclude that “[a]ll the ratifying convention proposals which most explicitly detailed the recommended right-to-arms amendment excluded criminals and the violent.” See, e.g., Several things bear emphasis here. First, none of the relevant limiting language made its way into the Second Amendment. Second, only New Hampshire’s proposal—the least restrictive of the three—even carried a majority of its convention. See 2 Third, proposals from other states that advocated a constitutional right to arms did not contain similar language of limitation or exclusion. See (citing 1 ). And finally, similar limitations or exclusions do not appear in any of the four parallel state constitutional provisions enacted before ratification of the Second Amendment. See Eugene State Constitutional Rights to Keep and Bear Arms, All that said, these proposals may “indicate some common if imprecise understanding at the Founding regarding the boundaries of a right to keep and bear arms.” And at a minimum, the fact that they are routinely invoked in support of blanket felon disarmament makes it necessary to consider them. I'll begin with the New Hampshire proposal, which did not embrace the disarmament of all felons, but rather of those citizens who “are or have been in actual rebellion.” 1 This limitation targeted a narrow group because “rebellion” was a very specific crime. See Rebellion, 2 New Universal Etymological English Dictionary (4th ed. 1756) (explaining that the term is “now used for a traiterous taking up arms, or a tumultuous opposing the authority of the king, etc. or supreme power in a nation”). There are obvious reasons why the government would take guns away from those bent on overthrowing it, and, as I discuss later, stripping rebels of their gun rights followed well-established practice in both England and the colonies. Thus, while this proposal reflects support for disarming rebels, it does not say anything about disarming those who have committed other crimes, much less nonviolent ones. Samuel Adams’s proposed language to the Massachusetts convention, which would have limited the right to “peaceable citizens,” see 2 sweeps more broadly—but not so broadly that it encompasses all criminals, or even all felons. At the time, “peaceable” was defined as “[f]ree from war; free from tumult”; “[q]uiet; undisturbed”; “[n]ot violent; not bloody”; “[n]ot quarrelsome; not turbulent.” 1 Samuel Johnson, A Dictionary of the English Language (5th ed. 1773). Those who “breach[ed] the peace” caused “[a] violation of the public peace, as by a riot, affray, or any tumult which is contrary to law, and destructive to the public tranquility.” See Breach, Noah Webster, An American Dictionary of the English Language (1828); see also ; (“The Breach of th[e] Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands, or other Possessions, whether by threatening words, or by furious Gesture, or Force of the Body, or any other Force used in terrorem.”)); Not all crimes are violent; nor, for that matter, is every non-peaceable person a criminal. In short, the phrase “peaceable citizens” was not a synonym for “non-felons” or even “non-criminals.” That leaves the strongest support for a blanket felon exclusion: the Pennsylvania Minority’s suggested guarantee of the right to arms “unless for crimes committed, or real danger of public injury from individuals.” 2 This proposal can be read in two ways. The first, which would support a broad exclusion, is to interpret it as capturing two groups: (1) those who have committed any crime—felony or misdemeanor, violent or nonviolent—and (2) those who have not committed a crime but nonetheless pose a danger to public safety. The second, which would support a more targeted exclusion, is to interpret it as capturing one group: those who pose a danger to public safety, whether or not they have committed a crime. On this reading, the catchall phrase limiting the rights of individuals who pose a “real danger of public injury” would be an effort to capture non-criminals whose possession of guns would pose the same kind of danger as possession by those who have committed crimes. And unless the founding generation understood all crimes—even nonviolent misdemeanors—to be markers for that risk, the relevant “crimes committed” would be the subset of crimes suggesting a proclivity for violence. (As far as I can find, no one even today reads this provision to support the disarmament of literally all criminals, even nonviolent misdemeanants.) If “crimes committed” refers only to a subset of crimes, that subset must be defined; using “real danger of public injury” to draw the line is both internally coherent and consistent with founding-era practice. Whatever else may be said about the particulars of each of these three proposals, they are most helpful taken together as evidence of the scope of founding-era understandings regarding categorical exclusions from the enjoyment of the right to keep and bear arms. The concern common to all three is not about felons in particular or even criminals in general; it is about threatened violence and the risk of public injury. See This is the same concern that animated English and early American restrictions on arms possession. In England, officers of the Crown had the power to disarm anyone they judged to be “dangerous to the Peace of the Kingdom.” Militia Act of 1662, 13 & 14 Car. 2, c. 3, 13 (1662). Relatedly, English common law “punish[ed] people who [went] armed to terrify the King’s subjects” with imprisonment and forfeiture of their “armour.”4 Sir John Knight’s Case, 87 Eng. *457 Rep. 75, 76 (K.B. 1). And—perhaps unsurprisingly because they were presumptively thought to pose a similar threat or terror—Parliament also disarmed Catholics. See Joyce Lee To Keep and Bear Arms 18–19, (1994) (explaining that Protestants feared revolt, massacre, and counter-revolution from Catholics); see also Adam Gunfight 115 (explaining that Parliament disarmed Catholics because the Protestant majority found them “untrustworthy”); Similar laws and restrictions appeared in the American colonies, adapted to the fears and threats of that time and place. See Alexander Gun Violence in America 22 (“Although the colonial demand for such discriminatory controls sprang from circumstances different from those in England, as in applying them against Indians and blacks, colonists usually followed home-country practices of excluding other distrusted people from ownership.”). In some places, Catholics were still disarmed, but “on the basis of allegiance, not on the basis of faith.” See Robert H. Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, (citing Virginia’s 1756 “disarmament of all those refusing the test of allegiance”)6; see also at 22–23 (associating Catholics with the “distrusted inhabitants” from whom the colonies seized guns “with the intent of preventing social upheavals” and “rebellion”). Those “willing to swear undivided allegiance to the sovereign” were permitted to keep their arms. See 25 Law & Hist. Rev. at After all, confiscation of guns from those who refused to swear an oath of allegiance was meant to “deal with the potential threat coming from armed citizens who remained loyal to” another sovereign. See Saul & Nathan A Well Regulated Right: The Early American Origins of Gun Control, ; see also *458 But that particular threat dissipated when a person pledged his allegiance to the United States or to a particular state. Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course. See at 140–41; at 115–16 (noting “forcible disarmament” out of “fear that these groups would use guns to revolt” or otherwise threaten the “public safety”); at 21–22 (noting “anxiety that slaves would rebel”). And this practice of keeping guns out of the hands of “distrusted” groups continued after the Revolution. For example, many states even constitutionalized the disarmament of slaves and Native Americans. See 11 Tex. Rev. L. & Pol. at –09.7 In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety. But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons. B. A common response to the dearth of felon-disarmament laws in the eighteenth and nineteenth centuries is to say that such laws would have been unnecessary given the severity with which felons were punished. Because felons were routinely executed or stripped of all rights, the argument goes, explicit provisions depriving them of firearms would have been redundant. See, e.g., Brief of Defendant-Appellee Brad D. Schimel at 9 (“[I]n eighteenth-century America, felonies were punishable by death, so no early American lawmaker would have questioned the propriety of a proposal to disarm serious offenders.”); One scholar puts it this way: The constitutionality of [bans on felon possession] cannot seriously be questioned [because f]elons simply did not fall within the benefits of the common law right to possess arms. That law punished felons with automatic forfeiture of all goods, usually accompanied by death. We may presume that persons confined in gaols awaiting trial on criminal charges were also debarred from the possession of arms. On this view, the criminal law provides a historical justification for felon disarmament even if laws regulating gun safety do not. The premise of this argument—that the states permanently extinguished the rights of felons, either by death or operation of law, in the eighteenth and nineteenth centuries—is shaky. While it accurately describes the punishment of felons at English common law, the American picture is far more complex. It is true that at common law, the “idea of felony” was intertwined with the punishments of death and civil death. 4 William Commentaries on the Laws of England 98 (1769) (“The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them”); Civil death was a state in which a person “though living, was considered dead”—a status “very similar to natural death in that all civil rights were extinguished.” See Harry David Note, Civil Death—A New Look at an Ancient Doctrine, 988–89 (1970). As originally conceived, civil death signified “a transitional status in the period between a capital sentence and its execution.” Gabriel J. The New Civil Death: Rethinking Punishment in the Era of Mass Incarceration, It “was intended to merely settle the estate of an executed or banished felon.” During the period leading up to the founding, the connection between felonies and capital punishment started to fray. Once a short, specified list of offenses, felonies in England grew to “no less than an hundred and sixty,” which is likely what forced to define them in terms of their most common characteristic: capital punishment. See 4 97–98. But as the number of designated felonies continued to grow, so did the variations on punishment, especially in the American colonies. Throughout the seventeenth and eighteenth centuries, capital punishment in the colonies was used “sparingly,” and property crimes including variations on theft, burglary, and robbery “were, on the whole, not capital.” Lawrence M. Friedman, Crime and Punishment in American History 42 (1993). By the time the Constitution was ratified, James Wilson observed that while the term “felony” was once “very strongly connected with capital punishment,” that was no longer true. John D. Bessler, Cruel & Unusual 52–53 (quoting 2 The Works of James Wilson 348 (James DeWitt Andrews ed., 1896)); see also 6 Nathan Digest of American Law 715 (1823) (“[W]e have many felonies, not one punished with forfeiture of estate, and but a very few with death.”). Of course, many crimes remained eligible for the death penalty, and the extent to which that was true varied by state. Death, however, no longer inevitably followed a felony conviction. Because it was no longer defined with reference to a list of specific crimes or even a specific punishment, the definition of “felony” was difficult to pin down at the time of the founding. See Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, According to James Madison, “felony” was “a term of loose signification even in the common law of England,” but more so in the States where “[t]he meaning of the term [was] not precisely the same in any two of the States; and varie[d] in each with every revision of its criminal laws.” The Federalist No. 42, at 228 (J. R. Pole ed., 5); see also (“[T]he word felony, in the process of many centuries, has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is now impossible to know precisely in what sense we are to understand this word.”). The shift in punishment for felonies necessitated a shift in the meaning of civil death, which had been previously connected to a capital sentence. And so civil death came to be understood “as an incident of life conviction.” See ; see also But applying the ancient concept of civil death in this context proved difficult. Because “[i]mprisonment for life was a punishment unknown to the common law,” courts quickly realized that common-law civil death did not automatically apply. See ; Thus, courts soon decided that civil death applied only when statutes explicitly attached it to life sentences, and statutes did not universally do so. 8; see also (“But it is said that, by the rules of the common law, there is such a thing as a civil death as well as a natural death. We know that in England there are cases in which a man, although in full life, is said to be civilly dead, but I have not learned, until this case was brought before us, that there was but one kind of death known to our laws.”); ; And even when it applied to life sentences, the doctrine of civil death had to be at least partially reconceived because it had begun as a time-limited doctrine justified by the anticipation of natural death—it was “not a condition applicable potentially for decades.” See 160 U. Pa. L. Rev. at As courts hammered out the incongruities between civil death and continued life over the next century, they settled uncomfortably on an American version of civil death that required explicit statutory authorization and deprived a felon of many, but not all, rights.9 See, e.g., *461 –55 (suggesting that a life convict maintained a right to defend an action brought against him and certain property rights, including the ability to transfer property by will or deed). Of particular relevance to Kanter’s case, courts also struggled to determine how—if at all—the old concept of civil death applied to felons serving sentences for a term of years. Cases decided in the early nineteenth century, like and associated the loss of rights under a theory of civil death only with capital and life sentences. Later cases building on that reasoning held that the rights of felons serving less than life were merely suspended during the term of the sentence. See, e.g., In re Estate of Nerac, ; ; The upshot of this history for present purposes is that the consequences of a felony conviction were not as categorically severe as the governments suggest. Capital punishment was less pervasive than one might think. Outside the capital context, civil death applied exclusively to life sentences and only if authorized by statute—and even then, it was more modest than the ancient version because the convict retained some rights. Felons serving a term of years did not suffer civil death; their rights were suspended but not destroyed. In sum, a felony conviction and the loss of all rights did not necessarily go hand-in-hand. Because they did not go hand-in-hand, the argument that the severity of punishment at the founding implicitly sanctions the blanket stripping of rights from all felons, including those serving a term of years, is misguided. Those who ratified the Second Amendment would not have assumed that a free man, previously convicted, lived in a society without any rights and without the protection of law. This is not to say that felons could not lose rights under another theory. Indeed, state legislatures did explicitly exclude felons from the enjoyment of particular rights. See infra SectionC. But history confirms that the basis for the permanent and pervasive loss of all rights cannot be tied generally to one’s status as a convicted felon or to the uniform severity of punishment that befell the class. Even if it could be, though, one might reasonably ask: “So what?” We wouldn't draw this inference from the severity of founding-era punishment in other contexts—for example, we wouldn't say that *462 the state can deprive felons of the right to free speech because felons lost that right via execution at the time of the founding. The obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society. C. While scholars have not identified eighteenth or nineteenth century laws depriving felons of the right to bear arms, history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens. See Thomas M. Cooley, A Treatise on the Constitutional Limitations 29 (explaining that certain classes of people were “almost universally excluded” from the franchise for “want of capacity or of moral fitness”); Saul “Don't Know Much About History” The Current Crisis in Second Amendment Scholarship, (2) Some maintain that the right to bear arms is similarly limited by a virtue requirement. See, e.g., Don. B. Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs., Winter 1986, at 143, 146 (“[T]he right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally unbalanced, are deemed incapable of virtue.”). On this view, the legislature can disarm felons because of their poor character, without regard to whether they are dangerous. See The majority is sympathetic to this view. See Maj. Op. at 446. The problem with this argument is that virtue exclusions are associated with civic rights—individual rights that “require[ ] citizens to act in a collective manner for distinctly public purposes.” See Saul A New Paradigm for the Second Amendment, For example, the right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance. Similarly, individuals do not serve on juries for their own sake, but as part of the collective enterprise of administering justice. Some scholars have characterized the right to keep and bear arms as a civic right, because it was “one exercised by citizens, not individuals, who act together in a collective manner, for a distinctly public purpose: participation in a well regulated militia.” See & Saul explains: Perhaps the most accurate way to describe the dominant understanding of the right to bear arms in the Founding era is as a civic right. Such a right was not something that all persons could claim, but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner. Freedom of religion, freedom of the press, trial by jury were genuinely rights belonging to individuals and were treated differently than were civic rights such as militia service, or the right to sit on juries. 29 N. Ky. L. Rev. at And as a right that was exercised *463 for the benefit of the community (like voting and jury service), rather than for the benefit of the individual (like free speech or free exercise), it belonged only to virtuous citizens. however, expressly rejects the argument that the Second Amendment protects a purely civic right. F.3d 933, It squarely holds that “the Second Amendment confer[s] an individual right to keep and bear arms,” and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia, at 582–86, The “civic rights” approach runs headlong into both propositions. See (“[T]his virtuous-citizens-only conception of the right to keep and bear arms is closely associated with pre- interpretations of the Second Amendment by proponents of the ‘sophisticated collective rights model’ who rejected the view that the Amendment confers an individual right and instead characterized the right as a ‘civic right.’ ” ). The parties have introduced no evidence that virtue exclusions ever applied to individual, as opposed to civic, rights.10 And if virtue exclusions don't apply to individual rights, they don't apply to the Second Amendment. It bears emphasis that virtue exclusions from the exercise of civic rights were explicit. If the right to bear arms was similarly subject to a virtue exclusion, we would expect to see provisions expressly depriving felons of that right too—but we don't. By ten states' constitutions included provisions excluding or authorizing the exclusion of those who “had committed crimes, particularly felonies or so-called infamous crimes” from the franchise. See Alexander The Right to Vote 62–63 & tbl. A.7 (Kentucky, Vermont, Ohio, Louisiana, Indiana, Mississippi, Connecticut, Illinois, Alabama, Missouri). By 1857, twenty-four state constitutions included such provisions. The same crimes often “made a person ineligible to serve as a witness in a legal proceeding,” and to serve on a jury.11 State constitutions protecting the right to bear arms do not follow a similar pattern. Between 1790 and nine states enacted their own right-to-arms provisions in their constitutions. See 11 Tex. Rev. L. & Pol. at –09 (four more had *464 enacted such provisions prior to 1790). None of those provisions made an exception for criminals. And notably, seven of those nine states explicitly excluded or authorized the exclusion of certain criminals from the right to vote. Compare with at tbl. A.7 (the same seven state constitutions specifically excluded certain criminals from the right to vote). The same pattern held true in 1857. Compare –10, with at tbl. A.7. There is no basis, then, for assuming that a virtue requirement on the right to vote applies equally to the right to keep and bear arms. See (“We have found no historical evidence on the public meaning of the right to keep and bear arms indicating that ‘virtuousness’ was a limitation on one’s qualification for the right—contemporary insistence to the contrary falls somewhere between guesswork and ipse dixit.”).12 In sum, the available evidence suggests that the right to arms differs from rights that depend on civic virtue for enjoyment. The Second Amendment confers an individual right, intimately connected with the natural right of self-defense, and not limited to civic participation (i.e., militia service). By the very terms of the civic-rights argument, then, the right to arms would have been “treated differently” than rights like the right to vote or to sit on juries. See 29 N. Ky. L. Rev. at And that difference is borne out by historical treatment: we see no explicit criminal, or even more general virtue-based, exclusions from the right to bear arms like we do in other contexts. Thus, although the right protected by the Second Amendment is not unlimited, see its limits are not defined by a general felon ban tied to a lack of virtue or good character. I. The history canvassed in Part yields two conclusions that are important for present purposes. History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous. Our precedent is consistent with this principle: we have held that “Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.” Instead, the legislature can make that judgment on a class-wide basis. See And it may do so based on present-day judgments about categories of people whose possession of guns would endanger the public safety; as we said in * “exclusions need not mirror limits that were on the books in 1791.” Such restrictions are “lineal descendants” of historical laws banning dangerous people from possessing guns. See Transcript of Oral Argument at 77, (No. 07290) (Chief Justice Roberts: “[W]e are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.”). That said, “the government does not get a free pass simply because Congress has established a ‘categorical ban.’ ” United The government could quickly swallow the right if it had broad power to designate any group as dangerous and thereby disqualify its members from having a gun. See The legislature must be able to justify its designation, and the rigor with which we review this justification “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’ ” Ezell 846 F.3d at “Severe burdens on the core right of armed defense require a very strong public-interest justification and a close means-ends fit.” The majority contends that the means-end review should be “arguably less rigorous in this case because felon dispossession laws do not restrict the ‘core right of armed defense,’ but rather burden ‘activity lying closer to the margins of the right.’ ” Maj. Op. at 448 n.10 (quoting Ezell 846 F.3d at ). I disagree. First, felon dispossession statutes target the whole right, including its core: they restrict even mere possession of a firearm in the home for the purpose of self-defense. Cf. –35, (finding unconstitutional a law that made it impossible for citizens to use firearms for “the core lawful purpose of self-defense”); 8, (“[T]he inherent right of self-defense has been central to the Second Amendment right.”).13 And second, the burden is severe: it is a permanent disqualification from the exercise of a fundamental right. See Maj. Op. at 439–40; see also United (“[T]he broad scope of 922(g)(1)—which permanently disqualifies all felons from possessing firearms—would conflict with the ‘core’ self-defense right embodied in the Second Amendment.”). Thus, “a very strong public-interest justification and a close means-ends fit” is required before Kanter may be constitutionally subject to the United States and Wisconsin dispossession statutes. Ezell 846 F.3d at There is no question that the interest identified by the governments and supported by history—keeping guns out of the hands of those who are likely to misuse them—is very strong. And we have held *466 that several of the other categorical bans within 922(g) demonstrate the necessary fit between this public-safety end and the government’s chosen means. In we upheld 922(g)(9), which prohibits those convicted of domestic violence misdemeanors from possessing firearms, because “no one doubts that the goal of 922(g)(9), preventing armed mayhem, is an important governmental objective” and “[b]oth logic and data establish a substantial relation between 922(g)(9) and this objective.” 614 F.3d at ; see also In United States v. Yancey, we sustained 922(g)(3), which prohibits any person “who is an unlawful user of or addicted to any controlled substance” from possessing a gun, because “studies amply demonstrate the connection between chronic drug abuse and violent crime, and illuminate the nexus between Congress’s attempt to keep firearms away from habitual drug abusers and its goal of reducing violent crime.” And in United we rejected a challenge to 922(g)(5), which prohibits aliens unlawfully present in the United States from possessing firearms, reasoning that keeping guns out of the hands of “persons who are difficult to track and who have an interest in eluding law enforcement” serves the public-safety objectives of 922(g). In contrast to these narrowly defined categorical bans, 922(g)(1), which applies to all felons, is “wildly overinclusive.” Adam Scrutinizing the Second Amendment, Its application is not limited to those who have committed violent crimes like murder, assault, and rape.14 It also encompasses those who have committed any nonviolent felony or qualifying state-law misdemeanor—and that is an immense and diverse category. It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses. See Mass. Gen. Laws ch. 129, 39, 43; Mich. Comp. Laws 445.574a(1)(a), (2)(d); see also, e.g., 21 U.S.C. 676 ; 18 U.S.C. 1621 ; Mass. Gen. Laws ch. 266, 30A (shoplifting goods valued at $100).15 These *467 crimes, like many others captured by 922(g), “rais[e] no particular suspicion that the convict is a threat to public safety.” 105 Mich. L. Rev. at Put more colorfully, “It is hard to imagine how banning Martha Stewart or Enron’s Andrew Fastow from possessing a gun furthers public safety.” We have addressed the constitutionality of 922(g)(1) before. In United a defendant with a prior robbery conviction challenged the statute as applied to We held that the provision is constitutional as applied to violent felons, including the defendant in that (“Because was convicted of a violent felony, his claim that 922(g)(1) unconstitutionally infringes on his right to possess a firearm is without merit.”). But our decision came with an important qualification: we expressly noted that “ 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.” We asserted that “[e]ven if the government may face a difficult burden of proving 922(g)(1)’s ‘strong showing’ in future cases, it certainly satisfies its burden in this case, where [the defendant] challenges 922(g)(1) as it was applied to ” As a violent felon, the defendant in was in no position to challenge 922(g)(1) on the ground that its application to nonviolent felons is unconstitutional. See As a nonviolent felon, however, Kanter is in a position to make that argument. The first step in analyzing Kanter’s as-applied challenge is to consider whether banning all nonviolent felons is substantially related to the governments' interest in preventing future gun violence. See 616 F.3d at –93. held that because the characteristic common to all violent felons is a demonstrated propensity for violence, the ban on possessing firearms is constitutional as applied to all members of that class. –94. In contrast, and to state the obvious, the characteristic common to all nonviolent felons is that their criminal conduct was nonviolent.16 Thus, the reasoning that supports the categorical disarmament of violent felons—that past violence is predictive of future violence—simply does not apply. The governments argue, though, that being convicted of a nonviolent crime is also predictive of future violence. They try to support that position with statistics showing that nonviolent felons are likely to commit violent crimes in the future. These statistics are entirely unhelpful, however, because they lump all nonviolent felons together—and while some nonviolent felons may be likely to misuse firearms, the characteristics that make them risky cannot *468 be generalized to the whole class. For example, the characteristics of an individual convicted of a drug-related offense tell us little if anything about the tendency of an individual convicted of perjury—or, for that matter, mail fraud—to commit gun violence. The sheer diversity of crimes encompassed by these statutes makes it virtually impossible for the governments to show that banning all nonviolent felons from possessing guns is closely tailored to the goal of protecting the public safety. Thus, we must decide whether the statutes are unconstitutional as applied to Kanter in particular. See 616 F.3d at –93. If Kanter’s conviction—mail fraud—is substantially related to violent behavior, the governments can disarm him without regard to any personal circumstances or characteristics suggesting that he poses a low risk to public safety. But their case for tying mail fraud to a risk of future violence rests on a single study related to mail-fraud recidivism. See David Weisburd et al., White-Collar Crime and Criminal Careers This study suggests that almost 40% of individuals convicted of mail fraud were later rearrested. It does not say, however, whether those arrests were for violent or nonviolent offenses. Nor does it say what percentage of those individuals were convicted. A different portion of the same study suggests that 25% of all white-collar repeat offenders (on the numbers provided, I'll assume that means roughly 10% of those with a mail-fraud conviction, though we have been given no way to know)17 have an arrest for a violent crime. Id at 45. But it does not specify whether the violent arrest preceded or post-dated the white-collar arrests, and the numbers drop dramatically for those with only two total offenses, suggesting that a pattern of criminality, rather than a particular mail-fraud arrest, might be an indication of future dangerousness, see This study falls well short of establishing the “close means-ends fit” required before the governments may totally and permanently strip offenders like Kanter of the ability to exercise a fundamental right.18 This does not mean that Wisconsin and the United States cannot disarm Kanter. Even though the mail-fraud conviction, standing alone, is not enough, they might still be able to show that Kanter’s history or characteristics make him likely to misuse firearms. And if banning Kanter, in particular, from possessing a gun is substantially related to the governments' goal of “preventing armed mayhem,” then the statutes could be constitutionally applied to 614 F.3d at At this point, however, neither Wisconsin nor the United States has presented any evidence that Kanter would be dangerous if armed. Instead, as the majority notes, “Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions,” and he is “employed, married, and does not use illicit drugs, all of which correspond *469 with lower rates of recidivism.” Maj. Op. at 449. Absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms. * * * If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. 614 F.3d at that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[ ] the government through its paces,” see 616 F.3d at but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” I therefore dissent.

Lett v. City of Chicago

Kelvin Lett was an investigator in the Chicago municipal office that reviews allegations of police misconduct. In that role, Lett helped prepare an investigative report about a police shooting. Lett’s supervisor directed him to write in the report that police officers had planted a gun on the victim of the shooting, but Lett did not believe that the evidence supported that finding and refused. After he faced disciplinary consequences as a result, Lett sued his supervisors and the City of Chicago for retaliating against him in violation of the First Amendment. The district court dismissed all of Lett’s claims, and Lett now appeals, insisting that his refusal to alter the report constitutes protected citizen speech. But as the district court recognized, Davis v. City of Chicago, 889 F.3d 842 (7th Cir. 2018), squarely forecloses this argument. Because Lett spoke pursuant to his official duties and not as a private citizen when he refused to alter the report, the First Amendment does not apply. I. This case comes to us on a motion to dismiss, so we take the allegations in Lett’s complaint as true. Kubiak v. City of Chicago, 810 F.3d 476, 479 (7th Cir. 2016). Lett worked as an investigator for Chicago’s Civilian Office of Police Accountability (formerly known as the Independent Police Review Authority), a municipal office tasked with reviewing allegations of police misconduct. In 2016, Lett was working on an investigation into police involvement in a particular civilian shooting. The office’s Chief Administrator, Sharon Fairley, directed Lett to include in the report a finding that police officers had planted a gun on the victim of the shooting. Lett refused because he did not believe that the evidence supported that finding. Lett raised his concerns with Fairley’s deputy, who in turn shared them with Fairley. Not long after that, Lett was removed from his investigative team, then removed from investigative work altogether, and ultimately assigned to janitorial duties. Fairley then opened an internal investigation into Lett for disclosing confidential information. The internal investigation concluded that Lett had violated the *400 office’s confidentiality policy, and Fairley ordered that Lett be fired. Convinced that the internal investigation was a hit job, Lett initiated a grievance through his union. The grievance arbitrator, siding with Lett, ordered the office both to reinstate him with backpay and to expunge his record. But when Lett returned to his office, Fairley immediately placed him on administrative leave with pay. Lett was assigned on paper to the Chicago Police Department’s FOIA office, but in reality he was not allowed to return to work. Lett sued his supervisors, as well as the City of Chicago. Count 1, brought against all individual defendants under 42 U.S.C. § 1983, alleged that the supervisors had retaliated against Lett for his refusal to write false information in his report, in violation of his First Amendment rights. Count 2 asserted Monell liability under § 1983 for the City and for Fairley in her official capacity based on the supervisors’ actions.1 Because it concluded that Lett had acted as a public employee rather than as a private citizen when he refused to alter the investigative report, the district court dismissed these claims with prejudice under Fed. R. Civ. P. 12(b)(6). II. 1 2 For a public employee to prove retaliation in violation of the First Amendment, he must first establish that his speech was constitutionally protected. Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013). Although the First Amendment offers public employees some protection, “it does not empower them to ‘constitutionalize the employee grievance.’ ” Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citation omitted). A public employee’s speech is therefore only protected if (1) he spoke as a private citizen rather than in his capacity as a public employee; (2) he spoke on a matter of public concern; and (3) his interest in expressing the speech is “not outweighed by the state’s interests as an employer in ‘promoting effective and efficient public service.’ ” Swetlik, 738 F.3d at 825 (citation omitted). This appeal concerns the first element: whether Lett spoke as a private citizen when he refused to amend the investigative report. 3 Garcetti v. Ceballos supplies the test for distinguishing employee and citizen speech. Under Garcetti, the key question is whether the employee makes the relevant speech “pursuant to [his] official duties.” 547 U.S. at 421, 126 S.Ct. 1951. In other words, we ask whether the speech “owes its existence to a public employee’s professional responsibilities.” Id. If it does, then the employee speaks in his capacity as an employee rather than a private citizen and his speech is not protected. We applied Garcetti’s test to similar facts in Davis v. City of Chicago, 889 F.3d 842 (7th Cir. 2018). Lorenzo Davis was also an investigator in the Civilian Office of Police Accountability, and, like Lett, he alleged retaliation for his refusal to amend investigative reports. Each report contained a summary of the allegations of police misconduct and a finding on whether each allegation of misconduct was “sustained,” “not sustained,” “exonerated,” or “unfounded.” According to Davis, the Chief Administrator at the time directed him to change “sustained” findings and to alter his reports to reflect more favorably on police officers. Id. at 844. Because it was part of Davis’s professional responsibilities to revise his reports at the direction of his supervisors, we concluded that he made his refusal “pursuant to his official duties.” *401 Id. at 845 (alteration and citation omitted). In making that determination, we rejected Davis’s argument that drafting inaccurate or misleading reports could not have been part of his job duties. Id. We explained that “the fact that an employee may have good reasons to refuse an order, does ‘not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.’ ” Id. at 845–46 (citation omitted). The First Amendment therefore did not protect Davis’s speech. 4 Lett’s case bears more than a passing resemblance to the facts in Davis. Lett held the same job as Davis and alleges retaliation for the same activity: refusing to alter an investigative report that he was assigned to prepare. Just as in Davis, Lett would have had neither occasion nor reason to refuse the request if not for his job. In the language of Garcetti, Lett’s refusal to amend the report was “speech that owe[d] its existence” to his professional responsibilities. 547 U.S. at 421, 126 S.Ct. 1951. And while Lett contends that altering a report to include unsupported findings was necessarily outside his official job duties, Davis squarely forecloses that argument. As in Davis, the fact that Lett may have had a good reason to refuse to amend the report does not grant him a First Amendment cause of action. See Davis, 889 F.3d at 845–46. Lett nevertheless argues that Davis is distinguishable. He asserts that Davis was asked to alter his conclusions, whereas Lett was asked to lie about matters of fact—a distinction not mentioned by the majority opinion in Davis but emphasized in a concurrence. Id. at 846 (Hamilton, J., concurring). Try as he might, however, Lett cannot characterize his speech as relaying facts rather than conclusions. Fairley told Lett to add the finding that a gun was planted on the shooting victim. It is true that someone who personally observed the police handle the victim’s gun could know as a matter of fact whether the gun was planted or whether the victim carried it. But Lett never alleged that he or any of his superiors personally observed the events in the report. Instead, Lett was tasked with analyzing the evidence before him. Without the benefit of personal observation, a finding that the gun was or was not planted was necessarily a conclusion drawn based on inferences. Lett’s case is thus on all fours with Davis. Lett’s concern about his First Amendment right not to lie in sworn testimony is similarly misplaced. A public employee’s truthful sworn testimony made outside the scope of his official duties is citizen speech. Lane v. Franks, 573 U.S. 228, 134 S. Ct. 2369, 2379, 189 L.Ed.2d 312 (2014). Lett argues that we should expand Lane beyond sworn trial testimony to include his investigative report because it is likely that the report will be used in litigation. We need not address this argument, though, because Fairley did not ask Lett to add lies to the report—only conclusions with which Lett disagreed. And as we have already explained, the First Amendment does not protect Lett’s refusal to amend the investigative report. * * * The district court properly dismissed Lett’s claims against his supervisors and the City of Chicago, and we AFFIRM its judgment.

Barrett

majority

Kelvin Lett was an investigator in the Chicago municipal office that reviews allegations of police misconduct. In that role, Lett helped prepare an investigative report about a police shooting. Lett’s supervisor directed him to write in the report that police officers had planted a gun on the victim of the shooting, but Lett did not believe that the evidence supported that finding and refused. After he faced disciplinary consequences as a result, Lett sued his supervisors and the City of Chicago for retaliating against him in violation of the First Amendment. The district court dismissed all of Lett’s claims, and Lett now appeals, insisting that his refusal to alter the report constitutes protected citizen speech. But as the district court recognized, squarely forecloses this argument. Because Lett spoke pursuant to his official duties and not as a private citizen when he refused to alter the report, the First Amendment does not apply. I. This case comes to us on a motion to dismiss, so we take the allegations in Lett’s complaint as true. Lett worked as an investigator for Chicago’s Civilian Office of Police Accountability (formerly known as the Independent Police Review Authority), a municipal office tasked with reviewing allegations of police misconduct. In 2016, Lett was working on an investigation into police involvement in a particular civilian shooting. The office’s Chief Administrator, Sharon Fairley, directed Lett to include in the report a finding that police officers had planted a gun on the victim of the shooting. Lett refused because he did not believe that the evidence supported that finding. Lett raised his concerns with Fairley’s deputy, who in turn shared them with Fairley. Not long after that, Lett was removed from his investigative team, then removed from investigative work altogether, and ultimately assigned to janitorial duties. Fairley then opened an internal investigation into Lett for disclosing confidential information. The internal investigation concluded that Lett had violated the *400 office’s confidentiality policy, and Fairley ordered that Lett be fired. Convinced that the internal investigation was a hit job, Lett initiated a grievance through his union. The grievance arbitrator, siding with Lett, ordered the office both to reinstate him with backpay and to expunge his record. But when Lett returned to his office, Fairley immediately placed him on administrative leave with pay. Lett was assigned on paper to the Chicago Police Department’s FOIA office, but in reality he was not allowed to return to work. Lett sued his supervisors, as well as the City of Chicago. Count 1, brought against all individual defendants under alleged that the supervisors had retaliated against Lett for his refusal to write false information in his report, in violation of his First Amendment rights. Count 2 asserted Monell liability under 1983 for the City and for Fairley in her official capacity based on the supervisors’ actions.1 Because it concluded that Lett had acted as a public employee rather than as a private citizen when he refused to alter the investigative report, the district court dismissed these claims with prejudice under Fed. R. Civ. P. 12(b)(6). II. 1 2 For a public employee to prove retaliation in violation of the First Amendment, he must first establish that his speech was constitutionally protected. Although the First Amendment offers public employees some protection, “it does not empower them to ‘constitutionalize the employee grievance.’ ” A public employee’s speech is therefore only protected if (1) he spoke as a private citizen rather than in his capacity as a public employee; (2) he spoke on a matter of public concern; and (3) his interest in expressing the speech is “not outweighed by the state’s interests as an employer in ‘promoting effective and efficient public service.’ ” 738 F.3d at This appeal concerns the first element: whether Lett spoke as a private citizen when he refused to amend the investigative report. 3 supplies the test for distinguishing employee and citizen speech. Under Garcetti, the key question is whether the employee makes the relevant speech “pursuant to [his] official duties.” In other words, we ask whether the speech “owes its existence to a public employee’s professional responsibilities.” If it does, then the employee speaks in his capacity as an employee rather than a private citizen and his speech is not protected. We applied Garcetti’s test to similar facts in Lorenzo was also an investigator in the Civilian Office of Police Accountability, and, like Lett, he alleged retaliation for his refusal to amend investigative reports. Each report contained a summary of the allegations of police misconduct and a finding on whether each allegation of misconduct was “sustained,” “not sustained,” “exonerated,” or “unfounded.” According to the Chief Administrator at the time directed him to change “sustained” findings and to alter his reports to reflect more favorably on police officers. Because it was part of ’s professional responsibilities to revise his reports at the direction of his supervisors, we concluded that he made his refusal “pursuant to his official duties.” *401 In making that determination, we rejected ’s argument that drafting inaccurate or misleading reports could not have been part of his job duties. We explained that “the fact that an employee may have good reasons to refuse an order, does ‘not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.’ ” –46 The First Amendment therefore did not protect ’s speech. 4 Lett’s case bears more than a passing resemblance to the facts in Lett held the same job as and alleges retaliation for the same activity: refusing to alter an investigative report that he was assigned to prepare. Just as in Lett would have had neither occasion nor reason to refuse the request if not for his job. In the language of Garcetti, Lett’s refusal to amend the report was “speech that owe[d] its existence” to his professional responsibilities. And while Lett contends that altering a report to include unsupported findings was necessarily outside his official job duties, squarely forecloses that argument. As in the fact that Lett may have had a good reason to refuse to amend the report does not grant him a First Amendment cause of action. See 889 F.3d –46. Lett nevertheless argues that is distinguishable. He asserts that was asked to alter his conclusions, whereas Lett was asked to lie about matters of fact—a distinction not mentioned by the majority opinion in but emphasized in a concurrence. Try as he might, however, Lett cannot characterize his speech as relaying facts rather than conclusions. Fairley told Lett to add the finding that a gun was planted on the shooting victim. It is true that someone who personally observed the police handle the victim’s gun could know as a matter of fact whether the gun was planted or whether the victim carried it. But Lett never alleged that he or any of his superiors personally observed the events in the report. Instead, Lett was tasked with analyzing the evidence before him. Without the benefit of personal observation, a finding that the gun was or was not planted was necessarily a conclusion drawn based on inferences. Lett’s case is thus on all fours with Lett’s concern about his First Amendment right not to lie in sworn testimony is similarly misplaced. A public employee’s truthful sworn testimony made outside the scope of his official duties is citizen speech. Lett argues that we should expand Lane beyond sworn trial testimony to include his investigative report because it is likely that the report will be used in litigation. We need not address this argument, though, because Fairley did not ask Lett to add lies to the report—only conclusions with which Lett disagreed. And as we have already explained, the First Amendment does not protect Lett’s refusal to amend the investigative report. * * * The district court properly dismissed Lett’s claims against his supervisors and the City of Chicago, and we AFFIRM its judgment.

Lexington Insurance Company v. Hotai Insurance Company, Ltd.

Zurich Insurance (Taiwan), Ltd., and Taian Insurance Company, Ltd., are insurance companies based in Taiwan.1 Each provided worldwide products-liability insurance coverage to two Taiwanese companies that supplied parts and inventory to Trek Bicycle Corporation, which is based in Wisconsin. As part of their agreements with the Taiwanese companies, Zurich and Taian both recognized Trek as an additional insured covered by their policies. On the basis of that additional-insured status, Trek's primary insurer, Lexington Insurance Company, which is based in Massachusetts, sued Zurich and Taian in Wisconsin seeking indemnification for a products-liability settlement paid on Trek's behalf involving an accident that took place in Texas. The district court correctly concluded *877 that it lacked personal jurisdiction over Zurich and Taian, so we affirm its dismissal of the case. I. Trek, a bicycle manufacturer, maintains its corporate offices in Waterloo, Wisconsin. It is party to two purchase order agreements, both with Taiwanese companies, that are relevant to this appeal. One is an agreement with Giant Manufacturing Company to purchase bicycles that Trek markets and sells under its own brand name. The other is an agreement to purchase bicycle parts from Formula Hubs, Inc. Giant's purchase order agreement with Trek required it to have Trek named as an additional insured in its products-liability insurance policy with Zurich, a Taiwanese insurer. Under that policy, Zurich agreed to indemnify Giant and its listed vendors, including Trek, for judgments, expenses, and legal costs incurred “worldwide.” In addition, the Zurich policy (1) allowed Zurich to control the litigation or settlement of a covered claim but did not require it to do so; (2) included a Taiwanese choice of law provision; and (3) required disputes between Zurich and its insureds regarding the policy to be resolved by arbitration in Taiwan.2 Trek's purchase order with Formula involved a similar insurance arrangement. In it, Formula agreed to have Trek included as an additional insured in its products-liability insurance policy with Taian, another Taiwanese insurer. Under the policy, Taian agreed to indemnify Formula and its vendors, including Trek, for liability and defense costs incurred “worldwide.” Like the Zurich policy, the Taian policy gave Taian the right but not the obligation to control the litigation of a covered claim against an insured. Finally, it dictated that disputes concerning the policy would be subject to Taiwanese law and would have to submit to the jurisdiction of a Taiwanese court. In 2012, John Giessler, a Louisiana resident, was seriously injured while riding a rented Trek bicycle in Travis County, Texas. During his ride, the front wheel detached from the frame of the bicycle, Giessler fell, and the resulting injuries rendered him a quadriplegic. Giessler, his wife, and his son sued Trek, among others, in Texas. Although Giant had manufactured the bicycle that Giessler was riding, and Formula had manufactured the front-wheel release, neither was a party to Giessler's lawsuit. Lexington Insurance Company, which insures Trek through comprehensive general liability and commercial umbrella policies, defended Trek in the Giessler suit. Trek and Lexington attempted to notify Giant and Formula—and their respective insurers, Zurich and Taian—of Giessler's lawsuit. In the end, though, the case settled, and Lexington paid Giessler on Trek's behalf. Lexington sought reimbursement from Zurich and Taian; after they refused to pay, it sued them in the Western District of Wisconsin. It argued that both were obligated to indemnify Trek under their respective insurance policies with Giant and Formula. And presenting theories of contribution and equitable subrogation, Lexington contended that the Taiwanese insurers must pay it the money that they owed Trek. Both Zurich and Taian moved to dismiss the case for lack of personal jurisdiction and improper venue. With respect to the former, the insurers argued, among other things, that they lacked the necessary minimum contacts with Wisconsin to justify *878 the district court's exercise of jurisdiction over them—these policies were contracts between Taiwanese companies, drafted and signed in Taiwan, and governed by Taiwanese law. In response, Lexington contended that the worldwide coverage provisions and the inclusion of Trek as an additional insured in each policy constituted sufficient contacts with the state of Wisconsin to satisfy due process. The district court held that it lacked personal jurisdiction over the Taiwanese insurers, and Lexington appeals. II. 1 2 A federal court may exercise personal jurisdiction over a foreign defendant only to the extent permitted by the forum state's long-arm statute and by the Due Process Clause. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). The parties agree that Wisconsin's long-arm statute, Wis. Stat. § 801.05, reaches Zurich and Taian.3 The only question is whether the exercise of jurisdiction over the defendants satisfies the Due Process Clause. 3 4 To satisfy due process, a defendant's physical presence within the state is not required. Walden v Fiore, 571 U.S. 277, 283, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). But a foreign defendant “generally must have ‘certain minimum contacts ... such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” Id. (alteration in original) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In other words, the defendant's relationship with the forum state must be such that the defendant “should reasonably anticipate being haled into court there.” Felland, 682 F.3d at 673 (citation omitted). 5 6 7 Personal jurisdiction takes two forms—general and specific. General jurisdiction is all-purpose; it permits a defendant to be sued in a forum for any claim, regardless of whether the claim has any connection to the forum state. Goodyear Dunlop Tires Operations v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). For a state to have such extensive jurisdiction over a defendant, however, the defendant's contacts must be “so ‘continuous and systematic’ as to render [it] essentially at home in the forum state.” Id. (citation omitted). Lexington does not contend that either Zurich or Taian is “at home” in Wisconsin. Instead, it argues that the federal district court in Wisconsin has specific jurisdiction over the insurers. Specific jurisdiction “is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” Id. (citation omitted). 8 Specific jurisdiction has three “essential requirements.” Felland, 682 F.3d at 673. First, the defendant's contacts with the forum state must show that it “purposefully availed [itself] of the privilege of conducting business in the forum state or purposefully directed [its] activities at the state.” Id. Second, the plaintiff's alleged injury must have arisen out of the defendant's forum-related activities. Id. And finally, any exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. Id. 9 10 We begin with whether Zurich and Taian “purposefully availed [themselves] of the privilege of conducting business in the forum state or purposefully *879 directed [their] activities at” Wisconsin. See id. To answer this question, we look to see if there are “ ‘minimum contacts’ between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980) (citing Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154). The Supreme Court has emphasized that this analysis focuses on “the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.” Walden, 571 U.S. at 285, 134 S.Ct. 1115. The Due Process Clause protects a defendant from being forced to submit to the adjudicatory authority of a state with which it has not purposefully established a sufficient connection—and deliberate contact with the resident of a state is not the same thing as deliberate contact with the state itself. Id. at 285–86, 134 S.Ct. 1115; see also Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014). While the merits of this case turn on Zurich and Taian's relationship with Trek, personal jurisdiction turns on their relationship with Wisconsin. 11 12 13 Lexington has failed to demonstrate that either Zurich or Taian made any purposeful contact with Wisconsin before, during, or after the formation of the insurance contracts. They did not solicit Trek's business or target the Wisconsin market. See Int'l Shoe, 326 U.S. at 314, 66 S.Ct. 154 (defendant had salesmen in the forum exhibiting samples and soliciting orders from potential buyers); see also Daniel J. Hartwig Assocs. v. Kanner, 913 F.2d 1213, 1218–19 (7th Cir. 1990) (whether the defendant solicited the plaintiff's services is “significant” in the minimum-contacts analysis). They negotiated and drafted these contracts in Taiwan with Taiwanese companies. Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 467, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (defendants negotiated with Burger King's headquarters, which were located in the forum state). Both policies required disputes to be resolved in Taiwan according to the laws of Taiwan. Cf. id. at 465–66, 105 S.Ct. 2174 (contract dictated that the relationship between the parties be governed by the law in the forum state). Zurich and Taian did not visit Wisconsin or contact anyone residing there. Cf. id. at 466, 468, 105 S.Ct. 2174 (defendant attended management courses in the forum state in addition to communicating with headquarters in the forum state by mail and telephone). Indeed, Lexington points to no evidence that Zurich or Taian ever sent anything—even a copy of either insurance policy—to Wisconsin.4 Cf. Walden, 571 U.S. at 289, 134 S.Ct. 1115 (“Petitioner never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada. In short, when viewed through the proper lens—whether the defendant's actions connect him to the forum—petitioner formed no jurisdictionally relevant *880 contacts with Nevada.”). For personal jurisdiction to exist, “[t]he record must show that the defendants targeted the forum state.” Matlin v. Spin Master Corp., 921 F.3d 701, 706 (7th Cir. 2019). The record in this case does not show that either insurer targeted Wisconsin. Notwithstanding all of this, Lexington contends that two provisions in the insurance policies constitute sufficient contacts with the state of Wisconsin to satisfy the demands of due process. Both contracts acknowledged Trek as an additional insured and extended coverage for liabilities incurred “worldwide.” But neither of these provisions constitutes a contact with the state of Wisconsin, so they do not singly or together provide a basis for personal jurisdiction. 14 We can easily dispose of the first argument because it flatly contradicts Supreme Court precedent. The fact that Zurich and Taian may be liable to Trek does not give Wisconsin jurisdiction over them. As we have already explained, it is a defendant's contacts with the forum state, not with the plaintiff, that count. Even if Zurich and Taian had contracts with Trek—as opposed to contracts with Giant and Formula—a contract with a forum resident is not enough, standing alone, to establish jurisdiction in that forum. See Burger King, 471 U.S. at 478, 105 S.Ct. 2174 (“If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot.”); see also Walden, 571 U.S. at 286, 134 S.Ct. 1115 (“[A] defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”). To conclude that personal jurisdiction exists, we need to see evidence that Zurich and Taian reached out to Wisconsin during the formation and execution of these contracts. Burger King, 471 U.S. at 479, 105 S.Ct. 2174 (“It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts with the forum.”). There is no such evidence. In fact, the insurers never had any communication with Trek during the formation and execution of these contracts, much less any purposeful contact that touched the state of Wisconsin. A straightforward application of Burger King and Walden forecloses Lexington's argument. Lexington's second contention—that personal jurisdiction exists because the policies contained worldwide coverage provisions—also fails. The thrust of the argument is that Zurich and Taian derived financial benefit from affirmatively including Wisconsin (and Texas, and the rest of the world) in their territory of coverage—because the more extensive the geographic coverage, the higher the premium. The fact that the insurers generated income by including Wisconsin, Lexington says, means that the insurers did business in the state and can be sued there. And it argues that by agreeing to cover Trek for liabilities and defense costs incurred “worldwide,” Zurich and Taian bargained for the expectation of being sued anywhere, including Wisconsin.5 *881 As an initial matter, gaining a financial benefit by including Wisconsin in a territory of coverage is not the equivalent of “doing business in” Wisconsin. See Goodyear, 564 U.S. at 924, 131 S.Ct. 2846; Felland, 682 F.3d at 673. If a parent bets her fifth grader fifty dollars that it will rain in every single state during the month of June, she hasn't “done business” in all fifty states even though her profit will increase or decrease based on what happens in each—and even though her risk and potential profit would have been less if she had limited the territory to twenty-five states. A defendant does business in a forum state when it “purposefully avail[s] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 (emphasis added) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). Neither Zurich nor Taian “conducted activities” within Wisconsin. In fact, the Supreme Court has squarely rejected the proposition that such collateral financial benefits are purposeful contacts. See World-Wide Volkswagen, 444 U.S. at 298–99, 100 S.Ct. 580. In World-Wide Volkswagen, the plaintiffs purchased a vehicle in New York but later sustained personal injuries when they got into an accident while driving through Oklahoma. Id. at 288, 100 S.Ct. 580. They brought a products-liability action against the automobile retailer and wholesaler (both New York corporations that did no business in Oklahoma) in Oklahoma. Id. at 288, 295, 100 S.Ct. 580. The plaintiffs argued that because the automobile's “design and purpose” made it foreseeable that it would cause an injury in Oklahoma, id. at 295, 100 S.Ct. 580, and because the automobile companies received a financial benefit from selling a product with the ability to travel to across vast geographic areas (including the distance between New York and Oklahoma), they were subject to personal jurisdiction in Oklahoma, id. at 298, 100 S.Ct. 580. But the Supreme Court concluded that all of that added up to “no activity whatsoever in Oklahoma,” id. at 295, 100 S.Ct. 580: [I]t is contended that jurisdiction can be supported by the fact that petitioners earn substantial revenue from goods used in Oklahoma.... This argument seems to make the point that the purchase of automobiles in New York, from which the petitioners earn substantial revenue, would not occur but for the fact that the automobiles are capable of use in distant States like Oklahoma.... [T]he very purpose of an automobile is to travel .... However, financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with the State. Id. at 298–99, 100 S.Ct. 580. Just as the financial benefit gained by selling a product with the purpose and ability to travel to a vast number of distant forums is not itself business activity within those forums, so too here the financial benefit gained from broad geographic insurance coverage does not constitute “doing business” within the entire covered territory. 15 World-Wide Volkswagen also forecloses Lexington's argument that Zurich and Taian are subject to Wisconsin's jurisdiction because the “worldwide coverage” clause made it foreseeable that Trek might sue them anywhere in the world where Trek incurred liability. “ ‘[F]oreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” Id. at 295, 100 S.Ct. 580; see also Burger King, 471 U.S. at 474–75, 105 S.Ct. 2174; Hanson, 357 U.S. at 251, 254, 78 S.Ct. 1228; Advanced Tactical, 751 F.3d at 802. On the contrary, *882 permitting jurisdiction “based on general notions of fairness and foreseeability [ ] is inconsistent with the premises of lawful judicial power.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (plurality opinion). Only a defendant's actions can empower a state to exercise jurisdiction over him. Id.; see also World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 580 (“[T]he foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (emphasis added)). Given this principle, the “worldwide coverage” clause cannot justify Wisconsin's—or any other state's—exercise of jurisdiction over Zurich and Taian simply because the clause made suit in that state foreseeable. The clause can support jurisdiction only if the act of granting Trek “worldwide coverage” established a purposeful connection between the insurers and every American state, all of which are included in the covered territory. It did not. The “worldwide coverage” clause defined the territorial scope of the insurers’ obligation to Trek. But the presence of a state within the scope of coverage creates no purposeful connection between the insurers and that state. Consider Texas, which was the location of the accident, the suit, and the settlement. Zurich and Taian could have covered Trek's claim for this liability without ever touching Texas—for example, they could have mailed a check to Trek's headquarters in Wisconsin or sent the money electronically to an account located in another state or even another country. Indeed, if the covered territory had been limited, Zurich and Taian could have discharged their obligation by sending funds to an account located outside the covered territory. Jurisdiction depends on the defendant's actions, and payment of a covered claim is the only act that these policies required the insurers to perform. It is doubtful that the act of sending payment to an account located within a state is a contact sufficient to support personal jurisdiction. But even if it were, there is no necessary connection between the territory of coverage and the location of payment. Lexington claims that “myriad cases around the country” have recognized personal jurisdiction under these same circumstances. Yet almost every case that it cites involves an insurance policy with a duty-to-defend clause—and if Zurich and Taian had assumed a duty to defend Trek in any jurisdiction in which it incurred liability and structured their financial benefits on that obligation, this might be a different case. In that situation, courts have described the “expectation of being haled into court in a foreign state [a]s an express feature of [the] policy.” Rossman v. State Farm Mut. Auto. Ins. Co., 832 F.2d 282, 286 (4th Cir. 1987); see also Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 914 (9th Cir. 1990) (“[When] automobile liability insurers contract to indemnify and defend the insured for claims that will foreseeably result in litigation in foreign states ... litigation requiring the presence of the insurer is not only foreseeable, but it was purposefully contracted for by the insurer.”); see also, e.g., Ferrell v. West Bend Mut. Ins. Co., 393 F.3d 786, 790–91 (8th Cir. 2005); Payne v. Motorists' Mut. Ins. Cos., 4 F.3d 452, 454–57 (6th Cir. 1993). But see Hunt v. Erie Ins. Grp., 728 F.2d 1244, 1247 (9th Cir. 1984) (“Erie's failure to structure its policy to exclude the possibility of defending a suit wherever an injured claimant requires medical care cannot, in our view, fairly be characterized as an act by which Erie has purposefully availed itself of the privilege of conducting activities in California.”). Here, though, Zurich and Taian contracted for the right, not the obligation, to control litigation against their insureds. Thus, “the expectation *883 of being haled into court in a foreign state” was not “an express feature” of either policy. Rossman, 832 F.2d at 286. Preserving the right to defend Trek—as opposed to assuming a duty to do so—gave Zurich and Taian the option of deciding whether to avail themselves of the benefits and protections of the forum's laws and courts. They promised to indemnify Trek no matter where it incurred liability, but as we have already said, paying Trek did not require them to make any purposeful contact with a state in which Trek was sued. The absence of a duty-to-defend clause is decisive. Lexington has one case that is partly on its side: TH Agriculture & Nutrition, LLC v. Ace European Group Ltd. In that case, the Tenth Circuit said that “the issuance of an insurance policy that contains a worldwide territory-of-coverage clause and an option to defend the insured is sufficient to establish minimum contacts with the forum state.” 488 F.3d 1282, 1288 (10th Cir. 2007). Its “minimum contacts” analysis rests on the very premises that Lexington invokes to support jurisdiction here: “the foreseeability of litigation in foreign states ... based on the insurer's own actions” of including those states within the coverage area and the resulting financial benefits to the insurance company from offering broad geographic coverage. Id. at 1290. TH Agriculture offers Lexington very little help, because despite what it said about minimum contacts, the Tenth Circuit concluded that the forum state lacked personal jurisdiction over the insurers in that case. The presence of minimum contacts does not justify personal jurisdiction when haling a defendant into court in the forum state would violate traditional notions of fair play and substantial justice. 488 F.3d at 1292 (citing Burger King, 471 U.S. at 477–78, 105 S.Ct. 2174). This factor was dispositive in TH Agriculture. Id. (“[We] conclude that the exercise of personal jurisdiction over the Insurers in Kansas would be unreasonable.”). Thus, TH Agriculture extends Lexington nothing more than an opportunity to win the battle and lose the war. But in any event, we are unpersuaded by the Tenth Circuit's treatment of minimum contacts in TH Agriculture. Its discussion is not only inconsistent with Supreme Court precedent; it is also in significant tension with the Tenth Circuit's own precedent. In OMI Holdings, a duty-to-defend case decided almost a decade before TH Agriculture, the Tenth Circuit criticized the decisions of other circuits in duty-to-defend cases for relying heavily on “foreseeability—a position at odds with the Supreme Court's directive that foreseeability alone is an insufficient basis on which to establish minimum contacts.” OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1094 (10th Cir. 1998). It also expressed skepticism at the willingness of other circuits to assume “that by agreeing to defend its insured in any forum, an insurer foresees being sued by its own insured in any forum when a coverage dispute arises.” Id. at 1095. While it ultimately concluded that “contracting to defend the insured in the forum state” is a sufficient minimum contact with the forum, it stressed that this kind of contact is “qualitatively low on the due process scale.” Id.6 Notwithstanding these concerns, the Tenth Circuit inexplicably went even further in TH Agriculture by characterizing a territory-of-coverage clause as a sufficient contact with the forum state not only when an insurer assumes *884 the duty to defend the insured, but also when it merely preserves the right to do so. 488 F.3d at 1291. 16 In the years since the Tenth Circuit decided TH Agriculture, the Supreme Court has continued to stress that the foreseeability of suit in a forum is not enough to justify a state's exercise of jurisdiction over a defendant. See Walden, 571 U.S. at 284–86, 134 S.Ct. 1115; Nicastro, 564 U.S. at 882–83, 131 S.Ct. 2780 (plurality opinion). Given these cases, the Tenth Circuit might come out differently if it were presented with the “minimum contacts” question today. Regardless, we must follow the Court's admonition that the predictability of a plaintiff's action is not itself enough to justify a state's exercise of jurisdiction over a defendant. Walden, 571 U.S. at 286, 134 S.Ct. 1115. Zurich and Taian had a relationship with Trek, not Wisconsin. That relationship may have made it foreseeable that Trek would sue them in Trek's home state or another forum it found convenient.7 But “it is the defendant's actions, not his expectations, that empower a [foreign state] to subject him to judgment.” Nicastro, 564 U.S. at 883, 131 S.Ct. 2780 (plurality opinion). And Zurich and Taian did not make any purposeful contact with Wisconsin by promising to indemnify Trek for liability and defense costs that it incurred anywhere in the world. * * * Because Lexington failed to show that Zurich and Taian have sufficient minimum contacts with the state of Wisconsin, we agree with the district court that exercising jurisdiction over the insurance companies would violate due process. The district court's dismissal of the case for lack of personal jurisdiction is AFFIRMED.

Barrett

majority

Zurich Insurance (Taiwan), Ltd., and Taian Insurance Company, Ltd., are insurance companies based in Taiwan.1 Each provided worldwide products-liability insurance coverage to two Taiwanese companies that supplied parts and inventory to Trek Bicycle Corporation, which is based in Wisconsin. As part of their agreements with the Taiwanese companies, Zurich and Taian both recognized Trek as an additional insured covered by their policies. On the basis of that additional-insured status, Trek's primary insurer, Lexington Insurance Company, which is based in Massachusetts, sued Zurich and Taian in Wisconsin seeking indemnification for a products-liability settlement paid on Trek's behalf involving an accident that took place in Texas. The district court correctly concluded *877 that it lacked personal jurisdiction over Zurich and Taian, so we affirm its dismissal of the case. I. Trek, a bicycle manufacturer, maintains its corporate offices in Waterloo, Wisconsin. It is party to two purchase order agreements, both with Taiwanese companies, that are relevant to this appeal. One is an agreement with Giant Manufacturing Company to purchase bicycles that Trek markets and sells under its own brand name. The other is an agreement to purchase bicycle parts from Formula Hubs, Inc. Giant's purchase order agreement with Trek required it to have Trek named as an additional insured in its products-liability insurance policy with Zurich, a Taiwanese insurer. Under that policy, Zurich agreed to indemnify Giant and its listed vendors, including Trek, for judgments, expenses, and legal costs incurred “worldwide.” In addition, the Zurich policy (1) allowed Zurich to control the litigation or settlement of a covered claim but did not require it to do so; (2) included a Taiwanese choice of law provision; and (3) required disputes between Zurich and its insureds regarding the policy to be resolved by arbitration in Taiwan.2 Trek's purchase order with Formula involved a similar insurance arrangement. In it, Formula agreed to have Trek included as an additional insured in its products-liability insurance policy with Taian, another Taiwanese insurer. Under the policy, Taian agreed to indemnify Formula and its vendors, including Trek, for liability and defense costs incurred “worldwide.” Like the Zurich policy, the Taian policy gave Taian the right but not the obligation to control the litigation of a covered claim against an insured. Finally, it dictated that disputes concerning the policy would be subject to Taiwanese law and would have to submit to the jurisdiction of a Taiwanese court. In 2012, John Giessler, a Louisiana resident, was seriously injured while riding a rented Trek bicycle in Travis County, Texas. During his ride, the front wheel detached from the frame of the bicycle, Giessler fell, and the resulting injuries rendered him a quadriplegic. Giessler, his wife, and his son sued Trek, among others, in Texas. Although Giant had manufactured the bicycle that Giessler was riding, and Formula had manufactured the front-wheel release, neither was a party to Giessler's lawsuit. Lexington Insurance Company, which insures Trek through comprehensive general liability and commercial umbrella policies, defended Trek in the Giessler suit. Trek and Lexington attempted to notify Giant and Formula—and their respective insurers, Zurich and Taian—of Giessler's lawsuit. In the end, though, the case settled, and Lexington paid Giessler on Trek's behalf. Lexington sought reimbursement from Zurich and Taian; after they refused to pay, it sued them in the Western District of Wisconsin. It argued that both were obligated to indemnify Trek under their respective insurance policies with Giant and Formula. And presenting theories of contribution and equitable subrogation, Lexington contended that the Taiwanese insurers must pay it the money that they owed Trek. Both Zurich and Taian moved to dismiss the case for lack of personal jurisdiction and improper venue. With respect to the former, the insurers argued, among other things, that they lacked the necessary minimum contacts with Wisconsin to justify *878 the district court's exercise of jurisdiction over them—these policies were contracts between Taiwanese companies, drafted and signed in Taiwan, and governed by Taiwanese law. In response, Lexington contended that the worldwide coverage provisions and the inclusion of Trek as an additional insured in each policy constituted sufficient contacts with the state of Wisconsin to satisfy due process. The district court held that it lacked personal jurisdiction over the Taiwanese insurers, and Lexington appeals. II. 1 2 A federal court may exercise personal jurisdiction over a foreign defendant only to the extent permitted by the forum state's long-arm statute and by the Due Process Clause. The parties agree that Wisconsin's long-arm statute, reaches Zurich and Taian.3 The only question is whether the exercise of jurisdiction over the defendants satisfies the Due Process Clause. 3 4 To satisfy due process, a defendant's physical presence within the state is not required. v Fiore, But a foreign defendant “generally must have ‘certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” ). In other words, the defendant's relationship with the forum state must be such that the defendant “should reasonably anticipate being haled into court there.” 5 6 7 Personal jurisdiction takes two forms—general and specific. General jurisdiction is all-purpose; it permits a defendant to be sued in a forum for any claim, regardless of whether the claim has any connection to the forum state. Dunlop Tires For a state to have such extensive jurisdiction over a defendant, however, the defendant's contacts must be “so ‘continuous and systematic’ as to render [it] essentially at home in the forum state.” Lexington does not contend that either Zurich or Taian is “at home” in Wisconsin. Instead, it argues that the federal district court in Wisconsin has specific jurisdiction over the insurers. Specific jurisdiction “is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” 8 Specific jurisdiction has three “essential requirements.” First, the defendant's contacts with the forum state must show that it “purposefully availed [itself] of the privilege of conducting business in the forum state or purposefully directed [its] activities at the state.” Second, the plaintiff's alleged injury must have arisen out of the defendant's forum-related activities. And finally, any exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. 9 10 We begin with whether Zurich and Taian “purposefully availed [themselves] of the privilege of conducting business in the forum state or purposefully *879 directed [their] activities at” Wisconsin. See To answer this question, we look to see if there are “ ‘minimum contacts’ between the defendant and the forum State.” World-Wide (citing Int'l 326 U.S. at ). The Supreme Court has emphasized that this analysis focuses on “the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.” The Due Process Clause protects a defendant from being forced to submit to the adjudicatory authority of a state with which it has not purposefully established a sufficient connection—and deliberate contact with the resident of a state is not the same thing as deliberate contact with the state itself. at 285–86, While the merits of this case turn on Zurich and Taian's relationship with Trek, personal jurisdiction turns on their relationship with Wisconsin. 11 12 13 Lexington has failed to demonstrate that either Zurich or Taian made any purposeful contact with Wisconsin before, during, or after the formation of the insurance contracts. They did not solicit Trek's business or target the Wisconsin market. See Int'l (defendant had salesmen in the forum exhibiting samples and soliciting orders from potential buyers); see also Daniel J. Hartwig They negotiated and drafted these contracts in Taiwan with Taiwanese companies. Cf. Burger Both policies required disputes to be resolved in Taiwan according to the laws of Taiwan. Cf. at 465–66, (contract dictated that the relationship between the parties be governed by the law in the forum state). Zurich and Taian did not visit Wisconsin or contact anyone residing there. Cf. (defendant attended management courses in the forum state in addition to communicating with headquarters in the forum state by mail and telephone). Indeed, Lexington points to no evidence that Zurich or Taian ever sent anything—even a copy of either insurance policy—to Wisconsin.4 Cf. (“Petitioner never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada. In short, when viewed through the proper lens—whether the defendant's actions connect him to the forum—petitioner formed no jurisdictionally relevant *880 contacts with Nevada.”). For personal jurisdiction to exist, “[t]he record must show that the defendants targeted the forum state.” The record in this case does not show that either insurer targeted Wisconsin. Notwithstanding all of this, Lexington contends that two provisions in the insurance policies constitute sufficient contacts with the state of Wisconsin to satisfy the demands of due process. Both contracts acknowledged Trek as an additional insured and extended coverage for liabilities incurred “worldwide.” But neither of these provisions constitutes a contact with the state of Wisconsin, so they do not singly or together provide a basis for personal jurisdiction. 14 We can easily dispose of the first argument because it flatly contradicts Supreme Court precedent. The fact that Zurich and Taian may be liable to Trek does not give Wisconsin jurisdiction over them. As we have already explained, it is a defendant's contacts with the forum state, not with the plaintiff, that count. Even if Zurich and Taian had contracts with Trek—as opposed to contracts with Giant and Formula—a contract with a forum resident is not enough, standing alone, to establish jurisdiction in that forum. See Burger (“If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot.”); see also (“[A] defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”). To conclude that personal jurisdiction exists, we need to see evidence that Zurich and Taian reached out to Wisconsin during the formation and execution of these contracts. Burger (“It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts with the forum.”). There is no such evidence. In fact, the insurers never had any communication with Trek during the formation and execution of these contracts, much less any purposeful contact that touched the state of Wisconsin. A straightforward application of Burger and forecloses Lexington's argument. Lexington's second contention—that personal jurisdiction exists because the policies contained worldwide coverage provisions—also fails. The thrust of the argument is that Zurich and Taian derived financial benefit from affirmatively including Wisconsin (and Texas, and the rest of the world) in their territory of coverage—because the more extensive the geographic coverage, the higher the premium. The fact that the insurers generated income by including Wisconsin, Lexington says, means that the insurers did business in the state and can be sued there. And it argues that by agreeing to cover Trek for liabilities and defense costs incurred “worldwide,” Zurich and Taian bargained for the expectation of being sued anywhere, including Wisconsin.5 *881 As an initial matter, gaining a financial benefit by including Wisconsin in a territory of coverage is not the equivalent of “doing business in” Wisconsin. See ; If a parent bets her fifth grader fifty dollars that it will rain in every single state during the month of June, she hasn't “done business” in all fifty states even though her profit will increase or decrease based on what happens in each—and even though her risk and potential profit would have been less if she had limited the territory to twenty-five states. A defendant does business in a forum state when it “purposefully avail[s] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” (emphasis added) ). Neither Zurich nor Taian “conducted activities” within Wisconsin. In fact, the Supreme Court has squarely rejected the proposition that such collateral financial benefits are purposeful contacts. See World-Wide –99, In World-Wide the plaintiffs purchased a vehicle in New York but later sustained personal injuries when they got into an accident while driving through Oklahoma. They brought a products-liability action against the automobile retailer and wholesaler (both New York corporations that did no business in Oklahoma) in Oklahoma. 295, The plaintiffs argued that because the automobile's “design and purpose” made it foreseeable that it would cause an injury in Oklahoma, and because the automobile companies received a financial benefit from selling a product with the ability to travel to across vast geographic areas (including the distance between New York and Oklahoma), they were subject to personal jurisdiction in Oklahoma, But the Supreme Court concluded that all of that added up to “no activity whatsoever in Oklahoma,” : [I]t is contended that jurisdiction can be supported by the fact that petitioners earn substantial revenue from goods used in Oklahoma. This argument seems to make the point that the purchase of automobiles in New York, from which the petitioners earn substantial revenue, would not occur but for the fact that the automobiles are capable of use in distant States like Oklahoma. [T]he very purpose of an automobile is to travel However, financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with the State. –99, Just as the financial benefit gained by selling a product with the purpose and ability to travel to a vast number of distant forums is not itself business activity within those forums, so too here the financial benefit gained from broad geographic insurance coverage does not constitute “doing business” within the entire covered territory. 15 World-Wide also forecloses Lexington's argument that Zurich and Taian are subject to Wisconsin's jurisdiction because the “worldwide coverage” clause made it foreseeable that Trek might sue them anywhere in the world where Trek incurred liability. “ ‘[F]oreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” ; see also Burger –75, ; 254, ; Advanced 751 F.3d at On the contrary, *882 permitting jurisdiction “based on general notions of fairness and foreseeability [ ] is inconsistent with the premises of lawful judicial power.” J. McIntyre Mach., Only a defendant's actions can empower a state to exercise jurisdiction over him. ; see also World-Wide (“[T]he foreseeability that is critical to due process analysis is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (emphasis added)). Given this principle, the “worldwide coverage” clause cannot justify Wisconsin's—or any other state's—exercise of jurisdiction over Zurich and Taian simply because the clause made suit in that state foreseeable. The clause can support jurisdiction only if the act of granting Trek “worldwide coverage” established a purposeful connection between the insurers and every American state, all of which are included in the covered territory. It did not. The “worldwide coverage” clause defined the territorial scope of the insurers’ obligation to Trek. But the presence of a state within the scope of coverage creates no purposeful connection between the insurers and that state. Consider Texas, which was the location of the accident, the suit, and the settlement. Zurich and Taian could have covered Trek's claim for this liability without ever touching Texas—for example, they could have mailed a check to Trek's headquarters in Wisconsin or sent the money electronically to an account located in another state or even another country. Indeed, if the covered territory had been limited, Zurich and Taian could have discharged their obligation by sending funds to an account located outside the covered territory. Jurisdiction depends on the defendant's actions, and payment of a covered claim is the only act that these policies required the insurers to perform. It is doubtful that the act of sending payment to an account located within a state is a contact sufficient to support personal jurisdiction. But even if it were, there is no necessary connection between the territory of coverage and the location of payment. Lexington claims that “myriad cases around the country” have recognized personal jurisdiction under these same circumstances. Yet almost every case that it cites involves an insurance policy with a duty-to-defend clause—and if Zurich and Taian had assumed a duty to defend Trek in any jurisdiction in which it incurred liability and structured their financial benefits on that obligation, this might be a different case. In that situation, courts have described the “expectation of being haled into court in a foreign state [a]s an express feature of [the] policy.” ; see also Farmers Ins. (“[When] automobile liability insurers contract to indemnify and defend the insured for claims that will foreseeably result in litigation in foreign states litigation requiring the presence of the insurer is not only foreseeable, but it was purposefully contracted for by the insurer.”); see also, e.g., ; But see (“Erie's failure to structure its policy to exclude the possibility of defending a suit wherever an injured claimant requires medical care cannot, in our view, fairly be characterized as an act by which Erie has purposefully availed itself of the privilege of conducting activities in California.”). Here, though, Zurich and Taian contracted for the right, not the obligation, to control litigation against their insureds. Thus, “the expectation * of being haled into court in a foreign state” was not “an express feature” of either policy. Rossman, 832 F.2d at Preserving the right to defend Trek—as opposed to assuming a duty to do so—gave Zurich and Taian the option of deciding whether to avail themselves of the benefits and protections of the forum's laws and courts. They promised to indemnify Trek no matter where it incurred liability, but as we have already said, paying Trek did not require them to make any purposeful contact with a state in which Trek was sued. The absence of a duty-to-defend clause is decisive. Lexington has one case that is partly on its side: TH Agriculture & Nutrition, LLC v. Ace European Group Ltd. In that case, the Tenth Circuit said that “the issuance of an insurance policy that contains a worldwide territory-of-coverage clause and an option to defend the insured is sufficient to establish minimum contacts with the forum state.” Its “minimum contacts” analysis rests on the very premises that Lexington invokes to support jurisdiction here: “the foreseeability of litigation in foreign states based on the insurer's own actions” of including those states within the coverage area and the resulting financial benefits to the insurance company from offering broad geographic coverage. TH Agriculture offers Lexington very little help, because despite what it said about minimum contacts, the Tenth Circuit concluded that the forum state lacked personal jurisdiction over the insurers in that case. The presence of minimum contacts does not justify personal jurisdiction when haling a defendant into court in the forum state would violate traditional notions of fair play and substantial justice. (citing Burger –78, ). This factor was dispositive in TH Agriculture. Thus, TH Agriculture extends Lexington nothing more than an opportunity to win the battle and lose the war. But in any event, we are unpersuaded by the Tenth Circuit's treatment of minimum contacts in TH Agriculture. Its discussion is not only inconsistent with Supreme Court precedent; it is also in significant tension with the Tenth Circuit's own precedent. In OMI Holdings, a duty-to-defend case decided almost a decade before TH Agriculture, the Tenth Circuit criticized the decisions of other circuits in duty-to-defend cases for relying heavily on “foreseeability—a position at odds with the Supreme Court's directive that foreseeability alone is an insufficient basis on which to establish minimum contacts.” OMI Holdings, It also expressed skepticism at the willingness of other circuits to assume “that by agreeing to defend its insured in any forum, an insurer foresees being sued by its own insured in any forum when a coverage dispute arises.” While it ultimately concluded that “contracting to defend the insured in the forum state” is a sufficient minimum contact with the forum, it stressed that this kind of contact is “qualitatively low on the due process scale.” 6 Notwithstanding these concerns, the Tenth Circuit inexplicably went even further in TH Agriculture by characterizing a territory-of-coverage clause as a sufficient contact with the forum state not only when an insurer assumes *884 the duty to defend the insured, but also when it merely preserves the right to do so. 488 F.3d at 1. 16 In the years since the Tenth Circuit decided TH Agriculture, the Supreme Court has continued to stress that the foreseeability of suit in a forum is not enough to justify a state's exercise of jurisdiction over a defendant. See –86, ; –83, Given these cases, the Tenth Circuit might come out differently if it were presented with the “minimum contacts” question today. Regardless, we must follow the Court's admonition that the predictability of a plaintiff's action is not itself enough to justify a state's exercise of jurisdiction over a defendant. Zurich and Taian had a relationship with Trek, not Wisconsin. That relationship may have made it foreseeable that Trek would sue them in Trek's home state or another forum it found convenient.7 But “it is the defendant's actions, not his expectations, that empower a [foreign state] to subject him to judgment.” 564 U.S. at And Zurich and Taian did not make any purposeful contact with Wisconsin by promising to indemnify Trek for liability and defense costs that it incurred anywhere in the world. * * * Because Lexington failed to show that Zurich and Taian have sufficient minimum contacts with the state of Wisconsin, we agree with the district court that exercising jurisdiction over the insurance companies would violate due process. The district court's dismissal of the case for lack of personal jurisdiction is AFFIRMED.

Mathews v. REV Recreation Group, Inc.

Vanessa and Randy Mathews purchased an RV, which came with a one-year warranty from the manufacturer, REV Recreation Group, Inc. The RV was riddled with problems from the time that they bought it, and these problems ultimately led the Mathews to sue REV. We sympathize with the Mathews’ plight; they bought a lemon. But because they have not shown that REV failed to honor its warranties or that the warranty provisions were unconscionable, we must affirm the district court's grant of summary judgment to REV. I. Vanessa and Randy Mathews purchased a Holiday Rambler Presidential RV on May 7, 2014 from Mellott Brothers Trailer Sales, Inc. The RV came with a warranty from the manufacturer, REV Recreation Group, Inc., which limited both express and implied warranties to one year from the purchase date. To take advantage of the warranty, the Mathews had to notify REV or an authorized dealer within five days of discovering a defect. Moreover, the warranty stated that “[i]f the repair or replacement remedy fails to successfully cure a defect after [REV] received a reasonable opportunity to cure the defect[ ], your sole and exclusive remedy shall be limited to Warrantor paying you the costs of having an independent third party perform repair(s) to the defect(s).” The Mathews were told about the warranty when they bought the RV, but they were not initially given a hard copy. The Mathews say that they encountered problems with the RV almost as soon as they drove it off the lot. They called the dealership to report that there were issues with the interior lights, the refrigerator, and the leveling system. The Mellott Brothers service manager recommended that they go to an auto parts store and replace the fuses in order to fix the issues, which they did. The Mathews say that they also noticed other problems on this first trip: water leaked from the shower, and the TV and DVD player didn't work. But they didn't contact anyone about these issues. *621 A month later, the Mathews went on another trip and claim to have had even more difficulty: the converter was blowing fuses, the leveling jacks worked only intermittently, the curbside slide cable broke, and there were still problems with the TV and DVD player. After calling the Mellott Brothers again, the Mathews were given the number for REV so that they could locate an authorized repair center. REV told them that they could go to a local dealer near them, Johnson's RV, but would need to obtain approval from REV before the dealer performed repairs that would be covered under the warranty. Johnson's RV completed the repairs and told the Mathews that the repair work was covered, but neither the Mathews nor anyone from Johnson's RV ever contacted REV about this work (though notably, the Mathews were never forced to pay for the repairs). This happened again a few months later when Johnson's RV fixed the curbside slide cable—no one notified REV that repair work had been done. Around a month later, the Mathews contacted REV to inform them that they were having issues with the RV. REV arranged to repair the RV at its factory store. After completing the repairs, it issued an extended goodwill warranty for “defective workmanship or materials in manufacturing”—although the warranty specifically excluded an extension of the limited warranty “or any other warranties.” In March 2015, the Mathews again contacted REV, this time about problems with the cable for the air conditioning unit, the main slide, and the sealing tape on the slides. The Mathews asked REV to buy back the RV, but REV declined to do so and instead promised to repair the issues pursuant to the warranty. REV arranged to pick up the RV to repair it and once again extended the goodwill warranty. In May 2015, REV also provided the Mathews a copy of the warranty. REV returned the RV to the Mathews in June 2015, and the Mathews never again took the RV to REV or any other authorized or independent dealer for repair. Instead, their attorney sent a letter to REV in July 2015 alleging that it had breached its warranties. Fed up, the Mathews filed suit soon after. In their amended complaint, they alleged breaches of express and implied warranties, as well as violations of both the Indiana Deceptive Consumer Sales Act (IDCSA) and the Magnuson–Moss Warranty Act.1 They claimed that REV had failed to fix the TV, DVD player, and air conditioning/slide out seals. They also asserted that in 2016, after they had filed suit, they noticed problems with the kitchen cabinets, a latent issue with the water tank, and that the rear of the coach was falling out. The Mathews conceded, however, that they did not raise this second group of issues with REV within the one-year warranty period. REV moved for summary judgment on all counts, and the district court granted the motion. It explained that “while the facts and evidence support the Mathews’ contention that the RV had numerous problems, they do not support the allegations that REV failed to honor its warranties.” Because REV was not given a reasonable opportunity to cure any defects, the court said, REV did not breach its express or implied warranties. It also concluded that the warranty's limitations were not unconscionable. And because the alleged warranty violations had been the basis for the Matthews’ claims under both the IDCSA and the Magnuson–Moss Warranty *622 Act, the court held that those claims failed too. The Mathews appealed. Although, as the district court rightly noted, “[t]his case is a cluttered mess of immaterial factual disputes, unsupportable claims and maze-like presentation of arguments,” we gather that the Mathews raise the same arguments before us that they did below: that REV breached express and implied warranties and that REV violated both the IDCSA and the Magnuson–Moss Warranty Act. II. 1 The Mathews first argue that REV breached its express warranty. To prevail on a breach of warranty claim in Indiana, a plaintiff must prove (1) the existence of a warranty, (2) a breach, (3) causation, and (4) damages. See Peltz Const. Co. v. Dunham, 436 N.E.2d 892, 894 (Ind. Ct. App. 1982). REV argues that the Mathews cannot establish a breach because it repaired all of the issues that the Mathews presented to it during the warranty period. Indeed, the Mathews admit that they failed to give REV a chance to complete any new repairs after REV returned the RV to them in June 2015. But the Mathews argue that REV still breached the warranty because, under Indiana law, a warranty can be breached “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose.” Ind. Code § 26-1-2-719(2); see also Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 643 (Ind. Ct. App. 2004). The district court concluded that because the Mathews had not given REV a reasonable opportunity to cure the defects, which the warranty required, the warranty could not have failed in its essential purpose. See Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 783–84 (7th Cir. 2011) (explaining that, under Indiana law, the buyer has to give the seller a reasonable opportunity to cure “if the terms of the warranty impose that requirement”); Aamco Transmission v. Air Sys., Inc., 459 N.E.2d 1215, 1217 (Ind. Ct. App. 1984). We agree. 2 3 The Mathews rightly note that REV was in fact given a chance to fix at least some of the issues: the TV, the DVD player, and the air conditioning/slide out seals. But even assuming that we can count the repair attempts at Johnson's RV—and it's doubtful that we should because REV was not notified about them—REV had only two chances to fix each of these problems. Under Indiana law, two chances is not a reasonable opportunity to cure the defects such that the warranty failed of its essential purpose. Cf. General Motors Corp. v. Sheets, 818 N.E.2d 49, 53 (Ind. Ct. App. 2004) (explaining that under Indiana's Lemon Law, “[a] reasonable number of attempts is considered to have been undertaken if the nonconformity has been subject to repair at least four times but continues to exist or if the vehicle has been out of service for at least thirty business days and the nonconformity continues to exist” (emphasis added)); Mayew v. Chrysler, LLC, 2008 WL 4447707, at *4 (Del. Super. Ct. 2008) (explaining that under the Delaware Warranty Act, “a plaintiff must permit the dealer at least four opportunities to attempt to repair the alleged defect”). And even if the Mathews could show that REV had a reasonable opportunity to repair the RV's defects, the limited warranty did not fail in its essential purpose because the Mathews did not avail themselves of the contract's back-up remedy—which required that if REV failed to cure a defect, the Mathews’ “sole and exclusive remedy shall be limited to Warrantor paying you the costs of having an independent third party perform repair(s) to the defect(s).” *623 4 5 The Mathews next argue that REV breached the implied warranty of merchantability by selling them an RV that was not in merchantable condition at the time that they bought it. But here too the Mathews’ failure to give REV a reasonable opportunity to cure the alleged defects is fatal to their claim.2 Recognizing this, the Mathews instead contend that the warranty's limitations—for both the express and implied warranties—were unconscionable for two main reasons. First, they didn't receive a copy of the warranty at the time of purchase. Second, the one-year limited warranty period was an insufficient amount of time for them to recognize a latent defect like the water tank. Indiana courts have held that an unconscionable contract is one that “no sensible man not under delusion, duress or in distress would make, and ... no honest and fair man would accept.” Weaver v. Am. Oil Co., 257 Ind. 458, 276 N.E.2d 144, 146 (1971) (citation omitted). The district court correctly held that the Mathews’ arguments did not satisfy that standard. As for their claim that the warranty was unconscionable because they didn't receive a hard copy, the district court observed: [T]he Mathews were aware of the Limited Warranty and its terms, and even took advantage of it by having repair work done at REV's factory on two (and only two) occasions, so they cannot claim now that any of its terms or limitations are unconscionable based on the fact that they did not receive [a] physical copy of it at the time of sale. 6 In other words, the Mathews cannot have it both ways: relying on the contract when it works to their advantage to get repairs done and then alleging that it is unconscionable when it doesn't. See Dixon v. Monaco Coach Corp., 2009 WL 187837, at *3 (N.D. Ind. 2009) (“[T]he evidence is undisputed that the Dixons took advantage of the warranty prior to the filing of their claim, requesting and receiving numerous repairs from Monaco during the applicable warranty period. As such, the Dixons can not [sic] now argue that they are suddenly surprised by the application of the limited warranty and its terms relating to the filing of breach of warranty claims.”). And as for the Mathews’ contention that the warranty's one-year time limitation was unconscionable, the district court rightly noted that “[t]he possibility that a latent defect may exist is one of the risks present at the time the contract is formed, and does not, in and of itself, render a contract unconscionable.” (quoting Popham v. Keystone RV Co., 2016 WL 4993393, at *6 (N.D. Ind. 2016)). We thus agree with the district court that the contract's limited warranty was not unconscionable—it was not one that “no honest and fair man” would accept. See Weaver, 276 N.E.2d at 146. Finally, because the Mathews have not established that a warranty was breached or that the limitations in the warranty were unconscionable, their remaining claims under the IDCSA and Magnuson–Moss Warranty Act, which were based on the same arguments, fail as well. *624 * * * We are sympathetic to the Mathews; they were sold an RV that had problems from the day that they bought it. But because they have not established that REV breached its express or implied warranties—or any other law—we agree with the district court that their claims fail.

Barrett

majority

Vanessa and Randy Mathews purchased an RV, which came with a one-year warranty from the manufacturer, REV Recreation Group, Inc. The RV was riddled with problems from the time that they bought it, and these problems ultimately led the Mathews to sue REV. We sympathize with the Mathews’ plight; they bought a lemon. But because they have not shown that REV failed to honor its warranties or that the warranty provisions were unconscionable, we must affirm the district court's grant of summary judgment to REV. I. Vanessa and Randy Mathews purchased a Holiday Rambler Presidential RV on May 7, 2014 from Mellott Brothers Trailer Sales, Inc. The RV came with a warranty from the manufacturer, REV Recreation Group, Inc., which limited both express and implied warranties to one year from the purchase date. To take advantage of the warranty, the Mathews had to notify REV or an authorized dealer within five days of discovering a defect. Moreover, the warranty stated that “[i]f the repair or replacement remedy fails to successfully cure a defect after [REV] received a reasonable opportunity to cure the defect[ ], your sole and exclusive remedy shall be limited to Warrantor paying you the costs of having an independent third party perform repair(s) to the defect(s).” The Mathews were told about the warranty when they bought the RV, but they were not initially given a hard copy. The Mathews say that they encountered problems with the RV almost as soon as they drove it off the lot. They called the dealership to report that there were issues with the interior lights, the refrigerator, and the leveling system. The Mellott Brothers service manager recommended that they go to an auto parts store and replace the fuses in order to fix the issues, which they did. The Mathews say that they also noticed other problems on this first trip: water leaked from the shower, and the TV and DVD player didn't work. But they didn't contact anyone about these issues. *621 A month later, the Mathews went on another trip and claim to have had even more difficulty: the converter was blowing fuses, the leveling jacks worked only intermittently, the curbside slide cable broke, and there were still problems with the TV and DVD player. After calling the Mellott Brothers again, the Mathews were given the number for REV so that they could locate an authorized repair center. REV told them that they could go to a local dealer near them, Johnson's RV, but would need to obtain approval from REV before the dealer performed repairs that would be covered under the warranty. Johnson's RV completed the repairs and told the Mathews that the repair work was covered, but neither the Mathews nor anyone from Johnson's RV ever contacted REV about this work (though notably, the Mathews were never forced to pay for the repairs). This happened again a few months later when Johnson's RV fixed the curbside slide cable—no one notified REV that repair work had been done. Around a month later, the Mathews contacted REV to inform them that they were having issues with the RV. REV arranged to repair the RV at its factory store. After completing the repairs, it issued an extended goodwill warranty for “defective workmanship or materials in manufacturing”—although the warranty specifically excluded an extension of the limited warranty “or any other warranties.” In March 2015, the Mathews again contacted REV, this time about problems with the cable for the air conditioning unit, the main slide, and the sealing tape on the slides. The Mathews asked REV to buy back the RV, but REV declined to do so and instead promised to repair the issues pursuant to the warranty. REV arranged to pick up the RV to repair it and once again extended the goodwill warranty. In May 2015, REV also provided the Mathews a copy of the warranty. REV returned the RV to the Mathews in June 2015, and the Mathews never again took the RV to REV or any other authorized or independent dealer for repair. Instead, their attorney sent a letter to REV in July 2015 alleging that it had breached its warranties. Fed up, the Mathews filed suit soon after. In their amended complaint, they alleged breaches of express and implied warranties, as well as violations of both the Indiana Deceptive Consumer Sales Act (IDCSA) and the Magnuson–Moss Warranty Act.1 They claimed that REV had failed to fix the TV, DVD player, and air conditioning/slide out seals. They also asserted that in 2016, after they had filed suit, they noticed problems with the kitchen cabinets, a latent issue with the water tank, and that the rear of the coach was falling out. The Mathews conceded, however, that they did not raise this second group of issues with REV within the one-year warranty period. REV moved for summary judgment on all counts, and the district court granted the motion. It explained that “while the facts and evidence support the Mathews’ contention that the RV had numerous problems, they do not support the allegations that REV failed to honor its warranties.” Because REV was not given a reasonable opportunity to cure any defects, the court said, REV did not breach its express or implied warranties. It also concluded that the warranty's limitations were not unconscionable. And because the alleged warranty violations had been the basis for the Matthews’ claims under both the IDCSA and the Magnuson–Moss Warranty *622 Act, the court held that those claims failed too. The Mathews appealed. Although, as the district court rightly noted, “[t]his case is a cluttered mess of immaterial factual disputes, unsupportable claims and maze-like presentation of arguments,” we gather that the Mathews raise the same arguments before us that they did below: that REV breached express and implied warranties and that REV violated both the IDCSA and the Magnuson–Moss Warranty Act. II. 1 The Mathews first argue that REV breached its express warranty. To prevail on a breach of warranty claim in Indiana, a plaintiff must prove (1) the existence of a warranty, (2) a breach, (3) causation, and (4) damages. See Peltz Const. REV argues that the Mathews cannot establish a breach because it repaired all of the issues that the Mathews presented to it during the warranty period. Indeed, the Mathews admit that they failed to give REV a chance to complete any new repairs after REV returned the RV to them in June 2015. But the Mathews argue that REV still breached the warranty because, under Indiana law, a warranty can be breached “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose.” (2); see also The district court concluded that because the Mathews had not given REV a reasonable opportunity to cure the defects, which the warranty required, the warranty could not have failed in its essential purpose. See ; Aamco We agree. 2 3 The Mathews rightly note that REV was in fact given a chance to fix at least some of the issues: the TV, the DVD player, and the air conditioning/slide out seals. But even assuming that we can count the repair attempts at Johnson's RV—and it's doubtful that we should because REV was not notified about them—REV had only two chances to fix each of these problems. Under Indiana law, two chances is not a reasonable opportunity to cure the defects such that the warranty failed of its essential purpose. Cf. General Motors (explaining that under Indiana's Lemon Law, “[a] reasonable number of attempts is considered to have been undertaken if the nonconformity has been subject to repair at least four times but continues to exist or if the vehicle has been out of service for at least thirty business days and the nonconformity continues to exist” (emphasis added)); And even if the Mathews could show that REV had a reasonable opportunity to repair the RV's defects, the limited warranty did not fail in its essential purpose because the Mathews did not avail themselves of the contract's back-up remedy—which required that if REV failed to cure a defect, the Mathews’ “sole and exclusive remedy shall be limited to Warrantor paying you the costs of having an independent third party perform repair(s) to the defect(s).” *623 4 5 The Mathews next argue that REV breached the implied warranty of merchantability by selling them an RV that was not in merchantable condition at the time that they bought it. But here too the Mathews’ failure to give REV a reasonable opportunity to cure the alleged defects is fatal to their claim.2 Recognizing this, the Mathews instead contend that the warranty's limitations—for both the express and implied warranties—were unconscionable for two main reasons. First, they didn't receive a copy of the warranty at the time of purchase. Second, the one-year limited warranty period was an insufficient amount of time for them to recognize a latent defect like the water tank. Indiana courts have held that an unconscionable contract is one that “no sensible man not under delusion, duress or in distress would make, and no honest and fair man would accept.” The district court correctly held that the Mathews’ arguments did not satisfy that standard. As for their claim that the warranty was unconscionable because they didn't receive a hard copy, the district court observed: [T]he Mathews were aware of the Limited Warranty and its terms, and even took advantage of it by having repair work done at REV's factory on two (and only two) occasions, so they cannot claim now that any of its terms or limitations are unconscionable based on the fact that they did not receive [a] physical copy of it at the time of sale. 6 In other words, the Mathews cannot have it both ways: relying on the contract when it works to their advantage to get repairs done and then alleging that it is unconscionable when it doesn't. See (“[T]he evidence is undisputed that the Dixons took advantage of the warranty prior to the filing of their claim, requesting and receiving numerous repairs from Monaco during the applicable warranty period. As such, the Dixons can not [sic] now argue that they are suddenly surprised by the application of the limited warranty and its terms relating to the filing of breach of warranty claims.”). And as for the Mathews’ contention that the warranty's one-year time limitation was unconscionable, the district court rightly noted that “[t]he possibility that a latent defect may exist is one of the risks present at the time the contract is formed, and does not, in and of itself, render a contract unconscionable.” ). We thus agree with the district court that the contract's limited warranty was not unconscionable—it was not one that “no honest and fair man” would accept. See 276 N.E.2d at Finally, because the Mathews have not established that a warranty was breached or that the limitations in the warranty were unconscionable, their remaining claims under the IDCSA and Magnuson–Moss Warranty Act, which were based on the same arguments, fail as well. *624 * * * We are sympathetic to the Mathews; they were sold an RV that had problems from the day that they bought it. But because they have not established that REV breached its express or implied warranties—or any other law—we agree with the district court that their claims fail.

McCottrell v. White

As the plaintiffs briefed and argued this case, they would have lost it. They argued that the defendants violated the Eighth Amendment by discharging their weapons into the ceiling, rather than into the shot box, immediately after the fight had been broken up and there was no plausible need for that use of force. But they did not argue—and had no evidence to prove—that the defendants intentionally hit anyone. That deficit should have been fatal, because if the officers did not intend to hit anyone, they could not have done so “maliciously and sadistically,” as Whitley v. Albers requires. 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, “deliberate indifference” is not enough. The Supreme Court has drawn a clear distinction between the standard applicable to claims challenging the conditions of confinement and the standard applicable to claims challenging the use of excessive force. In Farmer v. Brennan, it explained *672 that prisoners challenging the conditions of their confinement must show that officials were deliberately indifferent to an excessive risk to inmate health or safety, and that “deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Put differently, deliberate indifference means criminal recklessness. Id. at 839–40, 114 S.Ct. 1970 (“[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for ‘deliberate indifference’ under the Eighth Amendment.”). The Court emphasized, however, that “ ‘application of the deliberate indifference standard is inappropriate’ in one class of prison cases: when ‘officials stand accused of using excessive physical force.’ ” Id. at 835, 114 S.Ct. 1970 (citation omitted); see also Whitley, 475 U.S. at 320, 106 S.Ct. 1078 (holding that the “deliberate indifference” standard does not apply in the context of prison security). In that context, “the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Whitley, 475 U.S. at 320–21, 106 S.Ct. 1078 (citation omitted). The Court has described this as a “very high state of mind” requirement—one much higher than the criminal recklessness necessary to show deliberate indifference. Farmer, 511 U.S. at 836, 114 S.Ct. 1970. The Whitley factors are designed to evaluate this “very high state of mind” by smoking out why the guard inflicted harm: was it to maintain discipline or for the satisfaction of hurting the prisoner? A guard who injures a prisoner by using force in the absence of a reasonable belief that a threat exists and without any effort to temper the severity of the force can be thought to knowingly will “the unjustified infliction of harm.” Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (emphasis added). In other words, those circumstances support an inference that the guard acted in extreme bad faith rather than “in a good faith effort to maintain or restore discipline.” Id. at 320, 106 S.Ct. 1078. An inmate cannot satisfy the “malicious and sadistic” standard without showing that a guard intended to hit or harm someone with his application of force. After all, if the guard did not intentionally apply force to a prisoner, how could he have had a malicious and sadistic intent to cause him pain? In the absence of an intent to exert force on someone, there is nothing for the Whitley factors to probe.1 That is presumably why the cases treat the intent to make physical contact as a given—I have been unable to find any case, in either the Supreme Court or our circuit, in which an excessive force claim did not involve force directly and intentionally applied to the plaintiff. (That is true, incidentally, of both successful and unsuccessful claims.) In Whitley, a guard deliberately shot the plaintiff in the knee, following orders to “shoot low at any prisoners climbing the stairs” behind an officer engaged in an effort to free a hostage. *673 475 U.S. at 316, 106 S.Ct. 1078. In Hudson v. McMillian, the guard “punched Hudson in the mouth, eyes, chest, and stomach while [another guard] held the inmate in place and kicked and punched him from behind.” 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). See also Wilkins v. Gaddy, 559 U.S. 34, 35, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (the officer “slammed [the plaintiff] onto the concrete floor” and “proceeded to punch, kick, knee, and choke [him].”). Our own excessive-force cases have been brought against officers who intentionally shot, tasered, physically assaulted, or pepper sprayed prisoners. See, e.g., Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 668 (7th Cir. 2012) (pepper spray); Lewis v. Downey, 581 F.3d 467, 475–78 (7th Cir. 2009) (taser); Fillmore v. Page, 358 F.3d 496, 501–05 (7th Cir. 2004) (assault); Kinney v. Indiana Youth Center, 950 F.2d 462, 464–65 (7th Cir. 1991) (gun-shot). Faced with this hole in the plaintiffs’ case, the majority gives them an assist by changing the case. It offers two theories of why the plaintiffs can show that the guards intended to shoot the inmates. First, it insists that the guards might have shot directly into the crowd of inmates, rather than at the ceiling. Second, it suggests that the guards might have intentionally tried to hit the inmates by bouncing buckshot off of the ceiling. Yet the plaintiffs did not raise the first argument at all before us, and the second argument consists of one oblique sentence in their brief. And in any event, there is insufficient evidence in the record to permit a reasonable juror to draw either conclusion. In the district court, the plaintiffs relied on the hearsay testimony of two other inmates to support the claim that the guards shot directly into the crowd. The defendants, in contrast, swore in their affidavits that they aimed at the ceiling. The district court resolved that issue against the plaintiffs. It stated: Plaintiffs have speculated that the Officer Defendants were aiming at them, but it is undisputed that they did not see where the Officer Defendants were aiming and there is no admissible evidence that would create a genuine factual dispute regarding where the Officer Defendants aimed. ... Plaintiffs have attempted to create a factual dispute by asserting that two inmates, identified only as “Rico” and “Fuzz,” told McCottrell that they observed one of the Officer Defendants aiming at the inmates. This statement, however, is inadmissible hearsay, and the Court may not consider it at the summary judgment stage. As a result, there is no evidence suggesting that the Officer Defendants aimed at the inmates. Memorandum Opinion and Order at 12 (record citations omitted). The plaintiffs have not challenged either the district court's evidentiary ruling or its conclusion that the plaintiffs had failed to create a factual dispute on this issue. That was a prudent choice. The district court's resolution of the hearsay issue was plainly correct, and without that testimony, the plaintiffs have no evidence that the officers shot into the crowd. It bears emphasis that this is so even if the officers lied in their affidavits about the direction of the shots. A plaintiff cannot discharge her burden simply by tearing the defendant's case down; “[i]nstead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the plaintiffs do not ask us to reverse this ruling, the majority, reading between the lines of the brief, maintains that “the plaintiffs’ arguments ... encompass *674 both the possibility that the shots were fired into the ceiling ... or toward the inmates.” Maj. Op. at 658. Yet in the absence of an explicit factual assertion that the officers fired into the crowd, much less an explicit request that we reverse the district court, it is safe to say that the plaintiffs have waived this argument on appeal. The majority resurrects the issue on its own, and—faulting the district court for failing to appreciate the significance of circumstantial evidence—concludes that the plaintiffs can rest on the fact that shots hit them to prove that the guards fired at them. That argument should have lost even if the plaintiffs had made it. One can draw two plausible inferences from the circumstantial evidence of the plaintiffs’ injury: the buckshot hit them either directly or by ricochet. The officers’ affidavits and the prison's internal affairs report, which asserts that the “[i]nmates were struck with pellets from the ricochet” of warning shots, support the ricochet theory.2 The plaintiffs introduced no admissible evidence in support of the “direct hit” theory.3 There is therefore insufficient evidence to permit a reasonable juror to find that fact in the plaintiffs’ favor. As for the claim that the guards indirectly aimed at the plaintiffs by intentionally bouncing buckshot off the ceiling and into the crowd: this too is an argument that the plaintiffs do not develop and that the evidence does not support. To be sure, the plaintiffs contend that the guards fired into the ceiling and that the buckshot then ricocheted and hit them. But to show that the guards intentionally shot them—as opposed to recklessly disregarding the risk that the buckshot would ricochet—the plaintiffs needed to introduce some evidence that guards were intentionally, albeit indirectly, aiming to hit them.4 For *675 example, the plaintiffs could have introduced evidence that the ceiling was composed of a material that made ricochet very likely; in that event, firing into the ceiling might be the functional equivalent of firing into the crowd. Rather than introducing such evidence, however, plaintiffs made the opposite argument: they insisted (as part of their effort to show that the guards shot directly into the crowd) that it is “ ‘unlikely that both defendants fired into [the] ceiling’ because the ceiling is acoustic tile and would not have caused a ricochet.” Memorandum Opinion and Order at 5 n.3. The most that the plaintiffs say to support a “deliberate ricochet” theory is that “a reasonable jury could [ ] determine that Defendants’ decision to shoot in the first place and their failure to hit the shot box intended to catch buckshot was because they did not want the buckshot caught.” The guards’ failure to hit the shot box is certainly evidence in the plaintiffs’ favor. But without any evidence of how likely ricochet was from the ceiling, the comparatively lower risk of ricochet from the shot box would not permit a reasonable jury to find that the officers pinballed buckshot off the ceiling with the intent to hit a prisoner. If the plaintiffs could win by showing that the guards recklessly put them at risk by firing warning shots into the ceiling after the fight on the floor was under control, I would agree that they could survive summary judgment. But because that is not the standard, I respectfully dissent.

Barrett

majority

As the plaintiffs briefed and argued this case, they would have lost it. They argued that the defendants violated the Eighth Amendment by discharging their weapons into the ceiling, rather than into the shot box, immediately after the fight had been broken up and there was no plausible need for that use of force. But they did not argue—and had no evidence to prove—that the defendants intentionally hit anyone. That deficit should have been fatal, because if the officers did not intend to hit anyone, they could not have done so “maliciously and sadistically,” as The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, “deliberate indifference” is not enough. The Supreme Court has drawn a clear distinction between the standard applicable to claims challenging the conditions of confinement and the standard applicable to claims challenging the use of excessive force. In v. Brennan, it explained *672 that prisoners challenging the conditions of their confinement must show that officials were deliberately indifferent to an excessive risk to inmate health or safety, and that “deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Put differently, deliberate indifference means criminal recklessness. at 839–0, (“[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for ‘deliberate indifference’ under the Eighth Amendment.”). The Court emphasized, however, that “ ‘application of the deliberate indifference standard is inappropriate’ in one class of prison cases: when ‘officials stand accused of using excessive physical force.’ ” (citation omitted); see also 75 U.S. at (holding that the “deliberate indifference” standard does not apply in the context of prison security). In that context, “the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” 75 U.S. at –21, (citation omitted). The Court has described this as a “very high state of mind” requirement—one much higher than the criminal recklessness necessary to show deliberate indifference. 511 U.S. at The factors are designed to evaluate this “very high state of mind” by smoking out why the guard inflicted harm: was it to maintain discipline or for the satisfaction of hurting the prisoner? A guard who injures a prisoner by using force in the absence of a reasonable belief that a threat exists and without any effort to temper the severity of the force can be thought to knowingly will “the unjustified infliction of harm.” (emphasis added). In other words, those circumstances support an inference that the guard acted in extreme bad faith rather than “in a good faith effort to maintain or restore discipline.” at An inmate cannot satisfy the “malicious and sadistic” standard without showing that a guard intended to hit or harm someone with his application of force. After all, if the guard did not intentionally apply force to a prisoner, how could he have had a malicious and sadistic intent to cause him pain? In the absence of an intent to exert force on someone, there is nothing for the factors to probe.1 That is presumably why the cases treat the intent to make physical contact as a given—I have been unable to find any case, in either the Supreme Court or our circuit, in which an excessive force claim did not involve force directly and intentionally applied to the plaintiff. (That is true, incidentally, of both successful and unsuccessful claims.) In a guard deliberately shot the plaintiff in the knee, following orders to “shoot low at any prisoners climbing the stairs” behind an officer engaged in an effort to free a hostage. *673 See also 559 U.S. 3, Our own excessive-force cases have been brought against officers who intentionally shot, tasered, physically assaulted, or pepper sprayed prisoners. See, e.g., Rice ex rel. ; 581 F.3d 67, 75–78 ; 8 F.3d 96, (7th Cir. 200) ; 950 F.2d 62, 6–65 Faced with this hole in the plaintiffs’ case, the majority gives them an assist by changing the case. It offers two theories of why the plaintiffs can show that the guards intended to shoot the inmates. First, it insists that the guards might have shot directly into the crowd of inmates, rather than at the ceiling. Second, it suggests that the guards might have intentionally tried to hit the inmates by bouncing buckshot off of the ceiling. Yet the plaintiffs did not raise the first argument at all before us, and the second argument consists of one oblique sentence in their brief. And in any event, there is insufficient evidence in the record to permit a reasonable juror to draw either conclusion. In the district court, the plaintiffs relied on the hearsay testimony of two other inmates to support the claim that the guards shot directly into the crowd. The defendants, in contrast, swore in their affidavits that they aimed at the ceiling. The district court resolved that issue against the plaintiffs. It stated: Plaintiffs have speculated that the Officer Defendants were aiming at them, but it is undisputed that they did not see where the Officer Defendants were aiming and there is no admissible evidence that would create a genuine factual dispute regarding where the Officer Defendants aimed. Plaintiffs have attempted to create a factual dispute by asserting that two inmates, identified only as “Rico” and “Fuzz,” told McCottrell that they observed one of the Officer Defendants aiming at the inmates. This statement, however, is inadmissible hearsay, and the Court may not consider it at the summary judgment stage. As a result, there is no evidence suggesting that the Officer Defendants aimed at the inmates. Memorandum Opinion and Order at 12 (record citations omitted). The plaintiffs have not challenged either the district court's evidentiary ruling or its conclusion that the plaintiffs had failed to create a factual dispute on this issue. That was a prudent choice. The district court's resolution of the hearsay issue was plainly correct, and without that testimony, the plaintiffs have no evidence that the officers shot into the crowd. It bears emphasis that this is so even if the officers lied in their affidavits about the direction of the shots. A plaintiff cannot discharge her burden simply by tearing the defendant's case down; “[i]nstead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” 77 U.S. 22, Although the plaintiffs do not ask us to reverse this ruling, the majority, reading between the lines of the brief, maintains that “the plaintiffs’ arguments encompass *67 both the possibility that the shots were fired into the ceiling or toward the inmates.” Maj. Op. at 658. Yet in the absence of an explicit factual assertion that the officers fired into the crowd, much less an explicit request that we reverse the district court, it is safe to say that the plaintiffs have waived this argument on appeal. The majority resurrects the issue on its own, and—faulting the district court for failing to appreciate the significance of circumstantial evidence—concludes that the plaintiffs can rest on the fact that shots hit them to prove that the guards fired at them. That argument should have lost even if the plaintiffs had made it. One can draw two plausible inferences from the circumstantial evidence of the plaintiffs’ injury: the buckshot hit them either directly or by ricochet. The officers’ affidavits and the prison's internal affairs report, which asserts that the “[i]nmates were struck with pellets from the ricochet” of warning shots, support the ricochet theory.2 The plaintiffs introduced no admissible evidence in support of the “direct hit” theory.3 There is therefore insufficient evidence to permit a reasonable juror to find that fact in the plaintiffs’ favor. As for the claim that the guards indirectly aimed at the plaintiffs by intentionally bouncing buckshot off the ceiling and into the crowd: this too is an argument that the plaintiffs do not develop and that the evidence does not support. To be sure, the plaintiffs contend that the guards fired into the ceiling and that the buckshot then ricocheted and hit them. But to show that the guards intentionally shot them—as opposed to recklessly disregarding the risk that the buckshot would ricochet—the plaintiffs needed to introduce some evidence that guards were intentionally, albeit indirectly, aiming to hit them. For *675 example, the plaintiffs could have introduced evidence that the ceiling was composed of a material that made ricochet very likely; in that event, firing into the ceiling might be the functional equivalent of firing into the crowd. Rather than introducing such evidence, however, plaintiffs made the opposite argument: they insisted (as part of their effort to show that the guards shot directly into the crowd) that it is “ ‘unlikely that both defendants fired into [the] ceiling’ because the ceiling is acoustic tile and would not have caused a ricochet.” Memorandum Opinion and Order at 5 n.3. The most that the plaintiffs say to support a “deliberate ricochet” theory is that “a reasonable jury could [ ] determine that Defendants’ decision to shoot in the first place and their failure to hit the shot box intended to catch buckshot was because they did not want the buckshot caught.” The guards’ failure to hit the shot box is certainly evidence in the plaintiffs’ favor. But without any evidence of how likely ricochet was from the ceiling, the comparatively lower risk of ricochet from the shot box would not permit a reasonable jury to find that the officers pinballed buckshot off the ceiling with the intent to hit a prisoner. If the plaintiffs could win by showing that the guards recklessly put them at risk by firing warning shots into the ceiling after the fight on the floor was under control, I would agree that they could survive summary judgment. But because that is not the standard, I respectfully dissent.

Morales v. Barr

Yeison Meza Morales is a native and citizen of Mexico who entered the United States without inspection as a child. As an adult, Meza Morales petitioned for U nonimmigrant status, a special visa for victims of certain crimes. While his petition was pending, he was charged as removable based on two grounds of inadmissibility. Meza Morales cited his pending U visa petition as a defense to his removal. The immigration judge agreed to waive both grounds of inadmissibility to allow him to pursue the U visa petition, but later ordered Meza Morales removed as charged on those same grounds. Meza Morales petitioned us for review of the removal order. He contends that the immigration judge's initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal. We disagree; Meza Morales's position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. We nevertheless grant his petition for review on two other bases. Meza Morales had asked the immigration judge to continue or administratively close his case instead of ordering removal. The immigration *632 judge entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the Board affirmed on the same basis. But those alternatives were wrongly rejected. We grant the petition for review and remand the case so that the Board can reconsider. I. A noncitizen who becomes a victim of certain crimes while in the United States may petition for U nonimmigrant status—more commonly known as a U visa. 8 U.S.C. § 1101(a)(15)(U). Congress created the visa to encourage crime victims to report crimes and assist law enforcement with investigation and prosecution. A U visa generally entitles an eligible noncitizen to lawfully remain in the United States and to seek work authorization. Id. § 1184(p)(6). The decision whether to grant a U visa petition is committed by statute to the Secretary of Homeland Security, who exercises this authority through U.S. Customs & Immigration Services (USCIS). See 8 C.F.R. § 214.14. To qualify for a U visa, a noncitizen must satisfy four substantive criteria: (1) he must have suffered “substantial physical or mental abuse” as the result of one of the crimes listed in the U visa provision; (2) he must possess credible and reliable knowledge of the details of the crime; (3) he must help or be likely to be helpful in the investigation or prosecution of the crime; and (4) the crime must have taken place in the United States. Id. § 214.14(b). In addition to those specific requirements, a noncitizen seeking a U visa must be “admissible” to the United States—in other words, eligible for a visa and lawful entry into the United States. 8 U.S.C. § 1182(a). There are several reasons why a noncitizen may be “inadmissible” and therefore ineligible for a visa. Among them are convictions for certain crimes and being present in the United States without having been inspected and authorized by an immigration official. See id. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i). But inadmissibility is not a complete obstacle to acquiring a U visa; a noncitizen can apply to have her inadmissibility waived for the purpose of petitioning for U nonimmigrant status. In this circuit, there are two ways for a U visa petitioner to secure a waiver of inadmissibility. The first is by application to USCIS. Congress provided that the Secretary of Homeland Security can waive almost any ground of inadmissibility for a noncitizen who is applying for a U visa. 8 U.S.C. § 1182(d)(14). USCIS implements this U visa inadmissibility waiver program on behalf of the Secretary, granting a waiver application if it determines that it is “in the public or national interest” to do so. 8 C.F.R. § 212.17(b)(1). Because USCIS is also the office that decides whether to grant or deny U visas, a noncitizen pursuing this route may seek a waiver and a U visa at the same time. Id. § 214.14(c)(2)(iv). 1 2 U visa petitioners in this circuit have an additional option for obtaining a waiver of inadmissibility. Congress gave the Attorney General the authority to waive most grounds of inadmissibility listed in § 1182(a) for certain noncitizens seeking admission. 8 U.S.C. § 1182(d)(3)(A). In L.D.G. v. Holder, we held that the Attorney General's general inadmissibility waiver authority extends to U visa petitioners, notwithstanding the narrower provision allowing the Secretary of Homeland Security to waive inadmissibility specifically for U visa applicants. 744 F.3d 1022, 1030 (7th Cir. 2014). Thus, U visa petitioners can seek a waiver of inadmissibility from the Attorney General as *633 well as from USCIS.1 And as delegates of the Attorney General, immigration judges have the power to grant waivers of inadmissibility—for example, during removal proceedings when noncitizens invoke their forthcoming U visa petition as a defense to removal. Baez-Sanchez v. Sessions, 872 F.3d 854, 856 (7th Cir. 2017). This alternative waiver procedure can create coordination problems because two different arms of the executive branch grant the waiver and the visa. These coordination problems are on full display in this case. But before we get to the procedural posture of Meza Morales's case, another feature of the U visa scheme bears mention: the waiting list. By statute, USCIS may issue no more than 10,000 U visas per calendar year. 8 U.S.C. § 1184(p)(2)(A). Many more than 10,000 applicants meet the criteria for U status each year, see L.D.G., 744 F.3d at 1024, so USCIS places on a waiting list all eligible U visa petitioners who would be granted a visa if not for the statutory cap. 8 C.F.R. § 214.14(d)(2). It grants U visas to petitioners on the waiting list in chronological order. Id. In the meantime, petitioners on the U visa waiting list are granted deferred action—a form of prosecutorial discretion that allows a noncitizen to lawfully remain in the United States for a fixed period of time but does not provide legal status. Id. It is the policy of Immigration and Customs Enforcement (ICE), the office within the Department of Homeland Security (DHS) responsible for immigration enforcement, not to deport a U visa petitioner who has been placed on the waitlist and granted deferred action. Revision of Stay of Removal Request Reviews for U Visa Petitioners, U.S. Immigr. & Customs Enforcement (Aug. 2, 2019), https://www.ice.gov/factsheets/revision-stay-removal-request-reviews-u-visa-petitioners [hereinafter ICE Fact Sheet]. With the U visa scheme laid out, we turn to the present case. Meza Morales is a native and citizen of Mexico. As a child, he entered the United States without inspection in December 2002, and he has lived in the United States ever since. In October 2013, Meza Morales was walking home through his neighborhood in Indianapolis when he encountered a group of men arguing. He ran from them, but one of the men shot him in the ankle while he was running. Meza Morales recovered from the shooting and cooperated in the police investigation that followed. As a shooting victim, Meza Morales applied for a U visa in August 2017. But before USCIS acted on his U visa petition, ICE initiated removal proceedings against him. In early 2018, DHS charged Meza Morales as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being admitted and under 8 U.S.C. § 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of marijuana. The immigration judge deemed him removable under both charges. Meza Morales, appearing pro se, admitted both charges but explained that he was a crime victim and had already applied for a U visa. The immigration judge agreed to continue the removal proceedings for thirty days to allow USCIS to adjudicate the *634 pending visa petition. The immigration judge also granted a waiver of inadmissibility for purposes of his U visa petition under 8 U.S.C. § 1182(d)(3)(A), as permitted by L.D.G. Thirty days later, USCIS still had not made a decision on Meza Morales's U visa petition. In his next appearance, Meza Morales asked the immigration judge either to continue the case further or to administratively close it—two procedural devices that allow an immigration judge to temporarily set aside a pending case. The immigration judge rejected both options and instead entered an order of removal. Meza Morales appealed to the Board of Immigration Appeals, arguing that the removal order was inconsistent with the waiver and that the immigration judge should have entered a continuance or administrative closure. The Board affirmed the removal order, and soon ICE began the process of removing Meza Morales. He applied to our court for an emergency stay of removal, which we granted. Then, collateral to the removal proceedings, USCIS adjudicated his U visa petition. The office deemed him eligible for a U visa but placed him on the waiting list due to the statutory cap. It then granted Meza Morales deferred action, and accordingly, released him from detention. The removal order remains on the books, though, and Meza Morales continues to petition our court for review of it. II. 3 Before we can assess the merits of Meza Morales's petition, we must assure ourselves of our jurisdiction. By statute, we have jurisdiction to address questions of law raised in a petition for review from a final removal order. 8 U.S.C. § 1252(a)(2)(D). The government contends that this appeal became moot, though, when USCIS finally adjudicated Meza Morales's U visa petition and placed him on the waiting list. 4 5 Federal court jurisdiction is limited to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (citation omitted). If developments in a case make it impossible for a court to grant “any effectual relief whatever” to the prevailing party, then we must dismiss the appeal as moot. Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895). According to the government, it is no longer possible for our court to grant Meza Morales any effectual relief. The government misunderstands both the relief that Meza Morales requests and the effect of his U visa adjudication. The crux of Meza Morales's appeal is that the immigration judge was wrong to order him removed instead of granting a continuance or administrative closure. The relief that he has requested all along is vacatur of the removal order. It is still possible for us to grant that relief because the removal order remains in place. By regulation, favorable adjudication of a U visa petition does not automatically cancel a removal order entered by an immigration judge. 8 C.F.R. § 214.14(c)(5)(i). Meza Morales may seek to cancel the removal order by filing a motion to reopen and terminate removal proceedings, but cancelation is not guaranteed. Id. (ICE retains the discretion not to join a motion to reopen, but the Attorney General understandably cannot promise that ICE would join a motion to reopen if Meza Morales filed one. Id.) Since the removal order remains in effect, it is still possible for us to grant Meza Morales the relief that he requests. *635 True, Meza Morales may not in fact be removed anytime soon because it is ICE policy not to remove a noncitizen who is placed on the U visa waiting list and granted deferred action. ICE Fact Sheet. But protection from removal is not guaranteed. USCIS retains discretion to remove him from the waiting list and withdraw his deferred action. 8 C.F.R. § 214.14(d)(3). Meza Morales's controversy therefore remains live, and we proceed to the merits. III. Meza Morales raises three challenges to the Board's decision affirming the order of removal. First, he contends that it is logically inconsistent for an immigration judge to enter a removal order on the same grounds of inadmissibility that the immigration judge has already waived. Second, he argues that the Board misapplied relevant precedents in considering whether another continuance was warranted. And third, he asserts that the Board was wrong to hold that immigration judges lack the power to administratively close cases. We address each argument in turn. A. 6 Meza Morales first argues that it is legal error to enter a removal order after granting a waiver of inadmissibility under 8 U.S.C. § 1182(d)(3)(A). He asserts that the waiver nullified both grounds of inadmissibility with which he was charged, leaving no basis on which he can be removed. The government responds that the waiver is no more than a procedural step in the collateral U visa adjudication and cannot block removal. Meza Morales remains removable, the government contends, because he still lacks a lawful basis for residing in this country. Our task is to determine which understanding of the waiver's effect is correct. 7 Meza Morales's position has superficial appeal. It leans on the intuition that waivers of inadmissibility generally “relieve applicants of the effects of past conduct.” L.D.G., 744 F.3d at 1028. If Meza Morales has been relieved of the effects of his past conduct, then one might think it contradictory that he can be removed on the basis of that same conduct. But in Meza Morales's case, there is no contradiction between the two. A waiver of inadmissibility granted in a removal proceeding protects a noncitizen from removal only if the noncitizen otherwise has lawful immigration status—for example, if she has a visa or the status of lawful permanent resident. In that event, the waiver clears the only obstacle to the noncitizen's lawful presence. Meza Morales, however, has no lawful immigration status; he is still waiting on a U visa. For him, the § 1182(d)(3)(A) waiver is a necessary but insufficient step toward lawful presence. This makes his situation relatively unique. As we have already explained, our circuit allows immigration judges to grant waivers of inadmissibility under § 1182(d)(3)(A) to U visa petitioners in removal proceedings. See L.D.G., 744 F.3d 1022. There is essentially no other situation in which an immigration judge would grant a § 1182(d)(3)(A) waiver to a noncitizen who needs—but does not yet have—a temporary visa. See 8 U.S.C. § 1182(d)(3)(A)(ii) (covering noncitizens who are “in possession of appropriate documents or [are] granted a waiver thereof and [are] seeking admission”). In the usual course, an immigration judge reviews a § 1182(d)(3)(A) waiver application after the noncitizen has initially applied to DHS for a waiver at a port of entry, entered the United States pursuant to a grant of deferred inspection, and been placed in removal proceedings after DHS denies the waiver. See Matter of Khan, 26 I. & N. Dec. 797, 802 (B.I.A. 2016); see also *636 Sunday, 832 F.3d at 217. Then, once placed in removal proceedings, the noncitizen is permitted to renew her waiver application before the immigration judge. 8 C.F.R. § 235.2(d); id § 1235.2(d). A noncitizen who secures a waiver from the immigration judge surmounts the only impediment to lawful temporary admission, because the only noncitizens who can apply for a § 1182(d)(3)(A) waiver at a port of entry are those who are exempt from the visa requirement (Canadians, for example) or those who already hold nonimmigrant visas but who have an inadmissibility problem that invalidates those visas. 8 U.S.C. § 1182(d)(3)(A)(ii); see also 8 C.F.R. § 212.4(b); id. § 1212.4(b). So if the immigration judge grants the waiver, the noncitizen has everything required for lawful presence, because she either already has a visa or does not need one. The waiver works the same way in the cases that Meza Morales invokes to support his position. He points out that in the context of other types of inadmissibility waivers, the Board has understood the grant of a waiver to foreclose removal. See Matter of Balderas, 20 I. & N. Dec. 389 (B.I.A. 1991); Matter of Mascorro-Perales, 12 I. & N. Dec. 228 (B.I.A. 1967); Matter of Edwards, 10 I. & N. Dec. 506 (B.I.A. 1963). Each of these cases involved a lawful permanent resident threatened with removal due to a conviction for crimes involving moral turpitude; in each, the Board terminated the removal proceedings after granting a waiver of inadmissibility, reasoning that “a waiver, once granted, should remain valid indefinitely for all proceedings, including both deportations and exclusion proceedings.” Balderas, 20 I. & N. Dec. at 393; see id. at 390 n.1 (explaining that a lawful permanent resident may pursue certain waivers of inadmissibility at removal if the grounds of removal are also grounds of inadmissibility). But in each of these cases, the waiver foreclosed removal because it protected the noncitizen's status as a lawful permanent resident. The waiver was not itself the basis for lawful presence. Meza Morales is differently situated because he lacks lawful immigration status. Being “relieved of the effects of [his] past conduct” renders Meza Morales eligible for a visa. But until he secures one, he still lacks a legal basis for lawful presence in the United States. Rather than protecting his status, the waiver is a step on the road to obtaining it. Ignoring that distinction, Meza Morales urges us to interpret a § 1182(d)(3)(A) waiver as effectively making him unremovable. But his interpretation is at odds with the U visa provision, which makes clear that it is the visa, not the waiver, that confers status on a noncitizen. 8 U.S.C. § 1101(a)(15)(U). Only the Secretary of Homeland Security, through his delegates, may grant a U visa, through the procedures laid out by statute. Id. The statute does not allow for the waiver to supplant the visa, so a waiver of inadmissibility alone cannot foreclose removal. This understanding is consistent with L.D.G. In that case, we explained that a waiver of inadmissibility allows a noncitizen “to gain eligibility for a U visa.”2 744 F.3d at 1028. We characterized the U visa, not the waiver, as the procedure that allows noncitizens “to remain in the United States as lawful temporary residents despite being otherwise subject to removal.” Id. at 1024. Allowing the waiver to preclude *637 removal is inconsistent with both our case law and the statutory regime. We therefore reject Meza Morales's first challenge to the removal order. B. The case does not end here. Recall that Meza Morales asked the immigration judge to continue or administratively close his case instead of ordering removal. Meza Morales argues that both procedural options were wrongly rejected.3 We'll start with the continuance. When it declined to continue Meza Morales's case, the Board cited to what was then its leading precedential opinion on U visa continuances, Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (B.I.A. 2012).4 Meza Morales argues that the Board failed to properly apply the factors laid out in that opinion. The government initially responded that the Board had been correct to deny the continuance. But after the briefs in this case were filed, the government asked us to remand this claim to the Board to allow it to consider two relevant new opinions. After the Board rendered its decision in this case, it issued a precedential opinion in Matter of Mayen, 27 I. & N. Dec. 755 (B.I.A. 2020), clarifying the application of the factors in Sanchez Sosa. A few months later, our court issued a decision in Guerra Rocha v. Barr, 951 F.3d 848, 853 (7th Cir. 2020), in which we emphasized that prima facie eligibility for a U visa was the most important factor to consider in deciding whether to grant a continuance. The government asks that we grant Meza Morales's petition for review as to the continuance to allow the Board to apply those new precedents for the first time. Meza Morales does not object. We agree that the Board should be given the opportunity to apply Mayen and Guerra Rocha in the first instance. We grant the petition for review and remand to the Board to reconsider whether another continuance was in fact an inappropriate alternative to a removal order. Meza Morales has a final objection to the Board's decision. In his removal proceedings, he had alternatively urged the immigration judge to administratively close his case rather than order removal. Administrative closure is a procedural device that temporarily takes a removal case off of an immigration judge's calendar, preventing it from moving forward. Vahora v. Holder, 626 F.3d 907, 914 (7th Cir. 2010). Until recently, immigration judges used the procedural tool of administrative *638 closure for a variety of reasons, including to permit a noncitizen to pursue alternative relief—such as a U visa—from USCIS. The use of administrative closure was blessed and clarified in Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012), and Matter of W-Y-U-, 27 I. & N. Dec. 17 (B.I.A. 2017). But in Matter of Castro-Tum, the Attorney General employed administrative adjudication to overrule Avetisyan and hold that immigration judges and the Board lack the authority to administratively close cases “except where a previous regulation or settlement agreement has expressly conferred it.” 27 I. & N. Dec. 271, 283 (Att'y Gen. 2018). The immigration judge in this case held that he was bound by Castro-Tum to reject Meza Morales's request for administrative closure, and the Board affirmed that conclusion. 10 We typically review the denial of administrative closure for abuse of discretion. Vahora, 626 F.3d at 919. Here, though, Meza Morales challenges the legal conclusion that administrative closure is disallowed, not the discretionary decision to deny closure. Abuse of discretion is therefore not the appropriate standard of review in this case. Although the Board's decision in Meza Morales's case was unpublished and non-precedential, the Board and the immigration judge based their rulings on Castro-Tum, a precedential opinion authored by the Attorney General. It is therefore the legal interpretation in Castro-Tum that we review for error. See Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir. 2011). 11 Castro-Tum holds that no statute or regulation gives immigration judges the general power to administratively close cases. Meza Morales argues that Castro-Tum is an erroneous interpretation of the immigration regulations, which he contends do grant that power to immigration judges. The government responds that Castro-Tum correctly interprets the clear text of the regulations; in the alternative, it argues that Castro-Tum is a reasonable interpretation of the regulatory language and is therefore entitled to deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).5 Auer only applies, however, to agency interpretations of genuinely ambiguous regulations—and the Supreme Court has recently warned us not to leap too quickly to the conclusion that a rule is ambiguous. Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (“A court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read.”). We can defer only if careful application of the “traditional tools of construction” yields no definitive answer. Id. With the Court's admonition in mind, we turn to the regulatory scheme that Castro-Tum interprets. As Castro-Tum points out, no statute or regulation explicitly confers upon immigration judges a general power of administrative closure. The more difficult question is whether any of the immigration regulations that grant immigration judges their general powers is broad enough to implicitly encompass that authority. Castro-Tum analyzes and dismisses a few regulatory *639 provisions that could arguably encompass a general administrative-closure power. The most salient is 8 C.F.R. § 1003.10(b), which explains, “In deciding the individual cases before them, ... immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases” (emphasis added). The provision goes on to provide a list—which does not purport to be exhaustive—of some of an immigration judge's powers, such as the power to receive evidence. 8 C.F.R. § 1003.10(b). It concludes that immigration judges shall resolve their cases in a “timely and impartial manner.” Id. Castro-Tum parses 8 C.F.R. § 1003.10(b) and concludes that it does not grant immigration judges the power to administratively close cases. It contends that closure cannot be “appropriate and necessary” to the “disposition” of cases since closure is a suspension that delays the final resolution of a case. 27 I. & N. Dec. at 285. And it reasons that a general power to administratively close cases would conflict with the regulation's requirement that immigration judges “timely” resolve their cases. We disagree. On its face, 8 C.F.R. § 1003.10(b) grants immigration judges broad authority. It permits the discretionary exercise of “any action” that is “appropriate and necessary for the disposition of ... cases.” Administrative closure is plainly an “action.” And “appropriate and necessary” is a capacious phrase. See Michigan v. EPA, 576 U.S. 743, 135 S. Ct. 2699, 2707, 192 L.Ed.2d 674 (2015). Unsurprisingly, then, an immigration judge might sometimes conclude, in exercising the discretion granted by 8 C.F.R. § 1003.10, that it is appropriate and necessary to dispose of a case through administrative closure. For example, in cases in which two coordinate offices in the executive branch are simultaneously adjudicating collateral applications, closing one proceeding might help advance a case toward resolution. See Romero v. Barr, 937 F.3d 282, 293 (4th Cir. 2019) (characterizing the facts underlying Avetisyan as presenting such a situation); see also Matter of Hashmi, 24 I. & N. Dec. 785, 791 n.4 (B.I.A. 2009) (encouraging administrative closure in appropriate circumstances). Moreover, cases must be disposed of fairly, and granting a noncitizen the opportunity to pursue relief to which she is entitled may be appropriate and necessary for a fair disposition. See Vahora, 626 F.3d at 918. Further, the regulation's requirement that cases be resolved in “timely” fashion does not foreclose administrative closure. For one thing, “timeliness” is not a hard and fast deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent “timely” resolution. That is presumably why nobody appears to think that continuances conflict with the regulation's timeliness requirement. See Memorandum 15-01 from Brian M. O'Leary, Chief Immigration Judge, to All Immigration Judges 3 (Apr. 6, 2015). And while Castro-Tum tries to draw reinforcement from the general policy of expeditiousness underlying immigration law, that policy doesn't justify departure from the plain text of the rule. Immigration laws and regulations, like all laws and regulations, are the product of compromise over competing policy goals. Expeditiousness may be one such goal, but it is not the only goal. In our view, the text supports Meza Morales's reading. Castro-Tum insists, though, that interpreting 8 C.F.R. § 1003.10(b) to mean what it says would render other regulatory provisions superfluous. For example, a separate *640 provision of the regulations explicitly grants immigration judges the power to continue cases. 8 C.F.R. § 1003.29. One might think that the existence of a specific continuance provision suggests that the general grant of authority in 8 C.F.R. § 1003.10(b) does not implicitly encompass the power to grant continuances. Castro-Tum, 27 I. & N. Dec. at 289 (“[I]f immigration judges already possessed such authority, there would have been little point in expressly empowering immigration judges to grant continuances.”). And if the general authority provision does not confer the power to grant continuances, it wouldn't implicitly grant the power to administratively close cases either. Id. But in fact, the specific continuance provision at 8 C.F.R. § 1003.29 is not redundant of 8 C.F.R. § 1003.10(b)’s broad grant. Castro-Tum does not acknowledge that 8 C.F.R. § 1003.29 does more than grant immigration judges the authority to continue cases—that regulation also specifies that good cause is the standard for granting continuances. Thus, the specific continuance provision doesn't give us reason to doubt the breadth of 8 C.F.R. § 1003.10(b). Nor do the regulations that explicitly mention administrative closure render 8 C.F.R. § 1003.10(b) superfluous. Several provisions direct immigration judges to administratively close certain cases. E.g., 8 C.F.R. § 1245.13(d)(3)(i) (mandating administrative closure in certain cases involving Nicaraguan and Cuban nationals); id. § 1245.15(p)(4)(i) (same for certain cases involving Haitian nationals); id. § 1214.3 (same for certain cases involving applicants for V nonimmigrant status). Castro-Tum claims that “[t]hese instances of limited, express authorization reinforce the conclusion that no broad delegation of authority exists.” 27 I. & N. Dec. at 288. We don't see why. These provisions mandate administrative closure in specific circumstances with “shall” language, while 8 C.F.R. § 1003.10(b) uses “may” language to grant immigration judges the general power to use administrative closure where appropriate. If anything, the directives in these other provisions that immigration judges “shall” administratively close certain cases imply a preexisting general authority to do so. Castro-Tum places particular emphasis on the potential superfluity of a regulation providing that immigration judges “may” administratively close certain cases involving a pending application for a T visa—a visa for certain victims of human trafficking. 8 C.F.R. § 1214.2(a). What would be the point of such a specific regulation, the opinion posits, if the broader regulation at 8 C.F.R. § 1003.10(b) already conferred a general authority to administratively close cases? To answer this question, we first note that when 8 C.F.R. § 1214.2(a) was promulgated in 2003, Board precedent already permitted immigration judges to administratively close cases if both parties agreed to the closure. See Matter of Gutierrez, 21 I. & N. Dec. 479, 480 (B.I.A. 1996). Against that backdrop, it makes little sense to read the regulation as implicitly assuming that administrative closure is disallowed in other circumstances. Instead, 8 C.F.R. § 1214.2(a) appears to identify a particular class of cases—those involving T visas—in which administrative closure is especially appropriate. The specific regulation makes another contribution, too. It also provides for the automatic termination of the closed proceeding if the T visa is granted and for automatic reinstatement if it is denied. Id. Neither consequence would otherwise automatically flow from USCIS's disposition of the application. So 8 C.F.R. § 1214.2(a) would not be mere surplusage under a plain-meaning reading of 8 C.F.R. § 1003.10(b). 12 In sum, Castro-Tum’s interpretive arguments fail to convince us that administrative closure is not plainly within an *641 immigration judge's authority to take “any action” that is “appropriate and necessary for the disposition of ... cases.” 8 C.F.R. § 1003.10(b).6 See Romero, 937 F.3d at 297 (reaching the same conclusion). Because the regulation gives a “single right answer,” Kisor, 139 S. Ct. at 2415, Auer deference is unwarranted.7 The Attorney General may amend these rules through the proper procedures. But he may not, “under the guise of interpreting a regulation, ... create de facto a new regulation” that contradicts the one in place. Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). We therefore reject Castro-Tum and hold that immigration judges are not precluded from administratively closing cases when appropriate.

Barrett

majority

Yeison Meza Morales is a native and citizen of Mexico who entered the United States without inspection as a child. As an adult, Meza Morales petitioned for U nonimmigrant status, a special visa for victims of certain crimes. While his petition was pending, he was charged as removable based on two grounds of inadmissibility. Meza Morales cited his pending U visa petition as a defense to his removal. The immigration judge agreed to waive both grounds of inadmissibility to allow him to pursue the U visa petition, but later ordered Meza Morales removed as charged on those same grounds. Meza Morales petitioned us for review of the removal order. He contends that the immigration judge's initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal. We disagree; Meza Morales's position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. We nevertheless grant his petition for review on two other bases. Meza Morales had asked the immigration judge to continue or administratively close his case instead of ordering removal. The immigration *63 judge entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the Board affirmed on the same basis. But those alternatives were wrongly rejected. We grant the petition for review and remand the case so that the Board can reconsider. I. A noncitizen who becomes a victim of certain crimes while in the United States may petition for U nonimmigrant status—more commonly known as a U visa. (a)(15)(U). Congress created the visa to encourage crime victims to report crimes and assist law enforcement with investigation and prosecution. A U visa generally entitles an eligible noncitizen to lawfully remain in the United States and to seek work authorization. 1184(p)(6). The decision whether to grant a U visa petition is committed by statute to the Secretary of Homeland Security, who exercises this authority through U.S. Customs & Immigration Services (USCIS). See 8 C.F.R. 14.14. To qualify for a U visa, a noncitizen must satisfy four substantive criteria: (1) he must have suffered “substantial physical or mental abuse” as the result of one of the crimes listed in the U visa provision; () he must possess credible and reliable knowledge of the details of the crime; (3) he must help or be likely to be helpful in the investigation or prosecution of the crime; and (4) the crime must have taken place in the United States. 14.14(b). In addition to those specific requirements, a noncitizen seeking a U visa must be “admissible” to the United States—in other words, eligible for a visa and lawful entry into the United States. 8 U.S.C. 118(a). There are several reasons why a noncitizen may be “inadmissible” and therefore ineligible for a visa. Among them are convictions for certain crimes and being present in the United States without having been inspected and authorized by an immigration official. See 1101(a)(13)(A), 118(a)(6)(A)(i). But inadmissibility is not a complete obstacle to acquiring a U visa; a noncitizen can apply to have her inadmissibility waived for the purpose of petitioning for U nonimmigrant status. In this circuit, there are two ways for a U visa petitioner to secure a waiver of inadmissibility. The first is by application to USCIS. Congress provided that the Secretary of Homeland Security can waive almost any ground of inadmissibility for a noncitizen who is applying for a U visa. 8 U.S.C. 118(d)(14). USCIS implements this U visa inadmissibility waiver program on behalf of the Secretary, granting a waiver application if it determines that it is “in the public or national interest” to do so. 8 C.F.R. 1.17(b)(1). Because USCIS is also the office that decides whether to grant or deny U visas, a noncitizen pursuing this route may seek a waiver and a U visa at the same time. 14.14(c)()(iv). 1 U visa petitioners in this circuit have an additional option for obtaining a waiver of inadmissibility. Congress gave the Attorney General the authority to waive most grounds of inadmissibility listed in 118(a) for certain noncitizens seeking admission. 8 U.S.C. 118(d)(3)(A). In v. Holder, we held that the Attorney General's general inadmissibility waiver authority extends to U visa petitioners, notwithstanding the narrower provision allowing the Secretary of Homeland Security to waive inadmissibility specifically for U visa applicants. Thus, U visa petitioners can seek a waiver of inadmissibility from the Attorney General as *633 well as from USCIS.1 And as delegates of the Attorney General, immigration judges have the power to grant waivers of inadmissibility—for example, during removal proceedings when noncitizens invoke their forthcoming U visa petition as a defense to removal. This alternative waiver procedure can create coordination problems because two different arms of the executive branch grant the waiver and the visa. These coordination problems are on full display in this But before we get to the procedural posture of Meza Morales's case, another feature of the U visa scheme bears mention: the waiting list. By statute, USCIS may issue no more than 10,000 U visas per calendar year. 8 U.S.C. 1184(p)()(A). Many more than 10,000 applicants meet the criteria for U status each year, see so USCIS places on a waiting list all eligible U visa petitioners who would be granted a visa if not for the statutory cap. 8 C.F.R. 14.14(d)(). It grants U visas to petitioners on the waiting list in chronological order. In the meantime, petitioners on the U visa waiting list are granted deferred action—a form of prosecutorial discretion that allows a noncitizen to lawfully remain in the United States for a fixed period of time but does not provide legal status. It is the policy of Immigration and Customs Enforcement (ICE), the office within the Department of Homeland Security (DHS) responsible for immigration enforcement, not to deport a U visa petitioner who has been placed on the waitlist and granted deferred action. Revision of Stay of Removal Request Reviews for U Visa Petitioners, U.S. Immigr. & Customs Enforcement (Aug. 019), https://www.ice.gov/factsheets/revision-stay-removal-request-reviews-u-visa-petitioners [hereinafter ICE Fact Sheet]. With the U visa scheme laid out, we turn to the present Meza Morales is a native and citizen of Mexico. As a child, he entered the United States without inspection in December 00, and he has lived in the United States ever since. In October 013, Meza Morales was walking home through his neighborhood in Indianapolis when he encountered a group of men arguing. He ran from them, but one of the men shot him in the ankle while he was running. Meza Morales recovered from the shooting and cooperated in the police investigation that followed. As a shooting victim, Meza Morales applied for a U visa in August 017. But before USCIS acted on his U visa petition, ICE initiated removal proceedings against him. In early 018, DHS charged Meza Morales as removable under 8 U.S.C. 118(a)(6)(A)(i) as a noncitizen present in the United States without being admitted and under 8 U.S.C. 118(a)()(A)(i)(II) for a 014 conviction for possession of marijuana. The immigration judge deemed him removable under both charges. Meza Morales, appearing pro se, admitted both charges but explained that he was a crime victim and had already applied for a U visa. The immigration judge agreed to continue the removal proceedings for thirty days to allow USCIS to adjudicate the *634 pending visa petition. The immigration judge also granted a waiver of inadmissibility for purposes of his U visa petition under 8 U.S.C. 118(d)(3)(A), as permitted by Thirty days later, USCIS still had not made a decision on Meza Morales's U visa petition. In his next appearance, Meza Morales asked the immigration judge either to continue the case further or to administratively close it—two procedural devices that allow an immigration judge to temporarily set aside a pending The immigration judge rejected both options and instead entered an order of removal. Meza Morales appealed to the Board of Immigration Appeals, arguing that the removal order was inconsistent with the waiver and that the immigration judge should have entered a continuance or administrative closure. The Board affirmed the removal order, and soon ICE began the process of removing Meza Morales. He applied to our court for an emergency stay of removal, which we granted. Then, collateral to the removal proceedings, USCIS adjudicated his U visa petition. The office deemed him eligible for a U visa but placed him on the waiting list due to the statutory cap. It then granted Meza Morales deferred action, and accordingly, released him from detention. The removal order remains on the books, though, and Meza Morales continues to petition our court for review of it. II. 3 Before we can assess the merits of Meza Morales's petition, we must assure ourselves of our jurisdiction. By statute, we have jurisdiction to address questions of law raised in a petition for review from a final removal order. 8 U.S.C. 15(a)()(D). The government contends that this appeal became moot, though, when USCIS finally adjudicated Meza Morales's U visa petition and placed him on the waiting list. 4 5 Federal court jurisdiction is limited to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, cl. 1. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official If developments in a case make it impossible for a court to grant “any effectual relief whatever” to the prevailing party, then we must dismiss the appeal as moot. According to the government, it is no longer possible for our court to grant Meza Morales any effectual relief. The government misunderstands both the relief that Meza Morales requests and the effect of his U visa adjudication. The crux of Meza Morales's appeal is that the immigration judge was wrong to order him removed instead of granting a continuance or administrative closure. The relief that he has requested all along is vacatur of the removal order. It is still possible for us to grant that relief because the removal order remains in place. By regulation, favorable adjudication of a U visa petition does not automatically cancel a removal order entered by an immigration judge. 8 C.F.R. 14.14(c)(5)(i). Meza Morales may seek to cancel the removal order by filing a motion to reopen and terminate removal proceedings, but cancelation is not guaranteed. (ICE retains the discretion not to join a motion to reopen, but the Attorney General understandably cannot promise that ICE would join a motion to reopen if Meza Morales filed one. ) Since the removal order remains in effect, it is still possible for us to grant Meza Morales the relief that he requests. *635 True, Meza Morales may not in fact be removed anytime soon because it is ICE policy not to remove a noncitizen who is placed on the U visa waiting list and granted deferred action. ICE Fact Sheet. But protection from removal is not guaranteed. USCIS retains discretion to remove him from the waiting list and withdraw his deferred action. 8 C.F.R. 14.14(d)(3). Meza Morales's controversy therefore remains live, and we proceed to the merits. III. Meza Morales raises three challenges to the Board's decision affirming the order of removal. First, he contends that it is logically inconsistent for an immigration judge to enter a removal order on the same grounds of inadmissibility that the immigration judge has already waived. Second, he argues that the Board misapplied relevant precedents in considering whether another continuance was warranted. And third, he asserts that the Board was wrong to hold that immigration judges lack the power to administratively close cases. We address each argument in turn. A. 6 Meza Morales first argues that it is legal error to enter a removal order after granting a waiver of inadmissibility under 8 U.S.C. 118(d)(3)(A). He asserts that the waiver nullified both grounds of inadmissibility with which he was charged, leaving no basis on which he can be removed. The government responds that the waiver is no more than a procedural step in the collateral U visa adjudication and cannot block removal. Meza Morales remains removable, the government contends, because he still lacks a lawful basis for residing in this country. Our task is to determine which understanding of the waiver's effect is correct. 7 Meza Morales's position has superficial appeal. It leans on the intuition that waivers of inadmissibility generally “relieve applicants of the effects of past conduct.” If Meza Morales has been relieved of the effects of his past conduct, then one might think it contradictory that he can be removed on the basis of that same conduct. But in Meza Morales's case, there is no contradiction between the two. A waiver of inadmissibility granted in a removal proceeding protects a noncitizen from removal only if the noncitizen otherwise has lawful immigration status—for example, if she has a visa or the status of lawful permanent resident. In that event, the waiver clears the only obstacle to the noncitizen's lawful presence. Meza Morales, however, has no lawful immigration status; he is still waiting on a U visa. For him, the 118(d)(3)(A) waiver is a necessary but insufficient step toward lawful presence. This makes his situation relatively unique. As we have already explained, our circuit allows immigration judges to grant waivers of inadmissibility under 118(d)(3)(A) to U visa petitioners in removal proceedings. See There is essentially no other situation in which an immigration judge would grant a 118(d)(3)(A) waiver to a noncitizen who needs—but does not yet have—a temporary visa. See 8 U.S.C. 118(d)(3)(A)(ii) (covering noncitizens who are “in possession of appropriate documents or [are] granted a waiver thereof and [are] seeking admission”). In the usual course, an immigration judge reviews a 118(d)(3)(A) waiver application after the noncitizen has initially applied to DHS for a waiver at a port of entry, entered the United States pursuant to a grant of deferred inspection, and been placed in removal proceedings after DHS denies the waiver. See Matter of Khan, ; see also *636 Then, once placed in removal proceedings, the noncitizen is permitted to renew her waiver application before the immigration judge. 8 C.F.R. 35.(d); id 135.(d). A noncitizen who secures a waiver from the immigration judge surmounts the only impediment to lawful temporary admission, because the only noncitizens who can apply for a 118(d)(3)(A) waiver at a port of entry are those who are exempt from the visa requirement (Canadians, for example) or those who already hold nonimmigrant visas but who have an inadmissibility problem that invalidates those visas. 8 U.S.C. 118(d)(3)(A)(ii); see also 8 C.F.R. 1.4(b); 11.4(b). So if the immigration judge grants the waiver, the noncitizen has everything required for lawful presence, because she either already has a visa or does not need one. The waiver works the same way in the cases that Meza Morales invokes to support his position. He points out that in the context of other types of inadmissibility waivers, the Board has understood the grant of a waiver to foreclose removal. See Matter of ; Matter of Mascorro-Perales, (B.I.A. 19); Matter of Edwards, Each of these cases involved a lawful permanent resident threatened with removal due to a conviction for crimes involving moral turpitude; in each, the Board terminated the removal proceedings after granting a waiver of inadmissibility, reasoning that “a waiver, once granted, should remain valid indefinitely for all proceedings, including both deportations and exclusion proceedings.” ; see at 390 n.1 (explaining that a lawful permanent resident may pursue certain waivers of inadmissibility at removal if the grounds of removal are also grounds of inadmissibility). But in each of these cases, the waiver foreclosed removal because it protected the noncitizen's status as a lawful permanent resident. The waiver was not itself the basis for lawful presence. Meza Morales is differently situated because he lacks lawful immigration status. Being “relieved of the effects of [his] past conduct” renders Meza Morales eligible for a visa. But until he secures one, he still lacks a legal basis for lawful presence in the United States. Rather than protecting his status, the waiver is a step on the road to obtaining it. Ignoring that distinction, Meza Morales urges us to interpret a 118(d)(3)(A) waiver as effectively making him unremovable. But his interpretation is at odds with the U visa provision, which makes clear that it is the visa, not the waiver, that confers status on a noncitizen. (a)(15)(U). Only the Secretary of Homeland Security, through his delegates, may grant a U visa, through the procedures laid out by statute. The statute does not allow for the waiver to supplant the visa, so a waiver of inadmissibility alone cannot foreclose removal. This understanding is consistent with In that case, we explained that a waiver of inadmissibility allows a noncitizen “to gain eligibility for a U visa.” We characterized the U visa, not the waiver, as the procedure that allows noncitizens “to remain in the United States as lawful temporary residents despite being otherwise subject to removal.” at 104. Allowing the waiver to preclude *637 removal is inconsistent with both our case law and the statutory regime. We therefore reject Meza Morales's first challenge to the removal order. B. The case does not end here. Recall that Meza Morales asked the immigration judge to continue or administratively close his case instead of ordering removal. Meza Morales argues that both procedural options were wrongly rejected.3 We'll start with the continuance. When it declined to continue Meza Morales's case, the Board cited to what was then its leading precedential opinion on U visa continuances, Matter of Sanchez Sosa, 5 I. & N. Dec. 807 (B.I.A. 01).4 Meza Morales argues that the Board failed to properly apply the factors laid out in that opinion. The government initially responded that the Board had been correct to deny the continuance. But after the briefs in this case were filed, the government asked us to remand this claim to the Board to allow it to consider two relevant new opinions. After the Board rendered its decision in this case, it issued a precedential opinion in Matter of Mayen, 7 I. & N. Dec. 755 (B.I.A. 00), clarifying the application of the factors in Sanchez Sosa. A few months later, our court issued a decision in Guerra (7th Cir. 00), in which we emphasized that prima facie eligibility for a U visa was the most important factor to consider in deciding whether to grant a continuance. The government asks that we grant Meza Morales's petition for review as to the continuance to allow the Board to apply those new precedents for the first time. Meza Morales does not object. We agree that the Board should be given the opportunity to apply Mayen and Guerra Rocha in the first instance. We grant the petition for review and remand to the Board to reconsider whether another continuance was in fact an inappropriate alternative to a removal order. Meza Morales has a final objection to the Board's decision. In his removal proceedings, he had alternatively urged the immigration judge to administratively close his case rather than order removal. Administrative closure is a procedural device that temporarily takes a removal case off of an immigration judge's calendar, preventing it from moving forward. 66 F.3d 907, (7th Cir. 010). Until recently, immigration judges used the procedural tool of administrative *638 closure for a variety of reasons, including to permit a noncitizen to pursue alternative relief—such as a U visa—from USCIS. The use of administrative closure was blessed and clarified in Matter of Avetisyan, 5 I. & N. Dec. 688 (B.I.A. 01), and Matter of W-Y-U-, 7 I. & N. Dec. 17 But in Matter of the Attorney General employed administrative adjudication to overrule Avetisyan and hold that immigration judges and the Board lack the authority to administratively close cases “except where a previous regulation or settlement agreement has expressly conferred it.” 7 I. & N. Dec. 71, 83 (Att'y Gen. 018). The immigration judge in this case held that he was bound by to reject Meza Morales's request for administrative closure, and the Board affirmed that conclusion. 10 We typically review the denial of administrative closure for abuse of discretion. 66 F.3d at 919. Here, though, Meza Morales challenges the legal conclusion that administrative closure is disallowed, not the discretionary decision to deny closure. Abuse of discretion is therefore not the appropriate standard of review in this Although the Board's decision in Meza Morales's case was unpublished and non-precedential, the Board and the immigration judge based their rulings on a precedential opinion authored by the Attorney General. It is therefore the legal interpretation in that we review for error. See F.3d 513, (7th Cir. 011). 11 holds that no statute or regulation gives immigration judges the general power to administratively close cases. Meza Morales argues that is an erroneous interpretation of the immigration regulations, which he contends do grant that power to immigration judges. The government responds that correctly interprets the clear text of the regulations; in the alternative, it argues that is a reasonable interpretation of the regulatory language and is therefore entitled to deference under U.S. 45, 137 L.Ed.d 795 Auer only applies, however, to agency interpretations of genuinely ambiguous regulations—and the Supreme Court has recently warned us not to leap too quickly to the conclusion that a rule is ambiguous. 139 S. Ct. 400, 415, 04 L.Ed.d 841 (019) We can defer only if careful application of the “traditional tools of construction” yields no definitive answer. With the Court's admonition in mind, we turn to the regulatory scheme that interprets. As points out, no statute or regulation explicitly confers upon immigration judges a general power of administrative closure. The more difficult question is whether any of the immigration regulations that grant immigration judges their general powers is broad enough to implicitly encompass that authority. analyzes and dismisses a few regulatory *639 provisions that could arguably encompass a general administrative-closure power. The most salient is 8 C.F.R. 1003.10(b), which explains, “In deciding the individual cases before them, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases” (emphasis added). The provision goes on to provide a list—which does not purport to be exhaustive—of some of an immigration judge's powers, such as the power to receive evidence. 8 C.F.R. 1003.10(b). It concludes that immigration judges shall resolve their cases in a “timely and impartial manner.” parses 8 C.F.R. 1003.10(b) and concludes that it does not grant immigration judges the power to administratively close cases. It contends that closure cannot be “appropriate and necessary” to the “disposition” of cases since closure is a suspension that delays the final resolution of a 7 I. & N. Dec. at 85. And it reasons that a general power to administratively close cases would conflict with the regulation's requirement that immigration judges “timely” resolve their cases. We disagree. On its face, 8 C.F.R. 1003.10(b) grants immigration judges broad authority. It permits the discretionary exercise of “any action” that is “appropriate and necessary for the disposition of cases.” Administrative closure is plainly an “action.” And “appropriate and necessary” is a capacious phrase. See 135 S. Ct. 699, 707, 19 L.Ed.d 4 (015). Unsurprisingly, then, an immigration judge might sometimes conclude, in exercising the discretion granted by 8 C.F.R. 1003.10, that it is appropriate and necessary to dispose of a case through administrative closure. For example, in cases in which two coordinate offices in the executive branch are simultaneously adjudicating collateral applications, closing one proceeding might help advance a case toward resolution. See 937 F.3d 8, 93 (4th Cir. 019) ; see also Matter of Hashmi, 4 I. & N. Dec. 785, (B.I.A. 009) Moreover, cases must be disposed of fairly, and granting a noncitizen the opportunity to pursue relief to which she is entitled may be appropriate and necessary for a fair disposition. See 66 F.3d at 918. Further, the regulation's requirement that cases be resolved in “timely” fashion does not foreclose administrative closure. For one thing, “timeliness” is not a hard and fast deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent “timely” resolution. That is presumably why nobody appears to think that continuances conflict with the regulation's timeliness requirement. See Memorandum 15-01 from Brian M. O'Leary, Chief Immigration Judge, to All Immigration Judges 3 (Apr. 6, 015). And while tries to draw reinforcement from the general policy of expeditiousness underlying immigration law, that policy doesn't justify departure from the plain text of the rule. Immigration laws and regulations, like all laws and regulations, are the product of compromise over competing policy goals. Expeditiousness may be one such goal, but it is not the only goal. In our view, the text supports Meza Morales's reading. insists, though, that interpreting 8 C.F.R. 1003.10(b) to mean what it says would render other regulatory provisions superfluous. For example, a separate *640 provision of the regulations explicitly grants immigration judges the power to continue cases. 8 C.F.R. 1003.9. One might think that the existence of a specific continuance provision suggests that the general grant of authority in 8 C.F.R. 1003.10(b) does not implicitly encompass the power to grant continuances. 7 I. & N. Dec. at 89 And if the general authority provision does not confer the power to grant continuances, it wouldn't implicitly grant the power to administratively close cases either. But in fact, the specific continuance provision at 8 C.F.R. 1003.9 is not redundant of 8 C.F.R. 1003.10(b)’s broad grant. does not acknowledge that 8 C.F.R. 1003.9 does more than grant immigration judges the authority to continue cases—that regulation also specifies that good cause is the standard for granting continuances. Thus, the specific continuance provision doesn't give us reason to doubt the breadth of 8 C.F.R. 1003.10(b). Nor do the regulations that explicitly mention administrative closure render 8 C.F.R. 1003.10(b) superfluous. Several provisions direct immigration judges to administratively close certain cases. E.g., 8 C.F.R. 145.13(d)(3)(i) ; 145.15(p)(4)(i) (same for certain cases involving Haitian nationals); 114.3 (same for certain cases involving applicants for V nonimmigrant status). claims that “[t]hese instances of limited, express authorization reinforce the conclusion that no broad delegation of authority exists.” 7 I. & N. Dec. at 88. We don't see why. These provisions mandate administrative closure in specific circumstances with “shall” language, while 8 C.F.R. 1003.10(b) uses “may” language to grant immigration judges the general power to use administrative closure where appropriate. If anything, the directives in these other provisions that immigration judges “shall” administratively close certain cases imply a preexisting general authority to do so. places particular emphasis on the potential superfluity of a regulation providing that immigration judges “may” administratively close certain cases involving a pending application for a T visa—a visa for certain victims of human trafficking. 8 C.F.R. 114.(a). What would be the point of such a specific regulation, the opinion posits, if the broader regulation at 8 C.F.R. 1003.10(b) already conferred a general authority to administratively close cases? To answer this question, we first note that when 8 C.F.R. 114.(a) was promulgated in 003, Board precedent already permitted immigration judges to administratively close cases if both parties agreed to the closure. See Matter of Gutierrez, 1 I. & N. Dec. 479, Against that backdrop, it makes little sense to read the regulation as implicitly assuming that administrative closure is disallowed in other circumstances. Instead, 8 C.F.R. 114.(a) appears to identify a particular class of cases—those involving T visas—in which administrative closure is especially appropriate. The specific regulation makes another contribution, too. It also provides for the automatic termination of the closed proceeding if the T visa is granted and for automatic reinstatement if it is denied. Neither consequence would otherwise automatically flow from USCIS's disposition of the application. So 8 C.F.R. 114.(a) would not be mere surplusage under a plain-meaning reading of 8 C.F.R. 1003.10(b). 1 In sum, ’s interpretive arguments fail to convince us that administrative closure is not plainly within an *641 immigration judge's authority to take “any action” that is “appropriate and necessary for the disposition of cases.” 8 C.F.R. 1003.10(b).6 See 937 F.3d at 97 Because the regulation gives a “single right answer,” 139 S. Ct. at 415, Auer deference is unwarranted.7 The Attorney General may amend these rules through the proper procedures. But he may not, “under the guise of interpreting a regulation, create de facto a new regulation” that contradicts the one in place. 59 U.S. 576, 10 S.Ct. 1655, 146 L.Ed.d 61 (000). We therefore reject and hold that immigration judges are not precluded from administratively closing cases when appropriate.

O'Neal v. Reilly

Harry O'Neal was convicted of aggravated battery of a police officer after an altercation during a traffic stop. While incarcerated *974 and while his criminal conviction was pending on direct appeal, O'Neal filed a pro se lawsuit that asserted § 1983 claims against the police officers who had arrested him. Under Heck v. Humphrey, however, O'Neal’s § 1983 suit was barred unless his conviction was reversed or expunged. 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck-barred suits are usually stayed or dismissed without prejudice, but O'Neal’s suit took a different course. After he failed to comply with court-ordered briefing deadlines, the district court issued an order directing O'Neal to show cause why his case should not be dismissed for want of prosecution. When O'Neal didn't respond, the district court dismissed his claims with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b). Several months later, O'Neal’s conviction was overturned on appeal, lifting the Heck bar to his § 1983 suit. Another ten months after that, O'Neal went back to the district court. This time represented by counsel, he filed a “Motion to Reinstate the Case and for Leave to File an Amended Complaint Pursuant to Fed. R. Civ. P. 15.” His motion nowhere mentioned Federal Rule of Civil Procedure 60(b), which is the procedural mechanism for obtaining relief from a judgment. But the defendants raised Rule 60(b) in their response to the motion, maintaining that O'Neal was not entitled to relief under that rule. This argument caught O'Neal’s attention, and in his reply brief, he attempted to articulate why Rule 60(b) relief was warranted. The district court denied O'Neal’s Rule 15 motion, explaining that it was procedurally improper because he could not file an amended complaint in a terminated case. O'Neal’s only procedural option was the one that the defendants had anticipated: securing relief from the judgment under Rule 60(b). But O'Neal didn't even mention Rule 60(b) until his reply brief, so the district court held that the argument was waived. It observed, though, that O'Neal wouldn't have been able to satisfy the requirements of Rule 60(b) anyway. 1 2 On appeal, O'Neal argues that the district court was wrong to treat his Rule 60(b) argument as waived. We review a finding of waiver de novo, Baker v. Lindgren, 856 F.3d 498, 506 (7th Cir. 2017), and we agree with the district court: O'Neal waived this argument. His motion invoked Rule 15, not Rule 60. It never mentioned Rule 60(b), referred to any of the specific grounds for relief under Rule 60(b), or cited any cases applying Rule 60(b)—in fact, the motion cited no cases at all. It's not a close call to conclude that O'Neal failed to adequately raise or develop a Rule 60(b) argument in his initial motion. He didn't invoke that rule until his reply brief, and we have repeatedly recognized that district courts are entitled to treat an argument raised for the first time in a reply brief as waived. See, e.g., Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009); Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir. 2009). O'Neal resists this straightforward analysis by insisting that the motion's timing, if not its content, required the district court to treat it as one under Rule 60(b). According to O'Neal, any motion “challenging the merits of a district court's ruling after the time for appeal has expired” should be characterized one seeking relief from the judgment. But the cases that O'Neal cites for this proposition are inapposite. They all deal with the jurisdictional determination whether the time to file a notice of appeal had been tolled by a post-judgment motion. They do not stand for a general rule that post-judgment motions—no matter what arguments they make—must be treated on their merits as motions under Rule 60 if they arrive outside *975 the time to file a notice of appeal. See Blue v. Int'l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 585 (7th Cir. 2012); Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1993). There is no such rule. 3 In any event, it is highly unlikely that O'Neal could have filed a successful Rule 60(b) motion even if he had pursued that course. O'Neal filed his motion more than one year after judgment was entered, so his only option would have been Rule 60(b)(6), the residual clause, which allows the court to relieve a party from a final judgment for “any other reason that justifies relief.” Relief under this subsection is reserved for movants who can “establish that ‘extraordinary circumstances’ justify upsetting a final decision.” Choice Hotels Int'l, Inc. v. Grover, 792 F.3d 753, 754 (7th Cir. 2015) (citation omitted). And even though a movant under Rule 60(b)(6) need not file within a year, he still needs to file “within a reasonable time.” Fed. R. Civ. P. 60(c)(1); see also Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (“A motion under the ‘catchall’ provision contained in Rule 60(b)(6) also must be made ‘within a reasonable time.’ ”). Regardless of whether O'Neal could show that his is an “extraordinary circumstance,” he can't show that he moved for relief within a reasonable time. The order dismissing O'Neal’s case with prejudice for failure to prosecute was entered in June 2016, but he took no action to appeal that decision. O'Neal says that he didn't receive notice of the judgment when it was issued, and it's true that courts have sometimes used Rule 60(b)(6) to “grant[ ] relief ... when the losing party fail[ed] to receive notice of the entry of judgment in time to file an appeal.” 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2864 (3d ed., update Apr. 2020) (footnote omitted). But even if O'Neal didn't know about the judgment when it was issued, he concedes that he received notice of it no later than December 2017. Not only did he fail to file a notice of appeal then, see Fed. R. App. P. 4(a)(6) (allowing a district court to reopen the time to file an appeal if the moving party didn't receive notice of the entry of judgment and other conditions are met), he didn't file his “motion to reinstate” for another year and a half. Thus, O'Neal’s procedural blunder under Rule 15 is not the only obstacle to reviving his suit. In sum, the district court correctly concluded that O'Neal waived any argument that he may have had under Rule 60(b). And because the case had been terminated on the merits, the district court was right to deny his Rule 15 motion for leave to file an amended complaint. The judgment is AFFIRMED.

Barrett

majority

Harry O'Neal was convicted of aggravated battery of a police officer after an altercation during a traffic stop. While incarcerated *974 and while his criminal conviction was pending on direct appeal, O'Neal filed a pro se lawsuit that asserted 1983 claims against the police officers who had arrested him. Under Heck v. Humphrey, however, O'Neal’s 1983 suit was barred unless his conviction was reversed or expunged. Heck-barred suits are usually stayed or dismissed without prejudice, but O'Neal’s suit took a different course. After he failed to comply with court-ordered briefing deadlines, the district court issued an order directing O'Neal to show cause why his case should not be dismissed for want of prosecution. When O'Neal didn't respond, the district court dismissed his claims with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b). Several months later, O'Neal’s conviction was overturned on appeal, lifting the Heck bar to his 1983 suit. Another ten months after that, O'Neal went back to the district court. This time represented by counsel, he filed a “Motion to Reinstate the Case and for Leave to File an Amended Complaint Pursuant to Fed. R. Civ. P. 15.” His motion nowhere mentioned Federal Rule of Civil Procedure 60(b), which is the procedural mechanism for obtaining relief from a judgment. But the defendants raised Rule 60(b) in their response to the motion, maintaining that O'Neal was not entitled to relief under that rule. This argument caught O'Neal’s attention, and in his reply brief, he attempted to articulate why Rule 60(b) relief was warranted. The district court denied O'Neal’s Rule 15 motion, explaining that it was procedurally improper because he could not file an amended complaint in a terminated case. O'Neal’s only procedural option was the one that the defendants had anticipated: securing relief from the judgment under Rule 60(b). But O'Neal didn't even mention Rule 60(b) until his reply brief, so the district court held that the argument was waived. It observed, though, that O'Neal wouldn't have been able to satisfy the requirements of Rule 60(b) anyway. 1 2 On appeal, O'Neal argues that the district court was wrong to treat his Rule 60(b) argument as waived. We review a finding of waiver de novo, and we agree with the district court: O'Neal waived this argument. His motion invoked Rule 15, not Rule 60. It never mentioned Rule 60(b), referred to any of the specific grounds for relief under Rule 60(b), or cited any cases applying Rule 60(b)—in fact, the motion cited no cases at all. It's not a close call to conclude that O'Neal failed to adequately raise or develop a Rule 60(b) argument in his initial motion. He didn't invoke that rule until his reply brief, and we have repeatedly recognized that district courts are entitled to treat an argument raised for the first time in a reply brief as waived. See, e.g., ; O'Neal resists this straightforward analysis by insisting that the motion's timing, if not its content, required the district court to treat it as one under Rule 60(b). According to O'Neal, any motion “challenging the merits of a district court's ruling after the time for appeal has expired” should be characterized one seeking relief from the judgment. But the cases that O'Neal cites for this proposition are inapposite. They all deal with the jurisdictional determination whether the time to file a notice of appeal had been tolled by a post-judgment motion. They do not stand for a general rule that post-judgment motions—no matter what arguments they make—must be treated on their merits as motions under Rule 60 if they arrive outside *975 the time to file a notice of appeal. See ; ; United There is no such rule. 3 In any event, it is highly unlikely that O'Neal could have filed a successful Rule 60(b) motion even if he had pursued that course. O'Neal filed his motion more than one year after judgment was entered, so his only option would have been Rule 60(b)(6), the residual clause, which allows the court to relieve a party from a final judgment for “any other reason that justifies relief.” Relief under this subsection is reserved for movants who can “establish that ‘extraordinary circumstances’ justify upsetting a final decision.” Choice Hotels Int'l, And even though a movant under Rule 60(b)(6) need not file within a year, he still needs to file “within a reasonable time.” Fed. R. Civ. P. 60(c)(1); see also Regardless of whether O'Neal could show that his is an “extraordinary circumstance,” he can't show that he moved for relief within a reasonable time. The order dismissing O'Neal’s case with prejudice for failure to prosecute was entered in June 2016, but he took no action to appeal that decision. O'Neal says that he didn't receive notice of the judgment when it was issued, and it's true that courts have sometimes used Rule 60(b)(6) to “grant[ ] relief when the losing party fail[ed] to receive notice of the entry of judgment in time to file an appeal.” 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2864 (3d ed., update Apr. 2020) (footnote omitted). But even if O'Neal didn't know about the judgment when it was issued, he concedes that he received notice of it no later than December 2017. Not only did he fail to file a notice of appeal then, see Fed. R. App. P. 4(a)(6) (allowing a district court to reopen the time to file an appeal if the moving party didn't receive notice of the entry of judgment and other conditions are met), he didn't file his “motion to reinstate” for another year and a half. Thus, O'Neal’s procedural blunder under Rule 15 is not the only obstacle to reviving his suit. In sum, the district court correctly concluded that O'Neal waived any argument that he may have had under Rule 60(b). And because the case had been terminated on the merits, the district court was right to deny his Rule 15 motion for leave to file an amended complaint. The judgment is AFFIRMED.

PMT Machinery Sales, Inc. v. Yama Seiki USA, Inc.

A company that enters a dealership agreement with a manufacturer takes a risk. Investing in the sale of the manufacturer’s products may generate significant profits. But if a manufacturer pulls out, a dealer who has made that investment may be left high and dry. To give dealers some protection, the Wisconsin Fair Dealership Law makes it difficult for manufacturers to simply walk away. If a manufacturer terminates, substantially changes, or fails to renew a dealership agreement without good cause, the statute entitles the dealer to relief. PMT Machinery Sales sued Yama Seiki for violating this statute. According to PMT, it had an exclusive-dealership arrangement with Yama Seiki, which the latter breached by using other companies to promote the sale of its machines. Yet PMT has failed to show that it had any dealership agreement with Yama Seiki, much less an exclusive one. To qualify as a dealership under the statute, PMT must have either possessed the right to sell or distribute Yama Seiki’s products or made more than de minimis use of Yama Seiki’s corporate symbols. But PMT never stocked any of Yama Seiki’s products, collected money for their sale, or made more than de minimis use of Yama Seiki’s logos. Because no reasonable jury could render a verdict in PMT’s favor, we affirm the district court’s grant of summary judgment in favor of Yama Seiki. I. Yama Seiki is a California manufacturer of machine tools. PMT, a Wisconsin corporation, sought to become the exclusive dealer for Yama Seiki turning machines in eastern Wisconsin. To that end, it negotiated with Clive Wang, the operations manager of the division that makes the machines. The parties disagree about whether Wang orally granted exclusive-dealer status to PMT in the course of these discussions, but they agree that Wang issued an exclusive letter of dealership to PMT in December 2015. This letter conditioned exclusive-dealer status on terms that included meeting sales requirements of $1,000,000 or 15 machines in a year, stocking one machine on PMT’s showroom floor, and developing a marketing plan for the machines. PMT rejected the letter because it did not believe it could reach the sales requirements. But two months later, PMT offered to take stock of two machines in exchange for an exclusive-dealer agreement. PMT followed this offer with an application for dealership status and a proposal to negotiate further. Wang did not address the offer; instead, he responded that he was “not sure if you are aware that you are in ‘exclusive’ status” to sell Yama Seiki turning machines. PMT believed that this communication amounted to an exclusivity agreement with open-ended terms. PMT never took stock of any machines, but it did facilitate their sale by soliciting customers, negotiating sales prices, and connecting the customers with Yama Seiki. The customers then paid Yama Seiki, after consenting to its usual sales terms. PMT was then responsible for installation and warranty work, which it subcontracted to its sister company. When a sale was completed, Yama Seiki paid PMT the difference between the negotiated sales price and the dealer price. The parties disagree about whether Yama Seiki was required to fulfill every order facilitated by PMT, but *328 they agree that Yama Seiki never in fact rejected a PMT order. Between the start of 2015 and May 2018, PMT derived 55% of its income and 74% of its profits from Yama Seiki sales, the remainder apparently coming from sales of other machine tools and accessories. PMT spent $3,803.14 on advertising during the alleged exclusive-dealership period, though only $1,200 of this is identified as specifically related to Yama Seiki products. PMT did not operate its own website but was instead included as part of its sister company’s site. The section of the site related to machine sales used the Yama Seiki logo and advertised Yama Seiki products alongside tools and accessories from other manufacturers. More than a year after Wang told PMT that it was in “exclusive status,” PMT discovered that others were selling Yama Seiki turning machines in eastern Wisconsin. PMT approached Wang, who stated that PMT was “not [an] exclusive distributor,” citing its rejection of the letter outlining the sales requirements. PMT then sued Yama Seiki, alleging that it had violated Wisconsin’s Fair Dealership Law, Wis. Stat. §§ 135.03–135.04, by breaching an exclusive-dealership agreement. Yama Seiki moved for summary judgment on the ground that PMT was not a dealership under the statute. The district court determined that PMT had not raised a triable issue on the dealer-status question and granted the motion. II. The Wisconsin Fair Dealership Law provides that “grantors” may not “terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause.” Wis. Stat. § 135.03. The statute’s protections, however, extend only to “dealerships,” and a “dealership” is defined as: A contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons, by which a person is granted the right to sell or distribute goods or services, or use a trade name, trademark, service mark, logotype, advertising or other commercial symbol, in which there is a community of interest in the business of offering, selling or distributing goods or services at wholesale, retail, by lease, agreement or otherwise. Id. § 135.02(3)(a). Wisconsin courts “have typically divided the statutory language into three parts: (1) the existence of a contract or agreement between two or more persons; (2) by which a person is granted one of the rights specified; and (3) in which there is the requisite ‘community of interest.’ ” Benson v. City of Madison, 376 Wis.2d 35, 897 N.W.2d 16, 27 (2017). The district court resolved the case on the second prong. It held that PMT failed to establish that it was granted either of the rights specified by the statute: (1) the right to sell or distribute the manufacturer’s goods, or (2) the authorization to “use a trade name, trademark, service mark, logotype, advertising or other commercial symbol.” Wis. Stat. § 135.02(3)(a). To defeat summary judgment, a party must present a “genuine dispute” of material fact such that a reasonable jury could find in its favor. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under this standard, “[t]he nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010); see also Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997) (“A party ‘may not defeat a properly focused motion for summary judgment’ by *329 relying on evidence that is ‘less than significantly probative.’ ” (citation omitted)). PMT has not presented a genuine dispute about whether it had a right to sell Yama Seiki’s machines or made more than de minimis use of Yama Seiki’s corporate symbols. A. The Wisconsin Supreme Court has defined the “right to sell or distribute” as “the ‘unqualified authorization to transfer the product at the point and moment of the agreement to sell’ or the ‘authority to commit the grantor to a sale.’ ” Benson, 897 N.W.2d at 29 (quoting Foerster, Inc. v. Atlas Metal Parts Co., 105 Wis.2d 17, 313 N.W.2d 60, 64 (1981)). Consistent with this guidance, we have emphasized that the “single most important factor” for a dealer’s “right to sell” is its “ability to transfer the product itself (or title to the product) or commit the grantor to a transaction at the moment of the agreement to sell.” John Maye Co. v. Nordson Corp., 959 F.2d 1402, 1406 (7th Cir. 1992). Here, PMT was not responsible for either delivering the machines or transferring title. It nonetheless contends that it had the right to sell or distribute because it was authorized to commit Yama Seiki to a sale. As support, PMT relies on the undisputed fact that Yama Seiki never rejected a sale arranged by PMT. 1 2 But PMT must do more than assert that Yama Seiki’s silence amounted to an agreement to follow through on every sale that PMT arranged. To satisfy the second prong of the test, PMT must show that it exercised significant control over the sales process. As both we and the Wisconsin Supreme Court have explained, the hallmarks of such control include transfer of title to customers, maintenance of inventory, approval of sales terms, and collecting payment. PMT—which functioned much more like a manufacturer’s representative than a dealership—assumed none of these responsibilities. In Benson v. City of Madison, the Wisconsin Supreme Court outlined the degree of control that a dealership must have over the transaction to qualify for the statute’s protections. That case involved golf pros who were tasked with operating various courses in a city, selling merchandise and concessions on the courses, and hiring support staff. Benson, 897 N.W.2d at 19–20. In holding that the pros qualified as dealers, the court emphasized that it was “most important[ ]” for this determination that a customer “paid her greens fee to the Golf Pro” which was then “remitted ... to the City.” Id. at 29. But the court also highlighted other aspects of the golf pros’ role demonstrating the extent of their control over the transaction, including the authority to operate rental services, make staffing decisions, and set some prices. Id. at 20, 29. Benson built upon earlier cases identifying the hallmarks of the right to sell. In Foerster, Inc. v. Atlas Metal Parts Co., the Wisconsin Supreme Court held that simply facilitating sales of a manufacturer’s products was the role of a “manufacturer’s representative,” not a dealer. 313 N.W.2d at 61. Focusing on the process of the order, the court emphasized that the manufacturer had “assumed total control of the transaction” by accepting or rejecting orders, negotiating sales terms, making credit arrangements, and receiving payments. Id. at 62. At no point did the plaintiff stock, take possession, or distribute the manufacturer’s products. Id. at 64–66. In John Maye Co. v. Nordson Corp., we concluded that an entity performing a role similar to that of PMT was a manufacturer’s representative rather than a dealership under Wisconsin law. In that case, John Maye was responsible for “transmitt[ing] *330 customer orders or inquiries to Nordson for approval,” “provid[ing] assistance and advice to Nordson customers,” bearing “all of its own expenses,” “recogniz[ing] Nordson’s exclusive ownership” of its corporate symbols, and ensuring “that any price quotations contain[ed] Nordson’s standard conditions of sale.” John Maye, 959 F.2d at 1404. Nordson had “sole discretion to accept or reject any order.” Id. (internal quotation marks omitted). We held that no dealership relationship existed. In doing so, we rejected the argument that significant delegation of responsibilities could create the requisite relationship absent an affirmative right to commit a grantor to a sale or the authority to transfer possession or title. Id. 1407. 3 It is undisputed that Yama Seiki never refused a sale arranged by PMT. But PMT presented no evidence that Yama Seiki was duty-bound to honor every sale that PMT arranged. Nor did PMT show that it exercised the requisite control over the sales transactions. At no point did any money pass from a customer to PMT—the factor that the Wisconsin Supreme Court identified as “most important[ ]” in Benson. See 897 N.W.2d at 29. Nor did PMT maintain stock of Yama Seiki machines, possess the ability to transfer title, or have the authority to negotiate sales terms. Instead, PMT’s role was very similar to that of the plaintiffs in John Maye and Foerster: it solicited customers, negotiated prices, and provided support after delivery. Yama Seiki maintained control over the transaction by coordinating sales terms with customers, collecting payment, and executing delivery. Because PMT did not demonstrate that it had the right to sell Yama Seiki’s products, it does not qualify for the statute’s protections. B. 4 Even though PMT lacked the right to sell, it could still qualify as a dealer if it made substantial use of Yama Seiki’s commercial symbols. For an entity to qualify as a “dealership” through the use of commercial symbols, “more is required than the mere right to use a commercial symbol.” John Maye, 959 F.2d at 1410; see also Foerster, 313 N.W.2d at 67 (“[T]here must be more than the mere use of a calling card identifying a manufacturer’s representative as an agent for a company ....”). Instead, a dealership must either put those symbols to “such use that the public associates the dealer with the trademark,” John Maye, 959 F.2d at 1409, or “prominently display the logo as a[n] implicit guarantee of quality.” Moodie v. Sch. Book Fairs, Inc., 889 F.2d 739, 743 (7th Cir. 1989). Such use by a dealership “ties its fortunes to the reputation of the grantor, giving the grantor superior bargaining power that it might use to exploit the dealer.” John Maye, 959 F.2d at 1410. Use of a logo or trademark that does not rise to this level is de minimis and “not sufficient to satisfy the WFDL.” Moodie, 889 F.2d at 743. 5 6 Sufficiently substantial use of a grantor’s corporate symbol typically requires a purported dealer to “make a ‘substantial investment in the trademark.’ ” Van Groll v. Land O' Lakes, Inc., 310 F.3d 566, 570 (7th Cir. 2002) (citation omitted). The commercial-symbols form of the dealership definition serves “to protect against situations in which a dealer spends money advertising for or promoting a company” only for that investment to be “lost when the company terminates the relationship.” Id. In that scenario, the power imbalance between parties is at its greatest because the dealer has the most to lose. By contrast, where a dealer has only made “de minim[i]s investment in a trademark” the *331 pressure “is not sufficient for the alleged dealer to be ‘over the barrel’ so as to warrant protection under the WFDL.” Moodie, 889 F.2d at 743; see also John Maye, 959 F.2d at 1409 (“[A] minor investment in a grantor’s trademark is unlikely to place the grantor in such a superior bargaining position that it could extract concessions from an unwilling dealer, and so the dealer does not need the protection of the WFDL.”). 7 PMT presented scant evidence of a “substantial investment” in Yama Seiki’s corporate symbols that might be lost by termination of the relationship. It relied primarily on its use of Yama Seiki logos on its website, arguing that this use is not de minimis due to the modern importance of internet commerce. This argument was poorly developed and arguably waived on appeal. However online trademark use might play out under the WFDL in another case, we agree with the district court that PMT’s use of Yama Seiki’s logo did not involve a substantial investment that would leave it “over the barrel” if Yama Seiki pulled the plug. Moodie, 889 F.2d at 743. The only investment that PMT identified is its expenditure of $3,803.14 for advertising. But apart from the modest $1,200 spent on advertising efforts made cooperatively with Yama Seiki, PMT failed to show how much of its money was spent on Yama Seiki products, as opposed to other products that it carried. PMT’s investment was not sufficient to create an imbalance of power between it and Yama Seiki and therefore does not qualify it for protection under the statute. * * * PMT has failed to establish that it had the right to sell Yama Seiki’s machines or use Yama Seiki’s trademarks in such a way that it would entitle it to the protections of the Wisconsin Fair Dealership Law. We therefore AFFIRM the district court’s grant of summary judgment.

Barrett

majority

A company that enters a dealership agreement with a manufacturer takes a risk. Investing in the sale of the manufacturer’s products may generate significant profits. But if a manufacturer pulls out, a dealer who has made that investment may be left high and dry. To give dealers some protection, the Wisconsin Fair Dealership Law makes it difficult for manufacturers to simply walk away. If a manufacturer terminates, substantially changes, or fails to renew a dealership agreement without good cause, the statute entitles the dealer to relief. PMT Machinery Sales sued Yama Seiki for violating this statute. According to PMT, it had an exclusive-dealership arrangement with Yama Seiki, which the latter breached by using other companies to promote the sale of its machines. Yet PMT has failed to show that it had any dealership agreement with Yama Seiki, much less an exclusive one. To qualify as a dealership under the statute, PMT must have either possessed the right to sell or distribute Yama Seiki’s products or made more than de minimis use of Yama Seiki’s corporate symbols. But PMT never stocked any of Yama Seiki’s products, collected money for their sale, or made more than de minimis use of Yama Seiki’s logos. Because no reasonable jury could render a verdict in PMT’s favor, we affirm the district court’s grant of summary judgment in favor of Yama Seiki. I. Yama Seiki is a California manufacturer of machine tools. PMT, a Wisconsin corporation, sought to become the exclusive dealer for Yama Seiki turning machines in eastern Wisconsin. To that end, it negotiated with Clive Wang, the operations manager of the division that makes the machines. The parties disagree about whether Wang orally granted exclusive-dealer status to PMT in the course of these discussions, but they agree that Wang issued an exclusive letter of dealership to PMT in December 2015. This letter conditioned exclusive-dealer status on terms that included meeting sales requirements of $1,000,000 or 15 machines in a year, stocking one machine on PMT’s showroom floor, and developing a marketing plan for the machines. PMT rejected the letter because it did not believe it could reach the sales requirements. But two months later, PMT offered to take stock of two machines in exchange for an exclusive-dealer agreement. PMT followed this offer with an application for dealership status and a proposal to negotiate further. Wang did not address the offer; instead, he responded that he was “not sure if you are aware that you are in ‘exclusive’ status” to sell Yama Seiki turning machines. PMT believed that this communication amounted to an exclusivity agreement with open-ended terms. PMT never took stock of any machines, but it did facilitate their sale by soliciting customers, negotiating sales prices, and connecting the customers with Yama Seiki. The customers then paid Yama Seiki, after consenting to its usual sales terms. PMT was then responsible for installation and warranty work, which it subcontracted to its sister company. When a sale was completed, Yama Seiki paid PMT the difference between the negotiated sales price and the dealer price. The parties disagree about whether Yama Seiki was required to fulfill every order facilitated by PMT, but *328 they agree that Yama Seiki never in fact rejected a PMT order. Between the start of 2015 and May 2018, PMT derived 55% of its income and 74% of its profits from Yama Seiki sales, the remainder apparently coming from sales of other machine tools and accessories. PMT spent $3,803.14 on advertising during the alleged exclusive-dealership period, though only $1,200 of this is identified as specifically related to Yama Seiki products. PMT did not operate its own website but was instead included as part of its sister company’s site. The section of the site related to machine sales used the Yama Seiki logo and advertised Yama Seiki products alongside tools and accessories from other manufacturers. More than a year after Wang told PMT that it was in “exclusive status,” PMT discovered that others were selling Yama Seiki turning machines in eastern Wisconsin. PMT approached Wang, who stated that PMT was “not [an] exclusive distributor,” citing its rejection of the letter outlining the sales requirements. PMT then sued Yama Seiki, alleging that it had violated Wisconsin’s Fair Dealership Law, –135.04, by breaching an exclusive-dealership agreement. Yama Seiki moved for summary judgment on the ground that PMT was not a dealership under the statute. The district court determined that PMT had not raised a triable issue on the dealer-status question and granted the motion. II. The Wisconsin Fair Dealership Law provides that “grantors” may not “terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause.” The statute’s protections, however, extend only to “dealerships,” and a “dealership” is defined as: A contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons, by which a person is granted the right to sell or distribute goods or services, or use a trade name, trademark, service mark, logotype, advertising or other commercial symbol, in which there is a community of interest in the business of offering, selling or distributing goods or services at wholesale, retail, by lease, agreement or otherwise. 135.02(3)(a). Wisconsin courts “have typically divided the statutory language into three parts: (1) the existence of a contract or agreement between two or more persons; (2) by which a person is granted one of the rights specified; and (3) in which there is the requisite ‘community of interest.’ ” The district court resolved the case on the second prong. It held that PMT failed to establish that it was granted either of the rights specified by the statute: (1) the right to sell or distribute the manufacturer’s goods, or (2) the authorization to “use a trade name, trademark, service mark, logotype, advertising or other commercial symbol.” Wis. Stat. 135.02(3)(a). To defeat summary judgment, a party must present a “genuine dispute” of material fact such that a reasonable jury could find in its favor. Fed. R. Civ. P. 56(a); see also Under this standard, “[t]he nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” ; see also Smith ex rel. 4 PMT has not presented a genuine dispute about whether it had a right to sell Yama Seiki’s machines or made more than de minimis use of Yama Seiki’s corporate symbols. A. The Wisconsin Supreme Court has defined the “right to sell or distribute” as “the ‘unqualified authorization to transfer the product at the point and moment of the agreement to sell’ or the ‘authority to commit the grantor to a sale.’ ” ). Consistent with this guidance, we have emphasized that the “single most important factor” for a dealer’s “right to sell” is its “ability to transfer the product itself (or title to the product) or commit the grantor to a transaction at the moment of the agreement to sell.” John Here, PMT was not responsible for either delivering the machines or transferring title. It nonetheless contends that it had the right to sell or distribute because it was authorized to commit Yama Seiki to a sale. As support, PMT relies on the undisputed fact that Yama Seiki never rejected a sale arranged by PMT. 1 2 But PMT must do more than assert that Yama Seiki’s silence amounted to an agreement to follow through on every sale that PMT arranged. To satisfy the second prong of the test, PMT must show that it exercised significant control over the sales process. As both we and the Wisconsin Supreme Court have explained, the hallmarks of such control include transfer of title to customers, maintenance of inventory, approval of sales terms, and collecting payment. PMT—which functioned much more like a manufacturer’s representative than a dealership—assumed none of these responsibilities. In the Wisconsin Supreme Court outlined the degree of control that a dealership must have over the transaction to qualify for the statute’s protections. That case involved golf pros who were tasked with operating various courses in a city, selling merchandise and concessions on the courses, and hiring support staff. –20. In holding that the pros qualified as dealers, the court emphasized that it was “most important[ ]” for this determination that a customer “paid her greens fee to the Golf Pro” which was then “remitted to the City.” But the court also highlighted other aspects of the golf pros’ role demonstrating the extent of their control over the transaction, including the authority to operate rental services, make staffing decisions, and set some prices. built upon earlier cases identifying the hallmarks of the right to sell. In the Wisconsin Supreme Court held that simply facilitating sales of a manufacturer’s products was the role of a “manufacturer’s representative,” not a Focusing on the process of the order, the court emphasized that the manufacturer had “assumed total control of the transaction” by accepting or rejecting orders, negotiating sales terms, making credit arrangements, and receiving payments. At no point did the plaintiff stock, take possession, or distribute the manufacturer’s products. at –66. In John we concluded that an entity performing a role similar to that of PMT was a manufacturer’s representative rather than a dealership under Wisconsin law. In that case, John was responsible for “transmitt[ing] *330 customer orders or inquiries to Nordson for approval,” “provid[ing] assistance and advice to Nordson customers,” bearing “all of its own expenses,” “recogniz[ing] Nordson’s exclusive ownership” of its corporate symbols, and ensuring “that any price quotations contain[ed] Nordson’s standard conditions of sale.” John Nordson had “sole discretion to accept or reject any order.” We held that no dealership relationship existed. In doing so, we rejected the argument that significant delegation of responsibilities could create the requisite relationship absent an affirmative right to commit a grantor to a sale or the authority to transfer possession or title. 3 It is undisputed that Yama Seiki never refused a sale arranged by PMT. But PMT presented no evidence that Yama Seiki was duty-bound to honor every sale that PMT arranged. Nor did PMT show that it exercised the requisite control over the sales transactions. At no point did any money pass from a customer to PMT—the factor that the Wisconsin Supreme Court identified as “most important[ ]” in See Nor did PMT maintain stock of Yama Seiki machines, possess the ability to transfer title, or have the authority to negotiate sales terms. Instead, PMT’s role was very similar to that of the plaintiffs in John and : it solicited customers, negotiated prices, and provided support after delivery. Yama Seiki maintained control over the transaction by coordinating sales terms with customers, collecting payment, and executing delivery. Because PMT did not demonstrate that it had the right to sell Yama Seiki’s products, it does not qualify for the statute’s protections. B. 4 Even though PMT lacked the right to sell, it could still qualify as a dealer if it made substantial use of Yama Seiki’s commercial symbols. For an entity to qualify as a “dealership” through the use of commercial symbols, “more is required than the mere right to use a commercial symbol.” John ; see also Instead, a dealership must either put those symbols to “such use that the public associates the dealer with the trademark,” John or “prominently display the logo as a[n] implicit guarantee of quality.” Such use by a dealership “ties its fortunes to the reputation of the grantor, giving the grantor superior bargaining power that it might use to exploit the ” John Use of a logo or trademark that does not rise to this level is de minimis and “not sufficient to satisfy the WFDL.” 889 F.2d at 5 6 Sufficiently substantial use of a grantor’s corporate symbol typically requires a purported dealer to “make a ‘substantial investment in the trademark.’ ” Van The commercial-symbols form of the dealership definition serves “to protect against situations in which a dealer spends money advertising for or promoting a company” only for that investment to be “lost when the company terminates the relationship.” In that scenario, the power imbalance between parties is at its greatest because the dealer has the most to lose. By contrast, where a dealer has only made “de minim[i]s investment in a trademark” the *331 pressure “is not sufficient for the alleged dealer to be ‘over the barrel’ so as to warrant protection under the WFDL.” 889 F.2d at ; see also John 7 PMT presented scant evidence of a “substantial investment” in Yama Seiki’s corporate symbols that might be lost by termination of the relationship. It relied primarily on its use of Yama Seiki logos on its website, arguing that this use is not de minimis due to the modern importance of internet commerce. This argument was poorly developed and arguably waived on appeal. However online trademark use might play out under the WFDL in another case, we agree with the district court that PMT’s use of Yama Seiki’s logo did not involve a substantial investment that would leave it “over the barrel” if Yama Seiki pulled the plug. 889 F.2d at The only investment that PMT identified is its expenditure of $3,803.14 for advertising. But apart from the modest $1,200 spent on advertising efforts made cooperatively with Yama Seiki, PMT failed to show how much of its money was spent on Yama Seiki products, as opposed to other products that it carried. PMT’s investment was not sufficient to create an imbalance of power between it and Yama Seiki and therefore does not qualify it for protection under the statute. * * * PMT has failed to establish that it had the right to sell Yama Seiki’s machines or use Yama Seiki’s trademarks in such a way that it would entitle it to the protections of the Wisconsin Fair Dealership Law. We therefore AFFIRM the district court’s grant of summary judgment.

Perrone v. United States

Terry Learn died after Joseph Perrone injected her with 7.5 grams of cocaine. Perrone pleaded guilty to a single count of unlawful drug distribution and stipulated that his distribution of the cocaine had caused Learn's death. In accordance with Perrone's plea agreement, the district court applied a statutory sentencing enhancement that mandates a twenty-year minimum term of imprisonment if unlawful drug distribution results in death. The Supreme *901 Court has since clarified that this provision requires a defendant's drugs to be a but-for cause of the death, not merely a contributing cause. Perrone filed a petition for relief under 28 U.S.C. § 2255 on the ground that the Court's narrowed interpretation of the enhancement reveals that he is actually innocent of causing Learn's death. In addition, he asserts that his counsel was ineffective for failing to advise him of a Seventh Circuit case decided on the day before his sentencing that interpreted the “death results” enhancement the same way that the Court ultimately did. He claims that if he had known that the enhancement required the government to show that his cocaine was the but-for cause of Learn's death, he would have sought to withdraw his plea. The district court denied Perrone's petition, and we affirm its judgment. I. At approximately 4 a.m. on April 17, 2008, Terry Learn and her coworker Madonna Narog went to Narog's hotel room, where they did heroin and cocaine for several hours. They left the hotel around 8 a.m. to purchase more cocaine, about fifty dollars’ worth for Learn and twenty-five dollars’ worth for Narog. They returned to the hotel and did cocaine until close to noon, when Learn left for her shift at Roxy's Night Club. Narog saw Learn again around 2 p.m., when Narog went to the club to pick up some money, and again at 8 p.m., when Narog was beginning her shift and Learn was ending hers. After her shift, Learn met her boyfriend, Joseph Perrone, and went back to his home. According to Perrone, the two made a suicide pact. After watching Learn inject herself with a mixture of cocaine and water, Perrone told her that she had not taken enough to kill herself. He then prepared and injected 7.5 grams of cocaine into Learn. Perrone later told the police that Learn convulsed, fell to the floor, and died immediately after he injected her for the last time. He did not specify the time at which he administered the final injection, but he said that it happened on April 18th. It was therefore at least four hours after Narog saw Learn at the shift change and at least twelve hours after Narog last saw her do any drugs not distributed by Perrone. Perrone moved Learn's body to her apartment. He wiped his fingerprints off the syringe and put it into Learn's hand. As he stipulated in his plea agreement, he aimed “to create the false impression that Terry Learn had died alone in her own residence.” The body was not discovered until April 26th, when a concerned neighbor flagged down police to report that she had not seen Learn in several days. Police officers discovered Learn's body in her apartment. According to the coroner's report, the cause of death was “[c]ombined toxicity with cocaine, ethanol and opiates.” Several months later, Perrone was arrested on an unrelated firearms charge. He chose that time to confess to police that he had killed Learn, describing what he had done as “premeditated murder.” During this interview, he told the police that he gave Learn one injection of an unspecified amount of cocaine; during a second interview a few weeks later, he said that he injected Learn with 7.5 grams of cocaine in three separate injections of 2.5 grams each. The government obtained an indictment against Perrone for distributing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The indictment specified that Learn died as a result of Perrone's distribution, which, if proved, would enhance his statutory sentencing range under § 841(b)(1)(C). That provision mandates a twenty-year minimum sentence if “death or serious bodily injury results from the use” of the unlawfully distributed substance. *902 Perrone pleaded guilty. In his plea agreement, he admitted that his conduct had violated the “death results” provision—namely, he stipulated that “the ingestion of the controlled substance distributed by the Defendant caused the death of another person.” He also signed a stipulation of facts admitting that he “injected Terry Learn with a syringe containing cocaine” and that she “died immediately after receiving the injection.” At his plea hearing a few weeks later, Perrone stated that he had read the documents, that he understood them, and that they were accurate. On the day before Perrone was sentenced, the Seventh Circuit decided United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010), which held that the “death results” enhancement requires the government to prove that “ingestion of the defendants’ drugs was a ‘but for’ cause of the death[ ].” Id. at 948. Hatfield rejected jury instructions that used vaguer, less demanding language to describe the necessary causal relationship; it said that the district court could not summarize the “death results” enhancement as requiring the jury to find only that the illegal drugs “played a part” in the victim's death. Id. at 949. At sentencing the next day, the district court applied the “death results” enhancement and sentenced Perrone to 240 months’ imprisonment. Before imposing the sentence, the district judge said that he had reviewed Perrone's Stipulation of Facts to see “what impact, if any, the Rex Hatfield case was going to have on this case.” Perrone's attorney did not engage this point with the judge, nor did he inform Perrone about Hatfield. Instead, he once again agreed that the sentencing enhancement applied. Perrone did not appeal his sentence. He eventually received an 80-month reduction of his sentence for assistance to the government, a possibility contemplated by the plea agreement and that Perrone and the district court had discussed at his sentencing hearing. Four years later, the Supreme Court decided Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), which effectively ratified Hatfield’s standard of causation. The Court held that the “death results” enhancement ordinarily requires the government to prove that the victim would have lived but for the unlawfully distributed drugs. Id. at 888. In Burrage, the victim died with multiple drugs in his bloodstream, including metabolites from heroin that had been distributed by the defendant. Although morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range, the government's experts could not say whether the victim would have lived if he had not taken the heroin. They testified only that heroin was a “contributing factor” to a death caused by “mixed drug intoxication.” That testimony dovetailed with instructions requiring the jury to find “that the heroin distributed by the Defendant was a contributing cause of [the victim's] death.” Id. at 886. The Court said that the statute requires the government to show more than that the distributed drug contributed to the victim's death. The enhancement applies when “death or serious bodily injury results from the use of [the distributed] substance,” which means that the substance must be a “but for” cause of the death. Id. at 887–88. Within a month of Burrage, Perrone filed a petition to vacate or alter his sentence pursuant to 28 U.S.C. § 2255. His initial petition asserted that the new interpretation of the “death results” enhancement announced in Burrage renders him actually innocent of causing Learn's death. In his reply brief below, Perrone added a claim that his attorney had been constitutionally ineffective for not telling him about Hatfield. *903 The district court dismissed Perrone's claims with prejudice. We granted a certificate of appealability on three questions: whether Perrone was actually innocent of his sentence under Burrage, whether Perrone's sentencing counsel had been constitutionally ineffective for failing to address the issue of causation in light of Hatfield, and whether Perrone's plea was knowing and voluntary. Perrone presses only the first two of these arguments on appeal. II. Perrone's strongest argument is that he is actually innocent of the “death results” sentencing enhancement. He claims that when he entered his plea agreement and pleaded guilty, he did not know that the enhancement required but-for causation. Since then, Burrage has made the standard clear, and under it, he says, there is insufficient evidence to show that Learn's death resulted from the cocaine he gave her. Although Perrone generally waived his right to raise collateral challenges, the waiver excludes collateral attacks based on “any subsequent change in the interpretation of the law” by the Supreme Court that is declared retroactive and renders Perrone innocent. A. 1 The government contends that Perrone procedurally defaulted his Burrage claim by failing to raise it on direct appeal. McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016) (“A claim cannot be raised for the first time in a § 2255 motion if it could have been raised at trial or on direct appeal.”). In response, Perrone has invoked the “actual innocence” exception, which permits a petitioner to assert a defaulted claim if he “can demonstrate that he is ‘actually innocent’ of the crimes of which he was convicted.” Id. Perrone's invocation of this exception means that “actual innocence” does double duty in this case: it is both what Perrone must show to overcome procedural default and the standard he must satisfy to prevail on the merits of his Burrage claim. 2 3 Perhaps because of this overlap, both parties assume (as did the district court) that the “actual innocence” exception to procedural default is available to Perrone. That assumption is doubtful. The point of the exception is to ensure that “federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The Supreme Court has flagged the possibility that actual innocence might be enough to justify collateral relief in a capital case on the theory that the execution of one who is actually innocent violates the Eighth Amendment. Id. at 405, 113 S.Ct. 853. Apart from that potential exception, however, the Court's “habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. 853. This is a problem for Perrone. He does not ask us to determine that he is actually innocent so that we can consider a claim of constitutional error; rather, his innocence of the “death results” enhancement is the error he asks us to correct.1 *904 4 5 The government, however, has not made this argument. Instead, apparently believing that default and the merits will rise or fall together, it has treated Perrone's assertion of the “actual innocence” exception as functionally no different from his claim on the merits to be actually innocent of the “death results” enhancement. Procedural default is a waivable defense, not a jurisdictional bar. We treat the government as having waived the defense and analyze Perrone's petition on the merits. B. Perrone's petition claims that the Supreme Court's narrowed interpretation of the “death results” enhancement renders him actually innocent of causing Learn's death. The Supreme Court has held that when a subsequent statutory interpretation narrows the elements of a crime, revealing that the petitioner has been convicted and sentenced for “an act that the law does not make criminal,” the petitioner has suffered “a complete miscarriage of justice” that justifies relief under § 2255. Davis v. United States, 417 U.S. 333, 346–47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). We have extended the reasoning of Davis to mandatory sentencing enhancements. In Narvaez v. United States, 674 F.3d 621, 627–28 (7th Cir. 2011), we held that when a petitioner's sentence is increased by application of an enhancement of which he was actually innocent, the petitioner has suffered a “miscarriage of justice” cognizable under § 2255(a). See also Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013) (holding that a claim identical to the one raised under § 2255(a) in Narvaez “constitutes a miscarriage of justice corrigible in a § 2241 proceeding.”). Thus, regardless whether we treat Perrone's petition as challenging his conviction or his sentence (a choice that bears on the standard of review, as we explain below), Perrone has stated a claim under § 2255. The parties agree that Perrone has a cognizable claim,2 but they disagree about the standard we should apply in assessing whether Perrone is actually innocent of causing Learn's death. Perrone argues that the standard should be the one that Schlup v. Delo provides for determining “actual innocence” in the context of procedural default. In Schlup, the Court held that “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The government, in contrast, says that Perrone must show that it is more likely than not that no reasonable judge would have found him guilty by a preponderance of the evidence. The government's insistence on a “preponderance” standard is grounded in its belief that we must treat Perrone's petition as asserting innocence of a sentencing factor rather than innocence of an element of the crime. 6 The government stresses that when Perrone pleaded guilty and was sentenced, the “death results” enhancement was *905 treated as a sentencing factor that a judge could find by a preponderance of the evidence. That changed with Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held that any fact that increases the mandatory minimum sentence for a crime is an element of a crime that must be submitted to a jury and found beyond a reasonable doubt. Alleyne, however, is not retroactive on collateral review. Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015). The government reasons that this means that we must evaluate the sufficiency of the evidence supporting the application of the enhancement to Perrone as the issue would have been resolved at the time Perrone was sentenced: through the eyes of a judge and by a preponderance standard.3 The government's position is inconsistent with our holding in Krieger v. United States, 842 F.3d 490 (7th Cir. 2016). There, in holding that Burrage announced a substantive rule that applies retroactively on collateral review, we described the “death results” enhancement as the Supreme Court did in Burrage: as an element of the crime. Krieger, 842 F.3d at 500 (“[T]he rule announced in Burrage altered the range of conduct that the law punishes.”); Burrage, 134 S.Ct. at 887 (characterizing the “death results” enhancement as “an element that must be submitted to the jury and found beyond a reasonable doubt”). Had we thought ourselves bound by Alleyne’s non-retroactivity (which we acknowledged) to treat Burrage as changing only the scope of a sentencing factor, we presumably would have relied on Narvaez when we held that Krieger's Burrage error was cognizable under § 2255. Instead, consistent with Burrage’s treatment of the enhancement as an element of the crime, we relied on the progeny of Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) to hold that Krieger could assert her claim. Krieger, 842 F.3d at 497–500. It is worth noting that the government itself conceded in Krieger that “Burrage is substantive because it defines an essential element of a federal crime....” 842 F.3d at 497. And even in circuits that maintain—contrary to our approach in Narvaez—that a challenge to a mandatory sentencing enhancement is not cognizable on collateral review, Burrage claims are cognizable precisely because they go to the validity of a conviction rather than to the validity of a sentence. Compare Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (holding that an error under the mandatory guidelines was not a miscarriage of justice because the petitioner's sentence remained “within the statutory maximum authorized for the offense”), with Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir. 2015) (holding that a petitioner's challenge under Burrage is “a challenge to the validity of his conviction”). To be sure, Krieger did not address the standard of review that would be applicable when a court collaterally reviews whether there is sufficient evidence to support application of the enhancement according to Burrage’s standard of but-for causation. In that respect, Krieger technically *906 leaves the standard-of-review question open. Yet it would be in significant tension with Krieger’s treatment of the enhancement as an element of the crime to review Perrone's claim under the regime previously applicable to sentencing factors. 7 8 We thus reject the government's attempt to slice Burrage’s characterization of the “death results” enhancement (as an element of crime) away from its definition of what application of that enhancement requires (but-for causation). Because Alleyne is not retroactive, Perrone could not get relief on the ground that the “death results” question went to a judge rather than jury. Once he is before us with a cognizable claim, however, there is no reason for us to describe his claim as something it is not. Burrage, unlike Alleyne, is retroactive, and it makes clear that Perrone's claim goes to his innocence of a crime, not a sentence. Whether the government has proven an element of the crime is always a question for the jury. That means that Perrone's burden is to show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt of causing Learn's death. Schlup, 513 U.S. at 327, 115 S.Ct. 851. C. 9 This dispute is about causation, so we will begin by clearly stating what “but for” causation requires. It does not require proof that the distributed drug was present in an amount sufficient to kill on its own. The Court explained in Burrage that death can “result[ ] from” a particular drug when it is the proverbial “straw that broke the camel's back.” 134 S.Ct. at 888. As the Court put it: “if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. Here, then, the fact that other substances in Learn's bloodstream played a part in her death does not defeat the government's claim that her death resulted from the cocaine Perrone gave her. A jury could have found him guilty of causing her death if it concluded beyond a reasonable doubt that Perrone's cocaine pushed her over the edge. In Burrage, the Court left open the possibility that the government could prove causation another way: it said that strict “but-for” causation might not be required when “multiple sufficient causes independently, but concurrently, produce a result.” 134 S.Ct. at 890. In other words, the “death results” enhancement might apply to a defendant who distributes a lethal dose of cocaine to a person who also consumes a lethal dose of heroin. The government suggests that a jury could have found Perrone guilty on this theory as well, because Perrone gave Learn a lethal amount of cocaine. We need not decide whether this second theory is viable, however, because there is sufficient evidence to have permitted a jury to find Perrone guilty on the first. 10 Perrone admitted that he distributed 7.5 grams of cocaine to Learn in a deliberate attempt to kill her, that he personally injected Learn with cocaine intending to kill her, and that she convulsed and died immediately after he injected her. That in itself strongly supports the conclusion that Learn's death resulted from the cocaine Perrone administered. It also distinguishes Perrone from the defendants in Burrage, Hatfield, and Krieger, none of whom stated that they had distributed the drug to the user with the intent to kill. The best evidence on Perrone's side is the coroner's report, which listed the cause of death as “[c]ombined toxicity with cocaine, ethanol and opiates.” This, Perrone says, is the kind of evidence the Court *907 found insufficient to establish causation in Burrage. There, a state medical examiner testified that the drug user died of “mixed drug intoxication,” with a number of substances, including the heroin distributed by the defendant, all playing a “ ‘contributing’ role.” Burrage, 134 S.Ct. at 886. And the two medical experts who testified at the defendant's trial stated that they could not say whether the drug user would have lived had he not taken the defendant's heroin. Id. at 885–86. So here, Perrone says, the coroner's report indicates that cocaine combined with other drugs to cause Learn's death. And when the coroner, Dr. Raj Nanduri, testified before the grand jury, she never expressly opined that Learn would have lived if she had not consumed the cocaine Perrone gave her. Before the grand jury, the government seemed focused on eliciting testimony that the cocaine Perrone distributed was independently sufficient to kill Learn. Nanduri repeated the conclusion she reached in the autopsy report: that Learn's cause of death was the combined toxicity of cocaine, ethanol, and opiates.4 When the prosecutor followed up with a question about which substance was “primarily responsible for her death,” Nanduri clarified that “if she just had cocaine in her system and the other two drugs were not present, then cocaine would be the toxic agent that killed her.” The prosecutor returned to this point a few minutes later, saying “I don't mean to beat this into the ground, but it is a very important point for us. It is your testimony under oath that to a medical certainty this quantity of cocaine found in this woman's blood would have killed her all by itself?” Nanduri replied “yes.” Nanduri repeated several more times before the grand jury that the cocaine in Learn's bloodstream was a lethal dose. She did not, however, testify that alcohol and morphine in Learn's system were not lethal. She said that the alcohol was not at a level she would expect to be fatal, but she expressed uncertainty about the role the morphine had played in Learn's death. Although Learn's morphine level was low, Nanduri explained that whether such a low dose could kill a person depends on numerous factors, including the person's past history of using opiates. She also said that a person's morphine level might be deceptively low if the person became comatose and continued metabolizing the morphine before dying. Nanduri's testimony thus does not establish that cocaine was the but-for cause of Learn's death. But the government has testimony from another expert, Dr. Chris Long, who did expressly state that Learn would have lived but for the cocaine. Long prepared a toxicology report on Learn's body in 2008. After reviewing his report in 2014, he confirmed that the alcohol would not have killed Learn “absent the cocaine” and that “[t]he opiate is of no significance.” A reasonable juror could credit Long's testimony. Perrone's best response is to say that even if cocaine caused Learn's death, the cocaine that killed her was not the cocaine he gave her. Learn had, after all, done a fair amount of cocaine with Narog the day before. And given her pattern of cocaine use, it is at least possible that Learn did some cocaine during her shift at work. Perrone may have injected cocaine into a woman with an already-lethal amount of cocaine in her body. This evidence helps Perrone, but only a little. There is no evidence that Learn acquired or took any cocaine between starting her shift at noon and meeting up with Perrone sometime after the 8 p.m. *908 end of her shift, and Narog testified before the grand jury that it was not usually possible to take drugs while at work. Furthermore, even if Learn took some cocaine between noon and whenever she met up with Perrone, a rational factfinder could easily conclude that she would have taken only a nonlethal dose. Narog testified before the grand jury that Learn was a practiced drug user who was very particular about the amount of cocaine she injected and rarely varied. That evidence paints a picture of a woman who met up with Perrone while she was still on track to survive the night. That Learn arrived at Perrone's without enough cocaine in her system to kill her is bolstered by what happened when she got there. Perrone said that the two had a suicide pact, which suggests that they both thought Learn needed to consume more drugs if she wanted to end her life. And after Learn injected herself with a dose of cocaine, Perrone himself made the judgment that what she had taken was not enough to kill her. According to his own statement, he gave Learn an additional 7.5 grams of cocaine because he concluded that she would not die unless she had more. He told the police that Learn convulsed and fell to the floor immediately after he injected her, and he later characterized what he did as “premeditated murder.” In his stipulation of facts, Perrone admitted that Learn died “immediately after receiving the injection.” Given this evidence, Perrone cannot carry his burden of showing that it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. He is thus not entitled to relief on the ground that he is actually innocent of causing Learn's death. III. Perrone also argues that his sentencing counsel was constitutionally ineffective for failing to tell him about (and possibly not even knowing about) Hatfield. Had Perrone been aware of Hatfield, he says, he might have sought the court's permission to withdraw his plea on the ground that it was not knowing and voluntary. Because he did not know that the “death results” enhancement required the government to show but-for causation, he did not correctly understand what he was pleading to when he stipulated that he “caused” Learn's death. 11 12 13 14 15 To prevail on his ineffective assistance claim, Perrone must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On the performance prong, he “must overcome the ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). On the prejudice prong, he must show that “but for counsel's errors, there is a reasonable probability that the result would have been different.” United States v. Graf, 827 F.3d 581, 584 (7th Cir. 2016). In the context of a guilty plea, a petitioner demonstrates prejudice by “show[ing] that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). As with the first prong, there is a presumption that the petitioner has not suffered prejudice. Graf, 827 F.3d at 584–85. Even assuming that Perrone could show “deficient performance” on the part of his counsel, it is unlikely that he could satisfy the “prejudice” prong. The evidence of causation was strong and his plea agreement gave him the opportunity to obtain a sentence reduction for cooperating with *909 the government. The fact that he wants to withdraw from the agreement now—after he has already received an 80-month reduction—does not mean that he would have wanted to do so before he received that benefit. The problems of proof he would face at resentencing make it doubtful that he would have put his deal at risk even if he had known about Hatfield. They also make it doubtful that the district judge would have permitted him to withdraw his plea. See United States v. Underwood, 174 F.3d 850, 852–54 (7th Cir. 1999) (noting that “[n]o defendant has an absolute right to withdraw a guilty plea” and that the utility of plea agreements would be undermined by allowing a defendant to renege based on his “reevaluation of his trial prospects”). 16 At the end of the day, however, any difficulties Perrone has on the merits do not matter because his claim is barred as untimely. Although he was not required to bring his ineffective-assistance claim in his direct appeal, Massaro v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), he was still required to comply with § 2255(f)’s statute of limitations. Under § 2255(f)(1), Perrone had to bring his claim within one year of his conviction becoming final, which means that his window closed in 2011.5 He did not file his § 2255 petition until 2014. Other claims in Perrone's 2014 petition may have been timely based on the Supreme Court's 2014 decision in Burrage, but § 2255’s statute of limitations runs separately for each claim. Davis v. United States, 817 F.3d 319, 327–28 (7th Cir. 2016). One claim's timeliness cannot cure another claim's untimeliness. 17 Perrone does not dispute that his claim is untimely. Instead, he attempts to escape the bar by contending that the government forfeited its statute-of-limitations defense. Perrone raised his ineffective-assistance claim before the district court for the first time in his reply to the government's response brief. He faults the government for not asserting the limitations defense in response, but the district court's local rules prohibited the government from filing a surreply. True, the district court chose to treat Perrone's reply brief as an amended petition, so it appears with the benefit of hindsight that the government could have filed a new response. But the filing was denominated as a reply brief, not as an amended petition; it did not reproduce the claims that had appeared in Perrone's original petition; and Perrone had repeatedly told the district court that his court-appointed counsel was not authorized to amend his petition. It was therefore reasonable for the government to conclude that it lacked the ability under the local rules to respond to the newly raised claim of ineffective assistance. And even if this were forfeiture, we would find it excused due to the understandable confusion in the district court. See Wood v. Milyard, 566 U.S. 463, 471, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012) (allowing a court of appeals to consider even sua sponte “a nonexhaustion argument ‘inadvertent[ly]’ overlooked by the State in the District Court”). Because Perrone filed his petition after § 2255(f)’s statute of limitations had run, he is barred from raising that claim now. IV. 18 19 The district court also correctly denied Perrone's motion for an evidentiary hearing on his claims. A petitioner under § 2255 is entitled to an evidentiary hearing “[u]nless the motion and the files *910 and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). When the record before the district court allows it to resolve the petition without such a hearing, the petitioner is not entitled to one. Rodriguez v. United States, 286 F.3d 972, 986–87 (7th Cir. 2002) (affirming the denial of an evidentiary hearing when “[a] hearing would not have aided the district court”). Because Perrone has not raised any claim whose resolution requires an evidentiary hearing, the district court did not abuse its discretion in denying Perrone's request.

Barrett

majority

Terry Learn died after Joseph Perrone injected her with 7.5 grams of cocaine. Perrone pleaded guilty to a single count of unlawful drug distribution and stipulated that his distribution of the cocaine had caused Learn's death. In accordance with Perrone's plea agreement, the district court applied a statutory sentencing enhancement that mandates a twenty-year minimum term of imprisonment if unlawful drug distribution results in death. The Supreme *901 Court has since clarified that this provision requires a defendant's drugs to be a but-for cause of the death, not merely a contributing cause. Perrone filed a petition for relief under on the ground that the Court's narrowed interpretation of the enhancement reveals that he is actually innocent of causing Learn's death. In addition, he asserts that his counsel was ineffective for failing to advise him of a Seventh Circuit case decided on the day before his sentencing that interpreted the “death results” enhancement the same way that the Court ultimately did. He claims that if he had known that the enhancement required the government to show that his cocaine was the but-for cause of Learn's death, he would have sought to withdraw his plea. The district court denied Perrone's petition, and we affirm its judgment. I. At approximately 4 a.m. on April 17, 2008, Terry Learn and her coworker Madonna Narog went to Narog's hotel room, where they did heroin and cocaine for several hours. They left the hotel around 8 a.m. to purchase more cocaine, about fifty dollars’ worth for Learn and twenty-five dollars’ worth for Narog. They returned to the hotel and did cocaine until close to noon, when Learn left for her shift at Roxy's Night Club. Narog saw Learn again around 2 p.m., when Narog went to the club to pick up some money, and again at 8 p.m., when Narog was beginning her shift and Learn was ending hers. After her shift, Learn met her boyfriend, Joseph Perrone, and went back to his home. According to Perrone, the two made a suicide pact. After watching Learn inject herself with a mixture of cocaine and water, Perrone told her that she had not taken enough to kill herself. He then prepared and injected 7.5 grams of cocaine into Learn. Perrone later told the police that Learn convulsed, fell to the floor, and died immediately after he injected her for the last time. He did not specify the time at which he administered the final injection, but he said that it happened on April 18th. It was therefore at least four hours after Narog saw Learn at the shift change and at least twelve hours after Narog last saw her do any drugs not distributed by Perrone. Perrone moved Learn's body to her apartment. He wiped his fingerprints off the syringe and put it into Learn's hand. As he stipulated in his plea agreement, he aimed “to create the false impression that Terry Learn had died alone in her own residence.” The body was not discovered until April 26th, when a concerned neighbor flagged down police to report that she had not seen Learn in several days. Police officers discovered Learn's body in her apartment. According to the coroner's report, the cause of death was “[c]ombined toxicity with cocaine, ethanol and opiates.” Several months later, Perrone was arrested on an unrelated firearms charge. He chose that time to confess to police that he had killed Learn, describing what he had done as “premeditated murder.” During this interview, he told the police that he gave Learn one injection of an unspecified amount of cocaine; during a second interview a few weeks later, he said that he injected Learn with 7.5 grams of cocaine in three separate injections of 2.5 grams each. The government obtained an indictment against Perrone for distributing a controlled substance in violation of (a)(1) and 841(b)(1)(C). The indictment specified that Learn died as a result of Perrone's distribution, which, if proved, would enhance his statutory sentencing range under 841(b)(1)(C). That provision mandates a twenty-year minimum sentence if “death or serious bodily injury results from the use” of the unlawfully distributed substance. *902 Perrone pleaded guilty. In his plea agreement, he admitted that his conduct had violated the “death results” provision—namely, he stipulated that “the ingestion of the controlled substance distributed by the Defendant caused the death of another person.” He also signed a stipulation of facts admitting that he “injected Terry Learn with a syringe containing cocaine” and that she “died immediately after receiving the injection.” At his plea hearing a few weeks later, Perrone stated that he had read the documents, that he understood them, and that they were accurate. On the day before Perrone was sentenced, the Seventh Circuit decided United which held that the “death results” enhancement requires the government to prove that “ingestion of the defendants’ drugs was a ‘but for’ cause of the death[ ].” Hatfield rejected jury instructions that used vaguer, less demanding language to describe the necessary causal relationship; it said that the district court could not summarize the “death results” enhancement as requiring the jury to find only that the illegal drugs “played a part” in the victim's death. At sentencing the next day, the district court applied the “death results” enhancement and sentenced Perrone to 240 months’ imprisonment. Before imposing the sentence, the district judge said that he had reviewed Perrone's Stipulation of Facts to see “what impact, if any, the Rex Hatfield case was going to have on this case.” Perrone's attorney did not engage this point with the judge, nor did he inform Perrone about Hatfield. Instead, he once again agreed that the sentencing enhancement applied. Perrone did not appeal his sentence. He eventually received an 80-month reduction of his sentence for assistance to the government, a possibility contemplated by the plea agreement and that Perrone and the district court had discussed at his sentencing hearing. Four years later, the Supreme Court decided which effectively ratified Hatfield’s standard of causation. The Court held that the “death results” enhancement ordinarily requires the government to prove that the victim would have lived but for the unlawfully distributed drugs. In the victim died with multiple drugs in his bloodstream, including metabolites from heroin that had been distributed by the defendant. Although morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range, the government's experts could not say whether the victim would have lived if he had not taken the heroin. They testified only that heroin was a “contributing factor” to a death caused by “mixed drug intoxication.” That testimony dovetailed with instructions requiring the jury to find “that the heroin distributed by the Defendant was a contributing cause of [the victim's] death.” The Court said that the statute requires the government to show more than that the distributed drug contributed to the victim's death. The enhancement applies when “death or serious bodily injury results from the use of [the distributed] substance,” which means that the substance must be a “but for” cause of the death. at 887–88. Within a month of Perrone filed a petition to vacate or alter his sentence pursuant to His initial petition asserted that the new interpretation of the “death results” enhancement announced in renders him actually innocent of causing Learn's death. In his reply brief below, Perrone added a claim that his attorney had been constitutionally ineffective for not telling him about Hatfield. *903 The district court dismissed Perrone's claims with prejudice. We granted a certificate of appealability on three questions: whether Perrone was actually innocent of his sentence under whether Perrone's sentencing counsel had been constitutionally ineffective for failing to address the issue of causation in light of Hatfield, and whether Perrone's plea was knowing and voluntary. Perrone presses only the first two of these arguments on appeal. II. Perrone's strongest argument is that he is actually innocent of the “death results” sentencing enhancement. He claims that when he entered his plea agreement and pleaded guilty, he did not know that the enhancement required but-for causation. Since then, has made the standard clear, and under it, he says, there is insufficient evidence to show that Learn's death resulted from the cocaine he gave her. Although Perrone generally waived his right to raise collateral challenges, the waiver excludes collateral attacks based on “any subsequent change in the interpretation of the law” by the Supreme Court that is declared retroactive and renders Perrone innocent. A. 1 The government contends that Perrone procedurally defaulted his claim by failing to raise it on direct appeal. (“A claim cannot be raised for the first time in a 2255 motion if it could have been raised at trial or on direct appeal.”). In response, Perrone has invoked the “actual innocence” exception, which permits a petitioner to assert a defaulted claim if he “can demonstrate that he is ‘actually innocent’ of the crimes of which he was convicted.” Perrone's invocation of this exception means that “actual innocence” does double duty in this case: it is both what Perrone must show to overcome procedural default and the standard he must satisfy to prevail on the merits of his claim. 2 3 Perhaps because of this overlap, both parties assume (as did the district court) that the “actual innocence” exception to procedural default is available to Perrone. That assumption is doubtful. The point of the exception is to ensure that “federal constitutional errors do not result in the incarceration of innocent persons.” The Supreme Court has flagged the possibility that actual innocence might be enough to justify collateral relief in a capital case on the theory that the execution of one who is actually innocent violates the Eighth Amendment. Apart from that potential exception, however, the Court's “habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” at This is a problem for Perrone. He does not ask us to determine that he is actually innocent so that we can consider a claim of constitutional error; rather, his innocence of the “death results” enhancement is the error he asks us to correct.1 *904 4 5 The government, however, has not made this argument. Instead, apparently believing that default and the merits will rise or fall together, it has treated Perrone's assertion of the “actual innocence” exception as functionally no different from his claim on the merits to be actually innocent of the “death results” enhancement. Procedural default is a waivable defense, not a jurisdictional bar. We treat the government as having waived the defense and analyze Perrone's petition on the merits. B. Perrone's petition claims that the Supreme Court's narrowed interpretation of the “death results” enhancement renders him actually innocent of causing Learn's death. The Supreme Court has held that when a subsequent statutory interpretation narrows the elements of a crime, revealing that the petitioner has been convicted and sentenced for “an act that the law does not make criminal,” the petitioner has suffered “a complete miscarriage of justice” that justifies relief under 2255. We have extended the reasoning of Davis to mandatory sentencing enhancements. In we held that when a petitioner's sentence is increased by application of an enhancement of which he was actually innocent, the petitioner has suffered a “miscarriage of justice” cognizable under 2255(a). See also (holding that a claim identical to the one raised under 2255(a) in Narvaez “constitutes a miscarriage of justice corrigible in a 2241 proceeding.”). Thus, regardless whether we treat Perrone's petition as challenging his conviction or his sentence (a choice that bears on the standard of review, as we explain below), Perrone has stated a claim under 2255. The parties agree that Perrone has a cognizable claim,2 but they disagree about the standard we should apply in assessing whether Perrone is actually innocent of causing Learn's death. Perrone argues that the standard should be the one that Schlup v. Delo provides for determining “actual innocence” in the context of procedural default. In Schlup, the Court held that “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” The government, in contrast, says that Perrone must show that it is more likely than not that no reasonable judge would have found him guilty by a preponderance of the evidence. The government's insistence on a “preponderance” standard is grounded in its belief that we must treat Perrone's petition as asserting innocence of a sentencing factor rather than innocence of an element of the crime. 6 The government stresses that when Perrone pleaded guilty and was sentenced, the “death results” enhancement was *905 treated as a sentencing factor that a judge could find by a preponderance of the evidence. That changed with which held that any fact that increases the mandatory minimum sentence for a crime is an element of a crime that must be submitted to a jury and found beyond a reasonable doubt. Alleyne, however, is not retroactive on collateral review. The government reasons that this means that we must evaluate the sufficiency of the evidence supporting the application of the enhancement to Perrone as the issue would have been resolved at the time Perrone was sentenced: through the eyes of a judge and by a preponderance standard.3 The government's position is inconsistent with our holding in There, in holding that announced a substantive rule that applies retroactively on collateral review, we described the “death results” enhancement as the Supreme Court did in : as an element of the crime. ; Had we thought ourselves bound by Alleyne’s non-retroactivity (which we acknowledged) to treat as changing only the scope of a sentencing factor, we presumably would have relied on Narvaez when we held that 's error was cognizable under 2255. Instead, consistent with ’s treatment of the enhancement as an element of the crime, we relied on the progeny of to hold that could assert her claim. –500. It is worth noting that the government itself conceded in that “ is substantive because it defines an essential element of a federal crime.” And even in circuits that maintain—contrary to our approach in Narvaez—that a challenge to a mandatory sentencing enhancement is not cognizable on collateral review, claims are cognizable precisely because they go to the validity of a conviction rather than to the validity of a sentence. Compare Sun (holding that an error under the mandatory guidelines was not a miscarriage of justice because the petitioner's sentence remained “within the statutory maximum authorized for the offense”), with (holding that a petitioner's challenge under is “a challenge to the validity of his conviction”). To be sure, did not address the standard of review that would be applicable when a court collaterally reviews whether there is sufficient evidence to support application of the enhancement according to ’s standard of but-for causation. In that respect, technically *906 leaves the standard-of-review question open. Yet it would be in significant tension with ’s treatment of the enhancement as an element of the crime to review Perrone's claim under the regime previously applicable to sentencing factors. 7 8 We thus reject the government's attempt to slice ’s characterization of the “death results” enhancement (as an element of crime) away from its definition of what application of that enhancement requires (but-for causation). Because Alleyne is not retroactive, Perrone could not get relief on the ground that the “death results” question went to a judge rather than jury. Once he is before us with a cognizable claim, however, there is no reason for us to describe his claim as something it is not. unlike Alleyne, is retroactive, and it makes clear that Perrone's claim goes to his innocence of a crime, not a sentence. Whether the government has proven an element of the crime is always a question for the jury. That means that Perrone's burden is to show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt of causing Learn's death. Schlup, 513 U.S. at C. 9 This dispute is about causation, so we will begin by clearly stating what “but for” causation requires. It does not require proof that the distributed drug was present in an amount sufficient to kill on its own. The Court explained in that death can “result[ ] from” a particular drug when it is the proverbial “straw that broke the camel's back.” 134 S.Ct. As the Court put it: “if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Here, then, the fact that other substances in Learn's bloodstream played a part in her death does not defeat the government's claim that her death resulted from the cocaine Perrone gave her. A jury could have found him guilty of causing her death if it concluded beyond a reasonable doubt that Perrone's cocaine pushed her over the edge. In the Court left open the possibility that the government could prove causation another way: it said that strict “but-for” causation might not be required when “multiple sufficient causes independently, but concurrently, produce a result.” In other words, the “death results” enhancement might apply to a defendant who distributes a lethal dose of cocaine to a person who also consumes a lethal dose of heroin. The government suggests that a jury could have found Perrone guilty on this theory as well, because Perrone gave Learn a lethal amount of cocaine. We need not decide whether this second theory is viable, however, because there is sufficient evidence to have permitted a jury to find Perrone guilty on the first. 10 Perrone admitted that he distributed 7.5 grams of cocaine to Learn in a deliberate attempt to kill her, that he personally injected Learn with cocaine intending to kill her, and that she convulsed and died immediately after he injected her. That in itself strongly supports the conclusion that Learn's death resulted from the cocaine Perrone administered. It also distinguishes Perrone from the defendants in Hatfield, and none of whom stated that they had distributed the drug to the user with the intent to kill. The best evidence on Perrone's side is the coroner's report, which listed the cause of death as “[c]ombined toxicity with cocaine, ethanol and opiates.” This, Perrone says, is the kind of evidence the Court *907 found insufficient to establish causation in There, a state medical examiner testified that the drug user died of “mixed drug intoxication,” with a number of substances, including the heroin distributed by the defendant, all playing a “ ‘contributing’ role.” 134 S.Ct. And the two medical experts who testified at the defendant's trial stated that they could not say whether the drug user would have lived had he not taken the defendant's heroin. at 885–86. So here, Perrone says, the coroner's report indicates that cocaine combined with other drugs to cause Learn's death. And when the coroner, Dr. Raj Nanduri, testified before the grand jury, she never expressly opined that Learn would have lived if she had not consumed the cocaine Perrone gave her. Before the grand jury, the government seemed focused on eliciting testimony that the cocaine Perrone distributed was independently sufficient to kill Learn. Nanduri repeated the conclusion she reached in the autopsy report: that Learn's cause of death was the combined toxicity of cocaine, ethanol, and opiates.4 When the prosecutor followed up with a question about which substance was “primarily responsible for her death,” Nanduri clarified that “if she just had cocaine in her system and the other two drugs were not present, then cocaine would be the toxic agent that killed her.” The prosecutor returned to this point a few minutes later, saying “I don't mean to beat this into the ground, but it is a very important point for us. It is your testimony under oath that to a medical certainty this quantity of cocaine found in this woman's blood would have killed her all by itself?” Nanduri replied “yes.” Nanduri repeated several more times before the grand jury that the cocaine in Learn's bloodstream was a lethal dose. She did not, however, testify that alcohol and morphine in Learn's system were not lethal. She said that the alcohol was not at a level she would expect to be fatal, but she expressed uncertainty about the role the morphine had played in Learn's death. Although Learn's morphine level was low, Nanduri explained that whether such a low dose could kill a person depends on numerous factors, including the person's past history of using opiates. She also said that a person's morphine level might be deceptively low if the person became comatose and continued metabolizing the morphine before dying. Nanduri's testimony thus does not establish that cocaine was the but-for cause of Learn's death. But the government has testimony from another expert, Dr. Chris Long, who did expressly state that Learn would have lived but for the cocaine. Long prepared a toxicology report on Learn's body in 2008. After reviewing his report in he confirmed that the alcohol would not have killed Learn “absent the cocaine” and that “[t]he opiate is of no significance.” A reasonable juror could credit Long's testimony. Perrone's best response is to say that even if cocaine caused Learn's death, the cocaine that killed her was not the cocaine he gave her. Learn had, after all, done a fair amount of cocaine with Narog the day before. And given her pattern of cocaine use, it is at least possible that Learn did some cocaine during her shift at work. Perrone may have injected cocaine into a woman with an already-lethal amount of cocaine in her body. This evidence helps Perrone, but only a little. There is no evidence that Learn acquired or took any cocaine between starting her shift at noon and meeting up with Perrone sometime after the 8 p.m. *908 end of her shift, and Narog testified before the grand jury that it was not usually possible to take drugs while at work. Furthermore, even if Learn took some cocaine between noon and whenever she met up with Perrone, a rational factfinder could easily conclude that she would have taken only a nonlethal dose. Narog testified before the grand jury that Learn was a practiced drug user who was very particular about the amount of cocaine she injected and rarely varied. That evidence paints a picture of a woman who met up with Perrone while she was still on track to survive the night. That Learn arrived at Perrone's without enough cocaine in her system to kill her is bolstered by what happened when she got there. Perrone said that the two had a suicide pact, which suggests that they both thought Learn needed to consume more drugs if she wanted to end her life. And after Learn injected herself with a dose of cocaine, Perrone himself made the judgment that what she had taken was not enough to kill her. According to his own statement, he gave Learn an additional 7.5 grams of cocaine because he concluded that she would not die unless she had more. He told the police that Learn convulsed and fell to the floor immediately after he injected her, and he later characterized what he did as “premeditated murder.” In his stipulation of facts, Perrone admitted that Learn died “immediately after receiving the injection.” Given this evidence, Perrone cannot carry his burden of showing that it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. He is thus not entitled to relief on the ground that he is actually innocent of causing Learn's death. III. Perrone also argues that his sentencing counsel was constitutionally ineffective for failing to tell him about (and possibly not even knowing about) Hatfield. Had Perrone been aware of Hatfield, he says, he might have sought the court's permission to withdraw his plea on the ground that it was not knowing and voluntary. Because he did not know that the “death results” enhancement required the government to show but-for causation, he did not correctly understand what he was pleading to when he stipulated that he “caused” Learn's death. 11 12 13 14 15 To prevail on his ineffective assistance claim, Perrone must show both deficient performance and prejudice. On the performance prong, he “must overcome the ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” As with the first prong, there is a presumption that the petitioner has not suffered prejudice. 827 F.3d at –85. Even assuming that Perrone could show “deficient performance” on the part of his counsel, it is unlikely that he could satisfy the “prejudice” prong. The evidence of causation was strong and his plea agreement gave him the opportunity to obtain a sentence reduction for cooperating with *909 the government. The fact that he wants to withdraw from the agreement now—after he has already received an 80-month reduction—does not mean that he would have wanted to do so before he received that benefit. The problems of proof he would face at resentencing make it doubtful that he would have put his deal at risk even if he had known about Hatfield. They also make it doubtful that the district judge would have permitted him to withdraw his plea. See United 16 At the end of the day, however, any difficulties Perrone has on the merits do not matter because his claim is barred as untimely. Although he was not required to bring his ineffective-assistance claim in his direct appeal, he was still required to comply with 2255(f)’s statute of limitations. Under 2255(f)(1), Perrone had to bring his claim within one year of his conviction becoming final, which means that his window closed in 2011.5 He did not file his 2255 petition until Other claims in Perrone's petition may have been timely based on the Supreme Court's decision in but 2255’s statute of limitations runs separately for each claim. –28 One claim's timeliness cannot cure another claim's untimeliness. 17 Perrone does not dispute that his claim is untimely. Instead, he attempts to escape the bar by contending that the government forfeited its statute-of-limitations defense. Perrone raised his ineffective-assistance claim before the district court for the first time in his reply to the government's response brief. He faults the government for not asserting the limitations defense in response, but the district court's local rules prohibited the government from filing a surreply. True, the district court chose to treat Perrone's reply brief as an amended petition, so it appears with the benefit of hindsight that the government could have filed a new response. But the filing was denominated as a reply brief, not as an amended petition; it did not reproduce the claims that had appeared in Perrone's original petition; and Perrone had repeatedly told the district court that his court-appointed counsel was not authorized to amend his petition. It was therefore reasonable for the government to conclude that it lacked the ability under the local rules to respond to the newly raised claim of ineffective assistance. And even if this were forfeiture, we would find it excused due to the understandable confusion in the district court. See Because Perrone filed his petition after 2255(f)’s statute of limitations had run, he is barred from raising that claim now. IV. 18 19 The district court also correctly denied Perrone's motion for an evidentiary hearing on his claims. A petitioner under 2255 is entitled to an evidentiary hearing “[u]nless the motion and the files *910 and records of the case conclusively show that the prisoner is entitled to no relief.” (b). When the record before the district court allows it to resolve the petition without such a hearing, the petitioner is not entitled to one. Because Perrone has not raised any claim whose resolution requires an evidentiary hearing, the district court did not abuse its discretion in denying Perrone's request.

Pittman by and through Hamilton v. County of Madison, Illinois

Reginald Pittman attempted suicide at the Madison County jail in 2007. Although the attempt failed, it left him in a vegetative state. Through his guardian, Pittman filed this § 1983 suit against Madison County and then-Madison County jail employees, Sergeant Randy Eaton and Deputy Matthew Werner, alleging that they violated the Fourteenth Amendment by failing to provide him with adequate medical care. In 2018, the suit went to trial for the second time, and the jury returned a verdict in favor of the defendants. We reverse the district court's denial of Pittman's motion for a new trial and remand because we conclude that one of the jury instructions erroneously directed the jury *826 to evaluate Pittman's Fourteenth Amendment claim according to a subjective rather than objective standard. I. In 2007, Reginald Pittman was a pretrial detainee at the Madison County jail. At the time, Sergeant Randy Eaton and Deputy Matthew Werner were employees of the county jail. After four months of detention, Pittman attempted suicide by hanging himself with a blanket. The suicide attempt left Pittman in a vegetative state. In his suicide note, he stated that the guards were “f***ing” with him and would not give him access to “crisis [counseling].” After Pittman's suicide attempt, Bradley Banovz, an inmate housed near Pittman's cell, substantiated the claim that Pittman had made in his suicide note. In an interview with a county detective, which was captured on video, Banovz stated that in the days leading up to Pittman's suicide attempt, Pittman had asked both Werner and Eaton to refer him to crisis counseling. According to Banovz, while both defendants promised Pittman that they would schedule him for counseling, neither of them followed through with their promises. Pittman filed a § 1983 suit against Madison County, Werner, and Eaton. As is relevant on this appeal, Pittman claimed that the defendants violated the Due Process Clause of the Fourteenth Amendment by failing to provide him with adequate medical care. The defendants moved for summary judgment, which was granted in 2011. We reversed and remanded the suit. Pittman ex rel. Hamilton v. Cnty. of Madison (Pittman I), 746 F.3d 766 (7th Cir. 2014). On remand, the parties went to trial for the first time, which resulted in a jury verdict in favor of the defendants in 2015. Pittman appealed again. Among other things, he challenged the district court's exclusion of Banovz's video interview. We concluded that the district court's exclusion of the video interview was a reversible error and remanded for a new trial. Pittman ex rel. Hamilton v. Cnty. of Madison (Pittman II), 863 F.3d 734 (7th Cir. 2017). In 2018, the case went to trial for the second time. Once again, the jury returned a verdict for the defendants. Pittman filed a motion for a new trial, which was denied. On what is now his third appeal, Pittman challenges one of the jury instructions and two evidentiary rulings by the district court. II. 1 2 3 Pittman's principal challenge on appeal concerns a pivotal jury instruction.1 *827 According to Pittman, the instruction misstated the law: instead of requiring the jury to determine whether the defendants acted in an objectively reasonable manner, the instruction required the jury to ascertain the defendants’ subjective intent. We decide de novo whether a jury instruction misstated the law, but even if it did, we will reverse only if the misstatement “misguide[d] the jury to the extent that the complaining party suffered prejudice.” Viramontes v. City of Chicago, 840 F.3d 423, 428 (7th Cir. 2016) (citation omitted). The challenged jury instruction required the jury to make four findings: (1) “[t]here was a strong likelihood that [Pittman] would seriously harm himself,” (2) the defendants “were aware of ... or strongly suspected facts showing [this] strong likelihood,” (3) they “consciously failed to take reasonable measures to prevent [Pittman] from harming himself,” and (4) Pittman “would have suffered less harm if [the defendants] had not disregarded the risk.” Pittman argues that the instruction is inconsistent with the objectively reasonable standard that we recently articulated in Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018). 4 Before Miranda, this circuit evaluated a Fourteenth Amendment due process claim brought by a pretrial detainee under the deliberate indifference standard, which “requires a showing that the defendant had a ‘sufficiently culpable state of mind’ and asks whether the official actually believed there was a significant risk of harm.” Id. at 350 (citation omitted). This standard tracked the subjective inquiry employed for Eighth Amendment claims—and that made it a misfit. “Pretrial detainees stand in a different position” than convicted prisoners, so “the punishment model is inappropriate for them.” Id. Moreover, our approach was undercut by the Supreme Court's decision in Kingsley v. Hendrickson, which held that an excessive-force claim brought by a pretrial detainee under the Fourteenth Amendment must be evaluated under an objective test rather than the subjective deliberate indifference standard. 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). So in Miranda, we changed course. Taking our cue from Kingsley, we held that an objective standard applies to medical-needs claims brought by pretrial detainees such as the one brought by Pittman. 900 F.3d at 352. Under this standard, the jury must answer two questions. First, it must decide whether the “defendants acted purposefully, knowingly, or perhaps even recklessly.” Id. at 353. Second, it must determine whether the defendants’ actions were “objectively reasonable.” Id. at 354. 5 Pittman argues that the jury instruction conflicts with this test because the jury was told to consider whether the defendants “were aware of ... or strongly suspected” facts showing a likelihood that Pittman would harm himself and whether the defendants “consciously failed to take reasonable measures” to avert that harm. (emphasis added). According to Pittman, this language directed the jury to apply the now-defunct subjective test rather than the objective test that governs under Miranda. Pittman's argument fails as to the instruction that the jury decide whether the defendants “were aware of ... or strongly suspected facts showing” a strong likelihood that Pittman would harm himself. This language goes to Miranda’s first inquiry: whether the defendants acted “purposefully, knowingly, or perhaps even recklessly.” At bottom, Miranda’s first inquiry encompasses all states of mind except *828 for negligence and gross negligence. Miranda, 900 F.3d at 353. The challenged language accurately conveyed this standard to the jury: if the defendants “were aware” that their actions would be harmful, then they acted “purposefully” or “knowingly”; if they were not necessarily “aware” but nevertheless “strongly suspected” that their actions would lead to harmful results, then they acted “recklessly.” This much is consistent with Miranda. But the district court erred by telling the jury to determine whether the defendants “consciously failed to take reasonable measures to prevent [Pittman] from harming himself.” (emphasis added). This language conflicts with Miranda’s second inquiry: whether the defendants acted in an “objectively reasonable” manner. By using the word “consciously,” the instruction erroneously introduced a subjective element into the inquiry. Under Miranda’s standard, whether the defendants’ failure to take reasonable measures was the result of a conscious decision is irrelevant; they are liable if their actions (or lack thereof) were objectively unreasonable. See Kingsley, 135 S. Ct. at 2470 (holding that the plaintiff's Fourteenth Amendment excessive-force claim turned on whether the defendants’ conduct was “objectively unreasonable” rather than on whether the defendants were “subjectively aware” that that their conduct was unreasonable). Because the word “consciously” rendered the jury instruction impermissibly subjective, the jury instruction misstated the law. 6 This error likely “confused or misled” the jury. Boyd v. Ill. State Police, 384 F.3d 888, 894 (7th Cir. 2004). Although the word “consciously” is the only aspect of the instruction that conflicts with Miranda, we consider “the instructions as a whole, along with all of the evidence and arguments.” Susan Wakeen Doll Co. v. Ashton-Drake Galleries, 272 F.3d 441, 452 (7th Cir. 2001). Here, the evidence and arguments presented at trial by both Pittman and the defendants reveal that the word “consciously” was likely prejudicial. Pittman presented the transcript of Banovz's video interview to convince the jury that the defendants ignored Pittman's multiple requests for crisis counseling. For their part, the defendants sought to avoid liability by arguing that, despite knowing that Pittman had been placed on suicide watch a few months before his suicide attempt and had an episode of extensive crying around the same time, they were nevertheless unaware of the actual risk that Pittman posed to himself. They supported this argument by testifying, among other things, that they were not familiar with the jail's suicide-prevention policies, were not able to identify suicide risks, and could not remember whether they had been trained on handling suicidal inmates. In other words, the defendants argued and presented evidence to show that they did not consciously fail to take reasonable measures to prevent Pittman's suicide attempt. In light of the evidence presented at trial and the arguments made by the defendants, the use of the word “consciously” likely steered the jury toward the subjective deliberate indifference standard. And that error “likely made [a] difference in the outcome,” Guzman v. City of Chicago, 689 F.3d 740, 745 (7th Cir. 2012), because a reasonable jury could conclude that the defendants’ failure to provide medical care for Pittman was objectively unreasonable, but not a conscious failure. In sum, because the jury instruction misstated Miranda’s objective standard and the error was likely prejudicial, we reverse the judgment and remand the case for a new trial. III. 7 Pittman also challenges two of the district court's evidentiary rulings: one *829 barring any witness testimony as to whether the defendants acted in a “deliberately indifferent” manner and another excluding Banovz's testimony that he notified unnamed guards that Pittman was suicidal. “ ‘We review [the] district court's rulings on [the] motions in limine for an abuse of discretion’ because ‘decisions regarding the admission and exclusion of evidence are peculiarly within the competence of the district court.’ ” Von der Ruhr v. Immtech Int'l, Inc., 570 F.3d 858, 862 (7th Cir. 2009) (alterations in original) (citation omitted). We conclude that neither ruling amounted to an abuse of discretion. A. 8 Pittman's first challenge pertains to the district court's grant of the defendants’ motion in limine to bar witnesses from testifying that the defendants were “deliberately indifferent” toward him. Before we dive into the merits of this challenge, we must first address the defendants’ contention that Pittman failed to preserve it. Relying on this circuit's ruling in Jenkins v. Keating, the defendants argue that Pittman forfeited this challenge by failing to renew his objection to the pretrial evidentiary ruling at some point during the trial. 147 F.3d 577, 581 (7th Cir. 1998) (“[I]n order to preserve for appeal the merits of a pre-trial ruling on a motion in limine, the party who unsuccessfully opposes the motion must accept the court's invitation to renew his or her challenge to it at trial.”). The defendants’ reliance on Jenkins is misplaced, however, because that case turned on the district court's stated willingness to reconsider its pretrial ruling. By contrast, if a pretrial ruling is definitive, the objecting party need not renew his objection to it. Fed. R. Evid. 103(b) (“Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”); see also Wilson v. Williams, 182 F.3d 562, 563 (7th Cir. 1999) (“[A] definitive ruling in limine preserves an issue for appellate review, without the need for later objection ....”). 9 In this case, the district court gave the parties no reason to believe that its grant of the defendants’ motion in limine was anything but definitive. Although the order contains little analysis, it makes clear that granting such a motion is warranted only if “the evidence is clearly inadmissible on all potential grounds.” (emphasis added). And the order contains no conditional language other than a passing boilerplate reference to the fact that a ruling on a motion in limine is “subject to change.” Notably, unlike the district court in Jenkins, the district court in this case did not invite Pittman to renew his challenge at any point during the trial. 147 F.3d at 586; see also United States v. Addo, 989 F.2d 238, 242 (7th Cir. 1993) (holding that a party abandons an objection if he fails to accept the district court's invitation to renew his objection during trial). Because the pretrial ruling was definitive, Pittman did not have to renew his objection at trial to preserve it. 10 Securing review of his argument, however, is as far as Pittman gets because the district court's ruling survives scrutiny. Admittedly, the district court's reasoning was flawed. It asserted that allowing any witness to testify that the defendants were “deliberately indifferent” toward Pittman would violate Federal Rules of Evidence 701, 702, and 704, which together prohibit lay and expert witnesses from offering outcome-determinative opinions. See Fed. R. Evid. 701 (setting forth the rule regarding lay witness testimony); Fed. R. Evid. 702 (expert witness testimony); Fed. R. Evid. 704 (testimony regarding an ultimate issue). That's wrong; under Rule 704(a), *830 “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a). But this mistake does not undercut the district court's decision to exclude the testimony because its decision is easily justified. “Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time.” Fed. R. Evid. 704(a) advisory committee's notes to 1972 Proposed Rules; see also Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”). In light of Miranda, any testimony about the defendants’ alleged “deliberate indifference” was far more likely to confuse the jury than to help it. See McCann v. Ogle Cnty., 909 F.3d 881, 886 (7th Cir. 2018) (explaining that under Miranda, “a standard of objective reasonableness, and not deliberate indifference, governs claims under the Fourteenth Amendment's Due Process Clause for inadequate medical care provided to pretrial detainees” (emphasis added)). Excluding the testimony, therefore, was an eminently reasonable choice. See Smith v. Hunt, 707 F.3d 803, 807–08 (7th Cir. 2013) (“A decision is an abuse of discretion only if ‘no reasonable person would agree with the decision made by the trial court.’ ” (citation omitted)).2 B. Pittman also argues that the district court was wrong to exclude Banovz's testimony that he had notified unnamed guards that Pittman was suicidal. We can dispose of this contention succinctly because we already rejected it in Pittman's last appeal. The district court's decision to exclude Banovz's testimony as to the unnamed guards was among the various rulings before us in Pittman II. Although we remanded for a new trial because we concluded that the district court's exclusion of the Banovz's video interview was an abuse of discretion, we expressly rejected all of Pittman's other challenges. See Pittman II, 863 F.3d at 738 (“Pittman's brief raises several other issues relating to how the judge conducted the trial. None of these arguments has merit.”). Pittman gives us no reason to depart from our previous ruling on this issue, so we affirm the district court's grant of the defendants’ motion. Tice v. Am. Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004) (“[A] ruling made in an earlier phase of a litigation controls the later phases unless a good reason is shown to depart from it.”).

Barrett

majority

Reginald Pittman attempted suicide at the Madison County jail in 2007. Although the attempt failed, it left him in a vegetative state. Through his guardian, Pittman filed this 1983 suit against Madison County and then-Madison County jail employees, Sergeant Randy Eaton and Deputy Matthew Werner, alleging that they violated the Fourteenth Amendment by failing to provide him with adequate medical care. In 2018, the suit went to trial for the second time, and the jury returned a verdict in favor of the defendants. We reverse the district court's denial of Pittman's motion for a new trial and remand because we conclude that one of the jury instructions erroneously directed the jury *826 to evaluate Pittman's Fourteenth Amendment claim according to a subjective rather than objective standard. I. In 2007, Reginald Pittman was a pretrial detainee at the Madison County jail. At the time, Sergeant Randy Eaton and Deputy Matthew Werner were employees of the county jail. After four months of detention, Pittman attempted suicide by hanging himself with a blanket. The suicide attempt left Pittman in a vegetative state. In his suicide note, he stated that the guards were “f***ing” with him and would not give him access to “crisis [counseling].” After Pittman's suicide attempt, Bradley Banovz, an inmate housed near Pittman's cell, substantiated the claim that Pittman had made in his suicide note. In an interview with a county detective, which was captured on video, Banovz stated that in the days leading up to Pittman's suicide attempt, Pittman had asked both Werner and Eaton to refer him to crisis counseling. According to Banovz, while both defendants promised Pittman that they would schedule him for counseling, neither of them followed through with their promises. Pittman filed a 1983 suit against Madison County, Werner, and Eaton. As is relevant on this appeal, Pittman claimed that the defendants violated the Due Process Clause of the Fourteenth Amendment by failing to provide him with adequate medical care. The defendants moved for summary judgment, which was granted in 2011. We reversed and remanded the suit. Pittman ex rel. On remand, the parties went to trial for the first time, which resulted in a jury verdict in favor of the defendants in Pittman appealed again. Among other things, he challenged the district court's exclusion of Banovz's video interview. We concluded that the district court's exclusion of the video interview was a reversible error and remanded for a new trial. Pittman ex rel. In 2018, the case went to trial for the second time. Once again, the jury returned a verdict for the defendants. Pittman filed a motion for a new trial, which was denied. On what is now his third appeal, Pittman challenges one of the jury instructions and two evidentiary rulings by the district court. 1 2 3 Pittman's principal challenge on appeal concerns a pivotal jury instruction.1 *827 According to Pittman, the instruction misstated the law: instead of requiring the jury to determine whether the defendants acted in an objectively reasonable manner, the instruction required the jury to ascertain the defendants’ subjective intent. We decide de novo whether a jury instruction misstated the law, but even if it did, we will reverse only if the misstatement “misguide[d] the jury to the extent that the complaining party suffered prejudice.” The challenged jury instruction required the jury to make four findings: (1) “[t]here was a strong likelihood that [Pittman] would seriously harm himself,” (2) the defendants “were aware of or strongly suspected facts showing [this] strong likelihood,” (3) they “consciously failed to take reasonable measures to prevent [Pittman] from harming himself,” and (4) Pittman “would have suffered less harm if [the defendants] had not disregarded the risk.” Pittman argues that the instruction is inconsistent with the objectively reasonable standard that we recently articulated in 4 Before this circuit evaluated a Fourteenth Amendment due process claim brought by a pretrial detainee under the deliberate indifference standard, which “requires a showing that the defendant had a ‘sufficiently culpable state of mind’ and asks whether the official actually believed there was a significant risk of harm.” This standard tracked the subjective inquiry employed for Eighth Amendment claims—and that made it a misfit. “Pretrial detainees stand in a different position” than convicted prisoners, so “the punishment model is inappropriate for them.” Moreover, our approach was undercut by the Supreme Court's decision in v. Hendrickson, which held that an excessive-force claim brought by a pretrial detainee under the Fourteenth Amendment must be evaluated under an objective test rather than the subjective deliberate indifference standard. So in we changed course. Taking our cue from we held that an objective standard applies to medical-needs claims brought by pretrial detainees such as the one brought by Under this standard, the jury must answer two questions. First, it must decide whether the “defendants acted purposefully, knowingly, or perhaps even recklessly.” Second, it must determine whether the defendants’ actions were “objectively reasonable.” 5 Pittman argues that the jury instruction conflicts with this test because the jury was told to consider whether the defendants “were aware of or strongly suspected” facts showing a likelihood that Pittman would harm himself and whether the defendants “consciously failed to take reasonable measures” to avert that harm. (emphasis added). According to Pittman, this language directed the jury to apply the now-defunct subjective test rather than the objective test that governs under Pittman's argument fails as to the instruction that the jury decide whether the defendants “were aware of or strongly suspected facts showing” a strong likelihood that Pittman would harm himself. This language goes to ’s first inquiry: whether the defendants acted “purposefully, knowingly, or perhaps even recklessly.” At bottom, ’s first inquiry encompasses all states of mind except *828 for negligence and gross negligence. 900 F.3d The challenged language accurately conveyed this standard to the jury: if the defendants “were aware” that their actions would be harmful, then they acted “purposefully” or “knowingly”; if they were not necessarily “aware” but nevertheless “strongly suspected” that their actions would lead to harmful results, then they acted “recklessly.” This much is consistent with But the district court erred by telling the jury to determine whether the defendants “consciously failed to take reasonable measures to prevent [Pittman] from harming himself.” (emphasis added). This language conflicts with ’s second inquiry: whether the defendants acted in an “objectively reasonable” manner. By using the word “consciously,” the instruction erroneously introduced a subjective element into the inquiry. Under ’s standard, whether the defendants’ failure to take reasonable measures was the result of a conscious decision is irrelevant; they are liable if their actions (or lack thereof) were objectively unreasonable. See Because the word “consciously” rendered the jury instruction impermissibly subjective, the jury instruction misstated the law. 6 This error likely “confused or misled” the jury. Although the word “consciously” is the only aspect of the instruction that conflicts with we consider “the instructions as a whole, along with all of the evidence and arguments.” Susan Wakeen Doll Here, the evidence and arguments presented at trial by both Pittman and the defendants reveal that the word “consciously” was likely prejudicial. Pittman presented the transcript of Banovz's video interview to convince the jury that the defendants ignored Pittman's multiple requests for crisis counseling. For their part, the defendants sought to avoid liability by arguing that, despite knowing that Pittman had been placed on suicide watch a few months before his suicide attempt and had an episode of extensive crying around the same time, they were nevertheless unaware of the actual risk that Pittman posed to himself. They supported this argument by testifying, among other things, that they were not familiar with the jail's suicide-prevention policies, were not able to identify suicide risks, and could not remember whether they had been trained on handling suicidal inmates. In other words, the defendants argued and presented evidence to show that they did not consciously fail to take reasonable measures to prevent Pittman's suicide attempt. In light of the evidence presented at trial and the arguments made by the defendants, the use of the word “consciously” likely steered the jury toward the subjective deliberate indifference standard. And that error “likely made [a] difference in the outcome,” because a reasonable jury could conclude that the defendants’ failure to provide medical care for Pittman was objectively unreasonable, but not a conscious failure. In sum, because the jury instruction misstated ’s objective standard and the error was likely prejudicial, we reverse the judgment and remand the case for a new trial. I. 7 Pittman also challenges two of the district court's evidentiary rulings: one *829 barring any witness testimony as to whether the defendants acted in a “deliberately indifferent” manner and another excluding Banovz's testimony that he notified unnamed guards that Pittman was suicidal. “ ‘We review [the] district court's rulings on [the] motions in limine for an abuse of discretion’ because ‘decisions regarding the admission and exclusion of evidence are peculiarly within the competence of the district court.’ ” Von der We conclude that neither ruling amounted to an abuse of discretion. A. 8 Pittman's first challenge pertains to the district court's grant of the defendants’ motion in limine to bar witnesses from testifying that the defendants were “deliberately indifferent” toward him. Before we dive into the merits of this challenge, we must first address the defendants’ contention that Pittman failed to preserve it. Relying on this circuit's ruling in Jenkins v. Keating, the defendants argue that Pittman forfeited this challenge by failing to renew his objection to the pretrial evidentiary ruling at some point during the trial. The defendants’ reliance on Jenkins is misplaced, however, because that case turned on the district court's stated willingness to reconsider its pretrial ruling. By contrast, if a pretrial ruling is definitive, the objecting party need not renew his objection to it. Fed. R. Evid. 103(b) (“Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”); see also 9 In this case, the district court gave the parties no reason to believe that its grant of the defendants’ motion in limine was anything but definitive. Although the order contains little analysis, it makes clear that granting such a motion is warranted only if “the evidence is clearly inadmissible on all potential grounds.” (emphasis added). And the order contains no conditional language other than a passing boilerplate reference to the fact that a ruling on a motion in limine is “subject to change.” Notably, unlike the district court in Jenkins, the district court in this case did not invite Pittman to renew his challenge at any point during the trial. ; see also United Because the pretrial ruling was definitive, Pittman did not have to renew his objection at trial to preserve it. 10 Securing review of his argument, however, is as far as Pittman gets because the district court's ruling survives scrutiny. Admittedly, the district court's reasoning was flawed. It asserted that allowing any witness to testify that the defendants were “deliberately indifferent” toward Pittman would violate Federal Rules of Evidence 701, 702, and 704, which together prohibit lay and expert witnesses from offering outcome-determinative opinions. See Fed. R. Evid. 701 (setting forth the rule regarding lay witness testimony); Fed. R. Evid. 702 (expert witness testimony); Fed. R. Evid. 704 (testimony regarding an ultimate issue). That's wrong; under Rule 704(a), *830 “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a). But this mistake does not undercut the district court's decision to exclude the testimony because its decision is easily justified. “Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time.” Fed. R. Evid. 704(a) advisory committee's notes to 1972 Proposed Rules; see also Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”). In light of any testimony about the defendants’ alleged “deliberate indifference” was far more likely to confuse the jury than to help it. See (explaining that under “a standard of objective reasonableness, and not deliberate indifference, governs claims under the Fourteenth Amendment's Due Process Clause for inadequate medical care provided to pretrial detainees” (emphasis added)). Excluding the testimony, therefore, was an eminently reasonable choice. See (“A decision is an abuse of discretion only if ‘no reasonable person would agree with the decision made by the trial court.’ ” ).2 B. Pittman also argues that the district court was wrong to exclude Banovz's testimony that he had notified unnamed guards that Pittman was suicidal. We can dispose of this contention succinctly because we already rejected it in Pittman's last appeal. The district court's decision to exclude Banovz's testimony as to the unnamed guards was among the various rulings before us in Pittman Although we remanded for a new trial because we concluded that the district court's exclusion of the Banovz's video interview was an abuse of discretion, we expressly rejected all of Pittman's other challenges. See Pittman Pittman gives us no reason to depart from our previous ruling on this issue, so we affirm the district court's grant of the defendants’ motion.

Protect Our Parks, Inc. v. Chicago Park District

This case is about the plaintiffs’ quest to halt construction of the Obama Presidential Center in Chicago's Jackson Park. First developed as the site for the Chicago World's Fair in 1893, Jackson Park has a storied place in Chicago history, and as public land, it must remain dedicated to a public purpose. The City made the judgment that hosting a center devoted to the achievements of America's first African-American *728 President, who has a longstanding connection to Chicago, fit that bill. Vehemently disagreeing, the plaintiffs sued the City of Chicago and the Chicago Park District to stop the project. They brought a host of federal and state claims, all asserting variants of the theory that the Obama Presidential Center does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation. 1 The district court granted summary judgment to the defendants across the board, and the plaintiffs appeal. We affirm the district court's judgment as to the federal claims, but we hold that it should have dismissed the state claims for lack of jurisdiction. Federal courts are only permitted to adjudicate claims that have allegedly caused the plaintiff a concrete injury; a plaintiff cannot come to federal court simply to air a generalized policy grievance. The federal claims allege a concrete injury, albeit one that, as it turns out, the law does not recognize. The state claims, however, allege only policy disagreements with Chicago and the Park District, so neither we nor the district court has jurisdiction to decide them. I. In 2014, the Barack Obama Foundation began a nationwide search for the future location of the presidential library for the 44th President. Eventually, the Foundation selected Jackson Park on Chicago's South Side to house the Obama Presidential Center. The City of Chicago acquired the 19.3 acres necessary from the Chicago Park District, enacted the ordinances required to approve the construction of the Center, and entered into a use agreement with the Obama Foundation to govern the terms of the Center's construction, ownership, and operation. The Jackson Park location, the Foundation believed, would be best situated to “attract visitors on a national and global level” and would “bring significant long term benefits to the South Side.” But construction of the Center will require the removal of multiple mature trees, as well as the closure and diversion of roadways. It will also require the City to shoulder a number of big-ticket expenses. Unhappy with the environmental and financial impact of the project, the group Protect Our Parks and several individual Chicago residents sued both the City and the Park District to halt construction of the Center. 2 The plaintiffs raised four claims that are relevant here. First and foremost, they claimed that the defendants violated Illinois's public trust doctrine. Briefly stated, the public trust doctrine limits the government's ability to transfer control or ownership of public lands to private parties. The plaintiffs argued that the City violated the doctrine by transferring control of public parkland to the Obama Foundation for a purely private purpose. 3 Next, the plaintiffs claimed that under Illinois law, the defendants acted ultra vires—in layman's terms, beyond their legal authority—in entering the use agreement with the Foundation. Specifically, the plaintiffs maintained that the use agreement between the City and the Foundation violates Illinois law because, among other things, it delegates decision-making authority to the Foundation, grants the Foundation an illegal lease in all but name, 70 ILCS 1290/1, exchanges the property for less than equal value, 70 ILCS 1205/10-7(b), and fails to require the City to “use, occupy, or improve” the land transferred to it from the Park District, 50 ILCS 605/2. The plaintiffs’ final two claims arise under federal law. They argued that, by altering the use of Jackson Park and handing *729 over control to the Foundation, the defendants took the plaintiffs’ property for a private purpose in violation of the Takings Clause of the Fifth Amendment. In the same vein, the plaintiffs asserted that the defendants deprived them of property in a process so lacking in procedural safeguards that it amounted to a rubberstamp of the Foundation's decision and violated their rights under the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the City and the Park District on all four of these claims, and the plaintiffs appealed from that decision. While the first appeal was pending, the federal government issued a provisional report about the potential effects of the project, including its effects on the environment. The plaintiffs then moved for relief from the judgment under Federal Rule of Civil Procedure 60(b), alleging that the report was new, material evidence that undermined the district court's decision. The district court denied the motion, and the plaintiffs appealed again. We consolidated the two appeals. II. 4 We'll start with the plaintiffs’ appeal from the district court's grant of summary judgment on the state law claims. Before we can address the merits, though, we have “an obligation to assure ourselves” of our jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (citation omitted). And jurisdiction—specifically, the plaintiffs’ standing to bring their state claims in federal court—proves to be a problem here. We asked the parties to address this issue in supplemental briefing, and while both the plaintiffs and the defendants assure us that the plaintiffs have standing, we aren't convinced. 5 6 7 The requirement of standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Its elements are familiar: “the plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision.” Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 2019). The first requirement—injury in fact—is “the ‘[f]irst and foremost’ of standing's three elements.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (alteration in original) (citation omitted). It requires a plaintiff to demonstrate that she “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). The parties insist that the plaintiffs have adequately alleged that they will suffer an imminent, concrete injury as a result of the defendants’ alleged violations of Illinois law. 8 To understand the arguments that the parties make to support this point, one must first understand the public trust doctrine, which is the basis of the plaintiffs’ primary state law claim. Here's the nutshell version: the public trust doctrine, established in American law by Illinois Central Railroad Co. v. Illinois, prohibits a state from alienating its interest in public lands submerged beneath navigable waterways to a private party for private purposes. 146 U.S. 387, 455–56, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). Instead, a state may only alienate publicly owned submerged land to a private party if the property will be “used in promoting the interests of the public” or “can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.” Id. at 453, 13 S.Ct. 110. 9 10 11 12 13 In the time since Illinois Central, some states, including Illinois, have *730 applied the doctrine to land other than navigable waterways—which is important here because Jackson Park is not a navigable waterway. In fact, despite the doctrine's underwater origins, most of the recent Illinois cases deal with dry land. See Friends of the Parks v. Chi. Park Dist., 203 Ill.2d 312, 271 Ill.Dec. 903, 786 N.E.2d 161, 169–70 (2003) (applying the doctrine to Chicago's Soldier Field, built on parkland reclaimed from Lake Michigan); Paepcke v. Pub. Bldg. Comm'n of Chi., 46 Ill.2d 330, 263 N.E.2d 11, 15–16 (1970) (applying the doctrine to Chicago's Washington and Douglas parks); Fairbank v. Stratton, 14 Ill.2d 307, 152 N.E.2d 569, 575 (1958) (applying the doctrine to the reclaimed land that now houses Chicago's McCormick Place convention center). Once such land has been dedicated to a public purpose, the Illinois Supreme Court has explained, the government “hold[s] the properties in trust for the uses and purposes specified and for the benefit of the public.” Paepcke, 263 N.E.2d at 15. Dedication to a public purpose isn't an “irrevocable commitment[ ],” id. at 16, and judicial review of any reallocation is deferential, particularly if the land in question has never been submerged. Nonetheless, the doctrine requires courts to ensure that the legislature has made a “sufficient manifestation of legislative intent to permit the diversion and reallocation” to a more restrictive, less public use. Id. at 18. In this case, the plaintiffs argue that the defendants’ use agreement with the Obama Foundation violates the public trust doctrine because it transfers control of public land in Jackson Park to the private Foundation for a purely private purpose. And, drawing an analogy to private trust law, they argue that the transaction could not have been in the public interest because it was inconsistent with the defendants’ “fiduciary duties.” In their telling, the public trust calls for heightened scrutiny of a transaction if it was “tainted by self-dealing, favoritism or conflicts of interest.” They argue that the use agreement here fits that description for many reasons, including that the City negotiated with the Obama Foundation under the leadership of Mayor Rahm Emmanuel, who, as President Obama's former chief of staff, was eager to give the Foundation a sweetheart deal. The parties offer three reasons why the plaintiffs have adequately alleged an injury in fact stemming from these alleged violations of state law. (While their focus is on the public trust doctrine, their arguments also apply to the plaintiffs’ allegation that the City and Park District violated the statutes regulating the management of public land.) First, the plaintiffs assert that they have standing in federal court because their injury would be recognized in Illinois state court. Second, the plaintiffs suggest that they have standing to stop injury to Jackson Park. And finally, the defendants—though notably, not the plaintiffs themselves—argue that the plaintiffs have standing as municipal taxpayers. We address each argument in turn. A. 14 Illinois courts have long recognized the public's injury from a violation of the public trust doctrine as sufficient to create a justiciable controversy. See Paepcke, 263 N.E.2d at 18. Thus, the plaintiffs insist, they have suffered a sufficient injury in fact to establish their standing in federal court. In other words, the plaintiffs claim that the existence of a justiciable controversy in state court demonstrates that there is one in federal court too. 15 16 17 18 19 The plaintiffs misapprehend the doctrine of standing, which is a corollary of Article III's limitation of the “judicial power” to the resolution of “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1 (capitalization omitted). The requirement limits the power of federal courts and *731 is a matter of federal law. It does not turn on state law, which obviously cannot alter the scope of the federal judicial power. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (asserting that standing in federal court “does not depend on [a] party's ... standing in state court”). At the same time, federal law does not dictate the scope of state judicial power. Article III does not apply to the states, so “state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability.” ASARCO, Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). Unencumbered by these limitations, the states can empower their courts to hear cases that federal courts cannot—and many states have done just that. See, e.g., F. Andrew Hessick, Cases, Controversies, and Diversity, 109 Nw. U. L. Rev. 57, 65–75 (2014) (cataloguing the variations between federal justiciability doctrines and those in state courts); Jeffrey S. Sutton et al., State Constitutional Law: The Modern Experience 790–816 (3d ed. 2020) (excerpting examples from state court decisions). 20 21 This case presents a prime example. The Illinois Supreme Court has specifically held that a plaintiff can bring suit under the public trust doctrine without showing that she “will suffer special damage, different in degree and kind from that suffered by the public at large.” Paepcke, 263 N.E.2d at 18; see id. (overruling the prior, contrary rule). Instead, the Illinois Supreme Court said, “If the ‘public trust’ doctrine is to have any meaning or vitality at all, the members of the public, at least taxpayers who are the beneficiaries of [the public] trust, must have the right and standing to enforce it.” Id. In other words, Illinois has adopted precisely the opposite of the injury-in-fact requirement of federal standing, which demands that every plaintiff prove that he “seek[s] relief for an injury that affects him in a ‘personal and individual way.’ ” Hollingsworth v. Perry, 570 U.S. 693, 705, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (citation omitted); see also Thole v. U.S. Bank N.A., ––– U.S. ––––, 140 S. Ct. 1615, 1621, ––– L.Ed.2d –––– (2020) (“[T]he ‘assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982))). 22 23 24 While Illinois is free to conclude that “plaintiffs’ rights as residents in a trust of public lands” may be “enforced without question,” Paepcke, 263 N.E.2d at 18, Article III doesn't give us the same leeway. To sue in federal court, a plaintiff must also demonstrate an injury to her “separate concrete interest.”1 Lujan, 504 U.S. at 572, 112 S.Ct. 2130. The plaintiffs have failed to do that here: their public trust and ultra vires claims each allege only that the government has failed to follow the law. All residents of Chicago—indeed, advocates for good government every-where—desire that the government follow the law. But recognizing standing based on such an “undifferentiated” injury is fundamentally “inconsistent” with the *732 exercise of the judicial power. Id. at 575, 112 S.Ct. 2130; see also Hollingsworth, 133 S. Ct. at 2662 (“[A] ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”); Valley Forge Christian Coll., 454 U.S. at 482–83, 102 S.Ct. 752. For Article III purposes, the plaintiffs are nothing more than “concerned bystanders,” and concerned bystanders are not entitled to press their claims in federal court. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The fact that Illinois would permit them to do so in state court is irrelevant to the Article III inquiry. B. 25 The plaintiffs have an alternative argument: they argue that they have standing because Jackson Park will suffer an injury in fact as a result of the defendants’ violations of state law. On this theory, the City's plan to turn part of Jackson Park into the Obama Presidential Center will cause irreparable “damage to Jackson Park” that is “fairly traceable to the construction project.” The alleged damage includes, for example, departing from Frederick Law Olmsted's original plan for the landscape of Jackson Park and jeopardizing the Park's listing on the National Register of Historic Places. 26 But this argument fares no better than the last. Even if the Obama Presidential Center will damage Jackson Park, “[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The plaintiffs can't repackage an injury to the park as an injury to themselves. Nor can they sue on behalf of the park, which is what they seem to be trying to do. In limited circumstances, the doctrine of “third-party standing” permits a plaintiff to sue to vindicate the rights of someone else. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (noting that the “Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights” (emphasis and citation omitted)). Here, though, the plaintiffs are trying to raise the rights of something else. Among the many problems with this maneuver is the fact that Jackson Park has no rights of its own to assert. Cf. Ecuador Const. tit. II, ch. 7, art. 71 (granting rights to nature). C. 27 Finally, the defendants—but, notably, not the plaintiffs—argue that the plaintiffs have standing as municipal taxpayers of the City of Chicago.2 The defendants took precisely the opposite position in the district court, where they raised the *733 plaintiffs’ lack of municipal taxpayer standing as one reason why the district court should dismiss the state-law claims on jurisdictional grounds. In response, the plaintiffs asserted that they had municipal taxpayer standing, and the district court accepted that argument. Things have changed on appeal. The plaintiffs’ supplemental brief doesn't even mention municipal taxpayer standing, while the defendants now champion it as the basis for jurisdiction. It is not obvious why the plaintiffs have failed to embrace a district court decision in their favor, but the reason for the defendants’ change of heart is easy to see—having secured a judgment on the merits, they'd prefer an affirmance to a dismissal. Still, the defendants were right the first time around: municipal taxpayer standing does not justify federal jurisdiction over these state-law claims. 28 Municipal taxpayer standing is a bit of a relic in the modern landscape of standing. It derives from Crampton v. Zabriskie, in which the Supreme Court held that “there is at this day no serious question” about “the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders of the county may otherwise be compelled to pay.” 101 U.S. 601, 609, 25 L.Ed. 1070 (1879). The Court cited Crampton approvingly a half-century later in Frothingham v. Mellon, which rejected the proposition that standing to sue the federal government could be based merely on a plaintiff's status as a federal taxpayer. 262 U.S. 447, 487–88, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). En route to that holding, the Court distinguished between municipal taxpayers, who have a “peculiar relation ... to the [municipal] corporation, which is not without some resemblance to that subsisting between stockholder and private corporation,” and federal taxpayers, any one of whom shares her “interest in the moneys of the treasury ... with millions of others.” Id. at 487, 43 S.Ct. 597. It thus left undisturbed “the rule, frequently stated by this court, that resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation.” Id. at 486, 43 S.Ct. 597. The rule remains undisturbed, but it has grown increasingly anomalous. Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 221–23 (6th Cir. 2011) (en banc) (Sutton, J., concurring) (“While the municipal-taxpayer standing doctrine has stood still, ... standing principles have moved on.”). Although the Court has not actually relied on municipal taxpayer standing in decades, it has continued to assume the doctrine's validity. See, e.g., DaimlerChrysler, 547 U.S. at 349, 126 S.Ct. 1854. Meanwhile, it has developed a substantial body of law vigorously enforcing the principle that injuries cognizable under Article III cannot be “generalized,” Lujan, 504 U.S. at 575–76, 112 S.Ct. 2130, “undifferentiated,” United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), or insufficiently “particularized,” Spokeo, 136 S. Ct. at 1548. It has also repeatedly emphasized that neither state nor federal taxpayers can satisfy this standard in a suit against the government for the illegal expenditure of taxpayer funds.3 See *734 DaimlerChrysler, 547 U.S. at 345, 126 S.Ct. 1854. Yet it has never explained why municipal taxpayers are differently situated—and it might find that difficult to do. Frothingham suggested that the city or county resident has a “peculiar relationship” with her local government, while the state or federal citizen has only a “minute” or “remote” tie to hers. 262 U.S. at 487, 43 S.Ct. 597. Maybe that's true in Grover's Corners. See Thornton Wilder, Our Town (1938). But why is a suit brought by one of Chicago's 2.6 million residents any more particularized than a suit by any of the 579,000 citizens of Wyoming? QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/WYchicagocityillinois/PST045219 (last visited Aug. 20, 2020). There's reason to think that the Court has recognized this reality—at least one opinion has hinted that municipal taxpayer standing should be brought into line with modern standing doctrine. ASARCO, 490 U.S. at 613, 109 S.Ct. 2037 (plurality opinion) (“We have indicated that the same conclusion may not hold for municipal taxpayers, if it has been shown that the ‘peculiar relation of the corporate taxpayer to the municipal corporation’ makes the taxpayer's interest in the application of municipal revenues ‘direct and immediate.’ ” (emphasis added)). But undertaking that task is the Court's job, not ours. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (explaining that lower courts are not free to “conclude [that] more recent cases have, by implication, overruled an earlier precedent” but must instead “follow [a] case which directly controls” (citation and internal quotation marks omitted)). So, in analyzing whether the plaintiffs’ injury is cognizable, we will not ask whether it is concrete and particularized. Instead, we will ask only whether the elements of municipal taxpayer standing have been satisfied. 29 30 Municipal taxpayer standing has two threshold requirements. First, and most obviously, the plaintiff must actually be a taxpayer of the municipality that she wishes to sue. Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1470 (7th Cir. 1988). Second, the plaintiff must establish that the municipality has spent tax revenues on the allegedly illegal action. Id. The second requirement comes from the Supreme Court's decision in Doremus v. Board of Education, which requires a plaintiff to show that “the taxpayer's action ... is a good-faith pocketbook action.” 342 U.S. 429, 434, 72 S.Ct. 394, 96 L.Ed. 475 (1952). The plaintiff must be able to show that she has “the requisite financial interest that is, or is threatened to be, injured by” the municipality's illegal conduct. Id. at 435, 72 S.Ct. 394. 31 The burden of establishing standing is on the plaintiffs. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 411–12, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). As we've already mentioned, though, the plaintiffs aren't the ones who have invoked municipal taxpayer standing—the defendants are. And despite their support of this theory now, the defendants’ earlier argument against it was better. As the defendants told the district court, the record doesn't support the conclusion that the plaintiffs have suffered a direct pocketbook injury from the conversion of part of Jackson Park into the campus of the Obama Presidential Center. That is so for several reasons. *735 32 33 For one thing, a plaintiff who asserts municipal taxpayer standing “must show that the municipality has actually expended funds on the allegedly illegal elements of the disputed practice.” Nichols v. City of Rehoboth Beach, 836 F.3d 275, 282 (3d Cir. 2016) (emphasis added). Here, the plaintiffs argue that the “allegedly illegal elements”—which is to say, the elements of the defendants’ actions that violate the public trust doctrine—are the construction and operation of the Obama Presidential Center. But the Obama Foundation—not the City—will bear the project's costs. The City's agreement with the Foundation provides that the cost of initially constructing the Center, of operating the Center once it is built, and of maintaining the Center going forward will all be the Foundation's responsibility. Thus, no tax dollars will be spent to build or operate the Center. And “if no tax money is spent on the allegedly [illegal] activity,” then “[a] plaintiff's status as a municipal taxpayer is irrelevant for standing purposes.” Freedom from Religion Found., 845 F.2d at 1470. To be sure, the City is set to spend millions of dollars to prepare the Jackson Park site for construction of the Center, even though it isn't paying for the Center itself. Specifically, the City will pay for three projects: alteration and rerouting of roadways, including removing Cornell Drive and converting the roadway into parkland; environmental remediation and utilities work; and construction of athletic facilities. But the plaintiffs have not claimed that those three projects themselves violate the public trust doctrine or are otherwise beyond the City's power to undertake. That means that those projects cannot be the allegedly offending elements of the defendants’ actions, which in turn means that the City's spending on those projects is beside the point for municipal taxpayer standing. Cf. Gonzales v. North Township, 4 F.3d 1412, 1416 (7th Cir. 1993) (rejecting municipal taxpayer standing to challenge the display of a crucifix in a public park because the city did not pay to acquire, display, or maintain the crucifix itself). If the allegedly illegal conduct is the construction and operation of the Center, and taxpayer dollars aren't being spent on that conduct, then that alone is enough to defeat the plaintiffs’ municipal taxpayer standing. 34 But even if we accepted that the City-funded projects are relevant, there is yet another problem—there has been no showing that the City will pay for those projects with municipal taxes. See Amnesty Int'l USA, 568 U.S. at 411–12, 133 S.Ct. 1138 (noting that “at the summary judgment stage,” a plaintiff “can no longer rest on ... ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts’ ” supporting standing (citation omitted)). It is not enough to simply allege that the City is spending money; the existence of municipal taxpayer standing depends on where the money comes from. The parties fail to grapple with the possibility that the relevant funds come from a source other than tax dollars. And that possibility isn't remote—nearly a third of the City's revenue comes from nontax sources. See City of Chicago, 2020 Budget Overview 38, https://www.chicago.gov/content/dam/city/depts/obm/supp_info/2020Budget/2020BudgetOverview.pdf (last visited Aug. 20, 2020) (noting that 32.9% of the City's budget was derived from nontax revenue). These nontax sources are as varied as licensing fees, parking tickets, concessions contracts, and federal and state grants. Id. at 37–38 (cataloguing the sources of city revenue); id. at 48 (noting that the City received $1.66 billion in grants during its 2019 fiscal year and projecting that grants will account for 14% of the budget for the 2020 fiscal year). It would be far too simplistic to conclude that *736 the City is spending tax money on a project simply because it is spending some money on a project. 35 Municipal taxpayers have standing to sue only when they have both identified an action on the city's part that is allegedly illegal and adequately shown that city tax dollars will be spent on that illegal activity. See Cantrell v. City of Long Beach, 241 F.3d 674, 683–84 (9th Cir. 2001). Here, neither prong is satisfied. Thus, the plaintiffs’ status as municipal taxpayers is insufficient to confer Article III standing. III. We now turn to the plaintiffs’ two federal claims: that the defendants took their property in violation of the Fifth and Fourteenth Amendments. See U.S. Const. amend. V (“[P]rivate property [shall not] be taken for public use, without just compensation.”); U.S. Const. amend. XIV, § 1, cl. 3 (“[N]or shall any State deprive any person of ... property, without due process of law.”). Neither of these claims can get off the ground unless the plaintiffs prove that they have a private property interest in Jackson Park. To accomplish that, the plaintiffs return to the public trust doctrine and add a twist: they argue that the public trust doctrine not only curtails a state's ability to transfer public land to a private party but also confers a private property right on members of the public. Analogizing to the law of trusts, the plaintiffs insist that they are “beneficiaries” of Jackson Park, which the defendants hold in trust on the public's behalf. And, according to the plaintiffs, this “beneficial interest” is private property that is protected by the United States Constitution. 36 37 38 39 Unlike the state claims, the federal claims do allege a cognizable injury: the deprivation of a property right. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (explaining that standing “often turns on the nature and source of the claim asserted”). To be sure, the alleged property right—a beneficial interest in a public park—is highly unusual, and one might be immediately skeptical about whether it exists. But when the existence of a protected property interest is an element of the claim, deciding whether the interest exists virtually always goes to the merits rather than standing. Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012) (“Were we to require more than a colorable claim [to a property interest], we would decide the merits of the case before satisfying ourselves of standing.”). So, for example, in Booker-El, we held that a plaintiff had standing to assert a procedural due process claim against prison administrators for mismanaging a general recreation fund held for the benefit of inmates, even though we concluded, on the merits, that Indiana law did not give the plaintiff a protected property interest in the fund. Id. at 900–01.4 As cases like Booker-El illustrate, it is not unusual for the distinction between standing and the merits to cause conceptual trouble when a plaintiff alleges the deprivation of a dubious property or liberty interest. See id. at 899 (noting that an argument that the plaintiff lacked standing because he lacked a protected property interest “conflates standing with *737 the merits”); cf. Matushkina v. Nielsen, 877 F.3d 289, 292 (7th Cir. 2017) (noting that when a “plaintiff does not have a legal right enforceable in a federal court ... it is not always obvious ... whether the problem is a lack of standing or lack of a viable claim on the merits”). Yet as we have explained before, to say that a claim “is not worth anything” is a determination “that concerns the merits rather than ... jurisdiction. Otherwise every losing suit would be dismissed for lack of jurisdiction.” Owsley v. Gorbett, 960 F.3d 969, 971 (7th Cir. 2020) (citation omitted). 40 41 And so we turn to the merits, which are easily dispatched. To show that they are similarly situated to beneficiaries of a private trust, the plaintiffs emphasize the word “trust” in “public trust doctrine” and quote cases describing public parkland as being held “in trust” and “for the benefit of the public.” Paepcke, 263 N.E.2d at 15; see also Ill. Cent., 146 U.S. at 452, 13 S.Ct. 110 (referring to the state's ownership of submerged land as “a title held in trust for the people of the state”). Their argument disintegrates, however, when one reads more than the snippets they cite. Paepcke is particularly devastating: in that case, the Illinois Supreme Court held that those owning land adjacent to or in the vicinity of a public park possess no private property right in having the parkland committed to a particular use. 263 N.E.2d at 16; see also Petersen v. Chi. Plan Comm'n of City of Chi., 302 Ill.App.3d 461, 236 Ill.Dec. 305, 707 N.E.2d 150, 155 (1998) (rejecting a procedural due process claim based on the expansion of the Museum of Science and Industry on the ground that the plaintiffs had no protectible property interest in Jackson Park). If adjacent landowners have no protected interest in public land, then the plaintiffs don't have one either. Although the plaintiffs wish it were otherwise, the Illinois cases make clear that the public trust doctrine functions as a restraint on government action, not as an affirmative grant of property rights.5 42 The lack of a property interest is the most fundamental defect in both of the plaintiffs’ federal claims, yet it is by no means the only one. With respect to the takings claim, the plaintiffs seek injunctive relief but not money damages. Although the plaintiffs don't spell out their argument, the request for injunctive relief suggests that their complaint is that the Center does not qualify as a “public use” rather than that the City has failed to pay them “just compensation.” U.S. Const. amend. V. This is a losing argument. Even assuming that the City's use agreement with the Foundation qualifies as a transfer to a private party, the Supreme Court held in Kelo v. City of New London that a transfer to a private owner can still be constitutional if it is done for a “public purpose.” 545 U.S. 469, 483–84, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). What's more, the City's judgment that a particular transfer and use has a public purpose is entitled to deference. Id. at 488–89, 125 S.Ct. 2655. It's hard to see, then, how we could “second-guess the City's determination[ ]” that building the Center—with its museum, public library branch, auditorium, athletic center, gardens, and more—is a use with public benefits. Id. at 488, 125 S.Ct. 2655. *738 43 44 45 The plaintiffs’ procedural due process claim also has problems beyond the lack of a protected property interest. For this claim to succeed, the plaintiffs must establish that the procedures they received fell short of minimum constitutional requirements, Doe v. Purdue Univ., 928 F.3d 652, 659 (7th Cir. 2019), and the plaintiffs have failed to identify what greater process they were due. The City enacted four separate ordinances approving various aspects of the Center. The votes on those ordinances came after multiple public hearings at which residents could raise their concerns about the City's intended plans. And the Illinois General Assembly amended the Illinois Park District Aquarium and Museum Act to explicitly authorize cities and park districts to erect, operate, and maintain “presidential libraries, centers, and museums” in public parks. 70 ILCS 1290/1. We have noted that a “legislative determination provides all the process that is due.” Dibble v. Quinn, 793 F.3d 803, 809 (7th Cir. 2015) (citation omitted). If one legislative determination is enough, then five determinations are overkill. In short, the plaintiffs’ Fifth and Fourteenth Amendment claims fail on the merits, and we affirm the grant of summary judgment on both. IV. 46 We have one final bit of housekeeping. The plaintiffs also challenge the district court's denial of their motion for relief from the judgment under Federal Rule of Civil Procedure 60(b). Rule 60(b) permits a district court to grant “relief from a judgment or order” for a number of specified reasons. In their motion, the plaintiffs suggested two reasons why the district court should revisit its resolution of their public trust claim. First, the plaintiffs argued that “new and material evidence” had come to light. See Fed. R. Civ. P. 60(b)(2). This argument was based on a provisional report completed by the National Park Service and the Federal Highway Administration as part of assessing whether federal roadway projects or other alterations connected to the construction of the Center would have an “adverse effect” on Jackson Park's listing on the National Register of Historic Places, see 54 U.S.C. § 306108; 36 C.F.R. § 800.5, or qualify as a “major federal action” subject to the National Environmental Policy Act, see 42 U.S.C. § 4332(C). And second, the plaintiffs argued that the continued application of the district court's judgment was inequitable. See Fed. R. Civ. P. 60(b)(5). As we've explained, however, the plaintiffs lack Article III standing to bring the public trust claim in the first place. That pulls the rug out from under their arguments in favor of Rule 60(b) relief. Whatever the merits of those arguments, both we and the district court lack jurisdiction to resolve the plaintiffs’ public trust claim. That puts to rest any contention that the district court should have revisited its holding on that count. We thus affirm the denial of the motion, albeit on different grounds. * * * While we affirm the grant of summary judgment on the Fifth and Fourteenth Amendment claims, we vacate the grant of summary judgment on the public trust and ultra vires claims. We hold that the plaintiffs lack standing to bring those latter claims in federal court, and therefore that the district court should have dismissed them for lack of jurisdiction. We also affirm the denial of the motion for relief from the judgment under Rule 60(b). The judgment is AFFIRMED in part and VACATED in part, and the case is REMANDED.

Barrett

majority

This case is about the plaintiffs’ quest to halt construction of the Obama Presidential Center in Chicago's Jackson Park. First developed as the site for the Chicago World's Fair in 1893, Jackson Park has a storied place in Chicago history, and as public land, it must remain dedicated to a public purpose. The City made the judgment that hosting a center devoted to the achievements of America's first African-American *728 President, who has a longstanding connection to Chicago, fit that bill. Vehemently disagreeing, the plaintiffs sued the City of Chicago and the Chicago Park District to stop the project. They brought a host of federal and state claims, all asserting variants of the theory that the Obama Presidential Center does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation. 1 The district court granted summary judgment to the defendants across the board, and the plaintiffs appeal. We affirm the district court's judgment as to the federal claims, but we hold that it should have dismissed the state claims for lack of jurisdiction. Federal courts are only permitted to adjudicate claims that have allegedly caused the plaintiff a concrete injury; a plaintiff cannot come to federal court simply to air a generalized policy grievance. The federal claims allege a concrete injury, albeit one that, as it turns out, the law does not recognize. The state claims, however, allege only policy disagreements with Chicago and the Park District, so neither we nor the district court has jurisdiction to decide them. I. In 2014, the Barack Obama Foundation began a nationwide search for the future location of the presidential library for the 44th President. Eventually, the Foundation selected Jackson Park on Chicago's South Side to house the Obama Presidential Center. The City of Chicago acquired the 19.3 acres necessary from the Chicago Park District, enacted the ordinances required to approve the construction of the Center, and entered into a use agreement with the Obama Foundation to govern the terms of the Center's construction, ownership, and operation. The Jackson Park location, the Foundation believed, would be best situated to “attract visitors on a national and global level” and would “bring significant long term benefits to the South Side.” But construction of the Center will require the removal of multiple mature trees, as well as the closure and diversion of roadways. It will also require the City to shoulder a number of big-ticket expenses. Unhappy with the environmental and financial impact of the project, the group Protect Our Parks and several individual Chicago residents sued both the City and the Park District to halt construction of the Center. 2 The plaintiffs raised four claims that are relevant here. First and foremost, they claimed that the defendants violated Illinois's public trust doctrine. Briefly stated, the public trust doctrine limits the government's ability to transfer control or ownership of public lands to private parties. The plaintiffs argued that the City violated the doctrine by transferring control of public parkland to the Obama Foundation for a purely private purpose. 3 Next, the plaintiffs claimed that under Illinois law, the defendants acted ultra vires—in layman's terms, beyond their legal authority—in entering the use agreement with the Foundation. Specifically, the plaintiffs maintained that the use agreement between the City and the Foundation violates Illinois law because, among other things, it delegates decision-making authority to the Foundation, grants the Foundation an illegal lease in all but name, 70 ILCS 1290/1, exchanges the property for less than equal value, 70 ILCS 1205/10-7(b), and fails to require the City to “use, occupy, or improve” the land transferred to it from the Park District, 50 ILCS 605/2. The plaintiffs’ final two claims arise under federal law. They argued that, by altering the use of Jackson Park and handing *729 over control to the Foundation, the defendants took the plaintiffs’ property for a private purpose in violation of the Takings Clause of the Fifth Amendment. In the same vein, the plaintiffs asserted that the defendants deprived them of property in a process so lacking in procedural safeguards that it amounted to a rubberstamp of the Foundation's decision and violated their rights under the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the City and the Park District on all four of these claims, and the plaintiffs appealed from that decision. While the first appeal was pending, the federal government issued a provisional report about the potential effects of the project, including its effects on the environment. The plaintiffs then moved for relief from the judgment under Federal Rule of Civil Procedure 60(b), alleging that the report was new, material evidence that undermined the district court's decision. The district court denied the motion, and the plaintiffs appealed again. We consolidated the two appeals. II. 4 We'll start with the plaintiffs’ appeal from the district court's grant of summary judgment on the state law claims. Before we can address the merits, though, we have “an obligation to assure ourselves” of our jurisdiction. And jurisdiction—specifically, the plaintiffs’ standing to bring their state claims in federal court—proves to be a problem here. We asked the parties to address this issue in supplemental briefing, and while both the plaintiffs and the defendants assure us that the plaintiffs have standing, we aren't convinced. 5 6 7 The requirement of standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Its elements are familiar: “the plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision.” The first requirement—injury in fact—is “the ‘[f]irst and foremost’ of standing's three elements.” It requires a plaintiff to demonstrate that she “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” (quoting 504 U.S. at ). The parties insist that the plaintiffs have adequately alleged that they will suffer an imminent, concrete injury as a result of the defendants’ alleged violations of Illinois law. 8 To understand the arguments that the parties make to support this point, one must first understand the public trust doctrine, which is the basis of the plaintiffs’ primary state law claim. Here's the nutshell version: the public trust doctrine, established in American law by Illinois Central Railroad Co. v. Illinois, prohibits a state from alienating its interest in public lands submerged beneath navigable waterways to a private party for private purposes. Instead, a state may only alienate publicly owned submerged land to a private party if the property will be “used in promoting the interests of the public” or “can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.” 9 10 11 12 13 In the time since Illinois Central, some states, including Illinois, have *730 applied the doctrine to land other than navigable waterways—which is important here because Jackson Park is not a navigable waterway. In fact, despite the doctrine's underwater origins, most of the recent Illinois cases deal with dry land. See Friends of the ; ; Once such land has been dedicated to a public purpose, the Illinois Supreme Court has explained, the government “hold[s] the properties in trust for the uses and purposes specified and for the benefit of the public.” Dedication to a public purpose isn't an “irrevocable commitment[ ],” and judicial review of any reallocation is deferential, particularly if the land in question has never been submerged. Nonetheless, the doctrine requires courts to ensure that the legislature has made a “sufficient manifestation of legislative intent to permit the diversion and reallocation” to a more restrictive, less public In this case, the plaintiffs argue that the defendants’ use agreement with the Obama Foundation violates the public trust doctrine because it transfers control of public land in Jackson Park to the private Foundation for a purely private purpose. And, drawing an analogy to private trust law, they argue that the transaction could not have been in the public interest because it was inconsistent with the defendants’ “fiduciary duties.” In their telling, the public trust calls for heightened scrutiny of a transaction if it was “tainted by self-dealing, favoritism or conflicts of interest.” They argue that the use agreement here fits that description for many reasons, including that the City negotiated with the Obama Foundation under the leadership of Mayor Rahm Emmanuel, who, as President Obama's former chief of staff, was eager to give the Foundation a sweetheart deal. The parties offer three reasons why the plaintiffs have adequately alleged an injury in fact stemming from these alleged violations of state law. (While their focus is on the public trust doctrine, their arguments also apply to the plaintiffs’ allegation that the City and Park District violated the statutes regulating the management of public land.) First, the plaintiffs assert that they have standing in federal court because their injury would be recognized in Illinois state court. Second, the plaintiffs suggest that they have standing to stop injury to Jackson Park. And finally, the defendants—though notably, not the plaintiffs themselves—argue that the plaintiffs have standing as municipal taxpayers. We address each argument in turn. A. 14 Illinois courts have long recognized the public's injury from a violation of the public trust doctrine as sufficient to create a justiciable controversy. See 263 N.E.2d Thus, the plaintiffs insist, they have suffered a sufficient injury in fact to establish their standing in federal court. In other words, the plaintiffs claim that the existence of a justiciable controversy in state court demonstrates that there is one in federal court too. 15 16 17 18 19 The plaintiffs misapprehend the doctrine of standing, which is a corollary of Article III's limitation of the “judicial power” to the resolution of “cases” and “controversies.” U.S. Const. art. III, 2, cl. 1 (capitalization omitted). The requirement limits the power of federal courts and *731 is a matter of federal law. It does not turn on state law, which obviously cannot alter the scope of the federal judicial power. See Phillips Petroleum At the same time, federal law does not dictate the scope of state judicial power. Article III does not apply to the states, so “state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability.” Unencumbered by these limitations, the states can empower their courts to hear cases that federal courts cannot—and many states have done just that. See, e.g., F. Andrew Hessick, Cases, Controversies, and Diversity, 65–75 (2014) (cataloguing the variations between federal justiciability doctrines and those in state courts); Jeffrey S. Sutton et al., State Constitutional Law: The Modern Experience 790–816 (excerpting examples from state court decisions). 20 21 This case presents a prime example. The Illinois Supreme Court has specifically held that a plaintiff can bring suit under the public trust doctrine without showing that she “will suffer special damage, different in degree and kind from that suffered by the public at large.” 263 N.E.2d ; see Instead, the Illinois Supreme Court said, “If the ‘public trust’ doctrine is to have any meaning or vitality at all, the members of the public, at least taxpayers who are the beneficiaries of [the public] trust, must have the right and standing to enforce it.” In other words, Illinois has adopted precisely the opposite of the injury-in-fact requirement of federal standing, which demands that every plaintiff prove that he “seek[s] relief for an injury that affects him in a ‘personal and individual way.’ ” ; see also )). 22 23 24 While Illinois is free to conclude that “plaintiffs’ rights as residents in a trust of public lands” may be “enforced without question,” 263 N.E.2d Article III doesn't give us the same leeway. To sue in federal court, a plaintiff must also demonstrate an injury to her “separate concrete interest.”1 The plaintiffs have failed to do that here: their public trust and ultra vires claims each allege only that the government has failed to follow the law. All residents of Chicago—indeed, advocates for good government every-where—desire that the government follow the law. But recognizing standing based on such an “undifferentiated” injury is fundamentally “inconsistent” with the *732 exercise of the judicial power. at ; see also ; Valley Forge Christian –83, For Article III purposes, the plaintiffs are nothing more than “concerned bystanders,” and concerned bystanders are not entitled to press their claims in federal court. United The fact that Illinois would permit them to do so in state court is irrelevant to the Article III inquiry. B. 25 The plaintiffs have an alternative argument: they argue that they have standing because Jackson Park will suffer an injury in fact as a result of the defendants’ violations of state law. On this theory, the City's plan to turn part of Jackson Park into the Obama Presidential Center will cause irreparable “damage to Jackson Park” that is “fairly traceable to the construction project.” The alleged damage includes, for example, departing from Frederick Law Olmsted's original plan for the landscape of Jackson Park and jeopardizing the Park's listing on the National Register of Historic Places. 26 But this argument fares no better than the last. Even if the Obama Presidential Center will damage Jackson Park, “[t]he relevant showing for purposes of Article III standing is not injury to the environment but injury to the plaintiff.” Friends of the Earth, The plaintiffs can't repackage an injury to the park as an injury to themselves. Nor can they sue on behalf of the park, which is what they seem to be trying to do. In limited circumstances, the doctrine of “third-party standing” permits a plaintiff to sue to vindicate the rights of someone else. See, e.g., Here, though, the plaintiffs are trying to raise the rights of something else. Among the many problems with this maneuver is the fact that Jackson Park has no rights of its own to assert. Cf. Ecuador Const. tit. II, ch. 7, art. 71 (granting rights to nature). C. 27 Finally, the defendants—but, notably, not the plaintiffs—argue that the plaintiffs have standing as municipal taxpayers of the City of Chicago.2 The defendants took precisely the opposite position in the district court, where they raised the *733 plaintiffs’ lack of municipal taxpayer standing as one reason why the district court should dismiss the state-law claims on jurisdictional grounds. In response, the plaintiffs asserted that they had municipal taxpayer standing, and the district court accepted that argument. Things have changed on appeal. The plaintiffs’ supplemental brief doesn't even mention municipal taxpayer standing, while the defendants now champion it as the basis for jurisdiction. It is not obvious why the plaintiffs have failed to embrace a district court decision in their favor, but the reason for the defendants’ change of heart is easy to see—having secured a judgment on the merits, they'd prefer an affirmance to a dismissal. Still, the defendants were right the first time around: municipal taxpayer standing does not justify federal jurisdiction over these state-law claims. 28 Municipal taxpayer standing is a bit of a relic in the modern landscape of standing. It derives from Crampton v. Zabriskie, in which the Supreme Court held that “there is at this day no serious question” about “the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders of the county may otherwise be compelled to pay.” The Court cited Crampton approvingly a half-century later in Frothingham v. Mellon, which rejected the proposition that standing to sue the federal government could be based merely on a plaintiff's status as a federal taxpayer. En route to that holding, the Court distinguished between municipal taxpayers, who have a “peculiar relation to the [municipal] corporation, which is not without some resemblance to that subsisting between stockholder and private corporation,” and federal taxpayers, any one of whom shares her “interest in the moneys of the treasury with millions of others.” It thus left undisturbed “the rule, frequently stated by this court, that resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation.” (Sutton, J., concurring) (“While the municipal-taxpayer standing doctrine has stood still, standing principles have moved on.”). Although the Court has not actually relied on municipal taxpayer standing in decades, it has continued to assume the doctrine's validity. See, e.g., Meanwhile, it has developed a substantial body of law vigorously enforcing the principle that injuries cognizable under Article III cannot be “generalized,” 504 U.S. at –76, or insufficiently “particularized,” 136 S. Ct. It has also repeatedly emphasized that neither state nor federal taxpayers can satisfy this standard in a suit against the government for the illegal expenditure of taxpayer funds.3 See *734 Yet it has never explained why municipal taxpayers are differently situated—and it might find that difficult to do. Frothingham suggested that the city or county resident has a “peculiar relationship” with her local government, while the state or federal citizen has only a “minute” or “remote” tie to hers. 262 U.S. But why is a suit brought by one of Chicago's 2.6 million residents any more particularized than a suit by any of the 579,000 citizens of Wyoming? QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/WYchicagocityillinois/PST045219 There's reason to think that the Court has recognized this reality—at least one opinion has hinted that municipal taxpayer standing should be brought into line with modern standing doctrine. (plurality opinion) (“We have indicated that the same conclusion may not hold for municipal taxpayers, if it has been shown that the ‘peculiar relation of the corporate taxpayer to the municipal corporation’ makes the taxpayer's interest in the application of municipal revenues ‘direct and immediate.’ ” ). But undertaking that task is the Court's job, not ours. See So, in analyzing whether the plaintiffs’ injury is cognizable, we will not ask whether it is concrete and particularized. Instead, we will ask only whether the elements of municipal taxpayer standing have been satisfied. 29 30 Municipal taxpayer standing has two threshold requirements. First, and most obviously, the plaintiff must actually be a taxpayer of the municipality that she wishes to sue. Freedom from Religion Found., Second, the plaintiff must establish that the municipality has spent tax revenues on the allegedly illegal action. The second requirement comes from the Supreme Court's decision in Doremus v. Board of Education, which requires a plaintiff to show that “the taxpayer's action is a good-faith pocketbook action.” The plaintiff must be able to show that she has “the requisite financial interest that is, or is threatened to be, injured by” the municipality's illegal conduct. 31 The burden of establishing standing is on the plaintiffs. See As we've already mentioned, though, the plaintiffs aren't the ones who have invoked municipal taxpayer standing—the defendants are. And despite their support of this theory now, the defendants’ earlier argument against it was better. As the defendants told the district court, the record doesn't support the conclusion that the plaintiffs have suffered a direct pocketbook injury from the conversion of part of Jackson Park into the campus of the Obama Presidential Center. That is so for several reasons. *735 32 33 For one thing, a plaintiff who asserts municipal taxpayer standing “must show that the municipality has actually expended funds on the allegedly illegal elements of the disputed practice.” Here, the plaintiffs argue that the “allegedly illegal elements”—which is to say, the elements of the defendants’ actions that violate the public trust doctrine—are the construction and operation of the Obama Presidential Center. But the Obama Foundation—not the City—will bear the project's costs. The City's agreement with the Foundation provides that the cost of initially constructing the Center, of operating the Center once it is built, and of maintaining the Center going forward will all be the Foundation's responsibility. Thus, no tax dollars will be spent to build or operate the Center. And “if no tax money is spent on the allegedly [illegal] activity,” then “[a] plaintiff's status as a municipal taxpayer is irrelevant for standing purposes.” Freedom from Religion Found., 845 F.2d at To be sure, the City is set to spend millions of dollars to prepare the Jackson Park site for construction of the Center, even though it isn't paying for the Center itself. Specifically, the City will pay for three projects: alteration and rerouting of roadways, including removing Cornell Drive and converting the roadway into parkland; environmental remediation and utilities work; and construction of athletic facilities. But the plaintiffs have not claimed that those three projects themselves violate the public trust doctrine or are otherwise beyond the City's power to undertake. That means that those projects cannot be the allegedly offending elements of the defendants’ actions, which in turn means that the City's spending on those projects is beside the point for municipal taxpayer standing. Cf. If the allegedly illegal conduct is the construction and operation of the Center, and taxpayer dollars aren't being spent on that conduct, then that alone is enough to defeat the plaintiffs’ municipal taxpayer standing. 34 But even if we accepted that the City-funded projects are relevant, there is yet another problem—there has been no showing that the City will pay for those projects with municipal taxes. See Amnesty Int'l –12, (noting that “at the summary judgment stage,” a plaintiff “can no longer rest on ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts’ ” supporting standing ). It is not enough to simply allege that the City is spending money; the existence of municipal taxpayer standing depends on where the money comes from. The parties fail to grapple with the possibility that the relevant funds come from a source other than tax dollars. And that possibility isn't remote—nearly a third of the City's revenue comes from nontax sources. See City of Chicago, 2020 Budget Overview 38, https://www.chicago.gov/content/dam/city/depts/obm/supp_info/2020Budget/2020BudgetOverview.pdf (noting that 32.9% of the City's budget was derived from nontax revenue). These nontax sources are as varied as licensing fees, parking tickets, concessions contracts, and federal and state grants. at 37–38 (cataloguing the sources of city revenue); It would be far too simplistic to conclude that *736 the City is spending tax money on a project simply because it is spending some money on a project. 35 Municipal taxpayers have standing to sue only when they have both identified an action on the city's part that is allegedly illegal and adequately shown that city tax dollars will be spent on that illegal activity. See Here, neither prong is satisfied. Thus, the plaintiffs’ status as municipal taxpayers is insufficient to confer Article III standing. III. We now turn to the plaintiffs’ two federal claims: that the defendants took their property in violation of the Fifth and Fourteenth Amendments. See U.S. Const. amend. V (“[P]rivate property [shall not] be taken for public use, without just compensation.”); U.S. Const. amend. XIV, 1, cl. 3 (“[N]or shall any State deprive any person of property, without due process of law.”). Neither of these claims can get off the ground unless the plaintiffs prove that they have a private property interest in Jackson Park. To accomplish that, the plaintiffs return to the public trust doctrine and add a twist: they argue that the public trust doctrine not only curtails a state's ability to transfer public land to a private party but also confers a private property right on members of the public. Analogizing to the law of trusts, the plaintiffs insist that they are “beneficiaries” of Jackson Park, which the defendants hold in trust on the public's behalf. And, according to the plaintiffs, this “beneficial interest” is private property that is protected by the United States Constitution. 36 37 38 39 Unlike the state claims, the federal claims do allege a cognizable injury: the deprivation of a property right. See To be sure, the alleged property right—a beneficial interest in a public park—is highly unusual, and one might be immediately skeptical about whether it exists. But when the existence of a protected property interest is an element of the claim, deciding whether the interest exists virtually always goes to the merits rather than standing. So, for example, in Booker-El, we held that a plaintiff had standing to assert a procedural due process claim against prison administrators for mismanaging a general recreation fund held for the benefit of inmates, even though we concluded, on the merits, that Indiana law did not give the plaintiff a protected property interest in the fund. at –01.4 As cases like Booker-El illustrate, it is not unusual for the distinction between standing and the merits to cause conceptual trouble when a plaintiff alleges the deprivation of a dubious property or liberty interest. See ; cf. Yet as we have explained before, to say that a claim “is not worth anything” is a determination “that concerns the merits rather than jurisdiction. Otherwise every losing suit would be dismissed for lack of jurisdiction.” 40 41 And so we turn to the merits, which are easily dispatched. To show that they are similarly situated to beneficiaries of a private trust, the plaintiffs emphasize the word “trust” in “public trust doctrine” and quote cases describing public parkland as being held “in trust” and “for the benefit of the public.” ; see also Ill. (referring to the state's ownership of submerged land as “a title held in trust for the people of the state”). Their argument disintegrates, however, when one reads more than the snippets they cite. is particularly devastating: in that case, the Illinois Supreme Court held that those owning land adjacent to or in the vicinity of a public park possess no private property right in having the parkland committed to a particular 263 N.E.2d ; see also If adjacent landowners have no protected interest in public land, then the plaintiffs don't have one either. Although the plaintiffs wish it were otherwise, the Illinois cases make clear that the public trust doctrine functions as a restraint on government action, not as an affirmative grant of property rights.5 42 The lack of a property interest is the most fundamental defect in both of the plaintiffs’ federal claims, yet it is by no means the only one. With respect to the takings claim, the plaintiffs seek injunctive relief but not money damages. Although the plaintiffs don't spell out their argument, the request for injunctive relief suggests that their complaint is that the Center does not qualify as a “public use” rather than that the City has failed to pay them “just compensation.” U.S. Const. amend. V. This is a losing argument. Even assuming that the City's use agreement with the Foundation qualifies as a transfer to a private party, the Supreme Court held in Kelo v. City of New London that a transfer to a private owner can still be constitutional if it is done for a “public purpose.” What's more, the City's judgment that a particular transfer and use has a public purpose is entitled to deference. 8–89, It's hard to see, then, how we could “second-guess the City's determination[ ]” that building the Center—with its museum, public library branch, auditorium, athletic center, gardens, and more—is a use with public benefits. 8, *738 43 44 45 The plaintiffs’ procedural due process claim also has problems beyond the lack of a protected property interest. For this claim to succeed, the plaintiffs must establish that the procedures they received fell short of minimum constitutional requirements, and the plaintiffs have failed to identify what greater process they were due. The City enacted four separate ordinances approving various aspects of the Center. The votes on those ordinances came after multiple public hearings at which residents could raise their concerns about the City's intended plans. And the Illinois General Assembly amended the Illinois Park District Aquarium and Museum Act to explicitly authorize cities and park districts to erect, operate, and maintain “presidential libraries, centers, and museums” in public parks. 70 ILCS 1290/1. We have noted that a “legislative determination provides all the process that is due.” If one legislative determination is enough, then five determinations are overkill. In short, the plaintiffs’ Fifth and Fourteenth Amendment claims fail on the merits, and we affirm the grant of summary judgment on both. IV. 46 We have one final bit of housekeeping. The plaintiffs also challenge the district court's denial of their motion for relief from the judgment under Federal Rule of Civil Procedure 60(b). Rule 60(b) permits a district court to grant “relief from a judgment or order” for a number of specified reasons. In their motion, the plaintiffs suggested two reasons why the district court should revisit its resolution of their public trust claim. First, the plaintiffs argued that “new and material evidence” had come to light. See Fed. R. Civ. P. 60(b)(2). This argument was based on a provisional report completed by the National Park Service and the Federal Highway Administration as part of assessing whether federal roadway projects or other alterations connected to the construction of the Center would have an “adverse effect” on Jackson Park's listing on the National Register of Historic Places, see 54 U.S.C. 306108; 36 C.F.R. 800.5, or qualify as a “major federal action” subject to the National Environmental Policy Act, see 42 U.S.C. 4332(C). And second, the plaintiffs argued that the continued application of the district court's judgment was inequitable. See Fed. R. Civ. P. 60(b)(5). As we've explained, however, the plaintiffs lack Article III standing to bring the public trust claim in the first place. That pulls the rug out from under their arguments in favor of Rule 60(b) relief. Whatever the merits of those arguments, both we and the district court lack jurisdiction to resolve the plaintiffs’ public trust claim. That puts to rest any contention that the district court should have revisited its holding on that count. We thus affirm the denial of the motion, albeit on different grounds. * * * While we affirm the grant of summary judgment on the Fifth and Fourteenth Amendment claims, we vacate the grant of summary judgment on the public trust and ultra vires claims. We hold that the plaintiffs lack standing to bring those latter claims in federal court, and therefore that the district court should have dismissed them for lack of jurisdiction. We also affirm the denial of the motion for relief from the judgment under Rule 60(b). The judgment is AFFIRMED in part and VACATED in part, and the case is REMANDED.

Purtue v. Wisconsin Department of Corrections

Lisa Purtue was fired from her job as a Wisconsin correctional officer for falsely claiming that a prisoner hit her with an empty snack cake box that he threw from his cell. Video footage revealed that the box did not in fact hit Purtue, and, after a review process, the warden dismissed her *600 for making a false report in violation of Wisconsin Department of Corrections policies. Purtue then filed suit, alleging that she had been fired because of her sex. But because she failed to identify evidence from which a reasonable jury could draw that inference, we affirm the district court's entry of summary judgment against her. I. Lisa Purtue was a correctional officer at Dodge Correctional Institution, a state prison that serves as an intake institution for inmates who are then transferred to longer-term facilities of varying security levels. The Department of Corrections hired Purtue in 2013, and she worked at Dodge for about three years before the 2016 incident that led to her dismissal. In April 2016, Purtue filed an incident report alleging that an inmate, Joseph Reddick, had thrown an empty box of Little Debbie snack cakes from his cell, hitting her in the midsection. According to Purtue, she had opened the “trap”—a slot through which food is passed—and offered Reddick his medication. Reddick then threw the box out of the trap and hit her, after which Purtue closed the trap and told Reddick that she understood the box-throwing to be a refusal. As a result of Purtue's report, Reddick was hauled off to segregated detention, hurling insults at Purtue as he was taken from the cell block. Per Department guidelines, the prison referred the incident to the Dodge County Sheriff for criminal investigation and initiated internal disciplinary proceedings against Reddick. At Reddick's prison disciplinary hearing, he asked the hearing officer to play a video recording of the incident that had been captured by a security camera located across from his cell. The video showed the empty box flying out of Reddick's cell, but it also showed that the box didn't fly in Purtue's direction, much less strike her. In light of this evidence, the investigators found Reddick not guilty of assault or disobeying orders, although he was found guilty of disrespect and disruptive conduct. Because of the discrepancy between the video and Purtue's report, Dodge's deputy warden opened an investigation into Purtue. The Department of Correction's Work Rule 6 prohibits correctional officers from falsifying records or knowingly giving false information to prison authorities; violation of this rule can result in discipline, including termination. To determine whether Purtue violated Work Rule 6, two investigators interviewed Reddick and Purtue separately. Reddick stated that he and Purtue had quarreled earlier on the day of the incident and that he threw the box out of frustration but purposefully directed it away from Purtue. In her interview, Purtue reiterated that the box had hit her when she turned away from the trap and confirmed Reddick's account of the earlier disagreement between the two. Investigators then informed Purtue that her description was inconsistent with the video. After watching the footage, Purtue agreed that the box had not hit her—yet she maintained that something else must have hit her instead. The investigators doubted that story because on the video Purtue did not flinch or otherwise react as if something had struck her. They referred her case to the warden at Dodge, sending him the investigation report, the video, and other materials. The warden decided to skip progressive discipline and immediately terminate Purtue's employment. In doing so, he relied on Work Rule 6 and the Department's Executive Directive #2, which classifies “[l]ying or providing false information” as one of the listed “Serious Acts of Misconduct” *601 that may result in termination. The warden met with the deputy warden, Dodge's director of human resources, and a representative from the Department's employment relations office, all of whom agreed with the warden's recommendation to skip progressive discipline. If a supervisor skips progressive discipline, Department policy requires the employment relations office to prepare a summary memorandum and to identify disciplinary comparators showing that the infraction warrants termination. The memorandum identified three comparators for Purtue—one man and two women—all of whom were fired for lying or falsifying records. Two division administrators approved the report, which then went to a “management advisory team” consisting of an employment relations representative, a representative from the Office of Diversity Equality Services, the Department's director of personnel and human resources, and two representatives from the Office of Legal Counsel. All reviewers agreed that termination was appropriate. After securing final approval from the Department's deputy secretary, Dodge's warden fired Purtue for falsifying a report. Purtue filed this action, asserting claims for sex discrimination under Title VII and 42 U.S.C. § 1983. To defeat the defendants’ motion for summary judgment, she assembled an array of circumstantial evidence: She contended that the defendants mischaracterized her statements, uncritically adopted Reddick's version of events, and exaggerated the potential consequences that Reddick faced as a result of her misstatements. She presented expert testimony from former Wisconsin Department of Corrections Secretary Ed Wall, who opined that Purtue's conduct did not warrant terminating her employment. And she highlighted a report by a University of Wisconsin professor showing that Dodge's termination patterns tracked those of the Department as a whole, which had fired six percent of its female employees versus three percent of its male employees in the five years before Purtue's dismissal. The district court granted summary judgment to the defendants. It determined that the investigation accurately summarized Purtue's conduct, that Reddick's version of events was consistent with the video, and that the defendants correctly represented the potential negative consequences to Reddick. It concluded that Wall's testimony was speculative and offered nothing more than his opinion that termination was unwise but not necessarily pretextual. Though the district court found the gender disparities in the statistical report concerning, it concluded that this evidence revealed little about the defendants’ decision to dismiss Purtue in particular. After reviewing this evidence, the district court decided that no reasonable jury could find that Purtue's dismissal was based on sex discrimination rather than her violation of Work Rule 6. II. 1 2 We review the viability of Purtue's claims de novo, construing facts in her favor as the nonmovant, and “we affirm the district court only when no reasonable jury could have found for the plaintiffs.” Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893–94 (7th Cir. 2018). We evaluate Purtue's § 1983 claims under the same standards as her Title VII claims, so they stand or fall together. De Lima Silva v. Dep't of Corr., 917 F.3d 546, 559 (7th Cir. 2019). 3 4 5 6 Purtue emphasizes that she is not relying on the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and she is right that she doesn't have to. The familiar *602 McDonnell Douglas approach requires a plaintiff to make a prima facie case of discrimination, at which point the burden shifts to the employer to offer a nondiscriminatory motive, and, if the employer does so, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext. Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 719 (7th Cir. 2018). But this framework is just one way that a plaintiff can navigate her way to a jury in a discrimination case. When a defendant moves for summary judgment, the “singular question” for the district court is whether the plaintiff has introduced evidence that would “permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Johnson, 892 F.3d at 894 (citation omitted). The plaintiff need not rely on the McDonnell Douglas method to carry that burden; she may well have other “direct or circumstantial evidence that supports an inference of intentional discrimination.” Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020) (citation omitted). For example, plaintiffs commonly point to “ambiguous or suggestive comments or conduct; better treatment of people similarly situated but for the protected characteristic; and dishonest employer justifications for disparate treatment.” Id. Purtue relies on evidence like this and insists that she has enough to get to a jury. The district court concluded otherwise, she says, because it made the mistake of analyzing each piece of evidence in isolation rather than considering her case as a whole. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (“Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself ....”). But the district court did not make that mistake. On the contrary, it surveyed the whole picture and correctly concluded that no reasonable jury could find in Purtue's favor. We'll start with the incident itself: Purtue contends that the prison's justification for her firing was dishonest. In her telling, the defendants overstated the potential consequences to Reddick from her false report, given that he was likely to be found guilty of a disciplinary violation (albeit a different one) anyway. But Purtue misunderstands the defendants’ position. They don't claim to have relied on the punishment Reddick faced at Dodge. Rather, they note that the assault allegation posed especially significant potential consequences to Reddick, including possible criminal prosecution. Most importantly, they highlight that, because Dodge is an intake institution, Reddick's assault of a corrections officer might have led to his assignment to a maximum-security facility. That's a serious consequence, and one more likely to result from an allegation of assault than from an allegation of disruptive behavior. Purtue counters that her report might not have caused Reddick to be sent to such a facility because the higher-ups at Dodge—whom she accuses of being dishonest—would have concluded that the severity of her reported assault did not require such an outcome. Maybe so. But the possibility that Reddick might have escaped the worst outcome does not mean that the defendants lied about the precariousness of the position in which Purtue put him. In any event, Purtue's culpability, not Reddick's fate, was the stated reason for her dismissal. And Purtue does not deny that she was culpable for this offense. On the contrary, it's undisputed that she made a false report, that making a false report was an offense for which she could be dismissed under the Department's rules, *603 and that false reports are considered serious because of the potential negative effect on prisoners writ large rather than the consequences in a particular case. Significantly, Purtue does not dispute that a false report could result in a prisoner being sent to a maximum-security facility and that Dodge has an interest in deterring false reports for that reason. So despite Purtue's efforts to show otherwise, this is not a situation in which the punishment was grossly out of proportion to the offense. Cf. Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999) (questioning the sincerity of an employer's stated reason when “the punishment of termination was grossly excessive in light of the alleged infraction of eating a handful of taco chips”). Wall's expert testimony does not undercut this conclusion. Purtue emphasizes his observation that the Department inconsistently made termination decisions, as well as his conclusion that Purtue could not have expected to be fired for her conduct. But even if Wall is right about that, he didn't dispute that filing a false report violated Department rules or that the Department could legitimately consider such a violation to be serious. Though he might have exercised his discretion differently when he was Secretary, his testimony doesn't support an inference that the Department acted so far outside the bounds of normal procedures that its justification for dismissing Purtue was pretextual. 8 The report showing disparate dismissal rates of female and male employees does not save Purtue's case either. To raise an inference of discrimination, statistical comparators “must be ‘directly comparable’ to the plaintiff ‘in all material respects,’ ” though “they need not be identical in every conceivable way.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (citation omitted). The statistics on which Purtue relies are unhelpful because they do not reveal why any employee in the study was fired—which makes it impossible to determine how many of the fired employees were comparable to Purtue in the respect that matters most. To address this weakness, Purtue identifies particular employees who made false statements but were not fired. Yet she runs into the same problem: she fails to show that the supposed comparators are actually comparable. All but one of the employees that she identifies worked at facilities other than Dodge, so the disciplinary determination fell mostly to different decisionmakers. And while the lone comparator who worked at Dodge was disciplined but not fired for making a “false, inaccurate statement,” Purtue concedes that she has no information that would permit her to compare the seriousness of his offense to hers. In sum, Purtue has not identified evidence tending to indicate that Dodge did anything other than fire her for her admitted violation of Department rules. No reasonable jury could infer that Dodge discriminated against her because of her sex, so the district court was right to enter summary judgment in favor of the defendants. We AFFIRM its judgment.

Barrett

majority

Lisa Purtue was fired from her job as a Wisconsin correctional officer for falsely claiming that a prisoner hit her with an empty snack cake box that he threw from his cell. Video footage revealed that the box did not in fact hit Purtue, and, after a review process, the warden dismissed her *600 for making a false report in violation of Wisconsin Department of Corrections policies. Purtue then filed suit, alleging that she had been fired because of her sex. But because she failed to identify evidence from which a reasonable jury could draw that inference, we affirm the district court's entry of summary judgment against her. I. Lisa Purtue was a correctional officer at Dodge Correctional Institution, a state prison that serves as an intake institution for inmates who are then transferred to longer-term facilities of varying security levels. The Department of Corrections hired Purtue in 2013, and she worked at Dodge for about three years before the 2016 incident that led to her dismissal. In April 2016, Purtue filed an incident report alleging that an inmate, Joseph Reddick, had thrown an empty box of Little Debbie snack cakes from his cell, hitting her in the midsection. According to Purtue, she had opened the “trap”—a slot through which food is passed—and offered Reddick his medication. Reddick then threw the box out of the trap and hit her, after which Purtue closed the trap and told Reddick that she understood the box-throwing to be a refusal. As a result of Purtue's report, Reddick was hauled off to segregated detention, hurling insults at Purtue as he was taken from the cell block. Per Department guidelines, the prison referred the incident to the Dodge County Sheriff for criminal investigation and initiated internal disciplinary proceedings against Reddick. At Reddick's prison disciplinary hearing, he asked the hearing officer to play a video recording of the incident that had been captured by a security camera located across from his cell. The video showed the empty box flying out of Reddick's cell, but it also showed that the box didn't fly in Purtue's direction, much less strike her. In light of this evidence, the investigators found Reddick not guilty of assault or disobeying orders, although he was found guilty of disrespect and disruptive conduct. Because of the discrepancy between the video and Purtue's report, Dodge's deputy warden opened an investigation into Purtue. The Department of Correction's Work Rule 6 prohibits correctional officers from falsifying records or knowingly giving false information to prison authorities; violation of this rule can result in discipline, including termination. To determine whether Purtue violated Work Rule 6, two investigators interviewed Reddick and Purtue separately. Reddick stated that he and Purtue had quarreled earlier on the day of the incident and that he threw the box out of frustration but purposefully directed it away from Purtue. In her interview, Purtue reiterated that the box had hit her when she turned away from the trap and confirmed Reddick's account of the earlier disagreement between the two. Investigators then informed Purtue that her description was inconsistent with the video. After watching the footage, Purtue agreed that the box had not hit her—yet she maintained that something else must have hit her instead. The investigators doubted that story because on the video Purtue did not flinch or otherwise react as if something had struck her. They referred her case to the warden at Dodge, sending him the investigation report, the video, and other materials. The warden decided to skip progressive discipline and immediately terminate Purtue's employment. In doing so, he relied on Work Rule 6 and the Department's Executive Directive #2, which classifies “[l]ying or providing false information” as one of the listed “Serious Acts of Misconduct” *601 that may result in termination. The warden met with the deputy warden, Dodge's director of human resources, and a representative from the Department's employment relations office, all of whom agreed with the warden's recommendation to skip progressive discipline. If a supervisor skips progressive discipline, Department policy requires the employment relations office to prepare a summary memorandum and to identify disciplinary comparators showing that the infraction warrants termination. The memorandum identified three comparators for Purtue—one man and two women—all of whom were fired for lying or falsifying records. Two division administrators approved the report, which then went to a “management advisory team” consisting of an employment relations representative, a representative from the Office of Diversity Equality Services, the Department's director of personnel and human resources, and two representatives from the Office of Legal Counsel. All reviewers agreed that termination was appropriate. After securing final approval from the Department's deputy secretary, Dodge's warden fired Purtue for falsifying a report. Purtue filed this action, asserting claims for sex discrimination under Title VII and To defeat the defendants’ motion for summary judgment, she assembled an array of circumstantial evidence: She contended that the defendants mischaracterized her statements, uncritically adopted Reddick's version of events, and exaggerated the potential consequences that Reddick faced as a result of her misstatements. She presented expert testimony from former Wisconsin Department of Corrections Secretary Ed Wall, who opined that Purtue's conduct did not warrant terminating her employment. And she highlighted a report by a University of Wisconsin professor showing that Dodge's termination patterns tracked those of the Department as a whole, which had fired six percent of its female employees versus three percent of its male employees in the five years before Purtue's dismissal. The district court granted summary judgment to the defendants. It determined that the investigation accurately summarized Purtue's conduct, that Reddick's version of events was consistent with the video, and that the defendants correctly represented the potential negative consequences to Reddick. It concluded that Wall's testimony was speculative and offered nothing more than his opinion that termination was unwise but not necessarily pretextual. Though the district court found the gender disparities in the statistical report concerning, it concluded that this evidence revealed little about the defendants’ decision to dismiss Purtue in particular. After reviewing this evidence, the district court decided that no reasonable jury could find that Purtue's dismissal was based on sex discrimination rather than her violation of Work Rule 6. II. 1 2 We review the viability of Purtue's claims de novo, construing facts in her favor as the nonmovant, and “we affirm the district court only when no reasonable jury could have found for the plaintiffs.” We evaluate Purtue's 1983 claims under the same standards as her Title VII claims, so they stand or fall together. De Lima 3 4 5 6 Purtue emphasizes that she is not relying on the burden-shifting framework set out in McDonnell Douglas and she is right that she doesn't have to. The familiar *602 McDonnell Douglas approach requires a plaintiff to make a prima facie case of discrimination, at which point the burden shifts to the employer to offer a nondiscriminatory motive, and, if the employer does so, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext. But this framework is just one way that a plaintiff can navigate her way to a jury in a discrimination case. When a defendant moves for summary judgment, the “singular question” for the district court is whether the plaintiff has introduced evidence that would “permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Johnson, The plaintiff need not rely on the McDonnell Douglas method to carry that burden; she may well have other “direct or circumstantial evidence that supports an inference of intentional discrimination.” For example, plaintiffs commonly point to “ambiguous or suggestive comments or conduct; better treatment of people similarly situated but for the protected characteristic; and dishonest employer justifications for disparate treatment.” Purtue relies on evidence like this and insists that she has enough to get to a jury. The district court concluded otherwise, she says, because it made the mistake of analyzing each piece of evidence in isolation rather than considering her case as a whole. See But the district court did not make that mistake. On the contrary, it surveyed the whole picture and correctly concluded that no reasonable jury could find in Purtue's favor. We'll start with the incident itself: Purtue contends that the prison's justification for her firing was dishonest. In her telling, the defendants overstated the potential consequences to Reddick from her false report, given that he was likely to be found guilty of a disciplinary violation (albeit a different one) anyway. But Purtue misunderstands the defendants’ position. They don't claim to have relied on the punishment Reddick faced at Dodge. Rather, they note that the assault allegation posed especially significant potential consequences to Reddick, including possible criminal prosecution. Most importantly, they highlight that, because Dodge is an intake institution, Reddick's assault of a corrections officer might have led to his assignment to a maximum-security facility. That's a serious consequence, and one more likely to result from an allegation of assault than from an allegation of disruptive behavior. Purtue counters that her report might not have caused Reddick to be sent to such a facility because the higher-ups at Dodge—whom she accuses of being dishonest—would have concluded that the severity of her reported assault did not require such an outcome. Maybe so. But the possibility that Reddick might have escaped the worst outcome does not mean that the defendants lied about the precariousness of the position in which Purtue put him. In any event, Purtue's culpability, not Reddick's fate, was the stated reason for her dismissal. And Purtue does not deny that she was culpable for this offense. On the contrary, it's undisputed that she made a false report, that making a false report was an offense for which she could be dismissed under the Department's rules, *603 and that false reports are considered serious because of the potential negative effect on prisoners writ large rather than the consequences in a particular case. Significantly, Purtue does not dispute that a false report could result in a prisoner being sent to a maximum-security facility and that Dodge has an interest in deterring false reports for that reason. So despite Purtue's efforts to show otherwise, this is not a situation in which the punishment was grossly out of proportion to the offense. Cf. Wall's expert testimony does not undercut this conclusion. Purtue emphasizes his observation that the Department inconsistently made termination decisions, as well as his conclusion that Purtue could not have expected to be fired for her conduct. But even if Wall is right about that, he didn't dispute that filing a false report violated Department rules or that the Department could legitimately consider such a violation to be serious. Though he might have exercised his discretion differently when he was Secretary, his testimony doesn't support an inference that the Department acted so far outside the bounds of normal procedures that its justification for dismissing Purtue was pretextual. 8 The report showing disparate dismissal rates of female and male employees does not save Purtue's case either. To raise an inference of discrimination, statistical comparators “must be ‘directly comparable’ to the plaintiff ‘in all material respects,’ ” though “they need not be identical in every conceivable way.” The statistics on which Purtue relies are unhelpful because they do not reveal why any employee in the study was fired—which makes it impossible to determine how many of the fired employees were comparable to Purtue in the respect that matters most. To address this weakness, Purtue identifies particular employees who made false statements but were not fired. Yet she runs into the same problem: she fails to show that the supposed comparators are actually comparable. All but one of the employees that she identifies worked at facilities other than Dodge, so the disciplinary determination fell mostly to different decisionmakers. And while the lone comparator who worked at Dodge was disciplined but not fired for making a “false, inaccurate statement,” Purtue concedes that she has no information that would permit her to compare the seriousness of his offense to hers. In sum, Purtue has not identified evidence tending to indicate that Dodge did anything other than fire her for her admitted violation of Department rules. No reasonable jury could infer that Dodge discriminated against her because of her sex, so the district court was right to enter summary judgment in favor of the defendants. We AFFIRM its judgment.

Rainsberger v. Benner

William Rainsberger was charged with murdering his elderly mother. But the detective who built the case against him, Charles Benner, may have been dishonest. According to Rainsberger, Benner submitted a probable cause affidavit that was riddled with lies and undercut by the omission of exculpatory evidence. Based on that affidavit, Rainsberger was arrested, charged, and imprisoned for two months. When the prosecutor dismissed the case because of evidentiary problems, Rainsberger sued Benner under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. Benner moved for summary judgment, arguing that he was entitled to qualified immunity. The district court denied his motion, and he now asks us to reverse the district court. We decline to do so. Benner concedes for purposes of this appeal that he knowingly *643 or recklessly made false statements in the probable cause affidavit. He emphasizes, however, that knowingly or recklessly misleading the magistrate in a probable cause affidavit—whether by omissions or outright lies—only violates the Fourth Amendment if the omissions and lies were material to probable cause. He claims that his weren't, but we disagree. Materiality depends on whether the affidavit demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in. And when that is done here, Benner's affidavit fails to establish probable cause to believe that Rainsberger murdered his mother. Because it is clearly established that it violates the Fourth Amendment “to use deliberately falsified allegations to demonstrate probable cause,” Franks v. Delaware, 438 U.S. 154, 168, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Benner is not entitled to qualified immunity. I. 1 2 We start with an issue that affects both appellate jurisdiction and our rendition of the facts. This is an appeal from the district court's order denying Benner's motion for summary judgment on the ground of qualified immunity. In the normal course, we lack jurisdiction to review an order denying summary judgment because it is not a “final decision” under 28 U.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir.2013). But because “qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct,” Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the denial of qualified immunity is an appealable interlocutory decision—at least insofar as it turns exclusively on a question of law, id. at 530, 105 S.Ct. 2806. That qualification is significant: because our authority extends only to questions of law, an officer can obtain interlocutory review only if he refrains from contesting any fact that a reasonable jury could resolve against him. See Jones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral-order appeal ..., where the defendants say that they accept the plaintiff's version of the facts, we will take them at their word and consider their legal arguments in that light. If, however, we detect a back-door effort to contest the facts, we will reject it and dismiss the appeal for want of jurisdiction.”). Benner does so here. For purposes of this appeal, he accepts as true Rainsberger's version of all facts that are in material dispute—most significantly, that he knowingly or recklessly made false or misleading statements in the affidavit that secured Rainsberger's arrest. In what follows, then, we recount the facts that we must take as true, drawing all inferences in Rainsberger's favor. The legal question that we must decide is whether Benner is entitled to qualified immunity on these facts. A. Rainsberger was the primary caregiver for his mother, Ruth, who was 88 years old and suffering from dementia.1 Ruth lived alone in an apartment in a high-crime area; Rainsberger lived nearby. He checked on her daily, did her grocery shopping, and handled her finances. His siblings Robert and Rebecca also helped care for Ruth, although they saw her less frequently. *644 At approximately 3:30 p.m. on November 19, 2013, Rainsberger went to Ruth's apartment and found the door unlocked. When he entered, he discovered Ruth lying facedown on the floor with a blanket covering her shoulders and head. She was breathing, but with difficulty. There was a large circle of dried blood on the blanket and a pool of congealed blood on the floor. Rainsberger did not remove the blanket because he believed that it was acting as a bandage, and he feared that the bleeding would increase if he pulled it off. Rainsberger called 911 from his mother's landline at 3:37 p.m. He told the operator that someone had “bashed [his mother's] head in.” He then called his brother Robert and told him to come to the apartment immediately. Rainsberger waited outside for the ambulance because Ruth's apartment was difficult to locate within the complex. When paramedic Carl Wooldridge arrived, Rainsberger told him that someone had “caved his mother's head in.” Wooldridge observed that the blanket covering Ruth's head appeared to be stuck to a wound. He noticed “somewhat of a hole in [the blanket] where the wound was,” and when he peeled the blanket off, “there was a mark ... on her forehead that [he] believed to be an entrance wound.” Based on those observations, Wooldridge told fire and ambulance personnel that Ruth had been shot—a conclusion that the emergency personnel thought odd, given the lack of blood splatter on the walls or ceiling. As it turned out, Rainsberger, not Wooldridge, had it right: Ruth died of blunt force trauma to the head. Wooldridge later told Charles Benner, the detective investigating the murder, that he found it suspicious that Rainsberger said that his mother's head had been caved in even though he had not removed the blanket to look at her injuries. Benner came to Ruth's apartment roughly 40 minutes after Rainsberger placed the 911 call. There was no sign of forced entry, and while some dresser drawers in Ruth's bedroom were open, their contents were undisturbed. Ruth's checkbook, credit cards, and some cash were found in the apartment. Her purse and prescription medication were not. Rainsberger and Robert, who had since arrived, voluntarily went to police headquarters to give statements to Benner. Rainsberger said that he had last seen his mother the previous evening. After visiting her, he drove to Plainfield, which is roughly 25 miles away, to spend the evening with his wife. He returned to his house the next morning, where he stayed until around 3:30 p.m. He then left home to check on his mother, stopping at Kroger on the way to buy an iced tea. He told Benner that Ruth's apartment was unlocked when he arrived and that he found her lying wounded on the floor. He checked the apartment for intruders and, finding none, called 911. Rainsberger informed Benner that his mother was not physically able to stand up and see through the peephole, so she typically had to open the door to see who was there. And Rainsberger said that Ruth had $80,000 to $100,000 in savings that would be distributed to her three children upon her death. Robert told Benner that he had not seen Ruth for a few days. He said that he had been at Rainsberger's house when Rainsberger called to tell him to come to Ruth's apartment immediately. He explained that he had been living with Rainsberger for a few months because he had lost his own home to foreclosure. Benner talked to Rainsberger's sister Rebecca the next day. Rebecca told Benner that she typically checked on her mother once a week and had last seen her *645 the day before the attack. Sometime after his call with Rebecca, Benner asked the three siblings to come to the station to review the results of Ruth's autopsy. When they got there, however, Benner did not talk about the autopsy. Instead, he accused Rainsberger and Robert of murdering their mother for her money and asked them to take a polygraph. Upset at the accusation and at being lured to the station under false pretenses, they refused and left. Roughly a week later, after obtaining counsel to represent them, both Rainsberger and Robert agreed to go to the station to give fingerprints and submit to a DNA buccal swab. Benner did not wait for the results of the DNA tests before seeking to have Rainsberger arrested and charged. In early December 2013, Benner submitted a probable cause affidavit to the Marion County prosecutor. But the prosecutor declined to pursue it, and Benner went back to find more evidence. Benner hoped that the results of the DNA tests would make his case against Rainsberger. In March 2014, he noted in an email to a colleague that “[t]he victim's sons are the suspects in this case and I am waiting for DNA results before any arrest may be made.” But when the laboratory report came out in April 2014, it did not implicate Rainsberger—the DNA of two males was found on Ruth's blanket and clothing, but neither Rainsberger nor Robert was a match. Benner took that result in stride. Although the DNA test did not incriminate Rainsberger, Benner did not think that it exonerated him either. (The same, of course, was true of Robert, but Benner was focused on Rainsberger.) Benner reasoned that the unknown male DNA on Ruth's blanket and clothing might have been left by emergency personnel rather than the killer. In May 2014, Benner went to the prosecutor with a second probable cause affidavit that was almost identical to the first. The second affidavit did not disclose the results of the DNA test. But it added two pieces of evidence that Benner had acquired since he presented the prosecutor with the first affidavit. First, Benner used cell phone records to suggest that Rainsberger had called Robert from Ruth's apartment at 2:40 p.m.—hours after Ruth was attacked and a little more than an hour before Rainsberger called 911. Second, he stated that cell phone tower location data could not place Rainsberger outside the area of his mother's apartment during the relevant period. After receiving the second probable cause affidavit, the prosecutor went to Marion County Court and obtained a warrant for Rainsberger's arrest. Rainsberger was charged with his mother's murder and spent two months in jail before he was released on bail. The prosecutor dismissed the case a year later because of evidentiary problems. B. After the charges were dropped, Rainsberger sued Benner under 42 U.S.C. § 1983, alleging that Benner had violated his Fourth Amendment rights. Benner moved for summary judgment on the basis of qualified immunity, but the district court denied the motion. It decided that a reasonable jury could find that Benner knowingly or with reckless disregard for the truth made false or misleading statements in the affidavit. Probable cause did not exist without the false or misleading statements, the district court said, and because an officer who submits a materially misleading probable cause affidavit violates clearly established Fourth Amendment law, it denied Benner qualified immunity. The district court's order turned *646 on the following omissions and alleged lies.2 The phone records. The most damning addition to the second probable cause affidavit was the suggestion that Rainsberger called Robert's cell phone from Ruth's landline at 2:40 p.m. on November 19. This placed Rainsberger at Ruth's apartment after she was injured and almost an hour before he called 911 for help. But the time stamp was inaccurate—and for purposes of this appeal, we must assume that Benner knew it. A phone expert at the police department had analyzed the records and told Benner that the call had been routed through a cell tower in Chicago, where it was one hour earlier. Thus, despite the 2:40 p.m. time stamp, the call had been placed at 3:40 p.m. Indianapolis time. It was the call that Rainsberger had made to Robert just after he found Ruth and called 911. Benner chose to use the inaccurate and incriminating time in his affidavit. The Kroger video. Rainsberger had stopped at Kroger to buy an iced tea before going to Ruth's apartment on the day of the murder. In the probable cause affidavit, Benner described surveillance video from Kroger that showed Rainsberger making a trip to a trash can. According to Benner, Rainsberger “appeared to pull out a straight object from his person which he placed in the garbage can.” But the district court observed that nothing on the video shows Rainsberger “ ‘pulling’ the object from anywhere.” Benner also claimed that “[a]s [Rainsberger] placed the object in the trash he appeared to look around for cameras.” But as the district court said, a reasonable jury could find that Benner deliberately mischaracterized Rainsberger's behavior, which does not appear furtive on the video. And after watching the video ourselves, we agree with Rainsberger that a reasonable jury could find that Benner intentionally misled the prosecutor and magistrate in yet another respect: by describing Rainsberger's trash as a “straight object.” That phrase was obviously designed to imply that Rainsberger disposed of the murder weapon, but the object that Rainsberger threw away looks far more like a soda can than a “straight object.”3 Viewed in Rainsberger's favor, the video depicts him carrying a small nondescript piece of trash through a parking lot and throwing it away near the entrance to the grocery store—in broad daylight and while other patrons are walking by. The evidence of burglary. Benner believed that Ruth's attacker was someone she knew rather than a thief. Consistent with that theory, Benner swore in the affidavit that nothing had been taken from the apartment. He noted that there was no sign of forced entry; that cash, a checkbook, and credit cards were still in the apartment; and that things were undisturbed apart from a few open drawers. But the district court concluded that a jury *647 could find that Benner intentionally misled the prosecutor and magistrate in two respects. First, he failed to tell them that Ruth's purse and prescription medication were missing. Second, he stated that a lockbox containing savings bonds was untouched and in plain view, even though the lockbox was neither in plain view nor a repository of savings bonds. Rainsberger's concern for his mother. Benner described Rainsberger as lacking concern for his mother. He stated that after Rainsberger called 911, he “went outside to wait for the ambulance” and “left his mother unattended until the police arrived.” Benner conspicuously omitted Rainsberger's explanation for doing so—that he wanted to direct the ambulance to Ruth's apartment, which was hard to find. And continuing with this “callous son” theme, Benner asserted that when they were questioned on the day of the attack, “[a]t no time did Robert or his brother, Rainsberger, ever ask me how their mom was doing or if they could get to the hospital to see her.” Benner knew, however, that Rainsberger was receiving updates by text from his sister Rebecca, who was at the hospital, and that Rainsberger had expressed concern about how he would get to the hospital from the police station. The district court concluded that a reasonable jury could find that Benner intentionally misled the prosecutor and magistrate. The polygraph. Benner claimed in the affidavit that the Rainsberger children “stormed out” of the police station after he asked Rainsberger and Robert to take a polygraph test and that he did not hear from them again. According to the district court, a reasonable jury could agree with Rainsberger that Benner's description of the Rainsbergers’ departure was a lie, as was his claim that he didn't hear from them again. Before us, Benner insists that he is entitled to qualified immunity even if all of the disputed facts are true. Qualified immunity involves a two-pronged inquiry: (1) whether the facts, read in favor of the non-moving party, amount to a constitutional violation; and (2) whether the constitutional right was clearly established at the time of the alleged violation. McComas v. Brickley, 673 F.3d 722, 725 (7th Cir.2012). The officer wins if the answer to either question is “no.” Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir.2000). Courts often start with the second question, because if the law was not clearly established, there is no need to tackle the (often harder) question whether the challenged conduct violated the Constitution. See Pearson v. Callahan, 555 U.S. 223, 236–42, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). This case requires us to confront both issues, however, so we begin by analyzing whether Benner's alleged conduct violated Rainsberger's Fourth Amendment rights. A. 4 5 6 An officer violates the Fourth Amendment if he intentionally or recklessly includes false statements in a warrant application and those false statements were material to a finding of probable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir.2015). An officer similarly violates the Fourth Amendment if he intentionally or recklessly withholds material information from a probable cause affidavit. Whitlock v. Brown, 596 F.3d 406, 410–11 (7th Cir.2010). We use a straightforward method to determine whether the alleged lies or omissions are material: “We eliminate the alleged false statements, incorporate any allegedly omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish probable cause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir.2012). *648 With the lies stripped and the omissions added, Benner's case for probable cause boils down to this: Ruth's murderer might have been someone she knew, because the attack was not necessarily connected to a burglary. Some drawers had been opened and her purse and medication were missing; at the same time, there was no sign of a forced entry, and Ruth's checkbook, credit cards, and some cash were still in the apartment. Rainsberger had a key to her apartment, and cell phone records did not rule out the possibility that he was in the vicinity of her apartment complex when the attack happened. Shortly before he found his mother and called 911, Rainsberger stopped at a Kroger across the street from his mother's apartment to buy an iced tea. He walked in plain view through the Kroger parking lot carrying a piece of trash, which he threw away in a receptacle by a Redbox machine on his way into the store. He correctly described Ruth's injury as a blow to the head, even though he had not removed the blanket to see the wound. In contrast, the first responder, who did remove the blanket, initially thought that Ruth had been shot. Rainsberger and his two siblings would inherit about $33,000 apiece if his mother died. When Benner brought the Rainsberger children to the police station under false pretenses, Rainsberger and his brother refused Benner's request that they take a polygraph test. A week later, they voluntarily gave fingerprints and submitted to a DNA buccal swab. 7 8 9 As we have explained before, “probable cause is a common-sense inquiry requiring only a probability of criminal activity; it exists whenever an officer or a court has enough information to warrant a prudent person to believe criminal conduct has occurred.” Whitlock, 596 F.3d at 411. It does not require proof of a crime; it is about “the degree of suspicion that attaches to particular types of non-criminal acts.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Importantly, a probable cause inquiry does not take each fact in isolation; it depends on the totality of the circumstances. District of Columbia v. Wesby, ––– U.S. ––––, 138 S.Ct. 577, 588, 199 L.Ed.2d 453 (2018). Assessing the hypothetical affidavit therefore requires us to determine whether Rainsberger's behavior was suspicious enough that a prudent person aware of the full picture painted in the hypothetical affidavit could believe that Rainsberger murdered his mother. 10 A prudent person could not draw that conclusion on these facts. Many of them would be true of most children of aging parents: that Rainsberger had a key to her apartment, checked on her frequently, and stood (along with his siblings) to inherit whatever she left behind. These unremarkable facts would be reason to suspect Rainsberger only if other information cast them in a suspicious light. Benner sought that light with his theory that Ruth was murdered by someone she knew rather than a thief. Yet the evidence on that score was conflicting: while some valuables remained in the apartment, others were missing. Benner also suggested that Rainsberger's refusal to take a polygraph test reflected his consciousness of guilt. But that inference is weak, given that Benner had lured the Rainsberger children to the station with a lie and met them with a hostile demand for a polygraph test when they arrived. And the fact that Rainsberger tossed a piece of trash into a garbage can in broad daylight on his way into Kroger is neither here nor there. Without what a jury could reasonably consider to be a grossly misleading description of the surveillance video, this trip to a trash can certainly does not support the inference *649 that Rainsberger disposed of the murder weapon before going to Ruth's apartment. Benner's best argument for turning this package of facts into grounds for probable cause is that Rainsberger correctly described his mother as having been hit in the head even though he had not looked under the blanket. But this fact cannot carry the weight Benner needs it to. Rainsberger's statement was a reasonable inference from observable evidence; he walked into his mother's house, saw her lying on the floor and bleeding from her head, and concluded that someone had hit her over the head. The cause of her injury was not so difficult to discern that knowing it suggested inside knowledge. Indeed, the emergency personnel thought that the first responder's competing theory—that Ruth had been shot—was counterintuitive, given the lack of telltale blood splatter on the walls or ceiling. The totality of these circumstances supports nothing more than bare suspicion, and the Court has emphasized that probable cause requires more than that. See Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (probable cause “mean[s] more than bare suspicion”); Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) (“Under our system suspicion is not enough for an officer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d 404, 413 (7th Cir.2010) (“The officers must have more than a bare suspicion that they have the right guy ....”); Sherouse v. Ratchner, 573 F.3d 1055, 1062 (10th Cir.2009) (“Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest.”). If probable cause exists here, then anyone who experiences the tragedy of discovering a murdered family member—and who correctly assesses the cause of the injury and recently threw something away in a public trash can—can be arrested for murder. Probable cause is a low bar, but this evidence does not clear it. B. Benner tries to bolster the case for probable cause with inculpatory facts that he did not include in the affidavit. For example, he asserts that in his training and experience as a homicide detective, an attacker who covers his victim's head often has a personal relationship with the victim. He also says that in his experience, family members are typically eager to take polygraph tests so that the officer can get to work on finding the real culprit. According to Benner, this additional information can make up the difference if we think that the inculpatory evidence recited in the affidavit falls short. Benner recognizes that we have never incorporated inculpatory evidence into a hypothetical affidavit in a civil suit like this.4 But we have never expressly refused *650 to do so either, and he argues that now is the time for us to embrace this approach. After all, he says, we go outside the four corners of the affidavit to consider omitted exculpatory evidence, so why not do the same for omitted inculpatory evidence? He emphasizes that officers do not have an obligation to include every inculpatory detail in a probable cause affidavit and warns that if we decline to consider omitted inculpatory facts, officers will feel forced to recite every detail in an affidavit to bolster any later claim of qualified immunity. He maintains that this would be inefficient and burdensome, particularly when the timeline is tight. And he contends that this rule might prompt officers to forgo warrants altogether, because if they are sued for making a warrantless arrest, they can defend by drawing on all available facts—not merely those they chose to include in an affidavit—to demonstrate that probable cause existed. 11 12 Benner's argument is misguided. It assumes that this suit is about whether Benner violated the Fourth Amendment's prohibition on “unreasonable searches and seizures” by arresting Rainsberger without probable cause. But that is not the allegation here. Rainsberger has sued Benner for violating the Fourth Amendment's guarantee that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation ....” U.S. Const. amend. IV. The Warrant Clause is not merely a probable-cause guarantee. It is a guarantee that a warrant will not issue unless a neutral and disinterested magistrate independently decides that probable cause exists. Franks v. Delaware, 438 U.S. 154, 164, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search.”); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (“Its protection consists in requiring that [evidentiary] 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.”). A magistrate can assess only the information that she is given; therefore, in testing the validity of a warrant, we consider only evidence that the magistrate had.5 And “[i]f an affidavit is the only matter presented to the issuing magistrate ... the warrant must stand or fall solely on the contents of the affidavit.” United States v. Roth, 391 F.2d 507, 509 (1967); see also United States v. Orozco, 576 F.3d 745, 748 (7th Cir.2009) (“When, as here, an affidavit is the only evidence presented to a judge to support a search warrant, the ‘validity of the warrant rests solely on the strength of the affidavit.’ ” (citation omitted) ). Extrinsic evidence of guilt “cannot be used ... to augment an otherwise defective affidavit.” Roth, 391 F.2d at 509; see also *651 United States v. Harris, 464 F.3d 733, 739 (7th Cir.2006) (“Considering new information ... that supported a finding of probable cause was beyond the trial court's analytical reach. Rather, its consideration of new information omitted from the warrant affidavit should have been limited to facts that did not support a finding of probable cause.”). 13 Benner argues that a different rule should apply in a civil case to give the police officer greater protection when his individual liability is on the line. But the first prong of the qualified immunity analysis is not the one designed to specially protect the officer—that comes at the second prong, which limits the officer's liability to violations of clearly established law. In the first inquiry, we analyze whether the facts before us “make out a violation of a constitutional right.” Pearson, 555 U.S. at 232, 129 S.Ct. 808. And the Fourth Amendment is violated when the magistrate's probable-cause determination is made based on an affidavit that fails to establish probable cause, no matter what extra-affidavit information the officer had. Roth, 391 F.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while we have never addressed the issue that Benner raises, we have held that other aspects of Franks apply equally in civil and criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, 264–65 (7th Cir.1986) (holding that Franks’s requirement of a “substantial preliminary showing” that the officer deliberately misrepresented facts in a warrant affidavit applies in civil as well as criminal actions). There is no reason to follow a different course here. See id. (asserting that there is “no reason to apply a standard different than that established by Franks to a civil action for damages based on an allegation that a police officer deliberately misrepresented facts in a warrant affidavit”). 14 It bears emphasis that there is no lack of symmetry between our willingness to go beyond the affidavit to consider evidence of innocence while staying strictly within it for evidence of guilt. Both rules are designed to protect the integrity of the warrant process. Refusing to add inculpatory information to a hypothetical affidavit enforces the Warrant Clause's requirement that warrants issue based on the judgment of a neutral magistrate rather than that of an interested police officer. Adding exculpatory information to a hypothetical affidavit permits us to determine whether the officer distorted the magistrate's judgment by suppressing material evidence.6 An affidavit that misleads by lies or omission undercuts the magistrate's ability to make an independent probable cause determination. See Franks, 438 U.S. at 165, 98 S.Ct. 2674 (“Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” (citations omitted) ). It also vitiates the Clause's requirement that probable cause be supported by “Oath or affirmation.” As the Court has observed, this language demands a “truthful” showing “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Id. An officer who swears that presented *652 facts support probable cause when he knows that suppressed facts destroy it does not act truthfully. He therefore violates the Warrant Clause, which “surely takes the affiant's good faith as its premise.” Id. at 164, 98 S.Ct. 2674. In sum, Benner's argument that he could have obtained a valid warrant if he had proceeded differently is beside the point. A hypothetical affidavit is not designed to determine whether an officer could have satisfied the Warrant Clause; it is to determine whether he actually satisfied it. And Benner did not, at least if the disputed facts are resolved in Rainsberger's favor. III. 15 We now turn to the second prong of the qualified immunity analysis: whether it would have been “clear to a reasonable official that his or her conduct was unlawful in the situation.” Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir.2008). Benner argues that even if he violated Rainsberger's Fourth Amendment rights, the district court still wrongfully denied him qualified immunity. He concedes—as he must—that it violates clearly established law “to use deliberately falsified allegations to demonstrate probable cause.” Franks, 438 U.S. at 168, 98 S.Ct. 2674. Even so, Benner says, he is entitled to qualified immunity if the facts of the hypothetical affidavit demonstrate “arguable probable cause”—in other words, if a competent officer faced with the facts in the hypothetical affidavit could reasonably if mistakenly believe that those facts were sufficient to establish probable cause. Benner's argument takes some untangling, but its logic is this: (1) only material lies and omissions violate the Fourth Amendment, so the materiality of those lies and omissions must be clearly established; (2) the court evaluates materiality by determining whether a hypothetical affidavit would demonstrate probable cause; (3) if a competent officer reviewing the hypothetical affidavit could reasonably but mistakenly conclude that it established probable cause, then the materiality of the false or omitted information was not “clearly established.” 16 We have never applied the test that Benner proposes. There is a reason: it doesn't make sense. To begin with, Benner's framing has the proverbial reasonable officer facing a situation different from the one Benner did. Qualified immunity depends on whether it would have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wesby, 138 S.Ct. at 590 (emphasis added) (citation omitted). In other words, the court puts a competent officer in the defendant's shoes, facing the same choice that the defendant did. Benner did not face a choice about whether the facts in the hypothetical affidavit established probable cause. He faced a choice about whether to make false or misleading statements in the affidavit. (He has also been faulted for excluding exculpatory evidence, but that presents different issues that we'll get to below.) Thus, the relevant question is what a well-trained officer would have thought about the lawfulness of that action. What Benner is really arguing, then, is that he is entitled to qualified immunity if a well-trained officer could “reasonably but mistakenly conclude” that it was lawful to include an incriminating lie in an affidavit because the lie wasn't material to the probable cause determination. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). 17 Of course, a competent officer would not even entertain the question whether it was lawful for him to lie in a probable cause affidavit. The hypothetical officer in the qualified immunity analysis is *653 one who acts in good faith. That is what the standard of “objective reasonableness” is designed to capture. See Harlow v. Fitzgerald, 457 U.S. 800, 815–19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); cf. United States v. Leon, 468 U.S. 897, 922–23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (establishing the “good faith exception” to the exclusionary rule). Indeed, protecting officers who act in objective good faith is the justification for qualified immunity. Harlow, 457 U.S. at 815, 819 n.34, 102 S.Ct. 2727 (explaining that qualified immunity applies to suits “arising from actions within the scope of an official's duties and in objective good faith” (emphasis added) (internal quotation omitted) ). It would be flatly inconsistent with that justification to imagine a competent officer considering the question whether a lie helpful to demonstrating probable cause is so helpful that he should not tell it. That is neither a reasonable question to ask nor a reasonable mistake to make. Nonetheless, Benner maintains that we have previously embraced his approach. He seizes on a sentence in Betker v. Gomez, in which we asserted that “[a]n officer who knowingly or recklessly submitted an affidavit containing false statements may still get qualified immunity if he can establish that he had an objectively reasonable basis for believing the facts in the affidavit were sufficient to establish probable cause.” See 692 F.3d at 860. Taken out of context, this sentence superficially supports Benner's position that he is entitled to qualified immunity if the hypothetical affidavit establishes “arguable probable cause.” But his cherry-picking distorts what we actually said. In the very next sentence we explained: “But qualified immunity does not extend where an officer knowingly or recklessly made false statements and ‘no accurate information sufficient to constitute probable cause attended the false statements.’ ” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, 705 (7th Cir.2011) ). Our analysis then proceeded as we do here: we constructed a hypothetical affidavit, determined whether it established actual probable cause, and denied qualified immunity because “immunity does not extend ‘[w]here the judicial finding of probable cause is based solely on information the officer knew to be false or would have known was false had he not recklessly disregarded the truth.’ ” Id. (alteration in original) (quoting Olson v. Tyler, 771 F.2d 277, 282 (7th Cir.1985) ). We never asked, much less analyzed, whether the officer in Betker had made a reasonable mistake about the materiality of his lies. 18 To summarize: if an officer knowingly or recklessly includes false information in an affidavit and that information is not material, he will not be liable in a § 1983 action because the plaintiff will not be able to prove a constitutional violation. But if that information is material, the officer is not entitled to qualified immunity. The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly established ‘that a warrant request violates the Fourth Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements in requesting the warrant and the false statements were necessary to the determination that a warrant should issue.’ ” (citation omitted) ); Olson, 771 F.2d at 281 (“If an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, not only is his *654 conduct the active cause of the illegal arrest, but he cannot be said to have acted in an objectively reasonable manner.”). And the plaintiff need not show that the materiality of the lie would have been clear to a competent officer. The qualified immunity analysis uses the perspective of an officer acting in good faith, and an officer acting in good faith would not entertain that question. 19 20 An officer sued for failing to include materially exculpatory facts in a probable cause affidavit is differently situated. It violates clearly established law to “intentionally or recklessly withhold material information from a warrant application.” Whitlock, 596 F.3d at 408. But while a competent officer would not ask whether the Fourth Amendment permits him to tell a particular lie, a competent officer would—indeed, must—consider whether the Fourth Amendment obligates him to disclose particular evidence. Because an officer acting in good faith could make a reasonable mistake about his disclosure obligation, the materiality of omitted facts, unlike the materiality of false statements, is properly part of the qualified-immunity analysis. We have repeatedly held, therefore, that an officer violates the Fourth Amendment by omission only if “it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination.” See Leaver v. Shortess, 844 F.3d 665, 669 (7th Cir.2016); see also Olson v. Tyler, 825 F.2d 1116, 1121 (7th Cir.1987) (“[O]nly where a reasonable officer can conclude that a withheld fact is irrelevant to probable cause should such an officer who withholds a known (or recklessly disregarded) fact be protected with qualified immunity.”). Whitlock provides an illustration. See 596 F.3d 406. There, campers picked up apparently abandoned bags in an Indiana state park, intending to turn them in to park authorities so that the property could be returned to its rightful owner. Id. at 408–09. But they forgot for several hours, the bags were reported stolen, and the campers were arrested for criminal conversion. Id. at 409. They sued the officer who obtained the warrant, alleging that he withheld a material fact by failing to include the campers’ innocent explanation for taking the bags in his probable cause affidavit. Id. at 410. We held that the officer was entitled to qualified immunity. Because Indiana law on criminal conversion was undeveloped, a reasonable officer would not necessarily have known that the campers’ explanation for taking the bags was material to the probable cause determination. Id. at 413. A well-trained officer could make a reasonable mistake about whether a given fact would negate probable cause. Here, Benner has not argued that it would have been unclear to a reasonable officer that any of the information that he omitted was material to the probable cause determination. Thus, we need not address whether he made any reasonable mistakes in that regard.

Barrett

majority

William Rainsberger was charged with murdering his elderly mother. But the detective who built the case against him, Charles Benner, may have been dishonest. According to Rainsberger, Benner submitted a probable cause affidavit that was riddled with lies and undercut by the omission of exculpatory evidence. Based on that affidavit, Rainsberger was arrested, charged, and imprisoned for two months. When the prosecutor dismissed the case because of evidentiary problems, Rainsberger sued Benner under for violating his Fourth Amendment rights. Benner moved for summary judgment, arguing that he was entitled to qualified immunity. The district court denied his motion, and he now asks us to reverse the district court. We decline to do so. Benner concedes for purposes of this appeal that he knowingly *643 or recklessly made false statements in the probable cause affidavit. He emphasizes, however, that knowingly or recklessly misleading the magistrate in a probable cause affidavit—whether by omissions or outright lies—only violates the Fourth Amendment if the omissions and lies were material to probable cause. He claims that his weren't, but we disagree. Materiality depends on whether the affidavit demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in. And when that is done here, Benner's affidavit fails to establish probable cause to believe that Rainsberger murdered his mother. Because it is clearly established that it violates the Fourth Amendment “to use deliberately falsified allegations to demonstrate probable cause,” Benner is not entitled to qualified immunity. I. 1 2 We start with an issue that affects both appellate jurisdiction and our rendition of the facts. This is an appeal from the district court's order denying Benner's motion for summary judgment on the ground of qualified immunity. In the normal course, we lack jurisdiction to review an order denying summary judgment because it is not a “final decision” under See (7th Cir.2013). But because “qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct,” the denial of qualified immunity is an appealable interlocutory decision—at least insofar as it turns exclusively on a question of law, That qualification is significant: because our authority extends only to questions of law, an officer can obtain interlocutory review only if he refrains from contesting any fact that a reasonable jury could resolve against him. See (7th Cir.2011) (“In a collateral-order appeal, where the defendants say that they accept the plaintiff's version of the facts, we will take them at their word and consider their legal arguments in that light. If, however, we detect a back-door effort to contest the facts, we will reject it and dismiss the appeal for want of jurisdiction.”). Benner does so here. For purposes of this appeal, he accepts as true Rainsberger's version of all facts that are in material dispute—most significantly, that he knowingly or recklessly made false or misleading statements in the affidavit that secured Rainsberger's arrest. In what follows, then, we recount the facts that we must take as true, drawing all inferences in Rainsberger's favor. The legal question that we must decide is whether Benner is entitled to qualified immunity on these facts. A. Rainsberger was the primary caregiver for his mother, Ruth, who was 88 years old and suffering from dementia.1 Ruth lived alone in an apartment in a high-crime area; Rainsberger lived nearby. He checked on her daily, did her grocery shopping, and handled her finances. His siblings Robert and Rebecca also helped care for Ruth, although they saw her less frequently. *644 At approximately 3:30 p.m. on November 19, 2013, Rainsberger went to Ruth's apartment and found the door unlocked. When he entered, he discovered Ruth lying facedown on the floor with a blanket covering her shoulders and head. She was breathing, but with difficulty. There was a large circle of dried blood on the blanket and a pool of congealed blood on the floor. Rainsberger did not remove the blanket because he believed that it was acting as a bandage, and he feared that the bleeding would increase if he pulled it off. Rainsberger called 911 from his mother's landline at 3:37 p.m. He told the operator that someone had “bashed [his mother's] head in.” He then called his brother Robert and told him to come to the apartment immediately. Rainsberger waited outside for the ambulance because Ruth's apartment was difficult to locate within the complex. When paramedic Carl Wooldridge arrived, Rainsberger told him that someone had “caved his mother's head in.” Wooldridge observed that the blanket covering Ruth's head appeared to be stuck to a wound. He noticed “somewhat of a hole in [the blanket] where the wound was,” and when he peeled the blanket off, “there was a mark on her forehead that [he] believed to be an entrance wound.” Based on those observations, Wooldridge told fire and ambulance personnel that Ruth had been shot—a conclusion that the emergency personnel thought odd, given the lack of blood splatter on the walls or ceiling. As it turned out, Rainsberger, not Wooldridge, had it right: Ruth died of blunt force trauma to the head. Wooldridge later told Charles Benner, the detective investigating the murder, that he found it suspicious that Rainsberger said that his mother's head had been caved in even though he had not removed the blanket to look at her injuries. Benner came to Ruth's apartment roughly 40 minutes after Rainsberger placed the 911 call. There was no sign of forced entry, and while some dresser drawers in Ruth's bedroom were open, their contents were undisturbed. Ruth's checkbook, credit cards, and some cash were found in the apartment. Her purse and prescription medication were not. Rainsberger and Robert, who had since arrived, voluntarily went to police headquarters to give statements to Benner. Rainsberger said that he had last seen his mother the previous evening. After visiting her, he drove to Plainfield, which is roughly 25 miles away, to spend the evening with his wife. He returned to his house the next morning, where he stayed until around 3:30 p.m. He then left home to check on his mother, stopping at Kroger on the way to buy an iced tea. He told Benner that Ruth's apartment was unlocked when he arrived and that he found her lying wounded on the floor. He checked the apartment for intruders and, finding none, called 911. Rainsberger informed Benner that his mother was not physically able to stand up and see through the peephole, so she typically had to open the door to see who was there. And Rainsberger said that Ruth had $80,000 to $100,000 in savings that would be distributed to her three children upon her death. Robert told Benner that he had not seen Ruth for a few days. He said that he had been at Rainsberger's house when Rainsberger called to tell him to come to Ruth's apartment immediately. He explained that he had been living with Rainsberger for a few months because he had lost his own home to foreclosure. Benner talked to Rainsberger's sister Rebecca the next day. Rebecca told Benner that she typically checked on her mother once a week and had last seen her *645 the day before the attack. Sometime after his call with Rebecca, Benner asked the three siblings to come to the station to review the results of Ruth's autopsy. When they got there, however, Benner did not talk about the autopsy. Instead, he accused Rainsberger and Robert of murdering their mother for her money and asked them to take a polygraph. Upset at the accusation and at being lured to the station under false pretenses, they refused and left. Roughly a week later, after obtaining counsel to represent them, both Rainsberger and Robert agreed to go to the station to give fingerprints and submit to a DNA buccal swab. Benner did not wait for the results of the DNA tests before seeking to have Rainsberger arrested and charged. In early December 2013, Benner submitted a probable cause affidavit to the Marion County prosecutor. But the prosecutor declined to pursue it, and Benner went back to find more evidence. Benner hoped that the results of the DNA tests would make his case against Rainsberger. In March 20, he noted in an email to a colleague that “[t]he victim's sons are the suspects in this case and I am waiting for DNA results before any arrest may be made.” But when the laboratory report came out in April 20, it did not implicate Rainsberger—the DNA of two males was found on Ruth's blanket and clothing, but neither Rainsberger nor Robert was a match. Benner took that result in stride. Although the DNA test did not incriminate Rainsberger, Benner did not think that it exonerated him either. (The same, of course, was true of Robert, but Benner was focused on Rainsberger.) Benner reasoned that the unknown male DNA on Ruth's blanket and clothing might have been left by emergency personnel rather than the killer. In May 20, Benner went to the prosecutor with a second probable cause affidavit that was almost identical to the first. The second affidavit did not disclose the results of the DNA test. But it added two pieces of evidence that Benner had acquired since he presented the prosecutor with the first affidavit. First, Benner used cell phone records to suggest that Rainsberger had called Robert from Ruth's apartment at 2:40 p.m.—hours after Ruth was attacked and a little more than an hour before Rainsberger called 911. Second, he stated that cell phone tower location data could not place Rainsberger outside the area of his mother's apartment during the relevant period. After receiving the second probable cause affidavit, the prosecutor went to Marion County Court and obtained a warrant for Rainsberger's arrest. Rainsberger was charged with his mother's murder and spent two months in jail before he was released on bail. The prosecutor dismissed the case a year later because of evidentiary problems. B. After the charges were dropped, Rainsberger sued Benner under alleging that Benner had violated his Fourth Amendment rights. Benner moved for summary judgment on the basis of qualified immunity, but the district court denied the motion. It decided that a reasonable jury could find that Benner knowingly or with reckless disregard for the truth made false or misleading statements in the affidavit. Probable cause did not exist without the false or misleading statements, the district court said, and because an officer who submits a materially misleading probable cause affidavit violates clearly established Fourth Amendment law, it denied Benner qualified immunity. The district court's order turned *646 on the following omissions and alleged lies.2 The phone records. The most damning addition to the second probable cause affidavit was the suggestion that Rainsberger called Robert's cell phone from Ruth's landline at 2:40 p.m. on November 19. This placed Rainsberger at Ruth's apartment after she was injured and almost an hour before he called 911 for help. But the time stamp was inaccurate—and for purposes of this appeal, we must assume that Benner knew it. A phone expert at the police department had analyzed the records and told Benner that the call had been routed through a cell tower in Chicago, where it was one hour earlier. Thus, despite the 2:40 p.m. time stamp, the call had been placed at 3:40 p.m. Indianapolis time. It was the call that Rainsberger had made to Robert just after he found Ruth and called 911. Benner chose to use the inaccurate and incriminating time in his affidavit. The Kroger video. Rainsberger had stopped at Kroger to buy an iced tea before going to Ruth's apartment on the day of the murder. In the probable cause affidavit, Benner described surveillance video from Kroger that showed Rainsberger making a trip to a trash can. According to Benner, Rainsberger “appeared to pull out a straight object from his person which he placed in the garbage can.” But the district court observed that nothing on the video shows Rainsberger “ ‘pulling’ the object from anywhere.” Benner also claimed that “[a]s [Rainsberger] placed the object in the trash he appeared to look around for cameras.” But as the district court said, a reasonable jury could find that Benner deliberately mischaracterized Rainsberger's behavior, which does not appear furtive on the video. And after watching the video ourselves, we agree with Rainsberger that a reasonable jury could find that Benner intentionally misled the prosecutor and magistrate in yet another respect: by describing Rainsberger's trash as a “straight object.” That phrase was obviously designed to imply that Rainsberger disposed of the murder weapon, but the object that Rainsberger threw away looks far more like a soda can than a “straight object.”3 Viewed in Rainsberger's favor, the video depicts him carrying a small nondescript piece of trash through a parking lot and throwing it away near the entrance to the grocery store—in broad daylight and while other patrons are walking by. The evidence of burglary. Benner believed that Ruth's attacker was someone she knew rather than a thief. Consistent with that theory, Benner swore in the affidavit that nothing had been taken from the apartment. He noted that there was no sign of forced entry; that cash, a checkbook, and credit cards were still in the apartment; and that things were undisturbed apart from a few open drawers. But the district court concluded that a jury *647 could find that Benner intentionally misled the prosecutor and magistrate in two respects. First, he failed to tell them that Ruth's purse and prescription medication were missing. Second, he stated that a lockbox containing savings bonds was untouched and in plain view, even though the lockbox was neither in plain view nor a repository of savings bonds. Rainsberger's concern for his mother. Benner described Rainsberger as lacking concern for his mother. He stated that after Rainsberger called 911, he “went outside to wait for the ambulance” and “left his mother unattended until the police arrived.” Benner conspicuously omitted Rainsberger's explanation for doing so—that he wanted to direct the ambulance to Ruth's apartment, which was hard to find. And continuing with this “callous son” theme, Benner asserted that when they were questioned on the day of the attack, “[a]t no time did Robert or his brother, Rainsberger, ever ask me how their mom was doing or if they could get to the hospital to see her.” Benner knew, however, that Rainsberger was receiving updates by text from his sister Rebecca, who was at the hospital, and that Rainsberger had expressed concern about how he would get to the hospital from the police station. The district court concluded that a reasonable jury could find that Benner intentionally misled the prosecutor and magistrate. The polygraph. Benner claimed in the affidavit that the Rainsberger children “stormed out” of the police station after he asked Rainsberger and Robert to take a polygraph test and that he did not hear from them again. According to the district court, a reasonable jury could agree with Rainsberger that Benner's description of the Rainsbergers’ departure was a lie, as was his claim that he didn't hear from them again. Before us, Benner insists that he is entitled to qualified immunity even if all of the disputed facts are true. Qualified immunity involves a two-pronged inquiry: (1) whether the facts, read in favor of the non-moving party, amount to a constitutional violation; and (2) whether the constitutional right was clearly established at the time of the alleged violation. (7th Cir.2012). The officer wins if the answer to either question is “no.” (7th Cir.2000). Courts often start with the second question, because if the law was not clearly established, there is no need to tackle the (often harder) question whether the challenged conduct violated the Constitution. See This case requires us to confront both issues, however, so we begin by analyzing whether Benner's alleged conduct violated Rainsberger's Fourth Amendment rights. A. 4 5 6 An officer violates the Fourth Amendment if he intentionally or recklessly includes false statements in a warrant application and those false statements were material to a finding of probable cause. (7th Cir.2015). An officer similarly violates the Fourth Amendment if he intentionally or recklessly withholds material information from a probable cause affidavit. 410–11 (7th Cir.2010). We use a straightforward method to determine whether the alleged lies or omissions are material: “We eliminate the alleged false statements, incorporate any allegedly omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish probable cause.” (7th Cir.2012). *648 With the lies stripped and the omissions added, Benner's case for probable cause boils down to this: Ruth's murderer might have been someone she knew, because the attack was not necessarily connected to a burglary. Some drawers had been opened and her purse and medication were missing; at the same time, there was no sign of a forced entry, and Ruth's checkbook, credit cards, and some cash were still in the apartment. Rainsberger had a key to her apartment, and cell phone records did not rule out the possibility that he was in the vicinity of her apartment complex when the attack happened. Shortly before he found his mother and called 911, Rainsberger stopped at a Kroger across the street from his mother's apartment to buy an iced tea. He walked in plain view through the Kroger parking lot carrying a piece of trash, which he threw away in a receptacle by a Redbox machine on his way into the store. He correctly described Ruth's injury as a blow to the head, even though he had not removed the blanket to see the wound. In contrast, the first responder, who did remove the blanket, initially thought that Ruth had been shot. Rainsberger and his two siblings would inherit about $33,000 apiece if his mother died. When Benner brought the Rainsberger children to the police station under false pretenses, Rainsberger and his brother refused Benner's request that they take a polygraph test. A week later, they voluntarily gave fingerprints and submitted to a DNA buccal swab. 7 8 9 As we have explained before, “probable cause is a common-sense inquiry requiring only a probability of criminal activity; it exists whenever an officer or a court has enough information to warrant a prudent person to believe criminal conduct has occurred.” It does not require proof of a crime; it is about “the degree of suspicion that attaches to particular types of non-criminal acts.” 243 n.13, 76 L.Ed.2d Importantly, a probable cause inquiry does not take each fact in isolation; it depends on the totality of the circumstances. District of Assessing the hypothetical affidavit therefore requires us to determine whether Rainsberger's behavior was suspicious enough that a prudent person aware of the full picture painted in the hypothetical affidavit could believe that Rainsberger murdered his mother. 10 A prudent person could not draw that conclusion on these facts. Many of them would be true of most children of aging parents: that Rainsberger had a key to her apartment, checked on her frequently, and stood (along with his siblings) to inherit whatever she left behind. These unremarkable facts would be reason to suspect Rainsberger only if other information cast them in a suspicious light. Benner sought that light with his theory that Ruth was murdered by someone she knew rather than a thief. Yet the evidence on that score was conflicting: while some valuables remained in the apartment, others were missing. Benner also suggested that Rainsberger's refusal to take a polygraph test reflected his consciousness of guilt. But that inference is weak, given that Benner had lured the Rainsberger children to the station with a lie and met them with a hostile demand for a polygraph test when they arrived. And the fact that Rainsberger tossed a piece of trash into a garbage can in broad daylight on his way into Kroger is neither here nor there. Without what a jury could reasonably consider to be a grossly misleading description of the surveillance video, this trip to a trash can certainly does not support the inference *649 that Rainsberger disposed of the murder weapon before going to Ruth's apartment. Benner's best argument for turning this package of facts into grounds for probable cause is that Rainsberger correctly described his mother as having been hit in the head even though he had not looked under the blanket. But this fact cannot carry the weight Benner needs it to. Rainsberger's statement was a reasonable inference from observable evidence; he walked into his mother's house, saw her lying on the floor and bleeding from her head, and concluded that someone had hit her over the head. The cause of her injury was not so difficult to discern that knowing it suggested inside knowledge. Indeed, the emergency personnel thought that the first responder's competing theory—that Ruth had been shot—was counterintuitive, given the lack of telltale blood splatter on the walls or ceiling. The totality of these circumstances supports nothing more than bare suspicion, and the Court has emphasized that probable cause requires more than that. See ; 80 S.Ct. ; see also (7th Cir.2010) (“The officers must have more than a bare suspicion that they have the right guy”); (“Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest.”). If probable cause exists here, then anyone who experiences the tragedy of discovering a murdered family member—and who correctly assesses the cause of the injury and recently threw something away in a public trash can—can be arrested for murder. Probable cause is a low bar, but this evidence does not clear it. B. Benner tries to bolster the case for probable cause with inculpatory facts that he did not include in the affidavit. For example, he asserts that in his training and experience as a homicide detective, an attacker who covers his victim's head often has a personal relationship with the victim. He also says that in his experience, family members are typically eager to take polygraph tests so that the officer can get to work on finding the real culprit. According to Benner, this additional information can make up the difference if we think that the inculpatory evidence recited in the affidavit falls short. Benner recognizes that we have never incorporated inculpatory evidence into a hypothetical affidavit in a civil suit like this.4 But we have never expressly refused *650 to do so either, and he argues that now is the time for us to embrace this approach. After all, he says, we go outside the four corners of the affidavit to consider omitted exculpatory evidence, so why not do the same for omitted inculpatory evidence? He emphasizes that officers do not have an obligation to include every inculpatory detail in a probable cause affidavit and warns that if we decline to consider omitted inculpatory facts, officers will feel forced to recite every detail in an affidavit to bolster any later claim of qualified immunity. He maintains that this would be inefficient and burdensome, particularly when the timeline is tight. And he contends that this rule might prompt officers to forgo warrants altogether, because if they are sued for making a warrantless arrest, they can defend by drawing on all available facts—not merely those they chose to include in an affidavit—to demonstrate that probable cause existed. 11 12 Benner's argument is misguided. It assumes that this suit is about whether Benner violated the Fourth Amendment's prohibition on “unreasonable searches and seizures” by arresting Rainsberger without probable cause. But that is not the allegation here. Rainsberger has sued Benner for violating the Fourth Amendment's guarantee that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” U.S. Const. amend. IV. The Warrant Clause is not merely a probable-cause guarantee. It is a guarantee that a warrant will not issue unless a neutral and disinterested magistrate independently decides that probable cause exists. ; A magistrate can assess only the information that she is given; therefore, in testing the validity of a warrant, we consider only evidence that the magistrate had.5 And “[i]f an affidavit is the only matter presented to the issuing magistrate the warrant must stand or fall solely on the contents of the affidavit.” United ; see also United (“When, as here, an affidavit is the only evidence presented to a judge to support a search warrant, the ‘validity of the warrant rests solely on the strength of the affidavit.’ ” (citation omitted) ). Extrinsic evidence of guilt “cannot be used to augment an otherwise defective affidavit.” 391 F.2d at ; see also *651 United (7th Cir.2006) (“Considering new information that supported a finding of probable cause was beyond the trial court's analytical reach. Rather, its consideration of new information omitted from the warrant affidavit should have been limited to facts that did not support a finding of probable cause.”). 13 Benner argues that a different rule should apply in a civil case to give the police officer greater protection when his individual liability is on the line. But the first prong of the qualified immunity analysis is not the one designed to specially protect the officer—that comes at the second prong, which limits the officer's liability to violations of clearly established law. In the first inquiry, we analyze whether the facts before us “make out a violation of a constitutional right.” Pearson, And the Fourth Amendment is violated when the magistrate's probable-cause determination is made based on an affidavit that fails to establish probable cause, no matter what extra-affidavit information the officer had. 391 F.2d at ; see also 576 F.3d at Moreover, while we have never addressed the issue that Benner raises, we have held that other aspects of apply equally in civil and criminal cases. See 264–65 (holding that ’s requirement of a “substantial preliminary showing” that the officer deliberately misrepresented facts in a warrant affidavit applies in civil as well as criminal actions). There is no reason to follow a different course here. See It bears emphasis that there is no lack of symmetry between our willingness to go beyond the affidavit to consider evidence of innocence while staying strictly within it for evidence of guilt. Both rules are designed to protect the integrity of the warrant process. Refusing to add inculpatory information to a hypothetical affidavit enforces the Warrant Clause's requirement that warrants issue based on the judgment of a neutral magistrate rather than that of an interested police officer. Adding exculpatory information to a hypothetical affidavit permits us to determine whether the officer distorted the magistrate's judgment by suppressing material evidence.6 An affidavit that misleads by lies or omission undercuts the magistrate's ability to make an independent probable cause determination. See (“Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” (citations omitted) ). It also vitiates the Clause's requirement that probable cause be supported by “Oath or affirmation.” As the Court has observed, this language demands a “truthful” showing “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” An officer who swears that presented *652 facts support probable cause when he knows that suppressed facts destroy it does not act truthfully. He therefore violates the Warrant Clause, which “surely takes the affiant's good faith as its premise.” at In sum, Benner's argument that he could have obtained a valid warrant if he had proceeded differently is beside the point. A hypothetical affidavit is not designed to determine whether an officer could have satisfied the Warrant Clause; it is to determine whether he actually satisfied it. And Benner did not, at least if the disputed facts are resolved in Rainsberger's favor. III. 15 We now turn to the second prong of the qualified immunity analysis: whether it would have been “clear to a reasonable official that his or her conduct was unlawful in the situation.” (7th Cir.2008). Benner argues that even if he violated Rainsberger's Fourth Amendment rights, the district court still wrongfully denied him qualified immunity. He concedes—as he must—that it violates clearly established law “to use deliberately falsified allegations to demonstrate probable cause.” 438 U.S. at Even so, Benner says, he is entitled to qualified immunity if the facts of the hypothetical affidavit demonstrate “arguable probable cause”—in other words, if a competent officer faced with the facts in the hypothetical affidavit could reasonably if mistakenly believe that those facts were sufficient to establish probable cause. Benner's argument takes some untangling, but its logic is this: (1) only material lies and omissions violate the Fourth Amendment, so the materiality of those lies and omissions must be clearly established; (2) the court evaluates materiality by determining whether a hypothetical affidavit would demonstrate probable cause; (3) if a competent officer reviewing the hypothetical affidavit could reasonably but mistakenly conclude that it established probable cause, then the materiality of the false or omitted information was not “clearly established.” 16 We have never applied the test that Benner proposes. There is a reason: it doesn't make sense. To begin with, Benner's framing has the proverbial reasonable officer facing a situation different from the one Benner d Qualified immunity depends on whether it would have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wesby, (citation omitted). In other words, the court puts a competent officer in the defendant's shoes, facing the same choice that the defendant d Benner did not face a choice about whether the facts in the hypothetical affidavit established probable cause. He faced a choice about whether to make false or misleading statements in the affidavit. (He has also been faulted for excluding exculpatory evidence, but that presents different issues that we'll get to below.) Thus, the relevant question is what a well-trained officer would have thought about the lawfulness of that action. What Benner is really arguing, then, is that he is entitled to qualified immunity if a well-trained officer could “reasonably but mistakenly conclude” that it was lawful to include an incriminating lie in an affidavit because the lie wasn't material to the probable cause determination. See 17 Of course, a competent officer would not even entertain the question whether it was lawful for him to lie in a probable cause affidavit. The hypothetical officer in the qualified immunity analysis is *653 one who acts in good faith. That is what the standard of “objective reasonableness” is designed to capture. See ; ; cf. United 922–23, S.Ct. 3405, Indeed, protecting officers who act in objective good faith is the justification for qualified immunity. 819 n.34, (explaining that qualified immunity applies to suits “arising from actions within the scope of an official's duties and in objective good faith” (internal quotation omitted) ). It would be flatly inconsistent with that justification to imagine a competent officer considering the question whether a lie helpful to demonstrating probable cause is so helpful that he should not tell it. That is neither a reasonable question to ask nor a reasonable mistake to make. Nonetheless, Benner maintains that we have previously embraced his approach. He seizes on a sentence in in which we asserted that “[a]n officer who knowingly or recklessly submitted an affidavit containing false statements may still get qualified immunity if he can establish that he had an objectively reasonable basis for believing the facts in the affidavit were sufficient to establish probable cause.” See Taken out of context, this sentence superficially supports Benner's position that he is entitled to qualified immunity if the hypothetical affidavit establishes “arguable probable cause.” But his cherry-picking distorts what we actually sa In the very next sentence we explained: “But qualified immunity does not extend where an officer knowingly or recklessly made false statements and ‘no accurate information sufficient to constitute probable cause attended the false statements.’ ” (quoting (7th Cir.2011) ). Our analysis then proceeded as we do here: we constructed a hypothetical affidavit, determined whether it established actual probable cause, and denied qualified immunity because “immunity does not extend ‘[w]here the judicial finding of probable cause is based solely on information the officer knew to be false or would have known was false had he not recklessly disregarded the truth.’ ” ). We never asked, much less analyzed, whether the officer in Betker had made a reasonable mistake about the materiality of his lies. 18 To summarize: if an officer knowingly or recklessly includes false information in an affidavit and that information is not material, he will not be liable in a action because the plaintiff will not be able to prove a constitutional violation. But if that information is material, the officer is not entitled to qualified immunity. The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer. See, e.g., 637 F.3d at (“[I]t [i]s clearly established ‘that a warrant request violates the Fourth Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements in requesting the warrant and the false statements were necessary to the determination that a warrant should issue.’ ” (citation omitted) ); Olson, (“If an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, not only is his *654 conduct the active cause of the illegal arrest, but he cannot be said to have acted in an objectively reasonable manner.”). And the plaintiff need not show that the materiality of the lie would have been clear to a competent officer. The qualified immunity analysis uses the perspective of an officer acting in good faith, and an officer acting in good faith would not entertain that question. 19 20 An officer sued for failing to include materially exculpatory facts in a probable cause affidavit is differently situated. It violates clearly established law to “intentionally or recklessly withhold material information from a warrant application.” But while a competent officer would not ask whether the Fourth Amendment permits him to tell a particular lie, a competent officer would—indeed, must—consider whether the Fourth Amendment obligates him to disclose particular evidence. Because an officer acting in good faith could make a reasonable mistake about his disclosure obligation, the materiality of omitted facts, unlike the materiality of false statements, is properly part of the qualified-immunity analysis. We have repeatedly held, therefore, that an officer violates the Fourth Amendment by omission only if “it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination.” See (7th Cir.2016); see also (“[O]nly where a reasonable officer can conclude that a withheld fact is irrelevant to probable cause should such an officer who withholds a known (or recklessly disregarded) fact be protected with qualified immunity.”). provides an illustration. See There, campers picked up apparently abandoned bags in an Indiana state park, intending to turn them in to park authorities so that the property could be returned to its rightful owner. at 408–09. But they forgot for several hours, the bags were reported stolen, and the campers were arrested for criminal conversion. They sued the officer who obtained the warrant, alleging that he withheld a material fact by failing to include the campers’ innocent explanation for taking the bags in his probable cause affidavit. We held that the officer was entitled to qualified immunity. Because Indiana law on criminal conversion was undeveloped, a reasonable officer would not necessarily have known that the campers’ explanation for taking the bags was material to the probable cause determination. at A well-trained officer could make a reasonable mistake about whether a given fact would negate probable cause. Here, Benner has not argued that it would have been unclear to a reasonable officer that any of the information that he omitted was material to the probable cause determination. Thus, we need not address whether he made any reasonable mistakes in that regard.

Ruckelshaus v. Cowan

Elizabeth Ruckelshaus appeals the district court's determination that Indiana's statute of limitations bars her legal malpractice *643 claim. More than twenty years ago, she hired the defendants to help her and her brother, Thomas Ruckelshaus, access assets held in a trust that their father set up for their benefit. Ruckelshaus contends that she instructed the defendants to give her a future interest in her brother's share, subject to a life estate held by his wife. And she insists that she could not have known that the defendants failed to follow her wishes until her brother and his widow died. But if there was an error, Ruckelshaus had ample opportunity to discover it when the trust was dissolved and the funds were disbursed, so any claim accrued then. Because the time for asserting this claim is long past, we affirm the district court's judgment. I. Conrad Ruckelshaus, the father of Elizabeth Ruckelshaus and her brother Thomas, set up a trust for the benefit of his children. Conrad gave the siblings equal interests in the trust and provided that, if one of the siblings died without children, the other would receive the remainder of the deceased sibling's share. According to Elizabeth Ruckelshaus—who is the plaintiff in this case—Thomas approached her shortly after Conrad's death to ask if she would agree to modify the trust so that he might leave a portion of his share to his wife, Polly, upon his death. Ruckelshaus alleges that she orally agreed to modify the trust to give Polly a life estate in Thomas's share if he predeceased her. In 1998, Ruckelshaus retained the defendants to accomplish this goal. The retention letter prepared by the defendants stated that the purpose of the representation was to terminate the trust, but the letter made no mention of a life estate reserved for Polly or a subsequent remainder interest for Ruckelshaus. Nonetheless, Ruckelshaus signed the retention letter and the defendants drew up a settlement agreement to dissolve the trust. Like the retention letter, the settlement agreement did not mention Polly or a life estate, nor did it restrict what either sibling could do with the trust funds after the trust was terminated and the funds were disbursed. The settlement agreement contained a liability release and a clause stating that it was the only written or oral agreement among the parties. In 1999, the defendants sent Ruckelshaus the settlement agreement and the petition to dissolve the trust that would be filed in the probate court, both of which she signed. And in 2000, the probate court granted the petition, thereby dissolving the trust, and Ruckelshaus and Thomas each received more than a million dollars. Thomas died in 2009 without children of his own. It does not appear that Ruckelshaus read his will at the time or inquired into what remained of the former trust funds. Thomas's will devised his assets to Polly. And when Polly died in 2015, she left her estate to her children. When Ruckelshaus learned that no assets would pass to her, she initiated this suit in 2017 for malpractice against the attorneys who worked to dissolve the trust, alleging that they failed to carry out her instructions. The defendants moved for summary judgment and Ruckelshaus moved for partial summary judgment with respect to the defendants' affirmative defenses. The district court granted summary judgment for the defendants, holding that the applicable two-year Indiana statute of limitations began running no later than 2000, when the trust was dissolved, and that if Ruckelshaus had practiced ordinary diligence, she could have discovered then that her wishes had not been followed. It rejected Ruckelshaus's argument that she could not have known about the alleged malpractice until Polly died in 2015. Ruckelshaus appeals. *644 II. 1 2 3 4 The Indiana Code requires that tort actions “be commenced within two (2) years after the cause of action accrues.” Ind. Code § 34-11-2-4(a). At this stage of the case, the parties' dispute centers on when Ruckelshaus's malpractice claim accrued. For a legal malpractice claim to accrue in Indiana, “it is not necessary that the full extent of damage be known or even ascertainable, but only that some ascertainable damage has occurred.” Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App. 2016). Actions for malpractice “are subject to the ‘discovery rule’ ”; that rule “provides that the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another.” Id. (citation omitted). “Ordinary diligence” requires the injured party to “act with some promptness where the acts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Id. (citation omitted). Since this is an appeal from summary judgment, we review the district court's decision de novo with all facts construed in favor of the nonmovant. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673 (7th Cir. 2016). 5 Ruckelshaus received the documents detailing the dissolution and disbursement of the trust in 1999. Though she admits that she read the documents when she signed them, she nonetheless insists that she could not have known then that the defendants failed to follow her instructions. According to Ruckelshaus, she could not have discovered that her wishes had not been followed until Polly's death in 2015, when she received no remainder from the life estate that she believed she had created. And, to the extent that she could have discovered the problem when the trust was dissolved, she argues that a jury should decide whether she acted with ordinary diligence. 6 7 Ruckelshaus is correct that under Indiana law, the jury sorts out factual disputes that underlie statute of limitations issues. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1279 (Ind. 2009) (“When application of a statute of limitation rests on questions of fact, it is generally an issue for a jury to decide.”). But because the defendants have raised a statute-of-limitations defense, Ruckelshaus bears the burden of demonstrating that there exists a factual dispute “material to a theory that avoids the defense.” Myers, 51 N.E.3d at 1276. 8 Ruckelshaus has not carried that burden, because no reasonable jury could conclude that she exercised “ordinary diligence” and still failed to realize that the defendants had not created a trust with a life estate for Polly. First, Ruckelshaus signed the retention letter and trust dissolution documents, which stated that her father's trust was being dissolved and its assets disbursed free and clear. In Indiana, “a person is presumed to understand the documents which he signs.” Clanton v. United Skates of Am., 686 N.E.2d 896, 899–900 (Ind. Ct. App. 1997). Ruckelshaus read these documents when she signed them, and she should have realized then that the documents did not accomplish her goal. She did not need to wait for Polly's death to learn that she would get nothing—that was apparent from the documents themselves. If the documents did not accurately describe what Ruckelshaus asked her attorneys to accomplish, the time to object was no later than two years after those documents dissolved the trust. *645 Second, even putting the documents aside, Ruckelshaus should have been on notice that something was amiss when she received the disbursed trust funds. She and Thomas received the principal outright, which indicated that the trust had been dissolved. Thomas apparently understood that no trust or future interests controlled the funds from this disbursement because his will—which Ruckelshaus did not read until Polly's death—apparently did not reference a trust or otherwise acknowledge any restriction on the funds. Ruckelshaus should have discovered any error by the defendants long before Polly died in 2015. Because Indiana law requires plaintiffs to bring malpractice actions within two years of the action's accrual, Ruckelshaus's claims are barred. We AFFIRM the district court's judgment.

Barrett

majority

Elizabeth Ruckelshaus appeals the district court's determination that Indiana's statute of limitations bars her legal malpractice *643 claim. More than twenty years ago, she hired the defendants to help her and her brother, Thomas Ruckelshaus, access assets held in a trust that their father set up for their benefit. Ruckelshaus contends that she instructed the defendants to give her a future interest in her brother's share, subject to a life estate held by his wife. And she insists that she could not have known that the defendants failed to follow her wishes until her brother and his widow died. But if there was an error, Ruckelshaus had ample opportunity to discover it when the trust was dissolved and the funds were disbursed, so any claim accrued then. Because the time for asserting this claim is long past, we affirm the district court's judgment. I. Conrad Ruckelshaus, the father of Elizabeth Ruckelshaus and her brother Thomas, set up a trust for the benefit of his children. Conrad gave the siblings equal interests in the trust and provided that, if one of the siblings died without children, the other would receive the remainder of the deceased sibling's share. According to Elizabeth Ruckelshaus—who is the plaintiff in this case—Thomas approached her shortly after Conrad's death to ask if she would agree to modify the trust so that he might leave a portion of his share to his wife, Polly, upon his death. Ruckelshaus alleges that she orally agreed to modify the trust to give Polly a life estate in Thomas's share if he predeceased her. In 1998, Ruckelshaus retained the defendants to accomplish this goal. The retention letter prepared by the defendants stated that the purpose of the representation was to terminate the trust, but the letter made no mention of a life estate reserved for Polly or a subsequent remainder interest for Ruckelshaus. Nonetheless, Ruckelshaus signed the retention letter and the defendants drew up a settlement agreement to dissolve the trust. Like the retention letter, the settlement agreement did not mention Polly or a life estate, nor did it restrict what either sibling could do with the trust funds after the trust was terminated and the funds were disbursed. The settlement agreement contained a liability release and a clause stating that it was the only written or oral agreement among the parties. In 1999, the defendants sent Ruckelshaus the settlement agreement and the petition to dissolve the trust that would be filed in the probate court, both of which she signed. And in 2000, the probate court granted the petition, thereby dissolving the trust, and Ruckelshaus and Thomas each received more than a million dollars. Thomas died in 2009 without children of his own. It does not appear that Ruckelshaus read his will at the time or inquired into what remained of the former trust funds. Thomas's will devised his assets to Polly. And when Polly died in 2015, she left her estate to her children. When Ruckelshaus learned that no assets would pass to her, she initiated this suit in 2017 for malpractice against the attorneys who worked to dissolve the trust, alleging that they failed to carry out her instructions. The defendants moved for summary judgment and Ruckelshaus moved for partial summary judgment with respect to the defendants' affirmative defenses. The district court granted summary judgment for the defendants, holding that the applicable two-year Indiana statute of limitations began running no later than 2000, when the trust was dissolved, and that if Ruckelshaus had practiced ordinary diligence, she could have discovered then that her wishes had not been followed. It rejected Ruckelshaus's argument that she could not have known about the alleged malpractice until Polly died in 2015. Ruckelshaus appeals. *644 II. 1 2 3 4 The Indiana Code requires that tort actions “be commenced within two (2) years after the cause of action accrues.” (a). At this stage of the case, the parties' dispute centers on when Ruckelshaus's malpractice claim accrued. For a legal malpractice claim to accrue in Indiana, “it is not necessary that the full extent of damage be known or even ascertainable, but only that some ascertainable damage has occurred.” Actions for malpractice “are subject to the ‘discovery rule’ ”; that rule “provides that the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another.” “Ordinary diligence” requires the injured party to “act with some promptness where the acts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Since this is an appeal from summary judgment, we review the district court's decision de novo with all facts construed in favor of the nonmovant. 5 Ruckelshaus received the documents detailing the dissolution and disbursement of the trust in 1999. Though she admits that she read the documents when she signed them, she nonetheless insists that she could not have known then that the defendants failed to follow her instructions. According to Ruckelshaus, she could not have discovered that her wishes had not been followed until Polly's death in 2015, when she received no remainder from the life estate that she believed she had created. And, to the extent that she could have discovered the problem when the trust was dissolved, she argues that a jury should decide whether she acted with ordinary diligence. 6 7 Ruckelshaus is correct that under Indiana law, the jury sorts out factual disputes that underlie statute of limitations issues. Cooper Indus., But because the defendants have raised a statute-of-limitations defense, Ruckelshaus bears the burden of demonstrating that there exists a factual dispute “material to a theory that avoids the defense.” 51 N.E.3d at 8 Ruckelshaus has not carried that burden, because no reasonable jury could conclude that she exercised “ordinary diligence” and still failed to realize that the defendants had not created a trust with a life estate for Polly. First, Ruckelshaus signed the retention letter and trust dissolution documents, which stated that her father's trust was being dissolved and its assets disbursed free and clear. In Indiana, “a person is presumed to understand the documents which he signs.” Ruckelshaus read these documents when she signed them, and she should have realized then that the documents did not accomplish her goal. She did not need to wait for Polly's death to learn that she would get nothing—that was apparent from the documents themselves. If the documents did not accurately describe what Ruckelshaus asked her attorneys to accomplish, the time to object was no later than two years after those documents dissolved the trust. *645 Second, even putting the documents aside, Ruckelshaus should have been on notice that something was amiss when she received the disbursed trust funds. She and Thomas received the principal outright, which indicated that the trust had been dissolved. Thomas apparently understood that no trust or future interests controlled the funds from this disbursement because his will—which Ruckelshaus did not read until Polly's death—apparently did not reference a trust or otherwise acknowledge any restriction on the funds. Ruckelshaus should have discovered any error by the defendants long before Polly died in 2015. Because Indiana law requires plaintiffs to bring malpractice actions within two years of the action's accrual, Ruckelshaus's claims are barred. We AFFIRM the district court's judgment.

Ruderman v. Whitaker

Aleksey Arkadyevich Ruderman is seeking to avoid removal to Belarus, his native country. An immigration judge ruled that Ruderman was inadmissible under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B), and thus subject to removal. The judge also held that Ruderman was not eligible for a waiver of inadmissibility and adjustment of status, cancellation of removal, asylum, withholding of removal, or protection under the Convention Against Torture. The Board of Immigration Appeals agreed. In particular, it held that Ruderman had not raised any meaningful challenge to his inadmissibility determination and that even if the immigration judge had applied the wrong legal standard to determine that Ruderman was ineligible for a waiver of inadmissibility, her alternative discretionary denial made the error harmless. Ruderman petitions us for review of those holdings, along with others reached by the immigration judge and affirmed by the Board. While we largely agree with the Board’s analysis, we hold that it was flawed with respect to one issue: the question whether Ruderman is statutorily inadmissible. We therefore grant Ruderman’s petition and remand for the Board to revisit that question and, if necessary, to decide whether Ruderman is eligible for a waiver. I. Ruderman moved to the United States when he was nineteen to escape discrimination and violence directed at him on account of his Jewish heritage. He moved from his native land of Belarus, a former Soviet republic that declared independence during his childhood. In Belarus, Ruderman and his family were targeted for abuse by Neo-Nazis and pro-Russia advocates who would shout profanities at them, perform the Nazi salute, leave anti-Jewish propaganda in their mailbox, and throw bottles and stones at their home. Ruderman received even worse treatment at school. His (sometimes much older) classmates would bully and beat him and the handful of other Jewish students. The head of the school and the police were alerted but did nothing to address the situation. One particularly severe attack resulted in stitches and a permanent scar, while another resulted in two broken wrists that have bothered him ever since. After attackers broke Ruderman’s wrists, his parents sent him to a private school where he would be safer. His time there was cut short, however, by his father’s death. Arkady Ruderman, a documentary filmmaker, died while filming a piece on government corruption in Tajikistan—another *570 former Soviet republic. Although government officials reported that he was killed in a car accident, Arkady had previously been detained and battered by the KGB, and eyewitnesses said that they saw bullet holes in his dead body. Those reports could not be confirmed because the police ordered that Arkady’s casket remain closed at his funeral—and then attended the event to make sure that it did. Without Arkady’s income, Ruderman’s family could no longer afford his private school tuition, so Ruderman enrolled at a different public school where he was subjected to familiar anti-Semitic verbal abuse. He became so afraid that in the ninth grade he stopped attending classes entirely and later transferred to a technical school. There, in spite of continued verbal abuse, he performed well and graduated with high grades. Once out of school, however, he found that his Jewish heritage made it difficult for him to get a job. Fed up with the abuse and intolerance, Ruderman fled to the United States in 2001 under a provision known as the Lautenberg Amendment, which lowers barriers to immigration for certain former soviet nationals. See Pub. L. No. 101-167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified as amended at 8 U.S.C. § 1157 note, § 1255 note). His life in America got off to a rocky start; shortly after arriving he was convicted of driving under the influence of alcohol and sentenced to court supervision. But over the next several years, he found work as a cab driver and a security officer, met his future wife Elena, and moved into an apartment with her and her two children in Milwaukee. In 2008, Ruderman struck and killed a pedestrian with his vehicle while driving drunk. He accepted responsibility, pleaded guilty to homicide by negligent operation of a vehicle, and was convicted and sentenced to five years in prison. Following his release in 2013, he worked at a transportation company—until U.S. Customs and Immigration Services denied his adjustment-of-status application, causing his work permit to expire. In January of 2016, the government detained Ruderman and began removal proceedings. The immigration judge ultimately concluded that Ruderman was statutorily inadmissible because of his two convictions. The judge also denied Ruderman’s applications for a waiver of inadmissibility, adjustment of status under the Lautenberg Amendment, cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. Ruderman appealed the immigration judge’s decision in an extensive pro se brief and later in a second brief filed by pro bono counsel. The counseled brief supplemented certain arguments that Ruderman had made in his initial brief but conceded others. Significantly, the later brief conceded that “[Ruderman’s] convictions for two crimes with an aggregate prison sentence of five years make him ‘inadmissible.’ ” That concession contradicted Ruderman’s pro se argument that the inadmissibility statute applies only when two or more convictions each result in a sentence to confinement, and so Ruderman’s sole sentence to confinement—which imposed five years in prison—did not make him inadmissible. The Board dismissed Ruderman’s appeal. First, it noted in passing that Ruderman “ha[d] not raised any meaningful challenges” to his inadmissibility, and thus the issue was “waived.” Second, the Board adopted and affirmed the immigration judge’s denial of Ruderman’s applications for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. Finally, the Board *571 affirmed the denial of Ruderman’s request for a waiver of inadmissibility and adjustment of status under the Lautenberg Amendment. The Board bypassed Ruderman’s argument that the immigration judge had applied the wrong standard to determine whether Ruderman was eligible for a waiver of inadmissibility and instead affirmed the judge’s conclusion that, even if Ruderman were eligible to be considered for a waiver, she would exercise her discretion to deny him relief. II. Ruderman petitions us for review of the Board’s decision. He takes issue with the Board’s conclusion that he waived his opportunity to challenge his inadmissibility, and he argues that the application of the wrong standard for determining his eligibility for a waiver of inadmissibility contaminated the immigration judge’s discretionary denial of a waiver. He also claims that the judge erred by holding—and the Board erred by affirming—both that his negligent homicide was “particularly serious” and that he failed to show a “substantial risk” that he would be tortured in Belarus. Because the Board provided its own analysis and also affirmed the immigration judge’s decision, we review both decisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). A. Ruderman argued in his pro se brief that he is not inadmissible under § 212(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever received one sentence to confinement. The Act states that an immigrant is inadmissible to receive a visa or to be admitted to the United States if he is convicted of “2 or more offenses ... for which the aggregate sentences to confinement were 5 years or more.” Id. Ruderman interprets “sentences to confinement” to require more than one custodial sentence. He supports this reading by pointing to the word “aggregate,” which he argues would be superfluous if the statute could be satisfied by a single sentence to confinement. Id. Because his first conviction—for driving under the influence—did not result in confinement, he concludes that he is not inadmissible. His pro bono counsel, however, conceded Ruderman’s inadmissibility in a later-filed brief. The Board did not address Ruderman’s inadmissibility argument, instead concluding that he had failed to raise any meaningful challenges to his inadmissibility and so had waived the issue. It appears likely that the Board reached that conclusion on the basis of Ruderman’s counsel’s concession, because Ruderman did raise the argument in several places—including his notice of appeal and pro se brief, both of which remained on the record. But the Board’s opinion did not otherwise indicate whether the counseled brief superseded the pro se brief. 1 A later-in-time concession waives an issue in federal court—but we do not know whether that is true before the Board as well. On this record it is unclear why the Board concluded that Ruderman waived his challenge, and the Board’s failure to explain inhibits our review of the issue. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more *572 adequate or proper basis.”). We grant Ruderman’s petition and remand this issue to the Board to clarify why it did not address Ruderman’s inadmissibility argument. B. 2 If on remand the Board confirms that Ruderman is inadmissible, his application for a waiver of inadmissibility should be reviewed under the correct legal standard. The immigration judge concluded that Ruderman was statutorily ineligible for a waiver because he did not show that his removal would cause “extreme hardship” to his U.S.-citizen wife. 8 U.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction with an application for a status adjustment under the Lautenberg Amendment, however, there is no threshold eligibility requirement; a waiver may be granted simply “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. § 1245.7(d). The immigration judge erred by not considering Ruderman’s application under this less stringent standard. 3 The Board concluded that this error was harmless because the immigration judge held in the alternative that she would exercise her discretion to deny Ruderman relief if he were eligible to be considered for it. The assumption seems to be that the judge would have made the same discretionary denial of a waiver under the Lautenberg Amendment as she made under § 1182(h). But, as we have already noted, the former provides discretion to grant a waiver for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest; the latter entails a potentially more complex consideration of the ground for exclusion at issue, past immigration violations or criminal history, evidence of rehabilitation, general evidence of good or bad character, strength of family ties, duration of residence in the United States, and evidence of value to the community. See In re Mendez-Moralez, 21 I. & N. Dec. 296, 301 (BIA 1996). Because these statutes, along with the cases and regulations interpreting them, articulate distinct factors to be considered in deciding whether to grant a discretionary waiver of inadmissibility, the Board cannot simply substitute one standard for another and assume that the outcome would be the same. If the Board confirms Ruderman’s inadmissibility on remand, it should consider his application for a waiver under the proper framework. C. Ruderman’s other arguments go nowhere. First, he claims that he is eligible for asylum and withholding of removal because he did not commit a “particularly serious crime.” 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman committed homicide by negligent operation of a vehicle, Wis. Stat. § 940.10(1); he argues that Congress did not intend for criminal negligence like his to qualify as particularly serious. Generally, classification of a crime as “particularly serious” is within the discretion of the Attorney General—exercised here by the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006). Our review of these classifications is confined to constitutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Estrada-Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And when those legal questions implicate ambiguous statutory provisions, we give deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 4 We considered the meaning of “particularly serious crime” in some depth in *573 Ali v. Achim, 468 F.3d 462 (7th Cir. 2006). In that case, the petitioner argued that the Board could not hold that his conviction for “substantial battery with a dangerous weapon,” a nonaggravated felony, was a particularly serious crime under § 1158(b)(2) and § 1231(b)(3) because it did not fall within the two categories of crimes identified as per se “particularly serious” in § 1158(b)(2): aggravated felonies and other crimes that the Attorney General designates by regulation. Id. at 468–69. We disagreed, explaining that the presence of these categories does not cabin the Board’s discretion to determine that nonaggravated felonies are particularly serious on a case-by-case basis. Id. at 469. In the same way, the Board is not precluded from determining that some crimes of negligence are particularly serious. Nor does the Immigration and Nationality Act’s separate definition of “serious criminal offense” undermine the Board’s interpretation. The Act identifies “driving while intoxicated or under the influence of alcohol” as a serious criminal offense if it “involves personal injury to another.” 8 U.S.C. § 1101(h)(3). Ruderman argues that “particularly serious crime” must be interpreted to require more. Maybe so. But even if he’s right, criminally negligent homicide entails more than mere “personal injury,” so the argument is a dead end. 5 Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) were ambiguous as to whether crimes of negligence could be “particularly serious,” Ruderman has not shown that the Board’s interpretation is too unreasonable to merit deference under Chevron. See Ali, 468 F.3d at 470. Nor has he shown that the Board’s interpretation is so likely to conflict with the Constitution or international law that we need to consider whether some other interpretation is warranted. D. Finally, Ruderman contends that the Board should have granted him protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the return of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1990), 1465 U.N.T.S. 85. Federal regulations define torture as requiring “the consent or acquiescence of a public official.” 8 C.F.R § 1208.18(a)(1). Immigration judges must withhold or defer removal if an applicant demonstrates that “it is more likely than not that he or she would be tortured if removed.” 8 C.F.R. § 1208.16(c)(2). We have explained that “more likely than not” means that there is a “substantial risk” that the alien will be tortured. Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135–36 (7th Cir. 2015); see also Perez-Montes v. Sessions, 880 F.3d 849, 850 (7th Cir. 2018). Ruderman argues that the immigration judge both misunderstood and misapplied the “substantial risk” standard. But there is no evidence of the former; the immigration judge cited our decision in Rodriguez-Molinero and proceeded to analyze whether there was a substantial risk that Ruderman would be subject to torture inflicted by or with the consent of a public official if he returned to Belarus. See 8 C.F.R. § 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. We review the Board’s conclusion that there was no substantial risk of torture under the “highly deferential substantial evidence test,” which mandates denying the petition unless “the record evidence compels a contrary conclusion.” *574 Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). 6 The record evidence does not compel a contrary conclusion. To be sure, certain findings from the immigration judge give us pause. For one, the judge concluded that there was no substantial risk of torture for Jews in Belarus because, despite “widespread anti-Semitism in Belarus,” incidents targeting Jews have been declining. While it is true that the raw number of anti-Jewish incidents in Belarus has declined, so has the Jewish population. In this context, an absolute decrease in incidents does not necessary equate to a relative increase in safety for any individual. Nor does the evidence of Ruderman’s mother’s safe travel to and from Belarus mean that Ruderman will be equally safe. His mother has a Christian name that is not associated with her late husband, whereas Ruderman’s patronymic clearly signals that he is both Jewish and the son of a known political activist whom the KGB may have tortured and killed. But on the other hand, there is evidence that Ruderman became less susceptible to physical attacks as he grew and became better able to defend himself, that no one in his family has been threatened in Belarus, and that he lived in Belarus for eight years following his father’s death without any threat of torture on account of his relationship to his father. Considering all the evidence, the record does not compel the conclusion that there is a substantial risk that Ruderman would be tortured if he returned to Belarus.

Barrett

majority

Aleksey Arkadyevich Ruderman is seeking to avoid removal to Belarus, his native country. An immigration judge ruled that Ruderman was inadmissible under the Immigration and Nationality Act, (a)(2)(B), and thus subject to removal. The judge also held that Ruderman was not eligible for a waiver of inadmissibility and adjustment of status, cancellation of removal, asylum, withholding of removal, or protection under the Convention Against Torture. The Board of Immigration Appeals agreed. In particular, it held that Ruderman had not raised any meaningful challenge to his inadmissibility determination and that even if the immigration judge had applied the wrong legal standard to determine that Ruderman was ineligible for a waiver of inadmissibility, her alternative discretionary denial made the error harmless. Ruderman petitions us for review of those holdings, along with others reached by the immigration judge and affirmed by the Board. While we largely agree with the Board’s analysis, we hold that it was flawed with respect to one issue: the question whether Ruderman is statutorily inadmissible. We therefore grant Ruderman’s petition and remand for the Board to revisit that question and, if necessary, to decide whether Ruderman is eligible for a waiver. I. Ruderman moved to the United States when he was nineteen to escape discrimination and violence directed at him on account of his Jewish heritage. He moved from his native land of Belarus, a former Soviet republic that declared independence during his childhood. In Belarus, Ruderman and his family were targeted for abuse by Neo-Nazis and pro-Russia advocates who would shout profanities at them, perform the Nazi salute, leave anti-Jewish propaganda in their mailbox, and throw bottles and stones at their home. Ruderman received even worse treatment at school. His (sometimes much older) classmates would bully and beat him and the handful of other Jewish students. The head of the school and the police were alerted but did nothing to address the situation. One particularly severe attack resulted in stitches and a permanent scar, while another resulted in two broken wrists that have bothered him ever since. After attackers broke Ruderman’s wrists, his parents sent him to a private school where he would be safer. His time there was cut short, however, by his father’s death. Arkady Ruderman, a documentary filmmaker, died while filming a piece on government corruption in Tajikistan—another *570 former Soviet republic. Although government officials reported that he was killed in a car accident, Arkady had previously been detained and battered by the KGB, and eyewitnesses said that they saw bullet holes in his dead body. Those reports could not be confirmed because the police ordered that Arkady’s casket remain closed at his funeral—and then attended the event to make sure that it did. Without Arkady’s income, Ruderman’s family could no longer afford his private school tuition, so Ruderman enrolled at a different public school where he was subjected to familiar anti-Semitic verbal abuse. He became so afraid that in the ninth grade he stopped attending classes entirely and later transferred to a technical school. There, in spite of continued verbal abuse, he performed well and graduated with high grades. Once out of school, however, he found that his Jewish heritage made it difficult for him to get a job. Fed up with the abuse and intolerance, Ruderman fled to the United States in 2001 under a provision known as the Lautenberg Amendment, which lowers barriers to immigration for certain former soviet nationals. See tit. V, 599D–E, 1261–64 (1989) (codified as amended at note, 1255 note). His life in America got off to a rocky start; shortly after arriving he was convicted of driving under the influence of alcohol and sentenced to court supervision. But over the next several years, he found work as a cab driver and a security officer, met his future wife Elena, and moved into an apartment with her and her two children in Milwaukee. In 2008, Ruderman struck and killed a pedestrian with his vehicle while driving drunk. He accepted responsibility, pleaded guilty to homicide by negligent operation of a vehicle, and was convicted and sentenced to five years in prison. Following his release in 2013, he worked at a transportation company—until U.S. Customs and Immigration Services denied his adjustment-of-status application, causing his work permit to expire. In January of 2016, the government detained Ruderman and began removal proceedings. The immigration judge ultimately concluded that Ruderman was statutorily inadmissible because of his two convictions. The judge also denied Ruderman’s applications for a waiver of inadmissibility, adjustment of status under the Lautenberg Amendment, cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. Ruderman appealed the immigration judge’s decision in an extensive pro se brief and later in a second brief filed by pro bono counsel. The counseled brief supplemented certain arguments that Ruderman had made in his initial brief but conceded others. Significantly, the later brief conceded that “[Ruderman’s] convictions for two crimes with an aggregate prison sentence of five years make him ‘inadmissible.’ ” That concession contradicted Ruderman’s pro se argument that the inadmissibility statute applies only when two or more convictions each result in a sentence to confinement, and so Ruderman’s sole sentence to confinement—which imposed five years in prison—did not make him inadmissible. The Board dismissed Ruderman’s appeal. First, it noted in passing that Ruderman “ha[d] not raised any meaningful challenges” to his inadmissibility, and thus the issue was “waived.” Second, the Board adopted and affirmed the immigration judge’s denial of Ruderman’s applications for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. Finally, the Board *571 affirmed the denial of Ruderman’s request for a waiver of inadmissibility and adjustment of status under the Lautenberg Amendment. The Board bypassed Ruderman’s argument that the immigration judge had applied the wrong standard to determine whether Ruderman was eligible for a waiver of inadmissibility and instead affirmed the judge’s conclusion that, even if Ruderman were eligible to be considered for a waiver, she would exercise her discretion to deny him relief. II. Ruderman petitions us for review of the Board’s decision. He takes issue with the Board’s conclusion that he waived his opportunity to challenge his inadmissibility, and he argues that the application of the wrong standard for determining his eligibility for a waiver of inadmissibility contaminated the immigration judge’s discretionary denial of a waiver. He also claims that the judge erred by holding—and the Board erred by affirming—both that his negligent homicide was “particularly serious” and that he failed to show a “substantial risk” that he would be tortured in Belarus. Because the Board provided its own analysis and also affirmed the immigration judge’s decision, we review both decisions. A. Ruderman argued in his pro se brief that he is not inadmissible under 212(a)(2)(B) of the Immigration and Nationality Act, (a)(2)(B), because he has only ever received one sentence to confinement. The Act states that an immigrant is inadmissible to receive a visa or to be admitted to the United States if he is convicted of “2 or more offenses for which the aggregate sentences to confinement were 5 years or more.” Ruderman interprets “sentences to confinement” to require more than one custodial sentence. He supports this reading by pointing to the word “aggregate,” which he argues would be superfluous if the statute could be satisfied by a single sentence to confinement. Because his first conviction—for driving under the influence—did not result in confinement, he concludes that he is not inadmissible. His pro bono counsel, however, conceded Ruderman’s inadmissibility in a later-filed brief. The Board did not address Ruderman’s inadmissibility argument, instead concluding that he had failed to raise any meaningful challenges to his inadmissibility and so had waived the issue. It appears likely that the Board reached that conclusion on the basis of Ruderman’s counsel’s concession, because Ruderman did raise the argument in several places—including his notice of appeal and pro se brief, both of which remained on the record. But the Board’s opinion did not otherwise indicate whether the counseled brief superseded the pro se brief. 1 A later-in-time concession waives an issue in federal court—but we do not know whether that is true before the Board as well. On this record it is unclear why the Board concluded that Ruderman waived his challenge, and the Board’s failure to explain inhibits our review of the issue. See (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more *572 adequate or proper basis.”). We grant Ruderman’s petition and remand this issue to the Board to clarify why it did not address Ruderman’s inadmissibility argument. B. 2 If on remand the Board confirms that Ruderman is inadmissible, his application for a waiver of inadmissibility should be reviewed under the correct legal standard. The immigration judge concluded that Ruderman was statutorily ineligible for a waiver because he did not show that his removal would cause “extreme hardship” to his U.S.-citizen wife. (h)(1)(B). When a waiver is sought in conjunction with an application for a status adjustment under the Lautenberg Amendment, however, there is no threshold eligibility requirement; a waiver may be granted simply “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. 1245.7(d). The immigration judge erred by not considering Ruderman’s application under this less stringent standard. 3 The Board concluded that this error was harmless because the immigration judge held in the alternative that she would exercise her discretion to deny Ruderman relief if he were eligible to be considered for it. The assumption seems to be that the judge would have made the same discretionary denial of a waiver under the Lautenberg Amendment as she made under 1182(h). But, as we have already noted, the former provides discretion to grant a waiver for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest; the latter entails a potentially more complex consideration of the ground for exclusion at issue, past immigration violations or criminal history, evidence of rehabilitation, general evidence of good or bad character, strength of family ties, duration of residence in the United States, and evidence of value to the community. See In re Mendez-Moralez, Because these statutes, along with the cases and regulations interpreting them, articulate distinct factors to be considered in deciding whether to grant a discretionary waiver of inadmissibility, the Board cannot simply substitute one standard for another and assume that the outcome would be the same. If the Board confirms Ruderman’s inadmissibility on remand, it should consider his application for a waiver under the proper framework. C. Ruderman’s other arguments go nowhere. First, he claims that he is eligible for asylum and withholding of removal because he did not commit a “particularly serious crime.” 8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman committed homicide by negligent operation of a vehicle, Wis. Stat. 940.10(1); he argues that Congress did not intend for criminal negligence like his to qualify as particularly serious. Generally, classification of a crime as “particularly serious” is within the discretion of the Attorney General—exercised here by the Board. Our review of these classifications is confined to constitutional and legal questions. 8 U.S.C. 1252(a)(2); see also And when those legal questions implicate ambiguous statutory provisions, we give deference. See Chevron, U.S.A., 4 We considered the meaning of “particularly serious crime” in some depth in *573 In that case, the petitioner argued that the Board could not hold that his conviction for “substantial battery with a dangerous weapon,” a nonaggravated felony, was a particularly serious crime under 1158(b)(2) and 1231(b)(3) because it did not fall within the two categories of crimes identified as per se “particularly serious” in 1158(b)(2): aggravated felonies and other crimes that the Attorney General designates by regulation. at 468–69. We disagreed, explaining that the presence of these categories does not cabin the Board’s discretion to determine that nonaggravated felonies are particularly serious on a case-by-case basis. In the same way, the Board is not precluded from determining that some crimes of negligence are particularly serious. Nor does the Immigration and Nationality Act’s separate definition of “serious criminal offense” undermine the Board’s interpretation. The Act identifies “driving while intoxicated or under the influence of alcohol” as a serious criminal offense if it “involves personal injury to another.” 8 U.S.C. 1101(h)(3). Ruderman argues that “particularly serious crime” must be interpreted to require more. Maybe so. But even if he’s right, criminally negligent homicide entails more than mere “personal injury,” so the argument is a dead end. 5 Finally, even if 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii) were ambiguous as to whether crimes of negligence could be “particularly serious,” Ruderman has not shown that the Board’s interpretation is too unreasonable to merit deference under Chevron. See Nor has he shown that the Board’s interpretation is so likely to conflict with the Constitution or international law that we need to consider whether some other interpretation is warranted. D. Finally, Ruderman contends that the Board should have granted him protection under the Convention Against Torture, 8 C.F.R. 1208.16–18. The Convention forbids the return of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), Dec. 10, S. Treaty Doc. No. 100-20 (1990), 1465 U.N.T.S. 85. Federal regulations define torture as requiring “the consent or acquiescence of a public official.” 8 C.F.R 1208.18(a)(1). Immigration judges must withhold or defer removal if an applicant demonstrates that “it is more likely than not that he or she would be tortured if removed.” 8 C.F.R. 1208.16(c)(2). We have explained that “more likely than not” means that there is a “substantial risk” that the alien will be tortured. ; see also Ruderman argues that the immigration judge both misunderstood and misapplied the “substantial risk” standard. But there is no evidence of the former; the immigration judge cited our decision in Rodriguez-Molinero and proceeded to analyze whether there was a substantial risk that Ruderman would be subject to torture inflicted by or with the consent of a public official if he returned to Belarus. See 8 C.F.R. 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. We review the Board’s conclusion that there was no substantial risk of torture under the “highly deferential substantial evidence test,” which mandates denying the petition unless “the record evidence compels a contrary conclusion.” *574 6 The record evidence does not compel a contrary conclusion. To be sure, certain findings from the immigration judge give us pause. For one, the judge concluded that there was no substantial risk of torture for Jews in Belarus because, despite “widespread anti-Semitism in Belarus,” incidents targeting Jews have been declining. While it is true that the raw number of anti-Jewish incidents in Belarus has declined, so has the Jewish population. In this context, an absolute decrease in incidents does not necessary equate to a relative increase in safety for any individual. Nor does the evidence of Ruderman’s mother’s safe travel to and from Belarus mean that Ruderman will be equally safe. His mother has a Christian name that is not associated with her late husband, whereas Ruderman’s patronymic clearly signals that he is both Jewish and the son of a known political activist whom the KGB may have tortured and killed. But on the other hand, there is evidence that Ruderman became less susceptible to physical attacks as he grew and became better able to defend himself, that no one in his family has been threatened in Belarus, and that he lived in Belarus for eight years following his father’s death without any threat of torture on account of his relationship to his father. Considering all the evidence, the record does not compel the conclusion that there is a substantial risk that Ruderman would be tortured if he returned to Belarus.

Sansone v. Brennan

Tony Sansone, who is confined to a wheelchair, needs a parking place with room to deploy his van's wheelchair ramp. For years, the Postal Service, his employer, provided him one. But in 2011, it took that spot away and failed to provide him with a suitable replacement. Sansone then retired and sued the Service under the Rehabilitation Act for failing to accommodate his disability. A jury returned a verdict in his favor and Sansone recovered compensatory damages, as well as back and front pay. The Service asks us to vacate the district court's judgment because of two jury instructions: one about an employee's obligation to cooperate with his employer in identifying a reasonable accommodation and the other about how the jury should evaluate the Service's expert witness. We hold that the district court did not err with respect to the former, but its instruction about the expert was both wrong and prejudicial. The Service also appeals the district court's award of back and front pay, but it forfeited that argument by failing to raise it below. I. Anthony Sansone began his thirty-year career at the Postal Service in 1981. He was diagnosed with multiple sclerosis in 1991, and, 8 years later, the disease put him in a wheelchair. The Service gave him a reserved space near the loading docks, where there was room to deploy his van's wheelchair ramp. That arrangement lasted until 2011, when the plant manager, Ruby Branch, asked Sansone to stop parking there. Sansone was greatly upset by Branch's decision. He viewed it as arbitrary; Branch told him that it was driven by safety concerns. She offered Sansone two other options: to park in one of the handicapped spots in front of the building or her own reserved space in the back of the building. Neither met his needs. Branch's reserved space, like most of the handicapped spots, didn't provide enough room to deploy his van's passenger-side ramp, and the few handicapped spots that had enough room were usually taken. In addition, the spots in the back of the building (like Branch's spot) would require him to travel in his wheelchair along a busy truck route in the dark. So with the permission of his direct supervisor, Chuck von Rhein, Sansone continued to park in his usual place while waiting for a solution to the problem. Two weeks later, Sansone emailed the maintenance manager, LaShawn Jacobs, for an update on his parking situation. Jacobs reiterated what Branch had said before: that Sansone must park in one of the proposed spaces. Sansone then sought help from Stephen Grieser, chair of the Postal Service district's Reasonable Accommodation *979 Committee, who told Sansone that he would start the process of identifying a reasonable accommodation for him. A few days later, Branch noticed Sansone's van parked near the loading docks. She told Jacobs to inform Sansone that he should move it or risk having it towed. When Jacobs relayed the message, Sansone panicked, started to experience chest pain, and left work. He worried that if his van had been towed, he would have been stranded at work because he needed the van to load his wheelchair. The next day he went to see a doctor because he was still experiencing panic attacks. The doctor recommended that he stay home until the situation was rectified and prescribed medication to help him deal with the stress. After another two weeks passed, Grieser sent Sansone a letter asking him to provide medical information about his “condition and the specific limitations that it imposes” so that he could address Sansone's parking situation. The letter exacerbated Sansone's frustration because in his view, it sought information that the Service already knew—that he had multiple sclerosis and was confined to a wheelchair. Sansone did not provide Grieser with the redundant medical information. Instead, he asked von Rhein, his supervisor, to tell Grieser to stop pursuing the parking issue because by that point, the stress of the situation had rendered Sansone unable to go back to work at the Service no matter where he parked. He filed for disability retirement, which the Office of Personnel Management granted. Sansone then sued the Service under the Rehabilitation Act, 29 U.S.C. § 791, et seq., for constructive discharge and failure to accommodate. The district court granted the Service's summary judgment motion on the constructive discharge claim, but it denied both parties’ motions for summary judgment on the failure to accommodate claim. The case proceeded to trial, and Sansone won $ 300,000 in compensatory damages. After the verdict came in, the district court addressed Sansone's equitable claim for back and front pay. It awarded him $ 828,774—an amount covering the period between the date of his termination and January 20, 2023, the date on which he would have retired. The Service presses three arguments on appeal, one related to the merits of Sansone's “failure to accommodate” claim and the other two related to damages. II. 1 2 3 To succeed on his failure to accommodate claim under 29 U.S.C. § 794, Sansone had to prove that (1) he was a qualified individual with a disability, (2) the Service was aware of his disability, and (3) the Service failed to reasonably accommodate his disability. King v. City of Madison, 550 F.3d 598, 600 (7th Cir. 2008).1 Relevant to—and sometimes determinative of—the third element is the employer and employee's respective cooperation “in an interactive process to determine a reasonable accommodation.” Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998). The Service contends that the district court erroneously instructed the jury about the consequences of an employee's failure to cooperate in this “interactive process.” 4 5 Some background on this “interactive process” is necessary to understand the Service's objection to the jury instruction. While the “interactive process” is important, *980 it is a means for identifying a reasonable accommodation rather than an end in itself. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997). And because the process is not an end in itself, an employer cannot be liable solely for refusing to take part in it. For example, “[f]ailure to engage in this ‘interactive process’ cannot give rise to a claim for relief ... if the employer can show that no reasonable accommodation was possible.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000). Nor will it give rise to a claim against an employer who reasonably accommodated the employee. Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000) (“The ADA seeks to ensure that qualified individuals are accommodated in the workplace, not to punish employers who, despite their failure to engage in an interactive process, have made reasonable accommodations.”). But when a reasonable accommodation was possible and the employer did not offer it, the third element of a “failure to accommodate” claim turns on the “interactive process” requirement. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). In that event, “responsibility will lie with the party that caused the breakdown.” Id. at 805. According to the Service, this is where the district court went awry. 6 The Service insists that the court erroneously instructed the jury that it could render a verdict for Sansone even if he was at fault for the breakdown of the interactive process. Over the Service's objection, the court instructed the jury as follows: Once an employer is aware of the employee's disability and an accommodation has been requested, the employer must discuss with the employee whether there is a reasonable accommodation that will permit him to perform his job. Both the employer and the employee must cooperate in the interactive process in good faith. Neither party can win this case solely because the other did not cooperate in that process in the way that the party believed appropriate, but you may consider whether a party cooperated in that process when deciding whether a reasonable accommodation existed. The Service argues that telling the jury that “neither party can win this case solely because the other did not cooperate” is inconsistent with Sears, which says that “when an employer takes an active, good-faith role in the interactive process, it will not be liable if the employee refuses to participate or withholds essential information.” 417 F.3d at 806. The Service's argument distorts the jury instruction by focusing exclusively on the opening few words of a longer sentence. Read out of context, the cherry-picked words state that the jury cannot treat one party's failure to cooperate as outcome-determinative. That is inconsistent with Sears. Read in context, however, they make a different and entirely uncontroversial point: that the jury cannot evaluate the sufficiency of one party's cooperation according to the expectations of the other. (“Neither party can win solely because the other did not cooperate in that process in the way that the party believed appropriate ... .” (emphasis added)). In other words, the Service's belief that Sansone did not cooperate did not mean that he did not cooperate—and vice versa. That is plainly correct. In sum, the Service would have a point if the court had told the jury that Sansone could win even if he shut down the interactive process. Unfortunately for the Service, however, that is not what the court said. The Service's next argument concerns its expert witness, Dr. Diana Goldstein, *981 who offered an opinion on the cause of Sansone's emotional distress, an issue relevant to compensatory damages. On cross-examination, Sansone's lawyer asked Goldstein if she had read the Service's brief in support of its summary judgment motion in the course of preparing her report. She said that she had, and Sansone's lawyer pressed: “To get your understanding of the facts you read the Postal Service's Statement of Material Facts in support of its motion for summary judgment, correct?” Goldstein replied: I wouldn't agree with that statement. I would say that it helps me understand the story, but I get my facts about what Mr. Sansone is claiming in turn—by way of emotional distress and changes in physical symptoms by meeting with him, by reviewing objective records, et cetera. But I do like to have context and so I always review the records just to get a sense of what the whole story is. She added that as part of that context, she had also read Sansone's complaint, his answers to interrogatories, and his deposition. Sansone's lawyer asked whether she had read the brief opposing the Service's motion for summary judgment or the district court's decision denying the motion, and Goldstein said that she had not. Shortly thereafter, Goldstein responded to a question about whether she had read the deposition of plant manager Ruby Branch by explaining that, although she had, she did not view it “as relevant to [her] role in assessing Mr. Sansone's emotional distress claim.” The court interjected: “Wait just a minute. But you thought that the brief in support of a motion for summary judgment which was denied, that was relevant to your opinion?” When Goldstein answered, “I always read those,” the court interrupted, “I am not asking what you always do. I am asking, in this case you felt that that is relevant to your rendition of an opinion, a lawyer's argument in connection with this case which was unsuccessful.” Goldstein replied, “No. I just like to know what is going on with the case.” The court later admonished counsel that giving Goldstein the summary judgment motion was a “flat-out violation of Federal Rule of Evidence 703.” The court hammered that position home in its jury instructions. In evaluating Goldstein's opinion, it told the jurors that they should keep in mind that [S]he had been provided by counsel for the Postal Service with a copy of the Postal Service's argument that had been made earlier in the case in support of an unsuccessful motion to prevent the case from going to trial on the premise that there were no genuine issues of material fact that called for consideration by a jury. That is a document that presents the Postal Service's version of the facts and of the legal arguments that they sought to support that motion. It was inappropriate for that information to be provided to the opinion witness. And that inappropriateness was amplified by the failure of the Postal Service's counsel to provide her with the successful argument that had been made by Sansone's lawyer in opposition to the motion and, more importantly, by the failure of Postal Service's counsel to provide her with the Court's opinion that rejected the motion. It should be added, though, that Sansone's counsel is also at fault. Why? For not having raised the matter before this Court well in advance of trial because the teaching of the Supreme Court is that the trial judge serves as what they call the gatekeeper in ruling on whether it is or is not proper for any specific proposed opinion witness to be allowed to present his or her testimony to a fact-finding jury for its consideration. And that matter came before you, just as it *982 came before me, solely at the end of the case. Now with all of that said, you may consider what has been set forth in this instruction that I have composed in explaining the determination called for in the first paragraph of the instruction, that is, give the testimony of each of the witnesses whatever weight you think it deserves, considering the reasons for the opinion, the witness’ qualifications and all of the other evidence in the case. The Service contends that this instruction erroneously invited the jury to disregard Goldstein's opinion. 7 8 The Service is right. Contrary to the court's belief, the Service did not commit a “flat-out violation of Federal Rule of Evidence 703” by giving Goldstein its summary judgment motion. Rule 703 does not govern the information that experts can have; it governs the information on which they can base their opinions. It allows experts to rely on inadmissible facts or data in forming an opinion so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed. R. Evid. 703. If Goldstein had relied on the summary judgment motion in forming her opinion, the court would have had to determine whether experts in her field “reasonably rely” on summary judgment motions in assessing someone's emotional distress—and presumably they don't. But Goldstein expressly stated that she did not rely on the summary judgment motion in forming her opinion. She read the summary judgment motion—along with Sansone's complaint and answers to interrogatories—solely to get context about the case. She based her opinion on the facts that she got from Sansone and his medical records. So long as those are the kinds of facts and data on which experts in her field reasonably rely—and presumably they are—her opinion satisfied Rule 703. Any suggestion that Goldstein was biased in favor of the Service could be explored on cross—as Sansone was doing before the court seized sua sponte on the illusory Rule 703 issue. 9 10 The district court thus erred when it told the jury that the Service had acted inappropriately by giving Goldstein the summary judgment motion and suggesting that it would have excluded her testimony had it learned about the issue earlier. Even so, “a new trial is required only if the flawed instruction could have confused or misled the jury causing prejudice to the complaining party.” Doornbos v. City of Chicago, 868 F.3d 572, 580 (7th Cir. 2017). Sansone says that the Service was not prejudiced because Goldstein testified that she didn't rely on the summary judgment motion, the court permitted the jury to consider her testimony, and the instruction emphasized that Sansone was also to blame for not raising the issue earlier. None of those things blunted the effect of the district court's erroneous instruction, which all but told the jury that it shouldn't trust anything that Goldstein had said. This not only misled the jury but also invaded the jury's function in assessing witness credibility. See Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 765 (7th Cir. 2013) (explaining that although the district court serves as gatekeeper, “[t]he jury must still be allowed to play its essential role as the arbiter of the weight and credibility of expert testimony”). At the very least, the instruction left the jury unsure what to make of Goldstein's testimony. See Rapold v. Baxter Int'l Inc., 718 F.3d 602, 609 (7th Cir. 2013) (explaining that a party is prejudiced by jury instructions when the “jury was likely to be misled or confused” by them); Miller v. Neathery, 52 F.3d 634, 639 (7th Cir. 1995) (“Under these circumstances, it would be imprudent for us to *983 determine that the lack of sufficient guidance in the instructions did not contribute significantly to the jury's conclusion.”). The prejudice was particularly acute given what had happened earlier in the trial. See Susan Wakeen Doll Co., Inc. v. Ashton-Drake Galleries, 272 F.3d 441, 452 (7th Cir. 2001) (“An erroneous jury instruction could not prejudice [a party] unless considering the instructions as a whole, along with all of the evidence and arguments, the jury was misinformed about the applicable law.”). The court interrupted the cross-examination of Goldstein to admonish her, expressing incredulity that she had read the summary judgment motion. See United States v. El-Bey, 873 F.3d 1015, 1022 (7th Cir. 2017) (explaining that a trial judge has great influence on the jury and that any statement made about a witness carries great weight). The instructions therefore invited the jury to act on the skepticism that the court had already sowed. In short, the instruction was erroneous and prejudicial. But because Goldstein's testimony went solely to compensatory damages, we remand for a new trial on that issue only. See MCI Commc'ns Corp. v. AT&T Co., 708 F.2d 1081, 1166 (7th Cir. 1983). IV. The Service's final argument is that the court erred by awarding Sansone equitable relief in the form of back and front pay for the time after he retired. It contends that constructive discharge is required for equitable relief; because Sansone was never actively or constructively discharged, it says, he does not qualify. 11 12 Sansone argues that the Service waived this argument by failing to raise it below. What he means to say, however, is that the Service forfeited this argument. See Hamer v. Neighborhood Hous. Servs. of Chicago, ––– U.S. ––––, 138 S.Ct. 13, 17 n.1, 199 L.Ed.2d 249 (2017) (“The terms waiver and forfeiture—although often used interchangeably by jurists and litigants—are not synonymous.”). Waiver is intentionally abandoning a known right. United States v. Seals, 813 F.3d 1038, 1044–45 (7th Cir. 2016). Forfeiture occurs when a party fails to make an argument because of accident or neglect. Id. at 1045. That's what Sansone says that the Service did here. 13 The Service insists that it raised this argument—that Sansone failed to prove actual or constructive discharge and thus could not receive back or front pay—in its damages brief to the district court. This is wishful thinking. The damages brief focused on two things: (1) errors that the court made based on the evidence at trial and (2) why Sansone's award should be offset by his retirement benefits. And the sole legal citation in the entire brief went to the offset issue. Indeed, only one sentence in the analysis section of its brief mentioned that Sansone chose to retire. Read in isolation, that reference might gesture toward a lack of actual or constructive discharge—but the rest of that sentence continued the brief's focus on offsetting damages with Sansone's retirement benefits. The very best we can say—and it is a stretch—is that the Service raised the “general issue” in its damages brief. Avoiding forfeiture requires more. See Domka v. Portage Cty., Wis., 523 F.3d 776, 783 n.11 (7th Cir. 2008) (stating that a party cannot raise an issue for the first time on appeal when it raised only the “general issue” below). * * * We VACATE the judgment and REMAND for a new trial on the damages issue. We AFFIRM it with respect to the Service's liability, the award of back and *984 front pay, and the award of attorneys’ fees and expenses.

Barrett

majority

Tony Sansone, who is confined to a wheelchair, needs a parking place with room to deploy his van's wheelchair ramp. For years, the Postal Service, his employer, provided him one. But in 2011, it took that spot away and failed to provide him with a suitable replacement. Sansone then retired and sued the Service under the Rehabilitation Act for failing to accommodate his disability. A jury returned a verdict in his favor and Sansone recovered compensatory damages, as well as back and front pay. The Service asks us to vacate the district court's judgment because of two jury instructions: one about an employee's obligation to cooperate with his employer in identifying a reasonable accommodation and the other about how the jury should evaluate the Service's expert witness. We hold that the district court did not err with respect to the former, but its instruction about the expert was both wrong and prejudicial. The Service also appeals the district court's award of back and front pay, but it forfeited that argument by failing to raise it below. I. Anthony Sansone began his thirty-year career at the Postal Service in 1981. He was diagnosed with multiple sclerosis in 1991, and, 8 years later, the disease put him in a wheelchair. The Service gave him a reserved space near the loading docks, where there was room to deploy his van's wheelchair ramp. That arrangement lasted until 2011, when the plant manager, Ruby Branch, asked Sansone to stop parking there. Sansone was greatly upset by Branch's decision. He viewed it as arbitrary; Branch told him that it was driven by safety concerns. She offered Sansone two other options: to park in one of the handicapped spots in front of the building or her own reserved space in the back of the building. Neither met his needs. Branch's reserved space, like most of the handicapped spots, didn't provide enough room to deploy his van's passenger-side ramp, and the few handicapped spots that had enough room were usually taken. In addition, the spots in the back of the building (like Branch's spot) would require him to travel in his wheelchair along a busy truck route in the dark. So with the permission of his direct supervisor, Chuck von Rhein, Sansone continued to park in his usual place while waiting for a solution to the problem. Two weeks later, Sansone emailed the maintenance manager, LaShawn Jacobs, for an update on his parking situation. Jacobs reiterated what Branch had said before: that Sansone must park in one of the proposed spaces. Sansone then sought help from Stephen Grieser, chair of the Postal Service district's Reasonable Accommodation *979 Committee, who told Sansone that he would start the process of identifying a reasonable accommodation for him. A few days later, Branch noticed Sansone's van parked near the loading docks. She told Jacobs to inform Sansone that he should move it or risk having it towed. When Jacobs relayed the message, Sansone panicked, started to experience chest pain, and left work. He worried that if his van had been towed, he would have been stranded at work because he needed the van to load his wheelchair. The next day he went to see a doctor because he was still experiencing panic attacks. The doctor recommended that he stay home until the situation was rectified and prescribed medication to help him deal with the stress. After another two weeks passed, Grieser sent Sansone a letter asking him to provide medical information about his “condition and the specific limitations that it imposes” so that he could address Sansone's parking situation. The letter exacerbated Sansone's frustration because in his view, it sought information that the Service already knew—that he had multiple sclerosis and was confined to a wheelchair. Sansone did not provide Grieser with the redundant medical information. Instead, he asked von Rhein, his supervisor, to tell Grieser to stop pursuing the parking issue because by that point, the stress of the situation had rendered Sansone unable to go back to work at the Service no matter where he parked. He filed for disability retirement, which the Office of Personnel Management granted. Sansone then sued the Service under the Rehabilitation Act, et seq., for constructive discharge and failure to accommodate. The district court granted the Service's summary judgment motion on the constructive discharge claim, but it denied both parties’ motions for summary judgment on the failure to accommodate claim. The case proceeded to trial, and Sansone won $ 300,000 in compensatory damages. After the verdict came in, the district court addressed Sansone's equitable claim for back and front pay. It awarded him $ 828,774—an amount covering the period between the date of his termination and January 20, 2023, the date on which he would have retired. The Service presses three arguments on appeal, one related to the merits of Sansone's “failure to accommodate” claim and the other two related to damages. II. 1 2 3 To succeed on his failure to accommodate claim under Sansone had to prove that (1) he was a qualified individual with a disability, (2) the Service was aware of his disability, and (3) the Service failed to reasonably accommodate his disability.1 Relevant to—and sometimes determinative of—the third element is the employer and employee's respective cooperation “in an interactive process to determine a reasonable accommodation.” The Service contends that the district court erroneously instructed the jury about the consequences of an employee's failure to cooperate in this “interactive process.” 4 5 Some background on this “interactive process” is necessary to understand the Service's objection to the jury instruction. While the “interactive process” is important, *980 it is a means for identifying a reasonable accommodation rather than an end in itself. And because the process is not an end in itself, an employer cannot be liable solely for refusing to take part in it. For example, “[f]ailure to engage in this ‘interactive process’ cannot give rise to a claim for relief if the employer can show that no reasonable accommodation was possible.” Nor will it give rise to a claim against an employer who reasonably accommodated the employee. But when a reasonable accommodation was possible and the employer did not offer it, the third element of a “failure to accommodate” claim turns on the “interactive process” requirement. In that event, “responsibility will lie with the party that caused the breakdown.” at According to the Service, this is where the district court went awry. 6 The Service insists that the court erroneously instructed the jury that it could render a verdict for Sansone even if he was at fault for the breakdown of the interactive process. Over the Service's objection, the court instructed the jury as follows: Once an employer is aware of the employee's disability and an accommodation has been requested, the employer must discuss with the employee whether there is a reasonable accommodation that will permit him to perform his job. Both the employer and the employee must cooperate in the interactive process in good faith. Neither party can win this case solely because the other did not cooperate in that process in the way that the party believed appropriate, but you may consider whether a party cooperated in that process when deciding whether a reasonable accommodation existed. The Service argues that telling the jury that “neither party can win this case solely because the other did not cooperate” is inconsistent with Sears, which says that “when an employer takes an active, good-faith role in the interactive process, it will not be liable if the employee refuses to participate or withholds essential information.” The Service's argument distorts the jury instruction by focusing exclusively on the opening few words of a longer sentence. Read out of context, the cherry-picked words state that the jury cannot treat one party's failure to cooperate as outcome-determinative. That is inconsistent with Sears. Read in context, however, they make a different and entirely uncontroversial point: that the jury cannot evaluate the sufficiency of one party's cooperation according to the expectations of the other. (“Neither party can win solely because the other did not cooperate in that process in the way that the party believed appropriate” (emphasis added)). In other words, the Service's belief that Sansone did not cooperate did not mean that he did not cooperate—and vice versa. That is plainly correct. In sum, the Service would have a point if the court had told the jury that Sansone could win even if he shut down the interactive process. Unfortunately for the Service, however, that is not what the court said. The Service's next argument concerns its expert witness, Dr. Diana Goldstein, *981 who offered an opinion on the cause of Sansone's emotional distress, an issue relevant to compensatory damages. On cross-examination, Sansone's lawyer asked Goldstein if she had read the Service's brief in support of its summary judgment motion in the course of preparing her report. She said that she had, and Sansone's lawyer pressed: “To get your understanding of the facts you read the Postal Service's Statement of Material Facts in support of its motion for summary judgment, correct?” Goldstein replied: I wouldn't agree with that statement. I would say that it helps me understand the story, but I get my facts about what Mr. Sansone is claiming in turn—by way of emotional distress and changes in physical symptoms by meeting with him, by reviewing objective records, et cetera. But I do like to have context and so I always review the records just to get a sense of what the whole story is. She added that as part of that context, she had also read Sansone's complaint, his answers to interrogatories, and his deposition. Sansone's lawyer asked whether she had read the brief opposing the Service's motion for summary judgment or the district court's decision denying the motion, and Goldstein said that she had not. Shortly thereafter, Goldstein responded to a question about whether she had read the deposition of plant manager Ruby Branch by explaining that, although she had, she did not view it “as relevant to [her] role in assessing Mr. Sansone's emotional distress claim.” The court interjected: “Wait just a minute. But you thought that the brief in support of a motion for summary judgment which was denied, that was relevant to your opinion?” When Goldstein answered, “I always read those,” the court interrupted, “I am not asking what you always do. I am asking, in this case you felt that that is relevant to your rendition of an opinion, a lawyer's argument in connection with this case which was unsuccessful.” Goldstein replied, “No. I just like to know what is going on with the case.” The court later admonished counsel that giving Goldstein the summary judgment motion was a “flat-out violation of Federal Rule of Evidence 703.” The court hammered that position home in its jury instructions. In evaluating Goldstein's opinion, it told the jurors that they should keep in mind that [S]he had been provided by counsel for the Postal Service with a copy of the Postal Service's argument that had been made earlier in the case in support of an unsuccessful motion to prevent the case from going to trial on the premise that there were no genuine issues of material fact that called for consideration by a jury. That is a document that presents the Postal Service's version of the facts and of the legal arguments that they sought to support that motion. It was inappropriate for that information to be provided to the opinion witness. And that inappropriateness was amplified by the failure of the Postal Service's counsel to provide her with the successful argument that had been made by Sansone's lawyer in opposition to the motion and, more importantly, by the failure of Postal Service's counsel to provide her with the Court's opinion that rejected the motion. It should be added, though, that Sansone's counsel is also at fault. Why? For not having raised the matter before this Court well in advance of trial because the teaching of the Supreme Court is that the trial judge serves as what they call the gatekeeper in ruling on whether it is or is not proper for any specific proposed opinion witness to be allowed to present his or her testimony to a fact-finding jury for its consideration. And that matter came before you, just as it *982 came before me, solely at the end of the case. Now with all of that said, you may consider what has been set forth in this instruction that I have composed in explaining the determination called for in the first paragraph of the instruction, that is, give the testimony of each of the witnesses whatever weight you think it deserves, considering the reasons for the opinion, the witness’ qualifications and all of the other evidence in the case. The Service contends that this instruction erroneously invited the jury to disregard Goldstein's opinion. 7 8 The Service is right. Contrary to the court's belief, the Service did not commit a “flat-out violation of Federal Rule of Evidence 703” by giving Goldstein its summary judgment motion. Rule 703 does not govern the information that experts can have; it governs the information on which they can base their opinions. It allows experts to rely on inadmissible facts or data in forming an opinion so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed. R. Evid. 703. If Goldstein had relied on the summary judgment motion in forming her opinion, the court would have had to determine whether experts in her field “reasonably rely” on summary judgment motions in assessing someone's emotional distress—and presumably they don't. But Goldstein expressly stated that she did not rely on the summary judgment motion in forming her opinion. She read the summary judgment motion—along with Sansone's complaint and answers to interrogatories—solely to get context about the case. She based her opinion on the facts that she got from Sansone and his medical records. So long as those are the kinds of facts and data on which experts in her field reasonably rely—and presumably they are—her opinion satisfied Rule 703. Any suggestion that Goldstein was biased in favor of the Service could be explored on cross—as Sansone was doing before the court seized sua sponte on the illusory Rule 703 issue. 9 10 The district court thus erred when it told the jury that the Service had acted inappropriately by giving Goldstein the summary judgment motion and suggesting that it would have excluded her testimony had it learned about the issue earlier. Even so, “a new trial is required only if the flawed instruction could have confused or misled the jury causing prejudice to the complaining party.” Sansone says that the Service was not prejudiced because Goldstein testified that she didn't rely on the summary judgment motion, the court permitted the jury to consider her testimony, and the instruction emphasized that Sansone was also to blame for not raising the issue earlier. None of those things blunted the effect of the district court's erroneous instruction, which all but told the jury that it shouldn't trust anything that Goldstein had said. This not only misled the jury but also invaded the jury's function in assessing witness credibility. See At the very least, the instruction left the jury unsure what to make of Goldstein's testimony. See ; The prejudice was particularly acute given what had happened earlier in the trial. See Susan Wakeen Doll Co., The court interrupted the cross-examination of Goldstein to admonish her, expressing incredulity that she had read the summary judgment motion. See United The instructions therefore invited the jury to act on the skepticism that the court had already sowed. In short, the instruction was erroneous and prejudicial. But because Goldstein's testimony went solely to compensatory damages, we remand for a new trial on that issue only. See MCI Commc'ns IV. The Service's final argument is that the court erred by awarding Sansone equitable relief in the form of back and front pay for the time after he retired. It contends that constructive discharge is required for equitable relief; because Sansone was never actively or constructively discharged, it says, he does not qualify. 11 12 Sansone argues that the Service waived this argument by failing to raise it below. What he means to say, however, is that the Service forfeited this argument. See Waiver is intentionally abandoning a known right. United Forfeiture occurs when a party fails to make an argument because of accident or neglect. That's what Sansone says that the Service did here. 13 The Service insists that it raised this argument—that Sansone failed to prove actual or constructive discharge and thus could not receive back or front pay—in its damages brief to the district court. This is wishful thinking. The damages brief focused on two things: (1) errors that the court made based on the evidence at trial and (2) why Sansone's award should be offset by his retirement benefits. And the sole legal citation in the entire brief went to the offset issue. Indeed, only one sentence in the analysis section of its brief mentioned that Sansone chose to retire. Read in isolation, that reference might gesture toward a lack of actual or constructive discharge—but the rest of that sentence continued the brief's focus on offsetting damages with Sansone's retirement benefits. The very best we can say—and it is a stretch—is that the Service raised the “general issue” in its damages brief. Avoiding forfeiture requires more. See F.3d 776, * * * We VACATE the judgment and REMAND for a new trial on the damages issue. We AFFIRM it with respect to the Service's liability, the award of back and *984 front pay, and the award of attorneys’ fees and expenses.

Schmidt v. Foster

I dissent from the majority opinion for three reasons. First, I disagree that clearly established Supreme Court precedent dictates the resolution of Schmidt's Sixth Amendment claim. The majority says that this ex parte and in camera proceeding was a “critical stage,” but the Court's “critical stage” precedent deals exclusively with adversarial confrontations between the defendant and an agent of the State. Second, the majority suggests that even if the presence of an adversary is necessary, the judge played that role. The procedural context and transcript, however, provide ample grounds for a fairminded jurist to conclude otherwise. Finally, I disagree with the majority that the Wisconsin Court of Appeals unreasonably applied federal law in deciding that this proceeding did not risk substantial prejudice to Schmidt. The prejudice alleged is that Schmidt's wandering testimony cluttered the record with irrelevant details that distracted the judge from Schmidt's best evidence. This proceeding, however, supplemented the defense's written offer of proof detailing Schmidt's evidence of adequate provocation. A fairminded jurist could conclude that the written summary of Schmidt's evidence kept the judge from losing the forest for the trees. I. Because the Wisconsin Court of Appeals adjudicated Schmidt's Sixth Amendment claim on the merits, the Anti-Terrorism *322 and Effective Death Penalty Act of 1996 (AEDPA) prevents us from granting his application for a writ of habeas corpus unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The majority's description of this case as “unprecedented” and “highly unusual” gives away the fact that the opinion enters territory that the Supreme Court has not broached. Existing Supreme Court precedent addresses a defendant's right to counsel in certain adversarial confrontations with a prosecutor, the police, or an agent of either. No Supreme Court precedent addresses the question presented by this case: whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding. Because there is no clearly established Supreme Court precedent for the Wisconsin Court of Appeals to have unreasonably applied, Schmidt cannot satisfy § 2254(d)(1)'s stringent standard for relief. A. The majority describes Supreme Court precedent as “clearly stand[ing] for the proposition that” counsel is “required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Majority Op. at 312 (citing Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ). That states the rule at too high a level of generality. The Court's “critical stage” precedent deals exclusively with a defendant's right to counsel in adversarial confrontations with law enforcement. And the connection between the right to counsel and an adversarial confrontation is by no means a mere side-light in the cases; it is central to them. The Court has rooted the right to counsel in the need to protect the defendant when he faces the prosecuting authority. In United States v. Ash, it explained that the right emerged alongside the introduction of a “government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” 413 U.S. 300, 308, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (citing F. Heller, The Sixth Amendment 20–21 (1951) ). Consistent with this history, the Sixth Amendment was designed “to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official.” Id. at 309, 93 S.Ct. 2568. While the Amendment's protection is not limited to the formal trial, “[t]he Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.” Id. at 311, 93 S.Ct. 2568. The “new contexts” to which the Court has extended the right invariably involve a confrontation between the defendant and his adversary, be it a prosecutor, the police, or one of their agents. For example, in Estelle v. Smith, a psychiatrist functioning as an “agent of the State” performed an examination of the defendant in his jail cell. 451 U.S. 454, 467, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).1 In *323 Coleman v. Alabama, the defendant attended a preliminary hearing at which there was an opportunity to cross-examine the prosecution's witnesses, preview the prosecutor's case to better prepare for trial, and argue for matters such as “the necessity for an early psychiatric examination or bail.” 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (plurality opinion). In United States v. Wade, an FBI agent conducted a lineup of Wade and several other prisoners. 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Mempa v. Rhay, the defendant was summoned to a hearing at which the prosecutor sought to have his probation revoked and a sentence imposed. 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). In Massiah v. United States, federal agents sent an informant wearing a wire to elicit incriminating testimony from the defendant after he had already been indicted. 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Escobedo v. Illinois, the police interrogated the defendant without counsel despite his repeated requests that counsel be present. 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In White v. Maryland, the prosecutor presented a prima facie case against the defendant at a preliminary hearing, where the defendant pleaded guilty. 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam).2 In Hamilton v. Alabama, the defendant faced the prosecutor at arraignment, which was his only opportunity to plead insanity, make pleas in abatement, and move to quash the indictment based on racial discrimination in the composition of the grand jury. 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Although these confrontations occurred outside the context of the formal trial, the Sixth Amendment applied because they “offered opportunities for prosecuting authorities to take advantage of the accused,” or the risk that the accused “might be misled by his lack of familiarity with the law.” Ash, 413 U.S. at 312, 317, 93 S.Ct. 2568.3 *324 Ash includes a line that is susceptible to misinterpretation. There, the Court said that a stage is critical when “the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” Id. at 310, 93 S.Ct. 2568. This language could be understood as setting up alternative settings—one non-adversarial and the other adversarial—in which the right to counsel applies. In context, however, it is evident that the Court was explaining why it has extended the right of counsel not only to situations in which the defendant or his witness is questioned by the police or prosecutor (as in post-indictment interrogation of the accused or examination at trial), but also to situations in which the prosecutor puts the accused to a procedural choice (like entering a plea or raising a defense). In other words, Ash describes two kinds of risks that an accused might face in an adversarial setting. It does not describe the right to counsel as extending outside of an adversarial proceeding, and the Court has not understood it that way. To the contrary, the Court has never extended the right outside of the adversarial context. And when it has refused to extend the right, it has done so on the ground that the proceeding was not adversarial. Ash refused to extend the right of counsel to a post-indictment photographic display precisely because the display involved no confrontation between the accused and the prosecuting authority. 413 U.S. at 315, 321, 93 S.Ct. 2568. Similarly, in Gerstein v. Pugh, the Court held that a probable cause hearing is not a critical stage “[b]ecause of its limited function and its nonadversary character.” 420 U.S. 103, 122, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). We too have recognized the presence of an adversary as a necessary factor for Sixth Amendment protection. In United States v. Jackson, 886 F.2d 838, 844 (7th Cir. 1989), for example, we held that a defendant's uncounseled interview with a probation officer in the course of the officer's preparation of the presentence report was not a critical stage precisely because the “probation officer does not have an adversarial role in the sentencing proceedings.” Rather than serving as an arm of the prosecutor, “the probation officer serves as a neutral information gatherer for the sentencing judge.” Id. B. The majority acknowledges that the Court has never addressed a claim like Schmidt's. But it points out that a case *325 need not present facts identical to those previously considered by the Court for clearly established precedent to govern it. The Court has said that a state court acts unreasonably for purposes of § 2254(d)(1) if it “refuses to extend [controlling Supreme Court precedent] to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The majority reasons that the Wisconsin trial court's questioning of Schmidt is such a context—not one that the Court has confronted before, but one to which its “critical stage” precedent clearly extends. This reasoning only works, however, if the controlling precedent is read at the level of generality the majority proposes—as establishing the right to counsel in any post-indictment proceeding in which legal assistance would help the accused avoid substantial prejudice. If that is the law, then we need to decide whether the state court unreasonably refused to apply it to this new context. But if the precedent is read more narrowly—as establishing the right to counsel when the accused faces his adversary—then clearly established law does not dictate the outcome. Resolving the Sixth Amendment question therefore requires us to decide the level of generality at which to read the Supreme Court's precedent. Carey v. Musladin answers that question: we track the level of generality at which the Court has spoken. 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). In Carey, the Court reviewed the Ninth Circuit's determination that buttons with the victim's image worn by courtroom spectators had deprived the habeas petitioner of a fair trial. The Court had previously held that certain state-sponsored practices (like compelling a defendant to wear prison clothing at trial) were “inherently prejudicial,” and the Ninth Circuit reasoned that the buttons posed a similar risk. The Court rejected that reasoning. The Ninth Circuit interpreted the Court's precedent as establishing a general rule against courtroom conduct inherently prejudicial to the defendant; it should have interpreted the Court's precedent as establishing a more specific rule against state-sponsored courtroom conduct inherently prejudicial to the defendant. Id. at 76, 127 S.Ct. 649. The Court emphasized that it “ha[d] never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” Id. By stating the rule more broadly than the Court had, the Ninth Circuit held the state responsible for violating law that was not clearly established. So here. The Court has never addressed a claim that a defendant has a right to counsel in an ex parte and in camera proceeding before a judge. Like the Ninth Circuit in Carey, the majority errs by stating the established law at a higher level of generality than the Court has. Indeed, the centrality of adversarial confrontation to the Court's “critical stage” jurisprudence makes the extraction of a general principle from a more specific rule even more evident here than it was in Carey. To be clear, Carey is not inconsistent with the Court's admonition in Williams v. Taylor that a state court acts unreasonably if it “refuses to extend [controlling Supreme Court precedent] to a new context where it should apply.” 529 U.S. at 407, 120 S.Ct. 1495. A state court cannot treat the Court's clearly established precedent as fact-bound. On the contrary, a state court, like a reviewing federal court, must respect the level of generality at which the Court has spoken. Just as a federal court cannot elevate the level of generality, a state court cannot contract it. Thus, a state court would act unreasonably if it refused to recognize a defendant's *326 right to counsel in a post-indictment, adversarial proceeding on the ground that the proceeding was not exactly the same as those the Court has previously addressed. Clearly established law does not entitle the defendant to counsel in a laundry list of specific proceedings, but in “proceedings between an individual and agents of the State ... that amount to ‘trial-like confrontations,’ at which counsel would help the accused ‘in coping with legal problems or ... meeting his adversary.’ ” Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (citations omitted). The state court is obliged to follow that rule, even if the factual circumstance is new. But under AEDPA, we cannot hold the state court accountable for declining to expand the rule itself. Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt's case. But AEDPA precludes us from disturbing a state court's judgment on the ground that a state court decided an open question differently than we would—or, for that matter, differently than we think the Court would. Because the Court has never addressed the question that the Wisconsin Court of Appeals faced, there was no clearly established precedent for it to flout. II. The majority does not rely exclusively on an extension of the Court's “critical stage” cases to nonadversarial proceedings. Its opinion appears to rest on a second rationale: that this proceeding was functionally adversarial. While it stops short of actually calling the judge the defendant's “adversary,” it strongly implies that the judge stood in the shoes of the prosecutor. The majority's reasoning, then, seems to be twofold. Clearly established Supreme Court precedent is not limited to adversarial proceedings, but in any event, this proceeding was functionally adversarial and risked substantial prejudice to Schmidt. In concluding otherwise, the Wisconsin Court of Appeals unreasonably applied clearly established federal law. The majority gives too little deference to the Wisconsin Court of Appeals. A state-court decision is “unreasonable” under § 2254(d) if it is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woods v. Etherton, ––– U.S. ––––, 136 S.Ct. 1149, 1151, 194 L.Ed.2d 333 (2016) (per curiam) (citation and quotation marks omitted); see also Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.”). That is a high bar, and Schmidt does not clear it. A. The majority holds that the Wisconsin Court of Appeals unreasonably applied the Court's “critical stage” jurisprudence when it concluded that the ex parte and in camera proceeding was nonadversarial. Given the prosecutor's absence, it was certainly not “adversarial” in the ordinary sense of the word—or in the sense that the Court has employed it in the cases. In an effort to get around that, the majority characterizes the proceeding as “inquisitorial.” If used in its benign sense—as referring to the system of proof-taking in civil law systems—the word “inquisitorial” by definition means nonadversarial. See Majority Op. at 311 n.3. At some points in its opinion, the majority concedes that the proceeding was nonadversarial and faults it on that ground. See, e.g., *327 Majority Op. at 311. (That concession, of course, forecloses the argument that the Wisconsin Court of Appeals unreasonably characterized the ex parte and in camera hearing as a nonadversarial one.) Elsewhere, however, the majority asserts that the proceeding was adversarial. Majority Op. at 315–16. This suggests that the majority is using the description “inquisitorial” as it is often deployed in American criminal cases—to describe a proceeding in which the accused faces an aggressive questioner gathering evidence against him. See, e.g., Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Miranda v. Arizona, 384 U.S. 436, 442–43, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). And while the majority does not attribute ill will to the judge, it does cast him as Schmidt's adversary. Majority Op. at 315–16 (asserting that the hearing was a “trial-like confrontation” in which “the judge took the accused and his (silenced) lawyer into chambers to question him about the facts supporting the defense”). The transcript, however, contains no suggestion that the judge ever functioned as a surrogate prosecutor. His aim was not to secure Schmidt's conviction—or, as specifically relevant here, to establish that Schmidt was not entitled to raise the “adequate provocation” defense. On the contrary, as the Wisconsin Court of Appeals observed, the judge conducted the proceeding this way for Schmidt's benefit. The hearing grew out of a dispute between the parties about when the trial court would decide whether Schmidt had sufficient evidence to put the “adequate provocation” defense in issue. Schmidt argued that Wisconsin law required the court to wait to resolve that question until it instructed the jury; doing it before trial, he insisted, would give the prosecution a preview of his case. The State wanted the court to rule on the admissibility of Schmidt's evidence before trial; otherwise, it argued, the jury would hear a litany of prejudicial evidence about the victim that might not be probative of an issue actually in the case. The court agreed with the State. It decided—in a ruling that the Wisconsin Court of Appeals ultimately affirmed—that Wisconsin law gave the trial court the discretion to determine before trial whether the defendant could carry his burden of production on the “adequate provocation” defense. While the judge decided to make the evidentiary determination before trial, he was sympathetic to Schmidt's concern about showing the prosecutor his hand. He proposed the ex parte and in camera hearing as a way of addressing that concern. Defense counsel responded as follows to the court's proposal: A suggestion that I was going to bring up today is that the Court, if you are going to ask for evidence from the defendant or evidence that goes to his subjective belief for adequate provocation, is that, in fact, we would do an ex parte in-camera inspection of the Court and the defendant and seal those records because I don't think it would be—it should be allowed to the State and should have that information prior to trial. Transcript of Motion Hearing 2.10.2010 at 5. The court wanted defense counsel to accompany Schmidt, but because the prosecution was barred from the hearing, the court instructed defense counsel to function as an observer only. The prosecutor agreed to the proceeding on that condition. Had Schmidt's counsel actively participated, the judge would have included the prosecutor, and Schmidt wanted the prosecutor out of the room. The majority puts little weight on the prosecutor's absence, because it suggests that the judge filled the prosecutor's *328 shoes.4 The judge, however, spoke very little during the hearing. Instead, he primarily listened as Schmidt testified about his state of mind before he shot his wife.5 And far from positioning himself as Schmidt's adversary, the judge tried to help him by calling a recess so that Schmidt could review the written offer of proof with his counsel.6 The offer of proof was a roadmap for Schmidt's testimony. It contained a timeline of the allegedly provocative events, and the judge wanted Schmidt to refresh his memory so that he didn't overlook any. Before the recess, he told Schmidt “that you might not state all of the things that are in the offer of proof, possibly because you ... haven't had an opportunity to review this.” Transcript of Proceedings at 25. When the hearing resumed, the judge asked Schmidt how the incidents described in the document might have affected his state of mind. In retrospect, it may have been better for the judge to decline Schmidt's request for an ex parte and in camera hearing. There would be no Sixth Amendment question before us if the judge had proceeded in the normal course, with both lawyers participating. That said, the judge structured the hearing as he did in an effort to accommodate Schmidt, and the transcript reflects that the judge remained neutral throughout it. It was therefore reasonable for the Wisconsin Court of Appeals to conclude that this was not a trial-like confrontation in which Schmidt was entitled to counsel to “compensate[ ] for advantages of the prosecuting authorities.” Ash, 413 U.S. at 314, 93 S.Ct. 2568. B. It is not enough for Schmidt to demonstrate that the Wisconsin Court of Appeals unreasonably concluded that this proceeding was nonadversarial. To secure relief, Schmidt must also show that no fairminded judge could conclude that this hearing lacked the potential to substantially prejudice him. That is yet another ground on which Schmidt's argument fails. According to the majority, “The prejudice [Schmidt] suffered came from disclosing irrelevant details and diluting the evidence that could support his defense.” Majority Op. at 320. In other words, Schmidt was harmed because his rambling narrative failed to focus the judge on the evidence most helpful to his “adequate provocation” defense. The idea that the judge—who knew the legal elements of *329 the adequate provocation defense—was incapable of separating the wheat from the chaff sells the judge short.7 But in any event, the judge was not left to cull the evidence without input from defense counsel. As the Wisconsin Court of Appeals said, the examination of Schmidt was supplementary. The judge went into it already having reviewed a legal analysis of the adequate provocation defense; a detailed timeline of the relevant events; the summarized testimony of 29 witnesses who observed his wife's allegedly provocative behavior; a hotel reservation that Schmidt discovered shortly before the shooting and took as evidence of his wife's infidelity; and a copy of a statement that Schmidt gave police at the scene that detailed some of what was in his mind when he shot his wife. So even if Schmidt's testimony cluttered the record with irrelevant details, the written evidence focused the judge on the key facts. The Wisconsin Court of Appeals acknowledged that it might have been more efficient to have counsel guide the presentation of Schmidt's testimony. But the fact that the participation of counsel would have been helpful to Schmidt does not necessarily mean that the lack of counsel risked substantial prejudice to him. A fairminded jurist could find that this proceeding, which was reinforced by written evidence, did not risk substantial unfair prejudice to Schmidt. III. Because the majority holds that Schmidt is entitled to relief on his Sixth Amendment claim, it does not reach Schmidt's claim that the ex parte and in camera hearing arbitrarily violated his due process right to present a defense. For the sake of completeness, I briefly note that I would deny relief on this claim as well. In both the Wisconsin Court of Appeals and the federal district court, Schmidt asserted a claim under Chambers v. Mississippi, which holds that state evidentiary rules must yield to the defendant's due-process right to present a defense. 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). According to Schmidt, Wisconsin violated the Due Process Clause by requiring him to satisfy a burden of production (that he produce “some evidence” of adequate provocation) before he could introduce evidence of that defense at trial. Both the Wisconsin Court of Appeals and the federal district court correctly rejected that claim, because, among other things, none of the cases in which the Chambers principle has prevailed (and it has prevailed only rarely) “involved restrictions imposed on a defendant's ability to present an affirmative defense.” Gilmore v. Taylor, 508 U.S. 333, 343, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993); see also Kubsch v. Neal, 838 F.3d 845, 858 (7th Cir. 2016) (en banc) (discussing Chambers and its progeny). Adequate provocation in Wisconsin is an affirmative defense. Wis. Stat. § 939.44(2). *330 Presumably recognizing the weakness of his Chambers claim, Schmidt has repackaged his due process argument into a new claim. Before us, he argues not that Wisconsin's evidentiary rules must yield to his due process right to put on a defense, but that the trial court's use of the ex parte and in camera process violated the Due Process Clause. Because Schmidt did not raise this claim in either the Wisconsin Court of Appeals or the federal district court, I would deny it as both procedurally defaulted and forfeited. * * * The standard for relief under AEDPA is intentionally difficult because federal habeas review of state convictions “frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Calderon v. Thompson, 523 U.S. 538, 555–56, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citation and quotation marks omitted). To reinforce that point, the Court has not hesitated to reverse the courts of appeals when they fail to give state courts the deference that AEDPA requires. See, e.g., Woods, ––– U.S. ––––, 136 S.Ct. 1149; Woods v. Donald, ––– U.S. ––––, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015) (per curiam); White v. Wheeler, ––– U.S. ––––, 136 S.Ct. 456, 193 L.Ed.2d 384 (2015) (per curiam); Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013) (per curiam); Nevada v. Jackson, 569 U.S. 505, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013) (per curiam); Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam); Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). The majority fails to give the Wisconsin Court of Appeals the required deference, and I therefore dissent.

Barrett

majority

I dissent from the majority opinion for three reasons. First, I disagree that clearly established Supreme Court precedent dictates the resolution of Schmidt's Sixth Amendment claim. The majority says that this ex parte and in camera proceeding was a “critical stage,” but the Court's “critical stage” precedent deals exclusively with adversarial confrontations between the defendant and an agent of the State. Second, the majority suggests that even if the presence of an adversary is necessary, the judge played that role. The procedural context and transcript, however, provide ample grounds for a fairminded jurist to conclude otherwise. Finally, I disagree with the majority that the Wisconsin Court of Appeals unreasonably applied federal law in deciding that this proceeding did not risk substantial prejudice to Schmidt. The prejudice alleged is that Schmidt's wandering testimony cluttered the record with irrelevant details that distracted the judge from Schmidt's best evidence. This proceeding, however, supplemented the defense's written offer of proof detailing Schmidt's evidence of adequate provocation. A fairminded jurist could conclude that the written summary of Schmidt's evidence kept the judge from losing the forest for the trees. I. Because the Wisconsin Court of Appeals adjudicated Schmidt's Sixth Amendment claim on the merits, the Anti-Terrorism *322 and Effective Death Penalty Act of 16 (AEDPA) prevents us from granting his application for a writ of habeas corpus unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” (d)(1). The majority's description of this case as “unprecedented” and “highly unusual” gives away the fact that the opinion enters territory that the Supreme Court has not broached. Existing Supreme Court precedent addresses a defendant's right to counsel in certain adversarial confrontations with a prosecutor, the police, or an agent of either. No Supreme Court precedent addresses the question presented by this case: whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding. Because there is no clearly established Supreme Court precedent for the Wisconsin Court of Appeals to have unreasonably applied, Schmidt cannot satisfy 2254(d)(1)'s stringent standard for relief. A. The majority describes Supreme Court precedent as “clearly stand[ing] for the proposition that” counsel is “required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Majority Op. at 312 ). That states the rule at too high a level of generality. The Court's “critical stage” precedent deals exclusively with a defendant's right to counsel in adversarial confrontations with law enforcement. And the connection between the right to counsel and an adversarial confrontation is by no means a mere side-light in the cases; it is central to them. The Court has rooted the right to counsel in the need to protect the defendant when he faces the prosecuting authority. In United States v. it explained that the right emerged alongside the introduction of a “government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” Consistent with this history, the Sixth Amendment was designed “to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official.” While the Amendment's protection is not limited to the formal trial, “[t]he Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.” The “new contexts” to which the Court has extended the right invariably involve a confrontation between the defendant and his adversary, be it a prosecutor, the police, or one of their agents. For example, in Estelle v. Smith, a psychiatrist functioning as an “agent of the State” performed an examination of the defendant in his jail cell.1 In *323 Coleman v. Alabama, the defendant attended a preliminary hearing at which there was an opportunity to cross-examine the prosecution's witnesses, preview the prosecutor's case to better prepare for trial, and argue for matters such as “the necessity for an early psychiatric examination or bail.” 0 S.Ct. 1, In United States v. Wade, an FBI agent conducted a lineup of Wade and several other prisoners. 87 S.Ct. 126, 18 L.Ed.2d 114 In the defendant was summoned to a hearing at which the prosecutor sought to have his probation revoked and a sentence imposed. In Massiah v. United States, federal agents sent an informant wearing a wire to elicit incriminating testimony from the defendant after he had already been indicted. 84 S.Ct. 11, (164). In Escobedo v. Illinois, the police interrogated the defendant without counsel despite his repeated requests that counsel be present. 12 L.Ed.2d 77 (164). In White v. Maryland, the prosecutor presented a prima facie case against the defendant at a preliminary hearing, where the defendant pleaded guilty. 373 U.S. 5, 10 L.Ed.2d 13 (163)2 In Hamilton v. Alabama, the defendant faced the prosecutor at arraignment, which was his only opportunity to plead insanity, make pleas in abatement, and move to quash the indictment based on racial discrimination in the composition of the grand jury. (161). Although these confrontations occurred outside the context of the formal trial, the Sixth Amendment applied because they “offered opportunities for prosecuting authorities to take advantage of the accused,” or the risk that the accused “might be misled by his lack of familiarity with the law.” 317,3 *324 includes a line that is susceptible to misinterpretation. There, the Court said that a stage is critical when “the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” This language could be understood as setting up alternative settings—one non-adversarial and the other adversarial—in which the right to counsel applies. In context, however, it is evident that the Court was explaining why it has extended the right of counsel not only to situations in which the defendant or his witness is questioned by the police or prosecutor (as in post-indictment interrogation of the accused or examination at trial), but also to situations in which the prosecutor puts the accused to a procedural choice (like entering a plea or raising a defense). In other words, describes two kinds of risks that an accused might face in an adversarial setting. It does not describe the right to counsel as extending outside of an adversarial proceeding, and the Court has not understood it that way. To the contrary, the Court has never extended the right outside of the adversarial context. And when it has refused to extend the right, it has done so on the ground that the proceeding was not adversarial. refused to extend the right of counsel to a post-indictment photographic display precisely because the display involved no confrontation between the accused and the prosecuting authority. 321, Similarly, in Gerstein v. Pugh, the Court held that a probable cause hearing is not a critical stage “[b]ecause of its limited function and its nonadversary character.” 5 S.Ct. 854, (175). We too have recognized the presence of an adversary as a necessary factor for Sixth Amendment protection. In United (7th Cir. 18), for example, we held that a defendant's uncounseled interview with a probation officer in the course of the officer's preparation of the presentence report was not a critical stage precisely because the “probation officer does not have an adversarial role in the sentencing proceedings.” Rather than serving as an arm of the prosecutor, “the probation officer serves as a neutral information gatherer for the sentencing judge.” B. The majority acknowledges that the Court has never addressed a claim like Schmidt's. But it points out that a case *325 need not present facts identical to those previously considered by the Court for clearly established precedent to govern it. The Court has said that a state court acts unreasonably for purposes of 2254(d)(1) if it “refuses to extend [controlling Supreme Court precedent] to a new context where it should apply.” 52 U.S. 362, 120 S.Ct. 145, 146 L.Ed.2d 38 The majority reasons that the Wisconsin trial court's questioning of Schmidt is such a context—not one that the Court has confronted before, but one to which its “critical stage” precedent clearly extends. This reasoning only works, however, if the controlling precedent is read at the level of generality the majority proposes—as establishing the right to counsel in any post-indictment proceeding in which legal assistance would help the accused avoid substantial prejudice. If that is the law, then we need to decide whether the state court unreasonably refused to apply it to this new context. But if the precedent is read more narrowly—as establishing the right to counsel when the accused faces his adversary—then clearly established law does not dictate the outcome. Resolving the Sixth Amendment question therefore requires us to decide the level of generality at which to read the Supreme Court's precedent. Carey v. Musladin answers that question: we track the level of generality at which the Court has spoken. 54 U.S. 70, 127 S.Ct. 64, In Carey, the Court reviewed the Ninth Circuit's determination that buttons with the victim's image worn by courtroom spectators had deprived the habeas petitioner of a fair trial. The Court had previously held that certain state-sponsored practices (like compelling a defendant to wear prison clothing at trial) were “inherently prejudicial,” and the Ninth Circuit reasoned that the buttons posed a similar risk. The Court rejected that reasoning. The Ninth Circuit interpreted the Court's precedent as establishing a general rule against courtroom conduct inherently prejudicial to the defendant; it should have interpreted the Court's precedent as establishing a more specific rule against state-sponsored courtroom conduct inherently prejudicial to the defendant. 127 S.Ct. 64. The Court emphasized that it “ha[d] never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” By stating the rule more broadly than the Court had, the Ninth Circuit held the state responsible for violating law that was not clearly established. So here. The Court has never addressed a claim that a defendant has a right to counsel in an ex parte and in camera proceeding before a judge. Like the Ninth Circuit in Carey, the majority errs by stating the established law at a higher level of generality than the Court has. Indeed, the centrality of adversarial confrontation to the Court's “critical stage” jurisprudence makes the extraction of a general principle from a more specific rule even more evident here than it was in Carey. To be clear, Carey is not inconsistent with the Court's admonition in that a state court acts unreasonably if it “refuses to extend [controlling Supreme Court precedent] to a new context where it should apply.” 52 U.S. at 120 S.Ct. 145. A state court cannot treat the Court's clearly established precedent as fact-bound. On the contrary, a state court, like a reviewing federal court, must respect the level of generality at which the Court has spoken. Just as a federal court cannot elevate the level of generality, a state court cannot contract it. Thus, a state court would act unreasonably if it refused to recognize a defendant's *326 right to counsel in a post-indictment, adversarial proceeding on the ground that the proceeding was not exactly the same as those the Court has previously addressed. Clearly established law does not entitle the defendant to counsel in a laundry list of specific proceedings, but in “proceedings between an individual and agents of the State that amount to ‘trial-like confrontations,’ at which counsel would help the accused ‘in coping with legal problems or meeting his adversary.’ ” 554 U.S. 11, The state court is obliged to follow that rule, even if the factual circumstance is new. But under AEDPA, we cannot hold the state court accountable for declining to expand the rule itself. Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt's case. But AEDPA precludes us from disturbing a state court's judgment on the ground that a state court decided an open question differently than we would—or, for that matter, differently than we think the Court would. Because the Court has never addressed the question that the Wisconsin Court of Appeals faced, there was no clearly established precedent for it to flout. II. The majority does not rely exclusively on an extension of the Court's “critical stage” cases to nonadversarial proceedings. Its opinion appears to rest on a second rationale: that this proceeding was functionally adversarial. While it stops short of actually calling the judge the defendant's “adversary,” it strongly implies that the judge stood in the shoes of the prosecutor. The majority's reasoning, then, seems to be twofold. Clearly established Supreme Court precedent is not limited to adversarial proceedings, but in any event, this proceeding was functionally adversarial and risked substantial prejudice to Schmidt. In concluding otherwise, the Wisconsin Court of Appeals unreasonably applied clearly established federal law. The majority gives too little deference to the Wisconsin Court of Appeals. A state-court decision is “unreasonable” under 2254(d) if it is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” 136 S.Ct. 114, 14 L.Ed.2d 333 ; see also That is a high bar, and Schmidt does not clear it. A. The majority holds that the Wisconsin Court of Appeals unreasonably applied the Court's “critical stage” jurisprudence when it concluded that the ex parte and in camera proceeding was nonadversarial. Given the prosecutor's absence, it was certainly not “adversarial” in the ordinary sense of the word—or in the sense that the Court has employed it in the cases. In an effort to get around that, the majority characterizes the proceeding as “inquisitorial.” If used in its benign sense—as referring to the system of proof-taking in civil law systems—the word “inquisitorial” by definition means nonadversarial. See Majority Op. n.3. At some points in its opinion, the majority concedes that the proceeding was nonadversarial and faults it on that ground. See, e.g., *327 Majority Op. (That concession, of course, forecloses the argument that the Wisconsin Court of Appeals unreasonably characterized the ex parte and in camera hearing as a nonadversarial one.) Elsewhere, however, the majority asserts that the proceeding was adversarial. Majority Op. at 315–16. This suggests that the majority is using the description “inquisitorial” as it is often deployed in American criminal cases—to describe a proceeding in which the accused faces an aggressive questioner gathering evidence against him. See, e.g., (185); 442–43, 16 L.Ed.2d 64 (166). And while the majority does not attribute ill will to the judge, it does cast him as Schmidt's adversary. Majority Op. at 315–16 (asserting that the hearing was a “trial-like confrontation” in which “the judge took the accused and his (silenced) lawyer into chambers to question him about the facts supporting the defense”). The transcript, however, contains no suggestion that the judge ever functioned as a surrogate prosecutor. His aim was not to secure Schmidt's conviction—or, as specifically relevant here, to establish that Schmidt was not entitled to raise the “adequate provocation” defense. On the contrary, as the Wisconsin Court of Appeals observed, the judge conducted the proceeding this way for Schmidt's benefit. The hearing grew out of a dispute between the parties about when the trial court would decide whether Schmidt had sufficient evidence to put the “adequate provocation” defense in issue. Schmidt argued that Wisconsin law required the court to wait to resolve that question until it instructed the jury; doing it before trial, he insisted, would give the prosecution a preview of his case. The State wanted the court to rule on the admissibility of Schmidt's evidence before trial; otherwise, it argued, the jury would hear a litany of prejudicial evidence about the victim that might not be probative of an issue actually in the case. The court agreed with the State. It decided—in a ruling that the Wisconsin Court of Appeals ultimately affirmed—that Wisconsin law gave the trial court the discretion to determine before trial whether the defendant could carry his burden of production on the “adequate provocation” defense. While the judge decided to make the evidentiary determination before trial, he was sympathetic to Schmidt's concern about showing the prosecutor his hand. He proposed the ex parte and in camera hearing as a way of addressing that concern. Defense counsel responded as follows to the court's proposal: A suggestion that I was going to bring up today is that the Court, if you are going to ask for evidence from the defendant or evidence that goes to his subjective belief for adequate provocation, is that, in fact, we would do an ex parte in-camera inspection of the Court and the defendant and seal those records because I don't think it would be—it should be allowed to the State and should have that information prior to trial. Transcript of Motion Hearing 2.10. at 5. The court wanted defense counsel to accompany Schmidt, but because the prosecution was barred from the hearing, the court instructed defense counsel to function as an observer only. The prosecutor agreed to the proceeding on that condition. Had Schmidt's counsel actively participated, the judge would have included the prosecutor, and Schmidt wanted the prosecutor out of the room. The majority puts little weight on the prosecutor's absence, because it suggests that the judge filled the prosecutor's *328 shoes.4 The judge, however, spoke very little during the hearing. Instead, he primarily listened as Schmidt testified about his state of mind before he shot his wife.5 And far from positioning himself as Schmidt's adversary, the judge tried to help him by calling a recess so that Schmidt could review the written offer of proof with his counsel.6 The offer of proof was a roadmap for Schmidt's testimony. It contained a timeline of the allegedly provocative events, and the judge wanted Schmidt to refresh his memory so that he didn't overlook any. Before the recess, he told Schmidt “that you might not state all of the things that are in the offer of proof, possibly because you haven't had an opportunity to review this.” Transcript of Proceedings at 25. When the hearing resumed, the judge asked Schmidt how the incidents described in the document might have affected his state of mind. In retrospect, it may have been better for the judge to decline Schmidt's request for an ex parte and in camera hearing. There would be no Sixth Amendment question before us if the judge had proceeded in the normal course, with both lawyers participating. That said, the judge structured the hearing as he did in an effort to accommodate Schmidt, and the transcript reflects that the judge remained neutral throughout it. It was therefore reasonable for the Wisconsin Court of Appeals to conclude that this was not a trial-like confrontation in which Schmidt was entitled to counsel to “compensate[ ] for advantages of the prosecuting authorities.” B. It is not enough for Schmidt to demonstrate that the Wisconsin Court of Appeals unreasonably concluded that this proceeding was nonadversarial. To secure relief, Schmidt must also show that no fairminded judge could conclude that this hearing lacked the potential to substantially prejudice him. That is yet another ground on which Schmidt's argument fails. According to the majority, “The prejudice [Schmidt] suffered came from disclosing irrelevant details and diluting the evidence that could support his defense.” Majority Op. at 320. In other words, Schmidt was harmed because his rambling narrative failed to focus the judge on the evidence most helpful to his “adequate provocation” defense. The idea that the judge—who knew the legal elements of *32 the adequate provocation defense—was incapable of separating the wheat from the chaff sells the judge short.7 But in any event, the judge was not left to cull the evidence without input from defense counsel. As the Wisconsin Court of Appeals said, the examination of Schmidt was supplementary. The judge went into it already having reviewed a legal analysis of the adequate provocation defense; a detailed timeline of the relevant events; the summarized testimony of 2 witnesses who observed his wife's allegedly provocative behavior; a hotel reservation that Schmidt discovered shortly before the shooting and took as evidence of his wife's infidelity; and a copy of a statement that Schmidt gave police at the scene that detailed some of what was in his mind when he shot his wife. So even if Schmidt's testimony cluttered the record with irrelevant details, the written evidence focused the judge on the key facts. The Wisconsin Court of Appeals acknowledged that it might have been more efficient to have counsel guide the presentation of Schmidt's testimony. But the fact that the participation of counsel would have been helpful to Schmidt does not necessarily mean that the lack of counsel risked substantial prejudice to him. A fairminded jurist could find that this proceeding, which was reinforced by written evidence, did not risk substantial unfair prejudice to Schmidt. III. Because the majority holds that Schmidt is entitled to relief on his Sixth Amendment claim, it does not reach Schmidt's claim that the ex parte and in camera hearing arbitrarily violated his due process right to present a defense. For the sake of completeness, I briefly note that I would deny relief on this claim as well. In both the Wisconsin Court of Appeals and the federal district court, Schmidt asserted a claim under Chambers v. Mississippi, which holds that state evidentiary rules must yield to the defendant's due-process right to present a defense. 3 S.Ct. 1038, 35 L.Ed.2d 27 According to Schmidt, Wisconsin violated the Due Process Clause by requiring him to satisfy a burden of production (that he produce “some evidence” of adequate provocation) before he could introduce evidence of that defense at trial. Both the Wisconsin Court of Appeals and the federal district court correctly rejected that claim, because, among other things, none of the cases in which the Chambers principle has prevailed (and it has prevailed only rarely) “involved restrictions imposed on a defendant's ability to present an affirmative defense.” (13); see also (discussing Chambers and its progeny). Adequate provocation in Wisconsin is an affirmative defense. Wis. Stat. 3.44(2). *330 Presumably recognizing the weakness of his Chambers claim, Schmidt has repackaged his due process argument into a new claim. Before us, he argues not that Wisconsin's evidentiary rules must yield to his due process right to put on a defense, but that the trial court's use of the ex parte and in camera process violated the Due Process Clause. Because Schmidt did not raise this claim in either the Wisconsin Court of Appeals or the federal district court, I would deny it as both procedurally defaulted and forfeited. * * * The standard for relief under AEDPA is intentionally difficult because federal habeas review of state convictions “frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” U.S. 538, 555–56, 118 S.Ct. 148, (18) To reinforce that point, the Court has not hesitated to reverse the courts of appeals when they fail to give state courts the deference that AEDPA requires. See, e.g., Woods, ––– U.S. ––––, 136 S.Ct. 114; 11 L.Ed.2d 464 ; 13 L.Ed.2d 384 ; 56 U.S. 58, ; 56 U.S. 505, 133 S.Ct. 10, ; ; 55 U.S. 766, The majority fails to give the Wisconsin Court of Appeals the required deference, and I therefore dissent.

Shakman v. Clerk of Circuit Court of Cook County

Many years ago, a class of plaintiffs sued the Clerk of the Circuit Court of *812 Cook County, alleging that the Clerk was engaging in unlawful political patronage in violation of the First and Fourteenth Amendments of the Constitution. In 1972, the Clerk and the plaintiffs entered into a consent decree that prohibited the Clerk from discriminating against the office's employees for political reasons, and in 1983, a separate judgment extended that prohibition to hiring practices. Litigation has continued in the ensuing decades. In 2018, unconvinced that the Clerk's office had cleaned up its act, the magistrate judge appointed a special master to monitor the Clerk's compliance with the 1972 consent decree and the 1983 judgment order. As part of her effort to determine whether the Clerk was continuing to favor political allies in employment decisions, the special master sought to observe the conduct of the Clerk's office managers at employee grievance meetings. But the employees’ union, Teamsters Local 700, didn't appreciate the scrutiny, and it sent the special master a cease-and-desist letter purporting to bar her from the room. In response, the plaintiffs sought a declaratory judgment clarifying that the 2018 supplemental relief order authorized the special master to observe the grievance meetings. The union—which was not a party to the suit and did not seek to become one—filed a memorandum opposing the plaintiffs’ motion on the grounds that the 1972 consent decree didn't provide a basis for the supplemental relief order and that the special master's presence at the meetings violated both Illinois labor law and the union's collective bargaining agreement with the Clerk. The magistrate judge agreed with the plaintiffs, and the union now appeals. Its principal argument is that the magistrate judge can't force the union to tolerate the special master because the union isn't a party to the suit. In addition to responding to the merits of this argument, the plaintiffs contend that we lack jurisdiction for two reasons. They assert that the union cannot bring this appeal because it is not a party, and they say that the magistrate judge's declaratory judgment is not an appealable final judgment under 28 U.S.C. § 1291. We agree with the plaintiffs on the first point, so we need not address the second. 1 2 Party status is a jurisdictional requirement. Felzen v. Andreas, 134 F.3d 873, 878 (7th Cir. 1998), aff'd by an equally divided Court sub nom. Cal. Pub. Emps.’ Ret. Sys. v. Felzen, 525 U.S. 315, 119 S.Ct. 720, 142 L.Ed.2d 766 (1999). This rule is deeply ingrained in the case law. Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (“The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.”); United States ex rel. Louisiana v. Boarman, 244 U.S. 397, 402, 37 S.Ct. 605, 61 L.Ed. 1222 (1917) (noting that the general bar against appeals by nonparties is “a subject no longer open to discussion”); In re Leaf Tobacco Bd. of Trade of N.Y.C., 222 U.S. 578, 581, 32 S.Ct. 833, 56 L.Ed. 323 (1911) (“One who is not a party to a record and judgment is not entitled to appeal therefrom.”); Bayard v. Lombard, 50 U.S. (9 How.) 530, 551, 13 L.Ed. 245 (1850) (“It is a well settled maxim of the law, that ‘no person can bring a writ of error to reverse a judgment who is not a party or privy to the record.’ ” (citation omitted)); Douglas v. W. Union Co., 955 F.3d 662, 665 (7th Cir. 2020).1 It appears in many of the *813 statutes governing our jurisdiction, including the Magistrate Judges Act, which is applicable here. 28 U.S.C. § 636(c)(3) (“Upon entry of judgment in any case ... an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge....”(emphasis added)). And it is reflected in the Federal Rules of Appellate Procedure, which contemplate that only parties can invoke our jurisdiction. Fed. R. App. P. 3(c)(1)(A) (requiring a notice of appeal to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” (emphasis added)). The union admits that it was not a party in the suit before the magistrate judge. Relying on Devlin v. Scardelleti, however, it argues that we must treat it as a party for purposes of the appeal. 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002). In Devlin, the Court held that an unnamed class member in a mandatory class action could appeal the district court's approval of a settlement because “nonnamed class members are parties to the proceedings in the sense of being bound by the settlement.” Id. at 10, 122 S.Ct. 2005. So too here, the union says—it is a party to the proceedings in the sense that it is bound by the magistrate judge's declaratory judgment. Like an unnamed class member, the union claims, it therefore has the right to appeal. This argument is in considerable tension with the union's position that the declaratory judgment cannot bind it because it is not a party to the litigation. In any event, though, the union is not similarly situated to the unnamed class member in Devlin. A mandatory class action settlement “finally dispose[s] of any right or claim [an unnamed class member] might have” because it has preclusive effect on the members of the class. Id. at 9, 122 S.Ct. 2005; see also Taylor v. Sturgell, 553 U.S. 880, 894, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (“Representative suits with preclusive effect on nonparties include properly conducted class actions ....”). And because an unnamed class member in a mandatory class action has “no ability to opt out of the settlement ... appealing the approval of the settlement is [the class member's] only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court may find legally inadequate.” Devlin, 536 U.S. at 10–11, 122 S.Ct. 2005. None of this is true for the union, which is not a member of the plaintiff class in the action against the Clerk.2 The union didn't necessarily have to remain a bystander to the suit. It could have moved to intervene, and if the magistrate judge had denied the motion, the union could have appealed that order. *814 Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 513, 70 S.Ct. 322, 94 L.Ed. 299 (1950) (“[A]n order denying intervention to a person having an absolute right to intervene is final and appealable.”). Rather than intervening, though, the union simply filed a memorandum in opposition to the plaintiffs’ motion for a declaratory judgment. While intervention would have clothed the union with party status, filing a memorandum did not. See Gautreaux, 475 F.3d at 852 (“Unfortunately, permitting CAC to participate in the proceedings by way of a formal motion led to a misapprehension on the part of that nonparty that it could appeal the district court's decision.”). We lack jurisdiction unless a party invokes it, so this appeal is DISMISSED.

Barrett

majority

Many years ago, a class of plaintiffs sued the Clerk of the Circuit Court of *812 Cook County, alleging that the Clerk was engaging in unlawful political patronage in violation of the First and Fourteenth Amendments of the Constitution. In 1972, the Clerk and the plaintiffs entered into a consent decree that prohibited the Clerk from discriminating against the office's employees for political reasons, and in 1983, a separate judgment extended that prohibition to hiring practices. Litigation has continued in the ensuing decades. In 2018, unconvinced that the Clerk's office had cleaned up its act, the magistrate judge appointed a special master to monitor the Clerk's compliance with the 1972 consent decree and the 1983 judgment order. As part of her effort to determine whether the Clerk was continuing to favor political allies in employment decisions, the special master sought to observe the conduct of the Clerk's office managers at employee grievance meetings. But the employees’ union, Teamsters Local 700, didn't appreciate the scrutiny, and it sent the special master a cease-and-desist letter purporting to bar her from the room. In response, the plaintiffs sought a declaratory judgment clarifying that the 2018 supplemental relief order authorized the special master to observe the grievance meetings. The union—which was not a party to the suit and did not seek to become one—filed a memorandum opposing the plaintiffs’ motion on the grounds that the 1972 consent decree didn't provide a basis for the supplemental relief order and that the special master's presence at the meetings violated both Illinois labor law and the union's collective bargaining agreement with the Clerk. The magistrate judge agreed with the plaintiffs, and the union now appeals. Its principal argument is that the magistrate judge can't force the union to tolerate the special master because the union isn't a party to the suit. In addition to responding to the merits of this argument, the plaintiffs contend that we lack jurisdiction for two reasons. They assert that the union cannot bring this appeal because it is not a party, and they say that the magistrate judge's declaratory judgment is not an appealable final judgment under We agree with the plaintiffs on the first point, so we need not address the second. 1 2 Party status is a jurisdictional requirement. aff'd by an equally divided Court sub nom. Cal. Pub. Emps.’ Ret. This rule is deeply ingrained in the case law. ; United States ex rel. ; In re Leaf Tobacco Bd. of Trade of N.Y.C., ; ;1 It appears in many of the *813 statutes governing our jurisdiction, including the Magistrate Judges Act, which is applicable here. (c)(3) And it is reflected in the Federal Rules of Appellate Procedure, which contemplate that only parties can invoke our jurisdiction. Fed. R. App. P. 3(c)(1)(A) (requiring a notice of appeal to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” (emphasis added)). The union admits that it was not a party in the suit before the magistrate judge. Relying on Devlin v. Scardelleti, however, it argues that we must treat it as a party for purposes of the appeal. In Devlin, the Court held that an unnamed class member in a mandatory class action could appeal the district court's approval of a settlement because “nonnamed class members are parties to the proceedings in the sense of being bound by the settlement.” So too here, the union says—it is a party to the proceedings in the sense that it is bound by the magistrate judge's declaratory judgment. Like an unnamed class member, the union claims, it therefore has the right to appeal. This argument is in considerable tension with the union's position that the declaratory judgment cannot bind it because it is not a party to the litigation. In any event, though, the union is not similarly situated to the unnamed class member in Devlin. A mandatory class action settlement “finally dispose[s] of any right or claim [an unnamed class member] might have” because it has preclusive effect on the members of the class. And because an unnamed class member in a mandatory class action has “no ability to opt out of the settlement appealing the approval of the settlement is [the class member's] only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court may find legally inadequate.” Devlin, 536 U.S. –11, None of this is true for the union, which is not a member of the plaintiff class in the action against the Clerk.2 The union didn't necessarily have to remain a bystander to the suit. It could have moved to intervene, and if the magistrate judge had denied the motion, the union could have appealed that order. *814 Rather than intervening, though, the union simply filed a memorandum in opposition to the plaintiffs’ motion for a declaratory judgment. While intervention would have clothed the union with party status, filing a memorandum did not. See We lack jurisdiction unless a party invokes it, so this appeal is DISMISSED.

Sims v. Hyatte

I dissent from the majority opinion because it fails to give the Indiana Court of Appeals the deference required by 28 U.S.C. § 2254(d). Under that provision, a federal court may grant habeas relief only if the state court proceedings (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The majority holds that the Indiana Court of Appeals' decision satisfies § 2254(d)(1). I disagree. Even though I think that the undisclosed evidence of Carey's hypnosis constitutes a Brady violation, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise. I. The Indiana Court of Appeals' decision to deny Sims's petition for post-conviction relief was not “contrary to” clearly established law as determined by the Supreme Court of the United States. A decision is “contrary to” clearly established federal law if it (1) “applies a rule different from the governing law set forth in our cases” or (2) “decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). To apply this standard, we must first consider what rule has been clearly set forth in the Supreme Court's caselaw. The three elements of a Brady violation have been clearly established, including the materiality prong at issue here. See, e.2727g., Goudy v. Basinger, 604 F.3d 394, 400 (7th Cir. 2010). Evidence is material if there is “a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Turner v. United States, ––– U.S. ––––, 137 S.Ct. 1885, 1893, 198 L.Ed.2d 443 (2017) (internal quotation marks and citation omitted). A “reasonable probability” is one that “undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). In addition, the holding in Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), that impeachment evidence “falls within the Brady rule,” is likewise clearly established. See Bagley, 473 U.S. at 676, 105 S.Ct. 3375; Collier v. Davis, 301 F.3d 843, 848 (7th Cir. 2002). The majority's first error comes in its description of the general rule that Brady establishes with respect to impeachment *1093 evidence. The Supreme Court has not held, as the majority would have it, that “ ‘[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of the evidence affecting credibility’ justifies a new trial under Brady.” Maj. Op. at 1088 (emphasis added) (citing Giglio, 405 U.S. at 154, 92 S.Ct. 763). The italicized phrase is the majority's; the full sentence from Giglio is this: “[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of the evidence affecting credibility falls within [Brady's] general rule.” See Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quotation omitted). Again, that general rule asks whether the undisclosed evidence is material. And materiality—whether the evidence at issue is exculpatory or impeaching—is always a fact-intensive inquiry, as the sentences in Giglio immediately following the one that the majority quotes make clear: When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady's] general rule. We do not, however, automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. A finding of materiality of the evidence is required under Brady. Id. at 154, 92 S.Ct. 763 (emphasis added) (internal quotation marks, citations, and alteration omitted). In other words, impeachment evidence related to a key witness is material only if it undermines confidence in the verdict. See id. at 154–55, 92 S.Ct. 763 (suppressed evidence of bias that called into question a key witness's entire testimony was material); see also Kyles, 514 U.S. at 441–42, 115 S.Ct. 1555 (undisclosed contradictory statements by a key witness that arguably pointed to a suspect other than the defendant were material because they “substantially reduced” or “destroyed” the witness's value). To be sure, impeachment evidence related to a key witness is more likely to be material than impeachment evidence related to a bit player. But contrary to the majority's suggestion, the Supreme Court has never announced a hard-and-fast rule requiring a new trial when non-cumulative evidence related to the credibility of an important witness is suppressed. Even when it comes to a star witness, Giglio and its progeny require courts to evaluate whether the suppressed evidence is in fact material—not merely to assume it. The majority's second error lies in its assertion that the Indiana Court of Appeals confused the Brady materiality standard with the Indiana Rules of Evidence. The Supreme Court has explained that “[a] federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in our cases....” Bell, 535 U.S. at 694, 122 S.Ct. 1843. According to the majority, the state court made that very error here—it says that the state court concluded that the suppressed evidence was not material because Carey's identification would still have been admissible under state law. Maj. Op. at 1089. But that fundamentally misreads the state court opinion. The Indiana Court of Appeals did explain that “[e]vidence derived from a hypnotically entranced witness” is inadmissible under state law unless “the State ... demonstrate[s] by clear and convincing evidence that the witness's ‘in-court identification has a factual basis independent of the hypnotic session.’ ” Ind. Ct. App. Op. at 7–8 (quoting Rowley v. State, 483 N.E.2d 1078, 1081 (Ind. 1985) ). Yet it did not analyze Sims's Brady claim under that standard. When it moved to the Brady issue, the court squarely identified and applied Brady. *1094 The Indiana Court of Appeals began by describing the trial court's post-conviction decision, which held that while the evidence of hypnosis satisfied the first two prongs of Brady because it was both favorable and suppressed, it failed to satisfy the third prong because it was not material. See Ind. Ct. App. Op. at 8. The trial court fully recited the Brady standard, including the rule that “[e]vidence is material if there is a reasonable probability that disclosure would have changed the result in the proceeding.” After discussing the evidence in detail, the trial court concluded: “The evidence presented provides sufficient confidence in the verdict. The record reveals that Carey was able to identify Defendant before hypnosis. Thus the Court finds that the hypnosis disclosure would not have changed the outcome, and its nondisclosure did not amount to a Brady violation.” The Indiana Court of Appeals reviewed this reasoning, setting much of it forth verbatim, and agreed that the evidence was not material given the counterbalancing strength of the admissible identification: Carey got a good look at the assailant, gave a detailed description that matched Sims, and identified Sims in multiple pre-hypnosis photo lineups. It concluded that “the findings of fact and the record as a whole support the post-conviction court's determination that it is not reasonably probable that the outcome of Sims's trial would have been different had Carey's hypnosis been disclosed.” Ind. Ct. App. Op. at 10. That is the Brady standard. See Turner, 137 S.Ct. at 1893 (explaining that evidence is material if there is “a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different” (quotation omitted) ). The majority is plainly correct that “Brady's materiality standard is not an admissibility test,” Maj. Op. at ––––, but neither the Indiana Court of Appeals nor the trial court treated it like one. A state court decision is “contrary to” clearly established law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” Bell, 535 U.S. at 694, 122 S.Ct. 1843. Here, there is no question that the state court applied the Brady materiality standard, and there is no attempt to identify a Supreme Court case with materially indistinguishable facts. Thus, the state court decision was not “contrary to” clearly established federal law. II. The majority's stronger argument is that the Indiana Court of Appeals unreasonably applied Brady's materiality prong to this set of facts. Section 2254(d)(1) prohibits us from approaching this question de novo; thus, we cannot simply ask whether the suppressed evidence of hypnosis creates a reasonable probability of a different result. Instead, we must ask the question that § 2254(d)(1) demands: whether it was unreasonable for the state court to conclude that evidence of hypnosis did not create a reasonable probability of a different result. This is a high bar: the state court's application of federal law “must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods v. Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (internal quotation marks and citation omitted). A prevailing habeas petitioner must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” *1095 Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); see also Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013) (“We must deny the writ if we can posit arguments or theories that could have supported the state court's decision, and if fairminded jurists could disagree about whether those arguments or theories are inconsistent with Supreme Court holdings.”). The Indiana Court of Appeals' conclusion that the evidence of hypnosis was not material—and thus that failure to disclose the evidence did not amount to a Brady violation—does not rise to that level. The majority finds fault in multiple aspects of the Indiana Court of Appeals' reasoning. Many of its concerns, however, are objections to the facts found by that court. And without clear and convincing evidence that the state court was wrong, its factual determinations are not open for debate. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).1 Notably, the majority almost entirely discounts the facts that support the Indiana Court of Appeals' conclusion that the suppressed evidence was immaterial. The state court found that Carey looked directly into the face of Sims in fair, outside lighting at the time of the shooting; offered a detailed description of Sims on-scene; identified Sims in a photo array at the hospital emergency room; and identified Sims again two days later in a photo array at the prosecutor's office. The description and identifications are crucial because they all occurred well before Carey underwent a session of hypnosis and thus bolster the reliability of the in-court identification despite the evidence of hypnosis. The majority is particularly skeptical of the Indiana Court of Appeals' finding that Carey identified Sims three times in photo lineups before hypnosis. Maj. Op. at 1091–92. It claims that “significant doubt was cast on these lineups by the fact that Carey testified that he was initially only shown a single picture.” Id. But there was a factual dispute on this point that the Indiana Court of Appeals resolved: it concluded that Carey was presented with a picture lineup in the hospital emergency room.2 The majority has not attempted to demonstrate by clear and convincing evidence that this finding is wrong—nor could *1096 it, because Sims has not attempted to do so. Thus, we must accept the state court's finding that Carey positively identified Sims in multiple prehypnosis photo lineups. Relatedly, the majority also suggests that Carey was able to identify Sims only after hypnosis. See Maj. Op. at 1090–91,1092; see also id. at 1085–86. In the majority's view, this conclusion is most consistent with the trial record and best explains why Carey or the prosecutor would have “felt it necessary” to undergo hypnosis at all. Id. at 1092. But just as § 2254 does not permit us to review a state court's application of federal law de novo, it also does not permit us to reweigh evidence according to our own best reading of the trial record. Both the state trial court and the Indiana Court of Appeals explicitly rejected the notion that Carey identified Sims only after hypnosis: “the contention that Carey was ‘only’ able to identify Petitioner following the hypnosis is at odds with other credible evidence ... in the record.... From the record of the case, Carey was able to identify Petitioner well before hypnosis.” Ind. Ct. App. Op. at 6–7 (quoting the trial court); see also id. at 9–10. The majority is not free to question this finding. After deciding for itself which facts are undisputed, the majority frames the materiality question this way: could a fairminded judge be confident in Sims's conviction where the only evidence was Sims's proximity to the scene of the crime and Carey's solid but imperfect on-scene description? See Maj. Op. at 1089–90, 1091–92 (acknowledging Sims's suspicious proximity to the scene and citing Carey's description as the only other “undisputed details”). But that framing stacks the deck by sifting out evidence on which the state court relied in applying Brady—most significantly, Carey's identification of Sims in the photo arrays. Absent clear and convincing evidence that the state court's factual findings were wrong—which again, is not something that the majority undertakes to show—we are required to take the facts as the state court found them. 28 U.S.C. § 2254(e)(1).3 Doing that leaves us with the following facts. Carey gave an on-scene description of the shooter that matched, in many respects, a person crouching in the bushes behind a nearby dumpster. But the match was not perfect: Carey described a person with short hair and wearing boots, and Sims was apprehended apparently wearing a hat or hood and Nikes. Carey identified Sims in multiple pre-hypnosis photo arrays and “never identified any other as his assailant.” At some point, before trial, Carey underwent a single session of hypnosis to improve his memory of the event. There is no record of what happened during this session. At trial, Carey gave a more robust description of his assailant than the one given on-scene—adding details like the discoloration under Sims's eye and the patch on his jacket—but he did not contradict his initial description. He testified that his memory of certain details had improved over time. Defense counsel cross-examined Carey on all inconsistencies with and additions to his initial description of the shooter. An officer testified that, from the very beginning, Carey said that he could identify the assailant, and that Carey's description of the assailant matched Sims. The government never found the gun used to shoot Carey. The jury found Sims guilty of attempted murder. *1097 The Indiana trial court drew two important conclusions from these facts in its post-conviction review. First, it decided that the government had proven by clear and convincing evidence that Carey's in-court identification of Sims had a sufficient factual basis independent of hypnosis. Second, the court noted that the distinctive elements of Carey's trial testimony, compared to his initial description, “were fully developed, examined and vigorously discussed in cross examination,” which gave the jury the opportunity to weigh Carey's credibility regarding the differences. Given that the government would still have been able to introduce a strong, reliable in-court identification of Sims and that, in the court's view, many of the problems raised by hypnosis were already addressed by robust cross-examination, the court held that the “evidence presented provides sufficient confidence in the verdict.” The Indiana Court of Appeals agreed. It emphasized the independent strength of the in-court identification and the “vigorous cross-examination” of Carey before holding that “it is not reasonably probable that the outcome of Sims's trial would have been different had Carey's hypnosis been disclosed.” Ind. Ct. App. Op. at 10. That decision does not involve an objectively unreasonable application of clearly established federal law. The state courts suggested that the undisclosed evidence would have been largely cumulative, and therefore not material, because the defense was already able to cross-examine Carey about the differences in his testimony. The Supreme Court has held that “largely cumulative” impeachment evidence is not material. See Turner, 137 S.Ct. at 1894. The majority acknowledges Turner's holding but disagrees that the hypnosis evidence would have been cumulative. In its view, the newly discovered evidence of hypnosis would have “changed [Carey's] cross-examination quite dramatically” and “calls into question everything Carey said at trial.” Maj. Op. at 1089–90, 1090–91. But neither outcome is obviously true. Indeed, had the evidence of hypnosis been disclosed, defense counsel would have likely emphasized the dangers of hypnotically-refreshed testimony discussed in Rock v. Arkansas. See 483 U.S. 44, 59–60, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). At best, however, the effect of that argument would have been to undermine the reliability and credibility of any part of Carey's testimony that could not be traced to his memory prior to hypnosis. It was not objectively unreasonable, then, for the state court to conclude that the impeachment evidence was largely cumulative: the vulnerable parts of Carey's testimony—describing the discoloration under Sims's eye and the patch on his jacket—were already undermined by defense counsel's cross-examination stressing that such details appeared nowhere in Carey's on-scene description. But that debate is at the periphery. Under Indiana law evidence derived from hypnosis is inadmissible. See Ind. Ct. App. Op. at 7 (citing Rowley, 483 N.E.2d at 1081). Thus, the question is not whether cross-examination of hypnotically-refreshed testimony would have been effective—notably, the question that Rock speaks to.4 The question is whether without *1098 the hypnotically-refreshed testimony, a reasonable jurist could be confident in the conviction. Acknowledging the effectiveness of defense counsel's cross-examination was one way for the state court to test this question—i.e., because the defense counsel cast substantial doubt on the reliability of the hypnotically-refreshed testimony, a reasonable jurist could be confident that the pre-hypnosis evidence and testimony drove the verdict. As an additional ground for its immateriality decision, however, the state court considered the pre-hypnosis evidence—and admissible identification related to that evidence—in isolation and expressed confidence that the jury would have still decided to convict. The only additional boost that the evidence of hypnosis would have given Sims's defense counsel on cross-examination under these circumstances would have been to raise questions about why Carey underwent hypnosis in the first place. Certainly, the jury might have some discomfort with the fact that Carey felt the need to undergo hypnosis—as the majority does, and as I do. But the key is the reliability of Carey's identification of Sims. Evidence of hypnosis and Carey's reduced credibility over time could not have retroactively undermined the reliability of his contemporaneous description of the events and the assailant or his multiple pre-hypnosis photo-lineup identifications of Sims. Cf. Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (identifying “the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness ..., and the length of time between the crime and the [identification]” as factors relevant to reliability). Nor could it have changed the fact that the police discovered Sims peering down on the scene behind a nearby dumpster. Thus, unlike the cases that the majority cites, in which the undisclosed evidence either contradicted the witness's in-court identification or shattered the credibility of a witness with no contemporaneous corroboration for his in-court identification, Carey's contemporaneous description and prehypnosis identifications were independently reliable and consistent with his in-court identification. Cf. Wearry v. Cain, ––– U.S. ––––, 136 S.Ct. 1002, 1004–05, 194 L.Ed.2d 78 (2016) (per curiam) (undisclosed statements suggested that the witness was attempting to frame the defendant; undisclosed evidence suggested that the witness was biased; undisclosed medical evidence suggested that it would have been impossible for the defendant to have done the things that the witness described); Smith v. Cain, 565 U.S. 73, 74–76, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) (witness's undisclosed contemporaneous statements directly contradicted the testimony supporting his in-court identification); Kyles, 514 U.S. at 441–42, 115 S.Ct. 1555 (witness's undisclosed contemporaneous statements contradicted the in-court identification). In short, the state court concluded that the evidence of hypnosis was not only cumulative but also comparatively weak in light of the strength and reliability of Carey's prehypnosis description and identifications. That conclusion is not “beyond any possibility for fairminded disagreement.” See Harrington, 562 U.S. at 103, 131 S.Ct. 770. Here, Carey's hypnotically-refreshed testimony was not “the only evidence linking [Sims] to the crime.” See Smith, 565 U.S. at 76, 132 S.Ct. 627. With a solid on-scene *1099 description, multiple untainted photo-array identifications, and an in-court identification by the victim—not to mention Sims's suspicious behavior and proximity to the scene of the crime—a fair-minded jurist could be confident in the jury's verdict, even if we are not. See Kidd, 734 F.3d at 703. * * * Again, if I were deciding the question de novo, I would agree with the majority that the suppressed evidence of hypnosis undermined confidence in the verdict. But because I can't say that the Indiana Court of Appeals' decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,” Harrington, 562 U.S. at 103, 131 S.Ct. 770, I would affirm the district court's denial of Sims's habeas corpus petition.

Barrett

majority

I dissent from the majority opinion because it fails to give the Indiana Court of Appeals the deference required by (d). Under that provision, a federal court may grant habeas relief only if the state court proceedings (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The majority holds that the Indiana Court of Appeals' decision satisfies 2254(d)(1). I disagree. Even though I think that the undisclosed evidence of Carey's hypnosis constitutes a Brady violation, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise. I. The Indiana Court of Appeals' decision to deny Sims's petition for post-conviction relief was not “contrary to” clearly established law as determined by the Supreme Court of the United States. A decision is “contrary to” clearly established federal law if it (1) “applies a rule different from the governing law set forth in our cases” or (2) “decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” To apply this standard, we must first consider what rule has been clearly set forth in the Supreme Court's caselaw. The three elements of a Brady violation have been clearly established, including the materiality prong at issue here. See, e.2727g., Evidence is material if there is “a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” A “reasonable probability” is one that “undermines confidence in the outcome of the trial.” ). In addition, the holding in that impeachment evidence “falls within the Brady rule,” is likewise clearly established. See The majority's first error comes in its description of the general rule that Brady establishes with respect to impeachment *1093 evidence. The Supreme Court has not held, as the majority would have it, that “ ‘[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of the evidence affecting credibility’ justifies a new trial under Brady.” Maj. Op. at 1088 (emphasis added) (citing 405 U.S. at ). The italicized phrase is the majority's; the full sentence from is this: “[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of the evidence affecting credibility falls within [Brady's] general rule.” See 405 U.S. at (quotation omitted). Again, that general rule asks whether the undisclosed evidence is material. And materiality—whether the evidence at issue is exculpatory or impeaching—is always a fact-intensive inquiry, as the sentences in immediately following the one that the majority quotes make clear: When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady's] general rule. We do not, however, automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. A finding of materiality of the evidence is required under Brady. at (emphasis added) (internal quotation marks, citations, and alteration omitted). In other words, impeachment evidence related to a key witness is material only if it undermines confidence in the verdict. See at –55, (suppressed evidence of bias that called into question a key witness's entire testimony was material); see also –42, (undisclosed contradictory statements by a key witness that arguably pointed to a suspect other than the defendant were material because they “substantially reduced” or “destroyed” the witness's value). To be sure, impeachment evidence related to a key witness is more likely to be material than impeachment evidence related to a bit player. But contrary to the majority's suggestion, the Supreme Court has never announced a hard-and-fast rule requiring a new trial when non-cumulative evidence related to the credibility of an important witness is suppressed. Even when it comes to a star witness, and its progeny require courts to evaluate whether the suppressed evidence is in fact material—not merely to assume it. The majority's second error lies in its assertion that the Indiana Court of Appeals confused the Brady materiality standard with the Indiana Rules of Evidence. The Supreme Court has explained that “[a] federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in our cases.” 535 U.S. at According to the majority, the state court made that very error here—it says that the state court concluded that the suppressed evidence was not material because Carey's identification would still have been admissible under state law. Maj. Op. at 1089. But that fundamentally misreads the state court opinion. The Indiana Court of Appeals did explain that “[e]vidence derived from a hypnotically entranced witness” is inadmissible under state law unless “the State demonstrate[s] by clear and convincing evidence that the witness's ‘in-court identification has a factual basis independent of the hypnotic session.’ ” Ind. Ct. App. Op. at 7–8 ). Yet it did not analyze Sims's Brady claim under that standard. When it moved to the Brady issue, the court squarely identified and applied Brady. *1094 The Indiana Court of Appeals began by describing the trial court's post-conviction decision, which held that while the evidence of hypnosis satisfied the first two prongs of Brady because it was both favorable and suppressed, it failed to satisfy the third prong because it was not material. See Ind. Ct. App. Op. at 8. The trial court fully recited the Brady standard, including the rule that “[e]vidence is material if there is a reasonable probability that disclosure would have changed the result in the proceeding.” After discussing the evidence in detail, the trial court concluded: “The evidence presented provides sufficient confidence in the verdict. The record reveals that Carey was able to identify Defendant before hypnosis. Thus the Court finds that the hypnosis disclosure would not have changed the outcome, and its nondisclosure did not amount to a Brady violation.” The Indiana Court of Appeals reviewed this reasoning, setting much of it forth verbatim, and agreed that the evidence was not material given the counterbalancing strength of the admissible identification: Carey got a good look at the assailant, gave a detailed description that matched Sims, and identified Sims in multiple pre-hypnosis photo lineups. It concluded that “the findings of fact and the record as a whole support the post-conviction court's determination that it is not reasonably probable that the outcome of Sims's trial would have been different had Carey's hypnosis been disclosed.” Ind. Ct. App. Op. at 10. That is the Brady standard. See 137 S.Ct. at The majority is plainly correct that “Brady's materiality standard is not an admissibility test,” Maj. Op. at ––––, but neither the Indiana Court of Appeals nor the trial court treated it like one. A state court decision is “contrary to” clearly established law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” 535 U.S. at Here, there is no question that the state court applied the Brady materiality standard, and there is no attempt to identify a Supreme Court case with materially indistinguishable facts. Thus, the state court decision was not “contrary to” clearly established federal law. II. The majority's stronger argument is that the Indiana Court of Appeals unreasonably applied Brady's materiality prong to this set of facts. Section 2254(d)(1) prohibits us from approaching this question de novo; thus, we cannot simply ask whether the suppressed evidence of hypnosis creates a reasonable probability of a different result. Instead, we must ask the question that 2254(d)(1) demands: whether it was unreasonable for the state court to conclude that evidence of hypnosis did not create a reasonable probability of a different result. This is a high bar: the state court's application of federal law “must be objectively unreasonable, not merely wrong; even clear error will not suffice.” A prevailing habeas petitioner must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” *1095 ; see also The Indiana Court of Appeals' conclusion that the evidence of hypnosis was not material—and thus that failure to disclose the evidence did not amount to a Brady violation—does not rise to that level. The majority finds fault in multiple aspects of the Indiana Court of Appeals' reasoning. Many of its concerns, however, are objections to the facts found by that court. And without clear and convincing evidence that the state court was wrong, its factual determinations are not open for debate. See (e)(1)1 Notably, the majority almost entirely discounts the facts that support the Indiana Court of Appeals' conclusion that the suppressed evidence was immaterial. The state court found that Carey looked directly into the face of Sims in fair, outside lighting at the time of the shooting; offered a detailed description of Sims on-scene; identified Sims in a photo array at the hospital emergency room; and identified Sims again two days later in a photo array at the prosecutor's office. The description and identifications are crucial because they all occurred well before Carey underwent a session of hypnosis and thus bolster the reliability of the in-court identification despite the evidence of hypnosis. The majority is particularly skeptical of the Indiana Court of Appeals' finding that Carey identified Sims three times in photo lineups before hypnosis. Maj. Op. at 1091–92. It claims that “significant doubt was cast on these lineups by the fact that Carey testified that he was initially only shown a single picture.” But there was a factual dispute on this point that the Indiana Court of Appeals resolved: it concluded that Carey was presented with a picture lineup in the hospital emergency room.2 The majority has not attempted to demonstrate by clear and convincing evidence that this finding is wrong—nor could *1096 it, because Sims has not attempted to do so. Thus, we must accept the state court's finding that Carey positively identified Sims in multiple prehypnosis photo lineups. Relatedly, the majority also suggests that Carey was able to identify Sims only after hypnosis. See Maj. Op. at 1090–91,1092; see also at 1085–86. In the majority's view, this conclusion is most consistent with the trial record and best explains why Carey or the prosecutor would have “felt it necessary” to undergo hypnosis at all. But just as 2254 does not permit us to review a state court's application of federal law de novo, it also does not permit us to reweigh evidence according to our own best reading of the trial record. Both the state trial court and the Indiana Court of Appeals explicitly rejected the notion that Carey identified Sims only after hypnosis: “the contention that Carey was ‘only’ able to identify Petitioner following the hypnosis is at odds with other credible evidence in the record. From the record of the case, Carey was able to identify Petitioner well before hypnosis.” Ind. Ct. App. Op. at 6–7 (quoting the trial court); see also at 9–10. The majority is not free to question this finding. After deciding for itself which facts are undisputed, the majority frames the materiality question this way: could a fairminded judge be confident in Sims's conviction where the only evidence was Sims's proximity to the scene of the crime and Carey's solid but imperfect on-scene description? See Maj. Op. at 1089–90, 1091–92 (acknowledging Sims's suspicious proximity to the scene and citing Carey's description as the only other “undisputed details”). But that framing stacks the deck by sifting out evidence on which the state court relied in applying Brady—most significantly, Carey's identification of Sims in the photo arrays. Absent clear and convincing evidence that the state court's factual findings were wrong—which again, is not something that the majority undertakes to show—we are required to take the facts as the state court found them. (e)(1).3 Doing that leaves us with the following facts. Carey gave an on-scene description of the shooter that matched, in many respects, a person crouching in the bushes behind a nearby dumpster. But the match was not perfect: Carey described a person with short hair and wearing boots, and Sims was apprehended apparently wearing a hat or hood and Nikes. Carey identified Sims in multiple pre-hypnosis photo arrays and “never identified any other as his assailant.” At some point, before trial, Carey underwent a single session of hypnosis to improve his memory of the event. There is no record of what happened during this session. At trial, Carey gave a more robust description of his assailant than the one given on-scene—adding details like the discoloration under Sims's eye and the patch on his jacket—but he did not contradict his initial description. He testified that his memory of certain details had improved over time. Defense counsel cross-examined Carey on all inconsistencies with and additions to his initial description of the shooter. An officer testified that, from the very beginning, Carey said that he could identify the assailant, and that Carey's description of the assailant matched Sims. The government never found the gun used to shoot Carey. The jury found Sims guilty of attempted murder. *1097 The Indiana trial court drew two important conclusions from these facts in its post-conviction review. First, it decided that the government had proven by clear and convincing evidence that Carey's in-court identification of Sims had a sufficient factual basis independent of hypnosis. Second, the court noted that the distinctive elements of Carey's trial testimony, compared to his initial description, “were fully developed, examined and vigorously discussed in cross examination,” which gave the jury the opportunity to weigh Carey's credibility regarding the differences. Given that the government would still have been able to introduce a strong, reliable in-court identification of Sims and that, in the court's view, many of the problems raised by hypnosis were already addressed by robust cross-examination, the court held that the “evidence presented provides sufficient confidence in the verdict.” The Indiana Court of Appeals agreed. It emphasized the independent strength of the in-court identification and the “vigorous cross-examination” of Carey before holding that “it is not reasonably probable that the outcome of Sims's trial would have been different had Carey's hypnosis been disclosed.” Ind. Ct. App. Op. at 10. That decision does not involve an objectively unreasonable application of clearly established federal law. The state courts suggested that the undisclosed evidence would have been largely cumulative, and therefore not material, because the defense was already able to cross-examine Carey about the differences in his testimony. The Supreme Court has held that “largely cumulative” impeachment evidence is not material. See The majority acknowledges 's holding but disagrees that the hypnosis evidence would have been cumulative. In its view, the newly discovered evidence of hypnosis would have “changed [Carey's] cross-examination quite dramatically” and “calls into question everything Carey said at trial.” Maj. Op. at 1089–90, 1090–91. But neither outcome is obviously true. Indeed, had the evidence of hypnosis been disclosed, defense counsel would have likely emphasized the dangers of hypnotically-refreshed testimony discussed in Rock v. Arkansas. See At best, however, the effect of that argument would have been to undermine the reliability and credibility of any part of Carey's testimony that could not be traced to his memory prior to hypnosis. It was not objectively unreasonable, then, for the state court to conclude that the impeachment evidence was largely cumulative: the vulnerable parts of Carey's testimony—describing the discoloration under Sims's eye and the patch on his jacket—were already undermined by defense counsel's cross-examination stressing that such details appeared nowhere in Carey's on-scene description. But that debate is at the periphery. Under Indiana law evidence derived from hypnosis is inadmissible. See Ind. Ct. App. Op. at 7 (citing 483 N.E.2d at ). Thus, the question is not whether cross-examination of hypnotically-refreshed testimony would have been effective—notably, the question that Rock speaks to.4 The question is whether without *1098 the hypnotically-refreshed testimony, a reasonable jurist could be confident in the conviction. Acknowledging the effectiveness of defense counsel's cross-examination was one way for the state court to test this question—i.e., because the defense counsel cast substantial doubt on the reliability of the hypnotically-refreshed testimony, a reasonable jurist could be confident that the pre-hypnosis evidence and testimony drove the verdict. As an additional ground for its immateriality decision, however, the state court considered the pre-hypnosis evidence—and admissible identification related to that evidence—in isolation and expressed confidence that the jury would have still decided to convict. The only additional boost that the evidence of hypnosis would have given Sims's defense counsel on cross-examination under these circumstances would have been to raise questions about why Carey underwent hypnosis in the first place. Certainly, the jury might have some discomfort with the fact that Carey felt the need to undergo hypnosis—as the majority does, and as I do. But the key is the reliability of Carey's identification of Sims. Evidence of hypnosis and Carey's reduced credibility over time could not have retroactively undermined the reliability of his contemporaneous description of the events and the assailant or his multiple pre-hypnosis photo-lineup identifications of Sims. Cf. (identifying “the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the [identification]” as factors relevant to reliability). Nor could it have changed the fact that the police discovered Sims peering down on the scene behind a nearby dumpster. Thus, unlike the cases that the majority cites, in which the undisclosed evidence either contradicted the witness's in-court identification or shattered the credibility of a witness with no contemporaneous corroboration for his in-court identification, Carey's contemporaneous description and prehypnosis identifications were independently reliable and consistent with his in-court identification. Cf. (undisclosed statements suggested that the witness was attempting to frame the defendant; undisclosed evidence suggested that the witness was biased; undisclosed medical evidence suggested that it would have been impossible for the defendant to have done the things that the witness described); ; –42, (witness's undisclosed contemporaneous statements contradicted the in-court identification). In short, the state court concluded that the evidence of hypnosis was not only cumulative but also comparatively weak in light of the strength and reliability of Carey's prehypnosis description and identifications. That conclusion is not “beyond any possibility for fairminded disagreement.” See 562 U.S. at Here, Carey's hypnotically-refreshed testimony was not “the only evidence linking [Sims] to the crime.” See With a solid on-scene *1099 description, multiple untainted photo-array identifications, and an in-court identification by the victim—not to mention Sims's suspicious behavior and proximity to the scene of the crime—a fair-minded jurist could be confident in the jury's verdict, even if we are not. See 734 F.3d at * * * Again, if I were deciding the question de novo, I would agree with the majority that the suppressed evidence of hypnosis undermined confidence in the verdict. But because I can't say that the Indiana Court of Appeals' decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,” 562 U.S. at I would affirm the district court's denial of Sims's habeas corpus petition.

Smith v. Illinois Department of Transportation

After a rocky probationary period, the Illinois Department of Transportation discharged its employee Terry Smith. Smith sued the Department under Title VII, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The district court granted summary judgment to the Department on both claims, and Smith insists that it was wrong to do so. He contends that the district court mistakenly concluded that testimony from two of his witnesses was inadmissible and that he has enough evidence to make it to a jury in any event. We disagree and affirm the district court. I. Smith began working as an Emergency Traffic Patrol Minuteman with the Department late in 2013. Minutemen perform various duties related to traffic and roadways. Smith's employment began with a probationary period starting August 1. To be certified, he had to successfully complete three stages of training over the course of six months. His probationary period did not go well. According to the Department, Smith was far from a model employee. Early in his training, one of his supervisors reported that he challenged the instructions that he was given, which created a “serious issue” for his training and development. Another supervisor said that Smith regularly “fail[ed] to remember info” and “ha[d] a very hard time following basic instructions.” Particularly troubling, however, was Smith's record of unsafe conduct. Once, while driving in an express lane with Marcello Valle, one of his supervisors, Smith approached a place where the lanes divided. Valle told him to pick a lane; instead, Smith stopped short in traffic—only thirty feet from the concrete pillar *557 dividing the lanes. On another occasion, Smith drove away from a gas pump with the nozzle still inserted in the truck. Smith also “almost hit a trooper police car” on a drive with a supervisor. Most dangerous of all, Smith ignored instructions to put his truck in neutral and pull the brake—nearly causing a supervisor to be pinned between the tow truck and another vehicle. Incidents like these led one of his supervisors, Lloyd Colbert, to send an email to some of his coworkers warning that if Smith continued to work on the road, “someone else will pay the ultimate price.” The Department gave Smith negative reviews from the beginning, and its assessments of his performance became progressively worse. In a performance evaluation in mid-September, Smith received two marks of “unsatisfactory.” In October, one of Smith's supervisors emailed another saying that Smith was “not getting any better and cannot get it.” By the end of November, Smith was described as “very behind” where he ought to have been at his stage of training. The problems continued into December: emails between the Department employees described him as being argumentative, unstable, reckless, unsafe, and “in no way ready to go on his own.” In January, Smith received another performance evaluation, this one giving him unsatisfactory marks in five different categories. From Smith's perspective, however, the Department was the problem. On August 22, 2013, he filed an internal complaint with the Department asserting that Valle had used “abusive language” toward him and that another supervisor, Zen McHugh, had threatened to fire him for being confrontational. That same day, Smith also wrote a memorandum to his union representative in which he claimed that the Department had discriminated against him because he was black and had subjected him to a hostile work environment. In October, Smith sent another memorandum to the Department. The subject line was “Illegally docked hours from my pay. Discrimination/harassment.” The memorandum claimed that on October 13, Colbert had told him to sign out two hours before he had stopped working, which had the effect of withholding two hours of pay from his paycheck. (He was eventually compensated for those hours.) In December, Smith wrote more memoranda to the Department complaining about his treatment. Two of them, dated December 5 and 6, complained that Colbert had denied Smith overtime pay after he responded to a call for assistance with a disabled vehicle late in his shift. He attributed the refusal to racial discrimination, harassment, and retaliation. He submitted two more memoranda in late December. He addressed the first—which had the subject line “discrimination retaliation”—to a supervisor at the Department. In it, he claimed that he was being treated differently than a fellow employee who had been allowed to work only four hours on a certain day while Smith had been required to work a full day. The second was also addressed to the Department, and it requested a shift change due to “discrimination, harassment, retaliation.” On December 31, 2013, Smith filed another complaint, this time with the Department's internal Equal Employment Opportunity office. He listed three dates on which the Department had allegedly discriminated and retaliated against him: October 13, December 5, and December 28. From the record, we know that each of those dates corresponds to a specific incident. On the first date, Colbert had allegedly docked hours from his paycheck. On the second, Colbert had allegedly denied Smith overtime pay. On the third, Roman McGhee, a supervisor, had supposedly *558 yelled and sworn at Smith for saying that he was going to back two cars that had been in an accident down a highway ramp. Smith's complaint did not offer his side of those events; it simply stated that he had been treated differently than another coworker and denied overtime pay. On January 3, 2014, the Department sent Smith a “Statement of Charges,” which sought to fire him on the ground of his unsatisfactory work performance. On January 16, Smith had a run-in with Colbert, who had recently learned that Smith had charged him, along with other supervisors, of racial discrimination and retaliation. According to Smith, Colbert, who was also black, was “very angry” and made several confrontational remarks: that there would be “eighty-one of us against one of you when we go to trial”; that Smith was going to lose everything that he owned, including his house and car; and that he was a “stupid ass ni[ ].” The Department terminated Smith on January 30, 2014. In March, Smith sued the Department under Title VII, alleging that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The district court granted summary judgment to the Department, concluding that Smith had not introduced enough evidence to permit a jury to decide in his favor on either claim.1 Smith insists that the district court took several wrong turns. To begin with, he contends that the court erroneously excluded the testimony of two of his witnesses—Maria Veronico, an expert, and Marvin Harrison, a former supervisor—as inadmissible. But even if we disagree with him about that, Smith says, he still has enough evidence to make it to a jury on both his retaliation and hostile work environment claims. We discuss each of his arguments below. II. 1 We begin with the admissibility of Veronico's expert testimony, on which Smith relied in his opposition to the Department's motion for summary judgment. Veronico, an expert in industrial relations, testified at her deposition that Smith's trainers had created a hostile work environment based on his race when they “scolded, ridiculed, and threatened” him; she also opined that the Department had fired Smith for complaining about racial discrimination. The district court declined to consider Veronico's opinion, explaining that it was not based on “sufficient facts or data” as required by Federal Rule of Evidence 702(b). That decision was well within the district court's discretion. Veronico concluded that Smith had been subjected to a hostile work environment after reading Smith's evaluations and portions of the Department's training manual and Employee Policies Manual. She admitted that even though it was her usual practice to interview actors on both sides of a discrimination claim, she did not talk to either Smith or his supervisors. Indeed, she did not even bother to review any sworn deposition testimony. By Veronico's own admission, her conclusion was based on an incomplete picture—as the district court put it, she “omitted a substantial set of facts from her analysis, and instead relied only on what appears to be plaintiff-curated records.” Veronico's reliance on an anemic and one-sided set of facts casts *559 significant doubt on the soundness of her opinion, and the court did not abuse its discretion by excluding it. See Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1086 (7th Cir. 1999) (excluding an expert who “did not attempt to reconstruct the underlying facts to determine whether [the opposing party] had a good explanation ... [and] did not do anything except talk to [the plaintiff], read documents [plaintiff's] counsel sent, and write a letter”). Veronico's opinion that the Department retaliated against Smith for registering complaints of racial discrimination rests on even shakier ground. That conclusion was drawn from the same incomplete information that formed the basis of her opinion about Smith's hostile work environment. But the opinion about retaliation was undermined still further by Veronico's inability to connect the conclusion that she drew to the facts that she had. We have explained before that “[i]t is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert's testimony is intended to support.” United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). Veronico's testimony lacked that link. She maintains that Smith's evaluations became more negative after he filed his complaints—which might suggest a retaliatory motive that could have inspired his dismissal. But she admitted that she had no information about whether any of these supervisors even knew about Smith's complaints at the time that they submitted negative evaluations of his performance. And if the supervisors were unaware of the complaints, there would be no reason to suspect that their negative evaluations demonstrated any kind of retaliatory motive. In short, Veronico's opinion was fundamentally flawed, and we affirm the district court's decision that it was inadmissible. III. 2 We now turn to the admissibility of an affidavit sworn by one of Smith's supervisors, Marvin Harrison, who said several things that were helpful to Smith. The district court ruled that Harrison's affidavit was inadmissible because it lacked a proper foundation and was “replete with generalized assertions.” For instance, the affidavit states that Harrison “witnessed [Smith] being discriminated against on many different occasions by the department and its agents.” But without knowing who discriminated, what they did, and when they did it, the court had no way of knowing what to make of this evidence. The same problem plagues the affidavit's assertion that Colbert called Smith the n-word “frequently.” Harrison did not specify whether he heard these slurs himself, nor did he offer any detail about the contexts in which they were uttered. Without that information, the court could not evaluate whether Harrison was describing events of which he had personal knowledge or simply relaying inadmissible hearsay. See Fed. R. Civ. P. 56(c)(4) (requiring that affidavits used to support or oppose a motion for summary judgment be “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated”). Indeed, the affidavit was so vague that even Smith himself concedes that it is at least “partially true” that it “lacked a proper evidentiary foundation.” The district court did not abuse its discretion in declining to consider Harrison's affidavit. IV. 3 4 To survive summary judgment on his Title VII retaliation claim, Smith must show that a reasonable jury could find that he engaged in a protected activity, *560 that he suffered an adverse employment action, and that the adverse action was motivated by a protected activity. Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). The Department concedes that Smith engaged in protected activity and that the termination of his employment was an adverse employment action. The only dispute is whether the Department terminated Smith because he complained about racial discrimination. We agree with the district court that a reasonable jury could not find in Smith's favor on this issue. To raise an inference that he was fired because of his complaints rather than because of his performance, Smith maintains that he was fired even though he was meeting the Department's legitimate expectations. See Vaughn v. Vilsack, 715 F.3d 1001, 1006 (7th Cir. 2013). Yet as we recounted above, Smith's tenure at the Department was distinguished in all the wrong ways. He received multiple ratings of “unsatisfactory” in two different formal performance reviews. His failings as an employee were chronicled in conversations and emails from a number of different supervisors and coworkers, who considered him unsafe, argumentative, and unable to follow instructions. Smith does not dispute the Department's long list of grievances against him. But he argues that the district court “cherry picked” negative evidence about his employment record to create a misleading narrative. He points out that in addition to bad reviews, he also received some positive feedback from some of his supervisors at the Department. But a smattering of decent reviews doesn't overcome the overwhelming number of documented problems—including serious safety issues—that the Department had with Smith's performance. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994) (“The mere submission of materials from a co-worker or supervisor indicating that an employee's performance is satisfactory ... does not create a material issue of fact.”). Given the extensive evidence that Smith was not meeting his employer's legitimate expectations, a reasonable jury could not find that the Department fired him because of his protected activity rather than for his poor performance. Finally, we address Smith's hostile work environment claim. A hostile work environment claim contains four elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there is a basis for employer liability. Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 834 (7th Cir. 2015). 6 Smith's case largely founders on the second prong, because the majority of the harassment he identifies was unconnected to his race. Smith says that Valle, McGhee, and a trainer identified only as “Washington” created a hostile work environment by directing profanity at him. Valle confronted him and used the f-word several times, in contexts like “shut the f[ ] up.” McGhee called Smith a “stupid dumb motherf[ ]” and told him he was going to “kick [his] ass.” Washington used the f-word once. As the district court pointed out, however, Smith fails to connect any of these epithets to his race. Smith himself acknowledged that Valle was “equal opportunity” when it came to dishing out profanity. McGhee's outburst was connected to a dangerous traffic situation for which Smith was responsible. And Washington's lone *561 use of the f-word is presented without any context at all. While the epithets may have made for a crude or unpleasant workplace, “Title VII imposes no ‘general civility code.’ ” Vance v. Ball State Univ., 570 U.S. 421, 452, 133 S.Ct. 2434, 186 L.Ed.2d 565, (2013) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Because Smith introduced no evidence that his supervisors swore at him because he was black, the profanity that he describes does not establish a hostile work environment under Title VII. Smith describes one incident, however, that plainly constitutes race-based harassment: Colbert, one of his former supervisors, called Smith a “stupid ass ni[ ]” after finding out that Smith had filed a complaint with the Equal Employment Opportunity office. The n-word is an egregious racial epithet. Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594, 601 (7th Cir. 2014) (“[W]hile there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’ ” (citation omitted)). That said, Smith can't win simply by proving that the word was uttered. He must also demonstrate that Colbert's use of this word altered the conditions of his employment and created a hostile or abusive working environment. Huri, 804 F.3d at 834. And he must make this showing “from both a subjective and an objective point of view.” EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018). In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert's slur, but also that he himself perceived it that way. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). 7 We need not address the objective prong of the analysis, because Smith falters on the subjective prong. He introduced no evidence that Colbert's use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record. He clashed with his supervisors over pay, and they confronted him with foul language. As early as August—the first month of his employment—he sent memoranda to the Department complaining of a “hostile work environment.” On Smith's own account, his supervisors made him miserable throughout his employment at the Department. But as we have already discussed, he has no evidence that his supervisors were lashing out at him because he was black. The first incident in which race played a part was his January 16th run-in with Colbert. By then, things were already at a breaking point. The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did. Instead, Smith presents the confrontation as yet another instance of the same ill treatment that he had been receiving all along. That won't do under Title VII. Because the statute does not give employees a remedy for workplace abuse unrelated to a protected characteristic, Smith needs to point to evidence—even if in his own testimony—that he suffered harm from Colbert's race-based harassment that was distinct from the distress that non-race-based *562 harassment was already causing him. Put differently, Smith has to be able to persuade a jury that Colbert's race-based harassment was severe enough “to alter the conditions of [his] employment.” Huri, 804 F.3d at 834 (emphasis added). Smith did not even try to make that showing—he points to no evidence that Colbert's slur caused him either additional or different distress. Without evidence that Colbert's outburst changed Smith's subjective experience during his last two weeks at the Department, a reasonable jury could not resolve the hostile work environment claim in Smith's favor. *** The district court's grant of summary judgment to the Department is AFFIRMED.

Barrett

majority

After a rocky probationary period, the Illinois Department of Transportation discharged its employee Terry Smith. Smith sued the Department under Title VII, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The district court granted summary judgment to the Department on both claims, and Smith insists that it was wrong to do so. He contends that the district court mistakenly concluded that testimony from two of his witnesses was inadmissible and that he has enough evidence to make it to a jury in any event. We disagree and affirm the district court. I. Smith began working as an Emergency Traffic Patrol Minuteman with the Department late in Minutemen perform various duties related to traffic and roadways. Smith's employment began with a probationary period starting August 1. To be certified, he had to successfully complete three stages of training over the course of six months. His probationary period did not go well. According to the Department, Smith was far from a model employee. Early in his training, one of his supervisors reported that he challenged the instructions that he was given, which created a “serious issue” for his training and development. Another supervisor said that Smith regularly “fail[ed] to remember info” and “ha[d] a very hard time following basic instructions.” Particularly troubling, however, was Smith's record of unsafe conduct. Once, while driving in an express lane with Marcello Valle, one of his supervisors, Smith approached a place where the lanes divided. Valle told him to pick a lane; instead, Smith stopped short in traffic—only thirty feet from the concrete pillar *557 dividing the lanes. On another occasion, Smith drove away from a gas pump with the nozzle still inserted in the truck. Smith also “almost hit a trooper police car” on a drive with a supervisor. Most dangerous of all, Smith ignored instructions to put his truck in neutral and pull the brake—nearly causing a supervisor to be pinned between the tow truck and another vehicle. Incidents like these led one of his supervisors, Lloyd Colbert, to send an email to some of his coworkers warning that if Smith continued to work on the road, “someone else will pay the ultimate price.” The Department gave Smith negative reviews from the beginning, and its assessments of his performance became progressively worse. In a performance evaluation in mid-September, Smith received two marks of “unsatisfactory.” In October, one of Smith's supervisors emailed another saying that Smith was “not getting any better and cannot get it.” By the end of November, Smith was described as “very behind” where he ought to have been at his stage of training. The problems continued into December: emails between the Department employees described him as being argumentative, unstable, reckless, unsafe, and “in no way ready to go on his own.” In January, Smith received another performance evaluation, this one giving him unsatisfactory marks in five different categories. From Smith's perspective, however, the Department was the problem. On August 22, he filed an internal complaint with the Department asserting that Valle had used “abusive language” toward him and that another supervisor, Zen McHugh, had threatened to fire him for being confrontational. That same day, Smith also wrote a memorandum to his union representative in which he claimed that the Department had discriminated against him because he was black and had subjected him to a hostile work environment. In October, Smith sent another memorandum to the Department. The subject line was “Illegally docked hours from my pay. Discrimination/harassment.” The memorandum claimed that on October 13, Colbert had told him to sign out two hours before he had stopped working, which had the effect of withholding two hours of pay from his paycheck. (He was eventually compensated for those hours.) In December, Smith wrote more memoranda to the Department complaining about his treatment. Two of them, dated December 5 and 6, complained that Colbert had denied Smith overtime pay after he responded to a call for assistance with a disabled vehicle late in his shift. He attributed the refusal to racial discrimination, harassment, and retaliation. He submitted two more memoranda in late December. He addressed the first—which had the subject line “discrimination retaliation”—to a supervisor at the Department. In it, he claimed that he was being treated differently than a fellow employee who had been allowed to work only four hours on a certain day while Smith had been required to work a full day. The second was also addressed to the Department, and it requested a shift change due to “discrimination, harassment, retaliation.” On December 31, Smith filed another complaint, this time with the Department's internal Equal Employment Opportunity office. He listed three dates on which the Department had allegedly discriminated and retaliated against him: October 13, December 5, and December 28. From the record, we know that each of those dates corresponds to a specific incident. On the first date, Colbert had allegedly docked hours from his paycheck. On the second, Colbert had allegedly denied Smith overtime pay. On the third, Roman McGhee, a supervisor, had supposedly *558 yelled and sworn at Smith for saying that he was going to back two cars that had been in an accident down a highway ramp. Smith's complaint did not offer his side of those events; it simply stated that he had been treated differently than another coworker and denied overtime pay. On January 3, 2014, the Department sent Smith a “Statement of Charges,” which sought to fire him on the ground of his unsatisfactory work performance. On January 16, Smith had a run-in with Colbert, who had recently learned that Smith had charged him, along with other supervisors, of racial discrimination and retaliation. According to Smith, Colbert, who was also black, was “very angry” and made several confrontational remarks: that there would be “eighty-one of us against one of you when we go to trial”; that Smith was going to lose everything that he owned, including his house and car; and that he was a “stupid ass ni[ ].” The Department terminated Smith on January 30, 2014. In March, Smith sued the Department under Title VII, alleging that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The district court granted summary judgment to the Department, concluding that Smith had not introduced enough evidence to permit a jury to decide in his favor on either claim.1 Smith insists that the district court took several wrong turns. To begin with, he contends that the court erroneously excluded the testimony of two of his witnesses—Maria Veronico, an expert, and Marvin Harrison, a former supervisor—as inadmissible. But even if we disagree with him about that, Smith says, he still has enough evidence to make it to a jury on both his retaliation and hostile work environment claims. We discuss each of his arguments below. II. 1 We begin with the admissibility of Veronico's expert testimony, on which Smith relied in his opposition to the Department's motion for summary judgment. Veronico, an expert in industrial relations, testified at her deposition that Smith's trainers had created a hostile work environment based on his race when they “scolded, ridiculed, and threatened” him; she also opined that the Department had fired Smith for complaining about racial discrimination. The district court declined to consider Veronico's opinion, explaining that it was not based on “sufficient facts or data” as required by Federal Rule of Evidence 702(b). That decision was well within the district court's discretion. Veronico concluded that Smith had been subjected to a hostile work environment after reading Smith's evaluations and portions of the Department's training manual and Employee Policies Manual. She admitted that even though it was her usual practice to interview actors on both sides of a discrimination claim, she did not talk to either Smith or his supervisors. Indeed, she did not even bother to review any sworn deposition testimony. By Veronico's own admission, her conclusion was based on an incomplete picture—as the district court put it, she “omitted a substantial set of facts from her analysis, and instead relied only on what appears to be plaintiff-curated records.” Veronico's reliance on an anemic and one-sided set of facts casts *559 significant doubt on the soundness of her opinion, and the court did not abuse its discretion by excluding it. See Veronico's opinion that the Department retaliated against Smith for registering complaints of racial discrimination rests on even shakier ground. That conclusion was drawn from the same incomplete information that formed the basis of her opinion about Smith's hostile work environment. But the opinion about retaliation was undermined still further by Veronico's inability to connect the conclusion that she drew to the facts that she had. We have explained before that “[i]t is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert's testimony is intended to support.” United Veronico's testimony lacked that link. She maintains that Smith's evaluations became more negative after he filed his complaints—which might suggest a retaliatory motive that could have inspired his dismissal. But she admitted that she had no information about whether any of these supervisors even knew about Smith's complaints at the time that they submitted negative evaluations of his performance. And if the supervisors were unaware of the complaints, there would be no reason to suspect that their negative evaluations demonstrated any kind of retaliatory motive. In short, Veronico's opinion was fundamentally flawed, and we affirm the district court's decision that it was inadmissible. III. 2 We now turn to the admissibility of an affidavit sworn by one of Smith's supervisors, Marvin Harrison, who said several things that were helpful to Smith. The district court ruled that Harrison's affidavit was inadmissible because it lacked a proper foundation and was “replete with generalized assertions.” For instance, the affidavit states that Harrison “witnessed [Smith] being discriminated against on many different occasions by the department and its agents.” But without knowing who discriminated, what they did, and when they did it, the court had no way of knowing what to make of this evidence. The same problem plagues the affidavit's assertion that Colbert called Smith the n-word “frequently.” Harrison did not specify whether he heard these slurs himself, nor did he offer any detail about the contexts in which they were uttered. Without that information, the court could not evaluate whether Harrison was describing events of which he had personal knowledge or simply relaying inadmissible hearsay. See Fed. R. Civ. P. 56(c)(4) (requiring that affidavits used to support or oppose a motion for summary judgment be “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated”). Indeed, the affidavit was so vague that even Smith himself concedes that it is at least “partially true” that it “lacked a proper evidentiary foundation.” The district court did not abuse its discretion in declining to consider Harrison's affidavit. IV. 3 4 To survive summary judgment on his Title VII retaliation claim, Smith must show that a reasonable jury could find that he engaged in a protected activity, *560 that he suffered an adverse employment action, and that the adverse action was motivated by a protected activity. The Department concedes that Smith engaged in protected activity and that the termination of his employment was an adverse employment action. The only dispute is whether the Department terminated Smith because he complained about racial discrimination. We agree with the district court that a reasonable jury could not find in Smith's favor on this issue. To raise an inference that he was fired because of his complaints rather than because of his performance, Smith maintains that he was fired even though he was meeting the Department's legitimate expectations. See Yet as we recounted above, Smith's tenure at the Department was distinguished in all the wrong ways. He received multiple ratings of “unsatisfactory” in two different formal performance reviews. His failings as an employee were chronicled in conversations and emails from a number of different supervisors and coworkers, who considered him unsafe, argumentative, and unable to follow instructions. Smith does not dispute the Department's long list of grievances against him. But he argues that the district court “cherry picked” negative evidence about his employment record to create a misleading narrative. He points out that in addition to bad reviews, he also received some positive feedback from some of his supervisors at the Department. But a smattering of decent reviews doesn't overcome the overwhelming number of documented problems—including serious safety issues—that the Department had with Smith's performance. See Given the extensive evidence that Smith was not meeting his employer's legitimate expectations, a reasonable jury could not find that the Department fired him because of his protected activity rather than for his poor performance. Finally, we address Smith's hostile work environment claim. A hostile work environment claim contains four elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there is a basis for employer liability. 6 Smith's case largely founders on the second prong, because the majority of the harassment he identifies was unconnected to his race. Smith says that Valle, McGhee, and a trainer identified only as “Washington” created a hostile work environment by directing profanity at him. Valle confronted him and used the f-word several times, in contexts like “shut the f[ ] up.” McGhee called Smith a “stupid dumb motherf[ ]” and told him he was going to “kick [his] ass.” Washington used the f-word once. As the district court pointed out, however, Smith fails to connect any of these epithets to his race. Smith himself acknowledged that Valle was “equal opportunity” when it came to dishing out profanity. McGhee's outburst was connected to a dangerous traffic situation for which Smith was responsible. And Washington's lone *561 use of the f-word is presented without any context at all. While the epithets may have made for a crude or unpleasant workplace, “Title VII imposes no ‘general civility code.’ ” Because Smith introduced no evidence that his supervisors swore at him because he was black, the profanity that he describes does not establish a hostile work environment under Title VII. Smith describes one incident, however, that plainly constitutes race-based harassment: Colbert, one of his former supervisors, called Smith a “stupid ass ni[ ]” after finding out that Smith had filed a complaint with the Equal Employment Opportunity office. The n-word is an egregious racial epithet. That said, Smith can't win simply by proving that the word was uttered. He must also demonstrate that Colbert's use of this word altered the conditions of his employment and created a hostile or abusive working environment. 804 F.3d at And he must make this showing “from both a subjective and an objective point of view.” In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert's slur, but also that he himself perceived it that way. 7 We need not address the objective prong of the analysis, because Smith falters on the subjective prong. He introduced no evidence that Colbert's use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record. He clashed with his supervisors over pay, and they confronted him with foul language. As early as August—the first month of his employment—he sent memoranda to the Department complaining of a “hostile work environment.” On Smith's own account, his supervisors made him miserable throughout his employment at the Department. But as we have already discussed, he has no evidence that his supervisors were lashing out at him because he was black. The first incident in which race played a part was his January 16th run-in with Colbert. By then, things were already at a breaking point. The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did. Instead, Smith presents the confrontation as yet another instance of the same ill treatment that he had been receiving all along. That won't do under Title VII. Because the statute does not give employees a remedy for workplace abuse unrelated to a protected characteristic, Smith needs to point to evidence—even if in his own testimony—that he suffered harm from Colbert's race-based harassment that was distinct from the distress that non-race-based *562 harassment was already causing him. Put differently, Smith has to be able to persuade a jury that Colbert's race-based harassment was severe enough “to alter the conditions of [his] employment.” 804 F.3d at Smith did not even try to make that showing—he points to no evidence that Colbert's slur caused him either additional or different distress. Without evidence that Colbert's outburst changed Smith's subjective experience during his last two weeks at the Department, a reasonable jury could not resolve the hostile work environment claim in Smith's favor. *** The district court's grant of summary judgment to the Department is AFFIRMED.

Smith v. Rosebud Farm, Inc.

Robert Smith worked behind the meat counter at Rosebud Farm, a local grocery store. After several years of ongoing sexual and racial harassment from his male coworkers and supervisor, Smith sued Rosebud. He claimed various violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Illinois Gender Violence Act. The jury returned a verdict for Smith. Rosebud appeals, maintaining that the district court erred in denying its motions for judgment as a matter of law and a new trial. Rosebud argues that it was entitled to judgment as a matter of law on Smith's Title VII sex discrimination claim. To win, Smith had to show more than unwanted sexual touching or taunting; he had to show that the harassment occurred because of his sex. Rosebud contends that Smith's evidence demonstrates that the other men in the shop engaged in “sexual horseplay,” not sex discrimination. But Rosebud is wrong about that: the evidence supports the inference that Smith's coworkers harassed him because he was male. The shop was a mixed-sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex. Rosebud also insists that the district court should have awarded it judgment as a matter of law on Smith's § 1981 retaliation claim and granted a new trial because of inflammatory statements that Smith's counsel made during his closing argument. But Rosebud did not raise either of these arguments below, so it has forfeited them. Its challenges to the judgment uniformly fail. I. 1 In 2003, Robert Smith began working as a butcher at Rosebud Farm, a small grocery store on the south side of Chicago.1 Smith had been on the job for less than three weeks when his male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks. Over the next four years, that behavior was consistent, if not constant. At trial, Smith recalled the many times his coworkers groped him, grabbed him, and even reached down his pants. They repeatedly mimed oral and anal sex, both on Smith and on each other. Carlos Castaneda, Smith's supervisor, not only knew about the harassment, but he even participated once or twice. And the group did not stop at aggressive sexual contact—they also targeted him for his race, using racial epithets and telling him “go back to Africa.” Smith complained about the sexual harassment multiple times to no avail. In January of 2008, he decided that enough was enough. He filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights, alleging that his coworkers had sexually harassed him. He also claimed that Castaneda had discriminated against him based on his race by giving him fewer weekly work hours and sending him home for nine days without pay. *750 When Castaneda received notice of the discrimination charges, he told the meat-counter employees to stop “goofing off” and quit the “horseplay.” Smith's coworkers changed their behavior after their meeting with Castaneda, but not for the better. Behind the meat counter, they banged their cleavers menacingly at him and passed by him with large knives pointing out of the meat trays they carried. Smith found his car—which he parked in the gated, employee-only lot—with slashed tires and a cracked windshield. Smith became increasingly frightened at work, and he quit his job in June 2008 because of the “intolerable” working conditions. After the EEOC issued him a Notice of Right to Sue, Smith brought a host of claims against Rosebud and its employees, seeking compensatory and punitive damages, as well as attorneys’ fees and costs. Four of Smith's claims went to trial: sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; race discrimination under 42 U.S.C. § 1981; retaliation under both statutes; and violations of the Illinois Gender Violence Act, 740 ILCS 82/1, by two Rosebud employees, including the general manager, Carlos Castaneda.2 The jury returned a verdict for Smith on all claims.3 Rosebud raises three issues on appeal. It claims that the district court should have granted it judgment as a matter of law on the sexual harassment claim, because Smith failed to prove that his male coworkers discriminated against him because of his sex. It argues that it was also entitled to judgment on the § 1981 retaliation claim: according to Rosebud, there was no evidence that Smith's coworkers knew that he had filed charges of racial discrimination against Rosebud; thus, they could not have retaliated against Smith for filing them. Finally, Rosebud complains that the district court should have granted it a new trial when Smith's counsel compared Rosebud's employees to terrorists in his closing argument. II. 2 3 Smith's Title VII claim charged his male coworkers and male supervisor with creating a hostile work environment by severely and pervasively harassing him because of his sex. See Vance v. Ball State Univ., 570 U.S. 421, 427, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013) (defining a “hostile work environment” under Title VII as one “so pervaded by discrimination that the terms and conditions of employment were altered”). Rosebud does not dispute that Smith introduced evidence sufficient to show that its employees severely and pervasively harassed him with the knowledge of the store's general manager. But Title VII does not impose a flat ban on all harassment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). It prohibits harassment that discriminates against an individual “because of such individual's ... sex.” 42 U.S.C. § 2000e–2(a)(1). And Rosebud contends that Smith did not prove that its employees harassed Smith because he was male. According to Rosebud, no rational jury could have concluded *751 that the harassment was discriminatory; thus, the district court should have granted its Rule 50 motion for judgment as a matter of law. Rosebud relies on Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7th Cir. 2005) and Lord v. High Voltage Software Inc., 839 F.3d 556 (7th Cir. 2016), both of which involved plaintiffs who failed to prove that the same-sex harassment they experienced was discriminatory. In Shafer, the plaintiff's male coworker told him that he had “a ‘cheerleader ass’ that ‘would look real nice on my dick.’ ” Shafer, 417 F.3d at 665. On one occasion, the coworker shoved Shafer's face into his clothed crotch and forcibly simulated oral sex. Id. On another, he yanked Shafer's hand, placed it on his crotch, and “moan[ed] as if Shafer were masturbating him.” Id. There were two other incidents: the coworker seized a handful of Shafer's chest hair in the locker room and later bit Shafer's neck. Id. We held that the plaintiff was the victim of “four batteries,” at the hands of his male colleague, not sex discrimination. Id. at 666.4 Shafer failed to establish “that working conditions at [his workplace] were worse for men than for women”; indeed, the evidence reflected that “[the offending coworker] picked on anyone of either sex he could get away with tormenting.” Id. Without further evidence of discriminatory behavior, the aggressive encounters with his coworker reflected no more than “personal animosity or juvenile behavior.” Id. The unwanted sexual contact was “dramatic,” id. at 665, and grounds for bringing a state tort claim, id. at 667, but it did not constitute discrimination on the basis of sex. Id. at 665–66. Lord also involved sexually tinged harassment of a male plaintiff by male coworkers. In Lord, the plaintiff brought a Title VII suit complaining that his male coworkers had poked and slapped him on the buttocks, reached between his legs, and teased him about a female coworker whom they thought he liked. Lord, 839 F.3d at 560. But to prove that his coworkers had discriminated against him because of his sex, Lord “relie[d] entirely” on the fact that this behavior had “sexual overtones.” Id. at 562. As in Shafer, we held that sexual touching and taunting was not enough, standing alone, to prove that the plaintiff had been harassed because he was male. Id. at 561–62. Rosebud contends that Smith's claim resembles those pressed by the plaintiffs in Shafer and Lord. It emphasizes Shafer’s distinction between “sexual horseplay” and “sex discrimination” and insists that Smith experienced the former, not the latter. Shafer, 417 F.3d at 666 (“Sexual horseplay differs from sex discrimination.”). To support its argument, Rosebud points out that quarters were tight behind the meat counter, and the butchers often bumped into each other during the workday. Smith's coworkers testified that they frequently teased and touched each other—not just Smith—and that they often did so in front of others. Rosebud says that this demonstrates that the meat counter culture was one of sexual rough-housing, not sex discrimination. 4 5 Rosebud is correct that that unwanted sexual behavior—including the touching of genitals and buttocks—is not necessarily actionable under Title VII. Oncale, 523 U.S. at 80, 118 S.Ct. 998 (“We have never held that workplace harassment, even harassment *752 between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (“[T]he sexual content or connotations of workplace harassment do not automatically render that conduct sex discrimination.”). Shafer and Lord mark an important boundary line: Title VII is an anti-discrimination statute, not an anti-harassment statute. But Smith, in contrast to the plaintiffs in Shafer and Lord, introduced evidence that the harassment was discriminatory. Neither Shafer nor Lord offered any proof that the unwelcome sexual touching was discrimination based on sex, including any evidence that men in the workplace were treated differently from women. Shafer, 417 F.3d at 666; Lord, 839 F.3d at 562. Smith, on the other hand, offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did at Rosebud. See Oncale, 523 U.S. at 80–81, 118 S.Ct. 998 (“A same-sex harassment plaintiff may also ... offer direct comparative evidence about how the alleged harasser[s] treated members of both sexes in a mixed-sex workplace.”). Ample testimony—from both Smith and other witnesses—established that only men were groped, taunted, and otherwise tormented. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men. No witness recalled seeing female Rosebud employees subjected to the same treatment. Because Smith introduced evidence that his coworkers only harassed male employees, the jury was free to conclude that these men discriminated against him on the basis of sex. See also Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1378 (8th Cir. 1996) (finding that evidence showing only men were the targets of sexual harassment could support an inference of sex discrimination). Rosebud argues that this direct comparative evidence is insufficient because only male employees worked behind the meat counter. If Smith worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sex discrimination. But Smith did not work in an all-male environment—Rosebud was a mixed-sex workplace where men and women interacted daily. According to Castaneda, Rosebud employed approximately 6–7 women and 15–16 men in its small store. See Smith v. Rock–Tenn Servs., Inc., 813 F.3d 298, 308 (6th Cir. 2016) (concluding that a workplace with 30% female employees was not gender-segregated). Female employees sometimes worked in the meat department when the shop was busy; they also brought orders and returned items to the meat counter. And even if the all-male meat counter had been segregated from the rest of the store, that was not the only place where male-on-male sexual harassment occurred—men also groped and harassed each other in the stock room and produce section. Because men worked alongside women at Rosebud and only men were harassed, a reasonable jury could conclude that Smith's coworkers would not have tormented him if he had been female. III. 6 7 Rosebud next asserts that no rational jury could have found for Smith on his 42 U.S.C. § 1981 retaliation claim. Section 1981 protects the right of all persons, regardless of race, to “make and enforce contracts.” This protection encompasses retaliation claims when an employer takes an adverse employment action against an employee for asserting rights protected by § 1981. *753 CBOCS West Inc. v. Humphries, 553 U.S. 442, 446, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008); Tank v. T–Mobile USA, Inc., 758 F.3d 800, 807 (7th Cir. 2014). Smith alleged that his coworkers retaliated against him after he reported race discrimination to the EEOC by making his working conditions so intolerable he that was forced to quit. That, he said, constituted a “constructive discharge” and therefore an adverse employment action under § 1981. Rosebud argues, however, that no retaliation could have occurred because there was no evidence that Smith's coworkers knew that he had filed a charge of racial discrimination. If they didn't know about it, Rosebud says, they could not have retaliated against him for it. Rosebud has forfeited this argument. To preserve a sufficiency-of-the-evidence challenge for appeal, a party moving for judgment as a matter of law must “specify the judgment sought and the law and facts that entitle the movant to judgment.” Fed. R. Civ. P. 50(a)(2); see also Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823–24 (7th Cir. 2016) (citing Ortiz v. Jordan, 562 U.S. 180, 189, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) ). Rosebud's motion for judgment as a matter of law under Rule 50(a) and its renewed motion under Rule 50(b) focused exclusively on whether Smith's decision to quit amounted to a constructive discharge. Neither motion made any reference to the argument Rosebud makes now: that a rational jury could not have concluded that Smith's coworkers retaliated against him for filing a claim of race discrimination, because there was no evidence that they knew about the claim. Rosebud's failure to challenge the sufficiency of the evidence on this ground at trial precludes our review of the argument it asserts on appeal. IV. 8 In a last-ditch effort to disrupt the verdict, Rosebud argues that it is entitled to a new trial because of inflammatory statements that Smith's counsel made during his closing argument. Counsel referenced a then-recent mass shooting in the United States and stated “In the Middle East terrorists have murdered tens of thousands of people creating chaos in countries not having the order of law. A country that does not have laws to protect the common good breeds anarchy.” He then drew a comparison to Rosebud, calling it a “company that breeds anarchy.” Rosebud claims that this comparison was so unfairly prejudicial that the district court abused its discretion in denying its motion for a new trial. The district court did not abuse its discretion, because Rosebud did not raise this objection during counsel's closing argument. Rosebud raised two objections to counsel's reference to terrorism. It first complained that counsel's statements were “beyond the scope” and later protested that counsel was appealing to “social science research ... not in the record.” It did not, however, object on the ground that the statements were prejudicial. Rosebud therefore forfeited this objection. Hamdan v. Indiana Univ. Health N. Hosp., Inc., 880 F.3d 416, 422 (7th Cir. 2018). 9 In any event, Rosebud lost little by forfeiting the objection. Improper statements made during closing arguments seldom warrant a new trial, Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008), and this is not one of the rare cases in which they do. If anything, the counsel's comments hurt Smith more than they hurt Rosebud. The district court observed a number of jurors grimacing in reaction to the bizarre terrorism analogy. These references would certainly not have been reason for the district court to set aside the jury's verdict and start over.

Barrett

majority

Robert Smith worked behind the meat counter at Rosebud Farm, a local grocery store. After several years of ongoing sexual and racial harassment from his male coworkers and supervisor, Smith sued Rosebud. He claimed various violations of Title VII of the Civil Rights Act of 1964, and the Illinois Gender Violence Act. The jury returned a verdict for Smith. Rosebud appeals, maintaining that the district court erred in denying its motions for judgment as a matter of law and a new trial. Rosebud argues that it was entitled to judgment as a matter of law on Smith's Title VII sex discrimination claim. To win, Smith had to show more than unwanted sexual touching or taunting; he had to show that the harassment occurred because of his sex. Rosebud contends that Smith's evidence demonstrates that the other men in the shop engaged in “sexual horseplay,” not sex discrimination. But Rosebud is wrong about that: the evidence supports the inference that Smith's coworkers harassed him because he was male. The shop was a mixed-sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex. Rosebud also insists that the district court should have awarded it judgment as a matter of law on Smith's 1981 retaliation claim and granted a new trial because of inflammatory statements that Smith's counsel made during his closing argument. But Rosebud did not raise either of these arguments below, so it has forfeited them. Its challenges to the judgment uniformly fail. I. 1 In 2003, Robert Smith began working as a butcher at Rosebud Farm, a small grocery store on the south side of Chicago.1 Smith had been on the job for less than three weeks when his male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks. Over the next four years, that behavior was consistent, if not constant. At trial, Smith recalled the many times his coworkers groped him, grabbed him, and even reached down his pants. They repeatedly mimed oral and anal sex, both on Smith and on each other. Carlos Castaneda, Smith's supervisor, not only knew about the harassment, but he even participated once or twice. And the group did not stop at aggressive sexual contact—they also targeted him for his race, using racial epithets and telling him “go back to Africa.” Smith complained about the sexual harassment multiple times to no avail. In January of he decided that enough was enough. He filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights, alleging that his coworkers had sexually harassed him. He also claimed that Castaneda had discriminated against him based on his race by giving him fewer weekly work hours and sending him home for nine days without pay. *750 When Castaneda received notice of the discrimination charges, he told the meat-counter employees to stop “goofing off” and quit the “horseplay.” Smith's coworkers changed their behavior after their meeting with Castaneda, but not for the better. Behind the meat counter, they banged their cleavers menacingly at him and passed by him with large knives pointing out of the meat trays they carried. Smith found his car—which he parked in the gated, employee-only lot—with slashed tires and a cracked windshield. Smith became increasingly frightened at work, and he quit his job in June because of the “intolerable” working conditions. After the EEOC issued him a Notice of Right to Sue, Smith brought a host of claims against Rosebud and its employees, seeking compensatory and punitive damages, as well as attorneys’ fees and costs. Four of Smith's claims went to trial: sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; race discrimination under ; retaliation under both statutes; and violations of the Illinois Gender Violence Act, 740 ILCS 82/1, by two Rosebud employees, including the general manager, Carlos Castaneda.2 The jury returned a verdict for Smith on all claims.3 Rosebud raises three issues on appeal. It claims that the district court should have granted it judgment as a matter of law on the sexual harassment claim, because Smith failed to prove that his male coworkers discriminated against him because of his sex. It argues that it was also entitled to judgment on the 1981 retaliation claim: according to Rosebud, there was no evidence that Smith's coworkers knew that he had filed charges of racial discrimination against Rosebud; thus, they could not have retaliated against Smith for filing them. Finally, Rosebud complains that the district court should have granted it a new trial when Smith's counsel compared Rosebud's employees to terrorists in his closing argument. II. 2 3 Smith's Title VII claim charged his male coworkers and male supervisor with creating a hostile work environment by severely and pervasively harassing him because of his sex. See Rosebud does not dispute that Smith introduced evidence sufficient to show that its employees severely and pervasively harassed him with the knowledge of the store's general manager. But Title VII does not impose a flat ban on all harassment. It prohibits harassment that discriminates against an individual “because of such individual's sex.” 42 U.S.C. 2000e–2(a)(1). And Rosebud contends that Smith did not prove that its employees harassed Smith because he was male. According to Rosebud, no rational jury could have concluded *751 that the harassment was discriminatory; thus, the district court should have granted its Rule 50 motion for judgment as a matter of law. Rosebud relies on and both of which involved plaintiffs who failed to prove that the same-sex harassment they experienced was discriminatory. In the plaintiff's male coworker told him that he had “a ‘cheerleader ass’ that ‘would look real nice on my dick.’ ” On one occasion, the coworker shoved 's face into his clothed crotch and forcibly simulated oral sex. On another, he yanked 's hand, placed it on his crotch, and “moan[ed] as if were masturbating him.” There were two other incidents: the coworker seized a handful of 's chest hair in the locker room and later bit 's neck. We held that the plaintiff was the victim of “four batteries,” at the hands of his male colleague, not sex discrimination.4 failed to establish “that working conditions at [his workplace] were worse for men than for women”; indeed, the evidence reflected that “[the offending coworker] picked on anyone of either sex he could get away with tormenting.” Without further evidence of discriminatory behavior, the aggressive encounters with his coworker reflected no more than “personal animosity or juvenile behavior.” The unwanted sexual contact was “dramatic,” and grounds for bringing a state tort claim, but it did not constitute discrimination on the basis of sex. –66. also involved sexually tinged harassment of a male plaintiff by male coworkers. In the plaintiff brought a Title VII suit complaining that his male coworkers had poked and slapped him on the buttocks, reached between his legs, and teased him about a female coworker whom they thought he liked. But to prove that his coworkers had discriminated against him because of his sex, “relie[d] entirely” on the fact that this behavior had “sexual overtones.” As in we held that sexual touching and taunting was not enough, standing alone, to prove that the plaintiff had been harassed because he was male. at 561–62. Rosebud contends that Smith's claim resembles those pressed by the plaintiffs in and It emphasizes ’s distinction between “sexual horseplay” and “sex discrimination” and insists that Smith experienced the former, not the latter. 417 F.3d To support its argument, Rosebud points out that quarters were tight behind the meat counter, and the butchers often bumped into each other during the workday. Smith's coworkers testified that they frequently teased and touched each other—not just Smith—and that they often did so in front of others. Rosebud says that this demonstrates that the meat counter culture was one of sexual rough-housing, not sex discrimination. 4 5 Rosebud is correct that that unwanted sexual behavior—including the touching of genitals and buttocks—is not necessarily actionable under Title VII. 523 U.S. at (“We have never held that workplace harassment, even harassment *752 between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”); and mark an important boundary line: Title VII is an anti-discrimination statute, not an anti-harassment statute. But Smith, in contrast to the plaintiffs in and introduced evidence that the harassment was discriminatory. Neither nor offered any proof that the unwelcome sexual touching was discrimination based on sex, including any evidence that men in the workplace were treated differently from women. 417 F.3d ; 839 F.3d Smith, on the other hand, offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did at Rosebud. See 523 U.S. at –81, (“A same-sex harassment plaintiff may also offer direct comparative evidence about how the alleged harasser[s] treated members of both sexes in a mixed-sex workplace.”). Ample testimony—from both Smith and other witnesses—established that only men were groped, taunted, and otherwise tormented. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men. No witness recalled seeing female Rosebud employees subjected to the same treatment. Because Smith introduced evidence that his coworkers only harassed male employees, the jury was free to conclude that these men discriminated against him on the basis of sex. See also Rosebud argues that this direct comparative evidence is insufficient because only male employees worked behind the meat counter. If Smith worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sex discrimination. But Smith did not work in an all-male environment—Rosebud was a mixed-sex workplace where men and women interacted daily. According to Castaneda, Rosebud employed approximately 6–7 women and 15–16 men in its small store. See Female employees sometimes worked in the meat department when the shop was busy; they also brought orders and returned items to the meat counter. And even if the all-male meat counter had been segregated from the rest of the store, that was not the only place where male-on-male sexual harassment occurred—men also groped and harassed each other in the stock room and produce section. Because men worked alongside women at Rosebud and only men were harassed, a reasonable jury could conclude that Smith's coworkers would not have tormented him if he had been female. III. 6 7 Rosebud next asserts that no rational jury could have found for Smith on his retaliation claim. Section 1981 protects the right of all persons, regardless of race, to “make and enforce contracts.” This protection encompasses retaliation claims when an employer takes an adverse employment action against an employee for asserting rights protected by 1981. *753 CBOCS West ; 758 F.3d 0, 7 Smith alleged that his coworkers retaliated against him after he reported race discrimination to the EEOC by making his working conditions so intolerable he that was forced to quit. That, he said, constituted a “constructive discharge” and therefore an adverse employment action under 1981. Rosebud argues, however, that no retaliation could have occurred because there was no evidence that Smith's coworkers knew that he had filed a charge of racial discrimination. If they didn't know about it, Rosebud says, they could not have retaliated against him for it. Rosebud has forfeited this argument. To preserve a sufficiency-of-the-evidence challenge for appeal, a party moving for judgment as a matter of law must “specify the judgment sought and the law and facts that entitle the movant to judgment.” Fed. R. Civ. P. 50(a)(2); see also Empress Casino Joliet ). Rosebud's motion for judgment as a matter of law under Rule 50(a) and its renewed motion under Rule 50(b) focused exclusively on whether Smith's decision to quit amounted to a constructive discharge. Neither motion made any reference to the argument Rosebud makes now: that a rational jury could not have concluded that Smith's coworkers retaliated against him for filing a claim of race discrimination, because there was no evidence that they knew about the claim. Rosebud's failure to challenge the sufficiency of the evidence on this ground at trial precludes our review of the argument it asserts on appeal. IV. 8 In a last-ditch effort to disrupt the verdict, Rosebud argues that it is entitled to a new trial because of inflammatory statements that Smith's counsel made during his closing argument. Counsel referenced a then-recent mass shooting in the United States and stated “In the Middle East terrorists have murdered tens of thousands of people creating chaos in countries not having the order of law. A country that does not have laws to protect the common good breeds anarchy.” He then drew a comparison to Rosebud, calling it a “company that breeds anarchy.” Rosebud claims that this comparison was so unfairly prejudicial that the district court abused its discretion in denying its motion for a new trial. The district court did not abuse its discretion, because Rosebud did not raise this objection during counsel's closing argument. Rosebud raised two objections to counsel's reference to terrorism. It first complained that counsel's statements were “beyond the scope” and later protested that counsel was appealing to “social science research not in the record.” It did not, however, object on the ground that the statements were prejudicial. Rosebud therefore forfeited this objection. 8 F.3d 416, 9 In any event, Rosebud lost little by forfeiting the objection. Improper statements made during closing arguments seldom warrant a new trial, and this is not one of the rare cases in which they do. If anything, the counsel's comments hurt Smith more than they hurt Rosebud. The district court observed a number of jurors grimacing in reaction to the bizarre terrorism analogy. These references would certainly not have been reason for the district court to set aside the jury's verdict and start over.

Torry v. City of Chicago

One afternoon in 2014, three Chicago police officers stopped three black men in a grey sedan to investigate a nearby shooting that had happened a few hours earlier. When the passengers sued the officers a year later, none of the officers remembered the Terry stop. Lacking recall, they relied on other evidence to show that reasonable suspicion had existed for it. Cell phone footage taken by one of the plaintiffs during the encounter depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs’ suspicious behavior in the area of the shooting as the reason that he had pulled them over. And a police report showed that dispatches to officers investigating the shooting, including King, identified the suspects as three black men in a grey car. The descriptions of the car's model varied, and none was an exact match for the car that the plaintiffs were driving. But reasonable suspicion can exist without an exact match, and the district court held that these descriptions were close enough to justify the Terry stop. In any event, the court said, the officers were entitled to qualified immunity because the stop did not violate clearly established law. Before us, the plaintiffs have repeatedly suggested that the defendants’ failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn't remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity. I. On the morning of September 23, 2014, a drive-by shooting occurred about half a mile from Manley High School, which is located on West Polk Street in Chicago. Sergeant Robert King was on duty that day as a “school sergeant”—an officer who responds to and investigates violence near schools within his beat. A police report detailing the chronology of events related to the shooting shows that King responded to the shooting and that three descriptions of suspects were received while he was assisting.1 One identified the suspects’ vehicle *582 as a newer-model grey Nissan with three black male occupants. The second was almost identical to the first but specified that the Nissan was an SUV. The third identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer (a Chevrolet SUV). Shortly past noon on that same day, Marcus Torry and William Roberts picked up Latrell Goss, Torry's brother, in a grey Ford Fusion sedan. Goss's car had broken down on West Polk Street; Torry and Roberts met him at his car and then drove him west on West Polk to an auto parts store. They passed Manley High School as they drove to the store, and they passed it again when they returned the same way. As they went by the school for the second time, they were pulled over by three police officers—King, Jacek Leja, and Justin Raether. Torry captured video of the ensuing encounter on his cell phone camera. Like the district court, we draw our description of the encounter primarily from the video, supplementing it with other undisputed facts and drawing all inferences in the plaintiffs’ favor.2 After Torry pulled over, King approached his window and asked for his license and registration. Torry asked why he had been stopped, and King replied that “this was about your third pass by this school.” Torry protested that he had not driven by the school three times and handed over his license and registration. King told him not to argue; Torry demanded King's badge number. King told Torry to step out of the car and reached for the handle of the driver's door, which prompted Torry to ask if he was under arrest. King didn't directly answer the question but said, “Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the car, get out of the car.” Torry, protesting that he had done nothing wrong, failed to comply with multiple commands that he exit the vehicle. King told Torry, “If you don't get out of the car, I will remove you from the car,” and Torry replied, “I'm gonna remove myself but I just don't want to get—y'all get me, shoot me, or kill me for something I didn't do wrong.” King responded, “Yes, sir, absolutely; hands up, don't shoot, there you go.” Neither King nor the other officers had a gun out, but Torry feared police brutality. Torry testified that when he finally removed his seatbelt, King “just grab[bed] me out of the car.” King ordered Torry to “come on out, sir,” as Torry repeatedly exclaimed, “Please don't shoot.” King walked Torry to a squad car, saying, “Let's go back to my car, sir, right over here,” and placed him inside. Goss testified that an officer grabbed him out of the car too, but neither Goss nor Roberts were placed in a squad car. After the plaintiffs had been repeatedly ordered to leave the car but before they had complied, one of the officers shook a can of mace, although he never used it. After placing Torry in the back of his squad car, King sat in the front for a few minutes while he ran Torry's name through a warrant check. Torry demanded to know why he had been pulled over, and King explained that Torry had “cruised this street here around the school,” which was an area of “safe passage” and “the *583 immediate location of a shooting this morning.” (An area of “safe passage” is a designated area where extra precautions are taken to prevent violence that might affect students on their way to and from school.) King then returned to Torry's car, where the officers talked to Goss and Roberts, who testified that the other officers patted them down and searched Goss's pockets. Still in the squad car, Torry yelled obscenities and protests while continuing to film with his cell phone camera. At one point, Goss approached the car and told him to be quiet, to which Torry responded, “Leave me alone!” Roughly ten minutes into the stop and eight minutes after putting Torry in the squad car, King retrieved Torry and walked him back to his own car. Torry asked if he was under arrest, to which King answered, “If you were under arrest, you'd be in handcuffs.” Torry got in his car, and King returned his license and registration. Shortly after, one of the officers said to Goss that “you don't want anything to do with him,” and—in response to an unintelligible reply—said, “Yeah, c'mon, jump in the car ... yeah we'll give you a ride home.” Goss testified that the officers had told him to get in their car to return to his disabled car. Free to leave, Torry and Roberts pulled back onto West Polk Street. Torry continued his video recording, narrating that the officers were driving behind his car. Goss, riding in the back seat of Leja and Raether's car, testified that those officers debated pulling Torry over again “to mess with him.” But the officers dropped Goss off at his car and nothing else happened. One year later, Torry, Goss, and Roberts sued the three officers under 42 U.S.C. § 1983, alleging that the officers lacked reasonable suspicion to initiate the Terry stop, and that even if the stop was justified, its scope transformed it into a de facto arrest without probable cause.3 By the time the plaintiffs filed suit, none of the officers could recall the stop. Nor could King recall any details about the shooting. It was undisputed, though, that the shooting occurred while King was on duty in that area as a school sergeant, and the police report detailing the investigation's chronology reflected that King responded as an assist vehicle to the shooting, drove around the corner to the victim's residence a few minutes later, and continued to assist until 9:49 a.m., when the report notes him as “clear.” During the hour or so that King was on the shot call, three suspect descriptions were transmitted to investigators: one that identified the suspects’ car as a newer-model grey Nissan with three black male occupants, a second that was almost identical to the first but specified that the Nissan was an SUV,4 and a third that identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer. Based on that report and his review of Torry's video, King testified by affidavit that the dispatches would have alerted him that the suspects were three black men driving a grey car, and, as the video reflected, that he told Torry—who was driving a grey car with three black male occupants—that *584 he had stopped him because of the shooting. The plaintiffs and the defendants filed cross-motions for summary judgment, and the district court granted summary judgment to the defendants. II. The primary theme of the plaintiffs’ argument is that proving reasonable suspicion for the stop requires the officers to have at least some independent memory of what they knew at the time. The plaintiffs particularly object, therefore, to the district court's reliance on indirect evidence—the police report and King's affidavit—to conclude that the officers had reasonable suspicion to pull them over. They offer four reasons why the district court was wrong to consider this evidence: first, the officers submitted it in response to the plaintiffs’ motion for summary judgment rather than in support of their own motion; second, King's affidavit was a sham because it contradicted his prior testimony; third, the police report was hearsay; and fourth, King's lack of memory precludes him from relying on the collective knowledge doctrine. None of these arguments succeeds. 1 To begin with, it doesn't matter that the officers submitted the report and affidavit in their response to the plaintiffs’ motion for summary judgment rather than in support of their own motion. In adjudicating a motion for summary judgment, “[a] court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The court was therefore free to consider evidence submitted in response to one motion when it decided the other. Indeed, it would have been odd for the court to ignore the report and affidavit, because they were obviously relevant to the defendants’ cross-motion on the very same issues. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011) (“Where the parties file cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered.”). The plaintiffs had an opportunity to—and did—address the evidence in their own brief, and they don't suggest that they were inappropriately prejudiced by its consideration. Cf. Simpson v. Merchs. Recovery Bureau, Inc., 171 F.3d 546, 551 (7th Cir. 1999) (explaining that summary judgment may be granted sua sponte “so long as the opposing party has had an adequate opportunity to respond.” (citation omitted)). This argument for excluding the report and affidavit fails. 2 The plaintiffs’ next argument—that the court should have excluded King's affidavit as a sham—fares no better. According to the plaintiffs, King made several admissions during discovery that effectively conceded his liability, and his affidavit contradicts these admissions because it explains why King had reasonable suspicion for the stop. Thus, they insist, the court was obliged to exclude the affidavit as a sham. See Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (“[P]arties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with affidavits that contradict their prior depositions.”). The premise of the plaintiffs’ argument is flawed, however, because King's affidavit does not contradict his prior admissions. King never conceded that he stopped the plaintiffs unlawfully; he stated that he had no independent memory of the incident. Admitting to a lack of memory is a far cry from admitting that the opposing party's version of events is correct. See Brown v. County of Cook, 661 F.3d 333, 338 (7th Cir. 2011). Rather than contradicting his prior admissions, King's affidavit explained the newly introduced police report and how it bore on the *585 stop. The district court did not abuse its “great discretion” by considering King's testimony. See Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999); cf. Bank of Illinois, 75 F.3d at 1172 (approving consideration of even contradictory affidavits if based on new evidence). 3 The plaintiffs’ next argument—that the police report was inadmissible hearsay—is their most underdeveloped. They insist that the report is hearsay, but they never articulate why any of the statements within the report was offered as proof of the truth of the matter asserted. See Fed. R. Evid. 801(c)(2) (“ ‘Hearsay’ means a statement that ... a party offers in evidence to prove the truth of the matter asserted in the statement.”). Their failure to develop this argument is enough to dispense with it. See Mathews v. REV Recreation Grp., Inc., No. 18-1982, 931 F.3d 619, 623 n.2, 2019 WL 3369563, at *3 n.2 (7th Cir. July 26, 2019). We observe, however, that many of the statements were obviously not offered for their truth. For example, the descriptions of the shooters (three black men) and their vehicle (a grey Nissan, a grey Trailblazer, or a grey Nissan SUV) were not offered to show what the real shooters looked like or what car they were actually driving. The descriptions were offered to show that a competent officer aware of that information could conclude that there was reasonable suspicion to stop Torry and his passengers. See Woods v. City of Chicago, 234 F.3d 979, 986–87 (7th Cir. 2000) (a statement in a police report is not hearsay if it is offered “to show the effect that the statements had on the officers” who heard it); id. at 987 (explaining that the Fourth Amendment analysis does not turn on whether the information in the tips turns out to be true). Statements introduced to show their effect on the listener, rather than the truth of the matter they assert, are not hearsay. See 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:20 (4th ed. 2013). We will assume for the sake of argument that the entries reflecting King's response to the shooting were offered for their truth.5 Even if they were, however, the plaintiffs don't counter the defendants’ argument that the entire report is admissible under the business records exception. See Fed. R. Evid. 803(6). That exception applies if five conditions are met: (1) “the record was made at or near the time by—or from information transmitted by—someone with knowledge”; (2) “the record was kept in the ordinary course of a regularly conducted activity of a business, organization, occupation, or calling”; (3) “making the record was a regular practice of that activity”; (4) “all these conditions are shown by the testimony of a custodian or another qualified witness”; and (5) “the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. The only factor that the plaintiffs come close to discussing is the fourth: they seem to argue that King was not qualified to authenticate the report *586 because he could not remember receiving the transmissions that it recorded. But to authenticate a business record, a qualified witness “need not be in control of or have individual knowledge of the particular [ ] records”; he “need only be familiar with the [ ] recordkeeping practices.” Thanongsinh v. Bd. of Educ., 462 F.3d 762, 777 (7th Cir. 2006) (citation omitted). In his affidavit, King testified that each of the conditions was satisfied. Plaintiffs have not argued otherwise. Because the report is a business record, all of its statements are admissible for their truth.6 6 7 The plaintiffs point out that while the police report shows that descriptions of the suspects were transmitted to investigators, it does not expressly note whether the investigators received them. The district court properly concluded, though, that we can impute that knowledge to King via the collective knowledge doctrine. “[W]hen officers are in communication with each other while working together at a scene, their knowledge may be mutually imputed even when there is no express testimony that the specific or detailed information creating the justification for a stop was conveyed.” United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992); see also United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000). That is true even when the communication is by dispatch rather than face-to-face. See Sawyer, 224 F.3d at 680. King's presence at and involvement in the shooting investigation—bolstered by his testimony that suspect descriptions are typically shared with officers at the scene and through the Office of Emergency Management and Communications—are enough to attribute the knowledge to him. Because the report establishes that King was aware of both the shooting and the suspect descriptions, the court appropriately treated those as undisputed facts when considering whether reasonable suspicion for the Terry stop existed. III. That brings us to the reasonableness of the stop. The plaintiffs argue that it violated the Fourth Amendment, given that the shooting had occurred several hours earlier and that Torry's car was a different model than the one identified in the department's transmissions to investigators. The defendants contend that the stop was lawful and that they are in any event entitled to qualified immunity. 8 Qualified immunity protects government officials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (citation omitted). Thus, to win, the plaintiffs must show not only that the stop was unlawful, but also that the unlawfulness of the stop was clearly established at the time that it occurred. Because the plaintiffs cannot make the latter showing, we need not consider whether the stop violated the Fourth Amendment. See *587 Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“[C]ourts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first ....”). 9 The “demanding standard” that the law be “clearly established” for liability to attach “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). For the law to be “clearly established,” existing precedent must have placed the unlawfulness of the stop “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). It is usually necessary to identify an instance in which “an officer acting under similar circumstances ... was held to have violated the Fourth Amendment,” though in the “rare ‘obvious case’ ” the violation may be sufficiently clear “even though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590 (alteration in original) (citations omitted). 10 11 The general rule established by Terry v. Ohio is that officers may conduct a brief investigatory stop if they reasonably suspect that an individual has committed or is about to commit a crime. 392 U.S. 1, 20–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is a lower standard than probable cause. See Navarette v. California, 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014). It's a “commonsense, nontechnical [standard] that deal[s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citation omitted). It is judged holistically, based on “the sum of all of the information known to officers at the time of the stop.” See Matz v. Klotka, 769 F.3d 517, 523 (7th Cir. 2014). The plaintiffs do not contend that this is the rare case in which the facts establish a blatant violation of Terry’s rule even though there is no case on point. See Wesby, 138 S. Ct. at 590. Instead, they identify two cases that they say clearly established the illegality of this Terry stop: Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010), and United States v. Packer, 15 F.3d 654 (7th Cir. 1994). In Gentry, a police officer stopped someone after hearing a dispatch report that a suspicious person was pushing a wheelbarrow. 597 F.3d at 842–43. In Packer, police officers stopped a vehicle's occupants based on a citizen's report that a suspicious vehicle was parked along the street at one o'clock in the morning. 15 F.3d at 658. Neither report provided any facts concerning any crime that the people stopped were suspected of committing—they were stopped just because they looked suspicious. In both cases, therefore, the officers “lacked the minimal detail of information that would point to any arguably particularized suspicion of criminal conduct.” Green v. Newport, 868 F.3d 629, 634 (7th Cir. 2017) (citation omitted). 12 Neither Gentry nor Packer speaks to a situation like this one, where the plaintiffs partially matched the description of suspects involved in a drive-by shooting. When the officers in this case stopped the plaintiffs, they knew that three black men in a grey car were suspected of committing a nearby shooting earlier that day. The plaintiffs matched this description in number, race, and car color. Cf. United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003) (“[P]olice observation of an individual, fitting a police dispatch description of a person involved in a disturbance, near in time and geographic location to the disturbance *588 establishes a reasonable suspicion that the individual is the subject of the dispatch.”). The plaintiffs argue that the reasonableness of the officers’ suspicion was nevertheless undermined in two ways: first, the descriptions that the officers relied on identified the suspects’ vehicle as an SUV, but the plaintiffs were in a sedan; and second, the shooting occurred too far away (half a mile) and too long before (four hours) to justify the stop. But while these discrepancies may weigh against the officers’ suspicion, they don't clearly overcome it. We'll begin with the variation between Torry's car and the descriptions of the suspects’ car. Under our precedent, an imperfect match between a suspect and a description does not necessarily make an officer's suspicion unreasonable. See, e.g., D.Z. v. Buell, 796 F.3d 749, 754 (7th Cir. 2015) (finding reasonable suspicion to stop an individual “who somewhat matched the description of the suspect”). And the significance of the imperfect match may have been lessened here because there were multiple reports giving conflicting information about the suspects’ grey car. One report identified it as a Nissan, without giving a model; another identified it as a Nissan SUV; and a third identified it as a Trailblazer (an SUV made by Chevrolet). The fact that the reports’ descriptions of the car were consistent only as to its grey color gave the officers some reason to pay more attention to the color than to the make or model. No clearly established law holds that this kind of variation makes an officer's suspicion unreasonable under the Fourth Amendment. As for the time and place discrepancies, past cases have not established that they're enough to defeat reasonable suspicion. In United States v. Tilmon, for example, we found a stop reasonable based on the “match of a unique automobile with a driver fitting the general description of the bank robber,” even though the stop occurred two hours after and fifty miles away from the robbery. 19 F.3d 1221, 1225 (7th Cir. 1994). This stop occurred four hours after but only a half-mile away from the shooting and within the “safe passage” area surrounding Manley High School. Finally, the officers’ suspicion was not based solely on the descriptions of the suspects. The plaintiffs had also passed by the same area multiple times, behavior that could suggest that they were casing it in preparation for further criminal activity related to the dispute underlying the shooting. Cf. Green, 868 F.3d at 634 (circling an auto parts store's parking lot multiple times near the close of business contributed to an officer's reasonable suspicion). Taking all of this evidence together, a reasonable officer could have concluded that the investigative Terry stop of the plaintiffs comported with the Fourth Amendment. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). IV. Finally, the plaintiffs argue that even if the stop was initially justified, it exceeded its appropriate bounds and turned into a de facto arrest. They argue that taking Torry's identification and placing him in the back of the squad car was more intrusive than was warranted for the Terry stop, and thus transformed the encounter into an arrest without probable cause. The district court concluded both that the scope of the stop was lawful and that the officers were entitled to qualified immunity regardless. The plaintiffs challenge only one of those holdings: the lawfulness of the stop. Because they do not challenge the district court's alternative holding that the defendants are entitled to qualified immunity, they have forfeited this argument. *589 See United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990) (“A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is a good point despite a lack of supporting authority or in the face of contrary authority, forfeits the point.” (emphasis omitted)). We note, however, that our precedent on the permissible scope of a Terry stop would have made this a tough argument for the plaintiffs to win. In United States v. Bullock, for example, we held that a defendant being handcuffed, placed in a squad car, and transported back to a house that he had recently left didn't transform a Terry stop into an arrest. See 632 F.3d 1004, 1016 (7th Cir. 2011). We specifically noted that because the officers suspected that the defendant was selling drugs—a crime “associated with dangerous and violent behavior”—detention in the squad car was a reasonable precaution. Id. In the face of decisions like Bullock, the plaintiffs in this case would have a difficult time showing that detaining a drive-by shooting suspect in a squad car for approximately eight minutes clearly rose to the level of a formal arrest requiring probable cause under the law at that time.

Barrett

majority

One afternoon in three Chicago police officers stopped three black men in a grey sedan to investigate a nearby shooting that had happened a few hours earlier. When the passengers sued the officers a year later, none of the officers remembered the Terry stop. Lacking recall, they relied on other evidence to show that reasonable suspicion had existed for it. Cell phone footage taken by one of the plaintiffs during the encounter depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs’ suspicious behavior in the area of the shooting as the reason that he had pulled them over. And a police report showed that dispatches to officers investigating the shooting, including King, identified the suspects as three black men in a grey car. The descriptions of the car's model varied, and none was an exact match for the car that the plaintiffs were driving. But reasonable suspicion can exist without an exact match, and the district court held that these descriptions were close enough to justify the Terry stop. In any event, the court said, the officers were entitled to qualified immunity because the stop did not violate clearly established law. Before us, the plaintiffs have repeatedly suggested that the defendants’ failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn't remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity. I. On the morning of September 23, a drive-by shooting occurred about half a mile from Manley High School, which is located on West Polk Street in Chicago. Sergeant Robert King was on duty that day as a “school sergeant”—an officer who responds to and investigates violence near schools within his beat. A police report detailing the chronology of events related to the shooting shows that King responded to the shooting and that three descriptions of suspects were received while he was assisting.1 One identified the suspects’ vehicle *582 as a newer-model grey Nissan with three black male occupants. The second was almost identical to the first but specified that the Nissan was an SUV. The third identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer (a Chevrolet SUV). Shortly past noon on that same day, Marcus Torry and William Roberts picked up Latrell Goss, Torry's brother, in a grey Ford Fusion sedan. Goss's car had broken down on West Polk Street; Torry and Roberts met him at his car and then drove him west on West Polk to an auto parts store. They passed Manley High School as they drove to the store, and they passed it again when they returned the same way. As they went by the school for the second time, they were pulled over by three police officers—King, Jacek Leja, and Justin Raether. Torry captured video of the ensuing encounter on his cell phone camera. Like the district court, we draw our description of the encounter primarily from the video, supplementing it with other undisputed facts and drawing all inferences in the plaintiffs’ favor.2 After Torry pulled over, King approached his window and asked for his license and registration. Torry asked why he had been stopped, and King replied that “this was about your third pass by this school.” Torry protested that he had not driven by the school three times and handed over his license and registration. King told him not to argue; Torry demanded King's badge number. King told Torry to step out of the car and reached for the handle of the driver's door, which prompted Torry to ask if he was under arrest. King didn't directly answer the question but said, “Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the car, get out of the car.” Torry, protesting that he had done nothing wrong, failed to comply with multiple commands that he exit the vehicle. King told Torry, “If you don't get out of the car, I will remove you from the car,” and Torry replied, “I'm gonna remove myself but I just don't want to get—y'all get me, shoot me, or kill me for something I didn't do wrong.” King responded, “Yes, sir, absolutely; hands up, don't shoot, there you go.” Neither King nor the other officers had a gun out, but Torry feared police brutality. Torry testified that when he finally removed his seatbelt, King “just grab[bed] me out of the car.” King ordered Torry to “come on out, sir,” as Torry repeatedly exclaimed, “Please don't shoot.” King walked Torry to a squad car, saying, “Let's go back to my car, sir, right over here,” and placed him inside. Goss testified that an officer grabbed him out of the car too, but neither Goss nor Roberts were placed in a squad car. After the plaintiffs had been repeatedly ordered to leave the car but before they had complied, one of the officers shook a can of mace, although he never used it. After placing Torry in the back of his squad car, King sat in the front for a few minutes while he ran Torry's name through a warrant check. Torry demanded to know why he had been pulled over, and King explained that Torry had “cruised this street here around the school,” which was an area of “safe passage” and “the *583 immediate location of a shooting this ” (An area of “safe passage” is a designated area where extra precautions are taken to prevent violence that might affect students on their way to and from school.) King then returned to Torry's car, where the officers talked to Goss and Roberts, who testified that the other officers patted them down and searched Goss's pockets. Still in the squad car, Torry yelled obscenities and protests while continuing to film with his cell phone camera. At one point, Goss approached the car and told him to be quiet, to which Torry responded, “Leave me alone!” Roughly ten minutes into the stop and eight minutes after putting Torry in the squad car, King retrieved Torry and walked him back to his own car. Torry asked if he was under arrest, to which King answered, “If you were under arrest, you'd be in handcuffs.” Torry got in his car, and King returned his license and registration. Shortly after, one of the officers said to Goss that “you don't want anything to do with him,” and—in response to an unintelligible reply—said, “Yeah, c'mon, jump in the car yeah we'll give you a ride home.” Goss testified that the officers had told him to get in their car to return to his disabled car. Free to leave, Torry and Roberts pulled back onto West Polk Street. Torry continued his video recording, narrating that the officers were driving behind his car. Goss, riding in the back seat of Leja and Raether's car, testified that those officers debated pulling Torry over again “to mess with him.” But the officers dropped Goss off at his car and nothing else happened. One year later, Torry, Goss, and Roberts sued the three officers under alleging that the officers lacked reasonable suspicion to initiate the Terry stop, and that even if the stop was justified, its scope transformed it into a de facto arrest without probable cause.3 By the time the plaintiffs filed suit, none of the officers could recall the stop. Nor could King recall any details about the shooting. It was undisputed, though, that the shooting occurred while King was on duty in that area as a school sergeant, and the police report detailing the investigation's chronology reflected that King responded as an assist vehicle to the shooting, drove around the corner to the victim's residence a few minutes later, and continued to assist until 9:49 a.m., when the report notes him as “clear.” During the hour or so that King was on the shot call, three suspect descriptions were transmitted to investigators: one that identified the suspects’ car as a newer-model grey Nissan with three black male occupants, a second that was almost identical to the first but specified that the Nissan was an SUV,4 and a third that identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer. Based on that report and his review of Torry's video, King testified by affidavit that the dispatches would have alerted him that the suspects were three black men driving a grey car, and, as the video reflected, that he told Torry—who was driving a grey car with three black male occupants—that *584 he had stopped him because of the shooting. The plaintiffs and the defendants filed cross-motions for summary judgment, and the district court granted summary judgment to the defendants. II. The primary theme of the plaintiffs’ argument is that proving reasonable suspicion for the stop requires the officers to have at least some independent memory of what they knew at the time. The plaintiffs particularly object, therefore, to the district court's reliance on indirect evidence—the police report and King's affidavit—to conclude that the officers had reasonable suspicion to pull them over. They offer four reasons why the district court was wrong to consider this evidence: first, the officers submitted it in response to the plaintiffs’ motion for summary judgment rather than in support of their own motion; second, King's affidavit was a sham because it contradicted his prior testimony; third, the police report was hearsay; and fourth, King's lack of memory precludes him from relying on the collective knowledge doctrine. None of these arguments succeeds. 1 To begin with, it doesn't matter that the officers submitted the report and affidavit in their response to the plaintiffs’ motion for summary judgment rather than in support of their own motion. In adjudicating a motion for summary judgment, “[a] court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The court was therefore free to consider evidence submitted in response to one motion when it decided the other. Indeed, it would have been odd for the court to ignore the report and affidavit, because they were obviously relevant to the defendants’ cross-motion on the very same issues. See Las Vegas Sands, The plaintiffs had an opportunity to—and did—address the evidence in their own brief, and they don't suggest that they were inappropriately prejudiced by its consideration. Cf. This argument for excluding the report and affidavit fails. 2 The plaintiffs’ next argument—that the court should have excluded King's affidavit as a sham—fares no better. According to the plaintiffs, King made several admissions during discovery that effectively conceded his liability, and his affidavit contradicts these admissions because it explains why King had reasonable suspicion for the stop. Thus, they insist, the court was obliged to exclude the affidavit as a sham. See Bank of The premise of the plaintiffs’ argument is flawed, however, because King's affidavit does not contradict his prior admissions. King never conceded that he stopped the plaintiffs unlawfully; he stated that he had no independent memory of the incident. Admitting to a lack of memory is a far cry from admitting that the opposing party's version of events is correct. See Rather than contradicting his prior admissions, King's affidavit explained the newly introduced police report and how it bore on the *585 stop. The district court did not abuse its “great discretion” by considering King's testimony. See ; cf. Bank of 3 The plaintiffs’ next argument—that the police report was inadmissible hearsay—is their most underdeveloped. They insist that the report is hearsay, but they never articulate why any of the statements within the report was offered as proof of the truth of the matter asserted. See Fed. R. Ev 801(c)(2) (“ ‘Hearsay’ means a statement that a party offers in evidence to prove the truth of the matter asserted in the statement.”). Their failure to develop this argument is enough to dispense with it. See 623 n.2, WL 3363, We observe, however, that many of the statements were obviously not offered for their truth. For example, the descriptions of the shooters (three black men) and their vehicle (a grey Nissan, a grey Trailblazer, or a grey Nissan SUV) were not offered to show what the real shooters looked like or what car they were actually driving. The descriptions were offered to show that a competent officer aware of that information could conclude that there was reasonable suspicion to stop Torry and his passengers. See ; Statements introduced to show their effect on the listener, rather than the truth of the matter they assert, are not hearsay. See 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 8:20 (4th ed. 2013). We will assume for the sake of argument that the entries reflecting King's response to the shooting were offered for their truth.5 Even if they were, however, the plaintiffs don't counter the defendants’ argument that the entire report is admissible under the business records exception. See Fed. R. Ev 803(6). That exception applies if five conditions are met: (1) “the record was made at or near the time by—or from information transmitted by—someone with knowledge”; (2) “the record was kept in the ordinary course of a regularly conducted activity of a business, organization, occupation, or calling”; (3) “making the record was a regular practice of that activity”; (4) “all these conditions are shown by the testimony of a custodian or another qualified witness”; and (5) “the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.” The only factor that the plaintiffs come close to discussing is the fourth: they seem to argue that King was not qualified to authenticate the report *586 because he could not remember receiving the transmissions that it recorded. But to authenticate a business record, a qualified witness “need not be in control of or have individual knowledge of the particular [ ] records”; he “need only be familiar with the [ ] recordkeeping practices.” In his affidavit, King testified that each of the conditions was satisfied. Plaintiffs have not argued otherwise. Because the report is a business record, all of its statements are admissible for their truth.6 6 7 The plaintiffs point out that while the police report shows that descriptions of the suspects were transmitted to investigators, it does not expressly note whether the investigators received them. The district court properly concluded, though, that we can impute that knowledge to King via the collective knowledge doctrine. “[W]hen officers are in communication with each other while working together at a scene, their knowledge may be mutually imputed even when there is no express testimony that the specific or detailed information creating the justification for a stop was conveyed.” United ; see also United That is true even when the communication is by dispatch rather than face-to-face. See 224 F.3d at King's presence at and involvement in the shooting investigation—bolstered by his testimony that suspect descriptions are typically shared with officers at the scene and through the Office of Emergency Management and Communications—are enough to attribute the knowledge to him. Because the report establishes that King was aware of both the shooting and the suspect descriptions, the court appropriately treated those as undisputed facts when considering whether reasonable suspicion for the Terry stop existed. III. That brings us to the reasonableness of the stop. The plaintiffs argue that it violated the Fourth Amendment, given that the shooting had occurred several hours earlier and that Torry's car was a different model than the one identified in the department's transmissions to investigators. The defendants contend that the stop was lawful and that they are in any event entitled to qualified immunity. 8 Qualified immunity protects government officials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus, to win, the plaintiffs must show not only that the stop was unlawful, but also that the unlawfulness of the stop was clearly established at the time that it occurred. Because the plaintiffs cannot make the latter showing, we need not consider whether the stop violated the Fourth Amendment. See *587 9 The “demanding standard” that the law be “clearly established” for liability to attach “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” District of For the law to be “clearly established,” existing precedent must have placed the unlawfulness of the stop “beyond debate.” It is usually necessary to identify an instance in which “an officer acting under similar circumstances was held to have violated the Fourth Amendment,” though in the “rare ‘obvious case’ ” the violation may be sufficiently clear “even though existing precedent does not address similar circumstances.” (citations omitted). 10 11 The general rule established by Terry v. Ohio is that officers may conduct a brief investigatory stop if they reasonably suspect that an individual has committed or is about to commit a crime. Reasonable suspicion is a lower standard than probable cause. See 188 L.Ed.2d It's a “commonsense, nontechnical [standard] that deal[s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” 134 L.Ed.2d It is judged holistically, based on “the sum of all of the information known to officers at the time of the stop.” See F.3d 517, The plaintiffs do not contend that this is the rare case in which the facts establish a blatant violation of Terry’s rule even though there is no case on point. See Instead, they identify two cases that they say clearly established the illegality of this Terry stop: and United In Gentry, a police officer stopped someone after hearing a dispatch report that a suspicious person was pushing a –43. In Packer, police officers stopped a vehicle's occupants based on a citizen's report that a suspicious vehicle was parked along the street at one o'clock in the Neither report provided any facts concerning any crime that the people stopped were suspected of committing—they were stopped just because they looked suspicious. In both cases, therefore, the officers “lacked the minimal detail of information that would point to any arguably particularized suspicion of criminal conduct.” 12 Neither Gentry nor Packer speaks to a situation like this one, where the plaintiffs partially matched the description of suspects involved in a drive-by shooting. When the officers in this case stopped the plaintiffs, they knew that three black men in a grey car were suspected of committing a nearby shooting earlier that day. The plaintiffs matched this description in number, race, and car color. Cf. United The plaintiffs argue that the reasonableness of the officers’ suspicion was nevertheless undermined in two ways: first, the descriptions that the officers relied on identified the suspects’ vehicle as an SUV, but the plaintiffs were in a sedan; and second, the shooting occurred too far away (half a mile) and too long before (four hours) to justify the stop. But while these discrepancies may weigh against the officers’ suspicion, they don't clearly overcome it. We'll begin with the variation between Torry's car and the descriptions of the suspects’ car. Under our precedent, an imperfect match between a suspect and a description does not necessarily make an officer's suspicion unreasonable. See, e.g., And the significance of the imperfect match may have been lessened here because there were multiple reports giving conflicting information about the suspects’ grey car. One report identified it as a Nissan, without giving a model; another identified it as a Nissan SUV; and a third identified it as a Trailblazer (an SUV made by Chevrolet). The fact that the reports’ descriptions of the car were consistent only as to its grey color gave the officers some reason to pay more attention to the color than to the make or model. No clearly established law holds that this kind of variation makes an officer's suspicion unreasonable under the Fourth Amendment. As for the time and place discrepancies, past cases have not established that they're enough to defeat reasonable suspicion. In United States v. Tilmon, for example, we found a stop reasonable based on the “match of a unique automobile with a driver fitting the general description of the bank robber,” even though the stop occurred two hours after and fifty miles away from the robbery. This stop occurred four hours after but only a half-mile away from the shooting and within the “safe passage” area surrounding Manley High School. Finally, the officers’ suspicion was not based solely on the descriptions of the suspects. The plaintiffs had also passed by the same area multiple times, behavior that could suggest that they were casing it in preparation for further criminal activity related to the dispute underlying the shooting. Cf. 868 F.3d at Taking all of this evidence together, a reasonable officer could have concluded that the investigative Terry stop of the plaintiffs comported with the Fourth Amendment. See 97 L.Ed.2d IV. Finally, the plaintiffs argue that even if the stop was initially justified, it exceeded its appropriate bounds and turned into a de facto arrest. They argue that taking Torry's identification and placing him in the back of the squad car was more intrusive than was warranted for the Terry stop, and thus transformed the encounter into an arrest without probable cause. The district court concluded both that the scope of the stop was lawful and that the officers were entitled to qualified immunity regardless. The plaintiffs challenge only one of those holdings: the lawfulness of the stop. Because they do not challenge the district court's alternative holding that the defendants are entitled to qualified immunity, they have forfeited this argument. * See United We note, however, that our precedent on the permissible scope of a Terry stop would have made this a tough argument for the plaintiffs to win. In United States v. Bullock, for example, we held that a defendant being handcuffed, placed in a squad car, and transported back to a house that he had recently left didn't transform a Terry stop into an arrest. See We specifically noted that because the officers suspected that the defendant was selling drugs—a crime “associated with dangerous and violent behavior”—detention in the squad car was a reasonable precaution. In the face of decisions like Bullock, the plaintiffs in this case would have a difficult time showing that detaining a drive-by shooting suspect in a squad car for approximately eight minutes clearly rose to the level of a formal arrest requiring probable cause under the law at that time.

United States v. Allgire

The district court revoked Michael Allgire’s supervised release after Allgire skipped out one month into his six-month term at a halfway house. The district court sentenced him to reimprisonment—24 months on one count of his original conviction and 17 months on another count, set to run concurrently. He now argues both that his total 24-month sentence was unreasonable and that the district court committed reversible error by imposing two concurrent sentences. We disagree with both contentions. I. In 2006, Michael Allgire was charged with a number of drug-related offenses. He pleaded guilty to two of the charges: Count 1 and Count 10 of the indictment. He was sentenced to 233 months’ imprisonment on Count 1 and to 120 months’ imprisonment on Count 10. He served both sentences concurrently. After Allgire completed his prison term, he began serving concurrent terms of supervised release, one on each count of conviction. But he *367 violated the conditions of that supervised release and, after a revocation hearing, was sentenced to 7 months’ reimprisonment or, alternatively, up to 6 months in a halfway house, along with another 24 months’ supervised release. The government found space for Allgire in a halfway house but a month into his time there he absconded and spent the next 7 months on the lam. When he was eventually found, he was brought up for a second revocation hearing. At the second revocation hearing, Allgire admitted that he violated the terms of his supervised release. The guidelines range for his violation was 5 to 11 months. The government sought a 9-month sentence while Allgire asked for 8. The district court, though, felt that Allgire had taken advantage of the court’s previous leniency. Allgire had been given a 53-month reduction for cooperating with the government in his initial sentence for his crime of conviction, and then after the first revocation he had been offered 6 months in a halfway house rather than 7 months in prison. But in return, the district court noted, Allgire had “disregard[ed]” the law and displayed “lack of respect for” it. Thus, the district court decided to vary upward from the guidelines to account for what had proved to be regrettable leniency. The district court sentenced Allgire to two terms of reimprisonment: 24 months’ imprisonment for violating the terms of supervised release on Count 1 of his conviction and 17 months’ imprisonment on Count 10 of his conviction. It set both sentences to run concurrently. Both parties agreed that any additional term of supervised release would be futile given Allgire’s past conduct, so the district court did not impose any supervised release to follow the 24-month sentence. II. On appeal, Allgire raises two challenges. First, he argues that his total sentence of 24 months is unreasonable. Second, he contends that the district court lacked the authority to impose a concurrent 17-month sentence. 1 We readily uphold the 24-month sentence, notwithstanding the fact it was 13 months higher than the guidelines range. That’s because we only reverse a sentence of reimprisonment after the revocation of supervised release if the sentence was “plainly unreasonable.” United States v. Boultinghouse, 784 F.3d 1163, 1177 (7th Cir. 2015). And here, the district court ably explained its decision to vary upward from the guidelines range. 2 3 A district court must fashion a term of reimprisonment upon revocation of supervised release according to the factors outlined in 18 U.S.C. § 3553(a), as they apply to revocations, along with any relevant policy statements in the Sentencing Guidelines. See United States v. Hollins, 847 F.3d 535, 539 (7th Cir. 2017); see 18 U.S.C. § 3583(e) (incorporating a subset of § 3553(a) factors into the revocation analysis). Here, the district court justified its decision based on Allgire’s extensive criminal history, § 3553(a)(1); repeated violations of supervised release, see § 3553(a)(2)(B); and likelihood of recidivism given his criminal history and previous disregard for supervised release terms, § 3553(a)(2)(C). Weighing those factors, the district court determined that even an 11-month sentence would be insufficient to accomplish the goals of sentencing, let alone an 8- or 9-month sentence as proposed by the parties. Instead, the district court determined that a total of 24 months’ imprisonment was necessary. It clearly explained the variance decision with reference to the applicable sentencing factors, which were reasonably applied to Allgire’s circumstances. And 24 months was below the statutory maximum that the district court was authorized to impose. *368 See 18 U.S.C. § 3583(b)(2) & (h). We will not second-guess the district court’s assessment on appeal. See United States v. Robertson, 648 F.3d 858, 859 (7th Cir. 2011) (referring to appellate review of revocation of supervised release as “comparable to ‘the narrowest judicial review of judgments we know’ ” (citation omitted)). 4 Even if the total sentence is reasonable, Allgire argues, we must still vacate his sentence because the district court lacked the authority to impose two concurrent sentences. He did not raise this objection in the district court, so we review it here for plain error. United States v. Pierson, 925 F.3d 913, 919 (7th Cir. 2019). To prevail, Allgire must show that (1) the district court made an error, (2) the error was clear or obvious, (3) the error affected his substantial rights, and (4) the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Molina-Martinez v. United States, ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (citation omitted). Allgire argues that the district court made a clear or obvious error when it sentenced him to two terms of reimprisonment. The basic outline of his argument is this: When he first began his supervised release there were two concurrent terms, one for Count 1 and one for Count 10. That supervised release was revoked, but the district court only sentenced him to a single term of reimprisonment and supervised release, not two concurrent terms as before. So, when the district court sentenced him for violating the latter term of supervised release, Allgire had only committed one violation of supervised release and there was only one term of supervised release to revoke. Thus, the district court could only have sentenced him to one term of reimprisonment, not two. See United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006) (explaining that, on revocation, “impos[ing] concurrent terms of supervised release ... was proper only if [the district court] was revoking two terms [of supervised release] rather than one”). 5 Allgire’s argument stumbles, however, on plain error’s third prong. Even if imposing the concurrent sentence was a plain error, Allgire needs to show that it affected his substantial rights—“which in the ordinary case means it affected the outcome of the district court proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (citation and internal quotation marks omitted). Allgire certainly cannot show that the error affected the length of his imprisonment: the 24-month sentence was reasonable, so he cannot show that he was prejudiced by the inclusion of a shorter concurrent sentence. He will serve 24 months regardless. For Allgire’s challenge to succeed, he must be able to point us toward some other substantial right that was impinged. His only nominee is the additional stigma that he feels from being sentenced to two terms of reimprisonment rather than one. That is not enough to satisfy plain error’s substantial-rights prong. Allgire’s sentence is AFFIRMED.

Barrett

majority

The district court revoked Michael Allgire’s supervised release after Allgire skipped out one month into his six-month term at a halfway house. The district court sentenced him to reimprisonment—24 months on one count of his original conviction and 17 months on another count, set to run concurrently. He now argues both that his total 24-month sentence was unreasonable and that the district court committed reversible error by imposing two concurrent sentences. We disagree with both contentions. I. In 2006, Michael Allgire was charged with a number of drug-related offenses. He pleaded guilty to two of the charges: Count 1 and Count 10 of the indictment. He was sentenced to 233 months’ imprisonment on Count 1 and to 120 months’ imprisonment on Count 10. He served both sentences concurrently. After Allgire completed his prison term, he began serving concurrent terms of supervised release, one on each count of conviction. But he *367 violated the conditions of that supervised release and, after a revocation hearing, was sentenced to 7 months’ reimprisonment or, alternatively, up to 6 months in a halfway house, along with another 24 months’ supervised release. The government found space for Allgire in a halfway house but a month into his time there he absconded and spent the next 7 months on the lam. When he was eventually found, he was brought up for a second revocation hearing. At the second revocation hearing, Allgire admitted that he violated the terms of his supervised release. The guidelines range for his violation was 5 to 11 months. The government sought a 9-month sentence while Allgire asked for 8. The district court, though, felt that Allgire had taken advantage of the court’s previous leniency. Allgire had been given a 53-month reduction for cooperating with the government in his initial sentence for his crime of conviction, and then after the first revocation he had been offered 6 months in a halfway house rather than 7 months in prison. But in return, the district court noted, Allgire had “disregard[ed]” the law and displayed “lack of respect for” it. Thus, the district court decided to vary upward from the guidelines to account for what had proved to be regrettable leniency. The district court sentenced Allgire to two terms of reimprisonment: 24 months’ imprisonment for violating the terms of supervised release on Count 1 of his conviction and 17 months’ imprisonment on Count 10 of his conviction. It set both sentences to run concurrently. Both parties agreed that any additional term of supervised release would be futile given Allgire’s past conduct, so the district court did not impose any supervised release to follow the 24-month sentence. II. On appeal, Allgire raises two challenges. First, he argues that his total sentence of 24 months is unreasonable. Second, he contends that the district court lacked the authority to impose a concurrent 17-month sentence. 1 We readily uphold the 24-month sentence, notwithstanding the fact it was 13 months higher than the guidelines range. That’s because we only reverse a sentence of reimprisonment after the revocation of supervised release if the sentence was “plainly unreasonable.” United And here, the district court ably explained its decision to vary upward from the guidelines range. 2 3 A district court must fashion a term of reimprisonment upon revocation of supervised release according to the factors outlined in (a), as they apply to revocations, along with any relevant policy statements in the Sentencing Guidelines. See United ; see (e) (incorporating a subset of 3553(a) factors into the revocation analysis). Here, the district court justified its decision based on Allgire’s extensive criminal history, 3553(a)(1); repeated violations of supervised release, see 3553(a)(2)(B); and likelihood of recidivism given his criminal history and previous disregard for supervised release terms, 3553(a)(2)(C). Weighing those factors, the district court determined that even an 11-month sentence would be insufficient to accomplish the goals of sentencing, let alone an 8- or 9-month sentence as proposed by the parties. Instead, the district court determined that a total of 24 months’ imprisonment was necessary. It clearly explained the variance decision with reference to the applicable sentencing factors, which were reasonably applied to Allgire’s circumstances. And 24 months was below the statutory maximum that the district court was authorized to impose. *368 See (b)(2) & (h). We will not second-guess the district court’s assessment on appeal. See United 4 Even if the total sentence is reasonable, Allgire argues, we must still vacate his sentence because the district court lacked the authority to impose two concurrent sentences. He did not raise this objection in the district court, so we review it here for plain error. United To prevail, Allgire must show that (1) the district court made an error, (2) the error was clear or obvious, (3) the error affected his substantial rights, and (4) the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Allgire argues that the district court made a clear or obvious error when it sentenced him to two terms of reimprisonment. The basic outline of his argument is this: When he first began his supervised release there were two concurrent terms, one for Count 1 and one for Count 10. That supervised release was revoked, but the district court only sentenced him to a single term of reimprisonment and supervised release, not two concurrent terms as before. So, when the district court sentenced him for violating the latter term of supervised release, Allgire had only committed one violation of supervised release and there was only one term of supervised release to revoke. Thus, the district court could only have sentenced him to one term of reimprisonment, not two. See United 5 Allgire’s argument stumbles, however, on plain error’s third prong. Even if imposing the concurrent sentence was a plain error, Allgire needs to show that it affected his substantial rights—“which in the ordinary case means it affected the outcome of the district court proceedings.” United Allgire certainly cannot show that the error affected the length of his imprisonment: the 24-month sentence was reasonable, so he cannot show that he was prejudiced by the inclusion of a shorter concurrent sentence. He will serve 24 months regardless. For Allgire’s challenge to succeed, he must be able to point us toward some other substantial right that was impinged. His only nominee is the additional stigma that he feels from being sentenced to two terms of reimprisonment rather than one. That is not enough to satisfy plain error’s substantial-rights prong. Allgire’s sentence is AFFIRMED.

United States v. Atwood

Judge Colin S. Bruce sentenced James Atwood to 210 months’ imprisonment for *884 federal drug crimes. While Atwood's case was pending, Judge Bruce improperly communicated ex parte with the prosecuting U.S. Attorney's Office about other cases. The federal recusal statute requires a judge to recuse himself from any proceeding in which his impartiality may reasonably be questioned. The government concedes that the disclosure of Judge Bruce's ex parte correspondence invited doubt about his impartiality in proceedings involving the Office. Because of the judge's broad discretion in sentencing, we conclude that Judge Bruce's failure to recuse himself was not harmless error. We vacate Atwood's sentence and remand his case for resentencing by a different judge. I. James Atwood appeared before Judge Colin S. Bruce for sentencing after pleading guilty to three counts of federal drug crimes. The presentencing report calculated that Atwood faced a Guidelines range of 188 to 235 months in prison for Counts One and Two. Judge Bruce adopted the report's calculations and sentenced Atwood to 210 months’ imprisonment on those two counts and 96 months’ concurrent imprisonment on the third count. At sentencing, Judge Bruce explained, “My sentence is driven by the [§] 3553(a) factors; and, in fact, if I have made a mistake in the guideline calculations, if I have made any mistake in a ruling on the guidelines, my sentence would still be the same.” It later came to light that while Atwood's case was pending, Judge Bruce engaged in extensive ex parte communication with the prosecuting U.S. Attorney's Office about other cases. Judge Bruce had been a federal prosecutor at the same U.S. Attorney's Office for many years before his appointment to the judiciary. In August 2018, a newspaper exposed that Judge Bruce had continued to communicate ex parte with his former colleagues in the Office about one of their cases before him. The newspaper published emails between Judge Bruce and a paralegal in the U.S. Attorney's Office about a criminal trial over which Judge Bruce presided. In the emails, Judge Bruce expressed exasperation that the novice prosecutor's weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant ....” After learning of those emails, the Chief District Judge removed Judge Bruce from all cases involving the Office. The Office then disclosed additional emails, which revealed that Judge Bruce had communicated ex parte with the Office over 100 times since taking the bench. Those communications mostly addressed ministerial matters, but they often showed Judge Bruce cheering on Office employees and addressing them by nicknames. For example, Judge Bruce corresponded ex parte with a secretary in the Office about scheduling for Atwood's co-defendant, writing, “Roger-dodger. GO SONCHETTA [a nickname for the secretary]!” And after a pretrial conference, Judge Bruce reassured a prosecutor about a filing miscommunication: “My bad. You're doing fine. Let's get this thing done.” At other times, Judge Bruce wrote to prosecutors in the Office to congratulate and thank them for persuading our court to affirm his decisions. Judge Bruce never explicitly mentioned Atwood's case in an ex parte email. The Judicial Council of the Seventh Circuit reviewed two complaints filed against Judge Bruce. A Special Committee examined the disclosures and conducted supplementary interviews and a hearing. The Judicial Council released the Special Committee's investigative report to the public and adopted its recommendations in full. *885 In re Complaints Against Dist. Judge Colin S. Bruce, Nos. 07-18-90053, 07-18-90067 (7th Cir. Jud. Council May 14, 2019). The Judicial Council found no evidence that Judge Bruce's improper communications actually affected his decision in any case but admonished Judge Bruce that his actions had breached the Code of Conduct for United States Judges. Id. at 1. Following the Judicial Council's order, Judge Bruce remained unassigned to any case involving the Office until September 1, 2019. Id. He has since resumed presiding over those cases. II. In light of Judge Bruce's conduct, Atwood argues that the federal recusal statute entitles him to resentencing by a different judge. Atwood raised recusal for the first time on appeal, but we review his claim de novo because Judge Bruce's ex parte communications were disclosed only after sentencing. See Fowler v. Butts, 829 F.3d 788, 792–95 (7th Cir. 2016). 1 2 The federal recusal statute requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The government concedes that Judge Bruce's conduct gave the appearance that he was biased in the government's favor but argues that the error was harmless. To determine whether a judge's violation of § 455(a) was harmless error, we look to the three factors outlined in Liljeberg v. Health Services Acquisition Corp.: (1) the risk of injustice to the parties in this case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process. 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The first Liljeberg factor focuses on the fairness to the litigants in this case. We begin with the potential unfairness to Atwood of upholding his sentence. Judge Bruce calculated Atwood's sentence based on the factors outlined in 18 U.S.C. § 3553(a). As we have said before, “[t]he open-endedness of the § 3553(a) factors leaves ample room for the court's discretion.” United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015). That discretion invites the risk that a judge's personal biases will influence or appear to influence the sentence he imposes. See United States v. Smith, 775 F.3d 879, 882 (7th Cir. 2015) (remanding for resentencing because of the possibility that a judge's prior knowledge of a case was a conscious or unconscious influence on the sentence she imposed). Upholding Atwood's sentence, then, creates a real risk of unfairness to him. Conversely, there is little risk of unfairness to the government if we remand Atwood's case for resentencing. Although a second sentencing proceeding carries some administrative cost, the government concedes that resentencing would not impose a special hardship in this case. Cf. Rosales-Mireles v. United States, ––– U.S. ––––, 138 S. Ct. 1897, 1909, 201 L.Ed.2d 376 (2018) (characterizing a resentencing proceeding as “relatively inexpensive”). Since there is a substantial risk of unfairness to Atwood if we uphold his sentence and little risk of unfairness to the government if we do not, the first Liljeberg factor favors resentencing. The second Liljeberg factor invites us to consider the risk of injustice to other litigants in future cases. As in Liljeberg, we think that enforcing § 455(a) in this case “may prevent a substantive injustice in some future case”—here, by encouraging judges to exercise caution in their communications. 486 U.S. at 868, 108 S.Ct. 2194. This factor also counsels in favor of resentencing. Finally, we consider the risk of harm to the public's confidence in the impartiality *886 of the judiciary. In sentencing, the most significant restriction on a judge's ample discretion is the judge's own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence. The government has conceded that Judge Bruce compromised his appearance of impartiality. Allowing Atwood's sentence to stand would undermine the public's confidence in the fairness of this sentence and in the impartiality of the judiciary. All three Liljeberg factors, then, counsel that we remand for resentencing.

Barrett

majority

Judge Colin S. Bruce sentenced James Atwood to 210 months’ imprisonment for *884 federal drug crimes. While Atwood's case was pending, Judge Bruce improperly communicated ex parte with the prosecuting U.S. Attorney's Office about other cases. The federal recusal statute requires a judge to recuse himself from any proceeding in which his impartiality may reasonably be questioned. The government concedes that the disclosure of Judge Bruce's ex parte correspondence invited doubt about his impartiality in proceedings involving the Office. Because of the judge's broad discretion in sentencing, we conclude that Judge Bruce's failure to recuse himself was not harmless error. We vacate Atwood's sentence and remand his case for resentencing by a different judge. I. James Atwood appeared before Judge Colin S. Bruce for sentencing after pleading guilty to three counts of federal drug crimes. The presentencing report calculated that Atwood faced a Guidelines range of 188 to 235 months in prison for Counts One and Two. Judge Bruce adopted the report's calculations and sentenced Atwood to 210 months’ imprisonment on those two counts and 96 months’ concurrent imprisonment on the third count. At sentencing, Judge Bruce explained, “My sentence is driven by the 3553(a) factors; and, in fact, if I have made a mistake in the guideline calculations, if I have made any mistake in a ruling on the guidelines, my sentence would still be the same.” It later came to light that while Atwood's case was pending, Judge Bruce engaged in extensive ex parte communication with the prosecuting U.S. Attorney's Office about other cases. Judge Bruce had been a federal prosecutor at the same U.S. Attorney's Office for many years before his appointment to the judiciary. In August a newspaper exposed that Judge Bruce had continued to communicate ex parte with his former colleagues in the Office about one of their cases before him. The newspaper published emails between Judge Bruce and a paralegal in the U.S. Attorney's Office about a criminal trial over which Judge Bruce presided. In the emails, Judge Bruce expressed exasperation that the novice prosecutor's weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant” After learning of those emails, the Chief District Judge removed Judge Bruce from all cases involving the Office. The Office then disclosed additional emails, which revealed that Judge Bruce had communicated ex parte with the Office over 100 times since taking the bench. Those communications mostly addressed ministerial matters, but they often showed Judge Bruce cheering on Office employees and addressing them by nicknames. For example, Judge Bruce corresponded ex parte with a secretary in the Office about scheduling for Atwood's co-defendant, writing, “Roger-dodger. GO SONCHETTA [a nickname for the secretary]!” And after a pretrial conference, Judge Bruce reassured a prosecutor about a filing miscommunication: “My bad. You're doing fine. Let's get this thing done.” At other times, Judge Bruce wrote to prosecutors in the Office to congratulate and thank them for persuading our court to affirm his decisions. Judge Bruce never explicitly mentioned Atwood's case in an ex parte email. The Judicial Council of the Seventh Circuit reviewed two complaints filed against Judge Bruce. A Special Committee examined the disclosures and conducted supplementary interviews and a hearing. The Judicial Council released the Special Committee's investigative report to the public and adopted its recommendations in full. *885 In re Complaints Against Dist. Judge Colin S. Bruce, Nos. 07-18-90053, 07-18-90067 (7th Cir. Jud. Council May 14, 2019). The Judicial Council found no evidence that Judge Bruce's improper communications actually affected his decision in any case but admonished Judge Bruce that his actions had breached the Code of Conduct for United States Judges. Following the Judicial Council's order, Judge Bruce remained unassigned to any case involving the Office until September 1, 2019. He has since resumed presiding over those cases. II. In light of Judge Bruce's conduct, Atwood argues that the federal recusal statute entitles him to resentencing by a different judge. Atwood raised recusal for the first time on appeal, but we review his claim de novo because Judge Bruce's ex parte communications were disclosed only after sentencing. See 1 2 The federal recusal statute requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” (a). The government concedes that Judge Bruce's conduct gave the appearance that he was biased in the government's favor but argues that the error was harmless. To determine whether a judge's violation of 455(a) was harmless error, we look to the three factors outlined in Liljeberg v. Health Services Acquisition Corp.: (1) the risk of injustice to the parties in this case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process. The first Liljeberg factor focuses on the fairness to the litigants in this case. We begin with the potential unfairness to Atwood of upholding his sentence. Judge Bruce calculated Atwood's sentence based on the factors outlined in 18 U.S.C. 3553(a). As we have said before, “[t]he open-endedness of the 3553(a) factors leaves ample room for the court's discretion.” United That discretion invites the risk that a judge's personal biases will influence or appear to influence the sentence he imposes. See United Upholding Atwood's sentence, then, creates a real risk of unfairness to him. Conversely, there is little risk of unfairness to the government if we remand Atwood's case for resentencing. Although a second sentencing proceeding carries some administrative cost, the government concedes that resentencing would not impose a special hardship in this case. Cf. Since there is a substantial risk of unfairness to Atwood if we uphold his sentence and little risk of unfairness to the government if we do not, the first Liljeberg factor favors resentencing. The second Liljeberg factor invites us to consider the risk of injustice to other litigants in future cases. As in Liljeberg, we think that enforcing 455(a) in this case “may prevent a substantive injustice in some future case”—here, by encouraging judges to exercise caution in their This factor also counsels in favor of resentencing. Finally, we consider the risk of harm to the public's confidence in the impartiality *886 of the judiciary. In sentencing, the most significant restriction on a judge's ample discretion is the judge's own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence. The government has conceded that Judge Bruce compromised his appearance of impartiality. Allowing Atwood's sentence to stand would undermine the public's confidence in the fairness of this sentence and in the impartiality of the judiciary. All three Liljeberg factors, then, counsel that we remand for resentencing.

United States v. Barnes

David Barnes appeals his sentence. He argues that the district court incorrectly calculated his Guidelines range by counting a local ordinance violation for “Smoking Marihuana at a Public Park” in his criminal history score. Because Barnes has waived this argument, we affirm the district court. I. In 2010, Barnes pleaded guilty to several offenses related to the distribution of crack cocaine. The district court sentenced him to 300 months of imprisonment, five years of supervised release, a fine of $600, and a special assessment of $300. Barnes did not appeal.1 In 2012, Barnes moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that two Illinois convictions used to classify Barnes as a career offender—one for robbery and the other for aggravated discharge of a firearm—were no longer valid predicates. After he received his federal sentence, Barnes persuaded an Illinois state court to convert these convictions from adult felony convictions to adjudications of delinquency. (Barnes was fifteen when he committed these crimes but was tried as an adult.) Now that they were juvenile offenses, Barnes claimed, they no longer justified the enhancement he had received under the Sentencing Guidelines for being a career offender. The district court granted his § 2255 motion and ordered that a revised presentence investigation report (PSR) be prepared for resentencing. The revised PSR did not use the adjudications of delinquency to classify Barnes as a career offender. It did, however, count them in his criminal history score. The PSR assigned Barnes ten criminal history points: two for the adjudication of delinquency for robbery, two for the adjudication of delinquency for aggravated discharge of a firearm, one point apiece for three convictions of marijuana possession, one point for smoking marijuana at a public park, and two points for committing the instant offense while on the parole imposed as part of his sentence for the convictions now classified as adjudications of delinquency. Defense counsel and the government went back and forth about Barnes's criminal history score. Barnes's counsel maintained that the PSR should give no weight to either the juvenile adjudications or the parole violation based upon them. Instead, he insisted, the court should assign him only four points in determining his criminal *957 history category, one for each of the marijuana-related offenses. The government initially opposed any modification to the PSR on the ground that the Guidelines expressly count juvenile offenses as relevant criminal history. But after Barnes's counsel shifted his argument to highlight a procedural irregularity in the state-court judgment, the government agreed that the district court should not assess any criminal history points for the juvenile offenses or the associated parole violation.2 The PSR was revised, and the district court sentenced Barnes to 189 months of imprisonment, five years of supervised release, a $600 fine, and a $300 special assessment. Barnes appeals this sentence. He claims that the district court incorrectly counted a local ordinance violation—one for “Smoking Marihuana at a Public Park”—as part of his criminal history. Local ordinance violations do not count to-ward criminal history unless the underlying conduct would also violate state law. See U.S.S.G. § 4A1.2(c)(2). Barnes says that there is no Illinois crime of “Smoking Marihuana at a Public Park” and that assigning him a criminal history point for that offense was therefore error. II. 1 2 3 The parties agree that Barnes failed to raise this objection below. But they disagree about whether Barnes has waived or forfeited the argument. “Waiver occurs when a defendant intentionally relinquishes a known right.” United States v. Haddad, 462 F.3d 783, 793 (7th Cir. 2006). Forfeiture, by contrast, “occurs when a defendant accidentally or negligently fails to assert his or her rights in a timely fashion.” Id. The difference between the two is significant, because “[w]aiver of a right extinguishes any error and precludes appellate review, whereas forfeiture of a right is reviewed for plain error.” United States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007). Barnes claims that his failure to object to the inclusion of the “Smoking Marihuana at a Public Park” offense in his criminal history score was an oversight that we can remedy if the district court clearly erred. The government asserts that Barnes knowingly conceded this point below and is now barred from pressing it on appeal. 4 Because the waiver principle is construed liberally in favor of the defendant, we are cautious about interpreting a defendant's behavior as intentional relinquishment. Thus we have held that a defendant does not necessarily waive a sentencing argument by accepting the PSR without objection, see United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005), or even by contesting some aspects of the PSR and not others, see United States v. Jenkins, 772 F.3d 1092, 1095–96 (7th Cir. 2014). At the same time, a more targeted strategy raises a different inference. In United States v. Walton, 255 F.3d 437, 442 (7th Cir. 2001), we concluded that the defendant waived any objection to a particular sentencing enhancement when his counsel “affirmatively indicated” that the argument he made “was the sole objection that he was raising regarding the application of the enhancement.” We said that by making that representation, he “affirmatively *958 abandoned all other arguments against the application of the enhancement in his case.” Id. at 443. 5 Barnes had a targeted strategy. He focused exclusively on his criminal history category and raised a single objection to it: he argued that his adjudications of delinquency and associated parole violation should be excluded. And in the course of making this argument, he did not simply fail to object to the inclusion of the remaining marijuana offenses. On at least four occasions, Barnes's counsel told the district court that it should give Barnes one point for each of the marijuana offenses, including the “Smoking Marihuana at a Public Park” violation, for a total of four points. In two different motions objecting to his revised PSR, he asked the court to find that Barnes had “4 [criminal history] points for a Criminal History Category III.” At an initial hearing, defense counsel insisted that the correct calculation—one counting the marijuana offenses but not the juvenile adjudications and associated parole violation—would give Barnes “a total of four points, four criminal history points.” At Barnes's resentencing, the court asked defense counsel if he had any objections to “a total offense level of 33, with a criminal history category of III consisting of four criminal history points.” Defense counsel said no. After the court invited the defense to give a sentencing recommendation and supporting argument, counsel stressed, in arguing for leniency, that “with the revised criminal history, [Barnes] has four criminal history points. Each one was for a marijuana ticket. That's all the criminal history you have.” Having specifically and repeatedly told the district court that it was appropriate to assign him a criminal history point for each of the marijuana offenses, Barnes cannot now complain that the court erred by agreeing with him. 6 7 We typically treat the failure to object as forfeiture when “finding waiver from an ambiguous record would compel the conclusion that counsel necessarily would have been deficient to advise the defendant not to object.” Jaimes-Jaimes, 406 F.3d at 848. That is not the situation here. Barnes unambiguously sought this criminal history score, and defense counsel's failure to challenge the inclusion of the “Smoking Marihuana at a Public Park” violation was hardly deficient. On the contrary, it was good lawyering. While Illinois may not have a crime called “Smoking Marihuana at a Public Park,” the name of the crime does not drive the analysis. If the conduct prohibited by local ordinance would also violate state law, the offense is “treated as if the defendant had been convicted under state law” for purposes of computing criminal history. U.S.S.G. § 4A1.2(c)(2), cmt. n.12; see also United States v. Milquette, 214 F.3d 859, 863 (7th Cir. 2000) (pointing out that the guideline “actually requires courts to include ordinance violations that are also criminal offenses under state law”). Barnes was convicted of this ordinance violation “after he was seen smoking marihuana at a park and refused to pick it up when asked to by the police officer.” PSR ¶ 90. Possession of marijuana was a crime under Illinois law at the time of Barnes's ordinance violation. See 720 ILCS 550/4 (2009). As we have observed in the past, “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.” United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001). We are reluctant to find waiver when an objection is strong, because it is difficult to believe that a defendant would knowingly leave a compelling argument on the table. See Jenkins, 772 F.3d at 1096. It *959 is evident why defense counsel refrained from making this one. The district court's judgment is AFFIRMED.

Barrett

majority

David Barnes appeals his sentence. He argues that the district court incorrectly calculated his Guidelines range by counting a local ordinance violation for “Smoking Marihuana at a Public Park” in his criminal history score. Because Barnes has waived this argument, we affirm the district court. I. In 2010, Barnes pleaded guilty to several offenses related to the distribution of crack cocaine. The district court sentenced him to 300 months of imprisonment, five years of supervised release, a fine of $600, and a special assessment of $300. Barnes did not appeal.1 In 2012, Barnes moved under to vacate, set aside, or correct his sentence on the ground that two Illinois convictions used to classify Barnes as a career offender—one for robbery and the other for aggravated discharge of a firearm—were no longer valid predicates. After he received his federal sentence, Barnes persuaded an Illinois state court to convert these convictions from adult felony convictions to adjudications of delinquency. (Barnes was fifteen when he committed these crimes but was tried as an adult.) Now that they were juvenile offenses, Barnes claimed, they no longer justified the enhancement he had received under the Sentencing Guidelines for being a career offender. The district court granted his 2255 motion and ordered that a revised presentence investigation report (PSR) be prepared for resentencing. The revised PSR did not use the adjudications of delinquency to classify Barnes as a career offender. It did, however, count them in his criminal history score. The PSR assigned Barnes ten criminal history points: two for the adjudication of delinquency for robbery, two for the adjudication of delinquency for aggravated discharge of a firearm, one point apiece for three convictions of marijuana possession, one point for smoking marijuana at a public park, and two points for committing the instant offense while on the parole imposed as part of his sentence for the convictions now classified as adjudications of delinquency. Defense counsel and the government went back and forth about Barnes's criminal history score. Barnes's counsel maintained that the PSR should give no weight to either the juvenile adjudications or the parole violation based upon them. Instead, he insisted, the court should assign him only four points in determining his criminal *957 history category, one for each of the marijuana-related offenses. The government initially opposed any modification to the PSR on the ground that the Guidelines expressly count juvenile offenses as relevant criminal history. But after Barnes's counsel shifted his argument to highlight a procedural irregularity in the state-court judgment, the government agreed that the district court should not assess any criminal history points for the juvenile offenses or the associated parole violation.2 The PSR was revised, and the district court sentenced Barnes to 189 months of imprisonment, five years of supervised release, a $600 fine, and a $300 special assessment. Barnes appeals this sentence. He claims that the district court incorrectly counted a local ordinance violation—one for “Smoking Marihuana at a Public Park”—as part of his criminal history. Local ordinance violations do not count to-ward criminal history unless the underlying conduct would also violate state law. See U.S.S.G. 4A1.2(c)(2). Barnes says that there is no Illinois crime of “Smoking Marihuana at a Public Park” and that assigning him a criminal history point for that offense was therefore error. II. 1 2 3 The parties agree that Barnes failed to raise this objection below. But they disagree about whether Barnes has waived or forfeited the argument. “Waiver occurs when a defendant intentionally relinquishes a known right.” United Forfeiture, by contrast, “occurs when a defendant accidentally or negligently fails to assert his or her rights in a timely fashion.” The difference between the two is significant, because “[w]aiver of a right extinguishes any error and precludes appellate review, whereas forfeiture of a right is reviewed for plain error.” United Barnes claims that his failure to object to the inclusion of the “Smoking Marihuana at a Public Park” offense in his criminal history score was an oversight that we can remedy if the district court clearly erred. The government asserts that Barnes knowingly conceded this point below and is now barred from pressing it on appeal. 4 Because the waiver principle is construed liberally in favor of the defendant, we are cautious about interpreting a defendant's behavior as intentional relinquishment. Thus we have held that a defendant does not necessarily waive a sentencing argument by accepting the PSR without objection, see United or even by contesting some aspects of the PSR and not others, see United At the same time, a more targeted strategy raises a different inference. In United we concluded that the defendant waived any objection to a particular sentencing enhancement when his counsel “affirmatively indicated” that the argument he made “was the sole objection that he was raising regarding the application of the enhancement.” We said that by making that representation, he “affirmatively *958 abandoned all other arguments against the application of the enhancement in his case.” 5 Barnes had a targeted strategy. He focused exclusively on his criminal history category and raised a single objection to it: he argued that his adjudications of delinquency and associated parole violation should be excluded. And in the course of making this argument, he did not simply fail to object to the inclusion of the remaining marijuana offenses. On at least four occasions, Barnes's counsel told the district court that it should give Barnes one point for each of the marijuana offenses, including the “Smoking Marihuana at a Public Park” violation, for a total of four points. In two different motions objecting to his revised PSR, he asked the court to find that Barnes had “4 [criminal history] points for a Criminal History Category III.” At an initial hearing, defense counsel insisted that the correct calculation—one counting the marijuana offenses but not the juvenile adjudications and associated parole violation—would give Barnes “a total of four points, four criminal history points.” At Barnes's resentencing, the court asked defense counsel if he had any objections to “a total offense level of 33, with a criminal history category of III consisting of four criminal history points.” Defense counsel said no. After the court invited the defense to give a sentencing recommendation and supporting argument, counsel stressed, in arguing for leniency, that “with the revised criminal history, [Barnes] has four criminal history points. Each one was for a marijuana ticket. That's all the criminal history you have.” Having specifically and repeatedly told the district court that it was appropriate to assign him a criminal history point for each of the marijuana offenses, Barnes cannot now complain that the court erred by agreeing with him. 6 7 We typically treat the failure to object as forfeiture when “finding waiver from an ambiguous record would compel the conclusion that counsel necessarily would have been deficient to advise the defendant not to object.” 406 F.3d at That is not the situation here. Barnes unambiguously sought this criminal history score, and defense counsel's failure to challenge the inclusion of the “Smoking Marihuana at a Public Park” violation was hardly deficient. On the contrary, it was good lawyering. While Illinois may not have a crime called “Smoking Marihuana at a Public Park,” the name of the crime does not drive the analysis. If the conduct prohibited by local ordinance would also violate state law, the offense is “treated as if the defendant had been convicted under state law” for purposes of computing criminal history. U.S.S.G. 4A1.2(c)(2), cmt. n.12; see also United Barnes was convicted of this ordinance violation “after he was seen smoking marihuana at a park and refused to pick it up when asked to by the police officer.” PSR ¶ 90. Possession of marijuana was a crime under Illinois law at the time of Barnes's ordinance violation. See 720 ILCS 550/4 (2009). As we have observed in the past, “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.” United We are reluctant to find waiver when an objection is strong, because it is difficult to believe that a defendant would knowingly leave a compelling argument on the table. See It *959 is evident why defense counsel refrained from making this one. The district court's judgment is AFFIRMED.

United States v. Briggs

Alandous Briggs pleaded guilty to being a felon in possession of a firearm after officers found drugs and firearms at his home during a parole visit. At sentencing, the district court applied a four-level enhancement for possessing a firearm in connection with felony possession of drugs. But because the district court made essentially no factual findings connecting Briggs’s firearms to his felony drug possession, we reverse and remand for resentencing. I. In December 2016, Indiana state parole officers conducted a parole visit at Alandous Briggs’s home. After consenting to a search, he admitted that there was marijuana (299 grams), cocaine (.45 grams), and firearms (3 loaded handguns) in the master bedroom. On a shelf next to the marijuana, the officers also found a digital scale. The officers arrested Briggs and seized his cell phone—which turned out to contain pictures and texts confirming that the guns were his. Briggs was charged with one count of being a felon in possession of a firearm. Although the parties did not come to a plea agreement, Briggs petitioned to enter a plea of guilty and requested a presentence investigation report. The probation office’s initial report concluded that Briggs had committed a felony drug offense in connection with the firearm possession, which warranted a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (specifying an enhancement for those who “used or possessed any firearm ... in connection with another felony offense”). Briggs filed an objection to this enhancement, arguing that his firearm possession was unrelated to the drugs found in his home. The district court conducted a combined plea and sentencing hearing. After *1032 accepting his plea, the district court turned to Briggs’s sentencing objection. The government claimed that the enhancement applied based on two separate felonies: felony drug possession and felony drug trafficking. Briggs again maintained that his firearms were unrelated to the drugs. But the district court held that the enhancement applied and sentenced Briggs to 84 months. Briggs appeals that sentencing decision. His sole argument on appeal is that the district court erred by finding that his possession of firearms was connected to another felony. II. As an initial matter, the government claims that the district court found that the enhancement applied based on both felony drug possession and felony drug trafficking. We disagree. The district court discussed both felonies at sentencing, but it ultimately concluded that only felony drug possession triggered the enhancement. It explained that although “there’s an inference that the defendant may have been involved in some drug distribution, ... at minim[um], he was possessing drugs.” (emphasis added). We take this to mean that the district court wasn’t deciding whether the enhancement applied because of the suspected drug trafficking, resting its decision instead only on felony possession, which Briggs admitted. Thus, the question that we face on appeal is whether the district court erred in concluding that the enhancement applied in connection with Briggs’s felony possession of cocaine.1 1 To enhance a defendant’s sentence for possessing a firearm in connection with another felony, the firearm must have been connected to the second crime. See U.S.S.G. § 2K2.1 & cmt. n. 14(A) (stating that “in connection with” means that the firearm “facilitated, or had the potential of facilitating, another felony offense”). We have noted before that “[m]ere contemporaneous possession while another felony is being committed is not necessarily sufficient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs.” United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007). 2 The problem here is that the district never made any findings about how Briggs’s felony cocaine possession was connected to his firearms. It simply assumed that because the firearms were probably connected to drug trafficking (because of the combination of the cocaine, marijuana, and digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up. Analyzing whether firearms are connected to drug trafficking is different from analyzing whether they are connected to possessing a small quantity of drugs. See id. (explaining that the existence of a dilution agent, for example, was “consistent with being a dealer and not simply a casual user of the drug”); United States v. Smith, 535 F.3d 883, 885–86 (8th Cir. 2008) (noting the differences between drug trafficking and drug possession as it relates to the § 2K2.1(b)(6) enhancement). In fact, the guidelines themselves distinguish between drug trafficking and other offenses like drug possession. See § 2K2.1 cmt. n. 14(B) (specifying that the enhancement applies to a “drug trafficking offense” when drug-manufacturing *1033 materials are found in proximity to firearms). Perhaps the district court here thought that the guns emboldened Briggs’s possession of cocaine. See, e.g., United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (applying the enhancement to a defendant who brought cocaine and a gun onto a public street because the “environment suggest[ed] that there was a heightened need for protection and that the firearm emboldened [him]”). Or maybe it thought that because Briggs had both cocaine and marijuana in the house, he simply wanted to protect all of the drugs that he had there. But the problem is that we don’t know what the district court thought. Put differently, “[w]e have essentially no fact findings at all by the district court relevant to this issue.” United States v. Clinton, 825 F.3d 809, 813 (7th Cir. 2016) (emphasis added). The district court mostly discussed the drug scale and the amount of marijuana found in Briggs’s home—but neither of those facts bears directly on Briggs’s cocaine possession. Instead, they go to whether he might have been dealing drugs. And the court’s vague suggestion that the guns might have been there “to protect something”—apparently made in the context of drug trafficking—wouldn’t be enough to connect the guns to felony possession of cocaine even if that had been what the court was referring to. 3 In short, the mere fact that guns and drugs are found near each other doesn’t establish a nexus between them. See LePage, 477 F.3d at 489. A court must say more to connect the two. Thus, the district court clearly erred in applying the § 2K2.1(b)(6) enhancement because its findings do not support a conclusion that Briggs’s firearms were connected to his possession of less than half a gram of cocaine. See Clinton, 825 F.3d at 814 (“We do not hold that the enhancement is inapplicable as a matter of law, but the fact findings in this record do not support the enhancement.”). The sentence is VACATED and the case REMANDED for resentencing consistent with this opinion.

Barrett

majority

Alandous Briggs pleaded guilty to being a felon in possession of a firearm after officers found drugs and firearms at his home during a parole visit. At sentencing, the district court applied a four-level enhancement for possessing a firearm in connection with felony possession of drugs. But because the district court made essentially no factual findings connecting Briggs’s firearms to his felony drug possession, we reverse and remand for resentencing. I. In December 2016, Indiana state parole officers conducted a parole visit at Alandous Briggs’s home. After consenting to a search, he admitted that there was marijuana (299 grams), cocaine (.45 grams), and firearms (3 loaded handguns) in the master bedroom. On a shelf next to the marijuana, the officers also found a digital scale. The officers arrested Briggs and seized his cell phone—which turned out to contain pictures and texts confirming that the guns were his. Briggs was charged with one count of being a felon in possession of a firearm. Although the parties did not come to a plea agreement, Briggs petitioned to enter a plea of guilty and requested a presentence investigation report. The probation office’s initial report concluded that Briggs had committed a felony drug offense in connection with the firearm possession, which warranted a four-level enhancement under U.S.S.G. 2K2.1(b)(6)(B) (specifying an enhancement for those who “used or possessed any firearm in connection with another felony offense”). Briggs filed an objection to this enhancement, arguing that his firearm possession was unrelated to the drugs found in his home. The district court conducted a combined plea and sentencing hearing. After *1032 accepting his plea, the district court turned to Briggs’s sentencing objection. The government claimed that the enhancement applied based on two separate felonies: felony drug possession and felony drug trafficking. Briggs again maintained that his firearms were unrelated to the drugs. But the district court held that the enhancement applied and sentenced Briggs to 84 months. Briggs appeals that sentencing decision. His sole argument on appeal is that the district court erred by finding that his possession of firearms was connected to another felony. II. As an initial matter, the government claims that the district court found that the enhancement applied based on both felony drug possession and felony drug trafficking. We disagree. The district court discussed both felonies at sentencing, but it ultimately concluded that only felony drug possession triggered the enhancement. It explained that although “there’s an inference that the defendant may have been involved in some drug distribution, at minim[um], he was possessing drugs.” We take this to mean that the district court wasn’t deciding whether the enhancement applied because of the suspected drug trafficking, resting its decision instead only on felony possession, which Briggs admitted. Thus, the question that we face on appeal is whether the district court erred in concluding that the enhancement applied in connection with Briggs’s felony possession of cocaine.1 1 To enhance a defendant’s sentence for possessing a firearm in connection with another felony, the firearm must have been connected to the second crime. See U.S.S.G. 2K2.1 & cmt. n. 14(A) (stating that “in connection with” means that the firearm “facilitated, or had the potential of facilitating, another felony offense”). We have noted before that “[m]ere contemporaneous possession while another felony is being committed is not necessarily sufficient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs.” United 2 The problem here is that the district never made any findings about how Briggs’s felony cocaine possession was connected to his firearms. It simply assumed that because the firearms were probably connected to drug trafficking (because of the combination of the cocaine, marijuana, and digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up. Analyzing whether firearms are connected to drug trafficking is different from analyzing whether they are connected to possessing a small quantity of drugs. See ; United (noting the differences between drug trafficking and drug possession as it relates to the 2K2.1(b)(6) enhancement). In fact, the guidelines themselves distinguish between drug trafficking and other offenses like drug possession. See 2K2.1 cmt. n. 14(B) (specifying that the enhancement applies to a “drug trafficking offense” when drug-manufacturing *1033 materials are found in proximity to firearms). Perhaps the district court here thought that the guns emboldened Briggs’s possession of cocaine. See, e.g., United Or maybe it thought that because Briggs had both cocaine and marijuana in the house, he simply wanted to protect all of the drugs that he had there. But the problem is that we don’t know what the district court thought. Put differently, “[w]e have essentially no fact findings at all by the district court relevant to this issue.” United The district court mostly discussed the drug scale and the amount of marijuana found in Briggs’s home—but neither of those facts bears directly on Briggs’s cocaine possession. Instead, they go to whether he might have been dealing drugs. And the court’s vague suggestion that the guns might have been there “to protect something”—apparently made in the context of drug trafficking—wouldn’t be enough to connect the guns to felony possession of cocaine even if that had been what the court was referring to. 3 In short, the mere fact that guns and drugs are found near each other doesn’t establish a nexus between them. See 477 F.3d at A court must say more to connect the two. Thus, the district court clearly erred in applying the 2K2.1(b)(6) enhancement because its findings do not support a conclusion that Briggs’s firearms were connected to his possession of less than half a gram of cocaine. See The sentence is VACATED and the case REMANDED for resentencing consistent with this opinion.

United States v. Cherry

Bernard Cherry appeals his conviction as a felon in possession of a firearm on the ground that the district court erred by not giving the jury his proposed “innocent possession” instruction. He also claims that the district court erred by not asking whether he wanted the jury to determine the forfeitability of the firearm in the event of a guilty verdict. Because we have never recognized an innocent possession defense and because the facts here don't support such a defense even if we were to recognize it, the district court did not err in refusing to give the instruction. And given that no reasonable juror could have failed to find a nexus between the gun and Cherry's felon-in-possession conviction, the district court's failure to ask either party whether it wanted the jury to determine the forfeitability of the firearm did not affect Cherry's substantial rights. We affirm the judgment of the district court. I. At 3:31 a.m. on December 13, 2016, Officer Isaiah Sherrod of the East St. Louis Police Department received a report that a vehicle had been playing loud music. Sherrod went to the address and saw a vehicle outside an abandoned residence with the lights on and music playing. When he got closer, Sherrod observed a man in the front yard of the residence looking for something in the grass with his phone's flashlight. The man, Bernard Cherry, told Sherrod that he was looking for the key to his tire rims that he had lost in that area earlier in the day. Although Cherry seemed intoxicated, Sherrod decided to help him find the key. As he was searching, Sherrod noticed a firearm—a .40 caliber Smith & Wesson handgun—a few feet from Cherry. As soon as he saw the gun, Sherrod handcuffed Cherry and put him in the squad car for officer safety, but without formally arresting him. Cherry complained that the cuffs were too tight, and Officer Sherrod got him out of the car to adjust the cuffs. At that point, Cherry tried to run but did not get far. Officer Sherrod then arrested Cherry and took him to the police station where he was interviewed by Officer Jerry Simon. Cherry explained to Simon that, earlier in the night, he had stopped his car to look for a new CD to put in the car's CD player. He said that when he looked out the window, he thought that he saw someone that he knew. But after rolling down his window, he realized that he did not know the person. Cherry said that the man pointed a gun at him but that he knocked it out of the man's hands. Cherry then opened his car door and hit the stranger, who ran away. Cherry explained that during the scuffle he lost his cell phone and got out of the car to look for it. He also admitted to picking up the gun briefly but said that he dropped it when he saw Sherrod approaching. *692 Following the interview, Cherry was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) and forfeiture under 18 U.S.C. § 924(d)(1). Because Cherry stipulated that he was a felon at the time of his arrest, the sole question at trial was whether he possessed a firearm. He requested an “innocent possession” instruction to support his theory of defense, which read: Possession of a firearm constitutes innocent possession where: (1) the firearm was obtained innocently and held with no illicit purpose; and (2) possession of the firearm was only momentary. If you find that the defendant possessed a firearm and that possession constituted innocent possession, you should find the defendant not guilty. The government objected, citing United States v. Jackson, 598 F.3d 340 (7th Cir. 2010). In Jackson we declined to affirmatively recognize an innocent possession defense, and we noted that even if we were to recognize such a defense, the defendant would still have to show that he immediately sought to turn over the firearm to law enforcement. 598 F.3d at 349–51. Because Cherry did not immediately seek to turn over the firearm, the district court concluded that his case fell within Jackson and refused the proposed instruction. The jury ultimately found Cherry guilty of being a felon in possession of a firearm. Following trial, the government moved for forfeiture of the firearm under Federal Rule of Criminal Procedure 32.2(b), and the district court granted the motion. On appeal, Cherry raises two issues. First, he says that the district court erred by failing to give the innocent possession instruction. Second, he argues that the district court violated Federal Rule of Criminal Procedure 32.2(b)(5)(A), which requires the court to ask whether either party wants the jury to determine the forfeitability of the firearm in the event of a guilty verdict. II. 1 Cherry is entitled to a jury instruction on his theory of defense if “(1) the instruction is a correct statement of the law; (2) the evidence supports the theory of defense; (3) the defense is not part of the government's charge; and (4) the failure to give the instruction would deprive the defendant of a fair trial.” United States v. Brown, 865 F.3d 566, 571–72 (7th Cir. 2017). 2 Cherry's request for an innocent possession instruction fails for two reasons. First, as the district court noted, we have never recognized the innocent possession defense outside situations in which the defendant can establish a justification like necessity or duress. See Jackson, 598 F.3d at 349–50; United States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003). Second, even if we were to recognize such a defense, the facts here show that Cherry would not qualify. Even though he was in the presence of law enforcement, there is no evidence that he took any action, much less immediate action, to turn over the firearm. See Jackson, 598 F.3d at 350; Hendricks, 319 F.3d at 1007. In fact, he admitted to throwing the gun down when he saw Sherrod approaching rather than immediately giving it to him. Nor did Cherry turn over the gun during the period in which both he and Sherrod were searching for his key and before Sherrod noticed the gun. Thus, we see no error in the district court's decision not to give an innocent possession instruction. III. 3 Cherry next argues that the district court violated *693 Federal Rule of Criminal Procedure 32.2 because it did not submit the forfeiture issue to the jury or obtain his waiver. But Cherry made no objection at trial, so the forfeiture order will be vacated only if the error affected his substantial rights. See Fed. R. Crim. P. 52(b); United States v. Ryan, 885 F.3d 449, 454 (7th Cir. 2018). The government admits that the district court violated Rule 32 but argues that the error did not affect Cherry's substantial rights. We agree.1 Rule 32.2(b)(5)(A) requires that when a defendant's case is heard by a jury and the indictment states that the government is seeking forfeiture, the district court “must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.” Fed. R. Crim. P. 32.2(b)(5)(A). In United States v. Ryan, a defendant was convicted of possessing child pornography, and the government sought forfeiture of his computer. 885 F.3d at 451. But, as in our case, the district court didn't send the issue of forfeiture to the jury, and the defendant never objected. We concluded that the error did not affect the defendant's substantial rights, explaining that “no reasonable juror could have found there was not a sufficient nexus between the property and the offense. There was no question in this case that the specific computer listed in the forfeiture order was the one used by [the defendant] containing the illegal files.” Id. at 454. The same logic applies here. Cherry was convicted of being a felon in possession of a firearm, and the firearm at issue in the forfeiture order was the one that Cherry possessed. No reasonable juror could have failed to find a nexus between the firearm and Cherry's conviction. As in Ryan, the error did not affect Cherry's substantial rights. Affirmed.

Barrett

majority

Bernard Cherry appeals his conviction as a felon in possession of a firearm on the ground that the district court erred by not giving the jury his proposed “innocent possession” instruction. He also claims that the district court erred by not asking whether he wanted the jury to determine the forfeitability of the firearm in the event of a guilty verdict. Because we have never recognized an innocent possession defense and because the facts here don't support such a defense even if we were to recognize it, the district court did not err in refusing to give the instruction. And given that no reasonable juror could have failed to find a nexus between the gun and Cherry's felon-in-possession conviction, the district court's failure to ask either party whether it wanted the jury to determine the forfeitability of the firearm did not affect Cherry's substantial rights. We affirm the judgment of the district court. I. At 3:31 a.m. on December 13, 2016, Officer Isaiah Sherrod of the East St. Louis Police Department received a report that a vehicle had been playing loud music. Sherrod went to the address and saw a vehicle outside an abandoned residence with the lights on and music playing. When he got closer, Sherrod observed a man in the front yard of the residence looking for something in the grass with his phone's flashlight. The man, Bernard Cherry, told Sherrod that he was looking for the key to his tire rims that he had lost in that area earlier in the day. Although Cherry seemed intoxicated, Sherrod decided to help him find the key. As he was searching, Sherrod noticed a firearm—a40 caliber Smith & Wesson handgun—a few feet from Cherry. As soon as he saw the gun, Sherrod handcuffed Cherry and put him in the squad car for officer safety, but without formally arresting him. Cherry complained that the cuffs were too tight, and Officer Sherrod got him out of the car to adjust the cuffs. At that point, Cherry tried to run but did not get far. Officer Sherrod then arrested Cherry and took him to the police station where he was interviewed by Officer Jerry Simon. Cherry explained to Simon that, earlier in the night, he had stopped his car to look for a new CD to put in the car's CD player. He said that when he looked out the window, he thought that he saw someone that he knew. But after rolling down his window, he realized that he did not know the person. Cherry said that the man pointed a gun at him but that he knocked it out of the man's hands. Cherry then opened his car door and hit the stranger, who ran away. Cherry explained that during the scuffle he lost his cell phone and got out of the car to look for it. He also admitted to picking up the gun briefly but said that he dropped it when he saw Sherrod approaching. *692 Following the interview, Cherry was charged with being a felon in possession of a firearm under (g)(1) and (a)(2) and forfeiture under (d)(1). Because Cherry stipulated that he was a felon at the time of his arrest, the sole question at trial was whether he possessed a firearm. He requested an “innocent possession” instruction to support his theory of defense, which read: Possession of a firearm constitutes innocent possession where: (1) the firearm was obtained innocently and held with no illicit purpose; and (2) possession of the firearm was only momentary. If you find that the defendant possessed a firearm and that possession constituted innocent possession, you should find the defendant not guilty. The government objected, citing United In we declined to affirmatively recognize an innocent possession defense, and we noted that even if we were to recognize such a defense, the defendant would still have to show that he immediately sought to turn over the firearm to law –51. Because Cherry did not immediately seek to turn over the firearm, the district court concluded that his case fell within and refused the proposed instruction. The jury ultimately found Cherry guilty of being a felon in possession of a firearm. Following trial, the government moved for forfeiture of the firearm under Federal Rule of Criminal Procedure 32.2(b), and the district court granted the motion. On appeal, Cherry raises two issues. First, he says that the district court erred by failing to give the innocent possession instruction. Second, he argues that the district court violated Federal Rule of Criminal Procedure 32.2(b)(5)(A), which requires the court to ask whether either party wants the jury to determine the forfeitability of the firearm in the event of a guilty verdict. II. 1 Cherry is entitled to a jury instruction on his theory of defense if “(1) the instruction is a correct statement of the law; (2) the evidence supports the theory of defense; (3) the defense is not part of the government's charge; and (4) the failure to give the instruction would deprive the defendant of a fair trial.” United 2 Cherry's request for an innocent possession instruction fails for two reasons. First, as the district court noted, we have never recognized the innocent possession defense outside situations in which the defendant can establish a justification like necessity or duress. See –50; United Second, even if we were to recognize such a defense, the facts here show that Cherry would not qualify. Even though he was in the presence of law enforcement, there is no evidence that he took any action, much less immediate action, to turn over the firearm. See ; 319 F.3d at In fact, he admitted to throwing the gun down when he saw Sherrod approaching rather than immediately giving it to him. Nor did Cherry turn over the gun during the period in which both he and Sherrod were searching for his key and before Sherrod noticed the gun. Thus, we see no error in the district court's decision not to give an innocent possession instruction. III. 3 Cherry next argues that the district court violated *693 Federal Rule of Criminal Procedure 32.2 because it did not submit the forfeiture issue to the jury or obtain his waiver. But Cherry made no objection at trial, so the forfeiture order will be vacated only if the error affected his substantial rights. See Fed. R. Crim. P. 52(b); United The government admits that the district court violated Rule 32 but argues that the error did not affect Cherry's substantial rights. We agree.1 Rule 32.2(b)(5)(A) requires that when a defendant's case is heard by a jury and the indictment states that the government is seeking forfeiture, the district court “must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.” Fed. R. Crim. P. 32.2(b)(5)(A). In United a defendant was convicted of possessing child pornography, and the government sought forfeiture of his But, as in our case, the district court didn't send the issue of forfeiture to the jury, and the defendant never objected. We concluded that the error did not affect the defendant's substantial rights, explaining that “no reasonable juror could have found there was not a sufficient nexus between the property and the offense. There was no question in this case that the specific computer listed in the forfeiture order was the one used by [the defendant] containing the illegal files.” at The same logic applies here. Cherry was convicted of being a felon in possession of a firearm, and the firearm at issue in the forfeiture order was the one that Cherry possessed. No reasonable juror could have failed to find a nexus between the firearm and Cherry's conviction. As in Ryan, the error did not affect Cherry's substantial rights. Affirmed.

United States v. Geary

This case is the culmination of a grotesque history of sexual abuse in the Geary household. Over a number of years, David Geary—Sheila Geary’s husband—raped, sexually abused, and took pornographic photos of the Gearys’ youngest daughter when she was between the ages of 5 and 8. During a period in which the couple hoped to “spice up their marriage,” Sheila viewed the pornographic photos that David took of their daughter—identified as “MF-2”—and also found other images of child pornography to share with David. In addition, Sheila kept the illicit photos of MF-2 on a thumb drive hidden behind a mirror in their home. She kept them, she said, in case “[s]hit hit the fan and [she] needed some proof.” Ultimately, David and Sheila were indicted as codefendants, and Sheila pleaded guilty to one count of possession of child pornography. She was sentenced to 57 months’ imprisonment and 5 years’ supervised release, and she was ordered to pay $55,600 in restitution jointly and severally with David. On appeal, she argues both that the district court incorrectly applied a Sentencing Guidelines provision that enhanced her recommended sentencing range and that the district court failed to adequately explain her restitution liability. We disagree with both arguments. Sheila first argues that the district court erred when it determined her guidelines range. Generally, a defendant’s offense level for possession of child pornography is determined under U.S.S.G. § 2G2.2. But that provision contains a cross reference that provides: “If the offense involved ... permitting ... a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct ... apply § 2G2.1 ... if the resulting offense level is greater than that determined [under this section].” U.S.S.G. § 2G2.2(c)(1). Section 2G2.1, which applies to various forms of the sexual exploitation of children, starts at a higher base level than § 2G2.2 and advises a two-level increase if the defendant was a parent who “permitt[ed]” her minor child to engage in sexually explicit conduct. Id. § 2G2.1(b)(5). Sheila argues that the district court should have calculated her guidelines range under § 2G2.2 rather than § 2G2.1. In other words, she concedes that she possessed the pornographic pictures of MF-2 but denies that she permitted David to take them. 1 Tragically for MF-2, the record contains ample evidence that Sheila “permitted” David to use their daughter for the production of child pornography. The facts found by the district court paint a ghastly picture: Sheila not only knew of her husband’s interest in child pornography, she shared it—she and David would view child pornography together. Indeed, Sheila would procure pornographic photos of prepubescent girls for David to view. And when David expressed interest in pornographic photos of their daughter and asked Sheila if she would like pornographic pictures of MF-2, she responded affirmatively. Then, when David took photos of *913 MF-2 and showed them to Sheila, Sheila’s response was positive. Far from stopping David, her reaction further encouraged him. She had explicit knowledge that David had taken photos of MF-2 and did nothing to prevent him from doing so again. Sheila protests that the district court should not have relied on David’s testimony since he had reason to try to get back at her for reporting his abuse to the police—not only his abuse of MF-2, but also of their other children and Sheila herself. It is certainly true that district courts should tread lightly when taking the word of an abusive husband against that of his wife. The district court did just that here. It carefully parsed the portions of David’s testimony that it viewed as credible from those that it discounted as incredible. Moreover, the district court did not rely on David’s testimony alone—much of the evidence that Sheila permitted MF-2 to engage in explicit conduct came from Sheila’s own admissions and the testimony of MF-2. Indeed, even without David’s statements, there was enough evidence to support the application of § 2G2.2. While Sheila minimized her culpability for David’s exploitation of MF-2, the district court determined that her version of events was self-interested revisionist history. For example, Sheila claimed that she confronted her husband about the photos of MF-2, but the district court found Sheila unconvincing on this count. Likewise, while Sheila claimed both a fear of her husband and a desire to protect her children, she never called the police to report child abuse. Instead, she only called the police in her own defense. And while Sheila cites as evidence of her good intentions her decision to turn the photos of MF-2 over to the police, she made that decision only after word of MF-2’s abuse had already gotten out to Sheila’s eldest daughter. Sheila only acted, as the district court put it, once “her own involvement would be revealed unless she acted first.” In sum, the district court found that Sheila was a but-for cause of MF-2’s abuse, because “[w]ithout her consent, MF-2 may have been spared.” We see no clear error in these factual findings. United States v. Shelton, 905 F.3d 1026, 1031 (7th Cir. 2018) (“[W]e ... review for clear error the factual determinations underlying the district court’s application of the Guidelines.” (citation omitted)). Sheila insists that these findings do not justify the application of § 2G2.1 even if we leave them undisturbed. She is wrong. Sheila argues that she did not “permit” David to take photos of MF-2 because she did not “participate” or “assist” in taking the photos. But one need not “participate” or “assist” in an activity to “permit” it. On the contrary, one can permit something by simply “allow[ing]” or “tolerat[ing]” it—as Sheila did here. See Permit, Webster’s Third New International Dictionary 1683 (1961). By declining to stop David or to take actions that would prevent his conduct, and with full knowledge of the results of her failure to act, Sheila “permitted” MF-2 to “engage in sexually explicit conduct” for the purpose of producing child pornography. And though we do not view this case as a close call, application of the crossreference here is consistent with the instruction that § 2G2.2(c)(1) should “be construed broadly.” U.S.S.G. § 2G2.2 cmt. n.7. The district court was rightly cognizant that Sheila’s involvement in David’s exploitation of MF-2 was complicated by David’s abuse of Sheila herself. Thus, while it calculated Sheila’s guidelines range under § 2G2.1, it granted her a substantial downward departure to account for her secondary role in MF-2’s abuse and the fact that she too was a victim. In the end, the *914 district court sentenced Sheila to 57 months’ imprisonment. That is the bottom of the advisory range that would have applied under § 2G2.2, which is the guideline that Sheila is asking for. The district court’s variance from the Guidelines reflects its careful assessment of Sheila’s particular circumstances. Sheila also challenges the district court’s imposition of restitution. Recall that the district court ordered Sheila to pay $55,600 in restitution to MF-2, for which she is jointly and severally liable with her husband David. On appeal, Sheila does not contend that she should not owe restitution, nor could she—the crime to which she pleaded guilty requires payment of restitution to any identifiable victims. See 18 U.S.C. § 2259. Instead, Sheila complains that the district court failed to adequately explain its calculation of the restitution amount. 2 But the district court was clear that the source of the $55,600 amount was the restitution calculation made in David’s sentencing. That amount is the estimated cost of providing counseling and therapy to MF-2 to mitigate the trauma that she experienced at the hands of David and Sheila. The district court was entitled to rely on the evidence produced in David’s sentencing, as Sheila’s codefendant, so long as Sheila was afforded notice and an opportunity to rebut that evidence. See United States v. Harris, 56 F.3d 841, 843 (7th Cir. 1995). The inclusion of the restitution amount in Sheila’s PSR was sufficient notice to her that David’s restitution amount would be used in her sentencing. See id. She could have challenged the calculation of that amount, but she did not. There was no error, then, in relying on the calculation from David’s sentencing to determine the amount of restitution that Sheila would owe. See United States v. Pham, 463 F.3d 1239, 1243–44 (11th Cir. 2006).

Barrett

majority

This case is the culmination of a grotesque history of sexual abuse in the Geary household. Over a number of years, David Geary—Sheila Geary’s husband—raped, sexually abused, and took pornographic photos of the Gearys’ youngest daughter when she was between the ages of 5 and 8. During a period in which the couple hoped to “spice up their marriage,” Sheila viewed the pornographic photos that David took of their daughter—identified as “MF-2”—and also found other images of child pornography to share with Dav In addition, Sheila kept the illicit photos of MF-2 on a thumb drive hidden behind a mirror in their home. She kept them, she said, in case “[s]hit hit the fan and [she] needed some proof.” Ultimately, David and Sheila were indicted as codefendants, and Sheila pleaded guilty to one count of possession of child pornography. She was sentenced to 57 months’ imprisonment and 5 years’ supervised release, and she was ordered to pay $55,600 in restitution jointly and severally with Dav On appeal, she argues both that the district court incorrectly applied a Sentencing Guidelines provision that enhanced her recommended sentencing range and that the district court failed to adequately explain her restitution liability. We disagree with both arguments. Sheila first argues that the district court erred when it determined her guidelines range. Generally, a defendant’s offense level for possession of child pornography is determined under U.S.S.G. 2G2.2. But that provision contains a cross reference that provides: “If the offense involved permitting a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct apply 2G2.1 if the resulting offense level is greater than that determined [under this section].” U.S.S.G. 2G2.2(c)(1). Section 2G2.1, which applies to various forms of the sexual exploitation of children, starts at a higher base level than 2G2.2 and advises a two-level increase if the defendant was a parent who “permitt[ed]” her minor child to engage in sexually explicit conduct. 2G2.1(b)(5). Sheila argues that the district court should have calculated her guidelines range under 2G2.2 rather than 2G2.1. In other words, she concedes that she possessed the pornographic pictures of MF-2 but denies that she permitted David to take them. 1 Tragically for MF-2, the record contains ample evidence that Sheila “permitted” David to use their daughter for the production of child pornography. The facts found by the district court paint a ghastly picture: Sheila not only knew of her husband’s interest in child pornography, she shared it—she and David would view child pornography together. Indeed, Sheila would procure pornographic photos of prepubescent girls for David to view. And when David expressed interest in pornographic photos of their daughter and asked Sheila if she would like pornographic pictures of MF-2, she responded affirmatively. Then, when David took photos of *913 MF-2 and showed them to Sheila, Sheila’s response was positive. Far from stopping David, her reaction further encouraged him. She had explicit knowledge that David had taken photos of MF-2 and did nothing to prevent him from doing so again. Sheila protests that the district court should not have relied on David’s testimony since he had reason to try to get back at her for reporting his abuse to the police—not only his abuse of MF-2, but also of their other children and Sheila herself. It is certainly true that district courts should tread lightly when taking the word of an abusive husband against that of his wife. The district court did just that here. It carefully parsed the portions of David’s testimony that it viewed as credible from those that it discounted as incredible. Moreover, the district court did not rely on David’s testimony alone—much of the evidence that Sheila permitted MF-2 to engage in explicit conduct came from Sheila’s own admissions and the testimony of MF-2. Indeed, even without David’s statements, there was enough evidence to support the application of 2G2.2. While Sheila minimized her culpability for David’s exploitation of MF-2, the district court determined that her version of events was self-interested revisionist history. For example, Sheila claimed that she confronted her husband about the photos of MF-2, but the district court found Sheila unconvincing on this count. Likewise, while Sheila claimed both a fear of her husband and a desire to protect her children, she never called the police to report child abuse. Instead, she only called the police in her own defense. And while Sheila cites as evidence of her good intentions her decision to turn the photos of MF-2 over to the police, she made that decision only after word of MF-2’s abuse had already gotten out to Sheila’s eldest daughter. Sheila only acted, as the district court put it, once “her own involvement would be revealed unless she acted first.” In sum, the district court found that Sheila was a but-for cause of MF-2’s abuse, because “[w]ithout her consent, MF-2 may have been spared.” We see no clear error in these factual findings. United Sheila insists that these findings do not justify the application of 2G2.1 even if we leave them undisturbed. She is wrong. Sheila argues that she did not “permit” David to take photos of MF-2 because she did not “participate” or “assist” in taking the photos. But one need not “participate” or “assist” in an activity to “permit” it. On the contrary, one can permit something by simply “allow[ing]” or “tolerat[ing]” it—as Sheila did here. See Permit, Webster’s Third New International Dictionary 1683 (1961). By declining to stop David or to take actions that would prevent his conduct, and with full knowledge of the results of her failure to act, Sheila “permitted” MF-2 to “engage in sexually explicit conduct” for the purpose of producing child pornography. And though we do not view this case as a close call, application of the crossreference here is consistent with the instruction that 2G2.2(c)(1) should “be construed broadly.” U.S.S.G. 2G2.2 cmt. n.7. The district court was rightly cognizant that Sheila’s involvement in David’s exploitation of MF-2 was complicated by David’s abuse of Sheila herself. Thus, while it calculated Sheila’s guidelines range under 2G2.1, it granted her a substantial downward departure to account for her secondary role in MF-2’s abuse and the fact that she too was a victim. In the end, the *914 district court sentenced Sheila to 57 months’ imprisonment. That is the bottom of the advisory range that would have applied under 2G2.2, which is the guideline that Sheila is asking for. The district court’s variance from the Guidelines reflects its careful assessment of Sheila’s particular circumstances. Sheila also challenges the district court’s imposition of restitution. Recall that the district court ordered Sheila to pay $55,600 in restitution to MF-2, for which she is jointly and severally liable with her husband Dav On appeal, Sheila does not contend that she should not owe restitution, nor could she—the crime to which she pleaded guilty requires payment of restitution to any identifiable victims. See 18 U.S.C. 2259. Instead, Sheila complains that the district court failed to adequately explain its calculation of the restitution amount. 2 But the district court was clear that the source of the $55,600 amount was the restitution calculation made in David’s sentencing. That amount is the estimated cost of providing counseling and therapy to MF-2 to mitigate the trauma that she experienced at the hands of David and Sheila. The district court was entitled to rely on the evidence produced in David’s sentencing, as Sheila’s codefendant, so long as Sheila was afforded notice and an opportunity to rebut that evidence. See United The inclusion of the restitution amount in Sheila’s PSR was sufficient notice to her that David’s restitution amount would be used in her sentencing. See She could have challenged the calculation of that amount, but she did not. There was no error, then, in relying on the calculation from David’s sentencing to determine the amount of restitution that Sheila would owe. See United

United States v. Hagen

Mandy Hagen was convicted twice under Illinois law for failing to get her children to school. When she later pleaded guilty in federal court for conspiring to distribute methamphetamine, the district court counted her two convictions for allowing child truancy toward her criminal history score. That was an error. Section 4A1.2(c) of the Sentencing Guidelines excludes certain crimes, and those “similar to” them, from a defendant’s criminal history. One of the listed offenses is non-support, which involves failing to provide for a child’s basic needs. Permitting truancy is a similar offense, and a less serious one at that. Hagen’s criminal history score must be recalculated, this time excluding her two truancy-related offenses. I. In 2013, Mandy Hagen joined a scheme to distribute methamphetamine to several counties in Illinois. As part of this enterprise, she sold meth, provided ingredients and a venue for its manufacture, and collected drug debts. After a few close calls with law enforcement, Hagen was finally arraigned in May 2017. She pleaded guilty to a single count of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, the government contended that the district court should count Hagen’s two prior offenses for Guardian Allows Child Truancy, a crime under 105 Ill. Comp. Stat. 5/26-10, in calculating her criminal history score. See U.S.S.G. § 4A1.1(c). Hagen had pleaded guilty to this offense twice. During the 2013–14 school year, she allowed her child M.F. to be truant for 21 days. Then in 2015, she allowed another of her children, B.F., to accumulate 18 unexcused absences. Including these two convictions in the calculation of Hagen’s criminal history score put her in a higher criminal history category than she would have otherwise been in. Hagen objected to their inclusion, insisting that they fell within § 4A1.2(c) of the Guidelines, which excludes certain specific offenses—and those “similar to” them—from a defendant’s criminal history. According to Hagen, Guardian Allows Child Truancy is similar enough to the listed excluded offense of “[j]uvenile status offenses and truancy” that it should be excluded. The government responded that permitting truancy is a more serious offense than actually being truant, since adult guardians are held to a higher standard of responsibility than are the children in their care. The district court sided with the government, and Hagen appeals that decision. II. 1 Under the Guidelines, prior offenses—including misdemeanors and petty offenses—typically increase the defendant’s criminal history score, which in turn *894 affects the recommended sentencing range. But § 4A1.2(c) of the Guidelines provides two lists of offenses that courts are to treat differently when calculating a criminal history score. Section 4A1.2(c)(1) instructs that [s]entences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense[.] It then lists various offenses, including careless driving, gambling, contempt of court, prostitution, and non-support. Section 4A1.2(c)(2) says that certain offenses should never be counted. Those include offenses such as fish and game violations, juvenile status offenses and truancy, loitering, and speeding. U.S.S.G. § 4A1.2(c)(2). Like § 4A1.2(c)(1), this section states that any offenses “similar to” the enumerated offenses, “by whatever name they are known,” are not to be counted. Id. Hagen concedes that allowing truancy is not specifically listed in either § 4A1.2(c)(1) or (c)(2). The question is whether her convictions should be excluded from her criminal history score because they are “similar to” one or more of those listed offenses. The Guidelines commentary on § 4A1.2(c) lists five factors for courts to consider in analyzing this issue: (1) “a comparison of punishments imposed for the listed and unlisted offenses,” (2) “the perceived seriousness of the offense as indicated by the level of punishment,” (3) “the elements of the offense,” (4) “the level of culpability involved,” and (5) “the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” U.S.S.G. § 4A1.2 cmt. 12(A). In applying these factors, courts are to take a “common sense approach.” Id. The Illinois Code makes it a crime for “[a]ny person having custody or control of a child ... to whom notice has been given of the child’s truancy ... [to] knowingly and willfully permit[ ] such a child to persist in his truancy within that school year.” 105 Ill. Comp. Stat. 5/26-10.1 A child is truant if he is “absent without valid cause ... from such attendance for more than 1% but less than 5% of the past 180 school days.” 105 Ill. Comp. Stat. 5/26-2a. A guardian who allows truancy commits a Class C misdemeanor punishable by up to “30 days [of] imprisonment and/or a fine of up to $500.” 105 Ill. Comp. Stat. 5/26-10. Class C misdemeanors are the least serious misdemeanors in the Illinois code. See 730 Ill. Comp. Stat. 5/5-4.5-10, 5/5-4.5-65. And the maximum fine for allowing truancy is lower than the usual $1,500 cap for a Class C misdemeanor in Illinois. See id. at 5/5-4.5-65(e). Hagen’s argument below was that her offenses were similar to “[j]uvenile status offenses and truancy,” an offense listed in § 4A1.2(c)(2). She renews this argument on appeal. Her basic point is that Guardian Allows Child Truancy is nothing more than aiding and abetting truancy. If that’s right, she says, then allowing truancy would be at most identical in seriousness to the underlying offense it abets, and it couldn’t logically be worse. We disagree. Adults who allow (or abet) truancy are more culpable than the truant children themselves. They are held to a higher standard than those in their care, and for good reason. Children can’t generally be expected to understand the importance of their school attendance. But adults should know better. *895 2 The truancy laws in Illinois reflect this reasoning. The Illinois Code doesn’t criminalize truancy by children—it doesn’t even allow for any punitive action to be taken unless supportive services and resources have been provided to the student. 105 Ill. Comp. Stat. 5/26-12. But it does criminalize the allowance of truancy by a guardian. 105 Ill. Comp. Stat. 5/26-10. Indeed, “criminal proceedings under the [truancy statutes] are directed against those having custody of the child, not the child himself.” In re K.S.Y., 93 Ill.App.3d 6, 48 Ill.Dec. 463, 416 N.E.2d 736, 739 (1981). This is a significant difference in punishment, and it indicates different levels of seriousness between the offenses. We therefore conclude that Guardian Allows Child Truancy is not sufficiently similar to truancy itself to merit exclusion under that part of § 4A1.2(c)(2). III. That is not to say that Guardian Allows Child Truancy should necessarily count toward Hagen’s criminal history category. Hagen contends that even if this offense is insufficiently similar to truancy, it should be excluded because of its similarity to other offenses marked for exclusion by §§ 4A1.2(c)(1) and (c)(2). 3 4 Hagen did not raise this more general argument before the district court; there, she focused solely on the comparison between allowing truancy and truancy itself. Because she forfeited the point she now presses, the government is correct that we can review it only for plain error. See United States v. Garrett, 528 F.3d 525, 527 (7th Cir. 2008). Under the plain error test, we “decide whether there was an error, whether it was plain, and whether it affected substantial rights.” Id. If so, then “we may exercise our discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). 5 None of the offenses listed in §§ 4A1.2(c)(1) and (c)(2) is exactly like Guardian Allows Child Truancy. But while allowing truancy is more serious than simple truancy, it is substantially less serious than one comparable offense listed in § 4A1.2(c)(1): non-support, which involves various failures to support or provide maintenance for a spouse or child to whom one is obligated. See, e.g., 750 Ill. Comp. Stat. 16/15(a). Non-support is a (c)(1) offense. Those offenses (and those similar to them) are only counted if the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or if the prior offense was similar to an instant offense. U.S.S.G. § 4A1.2(c)(1). Hagen’s Guardian Allows Child Truancy sentences were for only four days total, and they were not similar to the drug conspiracy conviction for which she is being sentenced here.2 Thus, if her prior offenses were similar to non-support, the district court should not have included them. As noted, non-support bears an obvious resemblance to allowing truancy because both offenses involve a guardian’s failure to fulfill her responsibilities to a minor in her care. And the following analysis of the five factors from the Guidelines commentary does more than confirm this resemblance—it reveals that non-support is a significantly more serious offense than Guardian Allows Child Truancy. It would *896 plainly violate our common sense approach to hold that the less serious offense must be counted while the more serious one is exempt. The first factor compares the punishments for each offense. Looking at Illinois’s code, we see that a person convicted of non-support is guilty of a Class A misdemeanor at best, and a Class 4 felony at worst. 750 Ill. Comp. Stat. 16/15(b). The former carries a sentence of less than one year of imprisonment, and the latter carries a sentence of not less than one year and not more than three years. 730 Ill. Comp. Stat. 5/5-4.5-45, 5/5-4.5-55. These sentences are both much more significant than the 30-day maximum imprisonment for Class C misdemeanors like Guardian Allows Child Truancy. 730 Ill. Comp. Stat. 5/5-4.5-65. The relative sentences suggest a considerable difference in the seriousness of these two offenses as indicated by their punishments, which we consider under the second commentary factor. And the fact that Guardian Allows Child Truancy is the less serious of the two cuts very strongly in favor of excluding it under § 4A1.2(c)(1). Under the third factor, we compare the elements of the offense. Here again, we see similarity between the two. Guardian Allows Child Truancy involves positions of authority over a child and a willful failure to fulfill one’s responsibilities to that child. See 105 Ill. Comp. Stat. 5/26-10. Non-support involves a similar, and we think more serious, failure toward a child or spouse. See 750 Ill. Comp. Stat. 16/15(a). This comparative culpability goes toward the fourth factor. Refusing to support a child strikes us as a more severe offense than allowing truancy. Non-support involves one who “without lawful excuse, deserts or willfully refuses to provide for the support or maintenance of his or her child....” Id. We think that one who deserts a child or fails to provide for the child’s basic necessities is more culpable than one who permits a child to skip school. The fifth factor asks us to compare the extent to which these offenses suggest a likelihood of recurring criminal conduct. It isn’t entirely clear which way this cuts, since both crimes could be committed under many different circumstances. But at the very least, it doesn’t seem that permitting truancy is any more likely to suggest future criminal conduct than is non-support. 6 In sum, the five-factor test confirms that Guardian Allows Child Truancy is similar to the offense of non-support and that § 4A1.2(c)(1) therefore required its exclusion from Hagen’s criminal history score. Non-support bears so many obvious similarities to Guardian Allows Child Truancy that the court plainly ought to have considered it. And it is so clearly more serious than Hagen’s offenses that we are convinced that the court committed plain error. This error affected a substantial right—Hagen’s freedom—by increasing her recommended sentence under the Guidelines. See Garrett, 528 F.3d at 527 (“A sentence based on an incorrect Guideline range constitutes an error affecting substantial rights and can thus constitute plain error, which requires us to remand unless we have reason to believe that the error did not affect the district court’s selection of a particular sentence.”). And the fact that the more serious offense of non-support is excluded would make it particularly unjust to count the similar, less serious offense of Guardian Allows Child Truancy toward Hagen’s criminal history score. We believe that letting this error stand would “seriously affect[ ] the fairness ... of judicial proceedings,” justifying a rare exercise of our discretion in reversing *897 under a plain error standard. See Garrett, 528 F.3d at 527.

Barrett

majority

Mandy Hagen was convicted twice under Illinois law for failing to get her children to school. When she later pleaded guilty in federal court for conspiring to distribute methamphetamine, the district court counted her two convictions for allowing child truancy toward her criminal history score. That was an error. Section 4A1.2(c) of the Sentencing Guidelines excludes certain crimes, and those “similar to” them, from a defendant’s criminal history. One of the listed offenses is non-support, which involves failing to provide for a child’s basic needs. Permitting truancy is a similar offense, and a less serious one at that. Hagen’s criminal history score must be recalculated, this time excluding her two truancy-related offenses. I. In 2013, Mandy Hagen joined a scheme to distribute methamphetamine to several counties in Illinois. As part of this enterprise, she sold meth, provided ingredients and a venue for its manufacture, and collected drug debts. After a few close calls with law enforcement, Hagen was finally arraigned in May 2017. She pleaded guilty to a single count of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, the government contended that the district court should count Hagen’s two prior offenses for Guardian Allows Child Truancy, a crime under 105 Ill. Comp. Stat. 5/26-10, in calculating her criminal history score. See U.S.S.G. 4A1.1(c). Hagen had pleaded guilty to this offense twice. During the 2013–14 school year, she allowed her child M.F. to be truant for 21 days. Then in 2015, she allowed another of her children, B.F., to accumulate 18 unexcused absences. Including these two convictions in the calculation of Hagen’s criminal history score put her in a higher criminal history category than she would have otherwise been in. Hagen objected to their inclusion, insisting that they fell within 4A1.2(c) of the Guidelines, which excludes certain specific offenses—and those “similar to” them—from a defendant’s criminal history. According to Hagen, Guardian Allows Child Truancy is similar enough to the listed excluded offense of “[j]uvenile status offenses and truancy” that it should be excluded. The government responded that permitting truancy is a more serious offense than actually being truant, since adult guardians are held to a higher standard of responsibility than are the children in their care. The district court sided with the government, and Hagen appeals that decision. II. 1 Under the Guidelines, prior offenses—including misdemeanors and petty offenses—typically increase the defendant’s criminal history score, which in turn *894 affects the recommended sentencing range. But 4A1.2(c) of the Guidelines provides two lists of offenses that courts are to treat differently when calculating a criminal history score. Section 4A1.2(c)(1) instructs that [s]entences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense[.] It then lists various offenses, including careless driving, gambling, contempt of court, prostitution, and non-support. Section 4A1.2(c)(2) says that certain offenses should never be counted. Those include offenses such as fish and game violations, juvenile status offenses and truancy, loitering, and speeding. U.S.S.G. 4A1.2(c)(2). Like 4A1.2(c)(1), this section states that any offenses “similar to” the enumerated offenses, “by whatever name they are known,” are not to be counted. Hagen concedes that allowing truancy is not specifically listed in either 4A1.2(c)(1) or (c)(2). The question is whether her convictions should be excluded from her criminal history score because they are “similar to” one or more of those listed offenses. The Guidelines commentary on 4A1.2(c) lists five factors for courts to consider in analyzing this issue: (1) “a comparison of punishments imposed for the listed and unlisted offenses,” (2) “the perceived seriousness of the offense as indicated by the level of punishment,” (3) “the elements of the offense,” (4) “the level of culpability involved,” and (5) “the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” U.S.S.G. 4A1.2 cmt. 12(A). In applying these factors, courts are to take a “common sense approach.” The Illinois Code makes it a crime for “[a]ny person having custody or control of a child to whom notice has been given of the child’s truancy [to] knowingly and willfully permit[ ] such a child to persist in his truancy within that school year.” 105 Ill. Comp. Stat. 5/26-10.1 A child is truant if he is “absent without valid cause from such attendance for more than 1% but less than 5% of the past 180 school days.” 105 Ill. Comp. Stat. 5/26-2a. A guardian who allows truancy commits a Class C misdemeanor punishable by up to “30 days [of] imprisonment and/or a fine of up to $500.” 105 Ill. Comp. Stat. 5/26-10. Class C misdemeanors are the least serious misdemeanors in the Illinois code. See 730 Ill. Comp. Stat. 5/5-4.5-10, 5/5-4.5-65. And the maximum fine for allowing truancy is lower than the usual $1,500 cap for a Class C misdemeanor in Illinois. See at 5/5-4.5-65(e). Hagen’s argument below was that her offenses were similar to “[j]uvenile status offenses and truancy,” an offense listed in 4A1.2(c)(2). She renews this argument on appeal. Her basic point is that Guardian Allows Child Truancy is nothing more than aiding and abetting truancy. If that’s right, she says, then allowing truancy would be at most identical in seriousness to the underlying offense it abets, and it couldn’t logically be worse. We disagree. Adults who allow (or abet) truancy are more culpable than the truant children themselves. They are held to a higher standard than those in their care, and for good reason. Children can’t generally be expected to understand the importance of their school attendance. But adults should know better. *895 2 The truancy laws in Illinois reflect this reasoning. The Illinois Code doesn’t criminalize truancy by children—it doesn’t even allow for any punitive action to be taken unless supportive services and resources have been provided to the student. 105 Ill. Comp. Stat. 5/26-12. But it does criminalize the allowance of truancy by a guardian. 105 Ill. Comp. Stat. 5/26-10. Indeed, “criminal proceedings under the [truancy statutes] are directed against those having custody of the child, not the child himself.” In re K.S.Y., This is a significant difference in punishment, and it indicates different levels of seriousness between the offenses. We therefore conclude that Guardian Allows Child Truancy is not sufficiently similar to truancy itself to merit exclusion under that part of 4A1.2(c)(2). III. That is not to say that Guardian Allows Child Truancy should necessarily count toward Hagen’s criminal history category. Hagen contends that even if this offense is insufficiently similar to truancy, it should be excluded because of its similarity to other offenses marked for exclusion by 4A1.2(c)(1) and (c)(2). 3 4 Hagen did not raise this more general argument before the district court; there, she focused solely on the comparison between allowing truancy and truancy itself. Because she forfeited the point she now presses, the government is correct that we can review it only for plain error. See United Under the plain error test, we “decide whether there was an error, whether it was plain, and whether it affected substantial rights.” If so, then “we may exercise our discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 5 None of the offenses listed in 4A1.2(c)(1) and (c)(2) is exactly like Guardian Allows Child Truancy. But while allowing truancy is more serious than simple truancy, it is substantially less serious than one comparable offense listed in 4A1.2(c)(1): non-support, which involves various failures to support or provide maintenance for a spouse or child to whom one is obligated. See, e.g., 750 Ill. Comp. Stat. 16/15(a). Non-support is a (c)(1) offense. Those offenses (and those similar to them) are only counted if the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or if the prior offense was similar to an instant offense. U.S.S.G. 4A1.2(c)(1). Hagen’s Guardian Allows Child Truancy sentences were for only four days total, and they were not similar to the drug conspiracy conviction for which she is being sentenced here.2 Thus, if her prior offenses were similar to non-support, the district court should not have included them. As noted, non-support bears an obvious resemblance to allowing truancy because both offenses involve a guardian’s failure to fulfill her responsibilities to a minor in her care. And the following analysis of the five factors from the Guidelines commentary does more than confirm this resemblance—it reveals that non-support is a significantly more serious offense than Guardian Allows Child Truancy. It would *896 plainly violate our common sense approach to hold that the less serious offense must be counted while the more serious one is exempt. The first factor compares the punishments for each offense. Looking at Illinois’s code, we see that a person convicted of non-support is guilty of a Class A misdemeanor at best, and a Class 4 felony at worst. 750 Ill. Comp. Stat. 16/15(b). The former carries a sentence of less than one year of imprisonment, and the latter carries a sentence of not less than one year and not more than three years. 730 Ill. Comp. Stat. 5/5-4.5-45, 5/5-4.5-55. These sentences are both much more significant than the 30-day maximum imprisonment for Class C misdemeanors like Guardian Allows Child Truancy. 730 Ill. Comp. Stat. 5/5-4.5-65. The relative sentences suggest a considerable difference in the seriousness of these two offenses as indicated by their punishments, which we consider under the second commentary factor. And the fact that Guardian Allows Child Truancy is the less serious of the two cuts very strongly in favor of excluding it under 4A1.2(c)(1). Under the third factor, we compare the elements of the offense. Here again, we see similarity between the two. Guardian Allows Child Truancy involves positions of authority over a child and a willful failure to fulfill one’s responsibilities to that child. See 105 Ill. Comp. Stat. 5/26-10. Non-support involves a similar, and we think more serious, failure toward a child or spouse. See 750 Ill. Comp. Stat. 16/15(a). This comparative culpability goes toward the fourth factor. Refusing to support a child strikes us as a more severe offense than allowing truancy. Non-support involves one who “without lawful excuse, deserts or willfully refuses to provide for the support or maintenance of his or her child.” We think that one who deserts a child or fails to provide for the child’s basic necessities is more culpable than one who permits a child to skip school. The fifth factor asks us to compare the extent to which these offenses suggest a likelihood of recurring criminal conduct. It isn’t entirely clear which way this cuts, since both crimes could be committed under many different circumstances. But at the very least, it doesn’t seem that permitting truancy is any more likely to suggest future criminal conduct than is non-support. 6 In sum, the five-factor test confirms that Guardian Allows Child Truancy is similar to the offense of non-support and that 4A1.2(c)(1) therefore required its exclusion from Hagen’s criminal history score. Non-support bears so many obvious similarities to Guardian Allows Child Truancy that the court plainly ought to have considered it. And it is so clearly more serious than Hagen’s offenses that we are convinced that the court committed plain error. This error affected a substantial right—Hagen’s freedom—by increasing her recommended sentence under the Guidelines. See 528 F.3d at And the fact that the more serious offense of non-support is excluded would make it particularly unjust to count the similar, less serious offense of Guardian Allows Child Truancy toward Hagen’s criminal history score. We believe that letting this error stand would “seriously affect[ ] the fairness of judicial proceedings,” justifying a rare exercise of our discretion in reversing *897 under a plain error standard. See 528 F.3d at

United States v. Kennedy-Robey

Jacqueline Kennedy-Robey pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. The district court imposed an above-guidelines sentence. On appeal, Kennedy-Robey argues that the district court failed to consider either her mental health condition or the more lenient sentences received by defendants convicted of similar crimes. She also argues that the sentence was substantively unreasonable. We disagree and affirm the district court's judgment. I. Kennedy-Robey's legal troubles began in 2012, when she was charged with several fraud counts for operating two elaborate schemes: a tax scheme to defraud the Internal Revenue Service (IRS) and an unemployment insurance scheme to defraud several state unemployment agencies. While awaiting trial on these charges, Kennedy-Robey was released on bond. She then resumed her fraudulent activities, completely undeterred by the pending charges. In response, the government moved to revoke her bond and obtained a warrant for her arrest. But instead of showing up at the bond revocation hearing, Kennedy-Robey sent the following note to the court: “When I do turn myself in, it will be because I respect you + your position.” She remained a fugitive until law enforcement officers finally caught up to her in Chicago a few months later. When they arrested Kennedy-Robey, the officers found her to-do list, which read more like a “how-to” guide for fugitives—it included self-reminders to “change phones monthly” and “move every 3–4 months.” Kennedy-Robey eventually pleaded guilty to several counts of fraud. Even though the guidelines range was 210 to 262 months, the district court sentenced her to 72 months of imprisonment and three years of supervised release. It also ordered her to pay over $4.8 million in restitution. *690 In August 2017, Kennedy-Robey was released from a federal prison to a halfway house in Chicago. Within weeks of reaching the halfway house, Kenney-Robey filed a fraudulent automobile loan application and obtained a loan exceeding $30,000, which she used to purchase a Mercedes-Benz. She also filed a fraudulent credit card application. A few months later, she and another defendant purchased another car with funds obtained from yet another fraudulent loan application. In early 2019, Kennedy-Robey was indicted on two counts of mail fraud in violation of 18 U.S.C. § 1341 and pleaded guilty to one. At sentencing, the government asked for an 18-month sentence—the upper limit of the guidelines range of 12 to 18 months. For her part, Kennedy-Robey asked for a below-guidelines sentence of 8 months. After considering Kennedy-Robey's long history of unrepentant criminal conduct and disrespect for the law, the district court imposed a 36-month sentence, followed by five years of supervised release. II. Kennedy-Robey argues that her sentence is plagued by both procedural and substantive error. She says that the district court neither addressed her primary mitigation argument nor justified giving her a higher sentence than other defendants with similar records. She also insists that her sentence is substantively unreasonable. A. Kennedy-Robey emphasized two points at sentencing. First, she described the role that her mental health had played in her offense and maintained that treatment would be more effective than imprisonment in rehabilitating her. And second, she contended that a below-guidelines sentence would be comparable to sentences imposed on similarly situated defendants in the district. According to Kennedy-Robey, the district court failed to adequately address either point. We'll start with Kennedy-Robey's mental health condition, on which she based her main argument in mitigation. Kennedy-Robey was diagnosed with borderline bipolar disorder and adjustment disorder. She argued that her conduct was at least partly attributable to her mental health condition because it impaired her ability to distinguish between right and wrong; she also insisted that treatment would more effectively rehabilitate her than imprisonment. In her statement at sentencing, she asserted that before receiving proper mental health treatment she was “very good at rationalizing [her] choices and decisions.” While incarcerated, she “did not receive the mental health services [that she] needed” and when she was released to the halfway house, she continued to “rationalize [her actions] to the T.” But, she said, the mental health treatment she received in 2018 put her “on the right track,” enabling her to cease her criminal conduct while she was on supervised release. In light of that experience, she maintained that mental health treatment, not prison, is what would help her turn her life around. 1 2 Kennedy-Robey argues that the district court failed to explain why this argument did not persuade it to reduce her sentence or at least her prison time. See United States v. Jones, 798 F.3d 613, 617 (7th Cir. 2015) (explaining that a district court “must address the defendant's principal arguments in mitigation unless they have no legal merit”). But the district court expressly stated its reasons. It explained that “[t]his is not just rationalization” and that “the fault here does not lie entirely with the failure of institutions and others to provide mental health counseling *691 for this defendant.” The district court also observed, “If a defendant cannot be made to follow the law while under the Court's supervision, whether before or after conviction, I don't see the hope of rehabilitation there anywhere.” Finally, based on Kennedy-Robey's continued criminal behavior, the district court expressed doubt that Kennedy-Robey would stop her behavior anytime “in the near future.” This was sufficient. As we have said before, “A short explanation will suffice where the context and record make clear the reasoning underlying the district court's conclusion.” United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008). Moreover, it bears emphasis that while the district court rejected Kennedy-Robey's argument, it did not ignore her request for mental health treatment—and that is itself evidence that the district court carefully considered what Kennedy-Robey had to say. The district court inquired about the type of treatment that she needed and whether her requested penitentiary could provide it. In addition, as a condition of her supervised release, it required her to “participate at the direction of the probation officer in a mental health treatment program and ... take any medications prescribed by the mental health treatment provider.” We have treated the inclusion of mental health treatment as a condition of probation as evidence that the district court adequately considered the defendant's mental health argument. See United States v. Davis, 764 F.3d 690, 695 (7th Cir. 2014). In sum, the record reflects that the district court “meaningfully considered and rejected” Kennedy-Robey's argument. Jones, 798 F.3d at 619. 3 Kennedy-Robey's second claim of procedural error also fails. At sentencing, she argued that a below-guidelines sentence was warranted because other defendants in the district had been given below-guidelines sentences for fraud-related charges. On appeal, she stresses that the district court did not even mention this argument (let alone fully address it) before imposing the above-guidelines sentence. But as we have repeatedly explained, the sentencing court “need not expansively respond to every argument if its reasoning is otherwise clear.” United States v. LeFlore, 927 F.3d 472, 475 (7th Cir. 2019); see also United States v. Faulkner, 885 F.3d 488, 499 (7th Cir. 2018) (“[T]here is generally no disparity problem so long as the remainder of the sentencing explanation makes it plain that the disparity was warranted.”). And in this case, an explicit reference to Kennedy-Robey's disparity argument was unnecessary because the district court's explanation for the above-guidelines sentence clearly shows why it rejected that argument. In imposing the sentence, the district court specifically acknowledged that nonviolent crimes do not always necessitate imprisonment. But it concluded that Kennedy-Robey's case was different because it found that there was “something absolutely frightening about such a persistent behavior of conduct to lie and to cheat.” Indeed, the district court went to great lengths to distinguish Kennedy-Robey from the typical defendant charged with a similar crime. The court explained: I don't think in the 29 years that I've been in this building I have seen someone who continued her criminal behavior while she was on supervised release awaiting trial, absconded and continued her criminal behavior while she was a fugitive, served six years, essentially a 72-month sentence, was released to serve the latter part of that sentence at a halfway house to help her integrate into society, then picked up right where she had left off before that, continued to engage in multiple fraudulent actions, *692 lying and essentially cheating companies out of their money. The district court may not have specifically referenced Kennedy-Robey's argument regarding other “similarly situated” defendants, but the record makes clear that it did not consider Kennedy-Robey to be a typical defendant. Kennedy-Robey has failed to identify a procedural error. B. 4 In addition to her procedural challenges, Kennedy-Robey argues that her sentence is substantively unreasonable. Such a challenge is difficult to win because “sentencing judges rightly maintain significant discretion in fashioning an appropriate sentence.” United States v. Ramirez-Mendoza, 683 F.3d 771, 777 (7th Cir. 2012). We review the reasonableness of the sentence for an abuse of discretion and affirm a sentence above the guidelines range “so long as the district court offered an adequate statement of its reasons.” United States v. McIntyre, 531 F.3d 481, 483 (7th Cir. 2008). If the district court, after considering the prescribed factors under 18 U.S.C. § 3553(a), explains why the sentence fits the defendant's particular circumstances, then we are unlikely to upset its judgment. United States v. Jackson, 547 F.3d 786, 792–93 (7th Cir. 2008). 5 The district court adequately justified its decision to deviate from the guidelines with reference to the § 3553(a) factors and the unique aspects of Kennedy-Robey's case. See 18 U.S.C. § 3553(a) (listing factors such as “the history and characteristics of the defendant,” as well as the need “to promote respect for the law,” deter “criminal conduct,” and “protect the public from further crimes”); see also United States v. Christiansen, 594 F.3d 571, 576 (7th Cir. 2010) (noting the district court's obligation to meaningfully consider these factors). As we have already explained, the district court went out of its way to distinguish this case from the typical fraud case; according to the district court, Kennedy-Robey's apparent inability to cease her criminal behavior “reflect[ed] an almost irrational persistence in committing fraud.” It concluded that an above-guidelines sentence was warranted to “protect the public from her conduct.” The district court also emphasized the importance of promoting deterrence in particular and concluded that a sentence within the guidelines range of 12 to 18 months would not have an “impact” on Kennedy-Robey. Moreover, the district court stressed that Kennedy-Robey had “disrespected” the law “in just about every way possible” and that an above-guidelines sentence was needed “to promote respect for the law.” Based on this record, we're hard-pressed to conclude that the district court abused its discretion in imposing an above-guidelines sentence.

Barrett

majority

Jacqueline Kennedy-Robey pleaded guilty to one count of mail fraud in violation of The district court imposed an above-guidelines sentence. On appeal, Kennedy-Robey argues that the district court failed to consider either her mental health condition or the more lenient sentences received by defendants convicted of similar crimes. She also argues that the sentence was substantively unreasonable. We disagree and affirm the district court's judgment. I. Kennedy-Robey's legal troubles began in 2012, when she was charged with several fraud counts for operating two elaborate schemes: a tax scheme to defraud the Internal Revenue Service (IRS) and an unemployment insurance scheme to defraud several state unemployment agencies. While awaiting trial on these charges, Kennedy-Robey was released on bond. She then resumed her fraudulent activities, completely undeterred by the pending charges. In response, the government moved to revoke her bond and obtained a warrant for her arrest. But instead of showing up at the bond revocation hearing, Kennedy-Robey sent the following note to the court: “When I do turn myself in, it will be because I respect you + your position.” She remained a fugitive until law enforcement officers finally caught up to her in Chicago a few months later. When they arrested Kennedy-Robey, the officers found her to-do list, which read more like a “how-to” guide for fugitives—it included self-reminders to “change phones monthly” and “move every 3–4 months.” Kennedy-Robey eventually pleaded guilty to several counts of fraud. Even though the guidelines range was 210 to 262 months, the district court sentenced her to 72 months of imprisonment and three years of supervised release. It also ordered her to pay over $4.8 million in restitution. *690 In August 2017, Kennedy-Robey was released from a federal prison to a halfway house in Chicago. Within weeks of reaching the halfway house, Kenney-Robey filed a fraudulent automobile loan application and obtained a loan exceeding $30,000, which she used to purchase a Mercedes-Benz. She also filed a fraudulent credit card application. A few months later, she and another defendant purchased another car with funds obtained from yet another fraudulent loan application. In early 2019, Kennedy-Robey was indicted on two counts of mail fraud in violation of and pleaded guilty to one. At sentencing, the government asked for an 18-month sentence—the upper limit of the guidelines range of 12 to 18 months. For her part, Kennedy-Robey asked for a below-guidelines sentence of 8 months. After considering Kennedy-Robey's long history of unrepentant criminal conduct and disrespect for the law, the district court imposed a 36-month sentence, followed by five years of supervised release. II. Kennedy-Robey argues that her sentence is plagued by both procedural and substantive error. She says that the district court neither addressed her primary mitigation argument nor justified giving her a higher sentence than other defendants with similar records. She also insists that her sentence is substantively unreasonable. A. Kennedy-Robey emphasized two points at sentencing. First, she described the role that her mental health had played in her offense and maintained that treatment would be more effective than imprisonment in rehabilitating her. And second, she contended that a below-guidelines sentence would be comparable to sentences imposed on similarly situated defendants in the district. According to Kennedy-Robey, the district court failed to adequately address either point. We'll start with Kennedy-Robey's mental health condition, on which she based her main argument in mitigation. Kennedy-Robey was diagnosed with borderline bipolar disorder and adjustment disorder. She argued that her conduct was at least partly attributable to her mental health condition because it impaired her ability to distinguish between right and wrong; she also insisted that treatment would more effectively rehabilitate her than imprisonment. In her statement at sentencing, she asserted that before receiving proper mental health treatment she was “very good at rationalizing [her] choices and decisions.” While incarcerated, she “did not receive the mental health services [that she] needed” and when she was released to the halfway house, she continued to “rationalize [her actions] to the T.” But, she said, the mental health treatment she received in 2018 put her “on the right track,” enabling her to cease her criminal conduct while she was on supervised release. In light of that experience, she maintained that mental health treatment, not prison, is what would help her turn her life around. 1 2 Kennedy-Robey argues that the district court failed to explain why this argument did not persuade it to reduce her sentence or at least her prison time. See United But the district court expressly stated its reasons. It explained that “[t]his is not just rationalization” and that “the fault here does not lie entirely with the failure of institutions and others to provide mental health counseling *691 for this defendant.” The district court also observed, “If a defendant cannot be made to follow the law while under the Court's supervision, whether before or after conviction, I don't see the hope of rehabilitation there anywhere.” Finally, based on Kennedy-Robey's continued criminal behavior, the district court expressed doubt that Kennedy-Robey would stop her behavior anytime “in the near future.” This was sufficient. As we have said before, “A short explanation will suffice where the context and record make clear the reasoning underlying the district court's conclusion.” United Moreover, it bears emphasis that while the district court rejected Kennedy-Robey's argument, it did not ignore her request for mental health treatment—and that is itself evidence that the district court carefully considered what Kennedy-Robey had to say. The district court inquired about the type of treatment that she needed and whether her requested penitentiary could provide it. In addition, as a condition of her supervised release, it required her to “participate at the direction of the probation officer in a mental health treatment program and take any medications prescribed by the mental health treatment provider.” We have treated the inclusion of mental health treatment as a condition of probation as evidence that the district court adequately considered the defendant's mental health argument. See United In sum, the record reflects that the district court “meaningfully considered and rejected” Kennedy-Robey's argument. 3 Kennedy-Robey's second claim of procedural error also fails. At sentencing, she argued that a below-guidelines sentence was warranted because other defendants in the district had been given below-guidelines sentences for fraud-related charges. On appeal, she stresses that the district court did not even mention this argument (let alone fully address it) before imposing the above-guidelines sentence. But as we have repeatedly explained, the sentencing court “need not expansively respond to every argument if its reasoning is otherwise clear.” United ; see also United And in this case, an explicit reference to Kennedy-Robey's disparity argument was unnecessary because the district court's explanation for the above-guidelines sentence clearly shows why it rejected that argument. In imposing the sentence, the district court specifically acknowledged that nonviolent crimes do not always necessitate imprisonment. But it concluded that Kennedy-Robey's case was different because it found that there was “something absolutely frightening about such a persistent behavior of conduct to lie and to cheat.” Indeed, the district court went to great lengths to distinguish Kennedy-Robey from the typical defendant charged with a similar crime. The court explained: I don't think in the 29 years that I've been in this building I have seen someone who continued her criminal behavior while she was on supervised release awaiting trial, absconded and continued her criminal behavior while she was a fugitive, served six years, essentially a 72-month sentence, was released to serve the latter part of that sentence at a halfway house to help her integrate into society, then picked up right where she had left off before that, continued to engage in multiple fraudulent actions, *692 lying and essentially cheating companies out of their money. The district court may not have specifically referenced Kennedy-Robey's argument regarding other “similarly situated” defendants, but the record makes clear that it did not consider Kennedy-Robey to be a typical defendant. Kennedy-Robey has failed to identify a procedural error. B. 4 In addition to her procedural challenges, Kennedy-Robey argues that her sentence is substantively unreasonable. Such a challenge is difficult to win because “sentencing judges rightly maintain significant discretion in fashioning an appropriate sentence.” United We review the reasonableness of the sentence for an abuse of discretion and affirm a sentence above the guidelines range “so long as the district court offered an adequate statement of its reasons.” United If the district court, after considering the prescribed factors under (a), explains why the sentence fits the defendant's particular circumstances, then we are unlikely to upset its judgment. United 5 The district court adequately justified its decision to deviate from the guidelines with reference to the 3553(a) factors and the unique aspects of Kennedy-Robey's case. See (a) ; see also United As we have already explained, the district court went out of its way to distinguish this case from the typical fraud case; according to the district court, Kennedy-Robey's apparent inability to cease her criminal behavior “reflect[ed] an almost irrational persistence in committing fraud.” It concluded that an above-guidelines sentence was warranted to “protect the public from her conduct.” The district court also emphasized the importance of promoting deterrence in particular and concluded that a sentence within the guidelines range of 12 to 18 months would not have an “impact” on Kennedy-Robey. Moreover, the district court stressed that Kennedy-Robey had “disrespected” the law “in just about every way possible” and that an above-guidelines sentence was needed “to promote respect for the law.” Based on this record, we're hard-pressed to conclude that the district court abused its discretion in imposing an above-guidelines sentence.

United States v. Kienast

In 2015, federal agents infiltrated a child pornography website called Playpen and deployed a computer program to identify Playpen's users. This operation resulted in the successful prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman Broy, whose appeals are consolidated before us. Kienast, Owens, and Broy, like many other defendants caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit of those searches—the defendants' identities—should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that these digital searches violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies. We affirm all three judgments. *526 I. In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called Playpen. This site created an anonymous space for its membership of over 150,000 people to discuss, consume, and share child pornography. Playpen exists solely on the dark web, so it can be accessed only through a series of affirmative steps. First, the user must download The Onion Router (Tor) software. The Tor software makes user information untraceable by relaying it through a series of interconnected computers. It also allows a user to access the Tor network, where Playpen and other “hidden services” websites are hosted. Once on this network, a user must enter a specific sixteen-character web address to visit Playpen. Finally, Playpen requires visitors to create a username and password before granting them access to its contents. In 2015, FBI agents gained access to Playpen's servers and relocated them to a government facility in the Eastern District of Virginia. The FBI then operated the website for about two weeks in order to observe Playpen users. But while the FBI could observe Playpen traffic, Tor prevented it from identifying any specific user information. To unmask and apprehend the anonymous Playpen users, the FBI sought a warrant in the Eastern District of Virginia to use a Network Investigative Technique (NIT). The NIT deployed computer code instructing computers that accessed Playpen to send identifying information to the government. In support of its warrant application to deploy the NIT, the FBI submitted a 31-page affidavit from a special agent who specialized in child pornography cases. The affidavit detailed Playpen's architecture and contents, explained the nature of the Tor network, and described the numerous affirmative steps a user had to take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was necessary to identify and locate the users and administrators of Playpen, because other investigative procedures had either failed or would likely fail. The affidavit also provided details about the proposed NIT. Special computer code would be added to the digital content on the Playpen website. After a user entered a username and password to access Playpen, the website would cause the user's computer to download that code. The code would then instruct the user's computer to send back the following information: (1) the computer's IP address and the date and time that it was determined; (2) a unique identifier to distinguish data from that of other computers accessing Playpen; (3) the computer's operating system; (4) information about whether the NIT had already been delivered to the computer; (5) the computer's host name; (6) the operating system's username; and (7) the computer's media access control address. A federal magistrate judge in the Eastern District of Virginia issued the NIT Warrant in February 2015. The magistrate judge approved the use of the NIT to obtain information from all “activating computers,” which the warrant described as the computers “of any user or administrator who logs into [Playpen] by entering a username and password.” The three defendants on appeal were such users. At various times during the nearly two weeks that the government hosted the Playpen servers, Neil Kienast, Marcus Owens, and Braman Broy accessed Playpen. By entering their usernames and passwords, they unknowingly triggered the NIT, which unmasked their identities. Once identified, FBI agents in the Eastern District of Virginia notified FBI regional *527 offices in the defendants' home districts. Local FBI agents then obtained warrants to search the defendants' computers and homes. Each search unearthed child pornography. On the basis of evidence recovered in these searches, grand juries charged the defendants with receiving, possessing, or viewing child pornography in violation of 18 U.S.C. § 2252A. The defendants each moved to suppress the evidence obtained as a result of the NIT Warrant, raising assorted challenges to its validity. The respective district courts denied their motions to suppress and the defendants entered conditional guilty pleas, reserving the right to appeal the denial of their suppression motions. These appeals followed. II. All three defendants assert that the searches performed by the NIT violated the Fourth Amendment and that the evidence obtained by them should have therefore been suppressed. We need not decide, however, whether the searches violated the Fourth Amendment. Even if they did, the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies. 1 Suppression of evidence is a “last resort.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). It is not a personal constitutional right, nor is it intended to remedy the injury of having one's rights violated. Davis v. United States, 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Instead, it is a judge-made rule meant to deter future Fourth Amendment violations. Id. at 236–37, 131 S.Ct. 2419. And its application has been strictly limited by the Supreme Court. 2 3 The Court has instructed that the exclusionary rule be limited to cases in which its deterrent effect on police conduct will outweigh its “heavy costs.” Id. at 237, 131 S.Ct. 2419. Strong cases for exclusion involve “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” on the part of the police. Id. at 238, 131 S.Ct. 2419 (internal quotation marks omitted). In such cases, “the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id. But exclusion is not appropriate where “the police act with an objectively reasonable good-faith belief that their conduct is lawful.” Id. (internal quotation marks omitted). In that type of case, “the deterrence rationale loses much of its force, and exclusion cannot pay its way.” Id. (internal quotation marks and citations omitted). The flagship case for this “good faith” principle is United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The defendants offer two major arguments against applying the good-faith exception in this case. The first is that the good-faith exception is categorically inapplicable when the warrant is void ab initio (or “from the beginning”). According to the defendants, this warrant is void because the magistrate judge lacked the authority to issue it. Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge's] district.” This warrant, they say, extended to people and property located outside the magistrate's district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.1 *528 4 We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases. The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See Davis, 564 U.S. at 238, 131 S.Ct. 2419 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police misconduct” at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, “[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” 468 U.S. at 921, 104 S.Ct. 3405; see also Herring v. United States, 555 U.S. 135, 136–37, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (invoking the good-faith exception where an officer reasonably but wrongly believed that there was an outstanding arrest warrant for the defendant); cf. United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (concluding that even though the violation of Rule 41 was “regrettable,” allowing the defendants to go free on that basis “would be a remedy wildly out of proportion to the wrong”). Other circuits have similarly held that the good-faith exception can apply to warrants that are void ab initio. See United States v. Levin, 874 F.3d 316, 323–24 (1st Cir. 2017); United States v. Werdene, 883 F.3d 204, 216–17 (3d Cir. 2018); United States v. McLamb, 880 F.3d 685, 691 (4th Cir. 2018); United States v. Horton, 863 F.3d 1041, 1050 (8th Cir. 2017); United States v. Workman, 863 F.3d 1313, 1319 (10th Cir. 2017); see also United States v. Master, 614 F.3d 236, 242–43 (6th Cir. 2010) (repudiating a prior pronouncement that ab initio warrants preclude application of the good-faith exception in light of intervening Supreme Court precedent). The defendants' second argument is that the good-faith exception fails on its own terms because the agents did not execute this search in good faith.2 Leon states that the good-faith exception might not apply in cases where: (1) “the issuing magistrate wholly abandoned his judicial role”; (2) the warrant was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (3) “a warrant [was] so facially deficient” that the “executing officers [could not] reasonably presume it to be valid.” Leon, 468 U.S. at 923, 104 S.Ct. 3405. 5 The defendants focus on the third scenario, arguing that the officers should have recognized this warrant as facially invalid. They maintain that a well-trained officer, familiar with computer investigations and associated warrants, knows that a magistrate judge lacks the authority to authorize a warrant outside his or her own district. This warrant permitted the officers to access information originating from computers around the country. Thus, the defendants say, the officers should have known that the magistrate judge lacked authority to issue it. The defendants are wrong—the officers could have reasonably relied on the magistrate judge's conclusion that this warrant was consistent with Rule 41. This warrant poses difficult conceptual questions about what occurred. Perhaps the warrant impermissibly allowed the search of computers outside the magistrate judge's district, *529 as the defendants suggest. But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for the installation of a “tracking device” within the district that can track movement outside the district. Fed. R. Crim. P. 41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that district. Choosing between these frameworks has split district courts across the country, which underscores the difficulty of the question.3 See United States v. Taylor, 250 F.Supp.3d 1215, 1222–23 (N.D. Ala. 2017) (collecting cases). We do not decide this question today because we hold that the good-faith exception applies in any event. But the fact that so many district judges have differed on this question is strong evidence that any error on the part of the magistrate judge would not necessarily have been obvious to the officers. 6 The defendants raise other theories of bad faith. They note that “where the officer seeking the warrant was dishonest or reckless in preparing the affidavit,” the good-faith exception does not apply. United States v. Harris, 464 F.3d 733, 740 (7th Cir. 2006). Owens maintains that the affidavit accompanying the NIT Warrant contained dishonest statements that omitted material information. The affidavit, for example, describes the Playpen homepage as featuring “two images depicting partially clothed prepubescent females with their legs spread apart,” which was true as of February 18, 2015. But on February 19, the site administrator changed the homepage to instead depict a prepubescent girl wearing a short dress. Owens makes much of the fact that the affidavit had not been updated to reflect this change when the magistrate judge signed the warrant on February 20. This change is immaterial. And even if it were not, the failure to update the affidavit in real time would not begin to approach the dishonesty that Harris describes. 7 Nor do we think that the police behavior here was reckless. The defendants believe that the warrant was reckless because it was overinclusive. They insist that it sweeps up innocent actors that stumble upon Playpen but don't engage in any illegal activity. But by the time such actors have downloaded the software needed to access the dark web, entered the specific, sixteen-digit character jumble that is Playpen's web address, and logged into the site featuring at least one sexually suggestive image of a child, we are very skeptical that they are surprised to find themselves on a website offering child pornography. The record establishes that the FBI acted reasonably both when it prepared its affidavit and when it executed the search warrants. Faced with the daunting task of apprehending tens of thousands of individuals engaged in perverse crimes but cloaked in anonymity through their use of Tor, the FBI developed a sophisticated tool to unmask and locate those suspected criminals. The agency fully and accurately described the NIT to the neutral and detached magistrate judge who signed the warrant. We join the five circuits who have held the good-faith exception applicable to this NIT Warrant. See Levin, 874 F.3d at 324, Werdene, 883 F.3d at 217–19; McLamb, 880 F.3d at 689–90; Horton, 863 F.3d at 1052; Workman, 863 F.3d at 1321. In the absence of culpable police conduct, the exclusionary rule cannot “pay its way.” Davis, 564 U.S. at 238, 131 S.Ct. 2419. *530 III. Kienast and Owens individually raise additional challenges to their convictions. We address these in turn. 8 9 Kienast asserts that the district court erred by denying his motion to compel the government to allow him to review the NIT source code and cross-examine the FBI special agent who created the affidavit. According to Kienast, he needs this information to establish the scope of the Fourth Amendment violation. The district court rejected his motion, holding that the information Kienast sought was immaterial to the good-faith determination. We review a district court's ruling on a motion to compel discovery for abuse of discretion. Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng'rs, Inc., 755 F.3d 832, 838 (7th Cir. 2014). The district court did not abuse its discretion in holding that the discovery sought was immaterial and “essentially a fishing trip.” Testimony from the FBI agent and access to the source code would not have affected the good-faith determination. 10 Owens argues that the fruit of the NIT search should be suppressed because the government's conduct was so “outrageous” that it violated his right to due process. He cites Rochin v. California, which holds that certain conduct that “shocks the conscience” can constitute a due process violation. 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (police pumping the stomach of a suspect to obtain evidence violated due process). Owens asserts that by operating the Playpen website after seizing it, the “government distributed over a million images of child pornography,” which he believes qualifies as “outrageous conduct” that shocks the conscience. His theory is that this unconstitutional behavior “absolutely bar[s] the government from invoking judicial processes,” which he thinks justifies suppression. United States v. Russell, 411 U.S. 423, 431–32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The district court denied relief on this ground, but it noted a “tension” between our circuit and the Supreme Court concerning the availability of this defense. United States v. Owens, 2016 WL 7079617, at *4 (E.D. Wis. Dec. 5, 2016). There is no conflict between our cases and the Supreme Court's. In United States v. Russell, the Court left open the possibility that the government's engagement in illegal activity might violate due process if it is “shocking to the universal sense of justice.” 411 U.S. at 431–32, 93 S.Ct. 1637. In that case, an undercover agent supplied the defendant with an essential ingredient for the manufacture of methamphetamine as part of an operation to gather evidence against him. While the Court determined that this conduct did not shock the conscience, it said that it “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. Thus, the Supreme Court did not foreclose the “outrageous conduct” defense—but it did not mandate its application either. And “[w]e repeatedly have reaffirmed our decision not to recognize the defense.” United States v. Smith, 792 F.3d 760, 765 (7th Cir. 2015); see also United States v. Stallworth, 656 F.3d 721, 730 (7th Cir. 2011) (“Outrageous government conduct is not a defense in this circuit.”). Our cases are consistent with those of the Court and they control here. And in any event, the defense would do Owens no good even if it were available. In Russell, the defendant was the victim of the government's allegedly outrageous conduct. *531 Russell, 411 U.S. at 431–32, 93 S.Ct. 1637. Here, Owens does not charge the government with harming him; he complains that the government's allegedly outrageous conduct harmed the children whose images were distributed while the government operated the server. Owens's argument is itself more than a little outrageous: he seeks to shield himself from prosecution because the children he victimized were allegedly victimized by someone else too. 11 Owens makes one last pitch: he asks us to remand his case for a Franks hearing. In Franks v. Delaware, the Court held that the Fourth Amendment entitles a defendant to an evidentiary hearing when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with intentional or reckless misrepresentations in the warrant affidavit and such statements were necessary to a finding of probable cause. 438 U.S. 154, 171–72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court rejected Owens's argument because it found that Owens failed to make the requisite “substantial preliminary showing” to justify a hearing. United States v. Owens, 2016 WL 7079609, at *7 (E.D. Wis. 2016). We agree with the district court. As we explained, law enforcement made no reckless misrepresentations. Owens further gives us no “firm and definite” reasons, under the requisite clear error review, why the district court erred. United States v. Pace, 898 F.2d 1218, 1226–27 (7th Cir. 1990). The district court, armed with all the information that we reviewed, made a reasoned determination to deny Owens a Franks hearing.

Barrett

majority

In 2015, federal agents infiltrated a child pornography website called Playpen and deployed a computer program to identify Playpen's users. This operation resulted in the successful prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman Broy, whose appeals are consolidated before us. Kienast, Owens, and Broy, like many other defendants caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit of those searches—the defendants' identities—should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that these digital searches violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies. We affirm all three judgments. *526 I. In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called Playpen. This site created an anonymous space for its membership of over 150,000 people to discuss, consume, and share child pornography. Playpen exists solely on the dark web, so it can be accessed only through a series of affirmative steps. First, the user must download The Onion Router (Tor) software. The Tor software makes user information untraceable by relaying it through a series of interconnected computers. It also allows a user to access the Tor network, where Playpen and other “hidden services” websites are hosted. Once on this network, a user must enter a specific sixteen-character web address to visit Playpen. Finally, Playpen requires visitors to create a username and password before granting them access to its contents. In 2015, FBI agents gained access to Playpen's servers and relocated them to a government facility in the Eastern District of Virginia. The FBI then operated the website for about two weeks in order to observe Playpen users. But while the FBI could observe Playpen traffic, Tor prevented it from identifying any specific user information. To unmask and apprehend the anonymous Playpen users, the FBI sought a warrant in the Eastern District of Virginia to use a Network Investigative Technique (NIT). The NIT deployed computer code instructing computers that accessed Playpen to send identifying information to the government. In support of its warrant application to deploy the NIT, the FBI submitted a 31-page affidavit from a special agent who specialized in child pornography cases. The affidavit detailed Playpen's architecture and contents, explained the nature of the Tor network, and described the numerous affirmative steps a user had to take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was necessary to identify and locate the users and administrators of Playpen, because other investigative procedures had either failed or would likely fail. The affidavit also provided details about the proposed NIT. Special computer code would be added to the digital content on the Playpen website. After a user entered a username and password to access Playpen, the website would cause the user's computer to download that code. The code would then instruct the user's computer to send back the following information: (1) the computer's IP address and the date and time that it was determined; (2) a unique identifier to distinguish data from that of other computers accessing Playpen; (3) the computer's operating system; (4) information about whether the NIT had already been delivered to the computer; (5) the computer's host name; (6) the operating system's username; and (7) the computer's media access control address. A federal magistrate judge in the Eastern District of Virginia issued the NIT Warrant in February 2015. The magistrate judge approved the use of the NIT to obtain information from all “activating computers,” which the warrant described as the computers “of any user or administrator who logs into [Playpen] by entering a username and password.” The three defendants on appeal were such users. At various times during the nearly two weeks that the government hosted the Playpen servers, Neil Kienast, Marcus Owens, and Braman Broy accessed Playpen. By entering their usernames and passwords, they unknowingly triggered the NIT, which unmasked their identities. Once identified, FBI agents in the Eastern District of Virginia notified FBI regional *527 offices in the defendants' home districts. Local FBI agents then obtained warrants to search the defendants' computers and homes. Each search unearthed child pornography. On the basis of evidence recovered in these searches, grand juries charged the defendants with receiving, possessing, or viewing child pornography in violation of 18 U.S.C. 2252A. The defendants each moved to suppress the evidence obtained as a result of the NIT Warrant, raising assorted challenges to its validity. The respective district courts denied their motions to suppress and the defendants entered conditional guilty pleas, reserving the right to appeal the denial of their suppression motions. These appeals followed. II. All three defendants assert that the searches performed by the NIT violated the Fourth Amendment and that the evidence obtained by them should have therefore been suppressed. We need not decide, however, whether the searches violated the Fourth Amendment. Even if they did, the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies. 1 Suppression of evidence is a “last resort.” It is not a personal constitutional right, nor is it intended to remedy the injury of having one's rights violated. Instead, it is a judge-made rule meant to deter future Fourth Amendment violations. at –37, And its application has been strictly limited by the Supreme Court. 2 3 The Court has instructed that the exclusionary rule be limited to cases in which its deterrent effect on police conduct will outweigh its “heavy costs.” Strong cases for exclusion involve “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” on the part of the police. In such cases, “the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” But exclusion is not appropriate where “the police act with an objectively reasonable good-faith belief that their conduct is lawful.” In that type of case, “the deterrence rationale loses much of its force, and exclusion cannot pay its way.” The flagship case for this “good faith” principle is United The defendants offer two major arguments against applying the good-faith exception in this case. The first is that the good-faith exception is categorically inapplicable when the warrant is void ab initio (or “from the beginning”). According to the defendants, this warrant is void because the magistrate judge lacked the authority to issue it. Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge's] district.” This warrant, they say, extended to people and property located outside the magistrate's district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.1 *528 4 We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases. The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See 564 U.S. (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police misconduct” at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, “[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” ; cf. United Other circuits have similarly held that the good-faith exception can apply to warrants that are void ab initio. See United ; United ; United ; United ; United ; see also United 614 F.3d The defendants' second argument is that the good-faith exception fails on its own terms because the agents did not execute this search in good faith.2 Leon states that the good-faith exception might not apply in cases where: (1) “the issuing magistrate wholly abandoned his judicial role”; (2) the warrant was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (3) “a warrant [was] so facially deficient” that the “executing officers [could not] reasonably presume it to be valid.” Leon, 5 The defendants focus on the third scenario, arguing that the officers should have recognized this warrant as facially invalid. They maintain that a well-trained officer, familiar with computer investigations and associated warrants, knows that a magistrate judge lacks the authority to authorize a warrant outside his or her own district. This warrant permitted the officers to access information originating from computers around the country. Thus, the defendants say, the officers should have known that the magistrate judge lacked authority to issue it. The defendants are wrong—the officers could have reasonably relied on the magistrate judge's conclusion that this warrant was consistent with Rule 41. This warrant poses difficult conceptual questions about what occurred. Perhaps the warrant impermissibly allowed the search of computers outside the magistrate judge's district, *529 as the defendants suggest. But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for the installation of a “tracking device” within the district that can track movement outside the district. Fed. R. Crim. P. 41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that district. Choosing between these frameworks has split district courts across the country, which underscores the difficulty of the question.3 See United We do not decide this question today because we hold that the good-faith exception applies in any event. But the fact that so many district judges have differed on this question is strong evidence that any error on the part of the magistrate judge would not necessarily have been obvious to the officers. 6 The defendants raise other theories of bad faith. They note that “where the officer seeking the warrant was dishonest or reckless in preparing the affidavit,” the good-faith exception does not apply. United Owens maintains that the affidavit accompanying the NIT Warrant contained dishonest statements that omitted material information. The affidavit, for example, describes the Playpen homepage as featuring “two images depicting partially clothed prepubescent females with their legs spread apart,” which was true as of February 18, 2015. But on February 19, the site administrator changed the homepage to instead depict a prepubescent girl wearing a short dress. Owens makes much of the fact that the affidavit had not been updated to reflect this change when the magistrate judge signed the warrant on February 20. This change is immaterial. And even if it were not, the failure to update the affidavit in real time would not begin to approach the dishonesty that Harris describes. 7 Nor do we think that the police behavior here was reckless. The defendants believe that the warrant was reckless because it was overinclusive. They insist that it sweeps up innocent actors that stumble upon Playpen but don't engage in any illegal activity. But by the time such actors have downloaded the software needed to access the dark web, entered the specific, sixteen-digit character jumble that is Playpen's web address, and logged into the site featuring at least one sexually suggestive image of a child, we are very skeptical that they are surprised to find themselves on a website offering child pornography. The record establishes that the FBI acted reasonably both when it prepared its affidavit and when it executed the search warrants. Faced with the daunting task of apprehending tens of thousands of individuals engaged in perverse crimes but cloaked in anonymity through their use of Tor, the FBI developed a sophisticated tool to unmask and locate those suspected criminals. The agency fully and accurately described the NIT to the neutral and detached magistrate judge who signed the warrant. We join the five circuits who have held the good-faith exception applicable to this NIT Warrant. See –19; –90; ; In the absence of culpable police conduct, the exclusionary rule cannot “pay its way.” 564 U.S. *530 III. Kienast and Owens individually raise additional challenges to their convictions. We address these in turn. 8 9 Kienast asserts that the district court erred by denying his motion to compel the government to allow him to review the NIT source code and cross-examine the FBI special agent who created the affidavit. According to Kienast, he needs this information to establish the scope of the Fourth Amendment violation. The district court rejected his motion, holding that the information Kienast sought was immaterial to the good-faith determination. We review a district court's ruling on a motion to compel discovery for abuse of discretion. Thermal Design, The district court did not abuse its discretion in holding that the discovery sought was immaterial and “essentially a fishing trip.” Testimony from the FBI agent and access to the source code would not have affected the good-faith determination. 10 Owens argues that the fruit of the NIT search should be suppressed because the government's conduct was so “outrageous” that it violated his right to due process. He cites Rochin v. California, which holds that certain conduct that “shocks the conscience” can constitute a due process violation. Owens asserts that by operating the Playpen website after seizing it, the “government distributed over a million images of child pornography,” which he believes qualifies as “outrageous conduct” that shocks the conscience. His theory is that this unconstitutional behavior “absolutely bar[s] the government from invoking judicial processes,” which he thinks justifies suppression. United The district court denied relief on this ground, but it noted a “tension” between our circuit and the Supreme Court concerning the availability of this defense. United There is no conflict between our cases and the Supreme Court's. In United the Court left open the possibility that the government's engagement in illegal activity might violate due process if it is “shocking to the universal sense of justice.” –32, In that case, an undercover agent supplied the defendant with an essential ingredient for the manufacture of methamphetamine as part of an operation to gather evidence against him. While the Court determined that this conduct did not shock the conscience, it said that it “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Thus, the Supreme Court did not foreclose the “outrageous conduct” defense—but it did not mandate its application either. And “[w]e repeatedly have reaffirmed our decision not to recognize the defense.” United ; see also United Our cases are consistent with those of the Court and they control here. And in any event, the defense would do Owens no good even if it were available. In Russell, the defendant was the victim of the government's allegedly outrageous conduct. *531 Russell, –32, Here, Owens does not charge the government with harming him; he complains that the government's allegedly outrageous conduct harmed the children whose images were distributed while the government operated the server. Owens's argument is itself more than a little outrageous: he seeks to shield himself from prosecution because the children he victimized were allegedly victimized by someone else too. 11 Owens makes one last pitch: he asks us to remand his case for a Franks hearing. In Franks v. Delaware, the Court held that the Fourth Amendment entitles a defendant to an evidentiary hearing when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with intentional or reckless misrepresentations in the warrant affidavit and such statements were necessary to a finding of probable cause. The district court rejected Owens's argument because it found that Owens failed to make the requisite “substantial preliminary showing” to justify a hearing. United WL 7079609, We agree with the district court. As we explained, law enforcement made no reckless misrepresentations. Owens further gives us no “firm and definite” reasons, under the requisite clear error review, why the district court erred. United The district court, armed with all the information that we reviewed, made a reasoned determination to deny Owens a Franks hearing.

United States v. King

Nathaniel Hoskins, Julian Martin, and Torrie King were members of the Imperial Insane Vice Lords, a gang in Chicago. Following a multi-year investigation into the gang's activities, they were prosecuted together in a bench trial and convicted on several counts. After trial and before sentencing, the government disclosed evidence that it had obtained from a confidential informant. The district court held that the late disclosure did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the suppressed evidence was neither exculpatory nor material. All three defendants appeal that ruling. In addition to the joint Brady claim, Martin raises two issues that are unique to him: he argues that the district court violated the Confrontation Clause when it admitted a statement made by a non-testifying codefendant and that the district court made several errors when it imposed his sentence. Neither the defendants' joint claim nor either of Martin's individual claims warrants reversing the district court. I. This case arises from the operations of the Chicago gang known as the Imperial Insane Vice Lords (“Vice Lords”). The gang controlled drug operations near Thomas Street and Keystone Avenue on the west side of Chicago. In late 2010, the government began investigating the gang's activities, which led to the indictment of two dozen people for various offenses, including racketeering conspiracies, firearm offenses, narcotics offenses, and murder. Among the indicted were the defendants in this case: Nathaniel Hoskins, Julian Martin, and Torrie King. Their two-week joint bench trial produced a vast record; here, we discuss only the small slice relevant to this appeal. First, trial testimony described the gang's hierarchy. The head of the Vice Lords was known as the “King.” The hierarchy also included other important positions such as the Don (second in command), the Prince (third in command), and Five Star Universal Elites (those who ranked above an average Vice Lords member). During the time of the alleged conspiracy, Martin served as the Prince and Hoskins was vying to be the King. Former *325 gang member Darrell Pitts and special agent William Desmond testified that the Vice Lords held meetings, controlled certain areas, and used punishments to maintain control over lower-level members. This was corroborated by intercepted gang member calls. And evidence showed that Hoskins, Martin, and King participated in these gang actions. Second, Vice Lords member and codefendant Raymond Myles testified that Martin provided him with a weapon and ordered him to kill a man named Tony Carr. Myles testified that he didn't know Carr and that Martin didn't explain why he wanted Carr killed. Myles ultimately didn't go through with the murder—he said that he got cold feet—and beat Carr with the gun instead. Third, the government presented evidence that Vice Lords member Andre Brown murdered a man named Marcus Hurley. The evidence included surveillance footage of the actual murder, along with circumstantial evidence indicating that it was committed in retaliation for an incident involving members of the Four Corner Hustlers (“Hustlers”), a gang with whom the Vice Lords had an ongoing feud. Recorded calls showed both that Hoskins, Martin, and King sought to shelter Brown following the murder and that Hoskins took credit for it. The government also introduced a post-arrest statement that Hoskins had given to Investigator Andrew Marquez, which included information about the murder. Marquez testified that Hoskins told him that he was with Martin, Brown, and others following the murder of Hurley and that Brown informed them that he had killed Hurley. Finally, evidence showed that Martin and King plotted to kill another Hustlers gang member, Brian Smith. Martin also recruited Myles to help with this job. But when Martin, King, and Myles arrived at the place where they planned to kill Smith, law enforcement—wise to the plot courtesy of previous wiretaps—arrived and forced them to abandon the plan. The defendants were each convicted on multiple counts. The ones relevant to this appeal are the following: the district court found all three defendants guilty of racketeering conspiracy and conspiracy with intent to distribute, Hoskins guilty of conspiracy to murder in aid of racketeering activity, and Martin and King each guilty of being an accessory after the fact to murder. It found Martin and King not guilty of attempting to murder Smith in furtherance of the conspiracy. After the bench trial but before sentencing, the government disclosed to the defendants reports from the Drug Enforcement Administration about D.J., an alleged former leader of the Vice Lords who became a confidential informant on the gang's activities. The materials showed, among other things, evidence of infighting within the Vice Lords. After the disclosure, Martin and Hoskins moved for a new trial, contending that the government's failure to timely disclose this information amounted to a Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).1 The district court denied the defendants' motions because it found the new evidence to be neither material nor exculpatory. The defendants proceeded to sentencing. King was sentenced first. Even though King and Martin had not been convicted of attempting to murder Smith, the court still had to determine whether to consider it in sentencing King. After a hearing, the court held that the attempt was not relevant *326 conduct because the government had failed to establish by a preponderance of the evidence that it had been undertaken to further the conspiracy. It gave King an above-guidelines sentence of 230 months. Hoskins was sentenced next. The district court sentenced him to life imprisonment, which was within the guidelines range. Martin was sentenced last. At his sentencing, the court made two decisions that matter here. First, the court reversed course and found that Martin and King's attempted murder of Smith had in fact been committed to further the conspiracy. The court acknowledged that this finding contradicted its earlier finding on the same issue in King's sentencing. It explained, however, that it had become convinced that its initial ruling was wrong and added that it probably would have given Martin the same sentence anyway. Second, the court concluded that the attempted murder of Carr was relevant conduct because it had been committed to further the conspiracy. Martin received a sentence of 310 months, which was below his guidelines range of 360 months to life. Before us, the defendants jointly make one argument: that the district court erred in denying them a new trial to remedy the alleged Brady violation. Martin makes two individual claims: (1) that the district court violated the Confrontation Clause and (2) that the district court erred at sentencing by finding that the attempted murders of Smith and Carr aimed to further the conspiracy. II. 1 The defendants contend that they are entitled to a new trial because the government failed to disclose the information about D.J., the confidential informant, before trial. See Brady, 373 U.S. 83, 83 S.Ct. 1194. We review a district court's denial of a motion for new trial based on a Brady claim for abuse of discretion. United States v. Walter, 870 F.3d 622, 629 (7th Cir. 2017). The government argues that King should have to prove plain error because he failed to move for a new trial below; King retorts that he had already filed his notice of appeal when the government provided the Brady material, so he couldn't have moved for a new trial. Because King's claim fails even under the less stringent abuse of discretion standard, we need not resolve this dispute. 2 To establish a Brady violation, a defendant must show that the evidence is “(1) favorable, (2) suppressed, and (3) material to the defense.” Id. (internal quotation marks omitted). Because the government does not contest that it suppressed the evidence, we consider only whether it was favorable and material. 3 4 5 6 Evidence is favorable if it is either exculpatory or impeaching. Turner v. United States, ––– U.S. ––––, 137 S.Ct. 1885, 1893, 198 L.Ed.2d 443 (2017). We have stated that “[e]vidence need only have ‘some weight’ or ‘tendency’ to be favorable to the defendant.” United States v. Ballard, 885 F.3d 500, 504 (7th Cir. 2018) (quoting Kyles v. Whitley, 514 U.S. 419, 451, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ). The defendants assert that because the new evidence showed infighting within the Vice Lords—such as one member ordering the shooting of another and a member switching his drug supplier to a rival gang—it demonstrates that no enterprise or conspiracy existed.2 Their argument *327 is grounded in the principles that individuals acting “independently and without coordination” do not constitute an enterprise under RICO, Boyle v. United States, 556 U.S. 938, 947 n.4, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), and that a conspiracy typically requires cooperative relationships seeking to achieve common goals, United States v. Townsend, 924 F.2d 1385, 1395 (7th Cir. 1991). Because the new evidence carries “some weight” in favor of the defendants on these points, they clear the “favorability” hurdle. 7 That leaves materiality. The standard for materiality is whether there is “a reasonable probability” that the outcome would have been different if the evidence had been disclosed. Walter, 870 F.3d at 630. The defendants contend that the new evidence would have allowed them to call DEA agents to testify about the constant infighting within the Vice Lords and about the fact that a confidential informant had led the Vice Lords for several years.3 They argue that this would have cast doubt on the government's efforts to prove an enterprise or conspiracy, which in turn would have “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. 8 But neither the evidence of infighting nor the fact of D.J.’s cooperation would have put the case in a different light. As for the evidence of infighting, the defendants already tried and failed to persuade the district court that infighting is inconsistent with the existence of an enterprise or conspiracy. For example, defense counsel asked one of the special agents during cross-examination whether individuals were “working for themselves ... [or had] their own agenda when they were out on the street.” The special agent answered that individuals sometimes had their own goals in mind. And the district court noted that the Vice Lords acted as a unit despite changes in membership and leadership—and even though “Hoskins was not always obeyed.” The belatedly disclosed evidence is simply more of the same, and cumulative evidence does not justify a new trial under Brady. United States v. Ervin, 540 F.3d 623, 631 (7th Cir. 2008). 9 As for D.J.’s cooperation, the presence of a turncoat—like the evidence of infighting—is not inconsistent with the existence of an enterprise or conspiracy. An enterprise need only have a “purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose.” Boyle, 556 U.S. at 946, 129 S.Ct. 2237. D.J.’s cooperation does not undermine confidence in the district court's conclusion that the Vice Lords satisfied this definition: the gang had a sustained hierarchy that persisted over a ten-year period and its members worked toward common objectives. The fact that someone within the gang reported on its hierarchy, members, and objectives bolsters rather than undercuts proof that the enterprise or conspiracy existed. 10 11 12 The defendants also claim that they could have used the new evidence to cross-examine and impeach Pitts and Myles about the gang infighting. We have explained before that newly discovered impeachment evidence is not ordinarily material. *328 United States v. Brown, 865 F.3d 566, 574 (7th Cir. 2017). Regardless, this evidence does not help the defendants. As an initial matter, the defendants don't identify any differences between it and the prior testimony of Pitts and Myles. Even if they could, however, the impeachment evidence is cumulative of what the district court already learned during the trial. Like substantive evidence, “impeachment evidence is not material if it is ‘merely cumulative.’ ” Socha v. Richardson, 874 F.3d 983, 989 (7th Cir. 2017) (quoting United States v. Dweck, 913 F.2d 365, 371 (7th Cir. 1990) ). The final and weakest piece of the Brady claim comes from Martin, who argues that he could have used the suppressed evidence from D.J. to impeach Carr and that impeaching Carr would have affected his sentence. According to Martin, the government's suppression deprived him of the opportunity to explain that Carr was part of a gang and that Faulkner wanted to take over his drug spot. This argument is a non-starter—the evidence is not exculpatory, much less material. In short, the district court did not abuse its discretion in concluding that the belatedly disclosed evidence failed to create a reasonable probability of a different result. III. Having disposed of the defendants' collective Brady claim, we now turn to Martin's two individual claims. We begin with his argument that the district court violated his Sixth Amendment right to confront the witnesses against him. After he was arrested, Hoskins gave a statement that incriminated both himself and Martin in the murder of Marcus Hurley, and Investigator Marquez related the contents of this statement at trial. Because Hoskins didn't testify at trial, Martin had no opportunity to cross-examine him. Martin argues that the introduction of Hoskins's statement therefore violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and that he is entitled to a new trial on the charge that he was an accessory after the fact to Hurley's murder. 13 14 The Confrontation Clause renders the confession of a non-testifying codefendant altogether inadmissible in a jury trial if it implicates the defendant. Bruton, 391 U.S. at 135–37, 88 S.Ct. 1620. This rule seeks to protect defendants from jurors who may be incapable of understanding or abiding by the instruction that they can consider the statement as evidence against one defendant but not the other. Martin, however, had a bench trial—and we have held that the blanket rule of Bruton “is simply inapplicable” in that context. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir. 1979). Because judges, unlike jurors, are skilled at distinguishing between permissible and impermissible uses of evidence, the rationale for Bruton does not apply when a court, rather than a jury, serves as the factfinder. Id.; see Rogers v. McMackin, 884 F.2d 252, 257 (6th Cir. 1989) (“To apply Bruton to bench trials would be to conclude that judges, like jurors, may well be incapable of separating evidence properly admitted against one defendant from evidence admitted against another.”). 15 To be sure, judges are not infallible; sometimes, they make mistakes. The Supreme Court addressed that circumstance in Lee v. Illinois, in which it held that a judge's reliance on a non-testifying codefendant's pretrial confession as evidence against the defendant violated the Confrontation Clause. 476 U.S. 530, 542–43, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). But despite Martin's argument to the contrary, Lee does not render Bruton applicable to bench trials. Rather than presuming that judges suffer from the same incapacity as jurors, Lee simply enforces the bedrock *329 rule that absent an opportunity for cross-examination, the Confrontation Clause prohibits the use of out-of-court testimony as substantive evidence against the accused. See Johnson v. Tennis, 549 F.3d 296, 300–01 (3rd Cir. 2008) (rejecting “the notion that Lee v. Illinois expanded the Bruton doctrine to encompass bench trials” (citation omitted) ); Rogers, 884 F.2d at 257 (“We do not agree that Lee made Bruton applicable to bench trials.”). Lee, which deals with judges, rather than Bruton, which deals with juries, controls. The question, then, is whether the district court relied on Hoskins's unexamined confession to find him guilty of being an accessory after the fact to murder. Martin says that it did, but the record doesn't support that assertion. Before Marquez's testimony, the district court acknowledged that it could not use those statements against Martin because Hoskins did not testify. And when it found Martin guilty of this charge, the court stated: The evidence ... [is] the photographs of [Martin and King] with Mr. Brown in the days after the murder. And, more important, the tapes, where both admit they are hiding him and, in Martin's case, helping Brown change his appearance. Martin also paid for his room at the Red Roof Inn.... I'll also add that both of them were with Brown right after the murder, within an hour of it, where Mr. Brown has suddenly changed his clothes. So all of this shows to me, beyond a reasonable doubt, that they knew why they were hiding Mr. Brown. Trial Tr. 1409–10. This reasoning reveals that the district court relied on photographs, tapes, testimony from officers, and other circumstantial evidence. Because the district court did not use Hoskins's pretrial confession against Martin, it did not violate Martin's confrontation right. And because the district court did not rely on Hoskins's statement in finding Martin guilty, Martin's secondary argument—that Hoskins's statement was unreliable—similarly goes nowhere. IV. 16 17 Martin also contends that the district court clearly erred by treating the attempted murders of Smith and Carr as relevant conduct at sentencing. Acquitted or uncharged offenses constitute relevant conduct if they “occurred during the commission of the offense of conviction.” U.S.S.G. § 1B1.3(a)(1). They must be proven by a preponderance of the evidence, see United States v. Waltower, 643 F.3d 572, 574 (7th Cir. 2011), and we review a district court's finding regarding relevant conduct for clear error, United States v. Salem, 597 F.3d 877, 884 (7th Cir. 2010). A. We start with the attempted murder of Smith. At King's sentencing, the district court concluded that the government had not proven by a preponderance of the evidence that the attempted murder of Smith was committed in furtherance of the conspiracy. But at Martin's sentencing several months later, it reached the opposite conclusion, explaining that it had erred at King's sentencing. 18 19 Martin says that the court clearly erred because its factual finding at his sentencing directly contradicted its finding at King's sentencing. See United States v. Barnes, 602 F.3d 790, 797 (7th Cir. 2010) (“Without any justification for why one co-conspirator is responsible for a greater quantity of drugs than his fellow co-conspirators, such a discrepancy in factual findings is clearly erroneous.”). We stress that the court's obligation to avoid conflicting findings does not require it to adhere to a previous mistake; so long as it adequately explains why it was wrong in *330 one sentencing but right in the other, it can rectify the error. See United States v. Block, 705 F.3d 755, 761–62 (7th Cir.2013) (“We never held that trial courts cannot consider new evidence in sentencing a defendant after making an earlier drug quantity determination for his co-conspirator.”). The court did so here. It explained that it had incorrectly analyzed the attempted murder at King's sentencing by asking whether the attempt was “logical” rather than whether it aimed to further the conspiracy. Under the correct analysis, the result changed. Martin had discussed or hinted at the attempted murder—both before and after it happened—on at least four phone calls with other members of the Vice Lords. For example, in one recording, Martin explained the situation to fellow member Kenyatta McLaurin. He told McLaurin that the murder was “some shit we [the Vice Lords] had set up.” What's more, Smith was a former member of the Hustlers gang—a gang engaged in an ongoing and deadly feud with the Vice Lords. The court held that these pieces of evidence established by a preponderance standard that Martin attempted to murder Smith to further the conspiracy. That conclusion isn't clearly erroneous. 20 21 22 Martin lodges one last attack on this aspect of his sentence: he contends that even if the facts support the district court's finding, the disparity between his sentence and King's renders his sentence substantively unreasonable under 18 U.S.C. § 3553(a)(6). We review the reasonableness of a defendant's sentence for abuse of discretion. United States v. Harris, 791 F.3d 772, 782 (7th Cir. 2015). Reasonableness under § 3553(a)(6) depends on, among other things, “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” When it performs that analysis, a district court may—“if it wishes”—consider sentencing disparities between two codefendants. United States v. Solomon, 892 F.3d 273, 278 (7th Cir. 2018). Because, however, the sentencing guidelines derive from national patterns, we have also held that a properly calculated guidelines recommendation necessarily considers the “consistency between similarly situated defendants.” United States v. Grigsby, 692 F.3d 778, 792 (7th Cir. 2012). In this case, the district court properly calculated Martin's sentence, the sentence was below the guidelines range, and the district court provided sufficient reasons for the disparity between Martin's and King's sentences by admitting error. Thus, it was not substantively unreasonable. See United States v. Trudeau, 812 F.3d 578, 594 (7th Cir. 2016) (asserting that “[a] below-guidelines sentence will almost never be unreasonable.”); United States v. Shamah, 624 F.3d 449, 460 (7th Cir. 2010) (“A within guidelines sentence necessarily gives weight and consideration to avoiding unwarranted sentencing disparities.”). B. 23 Martin also argues that the district court clearly erred in treating the attempted murder of Carr as relevant conduct at sentencing. We disagree. Evidence showed that the attempted murder was committed to further the conspiracy. First, Myles testified at trial that Martin gave him a gun and asked him to kill Carr. Second, both Myles and Martin were members of the Vice Lords. And third, Martin was Myles's superior within the gang's hierarchy. These facts support the district court's conclusion that attacking Carr was gang-related. In addition, former Vice Lords leader Faulkner had previously made an attempt on Carr's life so that he could take over Carr's drug spot at Division and Pulaski. In fact, Faulkner was *331 facing charges related to an attempt on Carr's life at the time of the second attempted murder (and Carr was planning to testify against him). Carr was no stranger to the Vice Lords. Given this evidence, we do not think that the district court clearly erred in concluding that attempting to murder Carr aimed to further the conspiracy. Compare United States v. Garcia, 754 F.3d 460, 472 (7th Cir. 2014) (concluding that violence aided racketeering activity because the order “went through [the gang's] chain of command[,] it was implemented by subordinates,” and it followed the gang's practices), with United States v. Thai, 29 F.3d 785, 818 (2d Cir. 1994) (concluding that violence did not aid racketeering activity when there was “no evidence from which the jury could conclude that [defendant's] motive ... was other than purely mercenary”).

Barrett

majority

Nathaniel Hoskins, Julian Martin, and Torrie King were members of the Imperial Insane Vice Lords, a gang in Chicago. Following a multi-year investigation into the gang's activities, they were prosecuted together in a bench trial and convicted on several counts. After trial and before sentencing, the government disclosed evidence that it had obtained from a confidential informant. The district court held that the late disclosure did not violate because the suppressed evidence was neither exculpatory nor material. All three defendants appeal that ruling. In addition to the joint Brady claim, Martin raises two issues that are unique to him: he argues that the district court violated the Confrontation Clause when it admitted a statement made by a non-testifying codefendant and that the district court made several errors when it imposed his sentence. Neither the defendants' joint claim nor either of Martin's individual claims warrants reversing the district court. I. This case arises from the operations of the Chicago gang known as the Imperial Insane Vice Lords (“Vice Lords”). The gang controlled drug operations near Thomas Street and Keystone Avenue on the west side of Chicago. In late 2010, the government began investigating the gang's activities, which led to the indictment of two dozen people for various offenses, including racketeering conspiracies, firearm offenses, narcotics offenses, and murder. Among the indicted were the defendants in this case: Nathaniel Hoskins, Julian Martin, and Torrie King. Their two-week joint bench trial produced a vast record; here, we discuss only the small slice relevant to this appeal. First, trial testimony described the gang's hierarchy. The head of the Vice Lords was known as the “King.” The hierarchy also included other important positions such as the Don (second in command), the Prince (third in command), and Five Star Universal Elites (those who ranked above an average Vice Lords member). During the time of the alleged conspiracy, Martin served as the Prince and Hoskins was vying to be the King. Former *325 gang member Darrell Pitts and special agent William Desmond testified that the Vice Lords held meetings, controlled certain areas, and used punishments to maintain control over lower-level members. This was corroborated by intercepted gang member calls. And evidence showed that Hoskins, Martin, and King participated in these gang actions. Second, Vice Lords member and codefendant Raymond Myles testified that Martin provided him with a weapon and ordered him to kill a man named Tony Carr. Myles testified that he didn't know Carr and that Martin didn't explain why he wanted Carr killed. Myles ultimately didn't go through with the murder—he said that he got cold feet—and beat Carr with the gun instead. Third, the government presented evidence that Vice Lords member Andre Brown murdered a man named Marcus Hurley. The evidence included surveillance footage of the actual murder, along with circumstantial evidence indicating that it was committed in retaliation for an incident involving members of the Four Corner Hustlers (“Hustlers”), a gang with whom the Vice Lords had an ongoing feud. Recorded calls showed both that Hoskins, Martin, and King sought to shelter Brown following the murder and that Hoskins took credit for it. The government also introduced a post-arrest statement that Hoskins had given to Investigator Andrew Marquez, which included information about the murder. Marquez testified that Hoskins told him that he was with Martin, Brown, and others following the murder of Hurley and that Brown informed them that he had killed Hurley. Finally, evidence showed that Martin and King plotted to kill another Hustlers gang member, Brian Smith. Martin also recruited Myles to help with this job. But when Martin, King, and Myles arrived at the place where they planned to kill Smith, law enforcement—wise to the plot courtesy of previous wiretaps—arrived and forced them to abandon the plan. The defendants were each convicted on multiple counts. The ones relevant to this appeal are the following: the district court found all three defendants guilty of racketeering conspiracy and conspiracy with intent to distribute, Hoskins guilty of conspiracy to murder in aid of racketeering activity, and Martin and King each guilty of being an accessory after the fact to murder. It found Martin and King not guilty of attempting to murder Smith in furtherance of the conspiracy. After the bench trial but before sentencing, the government disclosed to the defendants reports from the Drug Enforcement Administration about D.J., an alleged former leader of the Vice Lords who became a confidential informant on the gang's activities. The materials showed, among other things, evidence of infighting within the Vice Lords. After the disclosure, Martin and Hoskins moved for a new trial, contending that the government's failure to timely disclose this information amounted to a Brady violation. See1 The district court denied the defendants' motions because it found the new evidence to be neither material nor exculpatory. The defendants proceeded to sentencing. King was sentenced first. Even though King and Martin had not been convicted of attempting to murder Smith, the court still had to determine whether to consider it in sentencing King. After a hearing, the court held that the attempt was not relevant *326 conduct because the government had failed to establish by a preponderance of the evidence that it had been undertaken to further the conspiracy. It gave King an above-guidelines sentence of 230 months. Hoskins was sentenced next. The district court sentenced him to life imprisonment, which was within the guidelines range. Martin was sentenced last. At his sentencing, the court made two decisions that matter here. First, the court reversed course and found that Martin and King's attempted murder of Smith had in fact been committed to further the conspiracy. The court acknowledged that this finding contradicted its earlier finding on the same issue in King's sentencing. It explained, however, that it had become convinced that its initial ruling was wrong and added that it probably would have given Martin the same sentence anyway. Second, the court concluded that the attempted murder of Carr was relevant conduct because it had been committed to further the conspiracy. Martin received a sentence of 310 months, which was below his guidelines range of 360 months to life. Before us, the defendants jointly make one argument: that the district court erred in denying them a new trial to remedy the alleged Brady violation. Martin makes two individual claims: (1) that the district court violated the Confrontation Clause and (2) that the district court erred at sentencing by finding that the attempted murders of Smith and Carr aimed to further the conspiracy. II. 1 The defendants contend that they are entitled to a new trial because the government failed to disclose the information about D.J., the confidential informant, before trial. See Brady, The government argues that King should have to prove plain error because he failed to move for a new trial below; King retorts that he had already filed his notice of appeal when the government provided the Brady material, so he couldn't have moved for a new trial. Because King's claim fails even under the less stringent abuse of discretion standard, we need not resolve this dispute. 2 To establish a Brady violation, a defendant must show that the evidence is “(1) favorable, (2) suppressed, and (3) material to the defense.” Because the government does not contest that it suppressed the evidence, we consider only whether it was favorable and material. 3 4 5 6 Evidence is favorable if it is either exculpatory or impeaching. We have stated that “[e]vidence need only have ‘some weight’ or ‘tendency’ to be favorable to the defendant.” United The defendants assert that because the new evidence showed infighting within the Vice Lords—such as one member ordering the shooting of another and a member switching his drug supplier to a rival gang—it demonstrates that no enterprise or conspiracy existed.2 Their argument *327 is grounded in the principles that individuals acting “independently and without coordination” do not constitute an enterprise under RICO, and that a conspiracy typically requires cooperative relationships seeking to achieve common goals, United Because the new evidence carries “some weight” in favor of the defendants on these points, they clear the “favorability” hurdle. 7 That leaves materiality. The standard for materiality is whether there is “a reasonable probability” that the outcome would have been different if the evidence had been disclosed. The defendants contend that the new evidence would have allowed them to call DEA agents to testify about the constant infighting within the Vice Lords and about the fact that a confidential informant had led the Vice Lords for several years.3 They argue that this would have cast doubt on the government's efforts to prove an enterprise or conspiracy, which in turn would have “put the whole case in such a different light as to undermine confidence in the verdict.” 8 But neither the evidence of infighting nor the fact of D.J.’s cooperation would have put the case in a different light. As for the evidence of infighting, the defendants already tried and failed to persuade the district court that infighting is inconsistent with the existence of an enterprise or conspiracy. For example, defense counsel asked one of the special agents during cross-examination whether individuals were “working for themselves [or had] their own agenda when they were out on the street.” The special agent answered that individuals sometimes had their own goals in mind. And the district court noted that the Vice Lords acted as a unit despite changes in membership and leadership—and even though “Hoskins was not always obeyed.” The belatedly disclosed evidence is simply more of the same, and cumulative evidence does not justify a new trial under Brady. United 9 As for D.J.’s cooperation, the presence of a turncoat—like the evidence of infighting—is not inconsistent with the existence of an enterprise or conspiracy. An enterprise need only have a “purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose.” Boyle, D.J.’s cooperation does not undermine confidence in the district court's conclusion that the Vice Lords satisfied this definition: the gang had a sustained hierarchy that persisted over a ten-year period and its members worked toward common objectives. The fact that someone within the gang reported on its hierarchy, members, and objectives bolsters rather than undercuts proof that the enterprise or conspiracy existed. 10 11 12 The defendants also claim that they could have used the new evidence to cross-examine and impeach Pitts and Myles about the gang infighting. We have explained before that newly discovered impeachment evidence is not ordinarily material. *328 United Regardless, this evidence does not help the defendants. As an initial matter, the defendants don't identify any differences between it and the prior testimony of Pitts and Myles. Even if they could, however, the impeachment evidence is cumulative of what the district court already learned during the trial. Like substantive evidence, “impeachment evidence is not material if it is ‘merely cumulative.’ ” The final and weakest piece of the Brady claim comes from Martin, who argues that he could have used the suppressed evidence from D.J. to impeach Carr and that impeaching Carr would have affected his sentence. According to Martin, the government's suppression deprived him of the opportunity to explain that Carr was part of a gang and that Faulkner wanted to take over his drug spot. This argument is a non-starter—the evidence is not exculpatory, much less material. In short, the district court did not abuse its discretion in concluding that the belatedly disclosed evidence failed to create a reasonable probability of a different result. III. Having disposed of the defendants' collective Brady claim, we now turn to Martin's two individual claims. We begin with his argument that the district court violated his Sixth Amendment right to confront the witnesses against him. After he was arrested, Hoskins gave a statement that incriminated both himself and Martin in the murder of Marcus Hurley, and Investigator Marquez related the contents of this statement at trial. Because Hoskins didn't testify at trial, Martin had no opportunity to cross-examine him. Martin argues that the introduction of Hoskins's statement therefore violated and that he is entitled to a new trial on the charge that he was an accessory after the fact to Hurley's murder. 13 14 The Confrontation Clause renders the confession of a non-testifying codefendant altogether inadmissible in a jury trial if it implicates the defendant. –37, This rule seeks to protect defendants from jurors who may be incapable of understanding or abiding by the instruction that they can consider the statement as evidence against one defendant but not the other. Martin, however, had a bench trial—and we have held that the blanket rule of “is simply inapplicable” in that context. Because judges, unlike jurors, are skilled at distinguishing between permissible and impermissible uses of evidence, the rationale for does not apply when a court, rather than a jury, serves as the factfinder. ; see (6th Cir. 1) (“To apply to bench trials would be to conclude that judges, like jurors, may well be incapable of separating evidence properly admitted against one defendant from evidence admitted against another.”). 15 To be sure, judges are not infallible; sometimes, they make mistakes. The Supreme Court addressed that circumstance in Lee v. Illinois, in which it held that a judge's reliance on a non-testifying codefendant's pretrial confession as evidence against the defendant violated the Confrontation Clause. But despite Martin's argument to the contrary, Lee does not render applicable to bench trials. Rather than presuming that judges suffer from the same incapacity as jurors, Lee simply enforces the bedrock *329 rule that absent an opportunity for cross-examination, the Confrontation Clause prohibits the use of out-of-court testimony as substantive evidence against the accused. See (rejecting “the notion that Lee v. Illinois expanded the doctrine to encompass bench trials” (citation omitted) ); F.2d at (“We do not agree that Lee made applicable to bench trials.”). Lee, which deals with judges, rather than which deals with juries, controls. The question, then, is whether the district court relied on Hoskins's unexamined confession to find him guilty of being an accessory after the fact to murder. Martin says that it did, but the record doesn't support that assertion. Before Marquez's testimony, the district court acknowledged that it could not use those statements against Martin because Hoskins did not testify. And when it found Martin guilty of this charge, the court stated: The evidence [is] the photographs of [Martin and King] with Mr. Brown in the days after the murder. And, more important, the tapes, where both admit they are hiding him and, in Martin's case, helping Brown change his appearance. Martin also paid for his room at the Red Roof Inn. I'll also add that both of them were with Brown right after the murder, within an hour of it, where Mr. Brown has suddenly changed his clothes. So all of this shows to me, beyond a reasonable doubt, that they knew why they were hiding Mr. Brown. Trial Tr. 1409–10. This reasoning reveals that the district court relied on photographs, tapes, testimony from officers, and other circumstantial evidence. Because the district court did not use Hoskins's pretrial confession against Martin, it did not violate Martin's confrontation right. And because the district court did not rely on Hoskins's statement in finding Martin guilty, Martin's secondary argument—that Hoskins's statement was unreliable—similarly goes nowhere. IV. 16 17 Martin also contends that the district court clearly erred by treating the attempted murders of Smith and Carr as relevant conduct at sentencing. Acquitted or uncharged offenses constitute relevant conduct if they “occurred during the commission of the offense of conviction.” U.S.S.G. 1B1.3(a)(1). They must be proven by a preponderance of the evidence, see United and we review a district court's finding regarding relevant conduct for clear error, United A. We start with the attempted murder of Smith. At King's sentencing, the district court concluded that the government had not proven by a preponderance of the evidence that the attempted murder of Smith was committed in furtherance of the conspiracy. But at Martin's sentencing several months later, it reached the opposite conclusion, explaining that it had erred at King's sentencing. 18 19 Martin says that the court clearly erred because its factual finding at his sentencing directly contradicted its finding at King's sentencing. See United We stress that the court's obligation to avoid conflicting findings does not require it to adhere to a previous mistake; so long as it adequately explains why it was wrong in *330 one sentencing but right in the other, it can rectify the error. See United 761–62 (7th Cir.2013) (“We never held that trial courts cannot consider new evidence in sentencing a defendant after making an earlier drug quantity determination for his co-conspirator.”). The court did so here. It explained that it had incorrectly analyzed the attempted murder at King's sentencing by asking whether the attempt was “logical” rather than whether it aimed to further the conspiracy. Under the correct analysis, the result changed. Martin had discussed or hinted at the attempted murder—both before and after it happened—on at least four phone calls with other members of the Vice Lords. For example, in one recording, Martin explained the situation to fellow member Kenyatta McLaurin. He told McLaurin that the murder was “some shit we [the Vice Lords] had set up.” What's more, Smith was a former member of the Hustlers gang—a gang engaged in an ongoing and deadly feud with the Vice Lords. The court held that these pieces of evidence established by a preponderance standard that Martin attempted to murder Smith to further the conspiracy. That conclusion isn't clearly erroneous. 20 21 22 Martin lodges one last attack on this aspect of his sentence: he contends that even if the facts support the district court's finding, the disparity between his sentence and King's renders his sentence substantively unreasonable under 18 U.S.C. 3553(a)(6). We review the reasonableness of a defendant's sentence for abuse of discretion. United Reasonableness under 3553(a)(6) depends on, among other things, “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” When it performs that analysis, a district court may—“if it wishes”—consider sentencing disparities between two codefendants. United Because, however, the sentencing guidelines derive from national patterns, we have also held that a properly calculated guidelines recommendation necessarily considers the “consistency between similarly situated defendants.” United In this case, the district court properly calculated Martin's sentence, the sentence was below the guidelines range, and the district court provided sufficient reasons for the disparity between Martin's and King's sentences by admitting error. Thus, it was not substantively unreasonable. See United ; United B. 23 Martin also argues that the district court clearly erred in treating the attempted murder of Carr as relevant conduct at sentencing. We disagree. Evidence showed that the attempted murder was committed to further the conspiracy. First, Myles testified at trial that Martin gave him a gun and asked him to kill Carr. Second, both Myles and Martin were members of the Vice Lords. And third, Martin was Myles's superior within the gang's hierarchy. These facts support the district court's conclusion that attacking Carr was gang-related. In addition, former Vice Lords leader Faulkner had previously made an attempt on Carr's life so that he could take over Carr's drug spot at Division and Pulaski. In fact, Faulkner was *331 facing charges related to an attempt on Carr's life at the time of the second attempted murder (and Carr was planning to testify against him). Carr was no stranger to the Vice Lords. Given this evidence, we do not think that the district court clearly erred in concluding that attempting to murder Carr aimed to further the conspiracy. Compare United 754 F.3d with United

United States v. Lee

Kash Lee appeals the sentence he received when his supervised release was revoked. He faults the district court for not addressing what he now characterizes as his principal argument in mitigation: that a longer sentence would unjustifiably subject him to harsher treatment than similarly situated defendants. But Lee did not make this argument in the district court, so the district court had no obligation to address it. Lee also complains that the district court failed to fill out a form stating the reasons for his sentence. It is not clear that a district court has an obligation to fill out such a form when revoking supervised release. Even if it does, however, Lee suffered no prejudice *872 from the district court’s failure to complete this administrative task. I. Kash Lee was sentenced to life imprisonment and ten years of supervised release for several drug-trafficking convictions. His term of imprisonment was reduced to 312 months in prison in return for his substantial assistance to the government, and it was later reduced still further—to 112 months—because of a retroactive change in the Sentencing Guidelines. After he was discharged from prison, he moved to Iowa, where he began serving his term of supervised release. But Lee did not adopt a law-abiding lifestyle. He violated conditions of his supervised release by missing numerous scheduled drug tests and meetings with his probation officer. And more seriously, he battered his girlfriend, Delisa Roland, by chasing her down a flight of stairs and repeatedly kicking her after she fell. Lee fled, but he was ultimately arrested. He then called several friends and relatives from jail, cajoling them to get Roland to change her story. Roland testified anyway, and the district court found that Lee had violated the conditions of his supervised release by battering her and by missing required appointments with his probation officer. At sentencing, the government argued for three years’ imprisonment, while Lee argued for no more than a year and a day. He made several arguments in favor of the shorter sentence, but only one is at issue in this appeal: that using the federal revocation proceedings to punish him for the battery would be “the tail wagging the dog.” Lee pointed out that the battery was “a state court misdemeanor in Scott County,” and a misdemeanor “under Iowa law can’t get more than a year.” If the matter were “handled in the state court system,” Lee argued, the court “probably would have made both parties go to counseling, get treatment to try to repair the family unit.” Instead, the government had gone “full-bore litigation for a Grade C violation, a misdemeanor,” and was seeking three years’ imprisonment even though the Guidelines range was eight to fourteen months. The district court sentenced Roland to 30 months’ imprisonment and six years of supervised release. It justified that sentence by recounting Lee’s numerous violations of supervised release leading up to his attack on Roland, by crediting Roland’s account of Lee’s battery, and by acknowledging the need to deter further criminal conduct and protect the public. Lee appeals that sentence. II. 1 2 3 Under our decision in United States v. Cunningham, a district court imposing a sentence must address a criminal defendant’s “principal” arguments in mitigation unless they are “so weak as not to merit discussion.” 429 F.3d 673, 679 (7th Cir. 2005); see also United States v. Davis, 764 F.3d 690, 694 (7th Cir. 2014); Rita v. United States, 551 U.S. 338, 357–58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”); cf. Chavez-Meza v. United States, ––– U.S. ––––, 138 S.Ct. 1959, 1965, ––– L.Ed.2d –––– (2018) (acknowledging that the sentencing judge should “make[ ] clear that he or she has considered the parties’ arguments”). To trigger that requirement, the defendant’s argument must be “fully developed” and “supported by a compelling factual basis.” United States v. Jackson, 547 F.3d 786, 795 (7th Cir. 2008). And it must be one of the defendant’s “principal” arguments; *873 a district court need not offer a reason for rejecting every one of the defendant’s contentions. United States v. Martinez, 650 F.3d 667, 672 (7th Cir. 2011). 4 Lee claims that the district court violated Cunningham by ignoring one of his principal arguments in mitigation. When it imposes a sentence, the district court must consider a set of statutory factors, including “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6) (initial sentence) & 18 U.S.C. § 3583(e) (revocation of supervised release). Lee characterizes his discussion of the penalties for battery under Iowa law as an argument about this sentencing factor, and he complains that the district court did not respond to it in articulating the basis for Lee’s sentence. Invoking Cunningham, he insists that we must remand his sentence with instructions that the court put its reasons for rejecting Lee’s “unwarranted disparities” argument on the record. The problem is that Lee did not make an “unwarranted disparities” argument, so he did not trigger the district court’s duty under Cunningham. At sentencing, Lee contended that he would face only a one-year sentence if he were being prosecuted in state court for domestic battery; he also asserted (apparently without evidence) that such a prosecution would “probably” just result in his being sent to counseling. This is certainly an argument that the worst of his offenses was not serious enough to justify a higher sentence. But it is not an argument that an above-Guidelines sentence would create a disparity “among defendants with similar records who have been found guilty of similar conduct,” and that such a disparity would be unwarranted. United States v. Durham, 645 F.3d 883, 897 (7th Cir. 2011). Lee did not identify any defendant with a similar record (for example, one with a conviction for drug trafficking) found guilty of similar conduct (for example, violating multiple conditions of supervised release, including by committing a domestic battery), much less explain why a comparatively higher sentence was unwarranted in his case. See United States v. Anaya-Aguirre, 704 F.3d 514, 518 (7th Cir. 2013) (holding that a sentencing court need not address an unwarranted-disparities argument unless the defendant provides a “sufficient evidentiary showing” that his situation is comparable to defendants who received a lower sentence). Because Lee did not make any of these points, he did not come close to presenting a developed, meritorious argument that the proposed sentence would create unwarranted disparities between him and similarly situated defendants. And the district court had no obligation to address an argument that Lee did not make. III. 5 Lee next asks that we perform a limited remand to require the district court to file a written statement of reasons. When a district court sentences a criminal defendant, it must announce “the reasons for its imposition of the particular sentence” in open court, including, if applicable, an explanation of why the district court chose a sentence outside of the range recommended by the Sentencing Guidelines. 18 U.S.C. § 3553(c). Except for the Cunningham challenge that we rejected above, Lee does not allege that the district court failed to orally explain its reasons for sentencing Lee to an above-Guidelines sentence. But the district court did not fill out a “statement of reasons” form that committed those reasons to writing. 18 U.S.C. § 3553(c)(2). Lee asks us to remand his case so that the district court can complete the form. It is unclear whether the statute requires the form when a court revokes supervised *874 release. The Eleventh Circuit has said that it does, United States v. Parks, 823 F.3d 990, 993–94 (11th Cir. 2016); the Eighth Circuit has reached the contrary conclusion, albeit under a prior version of the statute, United States v. Cotton, 399 F.3d 913, 915–16 (8th Cir. 2005). We do not need to decide that issue, however, because any error is harmless. 6 7 8 Lee has suffered no prejudice from the lack of a written statement of reasons, because the district court’s oral explanation was sufficient. A district court must explain its sentence so that a reviewing court can evaluate the adequacy of its rationale. See Chavez-Meza, 138 S.Ct. at 1965 (“If the court of appeals considers an explanation inadequate in a particular case, it can send the case back to the district court for a more complete explanation.”). But it is the explanation that matters, not the form in which it appears. United States v. Baker, 445 F.3d 987, 991 (7th Cir. 2006) (“[It] is irrelevant whether [the court’s] rationale is contained in a written statement or, alternatively, was articulated orally at the sentencing hearing.”). And Lee is complaining about the absence of the document, not the adequacy of the explanation. We agree with our sister circuits: when the oral statement of reasons is sufficient, we will not remand simply because the written statement is lacking. United States v. Jackson, 848 F.3d 460, 465 (D.C. Cir. 2017) (collecting cases); United States v. Vazquez-Martinez, 812 F.3d 18, 25–26 (1st Cir. 2016). 9 This approach makes sense, because the written statement of reasons is not a procedural safeguard for the defendant; rather, it serves a record-keeping function for the Sentencing Commission. Jackson, 848 F.3d at 463–64. Before a 2010 amendment, 18 U.S.C. § 3553(c)(2) required a sentencing court to state with specificity its reasons for giving a non-Guidelines sentence in “the written order of judgment and commitment.” Congress eliminated that requirement in 2010, amending the statute to require that a court instead include its explanation in “a statement of reasons form issued under section 994(w)(1)(B) of title 28.” Pub. L. No. 111-174, § 4, 124 Stat. 1216, 1216 (2010). That section, in turn, obliges the Chief Judge of each district to ensure that the courts of that district send information to the Commission relating to each sentencing. Courts send the Commission data about the sentence imposed, the offense, and the demographic information of the offender; they also relay documents relating to the conviction and sentence, including a “written statement of reasons” that “include[s] the reason for any departure from the otherwise applicable guideline range.” 28 U.S.C. § 994(w)(1)(B). That statement must be provided on a form designed by the Commission. Id. The Commission ultimately analyzes the aggregated reports and makes recommendations to Congress based on its analysis. 28 U.S.C. § 994(w)(3). The statutory scheme does not contemplate that the reports to the Commission will play any role in the individual cases that generate them; instead, the reports are for the Commission to use in the course of its work. In short, the written statement of reasons appears to serve principally, if not exclusively, an administrative purpose unrelated to the rights of the defendant. See Jackson, 848 F.3d at 464; Vazquez-Martinez, 812 F.3d at 25–26; United States v. Shakbazyan, 841 F.3d 286, 292 (5th Cir. 2016). 10 11 Because the form is a means of collecting data for the Commission, a defendant ordinarily suffers no harm when a sufficiently explained sentence fails to generate a written statement of reasons.1 *875 True, the requirements of § 994(w)(1)(B) are designed to benefit criminal defendants generally by helping the Commission improve sentencing practices. But a criminal defendant is not harmed by the omission of his sentence from the aggregate data the Commission uses to analyze the system. Absent identifiable prejudice to the defendant, a district court’s failure to file the form is not itself grounds for vacating and remanding the sentence to the district court.

Barrett

majority

Kash Lee appeals the sentence he received when his supervised release was revoked. He faults the district court for not addressing what he now characterizes as his principal argument in mitigation: that a longer sentence would unjustifiably subject him to harsher treatment than similarly situated defendants. But Lee did not make this argument in the district court, so the district court had no obligation to address it. Lee also complains that the district court failed to fill out a form stating the reasons for his sentence. It is not clear that a district court has an obligation to fill out such a form when revoking supervised release. Even if it does, however, Lee suffered no prejudice *872 from the district court’s failure to complete this administrative task. I. Kash Lee was sentenced to life imprisonment and ten years of supervised release for several drug-trafficking convictions. His term of imprisonment was reduced to 312 months in prison in return for his substantial assistance to the government, and it was later reduced still further—to 112 months—because of a retroactive change in the Sentencing Guidelines. After he was discharged from prison, he moved to Iowa, where he began serving his term of supervised release. But Lee did not adopt a law-abiding lifestyle. He violated conditions of his supervised release by missing numerous scheduled drug tests and meetings with his probation officer. And more seriously, he battered his girlfriend, Delisa Roland, by chasing her down a flight of stairs and repeatedly kicking her after she fell. Lee fled, but he was ultimately arrested. He then called several friends and relatives from jail, cajoling them to get Roland to change her story. Roland testified anyway, and the district court found that Lee had violated the conditions of his supervised release by battering her and by missing required appointments with his probation officer. At sentencing, the government argued for three years’ imprisonment, while Lee argued for no more than a year and a day. He made several arguments in favor of the shorter sentence, but only one is at issue in this appeal: that using the federal revocation proceedings to punish him for the battery would be “the tail wagging the dog.” Lee pointed out that the battery was “a state court misdemeanor in Scott County,” and a misdemeanor “under Iowa law can’t get more than a year.” If the matter were “handled in the state court system,” Lee argued, the court “probably would have made both parties go to counseling, get treatment to try to repair the family unit.” Instead, the government had gone “full-bore litigation for a Grade C violation, a misdemeanor,” and was seeking three years’ imprisonment even though the Guidelines range was eight to fourteen months. The district court sentenced Roland to 30 months’ imprisonment and six years of supervised release. It justified that sentence by recounting Lee’s numerous violations of supervised release leading up to his attack on Roland, by crediting Roland’s account of Lee’s battery, and by acknowledging the need to deter further criminal conduct and protect the public. Lee appeals that sentence. II. 1 2 3 Under our decision in United States v. Cunningham, a district court imposing a sentence must address a criminal defendant’s “principal” arguments in mitigation unless they are “so weak as not to merit discussion.” ; see also United ; ; cf. To trigger that requirement, the defendant’s argument must be “fully developed” and “supported by a compelling factual basis.” United And it must be one of the defendant’s “principal” arguments; *873 a district court need not offer a reason for rejecting every one of the defendant’s contentions. United 4 Lee claims that the district court violated Cunningham by ignoring one of his principal arguments in mitigation. When it imposes a sentence, the district court must consider a set of statutory factors, including “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” See (a)(6) & (e) Lee characterizes his discussion of the penalties for battery under Iowa law as an argument about this sentencing factor, and he complains that the district court did not respond to it in articulating the basis for Lee’s sentence. Invoking Cunningham, he insists that we must remand his sentence with instructions that the court put its reasons for rejecting Lee’s “unwarranted disparities” argument on the record. The problem is that Lee did not make an “unwarranted disparities” argument, so he did not trigger the district court’s duty under Cunningham. At sentencing, Lee contended that he would face only a one-year sentence if he were being prosecuted in state court for domestic battery; he also asserted (apparently without evidence) that such a prosecution would “probably” just result in his being sent to counseling. This is certainly an argument that the worst of his offenses was not serious enough to justify a higher sentence. But it is not an argument that an above-Guidelines sentence would create a disparity “among defendants with similar records who have been found guilty of similar conduct,” and that such a disparity would be unwarranted. United Lee did not identify any defendant with a similar record (for example, one with a conviction for drug trafficking) found guilty of similar conduct (for example, violating multiple conditions of supervised release, including by committing a domestic battery), much less explain why a comparatively higher sentence was unwarranted in his case. See United Because Lee did not make any of these points, he did not come close to presenting a developed, meritorious argument that the proposed sentence would create unwarranted disparities between him and similarly situated defendants. And the district court had no obligation to address an argument that Lee did not make. III. 5 Lee next asks that we perform a limited remand to require the district court to file a written statement of reasons. When a district court sentences a criminal defendant, it must announce “the reasons for its imposition of the particular sentence” in open court, including, if applicable, an explanation of why the district court chose a sentence outside of the range recommended by the Sentencing Guidelines. (c). Except for the Cunningham challenge that we rejected above, Lee does not allege that the district court failed to orally explain its reasons for sentencing Lee to an above-Guidelines sentence. But the district court did not fill out a “statement of reasons” form that committed those reasons to writing. (c)(2). Lee asks us to remand his case so that the district court can complete the form. It is unclear whether the statute requires the form when a court revokes supervised *874 release. The Eleventh Circuit has said that it does, United ; the Eighth Circuit has reached the contrary conclusion, albeit under a prior version of the statute, United We do not need to decide that issue, however, because any error is harmless. 6 7 8 Lee has suffered no prejudice from the lack of a written statement of reasons, because the district court’s oral explanation was sufficient. A district court must explain its sentence so that a reviewing court can evaluate the adequacy of its rationale. See 138 S.Ct. at But it is the explanation that matters, not the form in which it appears. United And Lee is complaining about the absence of the document, not the adequacy of the explanation. We agree with our sister circuits: when the oral statement of reasons is sufficient, we will not remand simply because the written statement is lacking. United ; United 9 This approach makes sense, because the written statement of reasons is not a procedural safeguard for the defendant; rather, it serves a record-keeping function for the Sentencing Commission. –64. Before a 2010 amendment, (c)(2) required a sentencing court to state with specificity its reasons for giving a non-Guidelines sentence in “the written order of judgment and commitment.” Congress eliminated that requirement in 2010, amending the statute to require that a court instead include its explanation in “a statement of reasons form issued under section 994(w)(1)(B) of title 28.” 1216 (2010). That section, in turn, obliges the Chief Judge of each district to ensure that the courts of that district send information to the Commission relating to each sentencing. Courts send the Commission data about the sentence imposed, the offense, and the demographic information of the offender; they also relay documents relating to the conviction and sentence, including a “written statement of reasons” that “include[s] the reason for any departure from the otherwise applicable guideline range.” (w)(1)(B). That statement must be provided on a form designed by the Commission. The Commission ultimately analyzes the aggregated reports and makes recommendations to Congress based on its analysis. (w)(3). The statutory scheme does not contemplate that the reports to the Commission will play any role in the individual cases that generate them; instead, the reports are for the Commission to use in the course of its work. In short, the written statement of reasons appears to serve principally, if not exclusively, an administrative purpose unrelated to the rights of the defendant. See ; 812 F.3d at ; United 10 11 Because the form is a means of collecting data for the Commission, a defendant ordinarily suffers no harm when a sufficiently explained sentence fails to generate a written statement of reasons.1 *875 True, the requirements of 994(w)(1)(B) are designed to benefit criminal defendants generally by helping the Commission improve sentencing practices. But a criminal defendant is not harmed by the omission of his sentence from the aggregate data the Commission uses to analyze the system. Absent identifiable prejudice to the defendant, a district court’s failure to file the form is not itself grounds for vacating and remanding the sentence to the district court.

United States v. Moody

Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they “heard about it.” He pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); possessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659, for which he was sentenced to 93 months’ imprisonment. Moody now appeals his sentence. He challenges, for the first time, a four-level guideline enhancement under U.S.S.G. § 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.1 We agree with Moody that the district court plainly erred by imposing this enhancement. Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors. By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. We therefore vacate the judgment and remand for further sentencing proceedings. I. One night in April 2015, Moody drove a train-theft crew to a railyard on the south *428 side of Chicago. There, while part of the crew broke into a parked train car and stole 111 guns, Moody waited, ready to drive away with any merchandise that the crew might retrieve. Moody’s share of the loot was 13 guns. Within two days, according to his uncontradicted testimony at his change-of-plea hearing, he sold them to different anonymous buyers who phoned him after they had “heard about it.” Moody was not asked follow-up questions on the record about the nature of “it,” and the presentence investigation report did nothing to further clarify what the callers had heard. Of the crew’s stolen guns, 33 were recovered before sentencing—17 at crime scenes. The sentencing record does not, however, tie Moody to any of the recovered guns. Moody pleaded guilty to possessing a gun as a felon, possessing a stolen gun, and cargo theft. Sentencing followed. The district court began the sentencing hearing by confirming that Moody had reviewed the PSR’s guidelines calculation (which included the enhancement at issue here, but not any factual detail on that point) with counsel, had filed no objections, and planned to make none. The court calculated an advisory Guidelines range of 121 to 151 months’ imprisonment. In doing so, it applied three enhancements from the 2016 Guidelines Manual, including a four-level enhancement pursuant to 2K2.1(b)(5) because the offense involved trafficking in firearms. The court reasoned that this enhancement applied because Moody had sold his share of stolen guns “literally to anyone who called expressing an interest in getting” them, and the court presumed that at least several of these people would use them in future crimes. The court said that this conduct posed a danger to the community because “many [of the guns] have been recovered in Chicago, many of them at crime scenes.” It continued: I know, Mr. Moody, that you don’t for a second believe that any of those folks were interested in lawfully possessing a firearm. There is absolutely no question that the people that were seeking to buy those firearms wanted those firearms to support other unlawful activity beyond their possession of the firearms. Whether it was drug trafficking, whether it was violent crime, whether it was burglary, robbery, that’s who buys guns that have been stolen off a train. The court sentenced Moody to a prison term of 93 months, which was below the advisory Guidelines range. II. Moody argues that the district court wrongly applied the firearm-trafficking enhancement under U.S.S.G. § 2K2.1(b)(5). He maintains that the government did not provide sufficient evidence that he had reason to believe that 2 or more of the 13 buyers either were legally barred from firearm possession (by virtue of a prior conviction for, say, a crime of violence like aggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2) ), or would use the guns in other crimes. Based on this record, he contends, someone in his shoes could at most reasonably think only that the callers wished to make an unlawful purchase but not that they were otherwise barred from firearm possession or would use the guns unlawfully. 1 2 Before tackling the merits of Moody’s argument, we must address a threshold issue: the parties’ dispute about whether Moody’s failure to object in the district court to this enhancement means that he “waived” or merely “forfeited” this argument. Whether a defendant had reason to know of a gun-buyer’s nefarious *429 purpose is the kind of factual question we review for clear error if the issue is preserved. United States v. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). But the even more deferential standard of plain-error review applies when an objection has been forfeited, and no review is available when it has been waived. United States v. Oliver, 873 F.3d 601, 607 (7th Cir. 2017). An issue is waived when a defendant intentionally relinquishes a known right; it is merely forfeited when a defendant neglects to timely object. Id. 3 4 Here, the better view is that Moody forfeited rather than waived the objection. “The touchstone of waiver is a knowing and intentional decision.” United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). If the government cannot proffer any strategic justification for a defendant’s omission, we will presume an inadvertent forfeiture rather than an intentional relinquishment. Oliver, 873 F.3d at 607; cf. United States v. Young, 908 F.3d 241, 246–47 (7th Cir. 2018). No one has proposed a strategic reason for Moody to have bypassed a challenge to a four-level enhancement. Thus, the claim is forfeited, and we will review the district court’s decision for plain-error. Oliver, 873 F.3d at 607. 5 Under the plain-error standard, Moody must show that the error is not subject to reasonable dispute, that it affected his substantial rights, and that it diminished the fairness, integrity, or reputation of the judicial proceedings. Id.; Molina-Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016); Fed. R. Crim. P. 52(b). Although that standard is demanding, Moody meets it. 6 U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defendant’s offense level by four for the “trafficking” of firearms. As relevant here, this means that the defendant “knew or had reason to believe” that, for at least two guns, the recipient intended to use the weapon in a further crime or was already a person prohibited, by federal law on specified grounds, from possessing guns. U.S.S.G. § 2K2.1 n.13(A). A “person prohibited” is narrowly defined as someone “whose possession or receipt of the firearm would be unlawful.” Id. Such a person “(i) has a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense was under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Id. at n.13(B) (emphasis added). The government bears the burden of proving by a preponderance of the evidence that this enhancement is warranted. United States v. Johnson, 743 F.3d 196, 201 (7th Cir. 2014). Moody attacks as impermissibly speculative the district court’s conclusion that he had reason to believe that his buyers were barred from gun possession or that they intended to use the guns in crimes. In his view, the court assumed that the callers had heard about the train theft and were seeking to buy guns that they knew were stolen. And from that premise, the court inferred that the callers planned to use these guns in other crimes, and, further, that Moody had reason to know it. The PSR and sentencing memoranda, meanwhile, offered no substantiation for this chain of inferences. The government counters that while Moody did not know his buyers’ identities, he surely knew that they were in the market for stolen guns. Common sense, the government adds, would say that few, if any, of these 13 anonymous buyers of stolen guns would be permitted by federal law to possess guns generally. *430 But the only evidence that the government offered on this point is Moody’s remark that he sold his share of the guns to “different people who heard about it.” But what “it” refers to is impossible to discern from the record. “It” might refer to the train heist, or “it” might refer to a bunch of guns (which may or may not be stolen) available for an off-the-books sale. If “it” merely refers to a load of guns for sale, then Moody’s statement simply establishes that he possessed stolen firearms. But that criminal act is already accounted for by his conviction for possessing a stolen firearm and does not justify the enhancement. See 18 U.S.C. § 922(g)(1). And the anonymous participants’ interest in off-the-books gun sales might have given Moody reason to believe that their purchases were unlawful, but not that their possession or use of the guns is unlawful. As Moody emphasizes, those who purchase guns unlawfully do not necessarily fall into the prohibited category defined by U.S.S.G. § 2K2.1(b)(5). For example, Lori Shelton, a lawful gun-owner identified in a codefendant’s sentencing record, bought firearms from the heist. Shelton carried a valid firearm license and intended to give the guns to her adult children once they, too, obtained licenses. The government correctly notes that Shelton’s intentional purchase of stolen property was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but this did not make her a prohibited person under U.S.S.G. § 2K2.1 n.13(B). Moody’s case thus stands in contrast to those in which the seller knew something more about the buyers than that they were in the market for a gun. See, e.g., United States v. Rodriguez, 884 F.3d 679, 679–81 (7th Cir. 2018) (upholding enhancement where defendant and recipient discussed using guns unlawfully); United States v. Jemison, 237 F.3d 911, 918 (7th Cir. 2001) (reasoning that it would be “naïve” to conclude that Jemison had no reason to think guns he sold to a gang would be used to commit other felonies; “the public [is] not blissfully ignorant of the connection between criminal violence and street gangs”). Indeed, Moody’s case also stands in contrast to that of his codefendants because in their case, the government introduced evidence that they knew specific buyers were prohibited persons.2 His case is more like United States v. Green, 360 F. App'x. 521, 522–25 (5th Cir. 2010) (non-precedential disposition), in which the Fifth Circuit rejected the enhancement for a defendant who smuggled five guns to two people in Mexico. The enhancement was based on the district court’s supposition that guns in Mexico are predominantly used by drug-trafficking organizations. The Fifth Circuit held that this supposition was too big a leap. Id. at 525. 7 In short, the government’s evidence that Moody sold guns to “different people who heard about it” is an insufficient basis for concluding that Moody sold guns to 2 or more people who satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A). In concluding otherwise, the district court relied on a series of inferences that were plainly too speculative to support a finding by a preponderance of the evidence. We therefore agree with Moody that the enhancement was plainly improper. *431 In so holding, we are mindful that our precedents allow a district court great leeway to make commonsense inferences. See, e.g., United States v. Gilmore, 60 F.3d 392, 393–94 (7th Cir. 1995); see also United States v. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). In Gilmore, we held that a district court did not err by inferring that the defendant had reason to believe the guns he “lost” would be used unlawfully, even though the only evidence was that one of the guns was found at a crime scene and Gilmore (the original gunowner) did not know the identities of the new owners. 60 F.3d at 394. But in Moody’s case, no such inference is available. Although 17 of the crew’s 111 firearms were found at crime scenes, no evidence ties any of the guns found at crime scenes to those sold by Moody. Because the inferential leap required by common sense is too great here, the government has not met its burden of proof. 8 Of course, this error is not reversible simply because it is plain—we must also conclude that it affected Moody’s substantial rights and diminished the fairness, integrity, or reputation of the judicial proceedings. The Supreme Court has repeatedly emphasized that when an unpreserved guideline error is plain, it typically affects both fundamental rights and fairness by setting an incorrect range for the probable sentence. See generally Molina-Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016); Rosales-Mireles v. United States, ––– U.S. ––––, 138 S.Ct. 1897, 201 L.Ed.2d 376 (2018). That is true here. The district court gave no indication that it chose a sentence “irrespective of the Guidelines range.” Molina-Martinez, 136 S.Ct. at 1346. And without the enhancement, Moody’s advisory Guidelines range would drop from 121–151 months to 78–97 months. Because the district court’s current 93-month sentence was designed to fall below the range the judge had calculated, we cannot be confident that the court would have been unwilling to go even lower. None of this is to say that Moody is assured a lighter sentence on remand. Perhaps a revised PSR or other evidence will cure any ambiguity. And even if the gun-trafficking guideline does not apply, the district court may consider whether, as a matter of the sentencing factors under 18 U.S.C. § 3553(a), Moody’s blindness to his buyers’ identities makes it reasonable to refrain from going any lower. These possibilities are for the district court to consider in the first instance.

Barrett

majority

Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they “heard about it.” He pleaded guilty to possessing a firearm as a felon, (g)(1); possessing a stolen firearm, 922(j); and cargo theft, 659, for which he was sentenced to 93 months’ imprisonment. Moody now appeals his sentence. He challenges, for the first time, a four-level guideline enhancement under U.S.S.G. 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.1 We agree with Moody that the district court plainly erred by imposing this enhancement. Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors. By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. We therefore vacate the judgment and remand for further sentencing proceedings. I. One night in April 5, Moody drove a train-theft crew to a railyard on the south *428 side of Chicago. There, while part of the crew broke into a parked train car and stole 111 guns, Moody waited, ready to drive away with any merchandise that the crew might retrieve. Moody’s share of the loot was 13 guns. Within two days, according to his uncontradicted testimony at his change-of-plea hearing, he sold them to different anonymous buyers who phoned him after they had “heard about it.” Moody was not asked follow-up questions on the record about the nature of “it,” and the presentence investigation report did nothing to further clarify what the callers had heard. Of the crew’s stolen guns, 33 were recovered before sentencing—17 at crime scenes. The sentencing record does not, however, tie Moody to any of the recovered guns. Moody pleaded guilty to possessing a gun as a felon, possessing a stolen gun, and cargo theft. Sentencing followed. The district court began the sentencing hearing by confirming that Moody had reviewed the PSR’s guidelines calculation (which included the enhancement at issue here, but not any factual detail on that point) with counsel, had filed no objections, and planned to make none. The court calculated an advisory Guidelines range of 121 to 151 months’ imprisonment. In doing so, it applied three enhancements from the Guidelines Manual, including a four-level enhancement pursuant to 2K2.1(b)(5) because the offense involved trafficking in firearms. The court reasoned that this enhancement applied because Moody had sold his share of stolen guns “literally to anyone who called expressing an interest in getting” them, and the court presumed that at least several of these people would use them in future crimes. The court said that this conduct posed a danger to the community because “many [of the guns] have been recovered in Chicago, many of them at crime scenes.” It continued: I know, Mr. Moody, that you don’t for a second believe that any of those folks were interested in lawfully possessing a firearm. There is absolutely no question that the people that were seeking to buy those firearms wanted those firearms to support other unlawful activity beyond their possession of the firearms. Whether it was drug trafficking, whether it was violent crime, whether it was burglary, robbery, that’s who buys guns that have been stolen off a train. The court sentenced Moody to a prison term of 93 months, which was below the advisory Guidelines range. II. Moody argues that the district court wrongly applied the firearm-trafficking enhancement under U.S.S.G. 2K2.1(b)(5). He maintains that the government did not provide sufficient evidence that he had reason to believe that 2 or more of the 13 buyers either were legally barred from firearm possession (by virtue of a prior conviction for, say, a crime of violence like aggravated assault, see 2K2.1 n.13 & 4B1.2(a)(2) ), or would use the guns in other crimes. Based on this record, he contends, someone in his shoes could at most reasonably think only that the callers wished to make an unlawful purchase but not that they were otherwise barred from firearm possession or would use the guns unlawfully. 1 2 Before tackling the merits of Moody’s argument, we must address a threshold issue: the parties’ dispute about whether Moody’s failure to object in the district court to this enhancement means that he “waived” or merely “forfeited” this argument. Whether a defendant had reason to know of a gun-buyer’s nefarious *429 purpose is the kind of factual question we review for clear error if the issue is preserved. United But the even more deferential standard of plain-error review applies when an objection has been forfeited, and no review is available when it has been waived. United An issue is waived when a defendant intentionally relinquishes a known right; it is merely forfeited when a defendant neglects to timely object. 3 4 Here, the better view is that Moody forfeited rather than waived the objection. “The touchstone of waiver is a knowing and intentional decision.” United If the government cannot proffer any strategic justification for a defendant’s omission, we will presume an inadvertent forfeiture rather than an intentional relinquishment. 873 F.3d at ; cf. United No one has proposed a strategic reason for Moody to have bypassed a challenge to a four-level enhancement. Thus, the claim is forfeited, and we will review the district court’s decision for plain-error. 873 F.3d at 5 Under the plain-error standard, Moody must show that the error is not subject to reasonable dispute, that it affected his substantial rights, and that it diminished the fairness, integrity, or reputation of the judicial proceedings. ; ; Fed. R. Crim. P. 52(b). Although that standard is demanding, Moody meets it. 6 U.S.S.G. 2K2.1(b)(5) directs a court to increase a defendant’s offense level by four for the “trafficking” of firearms. As relevant here, this means that the defendant “knew or had reason to believe” that, for at least two guns, the recipient intended to use the weapon in a further crime or was already a person prohibited, by federal law on specified grounds, from possessing guns. U.S.S.G. 2K2.1 n.13(A). A “person prohibited” is narrowly defined as someone “whose possession or receipt of the firearm would be unlawful.” Such a person “(i) has a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense was under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” (emphasis added). The government bears the burden of proving by a preponderance of the evidence that this enhancement is warranted. United Moody attacks as impermissibly speculative the district court’s conclusion that he had reason to believe that his buyers were barred from gun possession or that they intended to use the guns in crimes. In his view, the court assumed that the callers had heard about the train theft and were seeking to buy guns that they knew were stolen. And from that premise, the court inferred that the callers planned to use these guns in other crimes, and, further, that Moody had reason to know it. The PSR and sentencing memoranda, meanwhile, offered no substantiation for this chain of inferences. The government counters that while Moody did not know his buyers’ identities, he surely knew that they were in the market for stolen guns. Common sense, the government adds, would say that few, if any, of these 13 anonymous buyers of stolen guns would be permitted by federal law to possess guns generally. *430 But the only evidence that the government offered on this point is Moody’s remark that he sold his share of the guns to “different people who heard about it.” But what “it” refers to is impossible to discern from the record. “It” might refer to the train heist, or “it” might refer to a bunch of guns (which may or may not be stolen) available for an off-the-books sale. If “it” merely refers to a load of guns for sale, then Moody’s statement simply establishes that he possessed stolen firearms. But that criminal act is already accounted for by his conviction for possessing a stolen firearm and does not justify the enhancement. See (g)(1). And the anonymous participants’ interest in off-the-books gun sales might have given Moody reason to believe that their purchases were unlawful, but not that their possession or use of the guns is unlawful. As Moody emphasizes, those who purchase guns unlawfully do not necessarily fall into the prohibited category defined by U.S.S.G. 2K2.1(b)(5). For example, Lori Shelton, a lawful gun-owner identified in a codefendant’s sentencing record, bought firearms from the heist. Shelton carried a valid firearm license and intended to give the guns to her adult children once they, too, obtained licenses. The government correctly notes that Shelton’s intentional purchase of stolen property was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but this did not make her a prohibited person under U.S.S.G. 2K2.1 n.13. Moody’s case thus stands in contrast to those in which the seller knew something more about the buyers than that they were in the market for a gun. See, e.g., United ; United Indeed, Moody’s case also stands in contrast to that of his codefendants because in their case, the government introduced evidence that they knew specific buyers were prohibited persons.2 His case is more like United (5th Cir. 0) in which the Fifth Circuit rejected the enhancement for a defendant who smuggled five guns to two people in Mexico. The enhancement was based on the district court’s supposition that guns in Mexico are predominantly used by drug-trafficking organizations. The Fifth Circuit held that this supposition was too big a leap. 7 In short, the government’s evidence that Moody sold guns to “different people who heard about it” is an insufficient basis for concluding that Moody sold guns to 2 or more people who satisfied the narrow criteria of U.S.S.G. 2K2.1 n.13(A). In concluding otherwise, the district court relied on a series of inferences that were plainly too speculative to support a finding by a preponderance of the evidence. We therefore agree with Moody that the enhancement was plainly improper. *431 In so holding, we are mindful that our precedents allow a district court great leeway to make commonsense inferences. See, e.g., United ; see also United In Gilmore, we held that a district court did not err by inferring that the defendant had reason to believe the guns he “lost” would be used unlawfully, even though the only evidence was that one of the guns was found at a crime scene and Gilmore (the original gunowner) did not know the identities of the new owners. But in Moody’s case, no such inference is available. Although 17 of the crew’s 111 firearms were found at crime scenes, no evidence ties any of the guns found at crime scenes to those sold by Moody. Because the inferential leap required by common sense is too great here, the government has not met its burden of proof. 8 Of course, this error is not reversible simply because it is plain—we must also conclude that it affected Moody’s substantial rights and diminished the fairness, integrity, or reputation of the judicial proceedings. The Supreme Court has repeatedly emphasized that when an unpreserved guideline error is plain, it typically affects both fundamental rights and fairness by setting an incorrect range for the probable sentence. See generally ; L.Ed.2d 376 That is true here. The district court gave no indication that it chose a sentence “irrespective of the Guidelines range.” And without the enhancement, Moody’s advisory Guidelines range would drop from 121–151 months to 78–97 months. Because the district court’s current 93-month sentence was designed to fall below the range the judge had calculated, we cannot be confident that the court would have been unwilling to go even lower. None of this is to say that Moody is assured a lighter sentence on remand. Perhaps a revised PSR or other evidence will cure any ambiguity. And even if the gun-trafficking guideline does not apply, the district court may consider whether, as a matter of the sentencing factors under 18 U.S.C. 3553(a), Moody’s blindness to his buyers’ identities makes it reasonable to refrain from going any lower. These possibilities are for the district court to consider in the first instance.

United States v. Rutherford

In my view, Rutherford’s notice of appeal was effective to bring up review of only one of the district court’s two decisions: its denial of Rutherford’s motion to reconsider, not its decision on the merits of Rutherford’s motion to modify his sentence. Under the Sentencing Reform Act, a district court is only authorized to “modify a term of imprisonment once it has been *467 imposed” in three limited circumstances. Just one is relevant here: “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). The First Step Act expressly permitted Rutherford to move for a reduced sentence and permitted the court to modify his sentence in response. As the panel explains, the district court granted that motion in part. And Rutherford, dissatisfied with the district court’s decision, moved for reconsideration of the new sentence. The majority concludes that Rutherford’s motion for reconsideration qualified as a common-law motion that extended the time that Rutherford had to appeal his sentence. That would mean that his notice of appeal was timely filed for purposes of both the underlying resentencing decision and the district court’s refusal to reconsider the sentence. I see things differently. To decide whether the motion for reconsideration extended the time to file a notice of appeal, we have to determine what authorized Rutherford to make that motion. In United States v. Townsend, we held that the Sentencing Reform Act abrogated district courts’ common-law authority to entertain motions to reconsider their sentencing decisions. 762 F.3d 641, 646 (7th Cir. 2014). So common-law authority cannot support Rutherford’s motion for reconsideration. Under Townsend’s interpretation of § 3582(c)(1)(B), Rutherford could only move for reconsideration of his sentence if a statute or Rule 35 allowed it. The First Step Act expressly authorizes a district court to modify a sentence in keeping with the Act’s removal of enhanced sentencing for some prior drug convictions. But it does not expressly authorize a motion for reconsideration of the modified sentence.1 Thus, Rutherford could seek reconsideration only through Rule 35—and a Rule 35 motion doesn’t extend the time to take an appeal. FED. R. APP. P. 4(b)(5). Because Rutherford’s Rule 35 motion didn’t stop the clock, the deadline for appealing the sentence expired before Rutherford filed his notice of appeal. Since Rutherford’s notice of appeal was untimely as to the underlying resentencing decision, we lack the authority to review the resentencing itself. The majority disagrees because it doesn’t think that Rutherford was limited to Rule 35. Relying on United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991), and United States v. Rollins, 607 F.3d 500 (7th Cir. 2010), it characterizes Rutherford’s motion for reconsideration as a common-law motion that tolled the time for appeal. But Townsend distinguishes Ibarra and Rollins on the ground that those cases allowed common-law reconsideration motions on issues related to convictions rather than sentences. 762 F.3d at 646. Townsend squarely holds that sentencing is different—in that context, the Sentencing Reform Act overrides the common-law power that district courts otherwise possess. This is a sentencing *468 case, so Townsend, not Ibarra or Rollins, controls. While we cannot review the court’s resentencing decision, we do have authority to review its refusal to reconsider that decision—Rutherford’s appeal of the latter decision was timely. This is cold comfort for Rutherford, though, because the appeal fails on the merits. Rule 35(a) allows a defendant to seek correction of only “arithmetical, technical, or other clear error,” and Rutherford instead repeated the same arguments from his initial motion. In sum, I think the majority is wrong to assume the authority to review Rutherford’s sentence. This is a nonprecedential decision, though, so the error is not set in stone. In a future case, we should correct it.

Barrett

majority

In my view, Rutherford’s notice of appeal was effective to bring up review of only one of the district court’s two decisions: its denial of Rutherford’s motion to reconsider, not its decision on the merits of Rutherford’s motion to modify his sentence. Under the Sentencing Reform Act, a district court is only authorized to “modify a term of imprisonment once it has been *467 imposed” in three limited circumstances. Just one is relevant here: “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” (c)(1)(B). The First Step Act expressly permitted Rutherford to move for a reduced sentence and permitted the court to modify his sentence in response. As the panel explains, the district court granted that motion in part. And Rutherford, dissatisfied with the district court’s decision, moved for reconsideration of the new sentence. The majority concludes that Rutherford’s motion for reconsideration qualified as a common-law motion that extended the time that Rutherford had to appeal his sentence. That would mean that his notice of appeal was timely filed for purposes of both the underlying resentencing decision and the district court’s refusal to reconsider the sentence. I see things differently. To decide whether the motion for reconsideration extended the time to file a notice of appeal, we have to determine what authorized Rutherford to make that motion. In United States v. Townsend, we held that the Sentencing Reform Act abrogated district courts’ common-law authority to entertain motions to reconsider their sentencing decisions. So common-law authority cannot support Rutherford’s motion for reconsideration. Under Townsend’s interpretation of 3582(c)(1)(B), Rutherford could only move for reconsideration of his sentence if a statute or Rule 35 allowed it. The First Step Act expressly authorizes a district court to modify a sentence in keeping with the Act’s removal of enhanced sentencing for some prior drug convictions. But it does not expressly authorize a motion for reconsideration of the modified sentence.1 Thus, Rutherford could seek reconsideration only through Rule 35—and a Rule 35 motion doesn’t extend the time to take an appeal. FED. R. APP. P. 4(b)(5). Because Rutherford’s Rule 35 motion didn’t stop the clock, the deadline for appealing the sentence expired before Rutherford filed his notice of appeal. Since Rutherford’s notice of appeal was untimely as to the underlying resentencing decision, we lack the authority to review the resentencing itself. The majority disagrees because it doesn’t think that Rutherford was limited to Rule 35. Relying on United and United it characterizes Rutherford’s motion for reconsideration as a common-law motion that tolled the time for appeal. But Townsend distinguishes Ibarra and Rollins on the ground that those cases allowed common-law reconsideration motions on issues related to convictions rather than sentences. 762 F.3d at Townsend squarely holds that sentencing is different—in that context, the Sentencing Reform Act overrides the common-law power that district courts otherwise possess. This is a sentencing *468 case, so Townsend, not Ibarra or Rollins, controls. While we cannot review the court’s resentencing decision, we do have authority to review its refusal to reconsider that decision—Rutherford’s appeal of the latter decision was timely. This is cold comfort for Rutherford, though, because the appeal fails on the merits. Rule 35(a) allows a defendant to seek correction of only “arithmetical, technical, or other clear error,” and Rutherford instead repeated the same arguments from his initial motion. In sum, I think the majority is wrong to assume the authority to review Rutherford’s sentence. This is a nonprecedential decision, though, so the error is not set in stone. In a future case, we should correct it.

United States v. Sparkman

Section 403 of the First Step Act of 2018 amended the mandatory minimum sentence for certain firearm offenses. Sentencing reform is generally prospective, but these amendments also apply to an offense committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 2018, Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222 (codified at 18 U.S.C. § 924 note). Tony Sparkman's sentence was pending on appeal on the date of enactment, and, as he sees it, this means that he is entitled to be resentenced with the benefit of the statute's reforms. But our circuit rejected this very argument in United States v. Pierson, which holds that “a sentence is ‘imposed’ in the district court, regardless of later appeals.” 925 F.3d 913, 927 (7th Cir. 2019). The district court sentenced Sparkman before the statute passed, so the First Step Act does not apply to him. I. Tony Sparkman belonged to a gang that conspired to kidnap and rob drug dealers for money and drugs. The gang was responsible for murders, kidnappings, and robberies, and Sparkman was directly involved in at least two kidnappings in which *773 firearms were used to threaten the victims. He was indicted for and convicted of several federal offenses, including racketeering, drug crimes, and two counts of using a firearm to commit a kidnapping in violation of 18 U.S.C. § 924(c). A conviction for a single count of using a firearm to commit a crime of violence like kidnapping carries a mandatory minimum penalty of five years’ imprisonment. Id. § 924(c)(1)(A)(i). That mandatory minimum is elevated to seven years if the firearm is “brandished” during the course of the crime. Id. § 924(c)(1)(A)(ii). Before the First Step Act, a second violation of § 924(c) triggered a much higher 25-year mandatory minimum, even if the two counts were asserted in a single indictment. The First Step Act amended § 924(c) so that only a second § 924(c) violation committed after a prior conviction for the same offense will trigger the 25-year minimum. First Step Act § 403(a); see United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2324 n.1, 204 L.Ed.2d 757 (2019). Sparkman was initially sentenced in 2012—years before the enactment of the First Step Act. The court calculated that he was subject to a mandatory minimum of 42 years’ imprisonment: 10 years for the various racketeering and drug charges, 7 years for the first firearm offense because the court determined that it had involved brandishing a weapon, and 25 years for the second firearm offense. The district court sentenced Sparkman to that mandatory minimum of 42 years. Sparkman and several of his codefendants appealed their convictions and sentences. United States v. Cardena, 842 F.3d 959 (7th Cir. 2016). Among other arguments, we reviewed a challenge to their sentences based on the Supreme Court's decision in Alleyne v. United States, which held that brandishing is an element of the § 924(c) offense that must be found by a jury. 570 U.S. 99, 115, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Sparkman's case, the court rather than the jury had found the element of brandishing. Cardena, 842 F.3d at 1000–02. We therefore vacated his sentence and remanded so that he could be resentenced without the brandishing enhancement for his first firearm offense. In October 2017, the district court resentenced Sparkman following our instructions in Cardena. Without the brandishing enhancement for the first firearm offense, Sparkman's total sentence dropped from 42 to 40 years. In November 2017, Sparkman filed a notice of this appeal. Before Sparkman filed his opening appellate brief, the First Step Act became law. He now argues that he should be resentenced yet again with the benefit of section 403 of the Act. II. Before we turn to his sentencing challenge, we must briefly address Sparkman's challenge to his underlying conviction. Among other offenses, Sparkman was convicted of two counts of using a firearm to commit a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3). In his first appeal, Sparkman had argued that the residual clause in the statutory definition of “crime of violence” was unconstitutionally vague. He had not raised the issue at trial before the court instructed the jury, so we reviewed his argument for plain error. Cardena, 842 F.3d at 997; see United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We agreed that the residual clause was unconstitutional, but we concluded that he had failed to show that the court's erroneous jury instructions affected his substantial rights. Cardena, 842 F.3d at 998. Now Sparkman argues for the first time that the court's error was structural and therefore inherently prejudicial. *774 1 2 The time has long passed for Sparkman to introduce this new argument. The law of the case doctrine bars parties from changing their litigation positions on successive appeals “except where justified by intervening authority, new and previously undiscoverable evidence, or other changed circumstances.” United States v. Sumner, 325 F.3d 884, 891 (7th Cir. 2003). Sparkman concedes that he has never before argued that this error was structural but asserts that he has “intervening authority” on his side. He points to the Supreme Court's decision in Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757, which validated our conclusion in Cardena that the residual clause of § 924(c)(3) is unconstitutionally vague. Davis, however, does not add any force to Sparkman's claim of structural error; in fact, it does not mention structural error at all. Davis is not intervening authority that justifies Sparkman's change in litigation position. The law of the case bars his new argument. 3 We note, though, that this argument would fail on the merits in any event. The Supreme Court has held that when a court instructs the jury on alternative theories of guilt and one theory is later invalidated, no structural error has occurred. Hedgpeth v. Pulido, 555 U.S. 57, 61–62, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008). Sparkman's conviction stands. III. 4 We now turn to Sparkman's primary argument: that he must be resentenced for a third time so that he can receive the benefit of section 403 of the First Step Act. In general, a statute adopting new, more lenient penalties does not apply to pre-enactment offenses unless retroactive application is the “plain import” or “fair implication” of the new statute. Dorsey v. United States, 567 U.S. 260, 275, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012); see 1 U.S.C. § 109. Retroactive application is the “plain import” of section 403 because it explicitly covers pre-Act conduct—but only “if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 2018, Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222. Sparkman's eligibility for resentencing rides on whether this language applies to his second firearm offense. Sparkman argues that a sentence is not “imposed” until it reaches final disposition in the highest reviewing court. As of the date of enactment, Sparkman's initial sentence had been vacated, he had been resentenced, and his case was pending on appeal. Sparkman argues that the pending appeal means that no sentence had been “imposed” as of the date of enactment. 5 We rejected Sparkman's reading of the statute in United States v. Pierson, 925 F.3d 913, 927–28 (7th Cir. 2019), vacated on other grounds, ––– U.S. ––––, 140 S. Ct. 1291, 206 L.Ed.2d 373 (2020).1 Pierson's case was pending on appeal on the date of enactment, and he claimed that his sentence had not been “imposed” because his case had not reached final disposition. We disagreed. Focusing on the ordinary legal usage of the word “imposed,” we held that a sentence is “imposed” when the district court sentences the defendant, “regardless of later appeals.” Id. at 927. We therefore concluded that a sentence had been imposed in Pierson's case, notwithstanding his pending appeal. See also *775 United States v. Jackson, 940 F.3d 347 (7th Cir. 2019) (reaching the same conclusion). 6 7 Sparkman's efforts to distinguish Pierson are unpersuasive. He points out that Pierson dealt with a different provision of the First Step Act—section 401, which amended sentences for certain drug offenses, rather than section 403, which applies to firearms. But both sections use identical language to address sentencing for pre-enactment offenses. See First Step Act §§ 401(c), 403(b). And “identical words used in different parts of the same statute are generally presumed to have the same meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Sparkman offers no reason to deviate from that presumption or to part ways with the other circuits that have applied the reasoning of Pierson to section 403. See, e.g., United States v. Jordan, 952 F.3d 160, 172 (4th Cir. 2020); United States v. Richardson, 948 F.3d 733, 748–50 (6th Cir. 2020). Precedent forecloses Sparkman's argument that he is entitled to the First Step Act's more lenient penalty for his second firearm offense. * * * Because section 403 of the First Step Act does not apply to Sparkman, we AFFIRM the district court's judgment.

Barrett

majority

Section 403 of the First Step Act of 2018 amended the mandatory minimum sentence for certain firearm offenses. Sentencing reform is generally prospective, but these amendments also apply to an offense committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 2018, (b), 5222 (codified at note). Tony Sparkman's sentence was pending on appeal on the date of enactment, and, as he sees it, this means that he is entitled to be resentenced with the benefit of the statute's reforms. But our circuit rejected this very argument in United which holds that “a sentence is ‘imposed’ in the district court, regardless of later appeals.” The district court sentenced Sparkman before the statute passed, so the First Step Act does not apply to him. I. Tony Sparkman belonged to a gang that conspired to kidnap and rob drug dealers for money and drugs. The gang was responsible for murders, kidnappings, and robberies, and Sparkman was directly involved in at least two kidnappings in which *773 firearms were used to threaten the victims. He was indicted for and convicted of several federal offenses, including racketeering, drug crimes, and two counts of using a firearm to commit a kidnapping in violation of (c). A conviction for a single count of using a firearm to commit a crime of violence like kidnapping carries a mandatory minimum penalty of five years’ imprisonment. 924(c)(1)(A)(i). That mandatory minimum is elevated to seven years if the firearm is “brandished” during the course of the crime. 924(c)(1)(A)(ii). Before the First Step Act, a second violation of 924(c) triggered a much higher 25-year mandatory minimum, even if the two counts were asserted in a single indictment. The First Step Act amended 924(c) so that only a second 924(c) violation committed after a prior conviction for the same offense will trigger the 25-year minimum. First Step Act 403(a); see United Sparkman was initially sentenced in —years before the enactment of the First Step Act. The court calculated that he was subject to a mandatory minimum of 42 years’ imprisonment: 10 years for the various racketeering and drug charges, 7 years for the first firearm offense because the court determined that it had involved brandishing a weapon, and 25 years for the second firearm offense. The district court sentenced Sparkman to that mandatory minimum of 42 years. Sparkman and several of his codefendants appealed their convictions and sentences. United Among other arguments, we reviewed a challenge to their sentences based on the Supreme Court's decision in Alleyne v. United States, which held that brandishing is an element of the 924(c) offense that must be found by a jury. In Sparkman's case, the court rather than the jury had found the element of brandishing. –02. We therefore vacated his sentence and remanded so that he could be resentenced without the brandishing enhancement for his first firearm offense. In October 2017, the district court resentenced Sparkman following our instructions in Without the brandishing enhancement for the first firearm offense, Sparkman's total sentence dropped from 42 to 40 years. In November 2017, Sparkman filed a notice of this appeal. Before Sparkman filed his opening appellate brief, the First Step Act became law. He now argues that he should be resentenced yet again with the benefit of section 403 of the Act. II. Before we turn to his sentencing challenge, we must briefly address Sparkman's challenge to his underlying conviction. Among other offenses, Sparkman was convicted of two counts of using a firearm to commit a “crime of violence,” as defined in (c)(3). In his first appeal, Sparkman had argued that the residual clause in the statutory definition of “crime of violence” was unconstitutionally vague. He had not raised the issue at trial before the court instructed the jury, so we reviewed his argument for plain error. ; see United We agreed that the residual clause was unconstitutional, but we concluded that he had failed to show that the court's erroneous jury instructions affected his substantial rights. Now Sparkman argues for the first time that the court's error was structural and therefore inherently prejudicial. *774 1 2 The time has long passed for Sparkman to introduce this new argument. The law of the case doctrine bars parties from changing their litigation positions on successive appeals “except where justified by intervening authority, new and previously undiscoverable evidence, or other changed circumstances.” United Sparkman concedes that he has never before argued that this error was structural but asserts that he has “intervening authority” on his side. He points to the Supreme Court's decision in Davis, ––– U.S. ––––, which validated our conclusion in that the residual clause of 924(c)(3) is unconstitutionally vague. Davis, however, does not add any force to Sparkman's claim of structural error; in fact, it does not mention structural error at all. Davis is not intervening authority that justifies Sparkman's change in litigation position. The law of the case bars his new argument. 3 We note, though, that this argument would fail on the merits in any event. The Supreme Court has held that when a court instructs the jury on alternative theories of guilt and one theory is later invalidated, no structural error has occurred. Sparkman's conviction stands. III. 4 We now turn to Sparkman's primary argument: that he must be resentenced for a third time so that he can receive the benefit of section 403 of the First Step Act. In general, a statute adopting new, more lenient penalties does not apply to pre-enactment offenses unless retroactive application is the “plain import” or “fair implication” of the new statute. ; see 1 U.S.C. 109. Retroactive application is the “plain import” of section 403 because it explicitly covers pre-Act conduct—but only “if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 2018, (b), 5222. Sparkman's eligibility for resentencing rides on whether this language applies to his second firearm offense. Sparkman argues that a sentence is not “imposed” until it reaches final disposition in the highest reviewing court. As of the date of enactment, Sparkman's initial sentence had been vacated, he had been resentenced, and his case was pending on appeal. Sparkman argues that the pending appeal means that no sentence had been “imposed” as of the date of enactment. 5 We rejected Sparkman's reading of the statute in United –28 vacated on other grounds, ––– U.S. ––––,1 Pierson's case was pending on appeal on the date of enactment, and he claimed that his sentence had not been “imposed” because his case had not reached final disposition. We disagreed. Focusing on the ordinary legal usage of the word “imposed,” we held that a sentence is “imposed” when the district court sentences the defendant, “regardless of later appeals.” at We therefore concluded that a sentence had been imposed in Pierson's case, notwithstanding his pending appeal. See also *775 United 6 7 Sparkman's efforts to distinguish Pierson are unpersuasive. He points out that Pierson dealt with a different provision of the First Step Act—section 401, which amended sentences for certain drug offenses, rather than section 403, which applies to firearms. But both sections use identical language to address sentencing for pre-enactment offenses. See First Step Act 401(c), 403(b). And “identical words used in different parts of the same statute are generally presumed to have the same meaning.” IBP, Sparkman offers no reason to deviate from that presumption or to part ways with the other circuits that have applied the reasoning of Pierson to section 403. See, e.g., United ; United Precedent forecloses Sparkman's argument that he is entitled to the First Step Act's more lenient penalty for his second firearm offense. * * * Because section 403 of the First Step Act does not apply to Sparkman, we AFFIRM the district court's judgment.

United States v. Terry

Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property. I. In February 2012, a team of agents from the Drug Enforcement Agency (DEA) executed an arrest warrant for Dimitris Terry related to his role in a conspiracy to possess and distribute heroin. The agents didn't want others to know that Terry had been arrested because they hoped to secure his cooperation in the broader investigation; thus, they planned a quick and quiet arrest. They waited for him to return home from taking his son to school one morning, arrested him when he got out of his car, and took him to the DEA's Chicago field division for questioning. A few agents remained behind. Two of them knocked on the door of Terry's apartment, and a woman answered, wearing a bathrobe and looking sleepy. The agents identified themselves, explained that they had just arrested Terry, and asked to come inside. They didn't ask the woman who she was, how she was related to Terry, or whether she lived at the apartment. Without hesitation, the woman let the agents in, and they immediately presented her with a consent-to-search form. After she both read the form and had it read aloud to her, she signed it, and the search began. Only then, after the search was underway, did the agents ask the woman who she was. She identified herself as Ena Carson, the mother of Terry's son. She explained that her son lived at Terry's apartment, but she did not. Nevertheless, the agents continued the search for roughly the next hour. They recovered letters addressed to Terry showing proof of residence, four cell phones, and a suspected drug ledger. Meanwhile, two DEA agents conducted a post-arrest interview of Terry back at the field office. Before asking any questions, the agents read Terry his Miranda rights, which were also spelled out on an advice-of-rights form. The agents signed the form, but Terry refused to do so. When asked if he understood his rights, Terry explained that “he was not going to sign the form or initial it; that, you know, this wasn't his first go-around with law enforcement ... but he was willing to talk.” The agents understood Terry's statement to mean that he had prior experience with law enforcement, understood *1144 his rights, and was knowingly and voluntarily waiving them by agreeing to talk with the agents. So they wrote “Verbal Only” on the advice-of-rights form, indicating that Terry “gave verbal consent that he understood the form.” Terry then answered the agents’ questions about the case and made incriminating statements about his role in the conspiracy to distribute heroin. Terry was charged with possession, distribution, and conspiracy to possess and distribute heroin in violation of 21 U.S.C. §§ 841(a) and 846. He moved to suppress both the evidence recovered from the search and his post-arrest statements to the agents. First, Terry argued that the search was unlawful because Carson had neither actual nor apparent authority to consent to it—all the agents knew at the time of consent was that she answered the door at Terry's apartment wearing a bathrobe. Had the agents simply inquired, Terry said, they would have discovered that Carson did not live at the apartment. Second, Terry claimed that he had not understood that he was waiving his Miranda rights when he answered the agents’ questions. Thus, he argued, the waiver was invalid and his post-arrest statements should be suppressed. After an evidentiary hearing at which the agents and Terry testified, the district court denied both motions. As to the first, the court determined that it was reasonable for the agents to assume that Carson lived at the residence and had authority to consent to the search because (1) she was permitted to be home when Terry was not; (2) her son resided at the apartment; (3) the bathrobe “indicated she was more than a mere temporary guest”; and (4) she consented to the search without hesitation. On the second motion, the court found Terry's testimony that he did not know that his statements could be used against him “simply not credible” given his many encounters with law enforcement—he has been arrested at least seventeen times since he turned eighteen—as well as his level of education and success in business. The court thought that this was strong evidence that Terry understood his rights. And because he understood his rights, the court concluded that Terry's answers to the agents’ questions provided “a clear and unequivocal waiver of his right to remain silent.” After a bench trial, the district court found Terry guilty and sentenced him to 168 months’ imprisonment. Terry asks us to vacate his conviction on the ground that the district court erroneously denied his motions to suppress. II. 1 2 In reviewing a district court's denial of a motion to suppress, we review the district court's legal conclusions de novo and its underlying factual determinations for clear error. United States v. Richards, 741 F.3d 843, 847 (7th Cir. 2014). We give “special deference to the district court's credibility determinations because the resolution of a motion to suppress is almost always a fact-specific inquiry, and it is the district court which heard the testimony and observed the witnesses at the suppression hearing.” United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). A. 3 4 5 As a rule, the Fourth Amendment requires the government to get a warrant before searching someone's property. U.S. Const. amend. IV; see also United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). But the warrant requirement is subject to several “carefully defined” exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One is consent from a person with actual or apparent *1145 authority to give it. Basinski, 226 F.3d at 833–34. When a person allows a third party to exercise authority over his property, he “assume[s] the risk that the third party might permit access to others, including government agents.” Id. at 834 (citing United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). 6 7 The government does not claim that Carson had actual authority to consent to the search of Terry's apartment. The dispute is about whether she had apparent authority, which exists when “the facts available to the officer at the moment ... ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises,” even if the person actually had no such authority. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (alteration in original) (citation omitted). An officer might reasonably believe that a third party has authority over certain property if the third party appears to have “joint access or control for most purposes.” United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988). 8 9 To determine whether the officers’ belief was reasonable, we consider “what the officers knew at the time they sought consent, not facts that came to light after the search began.” United States v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009) (emphasis added). If the officers did not know enough to reasonably conclude that the third party had authority over the premises, they had “a duty to inquire further” before they could rely on her consent to the search. United States v. Goins, 437 F.3d 644, 648 (7th Cir. 2006). As one treatise puts it: “sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’ ” 4 Wayne R. Lafave, Search and Seizure § 8.3(g) (5th ed. 2018). 10 When the search began, the agents had four facts: Terry left Carson alone in the apartment for about forty-five minutes, Carson was wearing a bathrobe, she appeared sleepy, and she consented to the search without hesitation. They did not know who she was, what her relationship to Terry was, why she was in the apartment, how long she had been in the apartment, or whether she lived there. At that point, the agents did not know that Carson was the mother of Terry's child—so it was wrong for the district court to rely on that fact in evaluating Carson's apparent authority. See Alexander, 573 F.3d at 474 (explaining that facts that come to light after a search begins cannot support apparent authority to consent). The facts that the agents had made it reasonable for them to conclude that Carson had spent the night at Terry's apartment. That might have been an indication that she lived with him, but there are multiple other possibilities. She could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship to Terry. And the existence of so many other equally plausible possibilities should have prompted the agents to “inquire further.” See Goins, 437 F.3d at 648. But they did not. Instead, they thought that it was safe to assume that Carson had spent the night in the apartment, therefore lived in the apartment, therefore had joint access to or control over the apartment for most purposes, and therefore had the authority to consent to the search. This kind of inferential pileup falls short of the reasonableness required by the Fourth Amendment. See Rodriguez, 497 U.S. at 188–89, 110 S.Ct. 2793. A bathrobe alone does not clothe someone with apparent *1146 authority over a residence, even at 10:00 in the morning. Because the government has failed to demonstrate that an exception to the warrant requirement applies, the evidence discovered as a result of the search must be suppressed. See Basinski, 226 F.3d at 834. B. 11 12 Terry also argues that the statements that he made in his post-arrest interview should be suppressed because he did not knowingly waive his Miranda rights by choosing to speak with the agents. A defendant's “statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived Miranda rights’ when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (citation and alteration omitted). Knowing waiver requires “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (citation omitted). Terry notes that he never explicitly waived his right to remain silent and points to his refusal to sign the advice-of-rights form as evidence that he did not knowingly waive his Miranda rights. But this argument is squarely foreclosed by Supreme Court precedent. In Berghuis v. Thompkins, the defendant refused to sign a form acknowledging his Miranda rights. He remained largely silent during questioning that lasted about three hours, but he ultimately confessed to the crime. Id. at 375–76, 130 S.Ct. 2250. The Supreme Court rejected his Fifth Amendment challenge. It explained that a knowing waiver can be express or implied, id. at 384, 130 S.Ct. 2250, and that “[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford,” id. at 385, 130 S.Ct. 2250. Consistent with that principle, it concluded that the defendant knowingly waived his rights because (1) his understanding of English was sufficient evidence that he understood the rights that had been presented, id. at 385–86, 130 S.Ct. 2250, and (2) the fact that he answered the detective's questions was a sufficient “course of conduct indicating waiver,” id. at 386, 130 S.Ct. 2250 (citation omitted). 13 We agree with the district court that Terry's education, sophistication, and familiarity with the criminal justice system provides sufficient evidence that he understood his rights when the agents read them to him. See id. at 385–86, 130 S.Ct. 2250; see also Burnside, 588 F.3d at 517. And as in Berghuis, Terry's willingness to speak with the agents was a “course of conduct indicating waiver,” notwithstanding his refusal to sign the advice-of-rights form. 560 U.S. at 386, 130 S.Ct. 2250 (citation omitted). Thus, the district court correctly concluded that Terry knowingly waived his right to remain silent and properly denied his motion to suppress. * * * The evidence discovered in Terry's apartment was the fruit of an unconstitutional search, so the district court should have granted his motion to suppress it. But the district court properly denied Terry's motion to suppress his post-arrest statements. We therefore REVERSE in part, VACATE the conviction, and REMAND for proceedings consistent with this opinion.

Barrett

majority

Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property. I. In February 2012, a team of agents from the Drug Enforcement Agency (DEA) executed an arrest warrant for Dimitris Terry related to his role in a conspiracy to possess and distribute heroin. The agents didn't want others to know that Terry had been arrested because they hoped to secure his cooperation in the broader investigation; thus, they planned a quick and quiet arrest. They waited for him to return home from taking his son to school one morning, arrested him when he got out of his car, and took him to the DEA's Chicago field division for questioning. A few agents remained behind. Two of them knocked on the door of Terry's apartment, and a woman answered, wearing a bathrobe and looking sleepy. The agents identified themselves, explained that they had just arrested Terry, and asked to come inside. They didn't ask the woman who she was, how she was related to Terry, or whether she lived at the apartment. Without hesitation, the woman let the agents in, and they immediately presented her with a consent-to-search After she both read the form and had it read aloud to her, she signed it, and the search began. Only then, after the search was underway, did the agents ask the woman who she was. She identified herself as Ena Carson, the mother of Terry's son. She explained that her son lived at Terry's apartment, but she did not. Nevertheless, the agents continued the search for roughly the next hour. They recovered letters addressed to Terry showing proof of residence, four cell phones, and a suspected drug ledger. Meanwhile, two DEA agents conducted a post-arrest interview of Terry back at the field office. Before asking any questions, the agents read Terry his Miranda rights, which were also spelled out on an advice-of-rights The agents signed the form, but Terry refused to do so. When asked if he understood his rights, Terry explained that “he was not going to sign the form or initial it; that, you know, this wasn't his first go-around with law enforcement but he was willing to talk.” The agents understood Terry's statement to mean that he had prior experience with law enforcement, understood *1144 his rights, and was knowingly and voluntarily waiving them by agreeing to talk with the agents. So they wrote “Verbal Only” on the advice-of-rights form, indicating that Terry “gave verbal consent that he understood the ” Terry then answered the agents’ questions about the case and made incriminating statements about his role in the conspiracy to distribute heroin. Terry was charged with possession, distribution, and conspiracy to possess and distribute heroin in violation of (a) and 846. He moved to suppress both the evidence recovered from the search and his post-arrest statements to the agents. First, Terry argued that the search was unlawful because Carson had neither actual nor apparent authority to consent to it—all the agents knew at the time of consent was that she answered the door at Terry's apartment wearing a bathrobe. Had the agents simply inquired, Terry said, they would have discovered that Carson did not live at the apartment. Second, Terry claimed that he had not understood that he was waiving his Miranda rights when he answered the agents’ questions. Thus, he argued, the waiver was invalid and his post-arrest statements should be suppressed. After an evidentiary hearing at which the agents and Terry testified, the district court denied both motions. As to the first, the court determined that it was reasonable for the agents to assume that Carson lived at the residence and had authority to consent to the search because (1) she was permitted to be home when Terry was not; (2) her son resided at the apartment; (3) the bathrobe “indicated she was more than a mere temporary guest”; and (4) she consented to the search without hesitation. On the second motion, the court found Terry's testimony that he did not know that his statements could be used against him “simply not credible” given his many encounters with law enforcement—he has been arrested at least seventeen times since he turned eighteen—as well as his level of education and success in business. The court thought that this was strong evidence that Terry understood his rights. And because he understood his rights, the court concluded that Terry's answers to the agents’ questions provided “a clear and unequivocal waiver of his right to remain silent.” After a bench trial, the district court found Terry guilty and sentenced him to 168 months’ imprisonment. Terry asks us to vacate his conviction on the ground that the district court erroneously denied his motions to suppress. II. 1 2 In reviewing a district court's denial of a motion to suppress, we review the district court's legal conclusions de novo and its underlying factual determinations for clear error. United We give “special deference to the district court's credibility determinations because the resolution of a motion to suppress is almost always a fact-specific inquiry, and it is the district court which heard the testimony and observed the witnesses at the suppression hearing.” United A. 3 4 5 As a rule, the Fourth Amendment requires the government to get a warrant before searching someone's property. U.S. Const. amend. IV; see also United But the warrant requirement is subject to several “carefully defined” exceptions. See One is consent from a person with actual or apparent *1145 authority to give it. 226 F.3d at –34. When a person allows a third party to exercise authority over his property, he “assume[s] the risk that the third party might permit access to others, including government agents.” at 834 ). 6 7 The government does not claim that Carson had actual authority to consent to the search of Terry's apartment. The dispute is about whether she had apparent authority, which exists when “the facts available to the officer at the moment ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises,” even if the person actually had no such authority. An officer might reasonably believe that a third party has authority over certain property if the third party appears to have “joint access or control for most purposes.” United (quoting n.7, ). 8 9 To determine whether the officers’ belief was reasonable, we consider “what the officers knew at the time they sought consent, not facts that came to light after the search began.” United If the officers did not know enough to reasonably conclude that the third party had authority over the premises, they had “a duty to inquire further” before they could rely on her consent to the search. United As one treatise puts it: “sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’ ” 4 Wayne R. Lafave, Search and Seizure 8.3(g) (5th ed. 2018). 10 When the search began, the agents had four facts: Terry left Carson alone in the apartment for about forty-five minutes, Carson was wearing a bathrobe, she appeared sleepy, and she consented to the search without hesitation. They did not know who she was, what her relationship to Terry was, why she was in the apartment, how long she had been in the apartment, or whether she lived there. At that point, the agents did not know that Carson was the mother of Terry's child—so it was wrong for the district court to rely on that fact in evaluating Carson's apparent authority. See 573 F.3d at The facts that the agents had made it reasonable for them to conclude that Carson had spent the night at Terry's apartment. That might have been an indication that she lived with him, but there are multiple other possibilities. She could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship to Terry. And the existence of so many other equally plausible possibilities should have prompted the agents to “inquire further.” See 437 F.3d at But they did not. Instead, they thought that it was safe to assume that Carson had spent the night in the apartment, therefore lived in the apartment, therefore had joint access to or control over the apartment for most purposes, and therefore had the authority to consent to the search. This kind of inferential pileup falls short of the reasonableness required by the Fourth Amendment. See 497 U.S. at –89, A bathrobe alone does not clothe someone with apparent *1146 authority over a residence, even at 10:00 in the morning. Because the government has failed to demonstrate that an exception to the warrant requirement applies, the evidence discovered as a result of the search must be suppressed. See B. 11 12 Terry also argues that the statements that he made in his post-arrest interview should be suppressed because he did not knowingly waive his Miranda rights by choosing to speak with the agents. A defendant's “statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived Miranda rights’ when making the statement.” Knowing waiver requires “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Terry notes that he never explicitly waived his right to remain silent and points to his refusal to sign the advice-of-rights form as evidence that he did not knowingly waive his Miranda rights. But this argument is squarely foreclosed by Supreme Court precedent. In the defendant refused to sign a form acknowledging his Miranda rights. He remained largely silent during questioning that lasted about three hours, but he ultimately confessed to the crime. at 375–76, The Supreme Court rejected his Fifth Amendment challenge. It explained that a knowing waiver can be express or implied, and that “[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford,” Consistent with that principle, it concluded that the defendant knowingly waived his rights because (1) his understanding of English was sufficient evidence that he understood the rights that had been presented, –86, and (2) the fact that he answered the detective's questions was a sufficient “course of conduct indicating waiver,” 13 We agree with the district court that Terry's education, sophistication, and familiarity with the criminal justice system provides sufficient evidence that he understood his rights when the agents read them to him. See –86, ; see also 588 F.3d at And as in Berghuis, Terry's willingness to speak with the agents was a “course of conduct indicating waiver,” notwithstanding his refusal to sign the advice-of-rights 560 U.S. Thus, the district court correctly concluded that Terry knowingly waived his right to remain silent and properly denied his motion to suppress. * * * The evidence discovered in Terry's apartment was the fruit of an unconstitutional search, so the district court should have granted his motion to suppress it. But the district court properly denied Terry's motion to suppress his post-arrest statements. We therefore REVERSE in part, VACATE the conviction, and REMAND for proceedings consistent with this opinion.

United States v. Uriarte

Hector Uriarte was initially sentenced for firearm offenses before Congress passed the First Step Act, but we vacated his sentence on unrelated grounds before the Act's effective date. United States v. Cardena, 842 F.3d 959 (7th Cir. 2016). Despite the district court's imposition of the initial sentence, the majority concludes that “a sentence for the offense ha[d] not been imposed as of [the] date of enactment” in Uriarte's case. See First Step Act § 403(b). I respectfully disagree. As the majority sees it, a sentence “has not been imposed” as of the date of enactment if on that date the defendant is not subject to a legally binding sentence. The defendant might be in that position because he has never been sentenced; he might be in that position because he is waiting to be resentenced. Either way, the majority says, the defendant is sentence-free on the date that counts—the date that the First Step Act passed.1 I find the government's reading of the relevant language far more persuasive. The government argues that “a sentence ... has not been imposed” as of the date of enactment when, as a matter of historical fact, no sentence has ever been imposed before that date. Uriarte indisputably had been sentenced before the First Step Act took effect. Our subsequent vacatur of his sentence does not change that fact, so, the government contends, the Act does not apply to Uriarte. These competing readings reflect different takes on the statute's use of the present-perfect tense in the phrase “has not been imposed.” The present-perfect tense “denotes an act, state, or condition that is now completed or continues up to the present.” The Chicago Manual of Style ¶ 5.132 (17th ed. 2017). The government reads the phrase “has not been imposed” as denoting *607 an act that has not been completed. That act—sentencing—had been completed in Uriarte's case, even though it was subject to repetition; so, the government says, the First Step Act does not apply. The majority, by contrast, reads the phrase as denoting a condition that does not exist on the date of enactment. Because that condition—being subject to a valid sentence—did not exist for Uriarte on the relevant date, the majority concludes that the Act governs his resentencing. The grammatical structure conceivably leaves some room for either reading, but only the government's is consistent with the specific words used in the sentence. First and foremost, the statute draws the line on the date when a sentence was “imposed.” In the context of sentencing, “imposed” connotes an action by a district court, rather than the status of a defendant. See Young v. United States, 943 F.3d 460, 463 (D.C. Cir. 2019) (“[I]n ordinary usage a sentence is ‘imposed’ when a district court pronounces it.”). That is why it is perfectly coherent to describe the procedural posture of a case by saying, “a sentence was imposed last year, but it has since been vacated on appeal.” The imposition of a sentence is a historical fact that can be disaggregated from the legal status of the sentenced person. And the statute's use of a verb that describes the action of the district court puts the focus on the historical fact. Consistent with this understanding, our opinion in United States v. Pierson interpreted the word “imposed” to denote a past act, not an ongoing condition. 925 F.3d 913, 927–28 (7th Cir. 2019). In determining whether a sentence had been “imposed” as of the date of enactment, we did not examine Pierson's legal status to determine whether he was subject to an ongoing sentence on that date. Nor did we consider whether some plenary resentencing awaited Pierson in the future. Instead, we reasoned that a sentence had been imposed in the past. We explained, “a sentence is ‘imposed’ in the district court, regardless of later appeals.” Id. at 927. And later we noted that a sentence is imposed “when the district court sentenced the defendant.” Id. at 928. That language treats the district court's action, not the defendant's legal status, as the relevant marker. The former is a historical fact; the latter is a condition that is subject to change as a result of “later appeals.” The Third Circuit has read both the statute and Pierson the same way. United States v. Hodge, 948 F.3d 160, 163–64 (3d Cir. 2020) (asserting that “a sentence is ‘imposed’ ... ‘within the meaning of’ the First Step Act once ‘a sentencing order has been entered by a district court’ ” (quoting Pierson, 925 F.3d at 927–28)); see also id. at 163 (“[W]e conclude [that] the First Step Act intentionally subjected any defendant who had any sentence imposed to the original § 924(c) mandatory minimum, even if their sentence was subsequently modified.” (emphasis added)).2 *608 As further support for the government's reading, the statute turns on the imposition of “a sentence,” not “the sentence,” “the final sentence,” or “a sentence that continues to legally bind the defendant.”3 The word “a” is an indefinite article—that is, it “points to a nonspecific object, thing, or person that is not distinguished from the other members of a class.” Bryan A. Garner, Garner's Modern English Usage 991 (4th ed. 2016). The statute's use of the word “sentence” in a nonspecific sense is inconsistent with the majority's contention that the statute refers exclusively to an extant sentence. Though the majority resists the word's ordinary meaning, the indefinite article “a” is broad enough to refer to any sentence that has been imposed for the offense, even one that was subsequently vacated. Rather than being strained, as the majority suggests, this nonspecific meaning is consistent with common usage. If asked in 2016 whether “a sentence” had been imposed on Uriarte, one could easily respond “yes, but it was vacated on appeal.” Dismissing what it perceives to be an excessive focus on the statute's language, the majority grounds its reasoning in nontextual background principles. In particular, it asserts that resentencing happens on a “clean slate” after vacatur and that a vacated initial sentence therefore no longer carries any legal effect. See Krieger v. United States, 842 F.3d 490, 505 (7th Cir. 2016). Congress, it claims, must have legislated against this background principle when it enacted the First Step Act. And finding no evidence that Congress intended to depart from this principle, the majority presents its interpretation as self-evident. There are several problems with this reasoning, and the first is that the majority significantly overreads what it means to say that the defendant will be sentenced on a “clean slate.” A complete vacatur wipes the slate clean insofar as the defendant will be sentenced anew. Pepper v. United States, 562 U.S. 476, 507–08, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (holding that the law of the case doctrine does not bind the district court in a de novo resentencing); United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir. 1992) (“[T]he district court will be writing on a clean slate and may entertain any and all objections, even those not raised at the earlier sentencing.”). But a complete vacatur does not require the district court to proceed as if the initial sentencing never happened. In fact, the Sentencing Reform Act instructs district courts to do the very opposite: a district court imposing a sentence on remand must apply the Sentencing Guidelines “that were in effect on the date of the previous sentencing of the defendant prior to the appeal.” 18 U.S.C. § 3742(g)(1) (emphasis added); see also Dorsey v. United States, 567 U.S. 260, 275, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) (describing the Sentencing Reform Act as a background principle against which Congress legislates). The Sentencing Reform Act does not control this case because the disputed part of Uriarte's sentence is dictated by statute rather than derived from the Guidelines. Still, the Act's default rule for resentencing—that the Guidelines apply as they existed at the time of the initial sentencing—belies the majority's claim that *609 Congress legislates against a background understanding that a vacatur erases the initial sentence for all purposes. On the contrary, it's not unusual for the date of the initial sentencing to control the law applicable to a resentencing—even when more favorable law is enacted in the interim. See United States v. Hughes, 733 F.3d 642, 645–47 (6th Cir. 2013) (holding the Fair Sentencing Act inapplicable to a defendant who was awaiting resentencing on the Act's effective date). But even if the majority's “clean slate” principle were sound, a background principle cannot overcome statutory text.4 The majority's interpretation turns almost entirely on what it thinks Congress must have considered during the legislative process. See Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986) (“Courts should confine their attention to the purposes Congress sought to achieve by the words it used. We interpret texts.”). It posits that Congress wanted to treat a vacatur as giving a defendant a fresh start on the law as well as on the weighing of the facts so that the benefit of this remedial statute would extend more broadly. But every statute requires a resolution of competing policy interests, and Congress “may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted.” Artuz v. Bennett, 531 U.S. 4, 10, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). And on the other side of that compromise are some benefits to Congress's decision that the majority does not acknowledge. For example, the majority's approach puts a great deal of weight on the precise decretal language of an appellate opinion. Consider a potential problem posed by the appellate opinion in this very case. The majority says that in Cardena, we vacated Uriarte's sentence as a whole, albeit with instructions clarifying that the scope of the remand only covered the first firearm offense. See Cardena, 842 F.3d at 1002 (explaining that Uriarte is “entitled to resentencing” because his entire below-guidelines sentence was anchored to the Alleyne error on the sentence for the first firearm offense). I have assumed that this reading of Cardena is correct because it does not affect my reasoning in this case. But the final words of Cardena invite another possibility—that we vacated only the sentence for Uriarte's first firearm offense, leaving the remainder of the sentence—including the sentence for the second firearm offense—intact. See id. (“We VACATE the sentences of Tony Sparkman ... and Hector Uriarte on count 8 [the first firearm offense] and REMAND for resentencing consistent with this opinion.” (emphasis added)). The practical difference between a narrow vacatur and a complete vacatur can be slight. See United States v. Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011) (clarifying that an opinion vacating an entire sentence can still limit the scope of a remand). But under the majority's interpretation of section 403, the applicability of the First Step Act to Uriarte's second firearm offense would depend entirely on which way we read Cardena. If we vacated his entire sentence, he was not subject to a sentence for any firearm offense on the date that the First Step Act was enacted. But if we only vacated the sentence for the first firearm offense, then the sentence *610 for Uriarte's second firearm offense was not “wiped clean,” and he remained subject to it on the date of enactment. Cf. Hodge, 948 F.3d at 163 & n.4 (holding the First Step Act inapplicable when a limited vacatur left the federal firearm offense intact). It takes the majority a three-page footnote to parse whether the remand in Uriarte's case was limited or plenary. Drawing the line at the date of the initial sentencing, by contrast, makes it much easier to determine whether the Act applies to a given defendant. I am not persuaded by the majority's assumption that Congress must have subordinated this administrability advantage to the policy advantages that the majority invokes in support of its interpretation. After all, the superiority of one policy advantage over another is not self-evident—instead, it lies in the eye of the beholder. The majority champions its interpretation as the most equitable one because it ensures that “all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.” Maj. Op. at 601. But the majority's interpretation produces its own problematic disparities, as illustrated by this very case. Uriarte had a codefendant, Tony Sparkman. See United States v. Sparkman, No. 17-3318, 973 F.3d 771 (7th Cir. 2020). They were convicted for the same offenses, both were sentenced before the First Step Act passed, and both sentences were vacated in the same consolidated opinion. But Uriarte pushed his resentencing date back by seeking several continuances so that he could fire and then rehire counsel for his case. The majority's interpretation gives Uriarte a sentence 20 years shorter than Sparkman's—despite, it should be noted, Uriarte's greater participation in the crime—because he delayed the court with continuances. See Hodge, 948 F.3d at 164 (considering a similar hypothetical disparity and rejecting an interpretation that might allow it); Hughes, 733 F.3d at 646 (noting that the “disparities that the Court cited in Dorsey were those between initial sentencings that occurred on the same day,” as opposed to equally objectionable disparities “between initial sentencings and sentencings ‘upon remand.’ ”). As the Third Circuit observed in United States v. Hodge, “drawing the line at initial-sentence imposition is preferable to drawing the line at ultimate-sentence imposition. If we let all defendants awaiting resentencing capitalize on the First Step Act, we would favor defendants whose appeals—for whatever reason—took longer to resolve.” Id. The majority thinks it is most equitable to treat Uriarte as similarly situated to defendants awaiting sentencing in other cases rather than to the codefendant with whom he was tried and initially sentenced. I am much less confident either that this is the most equitable result or that Congress shared the majority's view. Speculating about congressional desires is a dicey enterprise, which is one reason among many that we should stick to the text. As we have said before, “[a]ny reduction in criminal penalties or in a Sentencing Guideline can pose difficult line-drawing in applying the reduction to pending cases.” Pierson, 925 F.3d at 927. Here, Congress picked a line: the applicability of the First Step Act turns on whether a sentence had been imposed on the defendant before the date of enactment. The majority is certainly correct that the vacatur of Uriarte's initial sentence altered his legal status and required the court to resentence him de novo. But that does not change the historical fact that the district court did in the past impose a sentence for his firearm offense. Nor does it mean that what was imposed by the court in 2013 was not then “a sentence.” Vacatur may metaphorically *611 “wipe the slate clean,” but it is not a time machine. Under the plain text of the statute, the First Step Act does not apply to Uriarte.

Barrett

majority

Hector Uriarte was initially sentenced for firearm offenses before Congress passed the First Step Act, but we vacated his sentence on unrelated grounds before the Act's effective date. United Despite the district court's imposition of the initial sentence, the majority concludes that “a sentence for the offense ha[d] not been imposed as of [the] date of enactment” in Uriarte's case. See First Step Act 403(b). I respectfully disagree. As the majority sees it, a sentence “has not been imposed” as of the date of enactment if on that date the defendant is not subject to a legally binding sentence. The defendant might be in that position because he has never been sentenced; he might be in that position because he is waiting to be resentenced. Either way, the majority says, the defendant is sentence-free on the date that counts—the date that the First Step Act passed.1 I find the government's reading of the relevant language far more persuasive. The government argues that “a sentence has not been imposed” as of the date of enactment when, as a matter of historical fact, no sentence has ever been imposed before that date. Uriarte indisputably had been sentenced before the First Step Act took effect. Our subsequent vacatur of his sentence does not change that fact, so, the government contends, the Act does not apply to Uriarte. These competing readings reflect different takes on the statute's use of the present-perfect tense in the phrase “has not been imposed.” The present-perfect tense “denotes an act, state, or condition that is now completed or continues up to the present.” The Chicago Manual of Style ¶ 5.132 (17th ed. 2017). The government reads the phrase “has not been imposed” as denoting *607 an act that has not been completed. That act—sentencing—had been completed in Uriarte's case, even though it was subject to repetition; so, the government says, the First Step Act does not apply. The majority, by contrast, reads the phrase as denoting a condition that does not exist on the date of enactment. Because that condition—being subject to a valid sentence—did not exist for Uriarte on the relevant date, the majority concludes that the Act governs his resentencing. The grammatical structure conceivably leaves some room for either reading, but only the government's is consistent with the specific words used in the sentence. First and foremost, the statute draws the line on the date when a sentence was “imposed.” In the context of sentencing, “imposed” connotes an action by a district court, rather than the status of a defendant. See That is why it is perfectly coherent to describe the procedural posture of a case by saying, “a sentence was imposed last year, but it has since been vacated on appeal.” The imposition of a sentence is a historical fact that can be disaggregated from the legal status of the sentenced person. And the statute's use of a verb that describes the action of the district court puts the focus on the historical fact. Consistent with this understanding, our opinion in United States v. interpreted the word “imposed” to denote a past act, not an ongoing condition. In determining whether a sentence had been “imposed” as of the date of enactment, we did not examine 's legal status to determine whether he was subject to an ongoing sentence on that date. Nor did we consider whether some plenary resentencing awaited in the future. Instead, we reasoned that a sentence had been imposed in the past. We explained, “a sentence is ‘imposed’ in the district court, regardless of later appeals.” And later we noted that a sentence is imposed “when the district court sentenced the defendant.” That language treats the district court's action, not the defendant's legal status, as the relevant marker. The former is a historical fact; the latter is a condition that is subject to change as a result of “later appeals.” The Third Circuit has read both the statute and the same way. United (asserting that “a sentence is ‘imposed’ ‘within the meaning of’ the First Step Act once ‘a sentencing order has been entered by a district court’ ” (quoting 925 F.3d at )); see also (“[W]e conclude [that] the First Step Act intentionally subjected any defendant who had any sentence imposed to the original 924(c) mandatory minimum, even if their sentence was subsequently modified.” ).2 *608 As further support for the government's reading, the statute turns on the imposition of “a sentence,” not “the sentence,” “the final sentence,” or “a sentence that continues to legally bind the defendant.”3 The word “a” is an indefinite article—that is, it “points to a nonspecific object, thing, or person that is not distinguished from the other members of a class.” Bryan A. Garner, Garner's Modern English Usage 991 The statute's use of the word “sentence” in a nonspecific sense is inconsistent with the majority's contention that the statute refers exclusively to an extant sentence. Though the majority resists the word's ordinary meaning, the indefinite article “a” is broad enough to refer to any sentence that has been imposed for the offense, even one that was subsequently vacated. Rather than being strained, as the majority suggests, this nonspecific meaning is consistent with common usage. If asked in 2016 whether “a sentence” had been imposed on Uriarte, one could easily respond “yes, but it was vacated on appeal.” Dismissing what it perceives to be an excessive focus on the statute's language, the majority grounds its reasoning in nontextual background principles. In particular, it asserts that resentencing happens on a “clean slate” after vacatur and that a vacated initial sentence therefore no longer carries any legal effect. See Congress, it claims, must have legislated against this background principle when it enacted the First Step Act. And finding no evidence that Congress intended to depart from this principle, the majority presents its interpretation as self-evident. There are several problems with this reasoning, and the first is that the majority significantly overreads what it means to say that the defendant will be sentenced on a “clean slate.” A complete vacatur wipes the slate clean insofar as the defendant will be sentenced anew. ; United But a complete vacatur does not require the district court to proceed as if the initial sentencing never happened. In fact, the Sentencing Reform Act instructs district courts to do the very opposite: a district court imposing a sentence on remand must apply the Sentencing Guidelines “that were in effect on the date of the previous sentencing of the defendant prior to the appeal.” 18 U.S.C. 3742(g)(1) ; see also The Sentencing Reform Act does not control this case because the disputed part of Uriarte's sentence is dictated by statute rather than derived from the Guidelines. Still, the Act's default rule for resentencing—that the Guidelines apply as they existed at the time of the initial sentencing—belies the majority's claim that *609 Congress legislates against a background understanding that a vacatur erases the initial sentence for all purposes. On the contrary, it's not unusual for the date of the initial sentencing to control the law applicable to a resentencing—even when more favorable law is enacted in the interim. See United But even if the majority's “clean slate” principle were sound, a background principle cannot overcome statutory text.4 The majority's interpretation turns almost entirely on what it thinks Congress must have considered during the legislative process. See It posits that Congress wanted to treat a vacatur as giving a defendant a fresh start on the law as well as on the weighing of the facts so that the benefit of this remedial statute would extend more broadly. But every statute requires a resolution of competing policy interests, and Congress “may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted.” And on the other side of that compromise are some benefits to Congress's decision that the majority does not acknowledge. For example, the majority's approach puts a great deal of weight on the precise decretal language of an appellate opinion. Consider a potential problem posed by the appellate opinion in this very case. The majority says that in we vacated Uriarte's sentence as a whole, albeit with instructions clarifying that the scope of the remand only covered the first firearm offense. See 842 F.3d at 02 I have assumed that this reading of is correct because it does not affect my reasoning in this case. But the final words of invite another possibility—that we vacated only the sentence for Uriarte's first firearm offense, leaving the remainder of the sentence—including the sentence for the second firearm offense—intact. See (“We VACATE the sentences of Tony Sparkman and Hector Uriarte on count 8 [the first firearm offense] and REMAND for resentencing consistent with this opinion.” ). The practical difference between a narrow vacatur and a complete vacatur can be slight. See United 660 F.3d 00, 06 But under the majority's interpretation of section 403, the applicability of the First Step Act to Uriarte's second firearm offense would depend entirely on which way we read If we vacated his entire sentence, he was not subject to a sentence for any firearm offense on the date that the First Step Act was enacted. But if we only vacated the sentence for the first firearm offense, then the sentence *6 for Uriarte's second firearm offense was not “wiped clean,” and he remained subject to it on the date of enactment. Cf. 948 F.3d & n.4 (holding the First Step Act inapplicable when a limited vacatur left the federal firearm offense intact). It takes the majority a three-page footnote to parse whether the remand in Uriarte's case was limited or plenary. Drawing the line at the date of the initial sentencing, by contrast, makes it much easier to determine whether the Act applies to a given defendant. I am not persuaded by the majority's assumption that Congress must have subordinated this administrability advantage to the policy advantages that the majority invokes in support of its interpretation. After all, the superiority of one policy advantage over another is not self-evident—instead, it lies in the eye of the beholder. The majority champions its interpretation as the most equitable one because it ensures that “all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.” Maj. Op. at 601. But the majority's interpretation produces its own problematic disparities, as illustrated by this very case. Uriarte had a codefendant, Tony Sparkman. See United They were convicted for the same offenses, both were sentenced before the First Step Act passed, and both sentences were vacated in the same consolidated opinion. But Uriarte pushed his resentencing date back by seeking several continuances so that he could fire and then rehire counsel for his case. The majority's interpretation gives Uriarte a sentence 20 years shorter than Sparkman's—despite, it should be noted, Uriarte's greater participation in the crime—because he delayed the court with continuances. See ; As the Third Circuit observed in United “drawing the line at initial-sentence imposition is preferable to drawing the line at ultimate-sentence imposition. If we let all defendants awaiting resentencing capitalize on the First Step Act, we would favor defendants whose appeals—for whatever reason—took longer to resolve.” The majority thinks it is most equitable to treat Uriarte as similarly situated to defendants awaiting sentencing in other cases rather than to the codefendant with whom he was tried and initially sentenced. I am much less confident either that this is the most equitable result or that Congress shared the majority's view. Speculating about congressional desires is a dicey enterprise, which is one reason among many that we should stick to the text. As we have said before, “[a]ny reduction in criminal penalties or in a Sentencing Guideline can pose difficult line-drawing in applying the reduction to pending cases.” 925 F.3d Here, Congress picked a line: the applicability of the First Step Act turns on whether a sentence had been imposed on the defendant before the date of enactment. The majority is certainly correct that the vacatur of Uriarte's initial sentence altered his legal status and required the court to resentence him de novo. But that does not change the historical fact that the district court did in the past impose a sentence for his firearm offense. Nor does it mean that what was imposed by the court in 2013 was not then “a sentence.” Vacatur may metaphorically *611 “wipe the slate clean,” but it is not a time machine. Under the plain text of the statute, the First Step Act does not apply to Uriarte.

United States v. Vaccaro

Travis Vaccaro entered a conditional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving his right to appeal the denial of his motion to suppress the gun. Vaccaro contests both *434 the pat-down search that occurred seconds after police officers pulled over his car and the search of the car that yielded the gun. The pat-down was lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The sweep of the car, which the district court upheld under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), is a closer call, but we conclude that it too was permissible. Accordingly, we affirm. Our summary of the facts is taken from an evidentiary hearing on Vaccaro's motion to suppress. Milwaukee police officers Aaron Frantal and Matthew Tracy stopped Vaccaro for running a red light. Officer Frantal testified that Vaccaro stopped his car and made a “very ferocious move” by “bending at the waist.” Vaccaro then leaned toward the passenger seat and “made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.” Officer Tracy added that he saw Vaccaro “double over bending at the waist” and then reach toward the passenger side of the car. Officer Frantal testified that Vaccaro's movements took under five seconds. Afraid that Vaccaro might be trying to “gain control of something from the back seat,” Officer Frantal drew his gun and ordered Vaccaro out of his car. The officers immediately handcuffed Vaccaro, and Officer Frantal patted him down. Meanwhile, Officer Tracy asked Vaccaro questions about his movements. Vaccaro expressed frustration to the officers and mentioned that “people are trying to kill me.” Vaccaro also said that he merely “took [his] coat off” when he pulled over. After saying that he was going to search the car, Officer Tracy asked Vaccaro seven times whether there was a gun in the car. Vaccaro responded once to reiterate that someone was trying to kill him and another time to say “I don't have anything.” Officer Tracy added that Vaccaro appeared to be “extremely nervous” and in a “real amped-up state,” which contributed to the officer's belief that Vaccaro was under the influence of drugs. As Officer Tracy questioned Vaccaro, Officer Frantal found a GPS monitor on Vaccaro's ankle. Vaccaro confirmed that he was on supervision for “false imprisonment,” which the officers understood to be a felony. Officer Frantal did not discover a weapon during the frisk. But both officers testified that they noticed a rifle case in the backseat. Neither officer said anything, they testified, for fear of their safety; they did not want to alert an “agitated” Vaccaro that they had seen the case. The officers then locked Vaccaro, still handcuffed, in the backseat of their squad car. Officer Frantal testified that Vaccaro “did not appear to be fully stable” as he was led to the car. Officer Frantal called in the traffic violation to dispatch, which drew back-up officers to the scene. Meanwhile, Officer Tracy returned to Vaccaro's car and began searching the front seats. Officer Frantal then approached the vehicle. He soon remarked that he saw a rifle case in the backseat. The officers then removed a coat on top of the rifle case and eventually confirmed that a rifle was inside it. The magistrate judge recommended that the district court deny Vaccaro's motion to suppress. She credited the officers' testimony that Vaccaro had made furtive movements because Vaccaro had admitted to taking off his jacket; therefore, she said, the officers had reasonable suspicion to frisk Vaccaro for weapons. But she discredited the officers' testimony that they had seen a rifle case in the back of Vaccaro's car before locking him in the squad car. The legality of the search therefore depended on whether Vaccaro's furtive *435 gestures provided the officers with reasonable suspicion to search the passenger compartment of the car in addition to Vaccaro's person. She concluded that they did. Vaccaro objected to the magistrate judge's report and recommendation, arguing that the immediate frisk was not justified by reasonable suspicion and that the search of the car was not a lawful protective search under Long. The government argued that both the frisk and car search were reasonable. Vaccaro's furtive movements justified the pat-down search, the government said, and locking Vaccaro in the squad car before the vehicle search enabled the officers to “avert[ ] a calamitous and explosive event.” The district judge sided with the government and denied Vaccaro's motion to suppress. The judge accepted the magistrate judge's findings of fact and discredited the officers' testimony that they had observed the rifle case in the backseat before they searched the car. But Vaccaro's furtive movements provided the officers with reasonable suspicion that he had “potentially armed himself or concealed a firearm,” which warranted a protective frisk. The district judge also concluded that the vehicle search was reasonable under Long. Although Vaccaro was handcuffed and locked in a squad car during the search, he was not under arrest and could still be “dangerous” or gain “immediate access” to weapons. While the officers' “stated bases for their suspicion of dangerousness ... are few,” the judge observed, he was “constrained” to find that the officers had reasonable suspicion that Vaccaro was dangerous based on his “furtive movements,” the “relatively late” time of the stop, and the officers' belief that Vaccaro was on drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. 2004), the judge further explained that, had “the traffic stop resulted only in the issuance of a citation for running a red light, Vaccaro would have been permitted to re-enter his vehicle.” Vaccaro then conditionally pleaded guilty to knowingly possessing a firearm as a felon. 18 U.S.C. § 922(g). He expressly reserved the right to challenge the denial of his motion to suppress. 1 On appeal, Vaccaro renews his challenge to the pat-down frisk and to the search of his car. We review the district court's underlying factual findings for clear error, and we review de novo the district court's legal conclusions, including its determinations of reasonable suspicion. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Ruiz, 785 F.3d 1134, 1140–41 (7th Cir. 2015). 2 Vaccaro contends that the district court mistakenly credited the officers' testimony that he made furtive movements before exiting his car. This argument can be dispatched quickly. Vaccaro protests that because the officers lied about seeing the rifle case before locking him in the squad car, they were also incorrect (or untruthful) about his movements. But the district court may credit all or part of a witness's testimony, especially when there is more than one permissible reading of the evidence. See United States v. McGraw, 571 F.3d 624, 629 (7th Cir. 2009). And although Vaccaro maintains that the officers' views through the rear window were obstructed by the headrests and a temporary license card, the judge credited the officers' testimony about the movements they observed, bolstered by Vaccaro's own admission that he took off his coat when he was pulled over. In light of Vaccaro's admission that he was indeed moving around, we are not left with a “definite and firm conviction” that the district court mistakenly credited the officers' testimony. *436 See United States v. Thurman, 889 F.3d 356, 363–64 (7th Cir. 2018) (finding no clear error when court faced with “he said versus they said” situation). 3 4 Because Vaccaro cannot show that the district court clearly erred in finding that he made furtive movements before leaving the car, he cannot show that the pat-down was unlawful. Vaccaro's movements, including bending forward at the waist and reaching toward the passenger and rear seats, reasonably suggested that he could be reaching for or concealing a weapon. See United States v. Evans, 994 F.2d 317, 321 (7th Cir. 1993); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985). Moreover, Vaccaro appeared to be “having difficulty with something that the officer could not see,” so the officers had reasonable suspicion to order him out of the car and to perform a pat-down search. See United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003). Vaccaro offered an innocent explanation for his movements, but an officer need not be absolutely certain that a suspect is armed before conducting a protective pat-down. See Terry, 392 U.S. at 27, 88 S.Ct. 1868; United States v. Ford, 872 F.3d 412, 415 (7th Cir. 2017). 5 6 7 Vaccaro also protests that the frisk was unreasonable because the officers handcuffed him unnecessarily. Handcuffing a suspect during a pat-down search for weapons should be the rare case. See United States v. Smith, 3 F.3d 1088, 1094 (7th Cir. 1993). But there is “a limited set of circumstances in which handcuffs are appropriate without converting a Terry stop into a full arrest,” and “[c]hief among them is officer safety and the possibility of the presence of a weapon.” Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017). Based on the officers' concern that Vaccaro might have armed himself with a weapon when they observed his “aggressive” movements, handcuffing him to conduct the frisk was reasonable. 8 9 10 11 Vaccaro next argues that the district court should have suppressed the rifle because the officers discovered it during an unlawful search of his car. The government asserts that Michigan v. Long justified the search. The Long exception to the warrant requirement permits the police to search a vehicle when there are “genuine safety or evidentiary concerns.” Arizona v. Gant, 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Long holds: “[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” 463 U.S. at 1049–50, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). In applying this test, the key question is whether the search was reasonable. See United States v. Correa, 908 F.3d 208, 217 (7th Cir. 2018). Long searches are grounded in concern for officer safety, see 463 U.S. at 1050, 103 S.Ct. 3469, so if that concern is not present, Long does not justify the search. See Gant, 556 U.S. at 338–39, 129 S.Ct. 1710 (discussing how searches incident to arrest are not reasonable if concerns underlying exception to warrant requirement are absent). 12 13 Long’s first prong is satisfied here because the officers had reasonable suspicion to believe that Vaccaro was dangerous at the time they searched the car. In addition to Vaccaro's furtive movements, the officers suspected that Vaccaro was under the influence of drugs, which gave them greater reason to fear for their *437 safety. See Long, 463 U.S. at 1050, 103 S.Ct. 3469; United States v. Kenerson, 585 F.3d 389, 392 (7th Cir. 2009). The officers also discovered that Vaccaro was on probation for “false imprisonment,” and prior criminal activity is one factor that can contribute to reasonable suspicion. See United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005). 14 The second prong of the Long inquiry requires the government to establish that the officers reasonably suspected that Vaccaro could gain “immediate control” of weapons in the vehicle. See 463 U.S. at 1049–50, 103 S.Ct. 3469; United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018). Vaccaro claims that he could not have immediately obtained weapons because he was handcuffed and locked in the back of a squad car. He insists that this case is controlled by Arizona v. Gant, in which the Supreme Court held that officer-safety concerns did not justify a search incident to the arrest of a driver who had been handcuffed and locked in the back seat of a squad car. 556 U.S. at 335, 129 S.Ct. 1710. The government, on the other hand, contends that Gant doesn't govern because Vaccaro wasn't arrested. When a suspect is merely detained, the government argues, United States v. Arnold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir. 2004). In Arnold, which we decided before Gant, the motorist made furtive movements upon being stopped by police. 388 F.3d at 238. The officer asked him to step out of the vehicle, patted him down, and “placed [the motorist] in the back seat of the patrol car so that he could ensure that the traffic stop was completed safely.” Id. The officer then decided to have the car towed because the defendant had been driving with a learner's permit without a licensed driver. Id. Before towing the vehicle, however, the officer searched it and discovered a firearm. Id. at 238–39. We held that officer-safety concerns justified the search under Long. Id. at 241. This was a traffic stop, not an arrest, and the officer “may have permitted [the motorist] to gather items from the car before leaving the scene even if the officer would not have permitted him to drive the vehicle.” Id. We also noted that while the motorist was in the back seat of the squad car, he was not handcuffed and therefore “could have broken away from [the officer's] control.” Id. At oral argument, we asked the government whether Gant limited or overruled Arnold, and it maintained that Arnold is still good law. We agree. In Arnold, it was reasonable to believe that the defendant, who was not under arrest, could have regained access to his vehicle. See id. at 238, 241; see also Gant, 556 U.S. at 352, 129 S.Ct. 1710 (Scalia, J., concurring) (“In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.”). In Gant, the opposite was true: the defendants were not going to return to the vehicle because they were arrested, handcuffed, and locked in squad cars. See 556 U.S. at 336–37, 344, 129 S.Ct. 1710. The cases therefore do not conflict: Arnold applies to Terry stops; Gant applies to arrests. Thus, if Vaccaro had been under arrest, Gant would control. And if Vaccaro contended that he had been under arrest, we would face the difficult task of determining whether this Terry stop became an arrest. See, e.g., United States v. Bullock, 632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not argue that the officers arrested him. To the contrary, he conceded at oral argument that he had been subjected to a Terry stop, not an arrest, and that he would have been allowed back to his *438 vehicle at the conclusion of his brief detention if the officers had found no contraband.1 Vaccaro's concession dictates the disposition of this case. By admitting that he would have been allowed to return to his car, Vaccaro conceded that he could have gained “immediate control of weapons” inside the vehicle. The search was therefore lawful under Long, 463 U.S. at 1049, 103 S.Ct. 3469; Arnold, 388 F.3d at 241.

Barrett

majority

Travis Vaccaro entered a conditional guilty plea to possessing a firearm as a felon, (g), preserving his right to appeal the denial of his motion to suppress the gun. Vaccaro contests both *434 the pat-down search that occurred seconds after police officers pulled over his car and the search of the car that yielded the gun. The pat-down was lawful under The sweep of the car, which the district court upheld under is a closer call, but we conclude that it too was permissible. Accordingly, we affirm. Our summary of the facts is taken from an evidentiary hearing on Vaccaro's motion to suppress. Milwaukee police officers Aaron Frantal and Matthew Tracy stopped Vaccaro for running a red light. Officer Frantal testified that Vaccaro stopped his car and made a “very ferocious move” by “bending at the waist.” Vaccaro then leaned toward the passenger seat and “made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.” Officer Tracy added that he saw Vaccaro “double over bending at the waist” and then reach toward the passenger side of the Officer Frantal testified that Vaccaro's movements took under five seconds. Afraid that Vaccaro might be trying to “gain control of something from the back seat,” Officer Frantal drew his gun and ordered Vaccaro out of his The officers immediately handcuffed Vaccaro, and Officer Frantal patted him down. Meanwhile, Officer Tracy asked Vaccaro questions about his movements. Vaccaro expressed frustration to the officers and mentioned that “people are trying to kill me.” Vaccaro also said that he merely “took [his] coat off” when he pulled over. After saying that he was going to search the car, Officer Tracy asked Vaccaro seven times whether there was a gun in the Vaccaro responded once to reiterate that someone was trying to kill him and another time to say “I don't have anything.” Officer Tracy added that Vaccaro appeared to be “extremely nervous” and in a “real amped-up state,” which contributed to the officer's belief that Vaccaro was under the influence of drugs. As Officer Tracy questioned Vaccaro, Officer Frantal found a GPS monitor on Vaccaro's ankle. Vaccaro confirmed that he was on supervision for “false imprisonment,” which the officers understood to be a felony. Officer Frantal did not discover a weapon during the frisk. But both officers testified that they noticed a rifle case in the backseat. Neither officer said anything, they testified, for fear of their safety; they did not want to alert an “agitated” Vaccaro that they had seen the case. The officers then locked Vaccaro, still handcuffed, in the backseat of their squad Officer Frantal testified that Vaccaro “did not appear to be fully stable” as he was led to the Officer Frantal called in the traffic violation to dispatch, which drew back-up officers to the scene. Meanwhile, Officer Tracy returned to Vaccaro's car and began searching the front seats. Officer Frantal then approached the vehicle. He soon remarked that he saw a rifle case in the backseat. The officers then removed a coat on top of the rifle case and eventually confirmed that a rifle was inside it. The magistrate judge recommended that the district court deny Vaccaro's motion to suppress. She credited the officers' testimony that Vaccaro had made furtive movements because Vaccaro had admitted to taking off his jacket; therefore, she said, the officers had reasonable suspicion to frisk Vaccaro for weapons. But she discredited the officers' testimony that they had seen a rifle case in the back of Vaccaro's car before locking him in the squad The legality of the search therefore depended on whether Vaccaro's furtive *435 gestures provided the officers with reasonable suspicion to search the passenger compartment of the car in addition to Vaccaro's person. She concluded that they d Vaccaro objected to the magistrate judge's report and recommendation, arguing that the immediate frisk was not justified by reasonable suspicion and that the search of the car was not a lawful protective search under The government argued that both the frisk and car search were reasonable. Vaccaro's furtive movements justified the pat-down search, the government said, and locking Vaccaro in the squad car before the vehicle search enabled the officers to “avert[ ] a calamitous and explosive event.” The district judge sided with the government and denied Vaccaro's motion to suppress. The judge accepted the magistrate judge's findings of fact and discredited the officers' testimony that they had observed the rifle case in the backseat before they searched the But Vaccaro's furtive movements provided the officers with reasonable suspicion that he had “potentially armed himself or concealed a firearm,” which warranted a protective frisk. The district judge also concluded that the vehicle search was reasonable under Although Vaccaro was handcuffed and locked in a squad car during the search, he was not under arrest and could still be “dangerous” or gain “immediate access” to weapons. While the officers' “stated bases for their suspicion of dangerousness are few,” the judge observed, he was “constrained” to find that the officers had reasonable suspicion that Vaccaro was dangerous based on his “furtive movements,” the “relatively late” time of the stop, and the officers' belief that Vaccaro was on drugs. Citing United the judge further explained that, had “the traffic stop resulted only in the issuance of a citation for running a red light, Vaccaro would have been permitted to re-enter his vehicle.” Vaccaro then conditionally pleaded guilty to knowingly possessing a firearm as a felon. (g). He expressly reserved the right to challenge the denial of his motion to suppress. 1 On appeal, Vaccaro renews his challenge to the pat-down frisk and to the search of his We review the district court's underlying factual findings for clear error, and we review de novo the district court's legal conclusions, including its determinations of reasonable suspicion. See ; United 2 Vaccaro contends that the district court mistakenly credited the officers' testimony that he made furtive movements before exiting his This argument can be dispatched quickly. Vaccaro protests that because the officers lied about seeing the rifle case before locking him in the squad car, they were also incorrect (or untruthful) about his movements. But the district court may credit all or part of a witness's testimony, especially when there is more than one permissible reading of the evidence. See United And although Vaccaro maintains that the officers' views through the rear window were obstructed by the headrests and a temporary license card, the judge credited the officers' testimony about the movements they observed, bolstered by Vaccaro's own admission that he took off his coat when he was pulled over. In light of Vaccaro's admission that he was indeed moving around, we are not left with a “definite and firm conviction” that the district court mistakenly credited the officers' testimony. *436 See United 3 4 Because Vaccaro cannot show that the district court clearly erred in finding that he made furtive movements before leaving the car, he cannot show that the pat-down was unlawful. Vaccaro's movements, including bending forward at the waist and reaching toward the passenger and rear seats, reasonably suggested that he could be reaching for or concealing a weapon. See United ; United Moreover, Vaccaro appeared to be “having difficulty with something that the officer could not see,” so the officers had reasonable suspicion to order him out of the car and to perform a pat-down search. See United Vaccaro offered an innocent explanation for his movements, but an officer need not be absolutely certain that a suspect is armed before conducting a protective pat-down. See 5 6 7 Vaccaro also protests that the frisk was unreasonable because the officers handcuffed him unnecessarily. Handcuffing a suspect during a pat-down search for weapons should be the rare case. See United But there is “a limited set of circumstances in which handcuffs are appropriate without converting a stop into a full arrest,” and “[c]hief among them is officer safety and the possibility of the presence of a weapon.” Based on the officers' concern that Vaccaro might have armed himself with a weapon when they observed his “aggressive” movements, handcuffing him to conduct the frisk was reasonable. 8 9 10 11 Vaccaro next argues that the district court should have suppressed the rifle because the officers discovered it during an unlawful search of his The government asserts that justified the search. The exception to the warrant requirement permits the police to search a vehicle when there are “genuine safety or evidentiary concerns.” holds: “[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” –50, (quoting searches are grounded in concern for officer safety, see so if that concern is not present, does not justify the search. See –39, (discussing how searches incident to arrest are not reasonable if concerns underlying exception to warrant requirement are absent). 12 13 ’s first prong is satisfied here because the officers had reasonable suspicion to believe that Vaccaro was dangerous at the time they searched the In addition to Vaccaro's furtive movements, the officers suspected that Vaccaro was under the influence of drugs, which gave them greater reason to fear for their *437 safety. See The officers also discovered that Vaccaro was on probation for “false imprisonment,” and prior criminal activity is one factor that can contribute to reasonable suspicion. See United 14 The second prong of the inquiry requires the government to establish that the officers reasonably suspected that Vaccaro could gain “immediate control” of weapons in the vehicle. See –50, Vaccaro claims that he could not have immediately obtained weapons because he was handcuffed and locked in the back of a squad He insists that this case is controlled by in which the Supreme Court held that officer-safety concerns did not justify a search incident to the arrest of a driver who had been handcuffed and locked in the back seat of a squad The government, on the other hand, contends that doesn't govern because Vaccaro wasn't arrested. When a suspect is merely detained, the government argues, United controls the inquiry. In which we decided before the motorist made furtive movements upon being stopped by The officer asked him to step out of the vehicle, patted him down, and “placed [the motorist] in the back seat of the patrol car so that he could ensure that the traffic stop was completed safely.” The officer then decided to have the car towed because the defendant had been driving with a learner's permit without a licensed driver. Before towing the vehicle, however, the officer searched it and discovered a firearm. at 238–39. We held that officer-safety concerns justified the search under at This was a traffic stop, not an arrest, and the officer “may have permitted [the motorist] to gather items from the car before leaving the scene even if the officer would not have permitted him to drive the vehicle.” We also noted that while the motorist was in the back seat of the squad car, he was not handcuffed and therefore “could have broken away from [the officer's] control.” At oral argument, we asked the government whether limited or overruled and it maintained that is still good law. We agree. In it was reasonable to believe that the defendant, who was not under arrest, could have regained access to his vehicle. See at 238, ; see also (Scalia, J., concurring) (“In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.”). In the opposite was true: the defendants were not going to return to the vehicle because they were arrested, handcuffed, and locked in squad cars. See –37, 344, The cases therefore do not conflict: applies to stops; applies to arrests. Thus, if Vaccaro had been under arrest, would control. And if Vaccaro contended that he had been under arrest, we would face the difficult task of determining whether this stop became an arrest. See, e.g., United 632 F.3d But Vaccaro does not argue that the officers arrested him. To the contrary, he conceded at oral argument that he had been subjected to a stop, not an arrest, and that he would have been allowed back to his *438 vehicle at the conclusion of his brief detention if the officers had found no contraband.1 Vaccaro's concession dictates the disposition of this case. By admitting that he would have been allowed to return to his car, Vaccaro conceded that he could have gained “immediate control of weapons” inside the vehicle. The search was therefore lawful under ; 388 F.3d at

United States v. Walker

Richard Walker was convicted for failing to register as a sex offender between 2016 and 2017, as required by the Sex Offender Registration and Notification Act. He argues that his conviction must be vacated because he did not have to register at that time. We agree. Because his obligation to *578 register—triggered by a 1998 Colorado conviction—expired after fifteen years, we reverse the district court and vacate Walker’s conviction and sentence. I. In 1997, Richard Walker sexually assaulted his four- and six-year-old nephews. In 1998, he pleaded guilty to violating a Colorado law that prohibits sexual contact with a child under fifteen by anyone who is a least four years older than the child. Colo. Rev. Stat. § 18-3-405(1). Walker was sentenced to four years’ probation, but probation was later revoked, and he served a term in prison. After his release, Walker had to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA imposes a three-tier progressive registration scheme that tracks the severity of the original offense. Tier I offenders must register for 15 years, Tier II offenders for 25 years, and Tier III offenders for life. See 34 U.S.C. § 20915(a). In 2017, Walker was indicted for failing to register as a sex offender from June 2016 to July 2017. See 18 U.S.C. § 2250(a). To prove “failure to register,” the government must, among other things, prove that the defendant was in fact required to register. Id. § 2250(a)(1). Walker moved to dismiss the indictment, arguing that his 1998 conviction was only a Tier I offense, which would mean that his obligation to register as a sex offender ended 15 years after his conviction and sentence. Because he had no obligation to register between June 2016 and July 2017, he contended, he could not be convicted for failing to do so. The district court disagreed. It determined that Walker was at least a Tier II offender and denied his motion to dismiss. Walker later entered a conditional guilty plea, preserving his right to appeal the district court’s decision about whether the law required him to register as a sex offender. At sentencing, the district court had to determine more precisely whether Walker was a Tier II or Tier III offender in order to calculate his guidelines range. The relevant difference between Tiers II and III for purposes of the district court’s analysis is the age of the victim: if the defendant’s victim was under 13, then he is a Tier III offender; if the victim was a minor age 13 or older, then he is a Tier II offender. See 34 U.S.C. § 20911(4)(A)(ii) & (3)(A). Though Walker’s conviction under the Colorado statute communicated only that his victim was under 15, the district court looked past the conviction to find that his victims were actually ages four and six. The court thus held that Walker was a Tier III offender and sentenced him to a below-guidelines 26-month term of imprisonment. Walker appeals, arguing that his conviction must be vacated because he is a Tier I offender and was therefore not required to register during the relevant time. II. Walker’s conviction and sentence both turn on his tier classification. If he is a Tier I offender, we must reverse the denial of his motion to dismiss and vacate his conviction. If he is a Tier II offender, his conviction stands, but he must be resentenced. If he is a Tier III offender, his conviction and sentence must be affirmed. A. As relevant here, a person is a Tier II sex offender if his offense of conviction is “comparable to or more severe than ... abusive sexual contact (as described in section 2244 of title 18)” and is “committed against a minor.” 34 U.S.C. § 20911(3)(A)(iv). A person is a Tier III *579 offender if he commits the same kind of offense “against a minor who has not attained the age of 13 years.” Id. § 20911(4)(A)(ii).1 And if a sex offender does not satisfy the requirements of Tier II or Tier III, then he is a Tier I offender. Id. § 20911(2). 1 2 Determining Walker’s proper tier classification thus requires us to compare his 1998 Colorado conviction with SORNA’s tier definitions. Because SORNA instructs us to compare Walker’s offense to the “offenses” described in corresponding sections of the Federal Criminal Code (18 U.S.C. § 2244 and offenses listed therein), we employ the “categorical approach.” See United States v. Taylor, 644 F.3d 573, 576 (7th Cir. 2011); see also Nijhawan v. Holder, 557 U.S. 29, 36–37, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (explaining that reference “to an ‘offense described in’ a particular section of the Federal Criminal Code” indicates a generic offense that calls for a categorical analysis); United States v. White, 782 F.3d 1118, 1132–33 (10th Cir. 2015). Under the categorical approach, the actual facts underlying the defendant’s conviction don’t matter. Instead, the court compares the elements of the predicate offense—i.e., the facts necessary for conviction—to the elements of the relevant federal offense. If the elements of the predicate offense are the same (or narrower) than the federal offense, there is a categorical match. See Descamps v. United States, 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). But if the elements of the state conviction sweep more broadly such that there is a “realistic probability ... that the State would apply its statute to conduct that falls outside” the definition of the federal crime, then the prior offense is not a categorical match. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).2 SORNA, however, adds a wrinkle to the analysis. For a sex offender to qualify for Tier II or III, SORNA also requires that his victim have certain characteristics distinct from the elements of the referenced federal offenses—namely, that the victim be under a specified age. The two circuits to have directly considered the implications of SORNA’s age requirements agree that the text compels a circumstance-specific analysis of the victim’s age on top of the otherwise categorical comparison between the state and federal offenses. See United States v. Berry, 814 F.3d 192, 196–98 (4th Cir. 2016) (applying “the categorical approach to the generic crimes listed in SORNA’s tier III definition” but reading SORNA’s reference to a victim “who has *580 not attained the age of 13” to be “an instruction to courts to consider the specific circumstance of a victim’s age”); White, 782 F.3d at 1135 (“Congress intended courts to apply a categorical approach to sex offender tier classifications designated by reference to a specific federal criminal statute, but to employ a circumstance-specific comparison for the limited purpose of determining the victim’s age.”). We join the Fourth and Tenth Circuits in concluding that SORNA’s text compels a hybrid approach. In so doing, we follow the Supreme Court’s analysis in Nijhawan v. Holder. See 557 U.S. at 37–38, 129 S.Ct. 2294 (acknowledging that a single provision might call for a hybrid approach—part categorical and part circumstance-specific—when comparing the defendant’s offense of conviction). In Nijhawan, the Supreme Court emphasized that the “aggravated felony” provision of the Immigration and Nationality Act “contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” Id. at 38, 129 S.Ct. 2294. Sometimes that dual language appears in a single provision. The Court identified subparagraph (P) of the aggravated felony statute as one such example. Id. at 37–38, 129 S.Ct. 2294. That provision refers to “an offense” that amounts to “forging ... passport[s]” but adds an exception to that qualifying crime for offenses committed under particular circumstances. Id. (alterations in original). The Court explained that while the forging-passports language “may well refer to a generic crime ... the exception cannot possibly refer to a generic crime ... because there is no such generic crime.” Id. at 37, 129 S.Ct. 2294. If no criminal statute contains both the offense and the exception outlined in subparagraph (P), then it would be impossible for a defendant’s conviction to qualify as a predicate under that provision, and the provision would be void of any meaningful application. Id. Thus, the Court concluded that “the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion.” Id. at 38, 129 S.Ct. 2294; see also id. (explaining that, in the same way, subparagraph (K)(ii) would be severely diluted without a hybrid analysis). Similar considerations dictate a hybrid approach in this case. A person is a Tier II offender only if his prior offense matches “abusive sexual contact (as described in section 2244 of title 18)” and was “committed against a minor.” 34 U.S.C. § 20911(3)(A). And he is a Tier III offender only if his prior offense matches one of the same federal offenses and was committed “against a minor who has not attained the age of 13 years.” Id. § 20911(4)(A). While the references to 18 U.S.C. § 2244 trigger a categorical approach, we must also give meaning to the age-qualifiers that appear in both Tier II and Tier III. Only two of the five offenses cross-referenced in § 2244 even refer to age, and none of them have SORNA’s specific age requirements as elements. Cf. Nijhawan, 557 U.S. at 38, 129 S.Ct. 2294 (when the statute’s added textual condition appears in only one of three cross-referenced criminal statutes, reading the condition as part of the generic crime would render the other two cross references “pointless”). Under Nijhawan, the age requirements are best and most naturally read to refer to the “particular circumstances in which an offender committed the crime on a particular occasion.” Id. Because SORNA’s tier provisions highlight victim age as an additional circumstance-specific consideration—apart from the categorical analysis comparing the defendant’s offense to the federal offenses listed in § 2244—we must treat it like one. *581 The government argues that a circumstance-specific inquiry into victim age resolves this case because knowing the actual ages of Walker’s victims (four and six) not only satisfies SORNA’s Tier III victim-age requirement, but also places his offense within the scope of “abusive sexual contact (as described in section 2244 of title 18).” See 34 U.S.C. § 20911(4)(A)(ii); see also 18 U.S.C. § 2244(a)(5) (sexual contact with a person who has not attained the age of 12 years constitutes abusive sexual contact). In other words, the government wants to double dip: it asks us to apply SORNA’s age requirement as both an independent addition to the categorical analysis and an exception within the categorical analysis, thereby collapsing the two-part inquiry outlined above. That approach is inconsistent with both the text of SORNA—which, as we have already said, calls for a categorical approach—and the Supreme Court’s precedent on conducting a categorical analysis. The Court has made clear that in a categorical analysis, there are no exceptions to the elemental comparison. See Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2257, 195 L.Ed.2d 604 (2016) (“For more than 25 years, we have repeatedly made clear that application of the [categorical approach] involves, and involves only, comparing elements.”). While it may “seem counterintuitive,” id. at 2251, it isn’t enough to know that Walker’s victims were four and six—nor is it enough to know that he satisfies the “against a minor who has not attained the age of 13” requirement of Tier III. We must first consider whether his Colorado conviction is a categorical match to “abusive sexual contact (as described in section 2244 of title 18).” 34 U.S.C. § 20911(3)(A)(iv) & (4)(A)(ii). If it is, we then consider the age of the victim to complete the tier-classification determination. This kind of distinction, derived from the text and structure of the statute, is familiar to our SORNA jurisprudence. See United States v. Rogers, 804 F.3d 1233, 1234 (7th Cir. 2015) (“We conclude that the threshold definition of ‘sex offense’ found in § 16911(5)(A)(i) requires a categorical approach—an inquiry limited to the elements of the offense—but the exception in subsection (5)(C) calls for an examination of the specific facts of the offense conduct.”). We follow the same approach in analyzing Walker’s case. B. 3 We start with a categorical comparison of Walker’s Colorado conviction to the generic federal crime of abusive sexual contact as defined by § 2244. To sustain a conviction under the Colorado statute, a jury must find (or, as here, a guilty plea must admit) that the defendant “knowingly subject[ed]” a child who was “less than fifteen years of age” to “any sexual contact” and that the defendant was “at least four years older than the victim.” Colo. Rev. Stat. § 18-3-405(1). For its part, § 2244 defines abusive sexual contact as “knowingly engag[ing] in or caus[ing] sexual contact with or by another person, if doing so would violate” any one of five cross-referenced offenses “had the sexual contact been a sexual act.” See 18 U.S.C. § 2244(a). As relevant here, those cross-referenced offenses prohibit knowingly engaging in a sexual act with another person if that person: is “incapable of appraising the nature of the conduct,” § 2242(2)(A); “has attained the age of 12 years but has not attained the age of 16 years” and “is at least four years younger than the person so engaging,” § 2243(a); or “has not attained the age of 12 years,” § 2241(c). See id. § 2244(a)(2), (3), & (5). Because the cross-referenced offenses (as modified by § 2244) and the Colorado *582 statute both contain the element of knowing sexual contact with another, the only question is whether the Colorado statute’s requirements that the victim be under 15 and at least four years younger than the defendant categorically match the remaining element(s) in any of the federal offenses. The district court determined that the Colorado statute is a categorical match for § 2242(2)(A) (victim incapable of appraising the nature of sexual conduct). In reaching that conclusion it explained that the federal statute “appears to be very broad,” encompassing adult victims with cognitive disabilities, those incapacitated by drugs or alcohol, and seniors with cognitive impairment. The court reasoned that young children are incapable of understanding the nature of sexual conduct. So, it continued, “if one assumes that children under the age of fifteen are ‘incapable of appraising the nature’ of sexual contact/assault, then § 2242(2)(A) appears to be much broader, and to encompass far more behavior, than the Colorado statute,” making it a categorical match. We disagree. Certainly, many children, and indisputably all children under a certain age, are incapable of appraising the nature of sexual conduct. But the assumption that children under the age of 15 are categorically incapable of understanding sexual conduct goes too far. At the very least, it is safe to say that many 14-year-olds understand the nature of sexual conduct. That means that the Colorado statute criminalizes conduct not covered by § 2242(2)(A)—i.e., the state statute “sweeps more broadly” than the federal statute—and there is no categorical match. See Descamps, 570 U.S. at 261, 133 S.Ct. 2276. So that leaves either § 2243(a) (victim at least 12 but under 16, and four years younger than the defendant) or § 2241(c) (victim under 12). Neither is a categorical match for the Colorado statute at issue here. Though narrower in some respects, the Colorado statute sweeps more broadly than § 2243(a) because it covers sexual contact against some victims under 12, and § 2243(a) does not. Likewise, the Colorado statute is broader than § 2241(c) to the extent that it covers some victims between the ages of 12 and 15, and § 2241(c) does not. In short, a conviction under the Colorado statute doesn’t necessarily satisfy the elements of either federal offense and so fails the categorical analysis. Because Walker’s Colorado conviction is not a categorical match with “abusive sexual contact (as described in section 2244 of title 18),” he does not qualify for Tier II or Tier III status regardless of the actual ages of his victims. Walker is thus a Tier I offender. See 34 U.S.C. § 20911(2).

Barrett

majority

Richard Walker was convicted for failing to register as a sex offender between and 2017, as required by the Sex Offender Registration and Notification Act. He argues that his conviction must be vacated because he did not have to register at that time. We agree. Because his obligation to *578 register—triggered by a 1998 Colorado conviction—expired after fifteen years, we reverse the district court and vacate Walker’s conviction and sentence. I. In 1997, Richard Walker sexually assaulted his four- and six-year-old nephews. In 1998, he pleaded guilty to violating a Colorado law that prohibits sexual contact with a child under fifteen by anyone who is a least four years older than the child. (1). Walker was sentenced to four years’ probation, but probation was later revoked, and he served a term in prison. After his release, Walker had to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA imposes a three-tier progressive registration scheme that tracks the severity of the original offense. Tier I offenders must register for 15 years, Tier II offenders for 25 years, and Tier III offenders for life. See (a). In 2017, Walker was indicted for failing to register as a sex offender from June to July 2017. See (a). To prove “failure to register,” the government must, among other things, prove that the defendant was in fact required to register. 2250(a)(1). Walker moved to dismiss the indictment, arguing that his 1998 conviction was only a Tier I offense, which would mean that his obligation to register as a sex offender ended 15 years after his conviction and sentence. Because he had no obligation to register between June and July 2017, he contended, he could not be convicted for failing to do so. The district court disagreed. It determined that Walker was at least a Tier II offender and denied his motion to dismiss. Walker later entered a conditional guilty plea, preserving his right to appeal the district court’s decision about whether the law required him to register as a sex offender. At sentencing, the district court had to determine more precisely whether Walker was a Tier II or Tier III offender in order to calculate his guidelines range. The relevant difference between Tiers II and III for purposes of the district court’s analysis is the age of the victim: if the defendant’s victim was under 13, then he is a Tier III offender; if the victim was a minor age 13 or older, then he is a Tier II offender. See 34 U.S.C. 20911(4)(A)(ii) & (3)(A). Though Walker’s conviction under the Colorado statute communicated only that his victim was under 15, the district court looked past the conviction to find that his victims were actually ages four and six. The court thus held that Walker was a Tier III offender and sentenced him to a below-guidelines 26-month term of imprisonment. Walker appeals, arguing that his conviction must be vacated because he is a Tier I offender and was therefore not required to register during the relevant time. II. Walker’s conviction and sentence both turn on his tier classification. If he is a Tier I offender, we must reverse the denial of his motion to dismiss and vacate his conviction. If he is a Tier II offender, his conviction stands, but he must be resentenced. If he is a Tier III offender, his conviction and sentence must be affirmed. A. As relevant here, a person is a Tier II sex offender if his offense of conviction is “comparable to or more severe than abusive sexual contact (as described in section 2244 of title 18)” and is “committed against a minor.” 34 U.S.C. 20911(3)(A)(iv). A person is a Tier III *579 offender if he commits the same kind of offense “against a minor who has not attained the age of 13 years.” 20911(4)(A)(ii).1 And if a sex offender does not satisfy the requirements of Tier II or Tier III, then he is a Tier I offender. 20911(2). 1 2 Determining Walker’s proper tier classification thus requires us to compare his 1998 Colorado conviction with SORNA’s tier definitions. Because SORNA instructs us to compare Walker’s offense to the “offenses” described in corresponding sections of the Federal Criminal Code (18 U.S.C. 2244 and offenses listed therein), we employ the “categorical approach.” See United ; see also ; United Under the categorical approach, the actual facts underlying the defendant’s conviction don’t matter. Instead, the court compares the elements of the predicate offense—i.e., the facts necessary for conviction—to the elements of the relevant federal offense. If the elements of the predicate offense are the same (or narrower) than the federal offense, there is a categorical match. See But if the elements of the state conviction sweep more broadly such that there is a “realistic probability that the State would apply its statute to conduct that falls outside” the definition of the federal crime, then the prior offense is not a categorical match.2 SORNA, however, adds a wrinkle to the analysis. For a sex offender to qualify for Tier II or III, SORNA also requires that his victim have certain characteristics distinct from the elements of the referenced federal offenses—namely, that the victim be under a specified age. The two circuits to have directly considered the implications of SORNA’s age requirements agree that the text compels a circumstance-specific analysis of the victim’s age on top of the otherwise categorical comparison between the state and federal offenses. See United ; White, We join the Fourth and Tenth Circuits in concluding that SORNA’s text compels a hybrid approach. In so doing, we follow the Supreme Court’s analysis in See –38, (acknowledging that a single provision might call for a hybrid approach—part categorical and part circumstance-specific—when comparing the defendant’s offense of conviction). In the Supreme Court emphasized that the “aggravated felony” provision of the Immigration and Nationality Act “contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” Sometimes that dual language appears in a single provision. The Court identified subparagraph (P) of the aggravated felony statute as one such example. –38, That provision refers to “an offense” that amounts to “forging passport[s]” but adds an exception to that qualifying crime for offenses committed under particular circumstances. The Court explained that while the forging-passports language “may well refer to a generic crime the exception cannot possibly refer to a generic crime because there is no such generic crime.” If no criminal statute contains both the offense and the exception outlined in subparagraph (P), then it would be impossible for a defendant’s conviction to qualify as a predicate under that provision, and the provision would be void of any meaningful application. Thus, the Court concluded that “the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion.” ; see also Similar considerations dictate a hybrid approach in this case. A person is a Tier II offender only if his prior offense matches “abusive sexual contact (as described in section 2244 of title 18)” and was “committed against a minor.” 34 U.S.C. 20911(3)(A). And he is a Tier III offender only if his prior offense matches one of the same federal offenses and was committed “against a minor who has not attained the age of 13 years.” 20911(4)(A). While the references to 18 U.S.C. 2244 trigger a categorical approach, we must also give meaning to the age-qualifiers that appear in both Tier II and Tier III. Only two of the five offenses cross-referenced in 2244 even refer to age, and none of them have SORNA’s specific age requirements as elements. Cf. 557 U.S. (when the statute’s added textual condition appears in only one of three cross-referenced criminal statutes, reading the condition as part of the generic crime would render the other two cross references “pointless”). Under the age requirements are best and most naturally read to refer to the “particular circumstances in which an offender committed the crime on a particular occasion.” Because SORNA’s tier provisions highlight victim age as an additional circumstance-specific consideration—apart from the categorical analysis comparing the defendant’s offense to the federal offenses listed in 2244—we must treat it like one. *581 The government argues that a circumstance-specific inquiry into victim age resolves this case because knowing the actual ages of Walker’s victims (four and six) not only satisfies SORNA’s Tier III victim-age requirement, but also places his offense within the scope of “abusive sexual contact (as described in section 2244 of title 18).” See 34 U.S.C. 20911(4)(A)(ii); see also 18 U.S.C. 2244(a)(5) In other words, the government wants to double dip: it asks us to apply SORNA’s age requirement as both an independent addition to the categorical analysis and an exception within the categorical analysis, thereby collapsing the two-part inquiry outlined above. That approach is inconsistent with both the text of SORNA—which, as we have already said, calls for a categorical approach—and the Supreme Court’s precedent on conducting a categorical analysis. The Court has made clear that in a categorical analysis, there are no exceptions to the elemental comparison. See While it may “seem counterintuitive,” it isn’t enough to know that Walker’s victims were four and six—nor is it enough to know that he satisfies the “against a minor who has not attained the age of 13” requirement of Tier III. We must first consider whether his Colorado conviction is a categorical match to “abusive sexual contact (as described in section 2244 of title 18).” 34 U.S.C. 20911(3)(A)(iv) & (4)(A)(ii). If it is, we then consider the age of the victim to complete the tier-classification determination. This kind of distinction, derived from the text and structure of the statute, is familiar to our SORNA jurisprudence. See United (“We conclude that the threshold definition of ‘sex offense’ found in 16911(5)(A)(i) requires a categorical approach—an inquiry limited to the elements of the offense—but the exception in subsection (5)(C) calls for an examination of the specific facts of the offense conduct.”). We follow the same approach in analyzing Walker’s case. B. 3 We start with a categorical comparison of Walker’s Colorado conviction to the generic federal crime of abusive sexual contact as defined by 2244. To sustain a conviction under the Colorado statute, a jury must find (or, as here, a guilty plea must admit) that the defendant “knowingly subject[ed]” a child who was “less than fifteen years of age” to “any sexual contact” and that the defendant was “at least four years older than the victim.” (1). For its part, 2244 defines abusive sexual contact as “knowingly engag[ing] in or caus[ing] sexual contact with or by another person, if doing so would violate” any one of five cross-referenced offenses “had the sexual contact been a sexual act.” See 18 U.S.C. 2244(a). As relevant here, those cross-referenced offenses prohibit knowingly engaging in a sexual act with another person if that person: is “incapable of appraising the nature of the conduct,” 2242(2)(A); “has attained the age of 12 years but has not attained the age of 16 years” and “is at least four years younger than the person so engaging,” 2243(a); or “has not attained the age of 12 years,” 2241(c). See 2244(a)(2), (3), & (5). Because the cross-referenced offenses (as modified by 2244) and the Colorado *582 statute both contain the element of knowing sexual contact with another, the only question is whether the Colorado statute’s requirements that the victim be under 15 and at least four years younger than the defendant categorically match the remaining element(s) in any of the federal offenses. The district court determined that the Colorado statute is a categorical match for 2242(2)(A) (victim incapable of appraising the nature of sexual conduct). In reaching that conclusion it explained that the federal statute “appears to be very broad,” encompassing adult victims with cognitive disabilities, those incapacitated by drugs or alcohol, and seniors with cognitive impairment. The court reasoned that young children are incapable of understanding the nature of sexual conduct. So, it continued, “if one assumes that children under the age of fifteen are ‘incapable of appraising the nature’ of sexual contact/assault, then 2242(2)(A) appears to be much broader, and to encompass far more behavior, than the Colorado statute,” making it a categorical match. We disagree. Certainly, many children, and indisputably all children under a certain age, are incapable of appraising the nature of sexual conduct. But the assumption that children under the age of 15 are categorically incapable of understanding sexual conduct goes too far. At the very least, it is safe to say that many 14-year-olds understand the nature of sexual conduct. That means that the Colorado statute criminalizes conduct not covered by 2242(2)(A)—i.e., the state statute “sweeps more broadly” than the federal statute—and there is no categorical match. See So that leaves either 2243(a) (victim at least 12 but under 16, and four years younger than the defendant) or 2241(c) (victim under 12). Neither is a categorical match for the Colorado statute at issue here. Though narrower in some respects, the Colorado statute sweeps more broadly than 2243(a) because it covers sexual contact against some victims under 12, and 2243(a) does not. Likewise, the Colorado statute is broader than 2241(c) to the extent that it covers some victims between the ages of 12 and 15, and 2241(c) does not. In short, a conviction under the Colorado statute doesn’t necessarily satisfy the elements of either federal offense and so fails the categorical analysis. Because Walker’s Colorado conviction is not a categorical match with “abusive sexual contact (as described in section 2244 of title 18),” he does not qualify for Tier II or Tier III status regardless of the actual ages of his victims. Walker is thus a Tier I offender. See 34 U.S.C. 20911(2).

United States v. Watson

The police received an anonymous 911 call from a 14-year-old who borrowed a stranger's phone and reported seeing “boys” “playing with guns” by a “gray and greenish Charger” in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller's description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion. We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful. We therefore vacate the judgment and remand for further proceedings. I. Around 9:30 a.m. on Sunday, July 5, 2015, an unidentified caller in Gary, Indiana, phoned 911 to report that “boys” were “playing with guns and stuff” in a parking lot at an address that the caller specified. He explained that the boys “were standing there” by a “gray and greenish Charger” and “just out there playing with they guns.” The caller said that he was 14 years old and was calling from a McDonald's across the street. The 911 operator elicited a few more details: the “boys” were black, were in a group of four to five, and had two guns. The caller added that he was calling from a phone that he had just borrowed from “this man” and that he would “try to stay close” to it. The 911 operator radioed this information to Officer Anthony Boleware of the Gary Police Department: “Have a man with a gun 1532 West Fifth Avenue. 1-5-3-2 West Fifth Avenue. Have five male blacks in the parking lot across from McDonald's in a green—check that, a gray and green Charger displaying weapons. 1-5-3-2 West Fifth Avenue [inaudible].” Boleware testified at the suppression hearing that after hearing the dispatch, he identified the address as “a heavy area for crime” where the police were frequently called. He thought that this particular call was urgent because “[i]f it was described *894 like three or four guys displaying weapons, they might [be] about to shoot somebody.” Officer Wayne Dodson, another officer who responded to the call, also testified that he knew that address to be “a hot area” and considered the call urgent because “[a]ny time you have males with weapons, there's always a sense of urgency ‘cause anything could happen.” Boleware drove to the address and saw in the parking lot “a Charger with about four guys sitting in it.” Using his patrol car, he blocked the Charger before approaching it on foot. All of the occupants denied having any weapons in the car. Within nine minutes, three other officers arrived in response to Boleware's request for backup, and each officer blocked a car door. At that point, Boleware told the other officers to take each occupant out of the car and frisk him for weapons. When another officer ordered Watson, the front seat passenger, out of the car, Watson threw a gun onto the backseat floor. Boleware grabbed the gun and noticed another gun inside the pouch in front of the backseat passenger. Watson was charged with possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1). He moved to suppress the two firearms recovered from the car. At a hearing, Boleware and Dodson testified as recounted above, and the court received the recording and transcript of the 911 call, the recording of the dispatch, and the surveillance video of the parking lot. Watson argued that Boleware unlawfully seized him by blocking the Charger without reasonable suspicion that a crime had occurred or was imminent. The 911 caller, Watson said, reported only gun possession, which is lawful in Indiana, and did not establish the reliability of his anonymous tip. The government countered that under Navarette v. California, 572 U.S. 393, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), the anonymous tip was reliable and established reasonable suspicion of a crime because the caller reported his own contemporaneous observations about persons playing with guns in a high-crime area. And the government contended that the collective-knowledge doctrine permitted the court to rely on facts that the dispatcher knew but did not convey to Boleware to support reasonable suspicion. The district court concluded that the seizure was lawful and denied Watson's motion to suppress. The court reasoned that the anonymous caller, like the tipster in Navarette, reported activity that he witnessed contemporaneously and provided enough detail to supply reasonable suspicion of a crime. In addition, the court agreed with the government that the collective-knowledge doctrine applied.1 Following this ruling, Watson pleaded guilty to unlawfully possessing the gun but reserved the right to appeal the denial of his suppression motion. He was sentenced to 30 months in prison and 2 years of supervised release. II. 1 2 3 Under the Fourth Amendment, an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion turns on “the totality of the *895 circumstances” and whether the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette, 134 S.Ct. at 1687 (quoting United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). The government bears the burden of establishing reasonable suspicion, United States v. Uribe, 709 F.3d 646, 650 (7th Cir. 2013), and we review the reasonableness of a stop de novo. United States v. Miranda-Sotolongo, 827 F.3d 663, 666 (7th Cir. 2016). 4 5 Because anonymous tips relayed to a police officer “seldom demonstrate[ ] the informant's basis of knowledge or veracity,” they alone usually are not reliable enough to establish reasonable suspicion. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). But the Supreme Court, in its most recent anonymous-tip case (which it called a “close case”), identified three factors that make an anonymous tip reliable enough to create reasonable suspicion: the tipster (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing. Navarette, 134 S.Ct. at 1689–90. In that case, the Court ruled that an anonymous caller's 911 report that a specified truck had just run her off the road gave the responding officer reason to stop the truck and its driver on suspicion of drunk driving. Id. at 1689–92. 6 The government argues that Navarette controls because its three factors are present here, thereby making the tip about “boys” “playing with guns” sufficiently reliable. The anonymous caller claimed to have personally observed two guns; he reported the event when he was just across the street from the guns; and he made the report via 911, which allowed the call to be traced. Several factors, however, distinguish this case from Navarette. First and most significantly, Navarette’s rationale for deeming 911 calls reliable has much less force here. The Supreme Court concluded that 911 calls are more dependable because their features “provide some safeguards against making false reports with immunity.” Navarette, 134 S.Ct. at 1689. Specifically, the calls are recorded, so a victim of a false report may be able to identify the anonymous caller's voice later, and the calls can be traced back to a particular phone number and geographic location. Id. at 1690. But here, the caller borrowed a stranger's phone, limiting the usefulness of the system's tracing ability. Any phone number identified would not lead back to the caller because he had no permanent connection to the phone, and the phone's geographic location at the time of the call would be useful only so long as the caller remained near the phone. Under these circumstances, it is not obvious that the young caller would be worried about getting caught providing false information and therefore “think twice” before doing it. Id. The second distinction is that the tip in Navarette reported conduct that the officers reasonably suspected to be criminal. There, the caller reported being run off the road by a truck, which “created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness.” 134 S.Ct. at 1690–91. In contrast, the caller's report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana. See Ind. Code § 35-47-2-1(a). To be sure, the presence or use of guns is not always legal. The caller's reference to “boys” might have meant minors, who generally cannot legally possess firearms in *896 Indiana. See Ind. Code § 35-47-10-5(a). And “playing with guns” might mean using them illegally or dangerously, including by pointing a gun at another or engaging in “tumultuous conduct” (conduct “likely to result in[ ] serious bodily injury to a person or substantial damage to property,” Ind. Code § 35-45-1-1). See Ind. Code §§ 35-45-1-3(a), 35-47-4-3(b). Finally, those seen with guns might not have had the required gun licenses. 7 But “a mere possibility of unlawful use” of a gun is not sufficient to establish reasonable suspicion. United States v. Paniagua-Garcia, 813 F.3d 1013, 1014–15 (7th Cir. 2016). It must instead be “sufficiently probable that the observed conduct suggests unlawful activity.” Miranda-Sotolongo, 827 F.3d at 669. And the connection to unlawful activity is just too speculative here. “Boys” could be a generic term for men of any age, and “playing with guns” could mean displaying them, which is not criminal conduct. Lacking detail, the report of guns in public does not suggest likely criminal activity. Finally, unlike in Navarette, the police here were not called to resolve an emergency situation. The anonymous caller in Navarette reported activity that put others at imminent risk: she said that the truck driver had continued down the high-way after he ran her off the road. 134 S.Ct. at 1689. The stop was lawful because “allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences.” Id. at 1691–92. The circumstances in this case, however, did not necessitate an emergency response. The anonymous caller reported no tense situation, like a verbal argument or physical confrontation, that suggested violence would erupt. Moreover, although he dialed 911, he never asked for or hinted that a quick response was needed to prevent imminent harm to others. Reports of emergencies have a “special reliability,” requiring “a lower level of corroboration.” United States v. Hicks, 531 F.3d 555, 559–61 (7th Cir. 2008) (concluding that tip was sufficiently reliable where caller reported “armed black-clothed black man was involved in an ongoing domestic disturbance”); see also United States v. Williams, 731 F.3d 678, 684 (7th Cir. 2013) (determining that emergency justified stop where “large group of people [were] being loud and waving guns” in known violent-crime area). This call lacked that “special reliability.” But even if the caller's use of 911 and report of “boys” “playing with guns” made the officers worry about an emergency, that worry should have dissipated when Officer Boleware arrived at the scene. What he saw did not match the caller's report: no one was playing with guns in the parking lot. Instead, men were seated inside the identified car with no guns in sight. If there had been a potential emergency at the time of the call, it no longer existed when the police arrived. These three factors make Navarette distinguishable, but for completeness we reject a fourth distinction that Watson pro-poses: that we should treat an anonymous report from a child as less reliable. Watson argues that, just as the law treats children differently than adults in other areas, we should treat a child's tip with considerable skepticism. See Hardaway v. Young, 302 F.3d 757, 763–64 (7th Cir. 2002) (reviewing distinctions between adults and minors under the law). But a caller's age alone should not be reason to disregard his tip where, as here, he responded appropriately to the operator's questions, described the events in some detail, presented an internally consistent report, and remained available. Putting Navarette to the side, the government contends that the tip reliably conveyed likely criminal activity because the *897 caller reported guns in what the officers considered a high-crime area. This argument is unpersuasive. People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods. See Williams, 731 F.3d at 694 (Hamilton, J., concurring). Watson persuasively argues that this case is controlled by J.L. and distinguishable from Williams, our most analogous case, both decided before Navarette. In J.L., the Supreme Court also dealt with a tip about a gun. See 529 U.S. at 268, 120 S.Ct. 1375. An anonymous tipster had reported “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. But the tipster did not use the 911 system, he did not reveal how he knew that the man was armed, and the tip itself did not predict future behavior. Id. at 271, 120 S.Ct. 1375. In ruling that this tip was not sufficiently reliable, the Court rejected two arguments that are relevant here. First, Terry did not permit a “firearm exception” to the reliability requirement. Id. at 272–273, 120 S.Ct. 1375. Such an exception “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun.” Id. at 272, 120 S.Ct. 1375. Second, the tip must be reliable even if it is about a minor carrying a gun. See id. at 273 n.*, 120 S.Ct. 1375. In Williams, the anonymous 911 caller reported that a group of 25 people was “being loud while loitering” in a bar's parking lot and that three or four group members had “guns out.” 731 F.3d at 681. Arriving at most 5 minutes after the call, police found 8 to 10 persons remaining in the bar's parking lot, and they were neither speaking loudly nor displaying guns. Id. As the group began slowly dispersing, the officers stopped and patted down some of the group members. Id. We concluded that while it was a “very close call,” the “emergency report” gave the police reasonable suspicion to stop the persons they saw in the bar's parking lot when they arrived. Id. at 684. The circumstances here are similar enough to J.L.—and sufficiently distinguishable from the “very close call” in Williams—for us to rule that this tip was not reliable. Although the caller used the 911 system and explained that he himself saw “boys” with guns, the report at its core was one of firearm possession, just as in J.L., which is not criminal. In Williams, by contrast, the caller described something more than mere possession—25 rowdy people outside a bar at night, some of whom were waving guns. This reasonably suggested a volatile situation requiring a quick response. The small group here, however, was standing outside an apartment building on a Sunday morning—a situation that does not convey the same sense of volatility. We close by noting that the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening. But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature. We recognize that the calculus is complicated when police respond to tips involving firearms, at least in areas where carrying a firearm in public is not itself a crime. On the one hand, police are understandably worried about the possibility of violence and want to take quick action; on the other hand, citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so. *898 For those cases like this one in which the tip does not establish reasonable suspicion of a crime, the police have options other than an instant Terry stop. It would, for example, be “appropriate to respond to the 911 call with a strong and visible police presence, one that involved talking with people on the scene when they arrived.” As long as communication with the police remained voluntary, there would be no Fourth Amendment stop. Williams, 731 F.3d at 693 (Hamilton, J., concurring). Alternatively, the police could arrive on the scene and make their own observations about the developing situation, which could transform an innocuous tip into reasonable suspicion to seize an individual. See, e.g., White, 496 U.S. at 331–32, 110 S.Ct. 2412 (concluding that police corroboration of anonymous tip through surveillance justified Terry stop). And if the subjects of the call are in a car as they were here, the police can stop the car, even if they do so because they want to investigate the report further, as long as they have probable cause to believe that a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810–13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). * * * Like Navarette, Watson's case presents a close call. But this one falls on the wrong side of the Fourth Amendment.

Barrett

majority

The police received an anonymous 911 call from a 14-year-old who borrowed a stranger's phone and reported seeing “boys” “playing with guns” by a “gray and greenish Charger” in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller's description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, (g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion. We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful. We therefore vacate the judgment and remand for further proceedings. I. Around 9: a.m. on Sunday, July 5, 2015, an unidentified caller in Gary, Indiana, phoned 911 to report that “boys” were “playing with guns and stuff” in a parking lot at an address that the caller specified. He explained that the boys “were standing there” by a “gray and greenish Charger” and “just out there playing with they guns.” The caller said that he was 14 years old and was calling from a McDonald's across the street. The 911 operator elicited a few more details: the “boys” were black, were in a group of four to five, and had two guns. The caller added that he was calling from a phone that he had just borrowed from “this man” and that he would “try to stay close” to it. The 911 operator radioed this information to Officer Anthony Boleware of the Gary Police Department: “Have a man with a gun 1532 West Fifth Avenue. 1-5-3-2 West Fifth Avenue. Have five male blacks in the parking lot across from McDonald's in a green—check that, a gray and green Charger displaying weapons. 1-5-3-2 West Fifth Avenue [inaudible].” Boleware testified at the suppression hearing that after hearing the dispatch, he identified the address as “a heavy area for crime” where the police were frequently called. He thought that this particular call was urgent because “[i]f it was described *894 like three or four guys displaying weapons, they might [be] about to shoot somebody.” Officer Wayne Dodson, another officer who responded to the call, also testified that he knew that address to be “a hot area” and considered the call urgent because “[a]ny time you have males with weapons, there's always a sense of urgency ‘cause anything could happen.” Boleware drove to the address and saw in the parking lot “a Charger with about four guys sitting in it.” Using his patrol car, he blocked the Charger before approaching it on foot. All of the occupants denied having any weapons in the car. Within nine minutes, three other officers arrived in response to Boleware's request for backup, and each officer blocked a car door. At that point, Boleware told the other officers to take each occupant out of the car and frisk him for weapons. When another officer ordered Watson, the front seat passenger, out of the car, Watson threw a gun onto the backseat floor. Boleware grabbed the gun and noticed another gun inside the pouch in front of the backseat passenger. Watson was charged with possessing a firearm as a felon, see (g)(1). He moved to suppress the two firearms recovered from the car. At a hearing, Boleware and Dodson testified as recounted above, and the court received the recording and transcript of the 911 call, the recording of the dispatch, and the surveillance video of the parking lot. Watson argued that Boleware unlawfully seized him by blocking the Charger without reasonable suspicion that a crime had occurred or was imminent. The 911 caller, Watson said, reported only gun possession, which is lawful in Indiana, and did not establish the reliability of his anonymous tip. The government countered that under the anonymous tip was reliable and established reasonable suspicion of a crime because the caller reported his own contemporaneous observations about persons playing with guns in a high-crime area. And the government contended that the collective-knowledge doctrine permitted the court to rely on facts that the dispatcher knew but did not convey to Boleware to support reasonable suspicion. The district court concluded that the seizure was lawful and denied Watson's motion to suppress. The court reasoned that the anonymous caller, like the tipster in reported activity that he witnessed contemporaneously and provided enough detail to supply reasonable suspicion of a crime. In addition, the court agreed with the government that the collective-knowledge doctrine applied.1 Following this ruling, Watson pleaded guilty to unlawfully possessing the gun but reserved the right to appeal the denial of his suppression motion. He was sentenced to months in prison and 2 years of supervised release. II. 1 2 3 Under the Fourth Amendment, an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that “criminal activity may be afoot.” Reasonable suspicion turns on “the totality of the *895 circumstances” and whether the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” ). The government bears the burden of establishing reasonable suspicion, United and we review the reasonableness of a stop de novo. United 4 5 Because anonymous tips relayed to a police officer “seldom demonstrate[ ] the informant's basis of knowledge or veracity,” they alone usually are not reliable enough to establish reasonable suspicion. ). But the Supreme Court, in its most recent anonymous-tip case (which it called a “close case”), identified three factors that make an anonymous tip reliable enough to create reasonable suspicion: the tipster (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing. –90. In that case, the Court ruled that an anonymous caller's 911 report that a specified truck had just run her off the road gave the responding officer reason to stop the truck and its driver on suspicion of drunk driving. at 1689–92. 6 The government argues that controls because its three factors are present here, thereby making the tip about “boys” “playing with guns” sufficiently reliable. The anonymous caller claimed to have personally observed two guns; he reported the event when he was just across the street from the guns; and he made the report via 911, which allowed the call to be traced. Several factors, however, distinguish this case from First and most significantly, ’s rationale for deeming 911 calls reliable has much less force here. The Supreme Court concluded that 911 calls are more dependable because their features “provide some safeguards against making false reports with immunity.” Specifically, the calls are recorded, so a victim of a false report may be able to identify the anonymous caller's voice later, and the calls can be traced back to a particular phone number and geographic location. But here, the caller borrowed a stranger's phone, limiting the usefulness of the system's tracing ability. Any phone number identified would not lead back to the caller because he had no permanent connection to the phone, and the phone's geographic location at the time of the call would be useful only so long as the caller remained near the phone. Under these circumstances, it is not obvious that the young caller would be worried about getting caught providing false information and therefore “think twice” before doing it. The second distinction is that the tip in reported conduct that the officers reasonably suspected to be criminal. There, the caller reported being run off the road by a truck, which “created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness.” 134 S.Ct. –91. In contrast, the caller's report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana. See (a). To be sure, the presence or use of guns is not always legal. The caller's reference to “boys” might have meant minors, who generally cannot legally possess firearms in *896 Indiana. See (a). And “playing with guns” might mean using them illegally or dangerously, including by pointing a gun at another or engaging in “tumultuous conduct” (conduct “likely to result in[ ] serious bodily injury to a person or substantial damage to property,” ). See (a), 35-47-4-3(b). Finally, those seen with guns might not have had the required gun licenses. 7 But “a mere possibility of unlawful use” of a gun is not sufficient to establish reasonable suspicion. United It must instead be “sufficiently probable that the observed conduct suggests unlawful activity.” And the connection to unlawful activity is just too speculative here. “Boys” could be a generic term for men of any age, and “playing with guns” could mean displaying them, which is not criminal conduct. Lacking detail, the report of guns in public does not suggest likely criminal activity. Finally, unlike in the police here were not called to resolve an emergency situation. The anonymous caller in reported activity that put others at imminent risk: she said that the truck driver had continued down the high-way after he ran her off the The stop was lawful because “allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences.” at 1691–92. The circumstances in this case, however, did not necessitate an emergency response. The anonymous caller reported no tense situation, like a verbal argument or physical confrontation, that suggested violence would erupt. Moreover, although he dialed 911, he never asked for or hinted that a quick response was needed to prevent imminent harm to others. Reports of emergencies have a “special reliability,” requiring “a lower level of corroboration.” United ; see also United This call lacked that “special reliability.” But even if the caller's use of 911 and report of “boys” “playing with guns” made the officers worry about an emergency, that worry should have dissipated when Officer Boleware arrived at the scene. What he saw did not match the caller's report: no one was playing with guns in the parking lot. Instead, men were seated inside the identified car with no guns in sight. If there had been a potential emergency at the time of the call, it no longer existed when the police arrived. These three factors make distinguishable, but for completeness we reject a fourth distinction that Watson pro-poses: that we should treat an anonymous report from a child as less reliable. Watson argues that, just as the law treats children differently than adults in other areas, we should treat a child's tip with considerable skepticism. See 2 F.3d 757, But a caller's age alone should not be reason to disregard his tip where, as here, he responded appropriately to the operator's questions, described the events in some detail, presented an internally consistent report, and remained available. Putting to the side, the government contends that the tip reliably conveyed likely criminal activity because the *897 caller reported guns in what the officers considered a high-crime area. This argument is unpersuasive. People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods. See Watson persuasively argues that this case is controlled by J.L. and distinguishable from our most analogous case, both decided before In J.L., the Supreme Court also dealt with a tip about a gun. See An anonymous tipster had reported “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” But the tipster did not use the 911 system, he did not reveal how he knew that the man was armed, and the tip itself did not predict future behavior. In ruling that this tip was not sufficiently reliable, the Court rejected two arguments that are relevant here. First, Terry did not permit a “firearm exception” to the reliability requirement. –273, Such an exception “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun.” Second, the tip must be reliable even if it is about a minor carrying a gun. See at 273 n.*, In the anonymous 911 caller reported that a group of 25 people was “being loud while loitering” in a bar's parking lot and that three or four group members had “guns out.” Arriving at most 5 minutes after the call, police found 8 to 10 persons remaining in the bar's parking lot, and they were neither speaking loudly nor displaying guns. As the group began slowly dispersing, the officers stopped and patted down some of the group members. We concluded that while it was a “very close call,” the “emergency report” gave the police reasonable suspicion to stop the persons they saw in the bar's parking lot when they arrived. at The circumstances here are similar enough to J.L.—and sufficiently distinguishable from the “very close call” in —for us to rule that this tip was not reliable. Although the caller used the 911 system and explained that he himself saw “boys” with guns, the report at its core was one of firearm possession, just as in J.L., which is not criminal. In by contrast, the caller described something more than mere possession—25 rowdy people outside a bar at night, some of whom were waving guns. This reasonably suggested a volatile situation requiring a quick response. The small group here, however, was standing outside an apartment building on a Sunday morning—a situation that does not convey the same sense of volatility. We close by noting that the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening. But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature. We recognize that the calculus is complicated when police respond to tips involving firearms, at least in areas where carrying a firearm in public is not itself a crime. On the one hand, police are understandably worried about the possibility of violence and want to take quick action; on the other hand, citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so. *898 For those cases like this one in which the tip does not establish reasonable suspicion of a crime, the police have options other than an instant Terry stop. It would, for example, be “appropriate to respond to the 911 call with a strong and visible police presence, one that involved talking with people on the scene when they arrived.” As long as communication with the police remained voluntary, there would be no Fourth Amendment stop. Alternatively, the police could arrive on the scene and make their own observations about the developing situation, which could transform an innocuous tip into reasonable suspicion to seize an individual. See, e.g., –32, (concluding that police corroboration of anonymous tip through surveillance justified Terry stop). And if the subjects of the call are in a car as they were here, the police can stop the car, even if they do so because they want to investigate the report further, as long as they have probable cause to believe that a traffic violation has occurred. See * * * Like Watson's case presents a close call. But this one falls on the wrong side of the Fourth Amendment.

United States v. Williams

Jaboree Williams argues that his conviction was tainted by improperly admitted expert testimony. He maintains that the government violated the expert disclosure rules by giving him inadequate notice of what its expert planned to say at trial. Moreover, he says that the government used the expert's testimony to make an argument that the Federal Rules of Evidence prohibit: that he had the character of a sex trafficker and was therefore likely to have committed sex-trafficking crimes. While the government did not violate the rules prohibiting the use of character evidence, it probably did violate the expert disclosure requirement. Nonetheless, we affirm Williams’ conviction because any error was harmless. The evidence of his guilt was so overwhelming that the jury would surely have convicted him even if the government's expert had not testified. I. Jaboree Williams was accused of myriad offenses relating primarily to a wide-ranging sex-trafficking scheme. We won't recount every sordid detail of Williams’ scheme; suffice it to say that he lured women in desperate circumstances into prostitution by convincing them that he would take care of them. He then maintained control over these women through brutal physical abuse. He was indicted on numerous charges relating to sex trafficking, prostitution, heroin, obstruction of justice, and extortion. Before trial, the government filed a notice of its intent to call Amy Mentzel, an FBI agent, as an expert witness. The notice adequately described Mentzel's credentials and her career with the FBI. But its summary of her anticipated testimony was sparse: it listed a series of broad topics without any explanation of what she would say about each. For example, it stated that she would testify about “the recruiting processes used by pimps,” “the methods pimps and those they prostitute use to advertise their services and acquire customers,” and “other aspects of human sex trade involving adults and juveniles.” It offered no detail about what Mentzel would say about recruiting, advertising, or any other aspect of the sex trade. Williams moved to exclude Mentzel from testifying on the ground that the expert disclosure was inadequate and her testimony *488 would not help the jury. The district court deferred consideration of that motion, and when the government introduced Mentzel as a witness at trial, Williams renewed his objections. He repeated his argument that the expert disclosure had been inadequate under Federal Rule of Criminal Procedure 16(a)(1)(G), which requires that the disclosure contain “a written summary of any [expert] testimony that the government intends to use” in its case-in-chief. And he again insisted that Mentzel's testimony would not help the jury—the court's jury instructions would define the crime of human trafficking for the jurors, so he said that they would need no additional guidance on that point. He also referred the district court back to the motion he had originally filed to exclude Mentzel on the ground that her testimony would be impermissible character evidence. The court overruled these objections, and Mentzel testified. She told the jury about how a human trafficker preys on vulnerable young women and makes them think that they're in a “boyfriend/girlfriend type of relationship” before having them go on prostitution “dates.” She talked about how pimps coerce their victims through fraud and force, how they handle money, how they punish their victims to ensure obedience, how they organize their operations, what certain terminology means (like “trick” and “incall”), and the sorts of rules they set for their victims. Mentzel did not testify about Williams or his actions, as she had not been involved in his case. Mentzel's expert testimony was a small part of a trial in which the lay testimony was substantial. Three of Williams’ victims testified about how Williams recruited them to prostitution, set up prostitution “dates” in numerous states, laid down rules for those “dates,” controlled and kept any payment, violently punished them for breaking any of his rules, and threatened them to ensure obedience. One victim testified that Williams knew about her addiction to Percocet and withheld the drug as a means of controlling her. There was also testimony that Williams choked one victim to the point of unconsciousness, stomped on one in a bathtub, beat one with a belt, punched one in the face, broke one victim's nose, and more. A woman named Heller, who was romantically linked to Williams but did not engage in prostitution, testified that Williams admitted to prostituting several of the testifying victims. Heller often picked Williams and his victims up from hotels where Williams had forced them to service his clients. She also listened as Williams physically abused one of his victims. Another witness, one of Williams’ longtime friends, told the jury that Williams had both introduced one of the testifying victims as his prostitute and bragged about his pimping activities. The documentary evidence was similarly ample. There were pictures of injuries that Williams had inflicted on his victims. There were online prostitution ads for each of the testifying victims, all linked to Williams’ email addresses. There were text messages and Facebook messages in which Williams admitted that he was a pimp and referred to the same victims who later testified at his trial. In short, the evidence against Williams was overwhelming. The jury convicted Williams of almost all of the charged crimes, and he now appeals that conviction. II. 1 2 3 Williams argues that the court should have excluded Mentzel's testimony, because the government's expert disclosure was insufficient. Federal Rule of Criminal Procedure 16(a)(1)(G) requires the government to provide a “written summary” *489 of the expert testimony it intends to introduce, and the government cannot satisfy that obligation by merely providing a “list of topics.” United States v. Duvall, 272 F.3d 825, 828–29 (7th Cir. 2001). To help the defendant prepare for trial, the disclosure must summarize what the expert will actually say about those topics. Id. The government's disclosure of Mentzel's testimony was plainly inadequate under that standard, because it did no more than list a series of topics that she planned to cover. The government, however, argues that this standard does not apply. According to the government, a written summary must include more than a list of topics only when an expert provides opinion testimony. And Mentzel did not provide opinion testimony; she provided “background, educational testimony.” Thus, the government says, the list it provided was enough to satisfy Rule 16(a)(1)(G). There are serious reasons to doubt the government's position. The “written summary” requirement of Rule 16(a)(1)(G) applies to “any testimony that the government intends to use under Rule[ ] 702,” and Rule 702 governs both experts who offer an opinion and those who don't. And in defining the phrase “written summary,” we have stated broadly and unequivocally that Rule 16(a)(1)(G) “requires a summary of the expected testimony, not a list of topics.” Duvall, 272 F.3d at 828. Neither the rule nor our interpretation of it suggests that “written summary” means something different for non-opinion experts. That said, any deficiency in the written summary was harmless. As an initial matter, Williams has not shown that the lack of detail affected his ability to present a defense. For example, he has not shown that he was “unduly surprised” by Mentzel's testimony. United States v. Thornton, 642 F.3d 599, 606 (7th Cir. 2011) (holding that a defendant was not prejudiced by an inadequate Rule 16 disclosure where he “ha[d] not demonstrated, for example, that he was unduly surprised or lacked an adequate opportunity to prepare a defense”). His opening brief does say in passing that the vague notice made it impossible for him to evaluate whether he needed an expert witness of his own to rebut Mentzel's testimony. But he does not assert, let alone show, that he actually would have considered having his own expert testify had the notice been more detailed. He also argues that the sparse notice made it difficult for him to make, and for the district court to assess, other arguments against the admission of the testimony. Yet his substantive objection to the testimony is meritless—we will say more about that below—so any impediment to making that objection was harmless. 4 Moreover, any error in admitting Mentzel's testimony “could not have made any difference” to the outcome. Duvall, 272 F.3d at 829. To evaluate whether an error was harmless, we consider “whether the prosecution's case would have been significantly less persuasive in the mind of the average juror if the erroneously admitted evidence had been excluded.” United States v. Saunders, 826 F.3d 363, 370 (7th Cir. 2016). Williams has conceded that the testimony of his victims was more than adequate to convince the jury that he was guilty of the charges for which he was convicted, and “[t]he question for the trial was whether the women should be believed.” Nothing in Mentzel's testimony bore on whether the women who testified should be believed, and we see no reason that an average juror would find the prosecution's case less compelling without Mentzel's description of how sex trafficking works. *490 III. 5 Williams objects to Mentzel's testimony for another reason: he says that it should have been excluded as evidence of a “group character trait.” The prosecution ordinarily cannot introduce “[e]vidence of a person's character or character trait ... to prove that on a particular occasion the person acted in accordance with the character trait.” Fed. R. Evid. 404(a)(1). Williams argues that the government used Mentzel's testimony to show that he had the character of a typical sex trafficker and was therefore likely to have engaged in sex trafficking. 6 7 This argument fails, because Mentzel's testimony was not designed to illustrate the “character” of a typical sex trafficker. Although it is difficult to give a comprehensive definition of “character evidence,” we generally interpret it as “evidence that ‘refers to elements of one's disposition, such as honesty, temperance, or peacefulness,’ which shows a propensity to act a certain way in a certain situation.” United States v. Romero, 189 F.3d 576, 587 (7th Cir. 1999) (quoting United States v. Doe, 149 F.3d 634, 638 (7th Cir. 1998) ). Rule 404 prohibits “an attempt to use a person's personality or psychological propensity to prove what the person did.” Id. Because of this rule, Mentzel could not have testified about the character of sex traffickers to raise the forbidden inference that Williams’ similar character made him likely to engage in sex trafficking. For example, she could not have testified that sex traffickers are violent people likely to brutalize women so that the government could then argue that Williams was also violent and thus likely to brutalize women. Nor could the government have used Mentzel's testimony to make the same point indirectly by relying on the acts of both sex traffickers and Williams to raise the forbidden inference about how people with a certain character trait are likely to behave. Rule 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”) For example, the government could not have used Mentzel's testimony about what sex traffickers do as proof that they are violent people likely to act in accordance with that violent character, and that Williams’ behavior shows that he too is violent and therefore also likely to act in accordance with that violent character. But that is not what the government did. Mentzel's testimony was not about the propensity of people with a certain disposition to commit sex-trafficking crimes. Nor did the government use Mentzel's testimony to illustrate that the acts of sex traffickers revealed that they had a certain disposition that made them likely to commit sex-trafficking crimes. Nor did the government use that evidence to argue that Williams had the disposition of a sex trafficker and was therefore likely to have committed sex-trafficking crimes. The government used Mentzel's testimony about the acts of sex traffickers to illustrate their modus operandi, not their character; it suggested that because Williams employed similar techniques, his behavior was evidence that he too was engaged in a sex-trafficking operation. Rule 404’s prohibition on character evidence is inapplicable, because there were no arguments about character at play. We have repeatedly rejected essentially the same argument that Williams makes now. For example, in United States v. Romero, the defendant was a pedophile accused of using the internet to lure underage boys away from their homes, and the government introduced an expert witness who discussed the actions of sex offenders to “explain their techniques or *491 modus operandi.” 189 F.3d at 587. We rejected the defendant's argument that the expert's testimony was impermissible character evidence under Rule 404. The government did not use that testimony to argue that the defendant's poor character made him likely to sexually abuse children. It used that testimony to show that his actions were consistent with common tactics that pedophiles used to lure their victims. Id. United States v. Doe is another example. 149 F.3d 634 (7th Cir. 1998). There, the defendant was accused of being part of a Nigerian smuggling operation that trafficked heroin from Southeast Asia to the United States. Id. at 636. The government introduced an expert witness who testified about the practices of such Nigerian drug-smuggling operations and how they get their drugs into the country. Id. We held that this testimony was not impermissible group character evidence, because it did not “suggest[ ] that [the defendant] had a ‘propensity’ to import or distribute drugs.” It “served only to illuminate the modus operandi of Nigerian importers of Southeast Asian heroin” so that the jury would have useful context “in evaluating proposed explanations of [the defendant's] observed behaviors.” Id. at 638. The same is true here. The government did not introduce Mentzel's testimony to show that Williams’ flawed character predisposed him to human trafficking. Instead, the point of the evidence was to show that Williams’ actions were consistent with the management of a sex-trafficking scheme.

Barrett

majority

Jaboree Williams argues that his conviction was tainted by improperly admitted expert testimony. He maintains that the government violated the expert disclosure rules by giving him inadequate notice of what its expert planned to say at trial. Moreover, he says that the government used the expert's testimony to make an argument that the Federal Rules of Evidence prohibit: that he had the character of a sex trafficker and was therefore likely to have committed sex-trafficking crimes. While the government did not violate the rules prohibiting the use of character evidence, it probably did violate the expert disclosure requirement. Nonetheless, we affirm Williams’ conviction because any error was harmless. The evidence of his guilt was so overwhelming that the jury would surely have convicted him even if the government's expert had not testified. I. Jaboree Williams was accused of myriad offenses relating primarily to a wide-ranging sex-trafficking scheme. We won't recount every sordid detail of Williams’ scheme; suffice it to say that he lured women in desperate circumstances into prostitution by convincing them that he would take care of them. He then maintained control over these women through brutal physical abuse. He was indicted on numerous charges relating to sex trafficking, prostitution, heroin, obstruction of justice, and extortion. Before trial, the government filed a notice of its intent to call Amy Mentzel, an FBI agent, as an expert witness. The notice adequately described Mentzel's credentials and her career with the FBI. But its summary of her anticipated testimony was sparse: it listed a series of broad topics without any explanation of what she would say about each. For example, it stated that she would testify about “the recruiting processes used by pimps,” “the methods pimps and those they prostitute use to advertise their services and acquire customers,” and “other aspects of human sex trade involving adults and juveniles.” It offered no detail about what Mentzel would say about recruiting, advertising, or any other aspect of the sex trade. Williams moved to exclude Mentzel from testifying on the ground that the expert disclosure was inadequate and her testimony *488 would not help the jury. The district court deferred consideration of that motion, and when the government introduced Mentzel as a witness at trial, Williams renewed his objections. He repeated his argument that the expert disclosure had been inadequate under Federal Rule of Criminal Procedure 16(a)(1)(G), which requires that the disclosure contain “a written summary of any [expert] testimony that the government intends to use” in its case-in-chief. And he again insisted that Mentzel's testimony would not help the jury—the court's jury instructions would define the crime of human trafficking for the jurors, so he said that they would need no additional guidance on that point. He also referred the district court back to the motion he had originally filed to exclude Mentzel on the ground that her testimony would be impermissible character evidence. The court overruled these objections, and Mentzel testified. She told the jury about how a human trafficker preys on vulnerable young women and makes them think that they're in a “boyfriend/girlfriend type of relationship” before having them go on prostitution “dates.” She talked about how pimps coerce their victims through fraud and force, how they handle money, how they punish their victims to ensure obedience, how they organize their operations, what certain terminology means (like “trick” and “incall”), and the sorts of rules they set for their victims. Mentzel did not testify about Williams or his actions, as she had not been involved in his case. Mentzel's expert testimony was a small part of a trial in which the lay testimony was substantial. Three of Williams’ victims testified about how Williams recruited them to prostitution, set up prostitution “dates” in numerous states, laid down rules for those “dates,” controlled and kept any payment, violently punished them for breaking any of his rules, and threatened them to ensure obedience. One victim testified that Williams knew about her addiction to Percocet and withheld the drug as a means of controlling her. There was also testimony that Williams choked one victim to the point of unconsciousness, stomped on one in a bathtub, beat one with a belt, punched one in the face, broke one victim's nose, and more. A woman named Heller, who was romantically linked to Williams but did not engage in prostitution, testified that Williams admitted to prostituting several of the testifying victims. Heller often picked Williams and his victims up from hotels where Williams had forced them to service his clients. She also listened as Williams physically abused one of his victims. Another witness, one of Williams’ longtime friends, told the jury that Williams had both introduced one of the testifying victims as his prostitute and bragged about his pimping activities. The documentary evidence was similarly ample. There were pictures of injuries that Williams had inflicted on his victims. There were online prostitution ads for each of the testifying victims, all linked to Williams’ email addresses. There were text messages and Facebook messages in which Williams admitted that he was a pimp and referred to the same victims who later testified at his trial. In short, the evidence against Williams was overwhelming. The jury convicted Williams of almost all of the charged crimes, and he now appeals that conviction. II. 1 2 3 Williams argues that the court should have excluded Mentzel's testimony, because the government's expert disclosure was insufficient. Federal Rule of Criminal Procedure 16(a)(1)(G) requires the government to provide a “written summary” *489 of the expert testimony it intends to introduce, and the government cannot satisfy that obligation by merely providing a “list of topics.” United To help the defendant prepare for trial, the disclosure must summarize what the expert will actually say about those topics. The government's disclosure of Mentzel's testimony was plainly inadequate under that standard, because it did no more than list a series of topics that she planned to cover. The government, however, argues that this standard does not apply. According to the government, a written summary must include more than a list of topics only when an expert provides opinion testimony. And Mentzel did not provide opinion testimony; she provided “background, educational testimony.” Thus, the government says, the list it provided was enough to satisfy Rule 16(a)(1)(G). There are serious reasons to doubt the government's position. The “written summary” requirement of Rule 16(a)(1)(G) applies to “any testimony that the government intends to use under Rule[ ] 702,” and Rule 702 governs both experts who offer an opinion and those who don't. And in defining the phrase “written summary,” we have stated broadly and unequivocally that Rule 16(a)(1)(G) “requires a summary of the expected testimony, not a list of topics.” Neither the rule nor our interpretation of it suggests that “written summary” means something different for non-opinion experts. That said, any deficiency in the written summary was harmless. As an initial matter, Williams has not shown that the lack of detail affected his ability to present a defense. For example, he has not shown that he was “unduly surprised” by Mentzel's testimony. United His opening brief does say in passing that the vague notice made it impossible for him to evaluate whether he needed an expert witness of his own to rebut Mentzel's testimony. But he does not assert, let alone show, that he actually would have considered having his own expert testify had the notice been more detailed. He also argues that the sparse notice made it difficult for him to make, and for the district court to assess, other arguments against the admission of the testimony. Yet his substantive objection to the testimony is meritless—we will say more about that below—so any impediment to making that objection was harmless. 4 Moreover, any error in admitting Mentzel's testimony “could not have made any difference” to the outcome. To evaluate whether an error was harmless, we consider “whether the prosecution's case would have been significantly less persuasive in the mind of the average juror if the erroneously admitted evidence had been excluded.” United Williams has conceded that the testimony of his victims was more than adequate to convince the jury that he was guilty of the charges for which he was convicted, and “[t]he question for the trial was whether the women should be believed.” Nothing in Mentzel's testimony bore on whether the women who testified should be believed, and we see no reason that an average juror would find the prosecution's case less compelling without Mentzel's description of how sex trafficking works. *490 III. 5 Williams objects to Mentzel's testimony for another reason: he says that it should have been excluded as evidence of a “group character trait.” The prosecution ordinarily cannot introduce “[e]vidence of a person's character or character trait to prove that on a particular occasion the person acted in accordance with the character trait.” Fed. R. Evid. 404(a)(1). Williams argues that the government used Mentzel's testimony to show that he had the character of a typical sex trafficker and was therefore likely to have engaged in sex trafficking. 6 7 This argument fails, because Mentzel's testimony was not designed to illustrate the “character” of a typical sex trafficker. Although it is difficult to give a comprehensive definition of “character evidence,” we generally interpret it as “evidence that ‘refers to elements of one's disposition, such as honesty, temperance, or peacefulness,’ which shows a propensity to act a certain way in a certain situation.” United Rule 404 prohibits “an attempt to use a person's personality or psychological propensity to prove what the person did.” Because of this rule, Mentzel could not have testified about the character of sex traffickers to raise the forbidden inference that Williams’ similar character made him likely to engage in sex trafficking. For example, she could not have testified that sex traffickers are violent people likely to brutalize women so that the government could then argue that Williams was also violent and thus likely to brutalize women. Nor could the government have used Mentzel's testimony to make the same point indirectly by relying on the acts of both sex traffickers and Williams to raise the forbidden inference about how people with a certain character trait are likely to behave. Rule 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”) For example, the government could not have used Mentzel's testimony about what sex traffickers do as proof that they are violent people likely to act in accordance with that violent character, and that Williams’ behavior shows that he too is violent and therefore also likely to act in accordance with that violent character. But that is not what the government did. Mentzel's testimony was not about the propensity of people with a certain disposition to commit sex-trafficking crimes. Nor did the government use Mentzel's testimony to illustrate that the acts of sex traffickers revealed that they had a certain disposition that made them likely to commit sex-trafficking crimes. Nor did the government use that evidence to argue that Williams had the disposition of a sex trafficker and was therefore likely to have committed sex-trafficking crimes. The government used Mentzel's testimony about the acts of sex traffickers to illustrate their modus operandi, not their character; it suggested that because Williams employed similar techniques, his behavior was evidence that he too was engaged in a sex-trafficking operation. Rule 404’s prohibition on character evidence is inapplicable, because there were no arguments about character at play. We have repeatedly rejected essentially the same argument that Williams makes now. For example, in United the defendant was a pedophile accused of using the internet to lure underage boys away from their homes, and the government introduced an expert witness who discussed the actions of sex offenders to “explain their techniques or *491 modus operandi.” 189 F.3d at We rejected the defendant's argument that the expert's testimony was impermissible character evidence under Rule 404. The government did not use that testimony to argue that the defendant's poor character made him likely to sexually abuse children. It used that testimony to show that his actions were consistent with common tactics that pedophiles used to lure their victims. United is another example. There, the defendant was accused of being part of a Nigerian smuggling operation that trafficked heroin from Southeast Asia to the United States. The government introduced an expert witness who testified about the practices of such Nigerian drug-smuggling operations and how they get their drugs into the country. We held that this testimony was not impermissible group character evidence, because it did not “suggest[ ] that [the defendant] had a ‘propensity’ to import or distribute drugs.” It “served only to illuminate the modus operandi of Nigerian importers of Southeast Asian heroin” so that the jury would have useful context “in evaluating proposed explanations of [the defendant's] observed behaviors.” at The same is true here. The government did not introduce Mentzel's testimony to show that Williams’ flawed character predisposed him to human trafficking. Instead, the point of the evidence was to show that Williams’ actions were consistent with the management of a sex-trafficking scheme.

United States v. Young

Allen Young was indicted for the sex trafficking of four minors and the attempted sex trafficking of a fifth. Three weeks before his trial was scheduled to start, Young fired his attorney and invoked his right to represent himself. The result was predictable. The government presented compelling evidence—including the testimony of each victim—that Young knowingly facilitated the prostitution of vulnerable minors and profited from their exploitation. Young, appearing pro se, failed to mount a serious defense to the government's case, and the jury convicted him on all counts. He now appeals eight issues from the trial. None of his arguments has merit, and we affirm the judgment across the board. I. Between 2014 and 2016, Allen Young promoted the prostitution of high-school-aged minors and took a cut of the money that they were paid for sex. He was indicted under 18 U.S.C. § 1591 for sex trafficking four minor victims—Jyanna, Kiwana, Jackie, and Destiny—and attempting to do the same with a fifth—Alexus. Young followed the same general pattern with each victim. After meeting the victims, Young showed them the classified ads website Backpage.com and taught them how to post advertisements for “escort services.” Young sometimes took revealing photos of the victims for their ads and posted them himself from his own computer, paying the advertising fees out of pocket. Young then *611 facilitated the victims’ “calls,” or appointments, with the men who responded to the Backpage ads. He set the hourly rates that his victims would charge for sex; he reserved the hotels where the sexual acts would take place; and he provided the victims with condoms to use during sex, as well as cell phones that they could use to contact him during their appointments. He provided housing for one victim, Kiwana, in his basement. Young also drove the victims to and from their calls, at least once picking up a victim from high school to take her to a call. Young usually took half of the money that his victims were paid for sex. Sometimes he personally demanded sex from them—either in addition to or instead of the money. A few weeks before Young's trial was set to begin, Young fired his counsel and elected to represent himself. At trial, the government presented substantial evidence of Young's guilt. It elicited testimony from each of the five victims, the FBI special agent who investigated the case, and a witness who had seen Young transport the victims. It introduced phone records showing extensive contact between Young's phone and the victims’, which consistently matched the times and locations of their appointments. It put Young's former employer on the stand, who testified that he had fired Young after discovering that Young had used the workplace to photograph and advertise young women on Backpage. It introduced Young's personal notebook, which contained the email address that he had used to post at least one of the victims’ Backpage ads and tips on how to avoid getting caught by the police as an escort. And it furnished the jury with Young's post-arrest statement, during which he admitted that he knew about Backpage and that he knew Jyanna and knew that she was a minor. Young testified in his own defense, questioned by his standby counsel. On the stand, Young admitted that he had been trying to start an adult escort business, that he knew some of the victims, and that he helped them by giving them rides. He denied facilitating their prostitution and posting their ads on Backpage, and he said that he did not know that they were all minors. The jury convicted Young on all counts, and the court sentenced him to 21 years’ imprisonment. Now represented by counsel, Young appeals eight issues from trial. II. 1 Young first argues that he never stood a chance at trial because the district court did not give him adequate time to prepare. The court denied the motion for a continuance that Young filed on May 3, 2018, eleven days before trial was set to begin. Young's May 3 motion for a continuance was not his first. The court had originally scheduled the trial to begin on January 22, 2018. Still represented by counsel at the time, Young moved in January 2018 for a continuance to respond to a government request to narrow the indictment and to address new facts that the government had recently learned and disclosed. The court granted that continuance and reset the trial for February 20, 2018. In February, Young moved for a second continuance because his counsel had a family medical issue. The court granted that motion and rescheduled the trial for May 14, 2018. In early April, the grand jury returned a narrowed superseding indictment. Two weeks later, Young elected to waive his right to counsel. The district court thoroughly advised Young about the consequences of invoking his right to self-representation under *612 Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The court explained that proceeding pro se could restrict Young's ability to conduct research and to prepare for the trial. Young waived his right to counsel anyway. On May 3, he orally moved for a third continuance to help prepare for the trial. The district court denied the motion and proceeded with the May 14 schedule. 2 3 4 A district court has great discretion in scheduling trials and may adhere to a trial date unless there are strong reasons to grant a continuance. United States v. Cosby, 924 F.3d 329, 334 (7th Cir. 2019). To determine whether such strong reasons exist, a district court must consider several factors, including the amount of time available for preparation, the risk of prejudice from denying the continuance, the defendant's role in shortening the effective preparation time, the complexity of the case, the availability of discovery from the prosecution, the likelihood that a continuance would have helped the defendant, and the inconvenience to the district court. United States v. Schwensow, 151 F.3d 650, 656 (7th Cir. 1998). We will reverse the district court's denial of a motion for a continuance only for abuse of discretion and upon a showing of actual prejudice. Id. Reviewing the relevant factors, we conclude that the court did not abuse its discretion in denying the third motion for a continuance. Young has failed to explain what he would have done differently with the benefit of more time. He had 15 months from the initial indictment to trial to prepare; for most of that time, he had the help of a lawyer, and after he took over his own defense, he had almost three weeks to get up to speed. Id. (affirming the district court's denial of a continuance where the defendant had months with counsel to prepare for trial before electing to proceed pro se). His desire for more time arose from his own knowing and voluntary choice to proceed pro se—a change that he initiated three weeks before a trial date that had already been pushed back twice. Cf. United States v. Volpentesta, 727 F.3d 666, 678 (7th Cir. 2013) (“We are particularly reluctant to find an abuse of discretion where, as in this case, a court denies a continuance to a defendant who decides to proceed pro se but then complains of not being prepared for trial.”). Further, Young did not lack access to the prosecution's discovery: in detention, he was allowed to review all of the prosecution's materials except for certain phone records, which he was later permitted to access. As for the complexity of Young's case, the trial transcript reveals that Young had a fairly strong grasp of the relevant facts. Young may have lacked a sophisticated understanding of the law, but he has not explained why that was the result of the timeline rather than his choice to proceed pro se. 5 When Young elected to represent himself, he was warned that one of the consequences would be the difficulty of preparing for trial. A defendant has a right to self-representation, but “[d]efending pro se will almost always be foolish ....” Imani v. Pollard, 826 F.3d 939, 944 (7th Cir. 2016). Young proceeded pro se anyway, and he now faces the consequences. The court did not abuse its discretion when it denied a third continuance. III. Young also argues that the district court erroneously instructed the jury on the interstate commerce element of the offense. Young was indicted under 18 U.S.C. § 1591, which requires that the offense occur “in or affecting interstate commerce.” The district court instructed the jury that this element would be satisfied if the defendant did or knowingly caused another to do one or more of the following actions as part of in or in furtherance of *613 the offense: “(1) used hotels that serve interstate travelers; or (2) used condoms manufactured outside of the State of Illinois; or (3) used the Internet to place advertisements.” Young asserts that these connections to interstate commerce are too flimsy to support a conviction. 6 7 8 We reject Young's narrow theory. The statute sweeps broadly: again, the defendant's actions need only be “in or affecting” interstate commerce. The Seventh Circuit's pattern jury instructions clarify that commerce “includes, among other things, travel, trade, transportation and communication.” Pattern Criminal Jury Instructions of the Seventh Circuit 470 (2012 ed., rev. 2019). An advertisement for sex placed on the internet is plainly a communication delivered through an interstate infrastructure. See United States v. Horne, 474 F.3d 1004, 1006 (7th Cir. 2007) (explaining that a website “is an avenue of interstate commerce” and that the internet “crosses state and indeed international boundaries”). Hotels catering to interstate travelers have a close connection to interstate travel. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 248, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (holding that the local operations of a motel affect interstate commerce). And condoms manufactured out of state affect interstate trade. See United States v. Evans, 476 F.3d 1176, 1179–80 (11th Cir. 2007) (explaining that condoms, along with hotels, affect interstate commerce); see also United States v. Walls, 784 F.3d 543, 548–49 (9th Cir. 2015) (holding that because Congress found that sex trafficking has a substantial effect on interstate commerce in the aggregate, each individual action need only have a de minimis effect on interstate commerce). The jury instructions thus comported with the broad language of § 1591. Other circuits have taken the same approach to the interstate commerce element in this very statute. See, e.g., United States v. Phea, 755 F.3d 255, 263 (5th Cir. 2014) (element satisfied by use of cell phone, out-of-state customer, and online ads); United States v. Todd, 627 F.3d 329, 331–33 (9th Cir. 2010) (Craigslist and newspaper ads); Evans, 476 F.3d at 1179–80 (condoms and hotels). And we have interpreted the interstate commerce element of the Hobbs Act, another statute with a broadly defined interstate commerce element, in a similarly expansive way. See Horne, 474 F.3d at 1006; United States v. Stillo, 57 F.3d 553, 558–59 (7th Cir. 1995). 9 10 Young next argues that even if the court properly instructed the jury on the interstate commerce element, the evidence presented at trial was insufficient to prove that element. Young moved for a directed verdict on this basis at the district court and now argues that it warrants a reversal of his conviction. We will overturn a conviction based on insufficiency of the evidence only if the record is “devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Durham, 645 F.3d 883, 892 (7th Cir. 2011). Young has a compelling argument with respect to two of the three grounds on which the jury could have found the “interstate commerce” element satisfied: hotels and condoms. The government presented little to no credible evidence of the interstate nature of the hotels that Young used or that the condoms that he provided to the victims were manufactured out of state. That was unfortunate. Such information is no doubt readily available, and the government could have averted litigation on this issue by presenting it. Fortunately for the government, it had enough evidence of the third ground—internet advertising—to prove the interstate commerce element for each count of conviction. *614 The court instructed the jury that they could find that the government proved the interstate commerce element if Young used or caused someone else to use the internet to place advertisements “as part of or in furtherance of the offense.” Jyanna, Kiwana, Destiny, and Jackie all testified at trial that Young used Backpage to advertise their escort services. They explained that sometimes Young posted their advertisements on Backpage himself and sometimes he took photos for the website and instructed one of the victims to post them on his behalf. They further testified that Young sometimes paid money to Backpage to promote their ads on the website. Their testimony was supported by examples of the advertisements, which were linked to Young's phone number, email address, and IP address. That evidence is sufficient for a reasonable jury to find that Young used the internet in furtherance of his offenses against all four victims of sex trafficking. 11 With respect to Alexus, the victim of attempted sex trafficking, the evidence was slightly weaker. Jyanna testified that Young had posted an advertisement on Backpage for escort services, but not for Alexus directly. Two men responded to the Backpage ad, requesting two escorts. Jyanna persuaded her friend Alexus to be the second, and Young picked up both Jyanna and Alexus to take them to the call. Even though Young did not advertise Alexus by name or by photograph, Jyanna's testimony supports the jury's finding on the “interstate commerce” element with respect to Alexus. Young's Backpage advertisement attracted customers seeking two escorts, and he used Alexus to fulfill their request. Based on that evidence, a reasonable jury could conclude that Young used the internet “as part of or in furtherance of” his attempt to provide Alexus for sex. The record therefore was not “devoid” of proof that Young acted in interstate commerce with respect to every offense for which the jury convicted him. IV. 12 13 Young challenges the district court's decision to exclude evidence of his minor victims’ past sexual conduct. Before trial, Young moved to introduce evidence that Jyanna, Kiwana, and Alexus had been engaged as prostitutes “on their own” before they ever met him. The district court denied Young's motion under Federal Rule of Evidence 412. We review the exclusion for abuse of discretion. United States v. Groce, 891 F.3d 260, 266 (7th Cir. 2018). Evidence offered to prove that a victim engaged in other sexual behavior is generally inadmissible in proceedings involving allegations of sexual misconduct. Fed. R. Evid. 412(a)(1). The rule serves two purposes: it is meant to protect victims against “the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details” and to encourage victims to participate in legal proceedings without fear of those consequences. Fed. R. Evid. 412 advisory committee's note to 1994 amendments. But the general rule has a few narrow textual exceptions, and Young argues that his proposed evidence falls under one of them. A court may admit sexual-history evidence in a criminal case if excluding the evidence would violate the defendant's constitutional rights. Fed. R. Evid. 412(b)(1)(C). Young argues that the exclusion violated his Sixth Amendment right to prove his defense. The federal sex-trafficking statute makes it a crime to knowingly or with reckless disregard recruit, entice, harbor, transport, provide, obtain, advertise, maintain, patronize, or solicit a minor to engage in a commercial sex act. 18 U.S.C. § 1591. Young posits *615 that the evidence would tend to show that he lacked the mens rea to knowingly or with reckless disregard “coerce,” “recruit,” or “harbor” the victims because he believed from their prior sexual acts that they were “acting of their own volition.” The district court properly rejected this argument. Disproving that he knowingly “coerced” his victims would not have helped Young because coercion is not an element of the federal crime of sex trafficking when the victim is a minor. Id. § 1591(a), (c). Nor would it have helped Young to disprove that he knowingly “recruited” the victims to prostitution. Although recruitment is one possible means of completing the federal crime of sex trafficking, Young was not indicted for recruitment. Finally, the prior sexual conduct of Young's minor victims has no bearing whatsoever on whether Young knowingly “harbored” any of them for prostitution—that is, whether he knowingly provided his victims with a place to live. Nor, for that matter, could Young argue that his victims’ prior sexual acts bore on whether he “transported,” “provided,” “obtained,” or “maintained” them—the other charges in his indictment. See Groce, 891 F.3d at 266–67 (rejecting evidence of prior prostitution as irrelevant to the present charges); United States v. Carson, 870 F.3d 584, 593–94 (7th Cir. 2017) (same); United States v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) (same). The district court did not infringe on Young's constitutional rights by denying him the opportunity to present evidence of his minor victims’ sexual history. V. 14 Young next argues that his personal notebook should have been excluded from evidence as the fruit of an illegal search. He contends that the person who consented to the search did not have the apparent authority to do so. See Illinois v. Rodriguez, 497 U.S. 177, 188–89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Whatever the merits of Young's Fourth Amendment argument, he made it too late. A party moving to suppress evidence must do so before trial; the court may consider an untimely motion only if the moving party shows good cause. Fed. R. Crim. P. 12(b)(3)(C); 12(c)(3). Young did not file a pretrial suppression motion; instead, he moved to suppress the notebook during the trial after the prosecution introduced the evidence. Young asserts that his election to proceed pro se during the weeks before trial amounted to good cause for his untimeliness. But Young discussed this issue with his attorney months before his decision to proceed pro se, and he was able to file several other pretrial motions after he fired his counsel. The district court's conclusion that Young failed to demonstrate good cause for his untimeliness was not an abuse of discretion. VI. 15 Young presents a spate of other arguments, all of which we reject. Young contends that the district court erroneously instructed the jury on the definition of “reckless disregard.” But the court's instruction comported with our definition of the term in Carson, 870 F.3d at 601. Young also challenges the admission of testimony by government's expert FBI Special Agent Carrie Landau. The district court did not abuse its discretion by concluding that Landau's expert testimony, which defined key terms and explained common sex-trafficking dynamics, was reliable and helpful for the jury. See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Young's motion for a new trial on the basis of supposed perjury by two government witnesses, Special *616 Agent Dana McNeal and victim Destiny, fares no better. The district court did not abuse its discretion when it concluded that McNeal had not perjured herself but rather had failed to understand Young's convoluted cross-examination. As to Destiny's testimony, Young never raised the argument below. It was not plain error to deny Young's motion for a retrial not-withstanding inconsistencies in Destiny's testimony on a minor issue collateral to Young's guilt. Finally, because Young has failed to point to any errors at all in his trial, he has necessarily failed to demonstrate that his trial was tainted by cumulative error.

Barrett

majority

Allen Young was indicted for the sex trafficking of four minors and the attempted sex trafficking of a fifth. Three weeks before his trial was scheduled to start, Young fired his attorney and invoked his right to represent himself. The result was predictable. The government presented compelling evidence—including the testimony of each victim—that Young knowingly facilitated the prostitution of vulnerable minors and profited from their exploitation. Young, appearing pro se, failed to mount a serious defense to the government's case, and the jury convicted him on all counts. He now appeals eight issues from the trial. None of his arguments has merit, and we affirm the judgment across the board. I. Between 2014 and 2016, Allen Young promoted the prostitution of high-school-aged minors and took a cut of the money that they were paid for sex. He was indicted under for sex trafficking four minor victims—Jyanna, Kiwana, Jackie, and Destiny—and attempting to do the same with a fifth—Alexus. Young followed the same general pattern with each victim. After meeting the victims, Young showed them the classified ads website Backpage.com and taught them how to post advertisements for “escort services.” Young sometimes took revealing photos of the victims for their ads and posted them himself from his own computer, paying the advertising fees out of pocket. Young then *611 facilitated the victims’ “calls,” or appointments, with the men who responded to the Backpage ads. He set the hourly rates that his victims would charge for sex; he reserved the hotels where the sexual acts would take place; and he provided the victims with condoms to use during sex, as well as cell phones that they could use to contact him during their appointments. He provided housing for one victim, Kiwana, in his basement. Young also drove the victims to and from their calls, at least once picking up a victim from high school to take her to a call. Young usually took half of the money that his victims were paid for sex. Sometimes he personally demanded sex from them—either in addition to or instead of the money. A few weeks before Young's trial was set to begin, Young fired his counsel and elected to represent himself. At trial, the government presented substantial evidence of Young's guilt. It elicited testimony from each of the five victims, the FBI special agent who investigated the case, and a witness who had seen Young transport the victims. It introduced phone records showing extensive contact between Young's phone and the victims’, which consistently matched the times and locations of their appointments. It put Young's former employer on the stand, who testified that he had fired Young after discovering that Young had used the workplace to photograph and advertise young women on Backpage. It introduced Young's personal notebook, which contained the email address that he had used to post at least one of the victims’ Backpage ads and tips on how to avoid getting caught by the police as an escort. And it furnished the jury with Young's post-arrest statement, during which he admitted that he knew about Backpage and that he knew Jyanna and knew that she was a minor. Young testified in his own defense, questioned by his standby counsel. On the stand, Young admitted that he had been trying to start an adult escort business, that he knew some of the victims, and that he helped them by giving them rides. He denied facilitating their prostitution and posting their ads on Backpage, and he said that he did not know that they were all minors. The jury convicted Young on all counts, and the court sentenced him to 21 years’ imprisonment. Now represented by counsel, Young appeals eight issues from trial. II. 1 Young first argues that he never stood a chance at trial because the district court did not give him adequate time to prepare. The court denied the motion for a continuance that Young filed on May 3, 2018, eleven days before trial was set to begin. Young's May 3 motion for a continuance was not his first. The court had originally scheduled the trial to begin on January 22, 2018. Still represented by counsel at the time, Young moved in January 2018 for a continuance to respond to a government request to narrow the indictment and to address new facts that the government had recently learned and disclosed. The court granted that continuance and reset the trial for February 20, 2018. In February, Young moved for a second continuance because his counsel had a family medical issue. The court granted that motion and rescheduled the trial for May 14, 2018. In early April, the grand jury returned a narrowed superseding indictment. Two weeks later, Young elected to waive his right to counsel. The district court thoroughly advised Young about the consequences of invoking his right to self-representation under *612 The court explained that proceeding pro se could restrict Young's ability to conduct research and to prepare for the trial. Young waived his right to counsel anyway. On May 3, he orally moved for a third continuance to help prepare for the trial. The district court denied the motion and proceeded with the May 14 schedule. 2 3 4 A district court has great discretion in scheduling trials and may adhere to a trial date unless there are strong reasons to grant a continuance. United To determine whether such strong reasons exist, a district court must consider several factors, including the amount of time available for preparation, the risk of prejudice from denying the continuance, the defendant's role in shortening the effective preparation time, the complexity of the case, the availability of discovery from the prosecution, the likelihood that a continuance would have helped the defendant, and the inconvenience to the district court. United We will reverse the district court's denial of a motion for a continuance only for abuse of discretion and upon a showing of actual prejudice. Reviewing the relevant factors, we conclude that the court did not abuse its discretion in denying the third motion for a continuance. Young has failed to explain what he would have done differently with the benefit of more time. He had 15 months from the initial indictment to trial to prepare; for most of that time, he had the help of a lawyer, and after he took over his own defense, he had almost three weeks to get up to speed. His desire for more time arose from his own knowing and voluntary choice to proceed pro se—a change that he initiated three weeks before a trial date that had already been pushed back twice. Cf. United Further, Young did not lack access to the prosecution's discovery: in detention, he was allowed to review all of the prosecution's materials except for certain phone records, which he was later permitted to access. As for the complexity of Young's case, the trial transcript reveals that Young had a fairly strong grasp of the relevant facts. Young may have lacked a sophisticated understanding of the law, but he has not explained why that was the result of the timeline rather than his choice to proceed pro se. 5 When Young elected to represent himself, he was warned that one of the consequences would be the difficulty of preparing for trial. A defendant has a right to self-representation, but “[d]efending pro se will almost always be foolish” Young proceeded pro se anyway, and he now faces the consequences. The court did not abuse its discretion when it denied a third continuance. III. Young also argues that the district court erroneously instructed the jury on the interstate commerce element of the offense. Young was indicted under which requires that the offense occur “in or affecting interstate commerce.” The district court instructed the jury that this element would be satisfied if the defendant did or knowingly caused another to do one or more of the following actions as part of in or in furtherance of *613 the offense: “(1) used hotels that serve interstate travelers; or (2) used condoms manufactured outside of the State of Illinois; or (3) used the Internet to place advertisements.” Young asserts that these connections to interstate commerce are too flimsy to support a conviction. 6 7 8 We reject Young's narrow theory. The statute sweeps broadly: again, the defendant's actions need only be “in or affecting” interstate commerce. The Seventh Circuit's pattern jury instructions clarify that commerce “includes, among other things, travel, trade, transportation and communication.” Pattern Criminal Jury Instructions of the Seventh Circuit 470 An advertisement for sex placed on the internet is plainly a communication delivered through an interstate infrastructure. See United Hotels catering to interstate travelers have a close connection to interstate travel. Cf. Heart of Atlanta Motel, And condoms manufactured out of state affect interstate trade. See United ; see also United The jury instructions thus comported with the broad language of 1591. Other circuits have taken the same approach to the interstate commerce element in this very statute. See, e.g., United ; United ; 476 F.3d at (condoms and hotels). And we have interpreted the interstate commerce element of the Hobbs Act, another statute with a broadly defined interstate commerce element, in a similarly expansive way. See 474 F.3d at ; United 9 10 Young next argues that even if the court properly instructed the jury on the interstate commerce element, the evidence presented at trial was insufficient to prove that element. Young moved for a directed verdict on this basis at the district court and now argues that it warrants a reversal of his conviction. We will overturn a conviction based on insufficiency of the evidence only if the record is “devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United Young has a compelling argument with respect to two of the three grounds on which the jury could have found the “interstate commerce” element satisfied: hotels and condoms. The government presented little to no credible evidence of the interstate nature of the hotels that Young used or that the condoms that he provided to the victims were manufactured out of state. That was unfortunate. Such information is no doubt readily available, and the government could have averted litigation on this issue by presenting it. Fortunately for the government, it had enough evidence of the third ground—internet advertising—to prove the interstate commerce element for each count of conviction. *614 The court instructed the jury that they could find that the government proved the interstate commerce element if Young used or caused someone else to use the internet to place advertisements “as part of or in furtherance of the offense.” Jyanna, Kiwana, Destiny, and Jackie all testified at trial that Young used Backpage to advertise their escort services. They explained that sometimes Young posted their advertisements on Backpage himself and sometimes he took photos for the website and instructed one of the victims to post them on his behalf. They further testified that Young sometimes paid money to Backpage to promote their ads on the website. Their testimony was supported by examples of the advertisements, which were linked to Young's phone number, email address, and IP address. That evidence is sufficient for a reasonable jury to find that Young used the internet in furtherance of his offenses against all four victims of sex trafficking. 11 With respect to Alexus, the victim of attempted sex trafficking, the evidence was slightly weaker. Jyanna testified that Young had posted an advertisement on Backpage for escort services, but not for Alexus directly. Two men responded to the Backpage ad, requesting two escorts. Jyanna persuaded her friend Alexus to be the second, and Young picked up both Jyanna and Alexus to take them to the call. Even though Young did not advertise Alexus by name or by photograph, Jyanna's testimony supports the jury's finding on the “interstate commerce” element with respect to Alexus. Young's Backpage advertisement attracted customers seeking two escorts, and he used Alexus to fulfill their request. Based on that evidence, a reasonable jury could conclude that Young used the internet “as part of or in furtherance of” his attempt to provide Alexus for sex. The record therefore was not “devoid” of proof that Young acted in interstate commerce with respect to every offense for which the jury convicted him. IV. 12 13 Young challenges the district court's decision to exclude evidence of his minor victims’ past sexual conduct. Before trial, Young moved to introduce evidence that Jyanna, Kiwana, and Alexus had been engaged as prostitutes “on their own” before they ever met him. The district court denied Young's motion under Federal Rule of Evidence 412. We review the exclusion for abuse of discretion. United Evidence offered to prove that a victim engaged in other sexual behavior is generally inadmissible in proceedings involving allegations of sexual misconduct. Fed. R. Evid. 412(a)(1). The rule serves two purposes: it is meant to protect victims against “the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details” and to encourage victims to participate in legal proceedings without fear of those consequences. Fed. R. Evid. 412 advisory committee's note to 1994 amendments. But the general rule has a few narrow textual exceptions, and Young argues that his proposed evidence falls under one of them. A court may admit sexual-history evidence in a criminal case if excluding the evidence would violate the defendant's constitutional rights. Fed. R. Evid. 412(b)(1)(C). Young argues that the exclusion violated his Sixth Amendment right to prove his defense. The federal sex-trafficking statute makes it a crime to knowingly or with reckless disregard recruit, entice, harbor, transport, provide, obtain, advertise, maintain, patronize, or solicit a minor to engage in a commercial sex act. Young posits *615 that the evidence would tend to show that he lacked the mens rea to knowingly or with reckless disregard “coerce,” “recruit,” or “harbor” the victims because he believed from their prior sexual acts that they were “acting of their own volition.” The district court properly rejected this argument. Disproving that he knowingly “coerced” his victims would not have helped Young because coercion is not an element of the federal crime of sex trafficking when the victim is a minor. 1591(a), (c). Nor would it have helped Young to disprove that he knowingly “recruited” the victims to prostitution. Although recruitment is one possible means of completing the federal crime of sex trafficking, Young was not indicted for recruitment. Finally, the prior sexual conduct of Young's minor victims has no bearing whatsoever on whether Young knowingly “harbored” any of them for prostitution—that is, whether he knowingly provided his victims with a place to live. Nor, for that matter, could Young argue that his victims’ prior sexual acts bore on whether he “transported,” “provided,” “obtained,” or “maintained” them—the other charges in his indictment. See 891 F.3d at –67 (rejecting evidence of prior prostitution as irrelevant to the present charges); United ; United The district court did not infringe on Young's constitutional rights by denying him the opportunity to present evidence of his minor victims’ sexual history. V. 14 Young next argues that his personal notebook should have been excluded from evidence as the fruit of an illegal search. He contends that the person who consented to the search did not have the apparent authority to do so. See Whatever the merits of Young's Fourth Amendment argument, he made it too late. A party moving to suppress evidence must do so before trial; the court may consider an untimely motion only if the moving party shows good cause. Fed. R. Crim. P. 12(b)(3)(C); 12(c)(3). Young did not file a pretrial suppression motion; instead, he moved to suppress the notebook during the trial after the prosecution introduced the evidence. Young asserts that his election to proceed pro se during the weeks before trial amounted to good cause for his untimeliness. But Young discussed this issue with his attorney months before his decision to proceed pro se, and he was able to file several other pretrial motions after he fired his counsel. The district court's conclusion that Young failed to demonstrate good cause for his untimeliness was not an abuse of discretion. VI. 15 Young presents a spate of other arguments, all of which we reject. Young contends that the district court erroneously instructed the jury on the definition of “reckless disregard.” But the court's instruction comported with our definition of the term in Young also challenges the admission of testimony by government's expert FBI Special Agent Carrie Landau. The district court did not abuse its discretion by concluding that Landau's expert testimony, which defined key terms and explained common sex-trafficking dynamics, was reliable and helpful for the jury. See Fed. R. Evid. 702; Young's motion for a new trial on the basis of supposed perjury by two government witnesses, Special *616 Agent Dana McNeal and victim Destiny, fares no better. The district court did not abuse its discretion when it concluded that McNeal had not perjured herself but rather had failed to understand Young's convoluted cross-examination. As to Destiny's testimony, Young never raised the argument below. It was not plain error to deny Young's motion for a retrial not-withstanding inconsistencies in Destiny's testimony on a minor issue collateral to Young's guilt. Finally, because Young has failed to point to any errors at all in his trial, he has necessarily failed to demonstrate that his trial was tainted by cumulative error.

VHC, Inc. v. Commissioner of Internal Revenue

For more than a decade, Ron Van Den Heuvel received cash payments from VHC, a company founded by his father and owned by his family. These payments primarily supported Ron's business ventures but also helped him pay personal taxes and cover other personal expenses. Ron didn't pay VHC back, and the company wrote down these payments as “bad debts” for which it received tax deductions. After a years-long audit, the IRS concluded that VHC never intended to be paid back and that these payments were not bona fide debts qualifying for the deduction. The Tax Court upheld this determination and rejected VHC's alternative theories as to why the payments qualified for a deduction. We see no error in this decision and affirm the Tax Court's judgment. *841 I. Ron Van Den Heuvel's father founded VHC in 1985 to provide services to the paper manufacturing industry. Ron and his four brothers have all worked for VHC or its subsidiaries in some capacity, but Ron found particular success. He started two of VHC's subsidiaries, directed a number of its other companies, and launched his own companies separate from VHC. Between 1997 and 2013, VHC advanced $111 million to Ron and his companies. These payments took several forms and fulfilled several purposes, including paying debts owed by both Ron and his companies. Ron and his companies would come to owe VHC $132 million, including interest, by 2013 but would only ever repay $39 million. In 2002, Associated Bank, a creditor to both Ron and VHC, demanded that VHC guarantee all of Ron's debts to Associated—about $27 million—as a condition of preserving VHC's line of credit with Associated. VHC agreed and made similar arrangements a year later with two other banks. Ron's companies do not appear to have turned a profit, and in 2004 VHC began writing off its payments to Ron as “bad debts,” ultimately writing off $95 million by 2013. After an audit, the IRS issued a notice of deficiency to VHC, rejecting $92 million of these write-offs. VHC petitioned the Tax Court to review the agency's deficiency determination. The court held a ten-day bench trial, during which VHC presented both documentary evidence and live witness testimony. But the Tax Court upheld the agency's deficiency finding. It determined that VHC could not deduct the payments to Ron as “bad debts” because Ron and VHC lacked a bona fide debtor-creditor relationship. The Tax Court also rejected VHC's alternative arguments, including its contention that its payments to Ron were ordinary and necessary business expenses because of VHC's 2002 agreement with Associated. The Tax Court slightly reduced VHC's liability, however, concluding that the unpaid interest accrued on the payments to Ron was not taxable as income because the debts were not bona fide. VHC appeals the Tax Court's ruling, arguing that the Tax Court erroneously determined that the payments were not deductible either as bad debts or as ordinary and necessary business expenses, and contending that the Tax Court did not sufficiently reduce VHC's interest income. II. 1 2 3 We begin with the two avenues by which VHC argues the payments could have been deducted. From the outset, we note that a petitioner who asserts entitlement to a deduction faces a steep climb. Income tax deductions are “a matter of legislative grace and ... the burden of clearly showing the right to the claimed deduction is on the taxpayer.” INDOPCO, Inc. v. Comm'r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992) (citation omitted). As a result, when the Commissioner makes a deficiency assessment, we place the burden on the taxpayer to prove that the assessment was erroneous. Cole v. Comm'r, 637 F.3d 767, 773 (7th Cir. 2011). We give the Commissioner's assessment a “presumption of correctness” but shift the burden of proof to the Commissioner if the taxpayer can demonstrate that a deficiency assessment “lacks a rational foundation or is arbitrary and excessive.” Id. (citation omitted). 4 5 In evaluating whether an assessment is arbitrary and excessive, we review legal questions de novo and factual findings for clear error, and we disturb a factual finding only if we are “left with the definite and firm conviction that a mistake has been committed.” Id. (citation omitted). *842 When evaluating a claim of entitlement to a deduction, “[t]he tax court's determination that a taxpayer has failed to come forward with sufficient evidence to support a deduction is a factual finding.” Buelow v. Comm'r, 970 F.2d 412, 415 (7th Cir. 1992). A. 6 VHC disputes the Tax Court's determination that its cash payments to Ron did not constitute loans that were deductible as “bad debts” when they went unpaid. In general, taxpayers may deduct “any debt which becomes worthless within the taxable year” or the nonrecoverable part of a partially worthless debt that is written off within the taxable year. I.R.C. § 166(a). Treasury Regulations specify that “[o]nly a bona fide debt qualifies for ... section 166” and define a “bona fide debt” as one that “arises from a debtor-creditor relationship based upon a valid and enforceable obligation to pay a fixed or determinable sum of money.” Treas. Reg. § 1.166-1(c). The regulations specifically exclude any “gift or contribution to capital” as qualifying as a bona fide debt. Id. 7 VHC's ability to claim the deduction therefore turns on whether it had a debtor-creditor relationship with Ron such that he had an enforceable obligation to pay VHC a fixed sum. To determine whether such a relationship exists, we look to “a number of factors” as “indications of intent,” and the burden to establish the presence of such indicators lies with the taxpayer. Busch v. Comm'r, 728 F.2d 945, 948 (7th Cir. 1984). For its part, the Tax Court views intrafamily transfers with particular skepticism. See Van Anda's Estate v. Comm'r, 12 T.C. 1158, 1162 (1949), aff'd per curiam, 192 F.2d 391 (2d Cir. 1951) (“Intrafamily transactions are subject to rigid scrutiny.... However, this presumption may be rebutted by an affirmative showing that there existed at the time of the transaction a real expectation of repayment and intent to enforce the collection of the indebtedness.”). Though the question whether a debtor-creditor relationship existed “has been variously described as one of fact and one of law,” we conclude that the Tax Court reached the correct conclusion under either standard. In re Larson, 862 F.2d 112, 116 (7th Cir. 1988). The Tax Court looked to ten factors to determine that Ron and VHC did not have a debtor-creditor relationship. VHC does not confront these factors. Instead, it argues that the Tax Court's reliance on indicia of a debtor-creditor relationship prevented it from seeing the forest for the trees and that the only relevant factor is the intent of the parties. We need not belabor the other factors upon which the Tax Court relied—even under VHC's own theory it still loses. It contends that it held out to third parties that the advances were debts and signed promissory notes, indicating that it believed the advances to be debt for which it expected to be repaid. But, as the Tax Court noted, the way that VHC described the advances does not match the way that VHC and Ron treated these payments. For example, the Tax Court noted that, though many of the promissory notes had fixed maturity dates, VHC routinely deferred payment or renewed the notes without any receipt of payment. Further, the Tax Court pointed to evidence that VHC did not expect to be repaid unless various other events occurred, such as Ron securing additional investments and projects. But, as we have described, this sort of relationship is that of an investor, not of a creditor: “[T]he creditor expects repayment regardless of the debtor corporation's success or failure, while the investor expects to make a profit ... if, as he no doubt devoutly wishes, the company is successful.” *843 In re Larson, 862 F.2d at 117. Though VHC may have described the payments as debt, it did not treat them as part of an ordinary debtor-creditor relationship and therefore did not establish that the parties intended such a relationship. VHC bears the burden of demonstrating that its payments to Ron were bona fide debts that arose from a debtor-creditor relationship in which it expected Ron to pay VHC back in full. VHC has not shown that it presented such evidence to the Tax Court or that the Tax Court made grave errors in its evaluation of the evidence. Because it failed to carry its burden, we conclude that VHC's payments to Ron were not “bad debts” qualifying for a deduction. B. 8 VHC has an alternative argument: that it could deduct its payments to Ron as ordinary and necessary business expenses, which are deductible under I.R.C. § 162. That provision provides a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business,” including salaries, travel expenses, rentals, and payments made for continued use or possession of assets. I.R.C. § 162(a); see also Treas. Reg. § 1.162-1(a) (providing a more comprehensive list). VHC argues that Associated Bank—a creditor of both Ron and VHC—threatened to terminate VHC's line of credit, forcing VHC into bankruptcy, if it did not float money to Ron to help him pay his own debts to Associated. To support its position, VHC highlights that the Tax Court has previously determined that payments made by a taxpayer for the benefit of a third party may be deductible as ordinary and necessary business expenses if the taxpayer benefited from the payment. VHC principally relies on Lohrke, in which the Tax Court noted that generally an expense incurred to satisfy the obligations of another taxpayer is not an ordinary or necessary business expense. Lohrke v. Comm'r, 48 T.C. 679, 688 (1967); see also Baker Hughes, Inc. v. United States, 943 F.3d 255, 263 (5th Cir. 2019) (citing Lohrke). But the Tax Court “conclude[d] that in some situations an individual may deduct the expenses of another person.” Lohrke, 48 T.C. at 688. To determine if a payment fell under this exception, the Tax Court used a two-part test. First, the court would “ascertain the purpose or motive which cause the taxpayer to pay the obligations of the other person,” then the court would determine if that motive constitutes “an ordinary and necessary expense of the [taxpayer's] trade or business.” Id. Here, the Tax Court determined that VHC had neither met its burden to substantiate its claimed business expenses nor established that the claimed business expenses, if substantiated, qualified for the deduction under § 162. As for VHC's substantiation of the expenses, the Tax Court noted that VHC's records were “riddled with inconsistencies” and that documentary evidence it provided either did not support or outright contradicted its spreadsheet purporting to list the deductible expenditures. VHC points generally to its summary records and spread-sheets as evidence of its expenditures. But the Tax Court has “repeatedly concluded that self-generated or nonitemized receipts or expense records are insufficient to substantiate expenses.” Gorokhovsky v. Comm'r, 104 T.C.M. (CCH) 87 (2012), aff'd, 549 F. App'x 527 (7th Cir. 2013). VHC has not pointed to much in the way of specific evidence to bolster these general, self-reported summaries, nor has it addressed the inconsistencies observed by the Tax Court, other than to comment that one might expect *844 some inconsistencies in records of such large sums. That is not enough. VHC carries the burden to highlight any error by the Tax Court, and it has not done so. See Buelow, 970 F.2d at 415. Even assuming VHC had substantiated these expenses, however, we also agree with the Tax Court that VHC's payments to Ron did not qualify as ordinary and necessary business expenses. To qualify for this deduction, an expenditure must (1) be paid or incurred during a taxable year, (2) be for the purpose of carrying on a business, and (3) be an “expense” (4) that is “necessary” and (5) “ordinary.” Comm'r v. Lincoln Sav. & Loan Ass'n, 403 U.S. 345, 352, 91 S.Ct. 1893, 29 L.Ed.2d 519 (1971). That Associated required VHC to guarantee Ron's loans does not automatically make any related expenses ordinary and necessary, because “the fact that a payment is imposed compulsorily upon a taxpayer does not in and of itself make that payment an ordinary and necessary expense.” Id. at 359, 91 S.Ct. 1893. What's more, even if we assume that the payments were “necessary” for the purposes of § 162, VHC has made no showing whatsoever that such payments ordinarily occur in the paper services industry. See United Draperies, Inc. v. Comm'r, 340 F.2d 936, 937 (7th Cir. 1964) (“There is nothing to show that the practice was a normal incident to the drapery manufacturing industry or to suppliers of mobile home manufacturers generally.”). VHC counters that securing access to credit comprises an ordinary part of any business. But that oversimplifies what it says occurred here. VHC's arrangement was no simple extension of credit by Associated. Rather, VHC and Associated entered into a seemingly unusual arrangement through which VHC's credit depended on its support of a third party. The burden rested with VHC to show that its payments to support Ron under such an arrangement were ordinary in its industry. It has not done so and thus cannot establish its entitlement to the deduction. III. 9 Finally, VHC argues that, if its payments to Ron did not create bona fide debts, it should be allowed to reduce its taxable income in the amount of any interest that accrued on the payments. Because VHC is an accrual method taxpayer, it deducts the accrued interest on debts once it becomes entitled to it, regardless of whether that interest is paid within the tax year. Although the Tax Court deducted the unpaid interest from VHC's income, it did not deduct the relatively small amount of interest that Ron did pay. VHC argues that all of the interest should be deducted. The Tax Court determined that the payments to Ron stopped accruing interest in 2007 when VHC decided that it did not expect repayment. VHC has pointed to no reason why this finding was clearly erroneous.1 And as for the interest that accrued before 2007, VHC asked the Tax Court to reduce its income only by the amount that was unpaid by Ron, not the total amount it now requests on appeal. VHC may have committed a tactical error by limiting its request to the Tax Court, but we will not search for error where the court below did exactly as VHC requested. See Naeem v. McKesson Drug Co., 444 F.3d 593, 609 (7th Cir. 2006) (“[W]hen error is invited, not even plain error permits reversal.”). *845 VHC asked the Tax Court to deduct its income only by the unpaid interest amount and the Tax Court did so for the period before 2007. Since we find no error in the Tax Court's determination that interest accruals stopped in 2007, we will not disturb its conclusion on the interest deductions.

Barrett

majority

For more than a decade, Ron Van Den Heuvel received cash payments from VHC, a company founded by his father and owned by his family. These payments primarily supported Ron's business ventures but also helped him pay personal taxes and cover other personal expenses. Ron didn't pay VHC back, and the company wrote down these payments as “bad debts” for which it received tax deductions. After a years-long audit, the IRS concluded that VHC never intended to be paid back and that these payments were not bona fide debts qualifying for the deduction. The Tax Court upheld this determination and rejected VHC's alternative theories as to why the payments qualified for a deduction. We see no error in this decision and affirm the Tax Court's judgment. *1 I. Ron Van Den Heuvel's father founded VHC in 1985 to provide services to the paper manufacturing industry. Ron and his four brothers have all worked for VHC or its subsidiaries in some capacity, but Ron found particular success. He started two of VHC's subsidiaries, directed a number of its other companies, and launched his own companies separate from VHC. Between 1997 and 2013, VHC advanced $111 million to Ron and his companies. These payments took several forms and fulfilled several purposes, including paying debts owed by both Ron and his companies. Ron and his companies would come to owe VHC $132 million, including interest, by 2013 but would only ever repay $39 million. In 2002, Associated Bank, a creditor to both Ron and VHC, demanded that VHC guarantee all of Ron's debts to Associated—about $27 million—as a condition of preserving VHC's line of credit with Associated. VHC agreed and made similar arrangements a year later with two other banks. Ron's companies do not appear to have turned a profit, and in 2004 VHC began writing off its payments to Ron as “bad debts,” ultimately writing off $95 million by 2013. After an audit, the IRS issued a notice of deficiency to VHC, rejecting $92 million of these write-offs. VHC petitioned the Tax Court to review the agency's deficiency determination. The court held a ten-day bench trial, during which VHC presented both documentary evidence and live witness testimony. But the Tax Court upheld the agency's deficiency finding. It determined that VHC could not deduct the payments to Ron as “bad debts” because Ron and VHC lacked a bona fide debtor-creditor relationship. The Tax Court also rejected VHC's alternative arguments, including its contention that its payments to Ron were ordinary and necessary business expenses because of VHC's 2002 agreement with Associated. The Tax Court slightly reduced VHC's liability, however, concluding that the unpaid interest accrued on the payments to Ron was not taxable as income because the debts were not bona fide. VHC appeals the Tax Court's ruling, arguing that the Tax Court erroneously determined that the payments were not deductible either as bad debts or as ordinary and necessary business expenses, and contending that the Tax Court did not sufficiently reduce VHC's interest income. II. 1 2 3 We begin with the two avenues by which VHC argues the payments could have been deducted. From the outset, we note that a petitioner who asserts entitlement to a deduction faces a steep climb. Income tax deductions are “a matter of legislative grace and the burden of clearly showing the right to the claimed deduction is on the taxpayer.” INDOPCO, As a result, when the Commissioner makes a deficiency assessment, we place the burden on the taxpayer to prove that the assessment was erroneous. We give the Commissioner's assessment a “presumption of correctness” but shift the burden of proof to the Commissioner if the taxpayer can demonstrate that a deficiency assessment “lacks a rational foundation or is arbitrary and excessive.” 4 5 In evaluating whether an assessment is arbitrary and excessive, we review legal questions de novo and factual findings for clear error, and we disturb a factual finding only if we are “left with the definite and firm conviction that a mistake has been committed.” *2 When evaluating a claim of entitlement to a deduction, “[t]he tax court's determination that a taxpayer has failed to come forward with sufficient evidence to support a deduction is a factual finding.” A. 6 VHC disputes the Tax Court's determination that its cash payments to Ron did not constitute loans that were deductible as “bad debts” when they went unpaid. In general, taxpayers may deduct “any debt which becomes worthless within the taxable year” or the nonrecoverable part of a partially worthless debt that is written off within the taxable year. I.R.C. 166(a). Treasury Regulations specify that “[o]nly a bona fide debt qualifies for section 166” and define a “bona fide debt” as one that “arises from a debtor-creditor relationship based upon a valid and enforceable obligation to pay a fixed or determinable sum of money.” Treas. Reg. 1.166-1(c). The regulations specifically exclude any “gift or contribution to capital” as qualifying as a bona fide debt. 7 VHC's ability to claim the deduction therefore turns on whether it had a debtor-creditor relationship with Ron such that he had an enforceable obligation to pay VHC a fixed sum. To determine whether such a relationship exists, we look to “a number of factors” as “indications of intent,” and the burden to establish the presence of such indicators lies with the taxpayer. (7th Cir. 19). For its part, the Tax Court views intrafamily transfers with particular skepticism. See Van Anda's aff'd per curiam, Though the question whether a debtor-creditor relationship existed “has been variously described as one of fact and one of law,” we conclude that the Tax Court reached the correct conclusion under either standard. In re The Tax Court looked to ten factors to determine that Ron and VHC did not have a debtor-creditor relationship. VHC does not confront these factors. Instead, it argues that the Tax Court's reliance on indicia of a debtor-creditor relationship prevented it from seeing the forest for the trees and that the only relevant factor is the intent of the parties. We need not belabor the other factors upon which the Tax Court relied—even under VHC's own theory it still loses. It contends that it held out to third parties that the advances were debts and signed promissory notes, indicating that it believed the advances to be debt for which it expected to be repaid. But, as the Tax Court noted, the way that VHC described the advances does not match the way that VHC and Ron treated these payments. For example, the Tax Court noted that, though many of the promissory notes had fixed maturity dates, VHC routinely deferred payment or renewed the notes without any receipt of payment. Further, the Tax Court pointed to evidence that VHC did not expect to be repaid unless various other events occurred, such as Ron securing additional investments and projects. But, as we have described, this sort of relationship is that of an investor, not of a creditor: “[T]he creditor expects repayment regardless of the debtor corporation's success or failure, while the investor expects to make a profit if, as he no doubt devoutly wishes, the company is successful.” *3 In re Though VHC may have described the payments as debt, it did not treat them as part of an ordinary debtor-creditor relationship and therefore did not establish that the parties intended such a relationship. VHC bears the burden of demonstrating that its payments to Ron were bona fide debts that arose from a debtor-creditor relationship in which it expected Ron to pay VHC back in full. VHC has not shown that it presented such evidence to the Tax Court or that the Tax Court made grave errors in its evaluation of the evidence. Because it failed to carry its burden, we conclude that VHC's payments to Ron were not “bad debts” qualifying for a deduction. B. 8 VHC has an alternative argument: that it could deduct its payments to Ron as ordinary and necessary business expenses, which are deductible under I.R.C. 162. That provision provides a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business,” including salaries, travel expenses, rentals, and payments made for continued use or possession of assets. I.R.C. 162(a); see also Treas. Reg. 1.162-1(a) VHC argues that Associated Bank—a creditor of both Ron and VHC—threatened to terminate VHC's line of credit, forcing VHC into bankruptcy, if it did not float money to Ron to help him pay his own debts to Associated. To support its position, VHC highlights that the Tax Court has previously determined that payments made by a taxpayer for the benefit of a third party may be deductible as ordinary and necessary business expenses if the taxpayer benefited from the payment. VHC principally relies on Lohrke, in which the Tax Court noted that generally an expense incurred to satisfy the obligations of another taxpayer is not an ordinary or necessary business expense. ; see also Baker Hughes, But the Tax Court “conclude[d] that in some situations an individual may deduct the expenses of another person.” Lohrke, 48 T.C. at To determine if a payment fell under this exception, the Tax Court used a two-part test. First, the court would “ascertain the purpose or motive which cause the taxpayer to pay the obligations of the other person,” then the court would determine if that motive constitutes “an ordinary and necessary expense of the [taxpayer's] trade or business.” Here, the Tax Court determined that VHC had neither met its burden to substantiate its claimed business expenses nor established that the claimed business expenses, if substantiated, qualified for the deduction under 162. As for VHC's substantiation of the expenses, the Tax Court noted that VHC's records were “riddled with inconsistencies” and that documentary evidence it provided either did not support or outright contradicted its spreadsheet purporting to list the deductible expenditures. VHC points generally to its summary records and spread-sheets as evidence of its expenditures. But the Tax Court has “repeatedly concluded that self-generated or nonitemized receipts or expense records are insufficient to substantiate expenses.” aff'd, VHC has not pointed to much in the way of specific evidence to bolster these general, self-reported summaries, nor has it addressed the inconsistencies observed by the Tax Court, other than to comment that one might expect *4 some inconsistencies in records of such large sums. That is not enough. VHC carries the burden to highlight any error by the Tax Court, and it has not done so. See 970 F.2d at Even assuming VHC had substantiated these expenses, however, we also agree with the Tax Court that VHC's payments to Ron did not qualify as ordinary and necessary business expenses. To qualify for this deduction, an expenditure must (1) be paid or incurred during a taxable year, (2) be for the purpose of carrying on a business, and (3) be an “expense” (4) that is “necessary” and (5) “ordinary.” That Associated required VHC to guarantee Ron's loans does not automatically make any related expenses ordinary and necessary, because “the fact that a payment is imposed compulsorily upon a taxpayer does not in and of itself make that payment an ordinary and necessary expense.” What's more, even if we assume that the payments were “necessary” for the purposes of 162, VHC has made no showing whatsoever that such payments ordinarily occur in the paper services industry. See United Draperies, VHC counters that securing access to credit comprises an ordinary part of any business. But that oversimplifies what it says occurred here. VHC's arrangement was no simple extension of credit by Associated. Rather, VHC and Associated entered into a seemingly unusual arrangement through which VHC's credit depended on its support of a third party. The burden rested with VHC to show that its payments to support Ron under such an arrangement were ordinary in its industry. It has not done so and thus cannot establish its entitlement to the deduction. III. 9 Finally, VHC argues that, if its payments to Ron did not create bona fide debts, it should be allowed to reduce its taxable income in the amount of any interest that accrued on the payments. Because VHC is an accrual method taxpayer, it deducts the accrued interest on debts once it becomes entitled to it, regardless of whether that interest is paid within the tax year. Although the Tax Court deducted the unpaid interest from VHC's income, it did not deduct the relatively small amount of interest that Ron did pay. VHC argues that all of the interest should be deducted. The Tax Court determined that the payments to Ron stopped accruing interest in 2007 when VHC decided that it did not expect repayment. VHC has pointed to no reason why this finding was clearly erroneous.1 And as for the interest that accrued before 2007, VHC asked the Tax Court to reduce its income only by the amount that was unpaid by Ron, not the total amount it now requests on appeal. VHC may have committed a tactical error by limiting its request to the Tax Court, but we will not search for error where the court below did exactly as VHC requested. See *5 VHC asked the Tax Court to deduct its income only by the unpaid interest amount and the Tax Court did so for the period before 2007. Since we find no error in the Tax Court's determination that interest accruals stopped in 2007, we will not disturb its conclusion on the interest deductions.

Varlen Corporation v. Liberty Mutual Insurance Company

Varlen Corporation owned and operated two industrial sites that were found to have significant amounts of groundwater contamination related to the sites’ operations. When its insurer, Liberty Mutual Insurance Company, refused to indemnify it, Varlen sued. Varlen's case turned on testimony from an expert witness, who was excluded by the district court because he didn't use reliable methods. We agree with the district court's exclusion and affirm its grant of summary judgment to Liberty Mutual. I. Varlen, an Illinois corporation, owned and operated two industrial facilities related to railroad operations during the time period relevant to this appeal. At the first, which the parties call the LASI site, Varlen performed operations such as plating parts for locomotive engines in chrome. At the second, the Silvis site, Varlen's operations included refueling diesel engines. Varlen discovered contamination at both sites. The LASI site was equipped with a sump that held wastewater from the chrome plater. When the water in the sump reached a certain level, a pump would engage, pumping the water to a holding tank. Varlen found a chemical called hexavalent chromium contaminating the area around the sump. *458 At the Silvis site, Varlen discovered two types of groundwater contamination. It found a chlorinated solvent by a tank into which metal parts were dipped to degrease them. It also found diesel fuel near a large tank where locomotives would refuel. The contamination at these two sites cost Varlen millions of dollars in damages and remediation expenses. Varlen sought indemnification from its insurer, Liberty Mutual. But Varlen's policy with Liberty Mutual had an exclusion for any property damage arising out of chemical leaks or discharges, and Liberty Mutual denied coverage on this ground. Varlen sued Liberty Mutual. To overcome the pollution exclusion, it pointed to a policy provision stating that, despite the exclusion, Liberty Mutual would cover chemical leaks or discharges that were “sudden and accidental.” Lacking direct evidence of how the damage occurred, it proffered the expert testimony of geologist Daniel Rogers to prove that the contamination of the LASI and Silvis sites occurred suddenly and accidentally. Rogers testified that the contaminants at the LASI site were released because the concrete sump leaked. He opined that the releases were “sudden and accidental” because they were not intended and occurred in sudden spurts each time that the sump failed. When asked about his basis for these opinions, he explained that he had experience working with sumps and had personal knowledge of these sumps in particular. Rogers also testified that the releases at the Silvis site were likely “sudden and accidental.” There are two relevant zones at the Silvis site: the area around the diesel refueling station and the area where the chlorinated solvents were stored. Rogers asserted that the contamination around the diesel refueling area was too large to have occurred by minor leakage. Instead, he testified that the contamination was “consistent with overfills of diesel locomotives” and suggested that “tens of gallons to hundreds of gallons [ ] would have been released before it was noticed.” He also said that the value of the fuel made it unlikely that such a fuel spill would have occurred intentionally. Turning to the contamination at the chlorinated solvent storing area, Rogers surmised that it was “indicative of a drum overturning and suddenly leaking out rather than from operations.” He based this opinion in part on the fact that the contamination was found around where the solvent was stored, not where it was used. Both parties moved for summary judgment. Liberty Mutual also moved to strike Rogers's testimony. The district court granted the motion to strike, holding that Rogers's opinions were unreliable and speculative under Federal Rule of Evidence 702. It then granted Liberty Mutual's motion for summary judgment. Varlen appealed. II. Liberty Mutual is entitled to summary judgment against Varlen if no reasonable jury could find that the releases were “sudden and accidental” at either the LASI or Silvis sites. See FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And Liberty Mutual correctly asserts that Varlen has pointed to no admissible evidence that would permit a reasonable jury to make that finding. 1 Rogers's expert testimony is the only evidence that Varlen offered as to whether the contamination occurred in a *459 sudden and accidental fashion.1 But before Rogers's expert testimony can be admitted, it must be deemed reliable under Rule 702 of the Federal Rules of Evidence, which tracks the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court must decide that the witness is “qualified as an expert by knowledge, skill, experience, training, or education”; the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue”; “the testimony is based on sufficient facts or data” and “reliable principles and methods”; and the expert has “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. An expert's proponent has the burden of establishing the admissibility of the opinions by a preponderance of the evidence. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). 2 The district court determined that Rogers's testimony did not meet these requirements because it was not based on reliable methods or principles. It did not abuse its discretion in reaching that conclusion. See Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772 (7th Cir. 2014) (“If the court properly [followed the Daubert framework], we then review its ultimate decision to exclude expert testimony for an abuse of discretion.”). In Rogers's report and testimony, he asserted that the discharges at the LASI site must have been “sudden and accidental.” He suspected that the contamination occurred in connection with a failure in the sump pump in the 1970s. He claimed to base this on his experience with sumps, his site visits, and his knowledge of the sites’ operations. This type of evidence is not necessarily unreliable. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (“An expert's testimony is not unreliable simply because it is founded on his experience rather than on data.”). But Rogers still needed to show how his experience or expertise led to his conclusions. Rogers attempted to base his conclusions on inferences from qualities of the “plume” of contamination. That is, he looked at the size and scope of the contamination and worked backward to surmise how it must have occurred. For instance, Rogers testified that at the LASI site, the contaminant mass must have been very large to create a plume with the size and concentration of the one at that site. He concluded that the contamination must have therefore been sudden and accidental. But Rogers failed to explain why this data mattered or why his inferences were justified. When pressed specifically on the connection between the contaminant mass and the circumstances of the release, he simply stated that the data was “an indication” but acknowledged that it was “not conclusive.” He opined that the sump itself had a “sudden and accidental nature.” But it's not clear what he meant, considering that the sump is just a basin in the ground. Rogers did say in passing that the contamination concentrations were “not uniform,” but he didn't explain why that was significant. Rogers's testimony about the Silvis site was equally lacking. He said that the volume of the contamination at the fueling *460 location was inconsistent with “minor leakage” and opined instead that it may have resulted from overfills of diesel locomotives. As to the chlorinated solvent storing area, Rogers suggested that perhaps a drum got punctured and caused the contamination. But Rogers offered no methodology to explain how he drew those conclusions. 3 In short, Rogers failed to demonstrate that his conclusions were anything more than guesses. To satisfy Daubert, Rogers needed to provide an explanation of how the evidence led to his conclusions. He had to articulate a justification for his inference that the chemical spills were sudden and accidental beyond a simple say-so. If Rogers made an argument based on a reliable methodology, then Varlen has not pointed it out, either to us or to the district court. And courts do not have to scour the record or make a party's argument for it. See D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir. 2015). The district court did not abuse its discretion in excluding Rogers's testimony. And without Rogers's testimony and report, there is no issue of material fact as to whether the contamination occurred suddenly and accidentally.2 See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”). We thus AFFIRM the district court's grant of summary judgment to Liberty Mutual.

Barrett

majority

Varlen Corporation owned and operated two industrial sites that were found to have significant amounts of groundwater contamination related to the sites’ operations. When its insurer, Liberty Mutual Insurance Company, refused to indemnify it, Varlen sued. Varlen's case turned on testimony from an expert witness, who was excluded by the district court because he didn't use reliable methods. We agree with the district court's exclusion and affirm its grant of summary judgment to Liberty Mutual. I. Varlen, an Illinois corporation, owned and operated two industrial facilities related to railroad operations during the time period relevant to this appeal. At the first, which the parties call the LASI site, Varlen performed operations such as plating parts for locomotive engines in chrome. At the second, the Silvis site, Varlen's operations included refueling diesel engines. Varlen discovered contamination at both sites. The LASI site was equipped with a sump that held wastewater from the chrome plater. When the water in the sump reached a certain level, a pump would engage, pumping the water to a holding tank. Varlen found a chemical called hexavalent chromium contaminating the area around the sump. *458 At the Silvis site, Varlen discovered two types of groundwater contamination. It found a chlorinated solvent by a tank into which metal parts were dipped to degrease them. It also found diesel fuel near a large tank where locomotives would refuel. The contamination at these two sites cost Varlen millions of dollars in damages and remediation expenses. Varlen sought indemnification from its insurer, Liberty Mutual. But Varlen's policy with Liberty Mutual had an exclusion for any property damage arising out of chemical leaks or discharges, and Liberty Mutual denied coverage on this ground. Varlen sued Liberty Mutual. To overcome the pollution exclusion, it pointed to a policy provision stating that, despite the exclusion, Liberty Mutual would cover chemical leaks or discharges that were “sudden and accidental.” Lacking direct evidence of how the damage occurred, it proffered the expert testimony of geologist Daniel Rogers to prove that the contamination of the LASI and Silvis sites occurred suddenly and accidentally. Rogers testified that the contaminants at the LASI site were released because the concrete sump leaked. He opined that the releases were “sudden and accidental” because they were not intended and occurred in sudden spurts each time that the sump failed. When asked about his basis for these opinions, he explained that he had experience working with sumps and had personal knowledge of these sumps in particular. Rogers also testified that the releases at the Silvis site were likely “sudden and accidental.” There are two relevant zones at the Silvis site: the area around the diesel refueling station and the area where the chlorinated solvents were stored. Rogers asserted that the contamination around the diesel refueling area was too large to have occurred by minor leakage. Instead, he testified that the contamination was “consistent with overfills of diesel locomotives” and suggested that “tens of gallons to hundreds of gallons [ ] would have been released before it was noticed.” He also said that the value of the fuel made it unlikely that such a fuel spill would have occurred intentionally. Turning to the contamination at the chlorinated solvent storing area, Rogers surmised that it was “indicative of a drum overturning and suddenly leaking out rather than from operations.” He based this opinion in part on the fact that the contamination was found around where the solvent was stored, not where it was used. Both parties moved for summary judgment. Liberty Mutual also moved to strike Rogers's testimony. The district court granted the motion to strike, holding that Rogers's opinions were unreliable and speculative under Federal Rule of Evidence 702. It then granted Liberty Mutual's motion for summary judgment. Varlen appealed. II. Liberty Mutual is entitled to summary judgment against Varlen if no reasonable jury could find that the releases were “sudden and accidental” at either the LASI or Silvis sites. See FED. R. CIV. P. 56(a); And Liberty Mutual correctly asserts that Varlen has pointed to no admissible evidence that would permit a reasonable jury to make that finding. 1 Rogers's expert testimony is the only evidence that Varlen offered as to whether the contamination occurred in a *459 sudden and accidental fashion.1 But before Rogers's expert testimony can be admitted, it must be deemed reliable under Rule 702 of the Federal Rules of Evidence, which tracks the Supreme Court's opinion in The court must decide that the witness is “qualified as an expert by knowledge, skill, experience, training, or education”; the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue”; “the testimony is based on sufficient facts or data” and “reliable principles and methods”; and the expert has “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. An expert's proponent has the burden of establishing the admissibility of the opinions by a preponderance of the evidence. See 2 The district court determined that Rogers's testimony did not meet these requirements because it was not based on reliable methods or principles. It did not abuse its discretion in reaching that conclusion. See In Rogers's report and testimony, he asserted that the discharges at the LASI site must have been “sudden and accidental.” He suspected that the contamination occurred in connection with a failure in the sump pump in the 1970s. He claimed to base this on his experience with sumps, his site visits, and his knowledge of the sites’ operations. This type of evidence is not necessarily unreliable. See Metavante But Rogers still needed to show how his experience or expertise led to his conclusions. Rogers attempted to base his conclusions on inferences from qualities of the “plume” of contamination. That is, he looked at the size and scope of the contamination and worked backward to surmise how it must have occurred. For instance, Rogers testified that at the LASI site, the contaminant mass must have been very large to create a plume with the size and concentration of the one at that site. He concluded that the contamination must have therefore been sudden and accidental. But Rogers failed to explain why this data mattered or why his inferences were justified. When pressed specifically on the connection between the contaminant mass and the circumstances of the release, he simply stated that the data was “an indication” but acknowledged that it was “not conclusive.” He opined that the sump itself had a “sudden and accidental nature.” But it's not clear what he meant, considering that the sump is just a basin in the ground. Rogers did say in passing that the contamination concentrations were “not uniform,” but he didn't explain why that was significant. Rogers's testimony about the Silvis site was equally lacking. He said that the volume of the contamination at the fueling *460 location was inconsistent with “minor leakage” and opined instead that it may have resulted from overfills of diesel locomotives. As to the chlorinated solvent storing area, Rogers suggested that perhaps a drum got punctured and caused the contamination. But Rogers offered no methodology to explain how he drew those conclusions. 3 In short, Rogers failed to demonstrate that his conclusions were anything more than guesses. To satisfy Daubert, Rogers needed to provide an explanation of how the evidence led to his conclusions. He had to articulate a justification for his inference that the chemical spills were sudden and accidental beyond a simple say-so. If Rogers made an argument based on a reliable methodology, then Varlen has not pointed it out, either to us or to the district court. And courts do not have to scour the record or make a party's argument for it. See The district court did not abuse its discretion in excluding Rogers's testimony. And without Rogers's testimony and report, there is no issue of material fact as to whether the contamination occurred suddenly and accidentally.2 See Celotex We thus AFFIRM the district court's grant of summary judgment to Liberty Mutual.

Vega v. Chicago Park District

Lydia Vega sued her former employer, the Chicago Park District, alleging that the Park District discriminated against her due to her national origin in violation of Title VII and 42 U.S.C. § 1983. After a seven-day jury trial, the jury returned a verdict in Vega's favor on both claims and awarded her $750,000 in compensatory damages. The Park District moved for judgment as a matter of law on both claims; the district court granted the motion with respect to the § 1983 claim but denied it with respect to the Title VII claim. With the § 1983 claim gone, the district court remitted Vega's award to $300,000, which is the statutory maximum under Title VII. It then conducted a bench trial on equitable remedies and granted Vega back pay, benefits, and a tax-component award. On appeal, the Park District challenges the district court's denial of its motion for judgment as a matter of law on Vega's Title VII claim, several evidentiary rulings, the statutory maximum damages award, and the calculation of equitable remedies. Vega cross-appeals the district court's entry of judgment as a matter of law on her § 1983 claim. We affirm all of the district court's rulings except its grant of the tax-component award, which we vacate and remand for the district court to explain its calculation. I. Lydia Vega, a Hispanic woman, began her employment with the Chicago Park District in 1987 and was promoted to the position of park supervisor in 2004—a position that she retained until she was fired in 2012 for allegedly violating the Park District's employment Code of Conduct. We recount the story of the Park District's investigation and termination of Vega's employment in the light most favorable to *1003 her. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In late September 2011, the Park District received an anonymous call, accusing Vega of “theft of time”—clocking in hours that she had not worked. In response to this accusation, an investigator for the Park District began surveilling Vega's car. A few days later, another anonymous caller again accused Vega of theft of time. At that point, another investigator began a separate and simultaneous investigation of Vega. Over the course of 56 days, Vega was surveilled over 252 times. On numerous occasions, the investigators interrupted Vega at work in front of her coworkers to ask her questions as a part of the investigation. In March 2012, the investigators met with Vega and her union representative. The investigators had no interest in hearing Vega's side of the story; instead, Vega and her union representative found them to be “pretty dead set” on their conclusion that Vega had violated the Park District's Code of Conduct. By this point, the investigative process was causing Vega significant anxiety, and in late March, she took medical leave on the advice of her physician. Between July and August 2012, Vega received two separate Corrective Action Meeting notices accusing her of the slightly different offense of timesheet falsification—not being present at her assigned location at the assigned time. After sending each notice, Mary Saieva, the Park District's Human Resources Manager, met with Vega and her union representative. Saieva, like the investigators, had little use for Vega's side of the story. At both meetings, Saieva refused to listen to Vega's explanations or review the documents that Vega had brought with her to dispute the allegations. After the meetings, Saieva called Elizabeth Millan, Vega's former supervisor, to discuss the discrepancy in Vega's timesheets. Millan told Saieva that she might have asked Vega to work from home on at least one of those occasions, which would explain one of the timesheet discrepancies. Saieva, however, disbelieved Millan, who, like Vega, was Hispanic. Convinced that Vega was guilty, Saieva recommended that Vega's employment be terminated. In violation of the Park District's commitments under its union agreement, Saieva neither consulted with Vega's then-supervisor nor recommended any progressive discipline. Instead, she told Michael Simpkins, the Park District's Director of Human Resources, that Vega should be fired. Simpkins fired Vega after receiving Saieva's recommendation and briefly reviewing the investigative report. According to the final termination letter, Vega was not fired for theft of time; rather, she was fired for eleven timesheet falsifications and for being untruthful during her Corrective Action Meetings. In another violation of its union commitments, the Park District did not offer Vega's union a pre-disciplinary agreement. Vega appealed the termination decision to the Park District Personnel Board. At that point, an administrative officer held a hearing and subsequently concluded that Vega's employment was properly terminated. The Personnel Board adopted that decision. Vega sued the Park District under Title VII and 42 U.S.C. § 1983, alleging discrimination on the basis of national origin. (We will discuss the evidence that she presented at trial in greater detail below.) After the evidence was in, the Park District moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law on all of Vega's claims, but the district court denied the motion. It sent the case to the jury, which returned a verdict for Vega *1004 on both her Title VII and § 1983 claims and awarded her $750,000 in compensatory damages. As for Vega's retaliation claims, however, the jury found in favor of the Park District. The Park District renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and moved for a new trial under Federal Rule of Civil Procedure 59. In a separate Rule 59 motion, the Park District also asked the court to remit the jury's compensatory award. The district court granted the Park District's Rule 50(b) motion on Vega's § 1983 claim but denied it with respect to her Title VII claim. In light of that disposition, the district court remitted the jury's compensatory award to $300,000, which is the statutory maximum under Title VII. The district court then conducted a bench trial on equitable remedies. It awarded Vega back pay ($154,707.50 in salary and $1,200 in lost bonuses) and benefits ($9,255.42 in substitute health insurance premiums). It initially rejected Vega's request for a $30,531.27 tax-component award because it found that Vega had not adequately explained the calculation justifying that amount. But, after Vega submitted supplemental briefing on the issue, the district court awarded Vega a tax-component award of $55,924.90 without explaining how it reached that figure. Finally, as an equitable remedy, the district court ordered the Park District to reinstate Vega to her former position as a park supervisor. The Park District appeals every ruling that it lost except for Vega's reinstatement. In her cross-appeal, Vega asks us to reverse the district court's judgment as a matter of law on her § 1983 claim and to restore the jury's $750,000 compensatory damages award. A. 1 2 The Park District argues that the district court erred by deciding that Vega had presented enough evidence to support her Title VII claim. We review the district court's determination de novo, Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 822 (7th Cir. 2016), and because Vega was the nonmoving party on the Rule 50 motion, we draw all inferences in her favor. Reeves, 530 U.S. at 150, 120 S.Ct. 2097. 3 4 5 In a Title VII case, “the sole question that matters” is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept h[er] job if [s]he had a different ethnicity, and everything else had remained the same.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016). A plaintiff can prove discrimination through various types of circumstantial evidence because “[d]irect evidence—an overt admission of discriminatory intent—is rare.” Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). So, the fact that Vega relied mainly on circumstantial rather than direct evidence is of no moment. What matters is whether she presented enough evidence to allow the jury to find in her favor—and she did. 6 For instance, Vega introduced evidence that she was an effective employee of the Park District for over 20 years and was promoted multiple times during her employment. The jump straight to termination was not only in tension with Vega's long, favorable record, it violated multiple union commitments. That in itself was important evidence because “[s]ignificant, unexplained or systematic deviations from established policies or practices” can be probative of discriminatory intent. Hanners v. Trent, 674 F.3d 683, 694 (7th Cir. 2012). *1005 7 Vega also exposed numerous material errors in the Park District's investigation through various forms of testimonial and documentary evidence. For instance, Vega introduced evidence that she was not driving her usual vehicle—the one surveilled by the investigators—on two of the eleven days on which she supposedly falsified her timesheets. That mattered because the investigators relied on the movement of Vega's usual vehicle to track her whereabouts. To rebut another accusation, Vega testified that she was present at the park on the occasion in question but entered the building late because she had found a dead body at the park earlier that morning. The jury could have found these and similar pieces of evidence significant because “flagrant inaccuracies and inconsistencies in the employer's supposed reason” for firing the plaintiff can be evidence of pretext. Harden v. Marion Cty. Sheriff's Dep't, 799 F.3d 857, 866 (7th Cir. 2015). And the jury could treat the Park District's lack of interest in Vega's side of the story as similarly significant. Vega presented the investigation as a determined effort to build a case against her rather than a neutral effort to discover the truth. The jury was free to side with Vega by concluding that the charges of timesheet falsification were a pretextual reason for firing her. 8 In addition to evidence of pretext, the jury heard testimony that the Park District mistreated other Hispanic employees. Millan, Vega's Hispanic former supervisor, testified that she was assigned to “rough” parks on purpose, while Ramirez, another Hispanic employee, told the jury that she retired from her 35-year career at the Park District after a police officer told her that the Park District investigators were watching her and her staff. As we have explained, “ ‘behavior toward or comments directed at other employees in the protected group’ is one type of circumstantial evidence that can support an inference of discrimination.” Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir. 2008) (citation omitted). Vega also had evidence that the Park District disciplined Hispanics more harshly than other groups. She introduced data showing that no Caucasian park supervisors were fired between 2005 and 2012, while 17.6% of the Park District's Hispanic park supervisors were fired during that same period. She presented evidence that the Park District's investigation into her alleged falsification of timesheets was far more aggressive than its investigations of non-Hispanic employees accused of similar misconduct. While Vega was surveilled 252 times over the course of 56 days by two different investigators, a Caucasian park supervisor accused of a similar violation was surveilled only three times. And while Vega was fired, the Caucasian park supervisor was not punished even though the Park District concluded that she had lied on her timesheets. Similarly, Vega pointed to two other Caucasian park supervisors, both accused of going to bars during work hours, who were surveilled only during the mornings, when bars are typically closed. Vega also presented evidence that some African-American employees accused of similar timesheet violations were never disciplined at all. See Boss, 816 F.3d at 916–17 (holding that the plaintiff can show discrimination under Title VII by presenting “evidence, whether or not rigorously statistical, that similarly-situated employees outside the protected class received systematically better treatment”); see also Harden, 799 F.3d at 866 (reasoning that “selective enforcement or investigation” can support a discrimination claim (citation and internal quotation marks omitted)). The Park District maintains that this evidence is irrelevant because the employees *1006 that Vega invoked as comparators were not similarly situated. For instance, the Park District attempts to distinguish a Caucasian park supervisor who was accused of, but not disciplined for, a similar timesheet violation on the ground that she had left the park early in the afternoons during her breaks. But we are hard-pressed to say that this distinction (or the other minor distinctions to which the Park District points) would prevent a reasonable jury from concluding that these employees were similarly situated to Vega. And while the Park District challenges other of Vega's comparators by asserting that they held different positions and were therefore “not subject to the same standards as park supervisors,” it offers no explanation of how the standards differed. Without such an explanation, we can't assess the strength of this argument. The Park District insists that there were two employees who were similarly situated to Vega: two African-American park supervisors who, like Vega, were fired after an investigation into their timesheets. The Park District argues that faced with this evidence, no reasonable jury could have concluded that it treated comparable non-Hispanic employees more favorably than they treated Vega. But a reasonable jury could reject the Park District's contention that the two African-American park supervisors were appropriate comparators. One was fired for theft of time—for which Vega was investigated but not dismissed—and the other was fired after the Park District fired Vega. Given these differences, the jury was free to find that the Park District's treatment of these two African-American park supervisors shed little light on its treatment of Vega. 9 The Park District launches one final challenge to Vega's Title VII claim: it contends that Vega failed to show a causal link between the discrimination and her termination. Any discrimination, it says, was on the part of the investigators, who were not the decisionmakers. The decisions were made by Simpkins, who fired her, and the Personnel Board, which declined to reverse his decision. Vega introduced no evidence that Simpkins or any other member of the Board personally discriminated against her on the basis of her national origin. To win, therefore, Vega had to show a causal “link between an employment decision made by an unbiased individual and the impermissible bias of a non-decisionmaking co-worker.” Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 379 (7th Cir. 2011). According to the Park District, Vega failed to do that. The Park District's argument on this score is confusing and underdeveloped. For starters, it is unclear whether we should treat the Board's rejection of Vega's appeal as the relevant “adverse employment action” for purposes of Vega's Title VII claim. The Park District implies that the Board was the final decisionmaker because it had the power to reverse Simpkins's decision. But it fails to explain why this is so. Simpkins plainly possessed decisionmaking authority; had Vega not appealed his decision to terminate her, his decision would have been final. This distinguishes Simpkins's role from that of the Fire Department Chief in Woods v. City of Berwyn, the case on which the Park District hangs its hat—in Woods, the Fire Department chief possessed only the power to recommend termination to a Board that made the final decision. 803 F.3d 865, 870–71 (7th Cir. 2015). To conclude that Vega's appeal rendered the Board the final decisionmaker in her case, we need to know how the appellate process worked. Did the Board's disposition of Vega's appeal reflect its view that Simpkins's decision should remain final? Or did the Board effectively start from scratch and render *1007 its own decision about whether Vega should be terminated? The Park District does not point us to the record evidence that would permit us to make that judgment, and we will not hunt for it ourselves. See Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (“It is not the court's responsibility to ... construct the parties’ arguments for them.”). 10 11 12 Moreover, regardless of whether Simpkins or the Board was the “final decisionmaker” in the Park District's termination process, the dispositive question is whether the discriminatory animus of the investigators and Saieva was a proximate cause of the termination decision. See Staub v. Proctor Hosp., 562 U.S. 411, 422, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). As the Court has explained, a “biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified.” Id. at 421, 131 S.Ct. 1186. The Park District does not point us to evidence that would allow us to discern what role the investigative report or Saieva's recommendation played in the Board's review. And again, it is not our job to comb the record to determine whether it supports the Park District's conclusory assertion—really, it is more of an implication—that the Board's review was entirely untainted by either the investigative report or Saieva's recommendation. 13 14 We do know, however, what the record reflects about the role of the investigative report and Saieva's recommendation in Simpkins's termination decision. Even if Simpkins himself harbored no racial animus, the jury could have easily concluded that his review was too superficial to constitute “a meaningful and independent investigation.” Schandelmeier-Bartels, 634 F.3d at 383. After all, Simpkins simply adopted Saieva's recommendation without speaking to anyone else and admitted that he only read the first three pages of the investigative report. A plaintiff has “plenty of room” to convince the jury that a causal link exists, id. at 381, and a jury could reasonably find the necessary causal link here. In sum, the evidence was sufficient to allow a reasonable jury to find in Vega's favor on her Title VII claim. B. 15 16 17 The Park District also argues that the district court's evidentiary errors deprived it of a fair trial, thereby entitling it to a new one. “A new trial is appropriate where the verdict is against the clear weight of the evidence or the trial was not fair to the moving party.” Johnson v. Gen. Bd. of Pension & Health Benefits of the United Methodist Church, 733 F.3d 722, 730 (7th Cir. 2013). We review evidentiary rulings for an abuse of discretion and reverse a district court's denial of a motion for a new trial only if there is a significant chance that any error “affected the outcome of the trial.” Smith v. Hunt, 707 F.3d 803, 807–08 (7th Cir. 2013); see also Jordan v. Binns, 712 F.3d 1123, 1137 (7th Cir. 2013). This case does not present such a rare instance. 18 Although the Park District challenges numerous evidentiary rulings by the district court, only one warrants even a brief discussion: the district court's decision to allow the jury to view and listen to dozens of surveillance video clips. The Park District complains that most of these clips were neither authenticated nor admitted into evidence. This challenge is hard to take seriously because it essentially begins and ends with this conclusory statement. Notably, despite its vehement complaints *1008 that the surveillance videos were not authenticated, the Park District does not contend that the tapes were anything other than what Vega said they were: footage taken by the Park District investigators who surveilled her. So far as we can tell, the Park District's real problem with the videos is that they were “irrelevant and prejudicial.” Presumably the Park District means that the probative value of the videos was substantially outweighed by the risk that they would unfairly prejudice the Park District. See Fed. R. Evid. 403. Yet the Park District does not even cite Rule 403, much less develop an argument as to why allowing the jury to see the videos violated that rule, much less explain why any error was not harmless. Given the lack of argument from the Park District, we have no basis for concluding that the district court abused its discretion by permitting the jury to see the videos, let alone that any error warrants reversal. The Park District maintains that the district court should have remitted Vega's damages from the jury's original $750,000 grant to less than the statutory maximum of $300,000 under Title VII. We review this decision for abuse of discretion, considering “whether the award is monstrously excessive, whether there is no rational connection between the award and the evidence, and whether the award is roughly comparable to awards made in similar cases.” Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 483–84 (7th Cir. 2003) (citation and internal quotation marks omitted). Deference is particularly appropriate if, as was the case here, “the district court, which had the benefit of witnessing trial, itself remitted the jury's award to an amount that it determined was commensurate with the evidence in the present case viewed in light of comparable cases.” Deloughery v. City of Chicago, 422 F.3d 611, 620 (7th Cir. 2005). 21 Vega testified extensively about the emotional, mental, and physical distress that she suffered for the final six months of her employment. She also testified that she was unemployed for a year and constantly worried about her inability to afford necessary medication and to support her mother. The award is rationally related to this testimony and is not monstrously excessive. See Tullis v. Townley Eng'g & Mfg. Co., 243 F.3d 1058, 1068 (7th Cir. 2001) (holding that the plaintiff can support an award for nonpecuniary loss by relying solely on her own testimony about her emotional distress). 22 23 24 The award is also sufficiently comparable to those made in similar cases. That is not to say that it is an exact match—but it doesn't have to be. We have explained that “[a]wards in other cases provide a reference point that assists the court in assessing reasonableness; they do not establish a range beyond which awards are necessarily excessive. Due to the highly fact-specific nature of Title VII cases, such comparisons are rarely dispositive.” *1009 Farfaras v. Citizens Bank & Tr. of Chi., 433 F.3d 558, 566 (7th Cir. 2006) (citation and internal quotation marks omitted). And here, the “reference point” of other cases shows this award to be roughly comparable to other awards supported by “first- and third-person testimony regarding ongoing emotional and physical effects of the discrimination.” Schandelmeier-Bartels, 634 F.3d at 390 (collecting cases). For instance, in Farfaras, we upheld the jury's decision to award the plaintiff $200,000 for loss of dignity, humiliation, emotional distress, and pain and suffering when that emotional distress was supported by testimony highlighting the fact that the plaintiff “lost self-esteem, gained weight, [and] had problems sleeping” as a result of the discrimination. 433 F.3d at 563; see also Deloughery, 422 F.3d at 621 (concluding that a $175,000 award is comparable to lesser awards granted in other Title VII cases). While remitting Vega's damages to the statutory maximum was undoubtedly generous, we cannot say that it was an abuse of discretion. We therefore affirm the award. D. 25 26 27 The Park District also argues that the district court erred when it awarded Vega back pay and benefits in lost salary, lost bonuses, and lost health insurance premiums. Specifically, the Park District argues that the award was erroneous because Vega did not mitigate her damages by searching for comparable employment in her field. In order to prevail on a failure-to-mitigate argument, the defendant must make two showings: (1) that the plaintiff was “not reasonably diligent in seeking other employment,” and (2) that “with the exercise of reasonable diligence there was a reasonable chance that the [plaintiff] might have found comparable employment.” EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990). This is an affirmative defense, and once the district court determines that the defendant has failed to meet its burden, “[w]e shall not disturb that determination unless it is clearly erroneous.” Id. The district court found that the Park District failed both prongs. We agree. 28 As for the first prong, the Park District argues that Vega did not exercise reasonable diligence in finding a comparable job because she did not apply for jobs in the narrow field of recreation in municipal parks. The district court disagreed. It found that Vega exercised reasonable diligence because she applied for over 100 jobs after she was fired. While not all the jobs she applied for were comparable to her job as a park supervisor, many of them involved working with youth or otherwise engaging with the community. Thus, the district court determined that the Park District failed to meet the first prong. Besides—as the district court correctly noted—the Park District all but ignores the second prong because it provides virtually no evidence that Vega would have been successful in obtaining a sufficiently comparable job in the narrow field of recreation in municipal parks even if she had tried. We affirm the district court's award of back pay and benefits. E. 29 Finally, the Park District argues that the district court's award of a $55,924.90 tax component is flawed because the district court offered no explanation for its calculation. Here, we agree with the Park District—the district court abused its discretion. EEOC v. N. Star Hosp., Inc., 777 F.3d 898, 904 (7th Cir. 2015). 30 31 In Title VII suits, the district court has the authority to grant a tax-component *1010 award—a payment geared toward easing the increased tax burden that results from a lump-sum award of back pay. Id. at 903–04. But the district court must exercise that authority in a way that permits appellate review. Id. at 904 (affirming a similar tax-component award while urging district courts to explain their calculations when granting such awards). In North Star Hospital, we affirmed a $6,495 award as a “modest, equitable remedy” even though the district court did not explain its decision. Id. That said, we emphasized that “[s]ilence on the issue tends to frustrate appellate review, and it would be wise for district courts to show their work if and when they adjudge similar tax-component awards in the future.” Id. The district court in this case did not explain how it arrived at the $55,924.90 figure, which was substantially higher than the amount that Vega had originally requested. She initially sought a tax-component award of $30,531.27, but the district court denied that request because it could not determine how Vega calculated that amount. After supplemental briefing on the issue, Vega revised her calculation and proposed this $55,924.90 figure. The district court accepted Vega's revised proposal without saying why. On appeal, Vega attempts to justify the figure by referencing some of her submissions to the district court. But even after reviewing those documents, we are unable to readily discern whether the calculation is accurate. So, because the district court failed to explain its calculation and $55,924.90 is more than nine times the modest award we affirmed in North Star Hospital, we vacate the award and remand for the district court to show its work. II. 32 33 We now turn to Vega's cross-appeal. Vega argues that the district court was wrong to grant the Park District's Rule 50(b) motion for judgment as a matter of law on her § 1983 claim. As we did for Vega's Title VII claim, we review the district court's decision de novo, Empress Casino Joliet Corp., 831 F.3d at 822, and construe the evidence in Vega's favor. Reeves, 530 U.S. at 150, 120 S.Ct. 2097. 34 At trial, Vega argued that the Park District was liable under § 1983 because it had a widespread custom of discrimination against Hispanics. Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding that municipalities “may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body's official decisionmaking channels”). To prevail on this theory, she had to show both that the custom was widespread and that the local policymakers were aware of the custom and took no measures to correct it. Doe v. Vigo Cty., 905 F.3d 1038, 1045 (7th Cir. 2018); see also Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010) (holding that, in addition to proving a widespread custom, the plaintiff must show that the policymakers were “aware of the risk created by the custom or practice and ... failed to take appropriate steps to protect the plaintiff”). 35 The district court held that Vega's § 1983 claim failed as matter of law because even if Vega had sufficient evidence of a widespread custom of discrimination against Hispanics, she had insufficient evidence to show that any “policymaker” knew about it. Vega challenges this conclusion on appeal, arguing that she presented ample evidence to permit a jury to find that Simpkins, the Park District's Director of Human Resources, was a policymaker *1011 and that he was aware of the pervasive discrimination. We need not wade into the “policymaker” question, though, because Vega failed to show that there was a widespread custom of discrimination against Hispanics in the first place. Marcus & Millichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 312 (7th Cir. 2011) (“It is well established that we may affirm the result below on any basis that appears in the record, even if it was not the district court's ground for dismissing the suit.”). Her case that “[t]he offending custom [was] widespread and well settled” relied heavily on uninformative demographic data. See Vigo Cty., 905 F.3d at 1045. For instance, she emphasized that neither the Human Resources Department nor the Investigations Department employed any Hispanics and that several Hispanic employees were replaced by non-Hispanics. But we have previously cautioned against relying on similar statistical evidence because it lacks critical context such as the ratio of qualified Hispanics who actually applied for the relevant positions. Hague v. Thompson Distrib. Co., 436 F.3d 816, 829 (7th Cir. 2006) (holding that “without knowing how many positions became available during the relevant time frame, the number and race of the candidates applying for those positions, and the candidates’ relative qualifications,” statistical evidence about the racial demographic of a workplace is “next to worthless” (citation and internal quotation marks omitted)). Similarly, during the trial, Vega relied on a comparison between the data in the 2010 U.S. Census and the ethnic demographic of the Park District to highlight the comparatively low ratio of Hispanic employees at the Park District. But this piece of evidence tells us even less about the Park District's hiring practices because the census data encompasses many more people than just the relevant market for Park District employees. EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 299 (7th Cir. 1991) (highlighting the significance of limiting the data to the “relevant labor market” when making similar inferences about an employer's hiring practice). 36 37 Vega had other evidence that was more helpful, but it still fell short of establishing the kind of “widespread custom” necessary for municipal liability under § 1983. For instance, Millan, Vega's Hispanic former supervisor, Ramirez, a Hispanic employee, and Vega herself all testified that the Park District treated them poorly compared to their non-Hispanic counterparts. Yet a handful of instances does not itself demonstrate a well-settled practice, see Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002), and Vega's other data did not carry her much farther. She pointed out that between 2005 and 2012, the Park District fired 17.6% of its Hispanic park supervisors and none of its Caucasian park supervisors. But the force of this data is limited by the size of the group: the numbers mean that the Park District fired three Hispanic park supervisors in a seven-year period. Nor did the testimony of Vega's union representative sufficiently move the needle. He stated that over a ten-year period, he did not represent any Caucasian park supervisors in disciplinary or investigative meetings before the Park District. This data lacks context—for example, it's not clear how many such meetings occurred during this period. Even putting that aside, however, the combined force of this testimony and Vega's other evidence fails to establish a widespread practice of discrimination against Hispanics that was “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion) (quoting *1012 Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). 38 It is true that Vega had enough evidence to permit a reasonable jury to find in her favor on her Title VII claim for discrimination on the basis of national origin. But the standard of liability is different under § 1983, and the district court correctly concluded that Vega's evidence of discrimination did not satisfy it. * * * In sum, we AFFIRM the district court's denial of the Park District's motion for judgment as a matter of law on Vega's Title VII claim, its decision to remit Vega's compensatory award to $300,000, and its award of back pay and benefits. We VACATE the district court's tax-component award and REMAND with instructions to the district court to explain its calculation. We AFFIRM the district court's judgment as a matter of law on Vega's § 1983 claim.

Barrett

majority

Lydia Vega sued her former employer, the Chicago Park District, alleging that the Park District discriminated against her due to her national origin in violation of Title VII and After a seven-day jury trial, the jury returned a verdict in Vega's favor on both claims and awarded her $750,000 in compensatory damages. The Park District moved for judgment as a matter of law on both claims; the district court granted the motion with respect to the 1983 claim but denied it with respect to the Title VII claim. With the 1983 claim gone, the district court remitted Vega's award to $300,000, which is the statutory maximum under Title VII. It then conducted a bench trial on equitable remedies and granted Vega back pay, benefits, and a tax-component award. On appeal, the Park District challenges the district court's denial of its motion for judgment as a matter of law on Vega's Title VII claim, several evidentiary rulings, the statutory maximum damages award, and the calculation of equitable remedies. Vega cross-appeals the district court's entry of judgment as a matter of law on her 1983 claim. We affirm all of the district court's rulings except its grant of the tax-component award, which we vacate and remand for the district court to explain its calculation. I. Lydia Vega, a Hispanic woman, began her employment with the Chicago Park District in 1987 and was promoted to the position of park supervisor in 2004—a position that she retained until she was fired in 2012 for allegedly violating the Park District's employment Code of Conduct. We recount the story of the Park District's investigation and termination of Vega's employment in the light most favorable to *1003 her. In late September the Park District received an anonymous call, accusing Vega of “theft of time”—clocking in hours that she had not worked. In response to this accusation, an investigator for the Park District began surveilling Vega's car. A few days later, another anonymous caller again accused Vega of theft of time. At that point, another investigator began a separate and simultaneous investigation of Vega. Over the course of 56 days, Vega was surveilled over 252 times. On numerous occasions, the investigators interrupted Vega at work in front of her coworkers to ask her questions as a part of the investigation. In March 2012, the investigators met with Vega and her union representative. The investigators had no interest in hearing Vega's side of the story; instead, Vega and her union representative found them to be “pretty dead set” on their conclusion that Vega had violated the Park District's Code of Conduct. By this point, the investigative process was causing Vega significant anxiety, and in late March, she took medical leave on the advice of her physician. Between July and August 2012, Vega received two separate Corrective Action Meeting notices accusing her of the slightly different offense of timesheet falsification—not being present at her assigned location at the assigned time. After sending each notice, Mary Saieva, the Park District's Human Resources Manager, met with Vega and her union representative. Saieva, like the investigators, had little use for Vega's side of the story. At both meetings, Saieva refused to listen to Vega's explanations or review the documents that Vega had brought with her to dispute the allegations. After the meetings, Saieva called Elizabeth Millan, Vega's former supervisor, to discuss the discrepancy in Vega's timesheets. Millan told Saieva that she might have asked Vega to work from home on at least one of those occasions, which would explain one of the timesheet discrepancies. Saieva, however, disbelieved Millan, who, like Vega, was Hispanic. Convinced that Vega was guilty, Saieva recommended that Vega's employment be terminated. In violation of the Park District's commitments under its union agreement, Saieva neither consulted with Vega's then-supervisor nor recommended any progressive discipline. Instead, she told Michael Simpkins, the Park District's Director of Human Resources, that Vega should be fired. Simpkins fired Vega after receiving Saieva's recommendation and briefly reviewing the investigative report. According to the final termination letter, Vega was not fired for theft of time; rather, she was fired for eleven timesheet falsifications and for being untruthful during her Corrective Action Meetings. In another violation of its union commitments, the Park District did not offer Vega's union a pre-disciplinary agreement. Vega appealed the termination decision to the Park District Personnel Board. At that point, an administrative officer held a hearing and subsequently concluded that Vega's employment was properly terminated. The Personnel Board adopted that decision. Vega sued the Park District under Title VII and alleging discrimination on the basis of national origin. (We will discuss the evidence that she presented at trial in greater detail below.) After the evidence was in, the Park District moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law on all of Vega's claims, but the district court denied the motion. It sent the case to the jury, which returned a verdict for Vega *1004 on both her Title VII and 1983 claims and awarded her $750,000 in compensatory damages. As for Vega's retaliation claims, however, the jury found in favor of the Park District. The Park District renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and moved for a new trial under Federal Rule of Civil Procedure 59. In a separate Rule 59 motion, the Park District also asked the court to remit the jury's compensatory award. The district court granted the Park District's Rule 50(b) motion on Vega's 1983 claim but denied it with respect to her Title VII claim. In light of that disposition, the district court remitted the jury's compensatory award to $300,000, which is the statutory maximum under Title VII. The district court then conducted a bench trial on equitable remedies. It awarded Vega back pay ($154,707.50 in salary and $1,200 in lost bonuses) and benefits ($9,255.42 in substitute health insurance premiums). It initially rejected Vega's request for a $30,531.27 tax-component award because it found that Vega had not adequately explained the calculation justifying that amount. But, after Vega submitted supplemental briefing on the issue, the district court awarded Vega a tax-component award of $55,924.90 without explaining how it reached that figure. Finally, as an equitable remedy, the district court ordered the Park District to reinstate Vega to her former position as a park supervisor. The Park District appeals every ruling that it lost except for Vega's reinstatement. In her cross-appeal, Vega asks us to reverse the district court's judgment as a matter of law on her 1983 claim and to restore the jury's $750,000 compensatory damages award. A. 1 2 The Park District argues that the district court erred by deciding that Vega had presented enough evidence to support her Title VII claim. We review the district court's determination de novo, Empress Casino Joliet and because Vega was the nonmoving party on the Rule 50 motion, we draw all inferences in her favor. 530 U.S. at 3 4 5 In a Title VII case, “the sole question that matters” is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept h[er] job if [s]he had a different ethnicity, and everything else had remained the same.” A plaintiff can prove discrimination through various types of circumstantial evidence because “[d]irect evidence—an overt admission of discriminatory intent—is rare.” So, the fact that Vega relied mainly on circumstantial rather than direct evidence is of no moment. What matters is whether she presented enough evidence to allow the jury to find in her favor—and she d 6 For instance, Vega introduced evidence that she was an effective employee of the Park District for over 20 years and was promoted multiple times during her employment. The jump straight to termination was not only in tension with Vega's long, favorable record, it violated multiple union commitments. That in itself was important evidence because “[s]ignificant, unexplained or systematic deviations from established policies or practices” can be probative of discriminatory intent. *1005 7 Vega also exposed numerous material errors in the Park District's investigation through various forms of testimonial and documentary evidence. For instance, Vega introduced evidence that she was not driving her usual vehicle—the one surveilled by the investigators—on two of the eleven days on which she supposedly falsified her timesheets. That mattered because the investigators relied on the movement of Vega's usual vehicle to track her whereabouts. To rebut another accusation, Vega testified that she was present at the park on the occasion in question but entered the building late because she had found a dead body at the park earlier that morning. The jury could have found these and similar pieces of evidence significant because “flagrant inaccuracies and inconsistencies in the employer's supposed reason” for firing the plaintiff can be evidence of pretext. And the jury could treat the Park District's lack of interest in Vega's side of the story as similarly significant. Vega presented the investigation as a determined effort to build a case against her rather than a neutral effort to discover the truth. The jury was free to side with Vega by concluding that the charges of timesheet falsification were a pretextual reason for firing her. 8 In addition to evidence of pretext, the jury heard testimony that the Park District mistreated other Hispanic employees. Millan, Vega's Hispanic former supervisor, testified that she was assigned to “rough” parks on purpose, while Ramirez, another Hispanic employee, told the jury that she retired from her 35-year career at the Park District after a police officer told her that the Park District investigators were watching her and her staff. As we have explained, “ ‘behavior toward or comments directed at other employees in the protected group’ is one type of circumstantial evidence that can support an inference of discrimination.” Vega also had evidence that the Park District disciplined Hispanics more harshly than other groups. She introduced data showing that no Caucasian park supervisors were fired between 2005 and 2012, while 17.6% of the Park District's Hispanic park supervisors were fired during that same period. She presented evidence that the Park District's investigation into her alleged falsification of timesheets was far more aggressive than its investigations of non-Hispanic employees accused of similar misconduct. While Vega was surveilled 252 times over the course of 56 days by two different investigators, a Caucasian park supervisor accused of a similar violation was surveilled only three times. And while Vega was fired, the Caucasian park supervisor was not punished even though the Park District concluded that she had lied on her timesheets. Similarly, Vega pointed to two other Caucasian park supervisors, both accused of going to bars during work hours, who were surveilled only during the mornings, when bars are typically closed. Vega also presented evidence that some African-American employees accused of similar timesheet violations were never disciplined at all. See 816 F.3d at –17 (holding that the plaintiff can show discrimination under Title VII by presenting “evidence, whether or not rigorously statistical, that similarly-situated employees outside the protected class received systematically better treatment”); see also 799 F.3d at The Park District maintains that this evidence is irrelevant because the employees *1006 that Vega invoked as comparators were not similarly situated. For instance, the Park District attempts to distinguish a Caucasian park supervisor who was accused of, but not disciplined for, a similar timesheet violation on the ground that she had left the park early in the afternoons during her breaks. But we are hard-pressed to say that this distinction (or the other minor distinctions to which the Park District points) would prevent a reasonable jury from concluding that these employees were similarly situated to Vega. And while the Park District challenges other of Vega's comparators by asserting that they held different positions and were therefore “not subject to the same standards as park supervisors,” it offers no explanation of how the standards differed. Without such an explanation, we can't assess the strength of this argument. The Park District insists that there were two employees who were similarly situated to Vega: two African-American park supervisors who, like Vega, were fired after an investigation into their timesheets. The Park District argues that faced with this evidence, no reasonable jury could have concluded that it treated comparable non-Hispanic employees more favorably than they treated Vega. But a reasonable jury could reject the Park District's contention that the two African-American park supervisors were appropriate comparators. One was fired for theft of time—for which Vega was investigated but not dismissed—and the other was fired after the Park District fired Vega. Given these differences, the jury was free to find that the Park District's treatment of these two African-American park supervisors shed little light on its treatment of Vega. 9 The Park District launches one final challenge to Vega's Title VII claim: it contends that Vega failed to show a causal link between the discrimination and her termination. Any discrimination, it says, was on the part of the investigators, who were not the decisionmakers. The decisions were made by Simpkins, who fired her, and the Personnel Board, which declined to reverse his decision. Vega introduced no evidence that Simpkins or any other member of the Board personally discriminated against her on the basis of her national origin. To win, therefore, Vega had to show a causal “link between an employment decision made by an unbiased individual and the impermissible bias of a non-decisionmaking co-worker.” According to the Park District, Vega failed to do that. The Park District's argument on this score is confusing and underdeveloped. For starters, it is unclear whether we should treat the Board's rejection of Vega's appeal as the relevant “adverse employment action” for purposes of Vega's Title VII claim. The Park District implies that the Board was the final decisionmaker because it had the power to reverse Simpkins's decision. But it fails to explain why this is so. Simpkins plainly possessed decisionmaking authority; had Vega not appealed his decision to terminate her, his decision would have been final. This distinguishes Simpkins's role from that of the Fire Department Chief in Woods v. City of Berwyn, the case on which the Park District hangs its hat—in Woods, the Fire Department chief possessed only the power to recommend termination to a Board that made the final decision. To conclude that Vega's appeal rendered the Board the final decisionmaker in her case, we need to know how the appellate process worked. Did the Board's disposition of Vega's appeal reflect its view that Simpkins's decision should remain final? Or did the Board effectively start from scratch and render *1007 its own decision about whether Vega should be terminated? The Park District does not point us to the record evidence that would permit us to make that judgment, and we will not hunt for it ourselves. See Econ. Folding Box 10 11 12 Moreover, regardless of whether Simpkins or the Board was the “final decisionmaker” in the Park District's termination process, the dispositive question is whether the discriminatory animus of the investigators and Saieva was a proximate cause of the termination decision. See As the Court has explained, a “biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified.” The Park District does not point us to evidence that would allow us to discern what role the investigative report or Saieva's recommendation played in the Board's review. And again, it is not our job to comb the record to determine whether it supports the Park District's conclusory assertion—really, it is more of an implication—that the Board's review was entirely untainted by either the investigative report or Saieva's recommendation. 13 14 We do know, however, what the record reflects about the role of the investigative report and Saieva's recommendation in Simpkins's termination decision. Even if Simpkins himself harbored no racial animus, the jury could have easily concluded that his review was too superficial to constitute “a meaningful and independent investigation.” After all, Simpkins simply adopted Saieva's recommendation without speaking to anyone else and admitted that he only read the first three pages of the investigative report. A plaintiff has “plenty of room” to convince the jury that a causal link exists, and a jury could reasonably find the necessary causal link here. In sum, the evidence was sufficient to allow a reasonable jury to find in Vega's favor on her Title VII claim. B. 15 16 17 The Park District also argues that the district court's evidentiary errors deprived it of a fair trial, thereby entitling it to a new one. “A new trial is appropriate where the verdict is against the clear weight of the evidence or the trial was not fair to the moving party.” We review evidentiary rulings for an abuse of discretion and reverse a district court's denial of a motion for a new trial only if there is a significant chance that any error “affected the outcome of the trial.” ; see also This case does not present such a rare instance. 18 Although the Park District challenges numerous evidentiary rulings by the district court, only one warrants even a brief discussion: the district court's decision to allow the jury to view and listen to dozens of surveillance video clips. The Park District complains that most of these clips were neither authenticated nor admitted into evidence. This challenge is hard to take seriously because it essentially begins and ends with this conclusory statement. Notably, despite its vehement complaints *1008 that the surveillance videos were not authenticated, the Park District does not contend that the tapes were anything other than what Vega said they were: footage taken by the Park District investigators who surveilled her. So far as we can tell, the Park District's real problem with the videos is that they were “irrelevant and prejudicial.” Presumably the Park District means that the probative value of the videos was substantially outweighed by the risk that they would unfairly prejudice the Park District. See Fed. R. Ev 403. Yet the Park District does not even cite Rule 403, much less develop an argument as to why allowing the jury to see the videos violated that rule, much less explain why any error was not harmless. Given the lack of argument from the Park District, we have no basis for concluding that the district court abused its discretion by permitting the jury to see the videos, let alone that any error warrants reversal. The Park District maintains that the district court should have remitted Vega's damages from the jury's original $750,000 grant to less than the statutory maximum of $300,000 under Title VII. We review this decision for abuse of discretion, considering “whether the award is monstrously excessive, whether there is no rational connection between the award and the evidence, and whether the award is roughly comparable to awards made in similar cases.” Deference is particularly appropriate if, as was the case here, “the district court, which had the benefit of witnessing trial, itself remitted the jury's award to an amount that it determined was commensurate with the evidence in the present case viewed in light of comparable cases.” F.3d 611, 21 Vega testified extensively about the emotional, mental, and physical distress that she suffered for the final six months of her employment. She also testified that she was unemployed for a year and constantly worried about her inability to afford necessary medication and to support her mother. The award is rationally related to this testimony and is not monstrously excessive. See 22 23 24 The award is also sufficiently comparable to those made in similar cases. That is not to say that it is an exact match—but it doesn't have to be. We have explained that “[a]wards in other cases provide a reference point that assists the court in assessing reasonableness; they do not establish a range beyond which awards are necessarily excessive. Due to the highly fact-specific nature of Title VII cases, such comparisons are rarely dispositive.” *1009 And here, the “reference point” of other cases shows this award to be roughly comparable to other awards supported by “first- and third-person testimony regarding ongoing emotional and physical effects of the discrimination.” For instance, in Farfaras, we upheld the jury's decision to award the plaintiff $200,000 for loss of dignity, humiliation, emotional distress, and pain and suffering when that emotional distress was supported by testimony highlighting the fact that the plaintiff “lost self-esteem, gained weight, [and] had problems sleeping” as a result of the discrimination. ; see also F.3d at 621 (concluding that a $175,000 award is comparable to lesser awards granted in other Title VII cases). While remitting Vega's damages to the statutory maximum was undoubtedly generous, we cannot say that it was an abuse of discretion. We therefore affirm the award. D. 25 26 27 The Park District also argues that the district court erred when it awarded Vega back pay and benefits in lost salary, lost bonuses, and lost health insurance premiums. Specifically, the Park District argues that the award was erroneous because Vega did not mitigate her damages by searching for comparable employment in her field. In order to prevail on a failure-to-mitigate argument, the defendant must make two showings: (1) that the plaintiff was “not reasonably diligent in seeking other employment,” and (2) that “with the exercise of reasonable diligence there was a reasonable chance that the [plaintiff] might have found comparable employment.” This is an affirmative defense, and once the district court determines that the defendant has failed to meet its burden, “[w]e shall not disturb that determination unless it is clearly erroneous.” The district court found that the Park District failed both prongs. We agree. 28 As for the first prong, the Park District argues that Vega did not exercise reasonable diligence in finding a comparable job because she did not apply for jobs in the narrow field of recreation in municipal parks. The district court disagreed. It found that Vega exercised reasonable diligence because she applied for over 100 jobs after she was fired. While not all the jobs she applied for were comparable to her job as a park supervisor, many of them involved working with youth or otherwise engaging with the community. Thus, the district court determined that the Park District failed to meet the first prong. Besides—as the district court correctly noted—the Park District all but ignores the second prong because it provides virtually no evidence that Vega would have been successful in obtaining a sufficiently comparable job in the narrow field of recreation in municipal parks even if she had tried. We affirm the district court's award of back pay and benefits. E. 29 Finally, the Park District argues that the district court's award of a $55,924.90 tax component is flawed because the district court offered no explanation for its calculation. Here, we agree with the Park District—the district court abused its discretion. 30 31 In Title VII suits, the district court has the authority to grant a tax-component *1010 award—a payment geared toward easing the increased tax burden that results from a lump-sum award of back pay. at 903–04. But the district court must exercise that authority in a way that permits appellate review. at In North Star Hospital, we affirmed a $6,495 award as a “modest, equitable remedy” even though the district court did not explain its decision. That said, we emphasized that “[s]ilence on the issue tends to frustrate appellate review, and it would be wise for district courts to show their work if and when they adjudge similar tax-component awards in the future.” The district court in this case did not explain how it arrived at the $55,924.90 figure, which was substantially higher than the amount that Vega had originally requested. She initially sought a tax-component award of $30,531.27, but the district court denied that request because it could not determine how Vega calculated that amount. After supplemental briefing on the issue, Vega revised her calculation and proposed this $55,924.90 figure. The district court accepted Vega's revised proposal without saying why. On appeal, Vega attempts to justify the figure by referencing some of her submissions to the district court. But even after reviewing those documents, we are unable to readily discern whether the calculation is accurate. So, because the district court failed to explain its calculation and $55,924.90 is more than nine times the modest award we affirmed in North Star Hospital, we vacate the award and remand for the district court to show its work. II. 32 33 We now turn to Vega's cross-appeal. Vega argues that the district court was wrong to grant the Park District's Rule 50(b) motion for judgment as a matter of law on her 1983 claim. As we did for Vega's Title VII claim, we review the district court's decision de novo, Empress Casino Joliet 831 F.3d at and construe the evidence in Vega's favor. 530 U.S. at 34 At trial, Vega argued that the Park District was liable under 1983 because it had a widespread custom of discrimination against Hispanics. To prevail on this theory, she had to show both that the custom was widespread and that the local policymakers were aware of the custom and took no measures to correct it. ; see also 35 The district court held that Vega's 1983 claim failed as matter of law because even if Vega had sufficient evidence of a widespread custom of discrimination against Hispanics, she had insufficient evidence to show that any “policymaker” knew about it. Vega challenges this conclusion on appeal, arguing that she presented ample evidence to permit a jury to find that Simpkins, the Park District's Director of Human Resources, was a policymaker *1011 and that he was aware of the pervasive discrimination. We need not wade into the “policymaker” question, though, because Vega failed to show that there was a widespread custom of discrimination against Hispanics in the first place. Marcus & Millichap Inv. Servs. of Chi., Her case that “[t]he offending custom [was] widespread and well settled” relied heavily on uninformative demographic data. See Vigo 905 F.3d at For instance, she emphasized that neither the Human Resources Department nor the Investigations Department employed any Hispanics and that several Hispanic employees were replaced by non-Hispanics. But we have previously cautioned against relying on similar statistical evidence because it lacks critical context such as the ratio of qualified Hispanics who actually applied for the relevant positions. (holding that “without knowing how many positions became available during the relevant time frame, the number and race of the candidates applying for those positions, and the candidates’ relative qualifications,” statistical evidence about the racial demographic of a workplace is “next to worthless” ). Similarly, during the trial, Vega relied on a comparison between the data in the 2010 U.S. Census and the ethnic demographic of the Park District to highlight the comparatively low ratio of Hispanic employees at the Park District. But this piece of evidence tells us even less about the Park District's hiring practices because the census data encompasses many more people than just the relevant market for Park District employees. 36 37 Vega had other evidence that was more helpful, but it still fell short of establishing the kind of “widespread custom” necessary for municipal liability under 1983. For instance, Millan, Vega's Hispanic former supervisor, Ramirez, a Hispanic employee, and Vega herself all testified that the Park District treated them poorly compared to their non-Hispanic counterparts. Yet a handful of instances does not itself demonstrate a well-settled practice, see and Vega's other data did not carry her much farther. She pointed out that between 2005 and 2012, the Park District fired 17.6% of its Hispanic park supervisors and none of its Caucasian park supervisors. But the force of this data is limited by the size of the group: the numbers mean that the Park District fired three Hispanic park supervisors in a seven-year period. Nor did the testimony of Vega's union representative sufficiently move the needle. He stated that over a ten-year period, he did not represent any Caucasian park supervisors in disciplinary or investigative meetings before the Park District. This data lacks context—for example, it's not clear how many such meetings occurred during this period. Even putting that aside, however, the combined force of this testimony and Vega's other evidence fails to establish a widespread practice of discrimination against Hispanics that was “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St. ). 38 It is true that Vega had enough evidence to permit a reasonable jury to find in her favor on her Title VII claim for discrimination on the basis of national origin. But the standard of liability is different under 1983, and the district court correctly concluded that Vega's evidence of discrimination did not satisfy it. * * * In sum, we AFFIRM the district court's denial of the Park District's motion for judgment as a matter of law on Vega's Title VII claim, its decision to remit Vega's compensatory award to $300,000, and its award of back pay and benefits. We VACATE the district court's tax-component award and REMAND with instructions to the district court to explain its calculation. We AFFIRM the district court's judgment as a matter of law on Vega's 1983 claim.

Walker v. Price

1 A litigant in a civil case has neither a statutory nor a constitutional right to counsel. He can, however, ask the court to recruit counsel to represent him on a pro bono basis. When the court receives such a request from an indigent plaintiff, it must determine whether the plaintiff has made a reasonable attempt to obtain counsel on his own and whether, given the difficulty of the case, the plaintiff is competent to litigate it himself. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). If the answer to the first question is yes and the answer to the second is no, then the court must seek counsel to represent the plaintiff. This case involves the district court's assessment of the second question. Fredrick Walker, an inmate, brought a civil-rights suit against several prison officers. Over the course of the litigation, Walker asked the court six times to recruit a volunteer lawyer to represent him. The court acted within its discretion when it denied his initial motions. But it abused its discretion when it denied the sixth. At that point, Walker was facing not only a jury trial, but a jury trial by videoconference. That substantially increased the difficulty of his case, despite the simplicity of his claims. Moreover, the basic competence that Walker had demonstrated during the pretrial phase did not necessarily reflect his ability to handle a video trial entirely on his own. Trying a case requires additional skills, and Walker had managed the pretrial phase with the help of a jailhouse lawyer who had since been transferred to another prison. Because the landscape had changed at this late stage of the litigation, the court should have granted Walker's motion to recruit counsel. I. Fredrick Walker is a prisoner at the Pontiac Correctional Center, a maximum-security prison in Pontiac, Illinois. On August 21, 2013, Timothy Price, the prison officer in charge of delivering the inmates’ breakfast, brought Walker his meal. The parties dispute what happened next. By Walker's account, Price tried to give him a breakfast tray that had fallen on the floor. When Walker requested a fresh meal, Price refused. Walker complained loudly, and in response, two other prison officers, Jeffrey Stahl and Glendal French, moved him from his cell to a more restrictive floor. Walker claims that Stahl and French brutally assaulted him during the move, seriously injuring his face and foot. John Hudson and Marlon Minter, two of his fellow inmates, testified that they could see Walker's swollen face as he was escorted to his new cell. According to Walker, his repeated requests for medical care went unanswered until Mark Spencer, a paralegal at Pontiac, finally relayed his request to the medical unit. Walker was prescribed Motrin for his injuries. The prison officers give a different account. Price does not remember the alleged breakfast tray incident. And Stahl and French claim they moved Walker to a more restrictive cell because he began kicking his cell door. They say that the transfer was uneventful, and prison officers present at the time of the alleged assault testified that neither Stahl nor French used excessive force. All three defendants deny knowing that Walker had asked for medical care. A year later, with the help of Marlon Minter—a fellow inmate who acted as his “jailhouse lawyer”—Walker filed a pro se complaint in federal district court under 42 U.S.C. § 1983. He alleged that Officers Price, French, and Stahl violated his Eighth Amendment rights by using excessive force, failing to intervene to stop the use of excessive force, and exhibiting deliberate indifference to Walker's need for *936 medical attention. When he filed his complaint, Walker asked the court to recruit a volunteer lawyer to represent him. Walker stated that his own attempts to recruit pro bono counsel had failed and that he needed volunteer counsel because he had “numerous mental health issues,” limited access to the law library, and no money to hire counsel. He also claimed that his reliance on Minter demonstrated his need for representation. The magistrate judge assigned to the case denied Walker's motion because the case was simple and Walker had personal knowledge of the events. In addition, Walker had prior litigation experience, and his complaint reflected both competent writing skills and knowledge of the relevant law and procedure. After the defendants had answered the complaint, Walker filed a second motion to recruit counsel. Like the first, it was drafted with Minter's help. Walker repeated the reasons identified in his first motion: his limited mental capacity, lack of access to legal resources, and reliance on Minter. He added that his case was legally and factually complex, that it presented nuanced credibility issues, and that his deliberate indifference claim might require expert medical testimony. Walker's motion also included evidence of his cognitive limitations—he noted that he had an IQ of 76 and a grade-school level of comprehension. In response to this new information, the magistrate judge ordered the defendants to file Walker's Adult Basic Education scores. They never did. A little over two months later, Walker filed his third request for recruited counsel. He complained that the defendants had not responded to his discovery requests. Their failure to comply, he argued, was yet another reason why he needed the court to help him find a lawyer. The magistrate judge denied Walker's second and third motions on the same day. He recognized Walker's “cognitive deficits,” but they did not change his conclusion that Walker was competent to continue pro se. He reiterated that Walker's claims were simple and that his filings had been “relatively well written, demonstrating knowledge of the law and the relevant facts.” And while he acknowledged Walker's reliance on Minter's help in drafting his filings, he concluded: “that alone does not necessarily mean Plaintiff is unable to proceed pro se.” The magistrate judge directed the defendants to respond to Walker's discovery requests, which they finally did. Walker filed his fourth request to recruit counsel several months later. He asked the district judge to reconsider the earlier motions that the magistrate judge had denied. He restated his earlier points and added more emphasis to the claim that his dependence on Minter showed his inability to litigate without assistance. Two days after the motion was filed, the district judge denied his motion for reconsideration “for the reasons stated” in the magistrate judge's earlier order denying Walker's second and third motions to recruit counsel. To these reasons, the district judge added a list of six earlier pro se cases filed by Walker as examples of his competence to litigate pro se. A month later, Walker filed his fifth motion to recruit counsel. In this one, Walker complained that his earlier arguments were being “overlooked by the court.” He underscored his cognitive limitations and the complexity of his case. In her response, the judge again agreed with the magistrate judge's assessment of Walker's ability. She noted that Walker “appear[ed] competent to proceed pro se” because he had performed well so far, had some prior federal civil litigation experience, and was litigating straightforward claims. But because the case was going to trial, the judge said that she would nonetheless “attempt to recruit pro bono counsel *937 to represent Plaintiff at trial.” She warned him, however, that searching for pro bono counsel was “becoming increasingly difficult.” In the summer of 2016, Walker—through his own efforts—found a lawyer willing to represent him pro bono. That representation, however, didn't last long. Citing irreconcilable differences, his lawyer withdrew within minutes of his appointment. Walker's case was now approaching trial, and the court ordered the parties to submit briefs discussing whether the trial should be held over videoconference. All of the defendants supported holding the trial by videoconference because transporting Walker to the courthouse would be costly and a potential security risk. They noted that Walker was serving a life sentence for murder, aggravated criminal sexual assault with a weapon, and home invasion; on top of that, he had racked up an extensive prison disciplinary record during his incarceration at Pontiac. Walker objected that trying the case by video would impede his access to the court. But given the security risks posed by Walker's “classification as a high escape risk, high aggression, and maximum security level,” the court decided to hold the trial by video. The court opined that the simplicity of Walker's claims and the presence of a large video screen would minimize any prejudice to Walker. A month later, Walker filed his sixth and final motion to recruit counsel. Walker was now preparing his filings on his own, because Minter, his jailhouse lawyer, had been transferred to another prison. As a result, this motion is noticeably less articulate. In support of his request, Walker complained that he was unable to prepare his final pretrial filings because he lacked access to legal materials. According to Walker, “The plaintiff's legal material's that he was using to draft his pretrial material's was stolen from the plaintiff by pontiac correctional center official's to prevent the plaintiff from proceeding in his case against the Defendants.” In December 2016, the court denied Walker's final motion to recruit counsel. In a text order, it stated: Plaintiff's motion to continue and motion to appoint counsel is denied. Plaintiff has significant litigation experience. His pleadings demonstrate that he is competent to proceed pro se, as did the Court's observations of him when he appeared by video conference at several status hearings. The claims (excessive force and failure to obtain medical treatment) are relatively simple. Plaintiff already has personal knowledge of many of the facts underlying his claim. On this record, Plaintiff appears competent to proceed pro se in light of the straightforward nature of his claim. At that same time, in another procedural twist, Walker's case was transferred to a different judge for trial due to scheduling conflicts. The record does not reflect whether the new courtroom would also have the benefit of a large video screen for trial. The trial began in February of 2017. Walker, the defendants, and the witnesses appeared by video and, in one instance, Minter gave follow-up testimony by phone. The defendants’ counsel was with them at the prison. The video trial suffered from some predictable limitations. At times, the participants had difficulty hearing or seeing each other. There were also occasional hiccups in presenting exhibits and coordinating the examination of witnesses. At the end of the two-day trial, the jury returned a verdict for the defendants on all claims. Walker, who is represented by recruited counsel on appeal, claims the district court made three errors. First, he argues that the district court's denial of his motions to recruit counsel was an abuse of discretion *938 that prejudiced him. Second, Walker argues the district court abused its discretion in allowing his trial to proceed by videoconference. Finally, Walker argues that the cumulative effect of the court's errors requires that we grant him a new trial. II. 2 3 Litigants in federal civil cases do not have a constitutional or statutory right to court-appointed counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). An indigent litigant, however, may ask the court to recruit a volunteer attorney to provide pro bono representation. 28 U.S.C. § 1915(e)(1). Two questions guide a court's discretionary decision whether to recruit counsel: (1) “has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so,” and (2) “given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Id. at 654. Walker claims the district court erred when it answered “no” to the second Pruitt question, because it underestimated the difficulty of his case and overestimated his ability to litigate it. We think that the court acted within its discretion when it denied Walker's initial requests for recruited counsel. But when Walker made his sixth request, he was facing not only a jury trial—rare enough for a pro se litigant—but a trial by videoconference. And he had also recently lost the assistance of his jailhouse lawyer, which meant that his prior filings were not necessarily reflective of his competence to proceed alone. These factors changed the calculus, and we agree with Walker that the district court should have granted his last motion to recruit counsel.1 4 5 6 We review the district court's denial of a pro se plaintiff's motion to recruit counsel for abuse of discretion. Id. at 658. A district court abuses its discretion when “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Id. To this end, we ask “not whether we would have recruited a volunteer lawyer in the circumstances, but whether the district court applied the correct legal standard and reached a reasonable decision based on facts supported by the record.” Id. A. 7 When it denied Walker's sixth motion to recruit counsel, the district court considered the simplicity of Walker's substantive claims, but not the difficulty of trying them before a jury. The Pruitt standard, however, requires the court to account for both, because both affect “the difficulty of the case.” Pruitt, 503 F.3d at 655 (“The question is whether the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this includes the tasks that normally attend litigation.”). And while Walker's claims were straightforward, conducting a trial by videoconference was not. We have emphasized that the assistance of counsel becomes increasingly important as litigation enters its later stages. *939 Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015) (“Taking depositions, conducting witness examinations, applying the rules of evidence, and making opening statements are beyond the ability of most pro se litigants to successfully carry out.”); see also Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015); James v. Eli, 889 F.3d 320, 327 (7th Cir. 2018). And when Walker filed his sixth motion to recruit counsel, he was facing an event that most civil litigants do not: a jury trial. Even if his earlier filings had passed muster, trying a case is more difficult than drafting minimally coherent documents. Perez, 792 F.3d at 785 (“District courts abuse their discretion where they fail to consider the complexities of advanced-stage litigation activities and whether a litigant is capable of handling them.”). Trial involves conducting voir dire, delivering opening and closing statements, examining witnesses, and following the rules of evidence. These are all complicated tasks. And Walker faced an additional hurdle: his case didn't simply go to trial; it went to trial over videoconference. When the court denied Walker's sixth motion, it had already decided to hold the trial by video. That meant that the judge and jury would be together in one room, and the parties, lawyers, and witnesses would appear on screen. Walker would have to stay on track despite inevitable technological hiccups. Moreover, a video trial would make it harder to effectively try a case that rested almost exclusively on credibility issues, because Walker would have to compensate for the loss of the physical presence of the parties, the witnesses, the jurors, and the judge. Among other things, he would have to convince the jurors to believe him, and not the defendants, even though screens would limit their ability to observe body language. In evaluating the difficulty of the case, the court repeatedly stressed the simplicity of Walker's claims. To be sure, Walker's claims were uncomplicated, but two factors combined to make the case difficult: it went to trial and he had to try it from behind a camera. By failing to adequately account for these factors, the district court abused its discretion. See James, 889 F.3d at 327 (“[W]e have recognized that certain circumstances demand particular judicial consideration.”). We pause to add one final note regarding the complexity of Walker's case as it relates to the Pruitt analysis. In Walker's view, the court should have recruited counsel for him after his first motion, largely because his claims involve medical expertise and state-of-mind issues. Both of these arguments find some support in our case law. Perez, 792 F.3d at 784 (observing that it may be best to recruit counsel when the plaintiff “alleges an objectively serious medical condition”); Bracey v. Grondin, 712 F.3d 1012, 1017 (7th Cir. 2013) (observing that state-of-mind claims heighten the complexity of a case); Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010) (noting that state-of-mind claims are often difficult for pro se plaintiffs). But “we have resisted laying down categorical rules regarding recruitment of counsel in particular types of cases.” Pruitt, 503 F.3d at 656. Doing so risks “finding, as a practical matter, a presumptive right to counsel in some categories of cases” even though we have “consistently denied that such a right, or even a presumption, exists.” McCaa v Hamilton, 893 F.3d 1027, 1037 (7th Cir. 2018) (Hamilton, J., concurring). Accepting Walker's argument would mean accepting “as a practical matter, a presumptive right to counsel in some categories of cases.” And while our precedent requires generosity in considering requests for recruited counsel, it does not go as far as Walker proposes. The district court correctly noted that none of his claims was particularly complex; each turned simply on which witnesses were to *940 be believed. And while it is true that medical claims often require nuanced expert testimony about the standard of care, Walker's claim did not. He argued that prison officers refused to respond to his requests for medical care, not that the care he received was substandard. See Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014). Such a claim is not categorically beyond the capacity of a pro se plaintiff. The difficulty in Walker's case flowed not from the substance of his claims, but from its procedural posture: the video trial introduced complexity that had not been there before. That is the factor on which our decision turns. B. 8 9 The second question from Pruitt directs the district court to examine not only the difficulty of the case, but the pro se plaintiff's competency to litigate that particular case himself. Pruitt, 503 F.3d at 654. Because this inquiry is “intertwined” with analyzing the difficulty of the case, id., the district court's flawed application of the proper legal standard to that aspect of the inquiry spills over to the analysis of Walker's capacity to litigate his videoconference trial. There are “no fixed requirements” for determining Walker's capability to litigate his own case, but we consider his “literacy, communication skills, education level, and litigation experience” as well as any available evidence of his “intellectual capacity and psychological history” as these relate to litigating his case. Id. at 655. The court acknowledged Walker's mental and psychological limitations, but it did not consider how they would handicap his performance during the trial, as opposed to the pretrial phase. Walker has an elementary-level education and an IQ of only 76. On top of this, Walker has a history of mental and psychological health issues. And although the court asked the defendants to submit Walker's Adult Basic Education scores to the court after Walker's second request to recruit counsel, the defendants never complied. Not every cognitive limitation will require the district court to recruit a lawyer, but the court should have considered how Walker's mental health history would affect his ability to think on his feet at trial. Walker may have been capable of writing intelligible documents, but those do not require a quick, oral response in front of a jury. Walker's prior litigation experience, while relevant, did not include the performance of the tasks most relevant here: examination of witnesses, introduction of evidence, and the delivery of opening and closing arguments to a jury. To be sure, this case is not Walker's first trip to federal court, and the district court was right to account for the fact that Walker had previously filed six other pro se civil cases. But that litigation experience bears on his ability to identify relevant legal arguments and facts, and much more is required of a litigant who must fully develop and present his case in (or virtually in) a courtroom. In finding Walker competent to litigate this case on his own, the court relied on his performance during the pretrial phase of the litigation. Like Walker's prior litigation experience, his pretrial performance did not necessarily reflect his ability to handle a trial. More importantly, however, it did not reflect what he could do on his own. From the beginning, Walker relied heavily on Minter to operate as his jailhouse lawyer. In fact, in the course of denying one of Walker's earlier motions, the court rejected Walker's argument that his dependence on Minter demonstrated his need for recruited counsel. By the time Walker filed his sixth motion to recruit counsel, however, his case was headed to trial and Minter had been transferred to another prison. At this point, the court needed to evaluate Walker's capacity independent of any unofficial *941 or jailhouse assistance he may have received. See McCaa, 893 F.3d at 1033 (When a litigant's “competency may not have been entirely his own ... courts must ‘specifically examine[ ]’ a plaintiff's ‘personal ability to litigate the case, versus the ability of the “jailhouse lawyer” ’ who assisted the plaintiff.” (quoting Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014) ). Yet in denying Walker's sixth motion to recruit counsel, the court cited the quality of the filings Walker had submitted with Minter's help. It is noteworthy that Walker's sixth motion for recruited counsel—the first submitted without Minter's help—was substantially less articulate than the prior filings on which the court relied. That itself indicated that the earlier work in the case was an imperfect measure of Walker's capacity. Finally, the court took Walker's appearance by video at pretrial status hearings as evidence that Walker could handle a trial by videoconference. The pretrial status hearings, however, differed significantly from a trial. They involved only a few people: the judge, the defendants’ lawyers, and Walker. They did not require Walker to prepare opening and closing statements, develop any direct lines of questioning, or cross-examine witnesses. And they dealt largely with administrative matters rather than substance. While Walker's performance at these hearings was relevant data about his ability to handle himself, the court placed too much weight on it. C. 10 11 The district court erred when it denied Walker's sixth request that it recruit counsel, but Walker is only entitled to relief if that error prejudiced him. To show prejudice, a litigant need only show that “there is a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Pruitt, 503 F.3d at 659. In Pruitt, we found that the pro se plaintiff's “inept trial performance” showed that counsel would have helped him make his case to the jury. Id. at 661. We held that “[a]t the very least, counsel could have helped Pruitt present his story to the jury in a more organized and coherent manner.” Id. While Walker's opening statement and his own testimony were fairly easy to follow, he ran into difficulty when he examined and cross-examined witnesses. The other participants periodically had difficulty hearing him. The questions he asked often made little sense; he had trouble laying foundations for exhibits he wanted to enter into evidence; and he struggled to draw out inconsistencies in the testimony of the defendants and their witnesses. At one point, Walker objected that one witness was coaching another. The judge replied, “I can't see or hear that, so I don't know what's going on.” The witness denied being coached, and Walker had no lawyer to press the point. Like the case in Pruitt, Walker's case was a swearing contest. Id. at 660–61. His task was to highlight the strength of his own account and impeach the credibility of the defendants. His effort was incoherent, and at the very least, the presence of counsel would have ensured a fair presentation of Walker's case to the jury. We therefore conclude that Walker was prejudiced by the district court's refusal to try to recruit counsel for him.2 *942 III. Because it might arise on remand, we briefly address Walker's argument that the district court erred by requiring him to proceed by video rather than in open court. In Thornton v. Snyder, we held that a district court has discretion to hold a video trial when a plaintiff presents serious security concerns. 428 F.3d 690, 697–98 (7th Cir. 2005). Given our conclusion that the court should have recruited counsel for Walker, we need not decide whether it abused its discretion in proceeding by videoconference. But we do not want to leave the impression that we are second-guessing the court's decision to do so. The error here was the court's failure to account for Walker's capacity to conduct a video trial in considering his sixth motion to recruit counsel. On remand, the court should not understand our opinion to dictate whether it conducts any new trial live or by videoconference.

Barrett

majority

1 A litigant in a civil case has neither a statutory nor a constitutional right to counsel. He can, however, ask the court to recruit counsel to represent him on a pro bono basis. When the court receives such a request from an indigent plaintiff, it must determine whether the plaintiff has made a reasonable attempt to obtain counsel on his own and whether, given the difficulty of the case, the plaintiff is competent to litigate it himself. If the answer to the first question is yes and the answer to the second is no, then the court must seek counsel to represent the plaintiff. This case involves the district court's assessment of the second question. Fredrick Walker, an inmate, brought a civil-rights suit against several prison officers. Over the course of the litigation, Walker asked the court six times to recruit a volunteer lawyer to represent him. The court acted within its discretion when it denied his initial motions. But it abused its discretion when it denied the sixth. At that point, Walker was facing not only a jury trial, but a jury trial by videoconference. That substantially increased the difficulty of his case, despite the simplicity of his claims. Moreover, the basic competence that Walker had demonstrated during the pretrial phase did not necessarily reflect his ability to handle a video trial entirely on his own. Trying a case requires additional skills, and Walker had managed the pretrial phase with the help of a jailhouse lawyer who had since been transferred to another prison. Because the landscape had changed at this late stage of the litigation, the court should have granted Walker's motion to recruit counsel. I. Fredrick Walker is a prisoner at the Pontiac Correctional Center, a maximum-security prison in Pontiac, Illinois. On August 21, 2013, Timothy Price, the prison officer in charge of delivering the inmates’ breakfast, brought Walker his meal. The parties dispute what happened next. By Walker's account, Price tried to give him a breakfast tray that had fallen on the floor. When Walker requested a fresh meal, Price refused. Walker complained loudly, and in response, two other prison officers, Jeffrey Stahl and Glendal French, moved him from his cell to a more restrictive floor. Walker claims that Stahl and French brutally assaulted him during the move, seriously injuring his face and foot. John Hudson and Marlon Minter, two of his fellow inmates, testified that they could see Walker's swollen face as he was escorted to his new cell. According to Walker, his repeated requests for medical care went unanswered until Mark Spencer, a paralegal at Pontiac, finally relayed his request to the medical unit. Walker was prescribed Motrin for his injuries. The prison officers give a different account. Price does not remember the alleged breakfast tray incident. And Stahl and French claim they moved Walker to a more restrictive cell because he began kicking his cell door. They say that the transfer was uneventful, and prison officers present at the time of the alleged assault testified that neither Stahl nor French used excessive force. All three defendants deny knowing that Walker had asked for medical care. A year later, with the help of Marlon Minter—a fellow inmate who acted as his “jailhouse lawyer”—Walker filed a pro se complaint in federal district court under He alleged that Officers Price, French, and Stahl violated his Eighth Amendment rights by using excessive force, failing to intervene to stop the use of excessive force, and exhibiting deliberate indifference to Walker's need for *936 medical attention. When he filed his complaint, Walker asked the court to recruit a volunteer lawyer to represent him. Walker stated that his own attempts to recruit pro bono counsel had failed and that he needed volunteer counsel because he had “numerous mental health issues,” limited access to the law library, and no money to hire counsel. He also claimed that his reliance on Minter demonstrated his need for representation. The magistrate judge assigned to the case denied Walker's motion because the case was simple and Walker had personal knowledge of the events. In addition, Walker had prior litigation experience, and his complaint reflected both competent writing skills and knowledge of the relevant law and procedure. After the defendants had answered the complaint, Walker filed a second motion to recruit counsel. Like the first, it was drafted with Minter's help. Walker repeated the reasons identified in his first motion: his limited mental capacity, lack of access to legal resources, and reliance on Minter. He added that his case was legally and factually complex, that it presented nuanced credibility issues, and that his deliberate indifference claim might require expert medical testimony. Walker's motion also included evidence of his cognitive limitations—he noted that he had an IQ of 76 and a grade-school level of comprehension. In response to this new information, the magistrate judge ordered the defendants to file Walker's Adult Basic Education scores. They never did. A little over two months later, Walker filed his third request for recruited counsel. He complained that the defendants had not responded to his discovery requests. Their failure to comply, he argued, was yet another reason why he needed the court to help him find a lawyer. The magistrate judge denied Walker's second and third motions on the same day. He recognized Walker's “cognitive deficits,” but they did not change his conclusion that Walker was competent to continue pro se. He reiterated that Walker's claims were simple and that his filings had been “relatively well written, demonstrating knowledge of the law and the relevant facts.” And while he acknowledged Walker's reliance on Minter's help in drafting his filings, he concluded: “that alone does not necessarily mean Plaintiff is unable to proceed pro se.” The magistrate judge directed the defendants to respond to Walker's discovery requests, which they finally did. Walker filed his fourth request to recruit counsel several months later. He asked the district judge to reconsider the earlier motions that the magistrate judge had denied. He restated his earlier points and added more emphasis to the claim that his dependence on Minter showed his inability to litigate without assistance. Two days after the motion was filed, the district judge denied his motion for reconsideration “for the reasons stated” in the magistrate judge's earlier order denying Walker's second and third motions to recruit counsel. To these reasons, the district judge added a list of six earlier pro se cases filed by Walker as examples of his competence to litigate pro se. A month later, Walker filed his fifth motion to recruit counsel. In this one, Walker complained that his earlier arguments were being “overlooked by the court.” He underscored his cognitive limitations and the complexity of his case. In her response, the judge again agreed with the magistrate judge's assessment of Walker's ability. She noted that Walker “appear[ed] competent to proceed pro se” because he had performed well so far, had some prior federal civil litigation experience, and was litigating straightforward claims. But because the case was going to trial, the judge said that she would nonetheless “attempt to recruit pro bono counsel *937 to represent Plaintiff at trial.” She warned him, however, that searching for pro bono counsel was “becoming increasingly difficult.” In the summer of 2016, Walker—through his own efforts—found a lawyer willing to represent him pro bono. That representation, however, didn't last long. Citing irreconcilable differences, his lawyer withdrew within minutes of his appointment. Walker's case was now approaching trial, and the court ordered the parties to submit briefs discussing whether the trial should be held over videoconference. All of the defendants supported holding the trial by videoconference because transporting Walker to the courthouse would be costly and a potential security risk. They noted that Walker was serving a life sentence for murder, aggravated criminal sexual assault with a weapon, and home invasion; on top of that, he had racked up an extensive prison disciplinary record during his incarceration at Pontiac. Walker objected that trying the case by video would impede his access to the court. But given the security risks posed by Walker's “classification as a high escape risk, high aggression, and maximum security level,” the court decided to hold the trial by video. The court opined that the simplicity of Walker's claims and the presence of a large video screen would minimize any prejudice to Walker. A month later, Walker filed his sixth and final motion to recruit counsel. Walker was now preparing his filings on his own, because Minter, his jailhouse lawyer, had been transferred to another prison. As a result, this motion is noticeably less articulate. In support of his request, Walker complained that he was unable to prepare his final pretrial filings because he lacked access to legal materials. According to Walker, “The plaintiff's legal material's that he was using to draft his pretrial material's was stolen from the plaintiff by pontiac correctional center official's to prevent the plaintiff from proceeding in his case against the Defendants.” In December 2016, the court denied Walker's final motion to recruit counsel. In a text order, it stated: Plaintiff's motion to continue and motion to appoint counsel is denied. Plaintiff has significant litigation experience. His pleadings demonstrate that he is competent to proceed pro se, as did the Court's observations of him when he appeared by video conference at several status hearings. The claims (excessive force and failure to obtain medical treatment) are relatively simple. Plaintiff already has personal knowledge of many of the facts underlying his claim. On this record, Plaintiff appears competent to proceed pro se in light of the straightforward nature of his claim. At that same time, in another procedural twist, Walker's case was transferred to a different judge for trial due to scheduling conflicts. The record does not reflect whether the new courtroom would also have the benefit of a large video screen for trial. The trial began in February of 2017. Walker, the defendants, and the witnesses appeared by video and, in one instance, Minter gave follow-up testimony by phone. The defendants’ counsel was with them at the prison. The video trial suffered from some predictable limitations. At times, the participants had difficulty hearing or seeing each other. There were also occasional hiccups in presenting exhibits and coordinating the examination of witnesses. At the end of the two-day trial, the jury returned a verdict for the defendants on all claims. Walker, who is represented by recruited counsel on appeal, claims the district court made three errors. First, he argues that the district court's denial of his motions to recruit counsel was an abuse of discretion *938 that prejudiced him. Second, Walker argues the district court abused its discretion in allowing his trial to proceed by videoconference. Finally, Walker argues that the cumulative effect of the court's errors requires that we grant him a new trial. II. 2 3 Litigants in federal civil cases do not have a constitutional or statutory right to court-appointed counsel. An indigent litigant, however, may ask the court to recruit a volunteer attorney to provide pro bono representation. (e)(1). Two questions guide a court's discretionary decision whether to recruit counsel: (1) “has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so,” and (2) “given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Walker claims the district court erred when it answered “no” to the second question, because it underestimated the difficulty of his case and overestimated his ability to litigate it. We think that the court acted within its discretion when it denied Walker's initial requests for recruited counsel. But when Walker made his sixth request, he was facing not only a jury trial—rare enough for a pro se litigant—but a trial by videoconference. And he had also recently lost the assistance of his jailhouse lawyer, which meant that his prior filings were not necessarily reflective of his competence to proceed alone. These factors changed the calculus, and we agree with Walker that the district court should have granted his last motion to recruit counsel.1 4 5 6 We review the district court's denial of a pro se plaintiff's motion to recruit counsel for abuse of discretion. A district court abuses its discretion when “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” To this end, we ask “not whether we would have recruited a volunteer lawyer in the circumstances, but whether the district court applied the correct legal standard and reached a reasonable decision based on facts supported by the record.” A. 7 When it denied Walker's sixth motion to recruit counsel, the district court considered the simplicity of Walker's substantive claims, but not the difficulty of trying them before a jury. The standard, however, requires the court to account for both, because both affect “the difficulty of the case.” And while Walker's claims were straightforward, conducting a trial by videoconference was not. We have emphasized that the assistance of counsel becomes increasingly important as litigation enters its later stages. *939 ; see also ; And when Walker filed his sixth motion to recruit counsel, he was facing an event that most civil litigants do not: a jury trial. Even if his earlier filings had passed muster, trying a case is more difficult than drafting minimally coherent documents. 792 F.3d at Trial involves conducting voir dire, delivering opening and closing statements, examining witnesses, and following the rules of evidence. These are all complicated tasks. And Walker faced an additional hurdle: his case didn't simply go to trial; it went to trial over videoconference. When the court denied Walker's sixth motion, it had already decided to hold the trial by video. That meant that the judge and jury would be together in one room, and the parties, lawyers, and witnesses would appear on screen. Walker would have to stay on track despite inevitable technological hiccups. Moreover, a video trial would make it harder to effectively try a case that rested almost exclusively on credibility issues, because Walker would have to compensate for the loss of the physical presence of the parties, the witnesses, the jurors, and the judge. Among other things, he would have to convince the jurors to believe him, and not the defendants, even though screens would limit their ability to observe body language. In evaluating the difficulty of the case, the court repeatedly stressed the simplicity of Walker's claims. To be sure, Walker's claims were uncomplicated, but two factors combined to make the case difficult: it went to trial and he had to try it from behind a camera. By failing to adequately account for these factors, the district court abused its discretion. See 889 F.3d at We pause to add one final note regarding the complexity of Walker's case as it relates to the analysis. In Walker's view, the court should have recruited counsel for him after his first motion, largely because his claims involve medical expertise and state-of-mind issues. Both of these arguments find some support in our case law. ; ; But “we have resisted laying down categorical rules regarding recruitment of counsel in particular types of cases.” Doing so risks “finding, as a practical matter, a presumptive right to counsel in some categories of cases” even though we have “consistently denied that such a right, or even a presumption, exists.” v Hamilton, Accepting Walker's argument would mean accepting “as a practical matter, a presumptive right to counsel in some categories of cases.” And while our precedent requires generosity in considering requests for recruited counsel, it does not go as far as Walker proposes. The district court correctly noted that none of his claims was particularly complex; each turned simply on which witnesses were to *940 be believed. And while it is true that medical claims often require nuanced expert testimony about the standard of care, Walker's claim did not. He argued that prison officers refused to respond to his requests for medical care, not that the care he received was substandard. See Such a claim is not categorically beyond the capacity of a pro se plaintiff. The difficulty in Walker's case flowed not from the substance of his claims, but from its procedural posture: the video trial introduced complexity that had not been there before. That is the factor on which our decision turns. B. 8 9 The second question from directs the district court to examine not only the difficulty of the case, but the pro se plaintiff's competency to litigate that particular case himself. 503 F.3d Because this inquiry is “intertwined” with analyzing the difficulty of the case, the district court's flawed application of the proper legal standard to that aspect of the inquiry spills over to the analysis of Walker's capacity to litigate his videoconference trial. There are “no fixed requirements” for determining Walker's capability to litigate his own case, but we consider his “literacy, communication skills, education level, and litigation experience” as well as any available evidence of his “intellectual capacity and psychological history” as these relate to litigating his case. The court acknowledged Walker's mental and psychological limitations, but it did not consider how they would handicap his performance during the trial, as opposed to the pretrial phase. Walker has an elementary-level education and an IQ of only 76. On top of this, Walker has a history of mental and psychological health issues. And although the court asked the defendants to submit Walker's Adult Basic Education scores to the court after Walker's second request to recruit counsel, the defendants never complied. Not every cognitive limitation will require the district court to recruit a lawyer, but the court should have considered how Walker's mental health history would affect his ability to think on his feet at trial. Walker may have been capable of writing intelligible documents, but those do not require a quick, oral response in front of a jury. Walker's prior litigation experience, while relevant, did not include the performance of the tasks most relevant here: examination of witnesses, introduction of evidence, and the delivery of opening and closing arguments to a jury. To be sure, this case is not Walker's first trip to federal court, and the district court was right to account for the fact that Walker had previously filed six other pro se civil cases. But that litigation experience bears on his ability to identify relevant legal arguments and facts, and much more is required of a litigant who must fully develop and present his case in (or virtually in) a courtroom. In finding Walker competent to litigate this case on his own, the court relied on his performance during the pretrial phase of the litigation. Like Walker's prior litigation experience, his pretrial performance did not necessarily reflect his ability to handle a trial. More importantly, however, it did not reflect what he could do on his own. From the beginning, Walker relied heavily on Minter to operate as his jailhouse lawyer. In fact, in the course of denying one of Walker's earlier motions, the court rejected Walker's argument that his dependence on Minter demonstrated his need for recruited counsel. By the time Walker filed his sixth motion to recruit counsel, however, his case was headed to trial and Minter had been transferred to another prison. At this point, the court needed to evaluate Walker's capacity independent of any unofficial *941 or jailhouse assistance he may have received. See ). Yet in denying Walker's sixth motion to recruit counsel, the court cited the quality of the filings Walker had submitted with Minter's help. It is noteworthy that Walker's sixth motion for recruited counsel—the first submitted without Minter's help—was substantially less articulate than the prior filings on which the court relied. That itself indicated that the earlier work in the case was an imperfect measure of Walker's capacity. Finally, the court took Walker's appearance by video at pretrial status hearings as evidence that Walker could handle a trial by videoconference. The pretrial status hearings, however, differed significantly from a trial. They involved only a few people: the judge, the defendants’ lawyers, and Walker. They did not require Walker to prepare opening and closing statements, develop any direct lines of questioning, or cross-examine witnesses. And they dealt largely with administrative matters rather than substance. While Walker's performance at these hearings was relevant data about his ability to handle himself, the court placed too much weight on it. C. 10 11 The district court erred when it denied Walker's sixth request that it recruit counsel, but Walker is only entitled to relief if that error prejudiced him. To show prejudice, a litigant need only show that “there is a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” In we found that the pro se plaintiff's “inept trial performance” showed that counsel would have helped him make his case to the jury. We held that “[a]t the very least, counsel could have helped present his story to the jury in a more organized and coherent manner.” While Walker's opening statement and his own testimony were fairly easy to follow, he ran into difficulty when he examined and cross-examined witnesses. The other participants periodically had difficulty hearing him. The questions he asked often made little sense; he had trouble laying foundations for exhibits he wanted to enter into evidence; and he struggled to draw out inconsistencies in the testimony of the defendants and their witnesses. At one point, Walker objected that one witness was coaching another. The judge replied, “I can't see or hear that, so I don't know what's going on.” The witness denied being coached, and Walker had no lawyer to press the point. Like the case in Walker's case was a swearing contest. at 660–61. His task was to highlight the strength of his own account and impeach the credibility of the defendants. His effort was incoherent, and at the very least, the presence of counsel would have ensured a fair presentation of Walker's case to the jury. We therefore conclude that Walker was prejudiced by the district court's refusal to try to recruit counsel for him.2 *942 III. Because it might arise on remand, we briefly address Walker's argument that the district court erred by requiring him to proceed by video rather than in open court. In Thornton v. Snyder, we held that a district court has discretion to hold a video trial when a plaintiff presents serious security concerns. Given our conclusion that the court should have recruited counsel for Walker, we need not decide whether it abused its discretion in proceeding by videoconference. But we do not want to leave the impression that we are second-guessing the court's decision to do so. The error here was the court's failure to account for Walker's capacity to conduct a video trial in considering his sixth motion to recruit counsel. On remand, the court should not understand our opinion to dictate whether it conducts any new trial live or by videoconference.

Wallace v. Grubhub Holdings, Inc.

Section 1 of the Federal Arbitration Act exempts from the Act's coverage “contracts of employment” of two enumerated categories of workers—“seamen” and “railroad employees.” But it also exempts the contracts of a residual category—“any other class of workers engaged in foreign or interstate commerce.” This appeal requires us to decide whether food delivery drivers for Grubhub are exempt from the Act under § 1's residual category. Grubhub calls itself an “online and mobile food-ordering and delivery marketplace.” It provides a platform for diners to order takeout from local restaurants, either online or via its mobile app. When a diner places an order through Grubhub's app, Grubhub transmits the order to the restaurant, which then prepares the diner's meal. Once the food is ready, the diner can either pick it up herself or request that Grubhub dispatch a driver to deliver it to her. Grubhub considers its drivers to be independent contractors rather than employees entitled to the protections of the Fair Labor Standards Act. The plaintiffs in these consolidated appeals—who worked as drivers in cities including Chicago, Portland, and New York—disagree. Between them, they filed two suits against Grubhub, alleging, among other things, that Grubhub violated the Fair Labor Standards Act by failing to pay them overtime. But their suits quickly hit a procedural roadblock. Each of the plaintiffs had signed a “Delivery Service Provider Agreement” that required them to submit to arbitration for “any and all claims” arising out of their relationship with Grubhub. In both cases, Grubhub moved to compel arbitration, and in both cases, the plaintiffs responded that the district court could not compel them to arbitrate because, as “workers engaged in foreign or interstate commerce,” their contracts with Grubhub were exempt from the Federal Arbitration Act (FAA). Both district courts concluded that the FAA applied and compelled arbitration. 1 Enacted in 1925, the FAA was Congress's response to the general “hostility of American courts to the enforcement of arbitration agreements.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). It sought to replace that “widespread judicial *800 hostility” with a “liberal federal policy favoring arbitration.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (citation omitted). In pursuit of that goal, the FAA sweeps broadly, “requir[ing] courts rigorously to enforce arbitration agreements according to their terms.” Epic Sys. Corp. v. Lewis, ––– U.S. ––––, 138 S. Ct. 1612, 1621, 200 L.Ed.2d 889 (2018) (citation and internal quotation marks omitted). But its breadth is not unqualified. As relevant here, § 1 of the Act provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.1 In other words, it exempts two enumerated categories of workers—“seamen” and “railroad employees”—as well as what we will call the residual category—“any other class of workers engaged in foreign or interstate commerce.” The plaintiffs insist that they fall within this last category. To decide whether they are right, we must determine what membership in that category requires. 2 As with any question of statutory interpretation, our inquiry “begins with the text.” Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850, 1856, 195 L.Ed.2d 117 (2016). And the first thing we see in the text of the residual category is that the operative unit is a “class of workers.” So we know that in determining whether the exemption applies, the question is “not whether the individual worker actually engaged in interstate commerce, but whether the class of workers to which the complaining worker belonged engaged in interstate commerce.” Bacashihua v. U.S. Postal Serv., 859 F.2d 402, 405 (6th Cir. 1988) (emphasis added). That means that a member of the class qualifies for the exemption even if she does not personally “engage in interstate commerce.” Id. By the same token, someone whose occupation is not defined by its engagement in interstate commerce does not qualify for the exemption just because she occasionally performs that kind of work. Hill v. Rent-A-Center, 398 F.3d 1286, 1289–90 (11th Cir. 2005). That immediately leads to the next question: What does it mean for a class of workers to be “engaged in interstate commerce”? The Supreme Court's decision in Circuit City goes a long way toward providing an answer. In that case, the plaintiff argued that § 1's residual category reached all employment contracts within Congress's commerce power—essentially, all employment contracts—leaving the FAA applicable only to commercial arbitration agreements. 532 U.S. at 114, 121 S.Ct. 1302. The Court rejected the proposition that the exemption was coterminous with Congress's authority to regulate employment contracts, holding instead that the residual clause applies only to the employment contracts of workers engaged in the movement of goods in interstate commerce. Id. at 119, 121 S.Ct. 1302. In reaching that result, the Court explained that the phrase “engaged in commerce” as used in § 1 meant something narrower than “affecting commerce” or “involving commerce” as used in § 2. While the latter two phrases evoke the full reach of Congress's commerce power, the phrase “engaged in commerce” has “a more limited reach,” id. at 115, 121 S.Ct. 1302, referring *801 instead to “active employment” in interstate commerce. Id. at 116, 121 S.Ct. 1302 (citation omitted). The narrower reading is confirmed by the presence of specific exemptions for “seamen” and “railroad workers,” the Court said, for if the residual category were a blanket exemption for all employment contracts, these specific exemptions would have been wholly unnecessary. Id. at 114, 121 S.Ct. 1302. Far from being superfluous, the enumerated categories play a key role in defining the scope of the residual clause, which should “be controlled and defined by reference to the enumerated categories of workers which are recited just before it.” Id. at 115, 121 S.Ct. 1302. That is to say, “[t]he wording of § 1 calls for the application of the maxim of ejusdem generis,” id. at 114, 121 S.Ct. 1302, the rule that “[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012). The residual clause, then, exempts only workers who are akin to “seamen” and “railroad employees,” a category that the Court described as “transportation workers.” Circuit City, 532 U.S. at 119, 121 S.Ct. 1302. 3 Both we and our sister circuits have repeatedly emphasized that transportation workers are those who are “actually engaged in the movement of goods in interstate commerce.” Int'l Brotherhood of Teamsters Local Union No. 50 v. Kienstra Precast, LLC, 702 F.3d 954, 956 (7th Cir. 2012) (quoting Circuit City, 532 U.S. at 112, 121 S.Ct. 1302).2 To determine whether a class of workers meets that definition, we consider whether the interstate movement of goods is a central part of the class members' job description. Compare New Prime Inc. v. Oliveira, ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) (observing that interstate truckers are *802 plainly transportation workers), with Hill, 398 F.3d at 1289–90 (holding that furniture salespeople are not “transportation workers” even if they occasionally deliver furniture to out-of-state customers). Then, if such a class exists, we ask in turn whether the plaintiff is a member of it. Compare Kienstra Precast, 702 F.3d at 957 (holding that truckers were part of the class of interstate truckers because they hauled some deliveries across state lines), with Lenz v. Yellow Transp., Inc., 431 F.3d 348, 351–53 (8th Cir. 2005) (holding that a customer service representative at an interstate trucking company was not a member of the relevant class). Sometimes that determination is easy to make—as it is for truckers who drive an interstate route. See, e.g., New Prime, 139 S. Ct. at 539. Sometimes that determination is harder—as it is for truckers who drive an intrastate leg of an interstate route. See, e.g., Waithaka v. Amazon.com, Inc., No. 19-1848, 966 F.3d 10, 25–26 (1st Cir. July 17, 2020) (holding that a last-leg delivery driver qualified as a transportation worker). Whether easy or hard, though, the inquiry is always focused on the worker's active engagement in the enterprise of moving goods across interstate lines. That is the inquiry that Circuit City demands. 4 The plaintiffs in today's case, however, completely ignore the governing framework. Rather than focusing on whether they belong to a class of workers actively engaged in the movement of goods across interstate lines, the plaintiffs stress that they carry goods that have moved across state and even national lines. A package of potato chips, for instance, may travel across several states before landing in a meal prepared by a local restaurant and delivered by a Grubhub driver; likewise, a piece of dessert chocolate may have traveled all the way from Switzerland. The plaintiffs insist that delivering such goods brings their contracts with Grubhub within § 1 of the FAA. As they see it, the residual exemption is not so much about what the worker does as about where the goods have been. 5 But to fall within the exemption, the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders. Put differently, a class of workers must themselves be “engaged in the channels of foreign or interstate commerce.” McWilliams v. Logicon, Inc., 143 F.3d 573, 576 (10th Cir. 1998) (emphasis added). That, after all, is what it means to be a transportation worker who performs work analogous to that of seamen and railroad employees, whose occupations are centered on the transport of goods in interstate or foreign commerce. By erasing that requirement from the statute, the plaintiffs' interpretation would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport—for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy. That result would run afoul of the Court's instruction that the scope of the residual clause “be controlled and defined” by the work done by seamen and railroad workers, Circuit City, 532 U.S. at 106, 121 S.Ct. 1302, not to mention its admonition that § 1 as a whole must be “afforded a narrow construction.” Id. at 118, 121 S.Ct. 1302. The plaintiffs try to support their position by emphasizing that the FAA only applies to written agreements to arbitrate contained within a “contract evidencing a transaction involving commerce.” 9 U.S.C. § 2; see also New Prime, 139 S. Ct. at 537. If they aren't “engaged in interstate commerce” for purposes of § 1, the plaintiffs ask, then how can their employment agreements *803 “involv[e] commerce” for purposes of § 2? To put it another way: either they are engaged in commerce, so their contracts are exempt from the FAA under § 1, or they are not engaged in commerce, in which case their contracts are still exempt from the FAA under § 2. But the provisions create this catch-22 only if “engaged in commerce” and “involving commerce” mean the same thing, and as we have already explained, the Supreme Court has squarely held that they do not. Circuit City, 532 U.S. at 115, 121 S.Ct. 1302. To repeat, while § 2 expands the FAA's reach to the full extent of Congress's commerce power, Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273–77, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), § 1 carves out a narrow exception from the FAA for a small number of workers who otherwise would fall within § 2's ambit. Circuit City, 532 U.S. at 115–16, 118–19, 121 S.Ct. 1302. There is therefore nothing remarkable about an employment contract failing to meet § 1's more stringent “engaged in interstate commerce” requirement while still meeting the far broader “involving commerce” requirement of § 2. And given the breadth of Congress's Commerce Clause power, there can be no doubt that the plaintiffs' employment contracts fall comfortably within § 2. * * * Section 1 of the FAA carves out a narrow exception to the obligation of federal courts to enforce arbitration agreements. To show that they fall within this exception, the plaintiffs had to demonstrate that the interstate movement of goods is a central part of the job description of the class of workers to which they belong. They did not even try do that, so both district courts were right to conclude that the plaintiffs' contracts with Grubhub do not fall within § 1 of the FAA. Accordingly, the judgments are AFFIRMED.

Barrett

majority

Section 1 of the Federal Arbitration Act exempts from the Act's coverage “contracts of employment” of two enumerated categories of workers—“seamen” and “railroad employees.” But it also exempts the contracts of a residual category—“any other class of workers engaged in foreign or interstate commerce.” This appeal requires us to decide whether food delivery drivers for Grubhub are exempt from the Act under 1's residual category. Grubhub calls itself an “online and mobile food-ordering and delivery marketplace.” It provides a platform for diners to order takeout from local restaurants, either online or via its mobile app. When a diner places an order through Grubhub's app, Grubhub transmits the order to the restaurant, which then prepares the diner's meal. Once the food is ready, the diner can either pick it up herself or request that Grubhub dispatch a driver to deliver it to her. Grubhub considers its drivers to be independent contractors rather than employees entitled to the protections of the Fair Labor Standards Act. The plaintiffs in these consolidated appeals—who worked as drivers in cities including Chicago, Portland, and New York—disagree. Between them, they filed two suits against Grubhub, alleging, among other things, that Grubhub violated the Fair Labor Standards Act by failing to pay them overtime. But their suits quickly hit a procedural roadblock. Each of the plaintiffs had signed a “Delivery Service Provider Agreement” that required them to submit to arbitration for “any and all claims” arising out of their relationship with Grubhub. In both cases, Grubhub moved to compel arbitration, and in both cases, the plaintiffs responded that the district court could not compel them to arbitrate because, as “workers engaged in foreign or interstate commerce,” their contracts with Grubhub were exempt from the Federal Arbitration Act (FAA). Both district courts concluded that the FAA applied and compelled arbitration. 1 Enacted in 1925, the FAA was Congress's response to the general “hostility of American courts to the enforcement of arbitration ” Circuit Stores, It sought to replace that “widespread judicial *800 hostility” with a “liberal federal policy favoring arbitration.” AT&T Mobility In pursuit of that goal, the FAA sweeps broadly, “requir[ing] courts rigorously to enforce arbitration agreements according to their terms.” Epic Sys. But its breadth is not unqualified. As relevant here, 1 of the Act provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. 1.1 In other words, it exempts two enumerated categories of workers—“seamen” and “railroad employees”—as well as what we will call the residual category—“any other class of workers engaged in foreign or interstate commerce.” The plaintiffs insist that they fall within this last category. To decide whether they are right, we must determine what membership in that category requires. 2 As with any question of statutory interpretation, our inquiry “begins with the text.” And the first thing we see in the text of the residual category is that the operative unit is a “class of workers.” So we know that in determining whether the exemption applies, the question is “not whether the individual worker actually engaged in interstate commerce, but whether the class of workers to which the complaining worker belonged engaged in interstate commerce.” That means that a member of the class qualifies for the exemption even if she does not personally “engage in interstate commerce.” By the same token, someone whose occupation is not defined by its engagement in interstate commerce does not qualify for the exemption just because she occasionally performs that kind of work. That immediately leads to the next question: What does it mean for a class of workers to be “engaged in interstate commerce”? The Supreme Court's decision in Circuit goes a long way toward providing an answer. In that case, the plaintiff argued that 1's residual category reached all employment contracts within Congress's commerce power—essentially, all employment contracts—leaving the FAA applicable only to commercial arbitration The Court rejected the proposition that the exemption was coterminous with Congress's authority to regulate employment contracts, holding instead that the residual clause applies only to the employment contracts of workers engaged in the movement of goods in interstate commerce. In reaching that result, the Court explained that the phrase “engaged in commerce” as used in 1 meant something narrower than “affecting commerce” or “involving commerce” as used in 2. While the latter two phrases evoke the full reach of Congress's commerce power, the phrase “engaged in commerce” has “a more limited reach,” referring *801 instead to “active employment” in interstate commerce. The narrower reading is confirmed by the presence of specific exemptions for “seamen” and “railroad workers,” the Court said, for if the residual category were a blanket exemption for all employment contracts, these specific exemptions would have been wholly unnecessary. Far from being superfluous, the enumerated categories play a key role in defining the scope of the residual clause, which should “be controlled and defined by reference to the enumerated categories of workers which are recited just before it.” That is to say, “[t]he wording of 1 calls for the application of the maxim of ejusdem generis,” The residual clause, then, exempts only workers who are akin to “seamen” and “railroad employees,” a category that the Court described as “transportation workers.” Circuit 532 U.S. 3 Both we and our sister circuits have repeatedly emphasized that transportation workers are those who are “actually engaged in the movement of goods in interstate commerce.” Int'l Brotherhood of Teamsters Local Union No. (quoting Circuit with 398 F.3d at (holding that furniture salespeople are not “transportation workers” even if they occasionally deliver furniture to out-of-state customers). Then, if such a class exists, we ask in turn whether the plaintiff is a member of it. Compare Kienstra with Sometimes that determination is easy to make—as it is for truckers who drive an interstate route. See, e.g., New 139 S. Ct. at Sometimes that determination is harder—as it is for truckers who drive an intrastate leg of an interstate route. See, e.g., Whether easy or hard, though, the inquiry is always focused on the worker's active engagement in the enterprise of moving goods across interstate lines. That is the inquiry that Circuit demands. 4 The plaintiffs in today's case, however, completely ignore the governing framework. Rather than focusing on whether they belong to a class of workers actively engaged in the movement of goods across interstate lines, the plaintiffs stress that they carry goods that have moved across state and even national lines. A package of potato chips, for instance, may travel across several states before landing in a meal prepared by a local restaurant and delivered by a Grubhub driver; likewise, a piece of dessert chocolate may have traveled all the way from Switzerland. The plaintiffs insist that delivering such goods brings their contracts with Grubhub within 1 of the FAA. As they see it, the residual exemption is not so much about what the worker does as about where the goods have been. 5 But to fall within the exemption, the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders. Put differently, a class of workers must themselves be “engaged in the channels of foreign or interstate commerce.” That, after all, is what it means to be a transportation worker who performs work analogous to that of seamen and railroad employees, whose occupations are centered on the transport of goods in interstate or foreign commerce. By erasing that requirement from the statute, the plaintiffs' interpretation would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport—for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy. That result would run afoul of the Court's instruction that the scope of the residual clause “be controlled and defined” by the work done by seamen and railroad workers, Circuit not to mention its admonition that 1 as a whole must be “afforded a narrow construction.” The plaintiffs try to support their position by emphasizing that the FAA only applies to written agreements to arbitrate contained within a “contract evidencing a transaction involving commerce.” 9 U.S.C. 2; see also New If they aren't “engaged in interstate commerce” for purposes of 1, the plaintiffs ask, then how can their employment agreements *803 “involv[e] commerce” for purposes of 2? To put it another way: either they are engaged in commerce, so their contracts are exempt from the FAA under 1, or they are not engaged in commerce, in which case their contracts are still exempt from the FAA under 2. But the provisions create this catch-22 only if “engaged in commerce” and “involving commerce” mean the same thing, and as we have already explained, the Supreme Court has squarely held that they do not. Circuit 532 U.S. To repeat, while 2 expands the FAA's reach to the full extent of Congress's commerce power, Allied-Bruce Terminix 1 carves out a narrow exception from the FAA for a small number of workers who otherwise would fall within 2's ambit. Circuit 532 U.S. –16, 118–19, There is therefore nothing remarkable about an employment contract failing to meet 1's more stringent “engaged in interstate commerce” requirement while still meeting the far broader “involving commerce” requirement of 2. And given the breadth of Congress's Commerce Clause power, there can be no doubt that the plaintiffs' employment contracts fall comfortably within 2. * * * Section 1 of the FAA carves out a narrow exception to the obligation of federal courts to enforce arbitration To show that they fall within this exception, the plaintiffs had to demonstrate that the interstate movement of goods is a central part of the job description of the class of workers to which they belong. They did not even try do that, so both district courts were right to conclude that the plaintiffs' contracts with Grubhub do not fall within 1 of the FAA. Accordingly, the judgments are AFFIRMED.

Walton v. EOS CCA

Deborah Walton sued EOS CCA, a debt collector, under the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. Walton argues that EOS violated the former by failing to contact the creditor directly to “obtain[ ] verification” of her debt and the latter by failing to investigate disputed information. The district court concluded that EOS had discharged its obligation under both statutes and entered summary judgment for EOS. We affirm the district court's judgment. I. In a letter dated October 11, 2014, AT & T notified Deborah Walton that she owed $268.47 on her closed AT & T account. It identified her account number as 119864170 and informed her that failure to pay the bill “may cause your account to be referred to an outside collection agency.” Walton did not pay the bill, and on January 27, 2015, she received a debt-collection letter from EOS CCA (“EOS”). The notice stated that she owed AT & T $268.47 and that payment was expected “unless [she] dispute[d] the debt.” Because of an error in the records AT & T sent EOS, the letter incorrectly identified Walton's AT & T account number as “864119170” when her actual account number is 119864170. AT & T had swapped the first three digits of Walton's account with the second three in the information it provided to EOS. Walton contacted EOS to dispute that the debt belonged to her. During a phone call with an EOS representative, Walton acknowledged that her name and mailing address in the debt notice were correct, but she falsely denied that the last four digits of her social security number matched those the representative gave her in an attempt to confirm her identity. Walton also wrote EOS a letter disputing the debt, in which she asserted: “I do not own [sic] AT & T any money under the account number listed above.” After investigating, EOS sent Walton a notice it characterized as “verification of your outstanding debt.” It told Walton that based on “a review of our records,” it had verified that her name, address, and the last four digits of her social security number matched the debt report it had received from AT & T. The verification letter also provided additional information about the amount of the debt: it stated a balance of $268.47 and specified that AT & T had not added interest or collection costs to the account. As it had in its initial notice to Walton, EOS listed her AT & T account number with the three swapped digits reflected in the records AT & T had sent it. *1027 EOS reported Walton's debt to two credit-reporting agencies, Experian and TransUnion. When it did so, it informed the agencies that the account was disputed. Walton wrote to Experian and TransUnion to dispute the debt, once in April and again in May. Each time, the agencies sent EOS a notice reflecting the complaint that Walton had registered. The first notice stated that Walton had insisted that the debt did not belong to her. This notice prompted EOS to double-check its own records, and it again concluded that Walton's name, address, and social security number matched the information it had received from AT & T. The second notice stated that Walton had asserted that EOS's debt-collection letter referred to account 864119170, when her correct account number was 119864170. After receiving this second notice, EOS asked Experian and TransUnion to delete Walton's debt record. Walton sued EOS, claiming that it violated (1) the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (2006), by not verifying her debt with the creditor, AT & T, and (2) the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. (2010), by not reasonably investigating the disputed information. She alleges that she lost income, suffered emotional distress, and incurred substantial attorney's fees as a result of these violations. A magistrate judge recommended that the district court enter summary judgment in favor of EOS, and the district court, overruling Walton's objections to the magistrate's report and recommendation, did so. II. 1 We begin with the FDCPA. Under that Act, if a consumer “notifies the debt collector in writing within the thirty-day period” that the consumer is disputing a debt notice, “the debt collector shall cease collection of the debt ... until the debt collector obtains verification of the debt ... and a copy of such verification or judgment ... is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b). The statute does not describe what it means to “obtain[ ] verification of the debt,” and the definition of “verification” does not cast much light on the problem before us. “Verification” is “the authentication of truth or accuracy by such means as facts, statements, citations, measurements, or attendant circumstances.” Webster's Third New International Dictionary 2543 (1961). The question here, however, is what the debt collector is supposed to be verifying. Walton argues that § 1692(g) is about the accuracy of the underlying debt; she insists that the provision obligated EOS to contact AT & T to confirm whether the account number was hers and thus whether she really owed AT & T the money. EOS maintains that § 1692(g) is about the accuracy of its collection notice; it argues that the provision required EOS to confirm only that its notice to Walton matched AT & T's description of the debt and debtor. 2 EOS is right. The Act's stated purpose is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). It is both sensible and consistent with that purpose to construe § 1692g(b) as requiring a debt collector to verify that its letters to the consumer accurately convey the information received from the creditor. The verification assures the consumer that the creditor actually made the demand the debt collector said it did and equips the consumer to evaluate the validity of the creditor's claim. It would be both burdensome and significantly beyond the Act's purpose to interpret *1028 § 1692g(b) as requiring a debt collector to undertake an investigation into whether the creditor is actually entitled to the money it seeks. Section 1692g(b) serves as a check on the debt-collection agency, not the creditor. We thus join other circuits in holding that the statute requires “nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed.” Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173–74 (9th Cir. 2006). With this in mind, EOS plainly satisfied § 1692g(b). It checked its records and confirmed that the Deborah Walton to whom it had sent a debt-collection letter was the same Deborah Walton identified by AT & T. It then mailed Walton a notice confirming that it had sent the demand for payment to the person AT & T identified and for the amount AT & T sought. The notice included AT & T's address, which served both to identify and provide contact information for the creditor. This verification armed Walton with the information she needed to “sufficiently dispute the payment obligation.” Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1004 (8th Cir. 2011); see also Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 784 (6th Cir. 2014). Indeed, that is precisely what Walton did. She used the data she received from EOS—in particular, the erroneous account number—to dispute her debt with Experian, TransUnion, and AT & T. And once she highlighted the precise source of her complaint—the account number—she succeeded in having the debt record deleted. III. 3 4 We turn next to the FCRA. Under that Act, when a credit-reporting agency notifies a debt collector of a disputed debt, the debt collector (called a “furnisher” under the statute) must “conduct an investigation with respect to the disputed information.” 15 U.S.C. § 1681s-2(b)(1)(A). Whether the furnisher's investigation is reasonable is a factual inquiry, but “summary judgment is proper if the reasonableness of the defendant's procedures is beyond question.” Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005). EOS's investigation was unquestionably reasonable. When EOS first heard from the credit-reporting agency, the report stated solely that Walton claimed the account did not belong to her. Based on this scant report, EOS conducted a reasonable investigation by verifying Walton's personal information with her EOS file on record. See id. After receiving the second credit-reporting agency notice, EOS learned that Walton challenged the accuracy of the account number associated with the debt. EOS responded to this information by asking the credit agencies to delete the adverse credit report. And they did. Nothing more was required of EOS. IV. Walton's remaining arguments are also unpersuasive. She contends that EOS made false or misleading representations that violated both the FDCPA and the FCRA. The former requires debt collectors who communicate to a credit-reporting agency to report if a debt is disputed, 15 U.S.C. § 1692e(8), and the latter prohibits debt collectors from furnishing information to consumer reporting agencies if they know or have “reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). EOS argues that we should not reach either issue because Walton did not raise either issue in her objection to the magistrate judge's report, see Willis v. Caterpillar Inc., 199 F.3d 902, 904–05 (7th Cir. 1999). Even if these arguments were not waived, they fail for two reasons. First, EOS presented undisputed evidence that it did report the *1029 debt as disputed, thereby complying with both Acts' provisions in §§ 1692e(8) and 1681s-2(a)(1)(A). Second, the FCRA does not provide a private right of action for violations of § 1681s-2(a)(1)(A). See 15 U.S.C. § 1681s-2(c); Purcell v. Bank of America, 659 F.3d 622, 623 (7th Cir. 2011). 5 6 Finally, Walton brings two procedural challenges. She first objects to the consolidated briefing for cross-motions for summary judgment and argues the magistrate judge erred in denying her motion to strike EOS's combined motion and response. Permitting consolidated briefing on cross-motions for summary judgment is well within the judge's discretion. As for Walton's second procedural challenge, she complains that the district court, in considering her objections to the magistrate's report and recommendation, stated that “[Ms. Walton] does not cite any specific content in the ten pages of that exhibit and develops no arguments therefrom. She does not specify any error in the Report that these excerpts identify.” Walton maintains that the district court's statement runs afoul of Johnson v. Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir. 1999), where we interpreted “Rule 72(b)’s requirement of specific, written objection [to a magistrate's report] to require a litigant to specify each issue for which review is sought and not the factual or legal basis of the objection.” Walton has taken the district court's statement out of context. The district court made a descriptive observation about Walton's objection to the exhibit in question, but it did not penalize Walton for her failure to develop a factual or legal argument. On the contrary, the district court clearly reviewed each of Walton's objections to the report under the proper de novo standard, 28 U.S.C. § 636(b)(1). Walton's objection is meritless. For the foregoing reasons, the judgment of the district court is

Barrett

majority

Deborah Walton sued EOS CCA, a debt collector, under the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. Walton argues that EOS violated the former by failing to contact the creditor directly to “obtain[ ] verification” of her debt and the latter by failing to investigate disputed information. The district court concluded that EOS had discharged its obligation under both statutes and entered summary judgment for EOS. We affirm the district court's judgment. I. In a letter dated October 11, 2014, AT & T notified Deborah Walton that she owed $268.47 on her closed AT & T account. It identified her account number as 119864170 and informed her that failure to pay the bill “may cause your account to be referred to an outside collection agency.” Walton did not pay the bill, and on January 27, 2015, she received a debt-collection letter from EOS CCA (“EOS”). The notice stated that she owed AT & T $268.47 and that payment was expected “unless [she] dispute[d] the debt.” Because of an error in the records AT & T sent EOS, the letter incorrectly identified Walton's AT & T account number as “864119170” when her actual account number is 119864170. AT & T had swapped the first three digits of Walton's account with the second three in the information it provided to EOS. Walton contacted EOS to dispute that the debt belonged to her. During a phone call with an EOS representative, Walton acknowledged that her name and mailing address in the debt notice were correct, but she falsely denied that the last four digits of her social security number matched those the representative gave her in an attempt to confirm her identity. Walton also wrote EOS a letter disputing the debt, in which she asserted: “I do not own [sic] AT & T any money under the account number listed above.” After investigating, EOS sent Walton a notice it characterized as “verification of your outstanding debt.” It told Walton that based on “a review of our records,” it had verified that her name, address, and the last four digits of her social security number matched the debt report it had received from AT & T. The verification letter also provided additional information about the amount of the debt: it stated a balance of $268.47 and specified that AT & T had not added interest or collection costs to the account. As it had in its initial notice to Walton, EOS listed her AT & T account number with the three swapped digits reflected in the records AT & T had sent it. *1027 EOS reported Walton's debt to two credit-reporting agencies, Experian and TransUnion. When it did so, it informed the agencies that the account was disputed. Walton wrote to Experian and TransUnion to dispute the debt, once in April and again in May. Each time, the agencies sent EOS a notice reflecting the complaint that Walton had registered. The first notice stated that Walton had insisted that the debt did not belong to her. This notice prompted EOS to double-check its own records, and it again concluded that Walton's name, address, and social security number matched the information it had received from AT & T. The second notice stated that Walton had asserted that EOS's debt-collection letter referred to account 864119170, when her correct account number was 119864170. After receiving this second notice, EOS asked Experian and TransUnion to delete Walton's debt record. Walton sued EOS, claiming that it violated (1) the Fair Debt Collection Practices Act (FDCPA), et seq. by not verifying her debt with the creditor, AT & T, and (2) the Fair Credit Reporting Act (FCRA), et seq. (2010), by not reasonably investigating the disputed information. She alleges that she lost income, suffered emotional distress, and incurred substantial attorney's fees as a result of these violations. A magistrate judge recommended that the district court enter summary judgment in favor of EOS, and the district court, overruling Walton's objections to the magistrate's report and recommendation, did so. II. 1 We begin with the FDCPA. Under that Act, if a consumer “notifies the debt collector in writing within the thirty-day period” that the consumer is disputing a debt notice, “the debt collector shall cease collection of the debt until the debt collector obtains verification of the debt and a copy of such verification or judgment is mailed to the consumer by the debt collector.” g(b). The statute does not describe what it means to “obtain[ ] verification of the debt,” and the definition of “verification” does not cast much light on the problem before us. “Verification” is “the authentication of truth or accuracy by such means as facts, statements, citations, measurements, or attendant circumstances.” Webster's Third New International Dictionary 2543 (1961). The question here, however, is what the debt collector is supposed to be verifying. Walton argues that 1692(g) is about the accuracy of the underlying debt; she insists that the provision obligated EOS to contact AT & T to confirm whether the account number was hers and thus whether she really owed AT & T the money. EOS maintains that 1692(g) is about the accuracy of its collection notice; it argues that the provision required EOS to confirm only that its notice to Walton matched AT & T's description of the debt and debtor. 2 EOS is right. The Act's stated purpose is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” (e). It is both sensible and consistent with that purpose to construe 1692g(b) as requiring a debt collector to verify that its letters to the consumer accurately convey the information received from the creditor. The verification assures the consumer that the creditor actually made the demand the debt collector said it did and equips the consumer to evaluate the validity of the creditor's claim. It would be both burdensome and significantly beyond the Act's purpose to interpret *1028 1692g(b) as requiring a debt collector to undertake an investigation into whether the creditor is actually entitled to the money it seeks. Section 1692g(b) serves as a check on the debt-collection agency, not the creditor. We thus join other circuits in holding that the statute requires “nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed.” ; With this in mind, EOS plainly satisfied 1692g(b). It checked its records and confirmed that the Deborah Walton to whom it had sent a debt-collection letter was the same Deborah Walton identified by AT & T. It then mailed Walton a notice confirming that it had sent the demand for payment to the person AT & T identified and for the amount AT & T sought. The notice included AT & T's address, which served both to identify and provide contact information for the creditor. This verification armed Walton with the information she needed to “sufficiently dispute the payment obligation.” ; see also Indeed, that is precisely what Walton d She used the data she received from EOS—in particular, the erroneous account number—to dispute her debt with Experian, TransUnion, and AT & T. And once she highlighted the precise source of her complaint—the account number—she succeeded in having the debt record deleted. III. 3 4 We turn next to the FCRA. Under that Act, when a credit-reporting agency notifies a debt collector of a disputed debt, the debt collector (called a “furnisher” under the statute) must “conduct an investigation with respect to the disputed information.” s-2(b)(1)(A). Whether the furnisher's investigation is reasonable is a factual inquiry, but “summary judgment is proper if the reasonableness of the defendant's procedures is beyond question.” EOS's investigation was unquestionably reasonable. When EOS first heard from the credit-reporting agency, the report stated solely that Walton claimed the account did not belong to her. Based on this scant report, EOS conducted a reasonable investigation by verifying Walton's personal information with her EOS file on record. See After receiving the second credit-reporting agency notice, EOS learned that Walton challenged the accuracy of the account number associated with the debt. EOS responded to this information by asking the credit agencies to delete the adverse credit report. And they d Nothing more was required of EOS. IV. Walton's remaining arguments are also unpersuasive. She contends that EOS made false or misleading representations that violated both the FDCPA and the FCRA. The former requires debt collectors who communicate to a credit-reporting agency to report if a debt is disputed, e(8), and the latter prohibits debt collectors from furnishing information to consumer reporting agencies if they know or have “reasonable cause to believe that the information is inaccurate.” s-2(a)(1)(A). EOS argues that we should not reach either issue because Walton did not raise either issue in her objection to the magistrate judge's report, see Even if these arguments were not waived, they fail for two reasons. First, EOS presented undisputed evidence that it did report the *1029 debt as disputed, thereby complying with both Acts' provisions in 1692e(8) and 1681s-2(a)(1)(A). Second, the FCRA does not provide a private right of action for violations of 1681s-2(a)(1)(A). See s-2(c); 5 6 Finally, Walton brings two procedural challenges. She first objects to the consolidated briefing for cross-motions for summary judgment and argues the magistrate judge erred in denying her motion to strike EOS's combined motion and response. Permitting consolidated briefing on cross-motions for summary judgment is well within the judge's discretion. As for Walton's second procedural challenge, she complains that the district court, in considering her objections to the magistrate's report and recommendation, stated that “[Ms. Walton] does not cite any specific content in the ten pages of that exhibit and develops no arguments therefrom. She does not specify any error in the Report that these excerpts identify.” Walton maintains that the district court's statement runs afoul of where we interpreted “Rule 72(b)’s requirement of specific, written objection [to a magistrate's report] to require a litigant to specify each issue for which review is sought and not the factual or legal basis of the objection.” Walton has taken the district court's statement out of context. The district court made a descriptive observation about Walton's objection to the exhibit in question, but it did not penalize Walton for her failure to develop a factual or legal argument. On the contrary, the district court clearly reviewed each of Walton's objections to the report under the proper de novo standard, 28 U.S.C. 636(b)(1). Walton's objection is meritless. For the foregoing reasons, the judgment of the district court is

Webb v. Financial Industry Regulatory Authority, Inc.

The parties cast this case as one about arbitral immunity, which is the ground on which the district court dismissed the complaint. It turns out, however, that the case is really about federal jurisdiction. We asked the parties to submit supplemental briefs on this question, and they both contend that subject matter jurisdiction exists. Their strongest argument is grounded in the diversity statute, but the amount in controversy requirement presents an obstacle: the complaint satisfies it only if Illinois law permits the plaintiffs to recover their legal expenses from the underlying arbitration, this suit, or both. We conclude that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances are not present here. I. In October 2013, brokers Nicholas Webb and Thad Beversdorf were fired by their employer, Jefferies & Company, Inc. (“Jefferies”). They decided to challenge their termination, and, as their employment contracts with Jefferies demanded, they filed their claims in the Financial Industry Regulatory Authority's (“FINRA”) arbitration forum. FINRA required them to sign an “Arbitration Submission Agreement,” *856 which they did, and their dispute with Jefferies proceeded in arbitration for the next two-and-a-half years. They withdrew their claims before a final decision was rendered. Under FINRA's rules, that withdrawal constituted a dismissal with prejudice. After the arbitration failed, Webb and Beversdorf sued FINRA in the Circuit Court of Cook County, Illinois, alleging that FINRA breached its contract to arbitrate their dispute with Jefferies. They faulted FINRA for a number of things, including failing to properly train arbitrators, failing to provide arbitrators with appropriate procedural mechanisms, interfering with the arbitrators’ discretion, and failing to permit reasonable discovery. They sought damages “in an amount in excess of $50,000” and a declaratory judgment identifying specified flaws in FINRA's Code of Arbitration Procedure. FINRA removed the dispute to federal court, where it moved to dismiss on multiple grounds, including arbitral immunity. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. Webb and Beversdorf appeal this judgment. II. 1 Neither side has raised a jurisdictional challenge, but we have an independent obligation to determine whether we have authority to resolve this dispute. Smith v. American Gen. Life & Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir. 2003) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ). At oral argument, we ordered the parties to submit supplemental briefs on this issue. Both sides argue that diversity jurisdiction exists, and FINRA argues that federal question jurisdiction exists as well. Because the argument for diversity is the stronger of the two, we begin there. The diversity statute, 28 U.S.C. § 1332, grants jurisdiction when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. Complete diversity is not a problem: Webb and Beversdorf are citizens of Illinois and FINRA is a Delaware corporation with its principal place of business in Washington, D.C. Identifying the amount in controversy is more complicated. 2 After it removed the case to federal court, FINRA initially claimed that the amount in controversy was satisfied because Webb and Beversdorf sought more than $1,000,000 from Jefferies. The district court properly rejected this argument, because we have held that the amount at stake in an underlying arbitration does not count toward the amount in controversy in a suit between a party to the arbitration and the arbitrator. Caudle v. American Arbitration Ass'n, 230 F.3d 920, 922–23 (7th Cir. 2000). Jurisdiction turns on what is at stake between the parties to this suit—Webb and Beversdorf, the plaintiffs, and FINRA, the defendant. Webb and Beversdorf paid FINRA $1800 at the start of the arbitration; if that is all they lost, the amount in controversy is obviously far short of the jurisdictional mark. They also, however, seek to recover the legal fees that they incurred both in the course of arbitrating against Jefferies and in preparing this lawsuit against FINRA.1 Webb and Beversdorf say that these fees—which exceed $75,000—were a *857 reasonably foreseeable consequence of FINRA's breach of the Arbitration Submission Agreement. See 24 Williston on Contracts § 64.12 (4th ed. 2017) (“Consequential damages ... include those damages that ... were reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of a breach.”). The district court accepted this argument and concluded that it had authority to adjudicate the suit. 3 Legal fees may count toward the amount in controversy if the plaintiff has a right to them “based on contract, statute, or other legal authority.” Ross v. Inter-Ocean Ins. Co., 693 F.2d 659, 661 (7th Cir. 1982), abrogated on other grounds by Hart v. Schering-Plough Corp., 253 F.3d 272, 274 (7th Cir. 2001). Webb and Beversdorf do not contend that FINRA assumed a contractual obligation to cover either the fees that they incurred in arbitration or those that they incurred in this lawsuit. That leaves statute or other authority. The parties agree that Illinois law governs, so we look there to determine whether Webb and Beversdorf could plausibly recover any of these legal fees as damages. 4 5 6 It is clear that Webb and Beversdorf cannot recover the money spent preparing to litigate against FINRA. Illinois generally adheres to the American Rule that each party bears its own litigation costs. Duignan v. Lincoln Towers Ins. Agency, Inc., 282 Ill.App.3d 262, 217 Ill.Dec. 519, 667 N.E.2d 608, 613 (1996). Its common law does not authorize a prevailing party to recover attorneys’ fees from an opponent. Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41, 43 (1943); see also Keefe-Shea Joint Venture v. City of Evanston, 364 Ill.App.3d 48, 300 Ill.Dec. 800, 845 N.E.2d 689, 702 (2005). Any right to recovery must derive from contract or statute, Ritter, 46 N.E.2d at 43; Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 839 (7th Cir. 2010), and Webb and Beversdorf have not identified any contractual or statutory provision giving them that right. They are thus stuck with the longstanding rule that they must bear their own litigation expenses in this suit against FINRA, even if they ultimately win. 7 But Webb and Beversdorf do not just seek recovery of the legal fees they have incurred litigating against FINRA; they also seek recovery of the legal fees they incurred arbitrating against Jefferies. This is a more plausible ground for recovery, because Illinois recognizes a “third party litigation exception” to the American Rule. The Illinois Supreme Court has held that “where the wrongful acts of a defendant involve the plaintiff in litigation with third parties or place him in such relation with others as to make it necessary to incur expense to protect his interest, the plaintiff can then recover damages against such wrongdoer, measured by the reasonable expenses of such litigation, including attorney fees.” Ritter, 46 N.E.2d at 44; see also Restatement (Second) of Torts § 914 (“One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees, and other expenditures thereby suffered or incurred in the earlier action.”). While the exception arises more frequently in the context of torts than contracts, we assume that Illinois courts would recognize it in the latter context as well. See Colvin v. Monticello Communications, Inc., No. 91 C 2498, 1994 WL 113051, at *8–9 (N.D. Ill. Apr. 1, 1994) (allowing the recovery of legal fees when the defendant's breach of contract placed the plaintiff in litigation with a third party); *858 see also City of Cedarburg Light & Water Comm'n v. Glen Falls Ins. Co., 42 Wis.2d 120, 166 N.W.2d 165, 168 (1969) (“[A] breach of contract as well as tort may be a basis for allowing the present plaintiff to recover reasonable third party litigation expenses.”). FINRA—whose desire to be in federal court has motivated it to argue vigorously for a proposition otherwise against its interest—also insists that the “third party litigation exception” to the American Rule applies here and could obligate it to pay for Webb and Beversdorf's legal expenses if it breached the arbitration agreement. Webb and Beversdorf's effort to recover expenses incurred in an arbitration proceeding begun for its own purposes—to assert a wrongful termination claim against Jefferies—distinguishes this case from those in which Illinois courts have applied the exception. Illinois courts have not applied the exception when the defendant caused the legal fees to increase in an already existing third-party suit; they have applied it when the defendant caused the third-party suit in the first place. The Illinois courts have invariably described the exception as applying when the defendant's wrong forced the plaintiff into litigation with a third party. See, e.g., Ritter, 46 N.E.2d at 44 (holding that the exception applies “where the natural and proximate consequences of a wrongful act have been to involve the plaintiff in litigation with others” (emphasis added) ); Philpot v. Taylor, 75 Ill. 309, 311 (Ill. 1874) (applying exception where the consequence of the defendant's wrongful act “has been to plunge the plaintiff into a chancery suit” (emphasis added) ); see also Champion Parts, Inc. v. Oppenheimer & Co., 878 F.2d 1003, 1006 (7th Cir. 1989) (noting that the plaintiff can recover attorneys’ fees if “one consequence of the tortfeasor's actions is to involve a person in litigation with others” (emphasis added) ). For example, Illinois courts have permitted plaintiffs to recover legal fees spent settling with an insurance company when the defendant wrongfully caused the company to cancel the plaintiff's policy, Duignan, 217 Ill.Dec. 519, 667 N.E.2d at 613; obtaining refunds of tax penalties that were assessed on the plaintiff due to the defendant's negligence, Sorenson v. Fio Rito, 90 Ill.App.3d 368, 45 Ill.Dec. 714, 413 N.E.2d 47, 52 (1980); and filing a second divorce petition when the defendant's legal malpractice resulted in the dismissal of the plaintiff's first petition, Nettleton v. Stogsdill, 387 Ill.App.3d 743, 326 Ill.Dec. 601, 899 N.E.2d 1252, 1259 (2008). In all of these instances, the third-party litigation existed because of the defendant's alleged wrong.2 And when *859 the party seeking the recovery of fees was the plaintiff in the third-party litigation, as Webb and Beversdorf were here, the third-party litigation has been undertaken to “cure the damage caused by the defendant.” Duignan, 217 Ill.Dec. 519, 667 N.E.2d at 613. 8 Webb and Beversdorf did not undertake the arbitration to cure FINRA's breach of contract; they undertook it to resolve an employment dispute with Jefferies. FINRA's alleged breach of the arbitration agreement did not force Webb and Beversdorf into arbitration; it allegedly increased the costs of arbitration they had already begun. The straight-forward causal connection that justified application of the third-party litigation exception in other cases is not present in this suit. Even, then, if FINRA breached its contract with Webb and Beversdorf, that breach would not alleviate Webb and Beversdorf's obligation to shoulder the legal costs associated with their decision to pursue a wrongful termination claim against Jefferies. See Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“In the United States, parties are ordinarily required to bear their own attorney's fees....”). Illinois courts have consistently described and applied the exception in a way that precludes its application here.3 9 10 When a defendant removes to federal court, as FINRA did here, its plausible and good faith estimate of the amount in controversy establishes jurisdiction unless it is a “legal certainty” that the plaintiffs’ claim is for less than the requisite amount. St. Paul Mercury Indem. Co., 303 U.S. at 288–89, 58 S.Ct. 586; Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 579 (7th Cir. 2017). Here, Illinois law makes it a “legal certainty” that Webb and Beversdorf's claim is for less than the requisite amount.4 Diversity jurisdiction does not exist. *860 III. Webb and Beversdorf leave it at diversity, but FINRA makes an additional argument for federal question jurisdiction.5 According to FINRA, this dispute is one of the rare state-law causes of action that gives rise to federal question jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); see also Merrill Lynch, Pierce, Fenner & Smith v. Manning, ––– U.S. ––––, 136 S.Ct. 1562, 1566, 194 L.Ed.2d 671 (2016) (holding that the Grable & Sons test determines the reach of “arising under” jurisdiction for purposes of the jurisdictional grant in the Securities Exchange Act of 1934).6 Its theory is that the presence of an issue of federal securities law transforms this state-law contract claim into one arising under federal law. 11 Under Grable & Sons, a state-law claim may satisfy the “arising under” jurisdictional test if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in a federal court without disrupting the federal-state balance. Gunn v. Minton, 568 U.S. 251, 258, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (citing Grable & Sons, 545 U.S. at 314, 125 S.Ct. 2363); see also Evergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 776 F.3d 463, 466 (7th Cir. 2015). Federal jurisdiction is rarely established on this basis. Hartland Lakeside Joint No. 3 School Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1033 (7th Cir. 2014). For a state-law claim to arise under a federal securities claim, an issue of federal law must be the “cornerstone” of the plaintiff's complaint. Manning, 136 S.Ct. at 1569. 12 This dispute does not make it past the first factor of the Grable & Sons test. FINRA contends that because the plaintiffs’ suit implicates FINRA's SEC-approved Code of Arbitration Procedure, this case requires us to decide whether FINRA breached a duty it owed Webb and Beversdorf under the securities laws. But FINRA fails to identify a single provision of federal law that we would have to interpret to resolve this case. The question is whether FINRA breached its arbitration agreement, and no “inescapable” provision of federal law drives that analysis. Hartland, 756 F.3d at 1035. To be sure, FINRA is regulated by the SEC, and its duties under the federal securities laws might come up. But that does not make federal law the “cornerstone” of the plaintiff's complaint. Manning, 136 S.Ct. at 1569. The Supreme Court has emphasized that a “federal role” is not enough. Id. *861 As for the rest of the Grable & Sons test, an issue not raised cannot be actually disputed or substantial, and without any federal question necessarily in play, we need not consider how taking the question would affect the federal-state balance. This is a state-law contract claim, and FINRA's effort to pull it within federal question jurisdiction fails. IV. We VACATE the judgment for lack of jurisdiction and REMAND the case to the district court with instructions to remand to state court. Ripple, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that federal question jurisdiction is lacking. However, I reach a different conclusion with respect to diversity jurisdiction. Specifically, I cannot agree that we know, to a “legal certainty,” that Messrs. Webb and Beversdorf cannot recover the damages that they allege, including the attorneys’ fees expended in the earlier arbitration. A defendant seeking removal of a state action to federal court must file a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” As the Supreme Court explained in Dart Cherokee Basin Operating Co., “Congress, by borrowing the familiar ‘short and plain statement’ standard from Rule 8(a), intended to ‘simplify the “pleading” requirements for removal’ and to clarify that courts should ‘apply the same liberal rules [to removal allegations] that are applied to other matters of pleading.’ ” Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 578 (7th Cir. 2017) (alteration in original) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, ––– U.S. ––––, 135 S.Ct. 547, 553, 190 L.Ed.2d 495 (2014) ). Therefore, “[j]ust as we generally accept the plaintiff's good-faith allegations of the amount in controversy to establish diversity jurisdiction, ‘when a defendant seeks federal-court adjudication, the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.’ ” Id. at 579 (footnote omitted) (quoting Dart Cherokee Basin Operating Co., 135 S.Ct. at 553). “Once this has been done, and supported by proof of any contested jurisdictional facts, the presumption is the one stated in St. Paul Mercury [Indemnity Co v. Red Cab Co., 303 U.S. 283, 291, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ]: the estimate of the dispute's stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible.” Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). We also have observed that the legal certainty test sets a high bar for excluding federal subject matter jurisdiction “for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to determine if jurisdiction exists.” Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011). Thus, typical examples of claims considered “ ‘legally impossible’ for jurisdictional purposes” involve “statutory or contractual cap[s] on damages.” Id. With this principle in mind, we must turn to Illinois state law. Here, it is important not to get off on the wrong foot by how we characterize this action. It is not an attorneys’ fees action; it is a damages action based on the breach of a contract. This distinction is very important. Illinois normally would not allow the recoupment of attorneys’ fees for success in maintaining *862 the present action. It does recognize, however, that attorneys’ fees incurred in an earlier action can be a measure of damages for an individual's misfeasance in that earlier action. See Duignan v. Lincoln Towers Ins. Agency, 282 Ill.App.3d 262, 217 Ill.Dec. 519, 667 N.E.2d 608, 613 (1996). The Illinois appellate court explained the principles underlying this rule, and demonstrated their application, in Sorenson v. Fio Rito, 90 Ill.App.3d 368, 45 Ill.Dec. 714, 413 N.E.2d 47 (1980). In Sorenson, a widow had retained an attorney, Fio Rito, to handle her husband's estate. Rather than attending to it, however, the attorney let it languish in his office; taxes went unpaid, and tax authorities imposed penalties. Sorenson then retained a new attorney to handle the estate, and through that attorney's unsuccessful attempts to obtain refunds of penalties and interest, she incurred attorneys’ fees. See id., 45 Ill.Dec. 714, 413 N.E.2d at 50. Sorenson then brought an action against the first attorney, Fio Rito, for damages. Among the damages that she claimed were fees paid to her second attorney for challenging the penalties. The trial court ruled that Sorenson could recover these damages from Fio Rito. Fio Rito maintained in the state appellate court that the American Rule, which generally precludes a plaintiff from recovering attorneys’ fees expended to bring a lawsuit against a wrongdoer, foreclosed such damages. See id., 45 Ill.Dec. 714, 413 N.E.2d at 51. The appellate court disagreed. It explained that Fio Rito was “confus[ing] the exception with the general rule. The general rule in Illinois is that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act.” Id. The American Rule governing attorneys’ fees limited this general rule, but only in situations “where a successful litigant seeks to recover his costs in maintaining the lawsuit”; it was not “intended to preclude a plaintiff from recovering losses directly caused by the defendant's conduct simply because those losses happen to take the form of attorneys’ fees.” Id., 45 Ill.Dec. 714, 413 N.E.2d at 51–52. Applying these principles to Sorenson's claim, the court stated: The plaintiff here is not attempting to recover the attorneys’ fees she expended in bringing this lawsuit. Rather, she seeks to recover losses incurred in trying to obtain refunds of tax penalties which were assessed against her solely as a result of the defendant's negligence. Had the plaintiff been forced to hire an accountant to repair the damage caused by the defendant's conduct, she would undoubtedly have been entitled to recover the accountant's fee as an ordinary element of damages. There is no basis in logic for denying recovery of the same type of loss merely because the plaintiff required an attorney instead of an accountant to correct the situation caused by the defendant's neglect. In holding the defendant liable for the plaintiff's losses, we are not violating the policy against “penalizing” a litigant for defending a lawsuit. We are simply following the general rule of requiring a wrongdoer to bear the consequences of his misconduct. Id., 45 Ill.Dec. 714, 413 N.E.2d at 52. The facts of our case are different. Here, the plaintiffs are demanding that the arbitrator in the underlying matter reimburse them for the attorney fees that they incurred because of the arbitrator's alleged lapse. The principle nevertheless remains the same. As the majority notes, most cases addressing the recovery of attorneys’ fees involve situations in which “the defendant's wrong forced the plaintiff into litigation with a third party”—“when the defendant *863 caused the third-party suit” as opposed to simply “caus[ing] the legal fees to increase in an already existing third-party suit.” See Majority Opinion 858 (collecting cases). However, the frequent occurrence of a fact pattern does not impose an analytical limitation on a principle unless some animating component of that principle limits application to the particular fact pattern. Here, the majority points to no such consideration. Nor does Illinois case law suggest any such limitation. Indeed, a colleague on the district court has written that it demonstrates the opposite. In Certain Underwriters at Lloyd's, London v. Johnson & Bell, Ltd., No. 10 C 7151, 2011 WL 3757179 (N.D. Ill Aug. 25, 2011), the underwriters had hired Johnson & Bell to analyze their coverage responsibilities in two lawsuits and “to prepare and file complaints for declaratory judgment as necessary in connection with both suits.” Id. at *1. The underwriters later brought an action in federal court asserting state law malpractice claims against Johnson & Bell related to its representation in the two earlier actions. Specifically, the underwriters alleged that it incurred unnecessary attorneys’ fees based on Johnson & Bell's handling of two underlying actions, the Lewis action and the Zarndt action. One of Johnson & Bell's alleged missteps was providing negligent advice to the underwriters that they had a duty to provide representation in the Lewis lawsuit. With respect to those fees, the underwriters contended that “it would not have undertaken its representation of the defendants in the underlying Lewis lawsuit but for defendants’ advice.” Id. at *5. The underwriters did not make an equivalent claim with respect to the Zarndt action. A separate failure, however, was that Johnson & Bell negligently had failed to name a necessary party in both the Zarndt and Lewis actions. Consequently, they had to hire replacement counsel in those lawsuits and to incur unnecessary attorneys’ fees to correct the errors. Relying on Sorenson and other Illinois cases, the district court held that Illinois law did not bar the underwriters’ claims: “Defendants’ omission of FCC as a defendant in the ... declaratory judgment actions allegedly necessitated correction of the pleadings at a fixed cost to plaintiff. At the time the fees were incurred, it was clear that the fees were directly attributable to counsel's neglect.” Id. at *7 (citing Sorenson, 45 Ill.Dec. 714, 413 N.E.2d at 52). The court saw no analytical significance to the fact that the underwriters had incurred the fees in existing litigation, rather than incurred in a separate lawsuit. Moreover, the court made no distinction between fees incurred in the Lewis action, which would not have been undertaken absent Johnson & Bell's negligence, and those incurred in the Zarndt action, the defense of which the underwriters did not challenge. Here, Messrs. Webb and Beversdorf do not seek damages from FINRA in the form of attorneys’ fees expended in this action. Instead, they seek damages from FINRA that include the expenditure of attorneys’ fees in the underlying arbitration. They claim that these damages are “the direct result” of FINRA's failure to create fair procedures and of FINRA's interference in the arbitral process.1 Illinois law does not preclude a plaintiff from “recovering losses directly caused by the defendant's conduct simply because those losses happen to take the form of attorneys’ fees.” Sorenson, 45 Ill.Dec. 714, 413 N.E.2d at 52. Moreover, the court inquired, and plaintiffs’ counsel represented on the record, that the fees paid to FINRA and to arbitral counsel exceeded $75,000.2 See *864 Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006) (finding that plaintiff's counsel's settlement demand could support a finding that the amount in controversy had been satisfied); cf. Workman v. United Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir. 2000) (observing that a plaintiff's refusal to stipulate that his claim is less than $75,000 raises an inference that he believes his claim is worth more). Consequently, the district court properly determined that the amount in controversy was not in question. As noted at the outset of this separate opinion, we have said, straightforwardly and firmly, that “[t]he legal-certainty test sets the bar high for excluding federal subject-matter jurisdiction, and for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to determine if jurisdiction exists.” Carroll, 658 F.3d at 681. This rule, rooted in the long-standing jurisprudence of the Supreme Court, see St. Paul Mercury Indem. Co., 303 U.S. at 289, 58 S.Ct. 586, is followed faithfully throughout the Country, see, e.g., Colavito v. New York Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006). When the applicable state law definitively precludes recovery of the jurisdictional amount, we have not hesitated to say that the federal court is without jurisdiction. See, e.g., Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 317–18 (7th Cir. 1996). However, when state law is “unsettled,” we will not engage in guesswork to resolve the issue of state law prematurely. Geschke v. Air Force Ass'n, 425 F.3d 337, 341 (7th Cir. 2005).3 Here, the majority opinion, quite admittedly, see Majority Opinion 859, engages in such guesswork. Frankly admitting that it cannot say with any certainty how Illinois courts would resolve the plaintiffs’ substantive claims, it ignores the court's teaching in Geschke. Taking a guess on the content of state law, it denies the defendants their rightful federal forum. In doing so, it effectively chides the district court for having followed the established law of the circuit and tells future district courts to ignore Geschke and to follow its example today of becoming bogged down in reading “tea leaves” on the content of state law. It departs from the established practice of accepting jurisdiction and of confronting the content of state law by later employing other federal practice devices that are far better suited to addressing, sometimes with the help of the state court, the intractable problems inherent in the “Erie guess.”4 See, e.g., Colavito, 438 F.3d at 231-35 (deciding the jurisdictional amount issue and then determining through motions for summary judgment, for dismissal for failure to state a claim, and by certification whether the plaintiff could state a viable cause of action). Because I believe that the district court followed established practice, grounded in well-settled case law across the Nation, I respectfully dissent from the dismissal for want of subject matter jurisdiction.

Barrett

majority

The parties cast this case as one about arbitral immunity, which is the ground on which the district court dismissed the complaint. It turns out, however, that the case is really about federal jurisdiction. We asked the parties to submit supplemental briefs on this question, and they both contend that subject matter jurisdiction exists. Their strongest argument is grounded in the diversity statute, but the amount in controversy requirement presents an obstacle: the complaint satisfies it only if Illinois law permits the plaintiffs to recover their legal expenses from the underlying arbitration, this suit, or both. We conclude that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances are not present here. I. In October brokers Nicholas Webb and Thad Beversdorf were fired by their employer, Jefferies & Company, Inc. (“Jefferies”). They decided to challenge their termination, and, as their employment contracts with Jefferies demanded, they filed their claims in the Financial Industry Regulatory Authority's (“FINRA”) arbitration forum. FINRA required them to sign an “Arbitration Submission Agreement,” *856 which they did, and their dispute with Jefferies proceeded in arbitration for the next two-and-a-half years. They withdrew their claims before a final decision was rendered. Under FINRA's rules, that withdrawal constituted a dismissal with prejudice. After the arbitration failed, Webb and Beversdorf sued FINRA in the Circuit Court of Cook County, Illinois, alleging that FINRA breached its contract to arbitrate their dispute with Jefferies. They faulted FINRA for a number of things, including failing to properly train arbitrators, failing to provide arbitrators with appropriate procedural mechanisms, interfering with the arbitrators’ discretion, and failing to permit reasonable discovery. They sought damages “in an amount in excess of $50,000” and a declaratory judgment identifying specified flaws in FINRA's Code of Arbitration Procedure. FINRA removed the dispute to federal court, where it moved to dismiss on multiple grounds, including arbitral immunity. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. Webb and Beversdorf appeal this judgment. II. 1 Neither side has raised a jurisdictional challenge, but we have an independent obligation to determine whether we have authority to resolve this dispute. At oral argument, we ordered the parties to submit supplemental briefs on this issue. Both sides argue that diversity jurisdiction exists, and FINRA argues that federal question jurisdiction exists as well. Because the argument for diversity is the stronger of the two, we begin there. The diversity statute, grants jurisdiction when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. Complete diversity is not a problem: Webb and Beversdorf are citizens of Illinois and FINRA is a Delaware corporation with its principal place of business in Washington, D.C. Identifying the amount in controversy is more complicated. 2 After it removed the case to federal court, FINRA initially claimed that the amount in controversy was satisfied because Webb and Beversdorf sought more than $1,000,000 from Jefferies. The district court properly rejected this argument, because we have held that the amount at stake in an underlying arbitration does not count toward the amount in controversy in a suit between a party to the arbitration and the arbitrator. Jurisdiction turns on what is at stake between the parties to this suit—Webb and Beversdorf, the plaintiffs, and FINRA, the defendant. Webb and Beversdorf paid FINRA $1800 at the start of the arbitration; if that is all they lost, the amount in controversy is obviously far short of the jurisdictional mark. They also, however, seek to recover the legal fees that they incurred both in the course of arbitrating against Jefferies and in preparing this lawsuit against FINRA.1 Webb and Beversdorf say that these fees—which exceed $75,000—were a *857 reasonably foreseeable consequence of FINRA's breach of the Arbitration Submission Agreement. See 24 Williston on Contracts 64.12 (“Consequential damages include those damages that were reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of a breach.”). The district court accepted this argument and concluded that it had authority to adjudicate the suit. 3 Legal fees may count toward the amount in controversy if the plaintiff has a right to them “based on contract, statute, or other legal authority.” abrogated on other grounds by Webb and Beversdorf do not contend that FINRA assumed a contractual obligation to cover either the fees that they incurred in arbitration or those that they incurred in this lawsuit. That leaves statute or other authority. The parties agree that Illinois law governs, so we look there to determine whether Webb and Beversdorf could plausibly recover any of these legal fees as damages. 4 5 6 It is clear that Webb and Beversdorf cannot recover the money spent preparing to litigate against FINRA. Illinois generally adheres to the American Rule that each party bears its own litigation costs. Its common law does not authorize a prevailing party to recover attorneys’ fees from an opponent. ; see also Keefe-Shea Joint Any right to recovery must derive from contract or statute, 46 N.E.2d at ; Fednav Int'l and Webb and Beversdorf have not identified any contractual or statutory provision giving them that right. They are thus stuck with the longstanding rule that they must bear their own litigation expenses in this suit against FINRA, even if they ultimately win. 7 But Webb and Beversdorf do not just seek recovery of the legal fees they have incurred litigating against FINRA; they also seek recovery of the legal fees they incurred arbitrating against Jefferies. This is a more plausible ground for recovery, because Illinois recognizes a “third party litigation exception” to the American Rule. The Illinois Supreme Court has held that “where the wrongful acts of a defendant involve the plaintiff in litigation with third parties or place him in such relation with others as to make it necessary to incur expense to protect his interest, the plaintiff can then recover damages against such wrongdoer, measured by the reasonable expenses of such litigation, including attorney fees.” ; see also Restatement (Second) of Torts 914 (“One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees, and other expenditures thereby suffered or incurred in the earlier action.”). While the exception arises more frequently in the context of torts than contracts, we assume that Illinois courts would recognize it in the latter context as well. See ; *858 see also City of Cedarburg Light & Water FINRA—whose desire to be in federal court has motivated it to argue vigorously for a proposition otherwise against its interest—also insists that the “third party litigation exception” to the American Rule applies here and could obligate it to pay for Webb and Beversdorf's legal expenses if it breached the arbitration agreement. Webb and Beversdorf's effort to recover expenses incurred in an arbitration proceeding begun for its own purposes—to assert a wrongful termination claim against Jefferies—distinguishes this case from those in which Illinois courts have applied the exception. Illinois courts have not applied the exception when the defendant caused the legal fees to increase in an already existing third-party suit; they have applied it when the defendant caused the third-party suit in the first place. The Illinois courts have invariably described the exception as applying when the defendant's wrong forced the plaintiff into litigation with a third party. See, e.g., ; ; see also Champion Parts, For example, Illinois courts have permitted plaintiffs to recover legal fees spent settling with an insurance company when the defendant wrongfully caused the company to cancel the plaintiff's policy, Duignan, 667 N.E.2d at ; obtaining refunds of tax penalties that were assessed on the plaintiff due to the defendant's negligence, ; and filing a second divorce petition when the defendant's legal malpractice resulted in the dismissal of the plaintiff's first petition, 387 Ill.App.3d 7, 899 N.E.2d 12, In all of these instances, the third-party litigation existed because of the defendant's alleged wrong.2 And when *859 the party seeking the recovery of fees was the plaintiff in the third-party litigation, as Webb and Beversdorf were here, the third-party litigation has been undertaken to “cure the damage caused by the defendant.” Duignan, 667 N.E.2d at 8 Webb and Beversdorf did not undertake the arbitration to cure FINRA's breach of contract; they undertook it to resolve an employment dispute with Jefferies. FINRA's alleged breach of the arbitration agreement did not force Webb and Beversdorf into arbitration; it allegedly increased the costs of arbitration they had already begun. The straight-forward causal connection that justified application of the third-party litigation exception in other cases is not present in this suit. Even, then, if FINRA breached its contract with Webb and Beversdorf, that breach would not alleviate Webb and Beversdorf's obligation to shoulder the legal costs associated with their decision to pursue a wrongful termination claim against Jefferies. See Buckhannon Bd. & Care Home, Illinois courts have consistently described and applied the exception in a way that precludes its application here.3 9 10 When a defendant removes to federal court, as FINRA did here, its plausible and good faith estimate of the amount in controversy establishes jurisdiction unless it is a “legal certainty” that the plaintiffs’ claim is for less than the requisite amount. St. Paul Mercury Indem. –89, ; Roppo v. Travelers Commercial Ins. Here, Illinois law makes it a “legal certainty” that Webb and Beversdorf's claim is for less than the requisite amount.4 Diversity jurisdiction does not exist. *860 III. Webb and Beversdorf leave it at diversity, but FINRA makes an additional argument for federal question jurisdiction.5 According to FINRA, this dispute is one of the rare state-law causes of action that gives rise to federal question jurisdiction under Grable & Metal Products, ; see also Merrill Lynch, Pierce, Fenner &6 Its theory is that the presence of an issue of federal securities law transforms this state-law contract claim into one arising under federal law. 11 Under Grable & a state-law claim may satisfy the “arising under” jurisdictional test if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in a federal court without disrupting the federal-state balance. For a state-law claim to arise under a federal securities claim, an issue of federal law must be the “cornerstone” of the plaintiff's complaint. 12 This dispute does not make it past the first factor of the Grable & test. FINRA contends that because the plaintiffs’ suit implicates FINRA's SEC-approved Code of Arbitration Procedure, this case requires us to decide whether FINRA breached a duty it owed Webb and Beversdorf under the securities laws. But FINRA fails to identify a single provision of federal law that we would have to interpret to resolve this case. The question is whether FINRA breached its arbitration agreement, and no “inescapable” provision of federal law drives that analysis. Hartland, To be sure, FINRA is regulated by the SEC, and its duties under the federal securities laws might come up. But that does not make federal law the “cornerstone” of the plaintiff's complaint. The Supreme Court has emphasized that a “federal role” is not enough. *861 As for the rest of the Grable & test, an issue not raised cannot be actually disputed or substantial, and without any federal question necessarily in play, we need not consider how taking the question would affect the federal-state balance. This is a state-law contract claim, and FINRA's effort to pull it within federal question jurisdiction fails. IV. We VACATE the judgment for lack of jurisdiction and REMAND the case to the district court with instructions to remand to state court. Ripple, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that federal question jurisdiction is lacking. However, I reach a different conclusion with respect to diversity jurisdiction. Specifically, I cannot agree that we know, to a “legal certainty,” that Messrs. Webb and Beversdorf cannot recover the damages that they allege, including the attorneys’ fees expended in the earlier arbitration. A defendant seeking removal of a state action to federal court must file a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U.S.C. 1446(a). “By design, 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” As the Supreme Court explained in Dart Cherokee Basin Operating “Congress, by borrowing the familiar ‘short and plain statement’ standard from Rule 8(a), intended to ‘simplify the “pleading” requirements for removal’ and to clarify that courts should ‘apply the same liberal rules [to removal allegations] that are applied to other matters of pleading.’ ” Roppo v. Travelers Commercial Ins. ). Therefore, “[j]ust as we generally accept the plaintiff's good-faith allegations of the amount in controversy to establish diversity jurisdiction, ‘when a defendant seeks federal-court adjudication, the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.’ ” at (quoting Dart Cherokee Basin Operating 135 S.Ct. at ). “Once this has been done, and supported by proof of any contested jurisdictional facts, the presumption is the one stated in St. Paul Mercury [Indemnity Co v. Red Cab ]: the estimate of the dispute's stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible.” Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. We also have observed that the legal certainty test sets a high bar for excluding federal subject matter jurisdiction “for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to determine if jurisdiction exists.” Thus, typical examples of claims considered “ ‘legally impossible’ for jurisdictional purposes” involve “statutory or contractual cap[s] on damages.” With this principle in mind, we must turn to Illinois state law. Here, it is important not to get off on the wrong foot by how we characterize this action. It is not an attorneys’ fees action; it is a damages action based on the breach of a contract. This distinction is very important. Illinois normally would not allow the recoupment of attorneys’ fees for success in maintaining *862 the present action. It does recognize, however, that attorneys’ fees incurred in an earlier action can be a measure of damages for an individual's misfeasance in that earlier action. See The Illinois appellate court explained the principles underlying this rule, and demonstrated their application, in In Sorenson, a widow had retained an attorney, Fio Rito, to handle her husband's estate. Rather than attending to it, however, the attorney let it languish in his office; taxes went unpaid, and tax authorities imposed penalties. Sorenson then retained a new attorney to handle the estate, and through that attorney's unsuccessful attempts to obtain refunds of penalties and interest, she incurred attorneys’ fees. See Sorenson then brought an action against the first attorney, Fio Rito, for damages. Among the damages that she claimed were fees paid to her second attorney for challenging the penalties. The trial court ruled that Sorenson could recover these damages from Fio Rito. Fio Rito maintained in the state appellate court that the American Rule, which generally precludes a plaintiff from recovering attorneys’ fees expended to bring a lawsuit against a wrongdoer, foreclosed such damages. See The appellate court disagreed. It explained that Fio Rito was “confus[ing] the exception with the general rule. The general rule in Illinois is that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act.” The American Rule governing attorneys’ fees limited this general rule, but only in situations “where a successful litigant seeks to recover his costs in maintaining the lawsuit”; it was not “intended to preclude a plaintiff from recovering losses directly caused by the defendant's conduct simply because those losses happen to take the form of attorneys’ fees.” –. Applying these principles to Sorenson's claim, the court stated: The plaintiff here is not attempting to recover the attorneys’ fees she expended in bringing this lawsuit. Rather, she seeks to recover losses incurred in trying to obtain refunds of tax penalties which were assessed against her solely as a result of the defendant's negligence. Had the plaintiff been forced to hire an accountant to repair the damage caused by the defendant's conduct, she would undoubtedly have been entitled to recover the accountant's fee as an ordinary element of damages. There is no basis in logic for denying recovery of the same type of loss merely because the plaintiff required an attorney instead of an accountant to correct the situation caused by the defendant's neglect. In holding the defendant liable for the plaintiff's losses, we are not violating the policy against “penalizing” a litigant for defending a lawsuit. We are simply following the general rule of requiring a wrongdoer to bear the consequences of his misconduct. 413 N.E.2d at The facts of our case are different. Here, the plaintiffs are demanding that the arbitrator in the underlying matter reimburse them for the attorney fees that they incurred because of the arbitrator's alleged lapse. The principle nevertheless remains the same. As the majority notes, most cases addressing the recovery of attorneys’ fees involve situations in which “the defendant's wrong forced the plaintiff into litigation with a third party”—“when the defendant *863 caused the third-party suit” as opposed to simply “caus[ing] the legal fees to increase in an already existing third-party suit.” See Majority Opinion 858 (collecting cases). However, the frequent occurrence of a fact pattern does not impose an analytical limitation on a principle unless some animating component of that principle limits application to the particular fact pattern. Here, the majority points to no such consideration. Nor does Illinois case law suggest any such limitation. Indeed, a colleague on the district court has written that it demonstrates the opposite. In Certain Underwriters at Lloyd's, the underwriters had hired Johnson & Bell to analyze their coverage responsibilities in two lawsuits and “to prepare and file complaints for declaratory judgment as necessary in connection with both suits.” The underwriters later brought an action in federal court asserting state law malpractice claims against Johnson & Bell related to its representation in the two earlier actions. Specifically, the underwriters alleged that it incurred unnecessary attorneys’ fees based on Johnson & Bell's handling of two underlying actions, the Lewis action and the Zarndt action. One of Johnson & Bell's alleged missteps was providing negligent advice to the underwriters that they had a duty to provide representation in the Lewis lawsuit. With respect to those fees, the underwriters contended that “it would not have undertaken its representation of the defendants in the underlying Lewis lawsuit but for defendants’ advice.” The underwriters did not make an equivalent claim with respect to the Zarndt action. A separate failure, however, was that Johnson & Bell negligently had failed to name a necessary party in both the Zarndt and Lewis actions. Consequently, they had to hire replacement counsel in those lawsuits and to incur unnecessary attorneys’ fees to correct the errors. Relying on Sorenson and other Illinois cases, the district court held that Illinois law did not bar the underwriters’ claims: “Defendants’ omission of FCC as a defendant in the declaratory judgment actions allegedly necessitated correction of the pleadings at a fixed cost to plaintiff. At the time the fees were incurred, it was clear that the fees were directly attributable to counsel's neglect.” at *7 (citing Sorenson, 413 N.E.2d at ). The court saw no analytical significance to the fact that the underwriters had incurred the fees in existing litigation, rather than incurred in a separate lawsuit. Moreover, the court made no distinction between fees incurred in the Lewis action, which would not have been undertaken absent Johnson & Bell's negligence, and those incurred in the Zarndt action, the defense of which the underwriters did not challenge. Here, Messrs. Webb and Beversdorf do not seek damages from FINRA in the form of attorneys’ fees expended in this action. Instead, they seek damages from FINRA that include the expenditure of attorneys’ fees in the underlying arbitration. They claim that these damages are “the direct result” of FINRA's failure to create fair procedures and of FINRA's interference in the arbitral process.1 Illinois law does not preclude a plaintiff from “recovering losses directly caused by the defendant's conduct simply because those losses happen to take the form of attorneys’ fees.” Sorenson, 413 N.E.2d at Moreover, the court inquired, and plaintiffs’ counsel represented on the record, that the fees paid to FINRA and to arbitral counsel exceeded $75,000.2 See *864 5 F.3d 813, ; cf. Consequently, the district court properly determined that the amount in controversy was not in question. As noted at the outset of this separate opinion, we have said, straightforwardly and firmly, that “[t]he legal-certainty test sets the bar high for excluding federal subject-matter jurisdiction, and for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to determine if jurisdiction exists.” Carroll, 658 F.3d at This rule, rooted in the long-standing jurisprudence of the Supreme Court, see St. Paul Mercury Indem. is followed faithfully throughout the Country, see, e.g., 8 F.3d 214, When the applicable state law definitively precludes recovery of the jurisdictional amount, we have not hesitated to say that the federal court is without jurisdiction. See, e.g., 75 F.3d However, when state law is “unsettled,” we will not engage in guesswork to resolve the issue of state law prematurely.3 Here, the majority opinion, quite admittedly, see Majority Opinion 859, engages in such guesswork. Frankly admitting that it cannot say with any certainty how Illinois courts would resolve the plaintiffs’ substantive claims, it ignores the court's teaching in Geschke. Taking a guess on the content of state law, it denies the defendants their rightful federal forum. In doing so, it effectively chides the district court for having followed the established law of the circuit and tells future district courts to ignore Geschke and to follow its example today of becoming bogged down in reading “tea leaves” on the content of state law. It departs from the established practice of accepting jurisdiction and of confronting the content of state law by later employing other federal practice devices that are far better suited to addressing, sometimes with the help of the state court, the intractable problems inherent in the “Erie guess.”4 See, e.g., 8 F.3d at 231-35 Because I believe that the district court followed established practice, grounded in well-settled case law across the Nation, I respectfully dissent from the dismissal for want of subject matter jurisdiction.

Weil v. Metal Technologies, Inc.

Brian Weil and Melissa Fulk filed class and collective actions against Metal Technologies, alleging wage violations under the Fair Labor Standards Act and Indiana wage laws. They had two basic complaints. First, they argued that Metal Technologies unlawfully paid employees only for the hours that they were scheduled to work even when employees' timestamps showed that they were clocked in for longer than that. The district court conditionally certified—but then later decertified—those claims. After decertification, the plaintiffs proceeded in their individual capacities and secured a very modest damages award. Second, the plaintiffs contended that Metal Technologies withheld wages from employees' paychecks for uniform rentals, even though Indiana law authorized withholding only for uniform purchases. The district court entered judgment for the class on the wage-deduction claims, which had been split into two time periods, and they won a much larger damages award. Both sides appealed. The plaintiffs argue that the district court should not have decertified the time-rounding claims, and Metal Technologies insists that Indiana law permitted it to deduct wages to cover uniform rentals. Each side thinks that the district court should have awarded it costs. And while the plaintiffs think that they have recovered too little in attorneys' fees, the defendants say that the plaintiffs have recovered too much. If the law remained as it stood on the day that the case was argued, we would affirm the district court across the board. After argument, however, the Indiana legislature introduced a wrinkle: it amended its wage-deduction law to authorize withholding for uniform rentals, and it made that amendment retroactive. Given this turn of events, we affirm the district court's decertification order but vacate the judgment and remand the case for the district court to reconsider the wage-deduction claim in light of the new law. That will likely also require the district court to recalculate attorneys' fees and costs. I. Metal Technologies is a manufacturer of automobile parts in Bloomfield, Indiana. It employs around 500 workers. These employees work one of three shifts throughout the day, which overlap by 30 minutes to ensure time to clean up and exchange information with the next shift. Metal Technologies keeps track of employees' time with an electronic time clock. It calculates pay based on scheduled shifts rather than time-clock punches—so employees are typically paid for 40 hours per week, and if they need to go over, they must fill out an overtime authorization form. Metal Technologies also deducts wages from employees who elect to rent work uniforms. Two of Metal Technologies's former employees, Brian Weil and Melissa Fulk, filed class and collective actions and individual claims alleging that Metal Technologies committed wage violations under the Fair Labor Standards Act of 1938 (FLSA) and Indiana wage laws. See Fed. R. Civ. P. 23; 29 U.S.C. § 216(b). They brought two categories of claims: time-rounding claims and wage-deduction claims. The time-rounding claims asserted that Metal Technologies unlawfully paid employees only for the hours that they were scheduled to work even when their timestamps showed that they were clocked in for longer than that. The wage-deduction claims focused on Metal Technologies's practice of taking payment for work uniforms out of employees' paychecks. These latter claims were broken down into two time periods: January 20, 2013 to April 10, 2016, when the original wage-deduction form was used, *355 and after April 10, 2016, when Metal Technologies began using a new form. The plaintiffs sought Rule 23 and FLSA certification on both the time-rounding claims and the wage-deduction claims.1 The district court conditionally granted Rule 23 certification on both claims, but it granted FLSA certification only on the time-rounding claim. The plaintiffs later moved for summary judgment on their certified claims. Metal Technologies opposed that motion and moved to decertify the time-rounding claims under both the FLSA and Rule 23. Yet it conceded liability on the wage-deduction claim—although only under the original wage-deduction form. See Ind. Code § 22-2-6-2(a) (the form must state that the deduction can be revoked at any time upon written notice to the employer). The district court granted Metal Technologies's motion to decertify the time-rounding claims and denied as moot the plaintiffs' motion for summary judgment on those claims. In doing so, the court relied on 29 C.F.R. § 785.48(a), which specifies that employers do not have to compensate employees for minor pre- and post-shift time-clock punches (for example, clocking in ten minutes before a shift starts) as long as they aren't working during that time. In other words, an employee's time stamp is not a per se record of work. And because the plaintiffs had provided no evidence that Metal Technologies's employees were actually working beyond their shifts, the court concluded that they could not prove a theory of liability common to the class. The court permitted the plaintiffs to proceed with only their individual claims for unpaid wages. On the wage-deduction claim, the district court split its decision. It granted the plaintiffs' summary-judgment motion with respect to the original wage-deduction form—the issue on which Metal Technologies had conceded liability. But it denied summary judgment with respect to the amended form. Weil and Fulk proceeded to a one-day bench trial on their individual claims for unpaid wages, the damages calculation pertaining to the original wage-deduction form, and the class claim pertaining to the amended wage-deduction form. The plaintiffs recovered very little on their individual claims because the court found that there were only a handful of occasions on which Weil and Funk were clocked in and working but not paid—once in Weil's case and four times in Fulk's. Their greatest success came with the wage-deduction claims. The district court determined that trebled damages for the class under the original wage-deduction form totaled $ 93,152.58. And it sided with the class on the amended wage-deduction form, reasoning that Indiana law permitted wage deductions only for purchasing, not renting, uniforms. The court awarded an additional $ 8,102.04 for that claim. Following the trial, the district court awarded $ 99,229.58 in attorneys' fees for the wage-deduction claims and $ 16,869.03 for the time-rounding claims. The district court denied both parties' requests for costs. Both sides appealed. Metal Technologies insists that the district court erred in finding that it had unlawfully deducted uniform rentals. The plaintiffs argue that the district court erred in decertifying the *356 time-rounding claims. And both parties appeal both attorneys' fees and costs. II. After we heard oral argument, the Indiana state legislature passed a law permitting an employer to deduct employee wages for renting uniforms. See Ind. Code § 22-2-6-2(b)(14). Metal Technologies filed a notice under Federal Rule of Appellate Procedure 28(j) arguing that we must reverse the district court's decision that it unlawfully deducted uniform rental costs under the amended wage deduction form. 1 2 The new statute expressly states that it applies retroactively. Ind. Code 22-2-6-3(b); see State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005) (“Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.” (emphasis added)). There is no general prohibition on applying retroactive laws to cases pending on appeal. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (“When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.”). On the contrary, courts generally must honor the legislature's choice to make a law retroactive. See Bourbon Mini–Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003) (“Ultimately ... whether or not a statute applies retroactively depends on the Legislature's intent.”); see also Landgraf v. USI Film Products, 511 U.S. 244, 267–68, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law....”). The only exception is if applying the law retroactively would violate a vested right or constitutional guarantee. Bourbon, 783 N.E.2d at 260. Thus, unless the plaintiffs can show that applying Indiana's new statute deprives them of a vested right or constitutional guarantee, the new statute controls.2 It seems unlikely that the plaintiffs could successfully make that showing, but they should have a chance to try. We therefore vacate the judgment and remand the case so that the district court can consider whether the new law applies to Weil and Fulk's wage-deduction claims. If it does, the district court will also have to revisit the attorneys' fees and costs that it awarded the plaintiffs on those claims.3 III. 3 Before reaching the merits of the plaintiffs' decertification arguments, we must first address Metal Technologies's *357 contention that this issue is moot because we can no longer grant the plaintiffs relief. Metal Technologies argues that neither Weil nor Fulk has a concrete interest in certification because they went to trial on their individual time-rounding claims and lost. But we have held that the possibility of an incentive award—which Weil and Fulk could receive here—is enough of an interest to keep the claim justiciable. See Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 875 (7th Cir. 2012).4 We therefore have jurisdiction to consider the plaintiffs' argument, reviewing the district court's certification order for abuse of discretion and its legal determinations supporting the decision de novo. Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 549 (7th Cir. 2016). The plaintiffs make several arguments as to why we should reverse the district court's decision to decertify the time-rounding claims under Rule 23 and the FLSA. None succeeds. 4 First, the plaintiffs argue that because the district court initially certified the claims, it was bound by that decision unless Metal Technologies put forth new evidence. But neither Rule 23 nor the FLSA includes such a requirement. Rule 23 grants courts the discretion to reconsider certification at any point before final judgment, see Fed. R. Civ. P. 23(c)(1)(C), and it says nothing about limiting that discretion to when new evidence is raised. Collective actions under the FLSA likewise permit courts to reconsider certification after discovery has been completed. See Espenscheid, 688 F.3d at 877. And this makes sense in light of our repeated assertions that district courts have wide discretion in managing class and collective actions. See, e.g., Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010); Chavez v. Illinois State Police, 251 F.3d 612, 629 (7th Cir. 2001). The district court did not err by reconsidering its earlier certification decisions. 5 6 Second, the plaintiffs argue that the district court was wrong to conclude that an employee's time stamp is not a per se record of work. The plaintiffs claim that because the time stamps of some employees show more than 40 hours of time in weeks for which they were compensated for only 40 hours, Metal Technologies necessarily underpaid those employees. The district court disagreed, relying on the following FLSA regulation to untangle the issue: (a) Differences between clock records and actual hours worked. Time clocks are not required. In those cases where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded. 29 C.F.R. § 785.48(a) (emphasis added). As we have noted before, this regulation means that “employees who clock in early do not have to be paid so long as they are not working.” See Kellar v. Summit Seating, Inc., 664 F.3d 169, 177 (7th Cir. 2011). Put another way, an employee can clock in, grab a coffee, read the newspaper, and then start working once his scheduled shift begins—and an employer wouldn't have to compensate him for that time. Because the plaintiffs failed to provide evidence that employees were actually working without compensation—not simply that they were clocked in for over 40 hours—plaintiffs *358 lack, as the district court pointed out, “both a theory of liability and proof of any injury.”5 So decertification of both the class and collective claims was appropriate. See Fed. R. Civ. P. 23(b); 29 U.S.C. § 216(b).6 Finally, the plaintiffs suggest that the Metal Technologies employee manual says that compensation will be provided based on clock time, and so they seek to hold Metal Technologies liable for violating that guarantee. But the manual does not say that employees will be compensated for every minute that they are clocked in even if they aren't working. In fact, it says the opposite: employees will be compensated only for actual time worked. So any argument that Metal Technologies violated its own manual fails as well. For all these reasons, the district court did not abuse its discretion in decertifying the claims. We AFFIRM in part, VACATE in part, and REMAND to the district court for proceedings consistent with this opinion.

Barrett

majority

Brian Weil and Melissa Fulk filed class and collective actions against Metal Technologies, alleging wage violations under the Fair Labor Standards Act and Indiana wage laws. They had two basic complaints. First, they argued that Metal Technologies unlawfully paid employees only for the hours that they were scheduled to work even when employees' timestamps showed that they were clocked in for longer than that. The district court conditionally certified—but then later decertified—those claims. After decertification, the plaintiffs proceeded in their individual capacities and secured a very modest damages award. Second, the plaintiffs contended that Metal Technologies withheld wages from employees' paychecks for uniform rentals, even though Indiana law authorized withholding only for uniform purchases. The district court entered judgment for the class on the wage-deduction claims, which had been split into two time periods, and they won a much larger damages award. Both sides appealed. The plaintiffs argue that the district court should not have decertified the time-rounding claims, and Metal Technologies insists that Indiana law permitted it to deduct wages to cover uniform rentals. Each side thinks that the district court should have awarded it costs. And while the plaintiffs think that they have recovered too little in attorneys' fees, the defendants say that the plaintiffs have recovered too much. If the law remained as it stood on the day that the case was argued, we would affirm the district court across the board. After argument, however, the Indiana legislature introduced a wrinkle: it amended its wage-deduction law to authorize withholding for uniform rentals, and it made that amendment retroactive. Given this turn of events, we affirm the district court's decertification order but vacate the judgment and remand the case for the district court to reconsider the wage-deduction claim in light of the new law. That will likely also require the district court to recalculate attorneys' fees and costs. I. Metal Technologies is a manufacturer of automobile parts in Bloomfield, Indiana. It employs around 500 workers. These employees work one of three shifts throughout the day, which overlap by 30 minutes to ensure time to clean up and exchange information with the next shift. Metal Technologies keeps track of employees' time with an electronic time clock. It calculates pay based on scheduled shifts rather than time-clock punches—so employees are typically paid for 40 hours per week, and if they need to go over, they must fill out an overtime authorization form. Metal Technologies also deducts wages from employees who elect to rent work uniforms. Two of Metal Technologies's former employees, Brian Weil and Melissa Fulk, filed class and collective actions and individual claims alleging that Metal Technologies committed wage violations under the Fair Labor Standards Act of 1938 (FLSA) and Indiana wage laws. See Fed. R. Civ. P. 23; (b). They brought two categories of claims: time-rounding claims and wage-deduction claims. The time-rounding claims asserted that Metal Technologies unlawfully paid employees only for the hours that they were scheduled to work even when their timestamps showed that they were clocked in for longer than that. The wage-deduction claims focused on Metal Technologies's practice of taking payment for work uniforms out of employees' paychecks. These latter claims were broken down into two time periods: January 20, 2013 to April 10, 2016, when the original wage-deduction form was used, *355 and after April 10, 2016, when Metal Technologies began using a new form. The plaintiffs sought Rule 23 and FLSA certification on both the time-rounding claims and the wage-deduction claims.1 The district court conditionally granted Rule 23 certification on both claims, but it granted FLSA certification only on the time-rounding claim. The plaintiffs later moved for summary judgment on their certified claims. Metal Technologies opposed that motion and moved to decertify the time-rounding claims under both the FLSA and Rule 23. Yet it conceded liability on the wage-deduction claim—although only under the original wage-deduction form. See (a) The district court granted Metal Technologies's motion to decertify the time-rounding claims and denied as moot the plaintiffs' motion for summary judgment on those claims. In doing so, the court relied on (a), which specifies that employers do not have to compensate employees for minor pre- and post-shift time-clock punches (for example, clocking in ten minutes before a shift starts) as long as they aren't working during that time. In other words, an employee's time stamp is not a per se record of work. And because the plaintiffs had provided no evidence that Metal Technologies's employees were actually working beyond their shifts, the court concluded that they could not prove a theory of liability common to the class. The court permitted the plaintiffs to proceed with only their individual claims for unpaid wages. On the wage-deduction claim, the district court split its decision. It granted the plaintiffs' summary-judgment motion with respect to the original wage-deduction form—the issue on which Metal Technologies had conceded liability. But it denied summary judgment with respect to the amended form. Weil and Fulk proceeded to a one-day bench trial on their individual claims for unpaid wages, the damages calculation pertaining to the original wage-deduction form, and the class claim pertaining to the amended wage-deduction form. The plaintiffs recovered very little on their individual claims because the court found that there were only a handful of occasions on which Weil and Funk were clocked in and working but not paid—once in Weil's case and four times in Fulk's. Their greatest success came with the wage-deduction claims. The district court determined that trebled damages for the class under the original wage-deduction form totaled $ 93,152.58. And it sided with the class on the amended wage-deduction form, reasoning that Indiana law permitted wage deductions only for purchasing, not renting, uniforms. The court awarded an additional $ 8,102.04 for that claim. Following the trial, the district court awarded $ 99,229.58 in attorneys' fees for the wage-deduction claims and $ 16,869.03 for the time-rounding claims. The district court denied both parties' requests for costs. Both sides appealed. Metal Technologies insists that the district court erred in finding that it had unlawfully deducted uniform rentals. The plaintiffs argue that the district court erred in decertifying the *356 time-rounding claims. And both parties appeal both attorneys' fees and costs. II. After we heard oral argument, the Indiana state legislature passed a law permitting an employer to deduct employee wages for renting uniforms. See (b)(14). Metal Technologies filed a notice under Federal Rule of Appellate Procedure 28(j) arguing that we must reverse the district court's decision that it unlawfully deducted uniform rental costs under the amended wage deduction form. 1 2 The new statute expressly states that it applies retroactively. Ind. Code 22-2-6-3(b); see There is no general prohibition on applying retroactive laws to cases pending on appeal. See On the contrary, courts generally must honor the legislature's choice to make a law retroactive. See Bourbon Mini–Mart, ; see also The only exception is if applying the law retroactively would violate a vested right or constitutional Bourbon, 783 N.E.2d at Thus, unless the plaintiffs can show that applying Indiana's new statute deprives them of a vested right or constitutional guarantee, the new statute controls.2 It seems unlikely that the plaintiffs could successfully make that showing, but they should have a chance to try. We therefore vacate the judgment and remand the case so that the district court can consider whether the new law applies to Weil and Fulk's wage-deduction claims. If it does, the district court will also have to revisit the attorneys' fees and costs that it awarded the plaintiffs on those claims.3 III. 3 Before reaching the merits of the plaintiffs' decertification arguments, we must first address Metal Technologies's *357 contention that this issue is moot because we can no longer grant the plaintiffs relief. Metal Technologies argues that neither Weil nor Fulk has a concrete interest in certification because they went to trial on their individual time-rounding claims and lost. But we have held that the possibility of an incentive award—which Weil and Fulk could receive here—is enough of an interest to keep the claim justiciable. See4 We therefore have jurisdiction to consider the plaintiffs' argument, reviewing the district court's certification order for abuse of discretion and its legal determinations supporting the decision de novo. The plaintiffs make several arguments as to why we should reverse the district court's decision to decertify the time-rounding claims under Rule 23 and the FLSA. None succeeds. 4 First, the plaintiffs argue that because the district court initially certified the claims, it was bound by that decision unless Metal Technologies put forth new evidence. But neither Rule 23 nor the FLSA includes such a requirement. Rule 23 grants courts the discretion to reconsider certification at any point before final judgment, see Fed. R. Civ. P. 23(c)(1)(C), and it says nothing about limiting that discretion to when new evidence is raised. Collective actions under the FLSA likewise permit courts to reconsider certification after discovery has been completed. See And this makes sense in light of our repeated assertions that district courts have wide discretion in managing class and collective actions. See, e.g., ; The district court did not err by reconsidering its earlier certification decisions. 5 6 Second, the plaintiffs argue that the district court was wrong to conclude that an employee's time stamp is not a per se record of work. The plaintiffs claim that because the time stamps of some employees show more than 40 hours of time in weeks for which they were compensated for only 40 hours, Metal Technologies necessarily underpaid those employees. The district court disagreed, relying on the following FLSA regulation to untangle the issue: (a) Differences between clock records and actual hours worked. Time clocks are not required. In those cases where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded. (a) As we have noted before, this regulation means that “employees who clock in early do not have to be paid so long as they are not working.” See Put another way, an employee can clock in, grab a coffee, read the newspaper, and then start working once his scheduled shift begins—and an employer wouldn't have to compensate him for that time. Because the plaintiffs failed to provide evidence that employees were actually working without compensation—not simply that they were clocked in for over 40 hours—plaintiffs *358 lack, as the district court pointed out, “both a theory of liability and proof of any injury.”5 So decertification of both the class and collective claims was appropriate. See Fed. R. Civ. P. 23(b); (b).6 Finally, the plaintiffs suggest that the Metal Technologies employee manual says that compensation will be provided based on clock time, and so they seek to hold Metal Technologies liable for violating that But the manual does not say that employees will be compensated for every minute that they are clocked in even if they aren't working. In fact, it says the opposite: employees will be compensated only for actual time worked. So any argument that Metal Technologies violated its own manual fails as well. For all these reasons, the district court did not abuse its discretion in decertifying the claims. We AFFIRM in part, VACATE in part, and REMAND to the district court for proceedings consistent with this opinion.

Williams v. Norfolk Southern Corporation

Ja'Lin Williams was struck by a train while he and his friends were running away from a police officer. He sued the railway, which he believed was at fault for his injuries. But the district court granted summary judgment to the railway, concluding that Williams was barred from recovery by Indiana law because he was more than 50% at fault for the accident. We agree and affirm. I. Seventeen-year-old Ja'Lin Williams was with a group of friends on Whihala Beach in Whiting, Indiana when a police officer told them that they had to leave or else they would be arrested for trespassing. The young men stayed behind for a few minutes after the officer left, but when he returned in his squad car, they fled on foot. The young men approached five sets of train tracks as they were running. The set of tracks closest to them had warning gates on both sides to stop eastbound and westbound road traffic. The remaining four sets of tracks shared a pair of warning gates that stopped eastbound and westbound road traffic. Of those four, the two sets of tracks farthest from the young men were owned and operated by Norfolk Southern Corporation and the Norfolk *471 Southern Railway Corporation (collectively “Norfolk”). As the young men were making their way across the tracks, one of Norfolk's trains approached from the southeast on the rail line farthest from them. The first boy, Antwion McGee, saw the train and sped up to cross its path before it reached him. The second, Javante Toran, saw the train and stopped in order to avoid a collision. Williams, on the other hand, did not look up and continued running. Unfortunately, his timing put him right in the train's path, and it hit him. Williams sued Norfolk. Norfolk moved for summary judgment. The district court granted Norfolk's motion, holding that Williams was more than 50% at fault as a matter of law and thus could not recover under Indiana law. Williams filed this appeal. II. 1 The Indiana Comparative Fault Act governs this diversity case, and it bars recovery in actions based on fault if the claimant's fault exceeds 50% of the total fault. Ind. Code § 34-51-2-6 (2013). The district court concluded that there was no dispute of material fact because no fact finder could reasonably conclude that Williams bore 50% or less of the relative fault. We agree. Williams insists that his own testimony, not to mention the testimony of his friends, illustrates that there are material disputes of fact that justify sending this case to a jury. He emphasizes that he did not recall seeing flashing lights ahead of him as he ran, nor the light of the train itself. He states that he did not hear the train's horn, bells, or any other sounds indicating that a train was approaching. Toran and McGee likewise profess not to have observed various warnings that a train was coming. 2 This testimony might have created a material issue of fact if this case were a battle of eyewitnesses. But “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). And here, the young men's testimony is blatantly contradicted by video evidence. The video plainly shows that the train's horn and bells were sounding and that its lights were on. It shows that, before reaching the train, the young men ran past flashing lights. And it shows that the gate on the other side of the track was down, that it had lights that faced the young men, and that those lights were flashing. We thus treat these facts as established and analyze the extent of Williams's fault in light of them. Reales v. Consolidated Rail Corp. controls. 84 F.3d 993 (7th Cir. 1996). There, a girl was struck by a train and killed. The court held that she was more than 50% at fault as a matter of law because it was undisputed that the crossing gates were down, the flashing lights were activated, witnesses heard the train sound, and witnesses saw her hesitate but then proceed around the gate. See id. at 997. Like the plaintiff in Reales, Williams had more than sufficient warning of the train's approach. He simply failed to heed it. 3 4 5 The fault for the collision therefore lies with Williams. He failed to take even the smallest of precautions—looking up in the face of the warnings—to avoid being struck. And Indiana law establishes that a train operator has no duty to reduce a train's speed if he sees a person crossing. Ohio & M. Ry. Co. v. Walker, 113 Ind. 196, 15 N.E. 234, 237 (1888). He is entitled to *472 presume that the person will take the necessary steps to avoid injury, unless he has “good reason to suppose that such persons are unconsciously in peril, or disabled from avoiding it.” New York Cent. R. Co. v. Casey, 214 Ind. 464, 14 N.E.2d 714, 717 (1938). Williams suffered from no such disability, and given the many warnings that were present, the train crew was entitled to presume that he was not unconscious of the train's approach. It didn't become clear that Williams wouldn't stop—like his friend Toran did—until the moment before the collision, and by then it was far too late to meaningfully slow the moving train. Under Indiana law, Williams is more than 50% at fault for his injuries. We therefore AFFIRM the district court's grant of summary judgment to Norfolk.

Barrett

majority

Ja'Lin Williams was struck by a train while he and his friends were running away from a police officer. He sued the railway, which he believed was at fault for his injuries. But the district court granted summary judgment to the railway, concluding that Williams was barred from recovery by Indiana law because he was more than 50% at fault for the accident. We agree and affirm. I. Seventeen-year-old Ja'Lin Williams was with a group of friends on Whihala Beach in Whiting, Indiana when a police officer told them that they had to leave or else they would be arrested for trespassing. The young men stayed behind for a few minutes after the officer left, but when he returned in his squad car, they fled on foot. The young men approached five sets of train tracks as they were running. The set of tracks closest to them had warning gates on both sides to stop eastbound and westbound road traffic. The remaining four sets of tracks shared a pair of warning gates that stopped eastbound and westbound road traffic. Of those four, the two sets of tracks farthest from the young men were owned and operated by Norfolk Southern Corporation and the Norfolk *471 Southern Railway Corporation (collectively “Norfolk”). As the young men were making their way across the tracks, one of Norfolk's trains approached from the southeast on the rail line farthest from them. The first boy, Antwion McGee, saw the train and sped up to cross its path before it reached him. The second, Javante Toran, saw the train and stopped in order to avoid a collision. Williams, on the other hand, did not look up and continued running. Unfortunately, his timing put him right in the train's path, and it hit him. Williams sued Norfolk. Norfolk moved for summary judgment. The district court granted Norfolk's motion, holding that Williams was more than 50% at fault as a matter of law and thus could not recover under Indiana law. Williams filed this appeal. II. 1 The Indiana Comparative Fault Act governs this diversity case, and it bars recovery in actions based on fault if the claimant's fault exceeds 50% of the total fault. (2013). The district court concluded that there was no dispute of material fact because no fact finder could reasonably conclude that Williams bore 50% or less of the relative fault. We agree. Williams insists that his own testimony, not to mention the testimony of his friends, illustrates that there are material disputes of fact that justify sending this case to a jury. He emphasizes that he did not recall seeing flashing lights ahead of him as he ran, nor the light of the train itself. He states that he did not hear the train's horn, bells, or any other sounds indicating that a train was approaching. Toran and McGee likewise profess not to have observed various warnings that a train was coming. 2 This testimony might have created a material issue of fact if this case were a battle of eyewitnesses. But “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” And here, the young men's testimony is blatantly contradicted by video evidence. The video plainly shows that the train's horn and bells were sounding and that its lights were on. It shows that, before reaching the train, the young men ran past flashing lights. And it shows that the gate on the other side of the track was down, that it had lights that faced the young men, and that those lights were flashing. We thus treat these facts as established and analyze the extent of Williams's fault in light of them. There, a girl was struck by a train and killed. The court held that she was more than 50% at fault as a matter of law because it was undisputed that the crossing gates were down, the flashing lights were activated, witnesses heard the train sound, and witnesses saw her hesitate but then proceed around the gate. See Like the plaintiff in Reales, Williams had more than sufficient warning of the train's approach. He simply failed to heed it. 3 4 5 The fault for the collision therefore lies with Williams. He failed to take even the smallest of precautions—looking up in the face of the warnings—to avoid being struck. And Indiana law establishes that a train operator has no duty to reduce a train's speed if he sees a person crossing. Ohio & M. Ry. He is entitled to *472 presume that the person will take the necessary steps to avoid injury, unless he has “good reason to suppose that such persons are unconsciously in peril, or disabled from avoiding it.” New York Cent. R. Williams suffered from no such disability, and given the many warnings that were present, the train crew was entitled to presume that he was not unconscious of the train's approach. It didn't become clear that Williams wouldn't stop—like his friend Toran did—until the moment before the collision, and by then it was far too late to meaningfully slow the moving train. Under Indiana law, Williams is more than 50% at fault for his injuries. We therefore AFFIRM the district court's grant of summary judgment to Norfolk.

Williams v. Wexford Health Sources, Inc.

Administrative exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense, so the defendant bears the burden of showing that the plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). At oral argument, Wexford stated that if the Administrative Review Board had denied Williams’s appeal of his emergency grievance determination without comment, then Williams would have exhausted all of his available administrative remedies. That is enough to resolve this appeal, and I would reverse the district court’s judgment on that ground. I write separately because in my view, the majority’s reasoning conflicts with the Supreme Court’s interpretation of the PLRA.1 The majority’s holding turns on the fact that the 2016 Illinois Administrative Code did not expressly say that an inmate should file a standard grievance if the prison decided that his emergency grievance did not warrant fast-track treatment. In the absence of such an explicit instruction, the majority holds, Williams’s filing of the emergency grievance was enough to satisfy the PLRA’s exhaustion requirement. It was reasonable for Williams to believe that he didn’t have to do anything more. *836 But in Ross v. Blake, the Supreme Court held that so long as additional remedies are “available” to a prisoner, “the PLRA’s text suggests no limits on an inmate’s obligation to exhaust.” ––– U.S. ––––, 136 S. Ct. 1850, 1856, 195 L.Ed.2d 117 (2016). A straightforward reading of the Illinois regulations suggests that Williams had an additional avenue available to him: the standard grievance procedure. And that’s true even though § 504.840 did not explicitly require him to resubmit his grievance through the standard procedure. The “availability” of the remedy doesn’t turn on whether the regulations directed Williams to use it—the alternative was available so long as it remained at Williams’s disposal. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Williams does not dispute that the normal grievance procedure was “available” to him in this sense. See Ross, 136 S. Ct. at 1859 (stressing that “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of’ ” (citation omitted)). For example, he does not contend that the normal grievance procedure “operate[d] as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Nor does he claim that the prescribed process was “so opaque that it [was], practically speaking, incapable of use.” Id.; see also id. (explaining that “when a remedy is ... essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable” (citation omitted)). Nor does he say that prison administrators misrepresented what was required of him, thereby “thwart[ing]” his efforts to file a grievance. Id. at 1860 (explaining that a remedy is unavailable when administrators “devise procedural systems” designed “to trip[ ] up all but the most skillful prisoners” (citation and internal quotation marks omitted)). Instead, his contention, which the majority accepts, is that the silence in the prison regulations made it reasonable for him to think that he didn’t have to use the standard grievance procedure. The problem is that the Court rejected this very argument in Ross v. Blake. There, the inmate contended that he had not pursued a remedy through the usual process because he thought the investigative process in which he had participated “served as a substitute for that otherwise standard process.” Id. at 1855. The Court held that such a mistake, even if reasonable, did not render the standard process exhausted. Id. at 1858. Indeed, the Court could not have been more explicit that the PLRA contains no exception for “cases in which a prisoner makes a reasonable mistake about the meaning of a prison’s grievance procedures.” Id. It’s true that Thornton v. Snyder contains dicta to the contrary. 428 F.3d 690, 694 (7th Cir. 2005). (Like the majority, I put our nonprecedential decisions aside.) The majority’s reliance on Thornton is misplaced, though, and not only because the relevant language is dicta. Thornton preceded Ross v. Blake by more than a decade. Whatever we may have said about the issue before Ross v. Blake was decided, the Court has now given us different marching orders. And, of course, as an inferior court, we are bound to follow them. The majority observes that recent amendments to the Illinois Code blunt the significance of this opinion. But that is only true as to Illinois—we have no information about Wisconsin and Indiana law, so the case may well matter for the other states within our jurisdiction. Regardless, if the case truly lacks long-term impact, it would *837 have been better for us to resolve it on the basis of Wexford’s concession. Because I think the majority’s resolution conflicts with Ross v. Blake, I concur in the judgment only.

Barrett

majority

Administrative exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense, so the defendant bears the burden of showing that the plaintiff failed to exhaust. ; At oral argument, Wexford stated that if the Administrative Review Board had denied Williams’s appeal of his emergency grievance determination without comment, then Williams would have exhausted all of his available administrative remedies. That is enough to resolve this appeal, and I would reverse the district court’s judgment on that ground. I write separately because in my view, the majority’s reasoning conflicts with the Supreme Court’s interpretation of the PLRA.1 The majority’s holding turns on the fact that the Illinois Administrative Code did not expressly say that an inmate should file a standard grievance if the prison decided that his emergency grievance did not warrant fast-track treatment. In the absence of such an explicit instruction, the majority holds, Williams’s filing of the emergency grievance was enough to satisfy the PLRA’s exhaustion requirement. It was reasonable for Williams to believe that he didn’t have to do anything more. *836 But in v. Blake, the Supreme Court held that so long as additional remedies are “available” to a prisoner, “the PLRA’s text suggests no limits on an inmate’s obligation to exhaust.” ––– U.S. ––––, A straightforward reading of the Illinois regulations suggests that Williams had an additional avenue available to him: the standard grievance procedure. And that’s true even though 504.840 did not explicitly require him to resubmit his grievance through the standard procedure. The “availability” of the remedy doesn’t turn on whether the regulations directed Williams to use it—the alternative was available so long as it remained at Williams’s disposal. See Williams does not dispute that the normal grievance procedure was “available” to him in this sense. See For example, he does not contend that the normal grievance procedure “operate[d] as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Nor does he claim that the prescribed process was “so opaque that it [was], practically speaking, incapable of use.” ; see also Nor does he say that prison administrators misrepresented what was required of him, thereby “thwart[ing]” his efforts to file a grievance. Instead, his contention, which the majority accepts, is that the silence in the prison regulations made it reasonable for him to think that he didn’t have to use the standard grievance procedure. The problem is that the Court rejected this very argument in v. Blake. There, the inmate contended that he had not pursued a remedy through the usual process because he thought the investigative process in which he had participated “served as a substitute for that otherwise standard process.” The Court held that such a mistake, even if reasonable, did not render the standard process exhausted. Indeed, the Court could not have been more explicit that the PLRA contains no exception for “cases in which a prisoner makes a reasonable mistake about the meaning of a prison’s grievance procedures.” It’s true that 428 F.3d 6, (Like the majority, I put our nonprecedential decisions aside.) The majority’s reliance on Thornton is misplaced, though, and not only because the relevant language is dicta. Thornton preceded v. Blake by more than a decade. Whatever we may have said about the issue before v. Blake was decided, the Court has now given us different marching orders. And, of course, as an inferior court, we are bound to follow them. The majority observes that recent amendments to the Illinois Code blunt the significance of this opinion. But that is only true as to Illinois—we have no information about Wisconsin and Indiana law, so the case may well matter for the other states within our jurisdiction. Regardless, if the case truly lacks long-term impact, it would *837 have been better for us to resolve it on the basis of Wexford’s concession. Because I think the majority’s resolution conflicts with v. Blake, I concur in the judgment only.

Wisconsin Central Limited v. TiEnergy, LLC

Demurrage is a charge that rail carriers are statutorily required to impose when rail cars are detained beyond the time the tariff allows for loading or unloading. It serves two functions: it secures the rail carrier compensation for the use of the car, and it serves the public's interest in making the cars available to transport other property. The sooner a car is back in service, the sooner it is available to move the property of others. This case involves demurrage that accrued when rail cars belonging to Wisconsin Central were detained at TiEnergy's facility after delivering a load of railroad ties. Wisconsin Central sued TiEnergy to recover the charges, asserting that TiEnergy was liable for them as consignee of the goods. TiEnergy argued that it had not agreed to be the consignee; it maintained that Allied, the company that shipped the ties, should foot the bill. The district court held TiEnergy responsible, and we affirm its judgment. I. Allied Track Services, Inc. entered into two agreements to facilitate the shipment of approximately 100,000 railroad ties. It contracted with Wisconsin Central Limited's parent company, Canadian National Railway, to have Wisconsin Central ship the ties to TiEnergy, LLC's facility in Wisconsin. That contract incorporated CN Tariff 9000, which provided that demurrage would begin to accrue on the cars after two days of unloading time. Wisconsin Central also entered into an oral agreement with TiEnergy, which is in the business of processing and disposing of used railroad ties. TiEnergy agreed to receive the ties at its Wisconsin facility, where it would grind them. It would then sell the ties to Xcel Energy, which would burn them to generate power. When the process was complete, TiEnergy would provide Allied with proof that the ties had been incinerated in an environmentally safe manner. Allied listed TiEnergy as the consignee of the railroad ties on all relevant bills of lading, and the ties were shipped to TiEnergy's Wisconsin facility. After receiving the ties, TiEnergy went forward with its plan: it unloaded, ground, and sold them to Xcel Energy. The approximately 100 rail cars used to ship the ties, however, remained on the track and sidetrack beyond the two-day unloading period permitted by the tariff. Daily demurrage charges started to accrue on each car. Canadian National began billing TiEnergy for the demurrage. When it received the invoices, TiEnergy contacted both Canadian National and Allied to object. TiEnergy said that it had not agreed to be identified as the consignee on the bills of lading and that it thus could not be held responsible for demurrage. In the meantime, the cars remained on TiEnergy's track, and the demurrage charges continued to climb. 1 Wisconsin Central sued TiEnergy, seeking to recover approximately $100,000 in demurrage. TiEnergy filed a third-party complaint against Allied seeking indemnification or contribution. A flurry of motions followed the close of discovery: Wisconsin Central filed a motion for summary judgment against TiEnergy, TiEnergy filed a *854 cross-motion for summary judgment against Wisconsin Central, and Allied filed a motion for summary judgment against TiEnergy. In its opinion, the district court granted the motions filed by Wisconsin Central and Allied; it denied the one filed by TiEnergy. TiEnergy appeals the district court's grants of summary judgment in favor of Wisconsin Central and Allied.1 II. 2 Before we turn to the merits, we have two jurisdictional matters to address. The first concerns appellate jurisdiction. TiEnergy invoked our jurisdiction under 28 U.S.C. § 1291, which gives us “jurisdiction of appeals from all final decisions of the district courts of the United States.” To make the entry of final judgment clear, Federal Rule of Civil Procedure 58(a) provides that “[e]very judgment and amended judgment must be set out in a separate document.” While the district court docketed a Rule 58 judgment order reflecting its final disposition of the claims brought by Wisconsin Central against TiEnergy, it did not do so for the third-party claim that TiEnergy asserted against Allied. Because a judgment is not final for purposes of § 1291 until it disposes of all claims in the suit, General Insurance Co. of America v. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011), the absence of the Rule 58 judgment order disposing of TiEnergy's third-party claim creates some uncertainty about our appellate jurisdiction. 3 We asked the parties to address this issue in supplemental briefing. They contend—and we agree—that although the district court failed to issue a separate judgment disposing of all the claims, it clearly signaled in its opinion that it was finished with the case. Rule 58’s “separate document” requirement is important because it keeps jurisdictional lines clear. We have said, however, that a district court's failure to comply with the formal requirement is not fatal to our jurisdiction if the district court has otherwise indicated its intent to finally dispose of all claims. Borrero v. City of Chicago, 456 F.3d 698, 699–700 (7th Cir. 2006). The district court did so here. See Wisconsin Cent., Ltd. v. TiEnergy, LLC, No. 15 C 2489, 2017 WL 1427065 (N.D. Ill. Apr. 21, 2017). 4 The second matter—and one on which we also ordered supplemental briefing—concerns original jurisdiction. Because this case focuses on the bill of lading, which is the shipping contract between the parties, it sounds like a breach-of-contract claim. But if this case is simply a contract dispute, we probably lack jurisdiction over it. Contract claims arise under state law, so they typically require diversity jurisdiction, and both Wisconsin Central and TiEnergy are citizens of Illinois. 28 U.S.C. § 1332; see also Strawbridge v. Curtiss, 7 U.S. 3 Cranch 267, 2 L.Ed. 435 (1806) (holding that the diversity statute requires that the citizenship of all plaintiffs be different from the citizenship of all defendants). In an exceptional circumstance, the presence of a federal issue can *855 transform a state-law claim into one that arises under federal law. See Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (holding that a state cause of action arises under federal law if, among other things, it requires resolution of a substantial and contested federal issue). There might be an argument for that here, but Wisconsin Central has not made it.2 5 Rather than asserting a contract claim that nonetheless arises under federal law, Wisconsin Central's complaint sought to recover demurrage pursuant to a provision of the Interstate Commerce Commission Termination Act that assigns liability for the payment of transportation rates. 49 U.S.C. § 10743. Demurrage charges have long been treated as “rates for transportation” under that provision, see CSX Transportation Co. v. Novolog Bucks County, 502 F.3d 247, 256–57 (3rd Cir. 2007) (interpreting and recounting the history of the phrase), and consignees are presumptively liable for it. Section 10743(c) grants rail carriers a cause of action to enforce that liability, and Wisconsin Central has invoked that grant here. A cause of action arises under the law that created it, American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916), which means that this case arises under federal law. Jurisdiction exists pursuant to 28 U.S.C. § 1337(a), which grants jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce.” In its supplemental brief, TiEnergy contends that § 1337(a) carries an amount-in-controversy requirement that deprives us of jurisdiction. That provision limits federal jurisdiction over cases filed under 49 U.S.C. § 11706 or 49 U.S.C. § 14706 when the “matter in controversy for each receipt or bill of lading exceeds $10,000.” TiEnergy says that this limit applies, because the demurrage charges sought by Wisconsin Central include numerous invoices for less than $10,000. This argument is frivolous. Section 1337(a)’s amount-in-controversy limitation is plainly applicable only to cases filed under 49 U.S.C. § 11706 or 49 U.S.C. § 14706, and Wisconsin Central brought this action pursuant to 49 U.S.C. § 10743. Moreover, the causes of action that § 1337 limits—those brought under § 11706 or § 14706—involve actions brought against, not by rail carriers. This suit presents a federal question over which we have jurisdiction, and nothing in § 1337(a) changes that. III. 6 7 Section 10743 codifies the common-law rule that the consignee of freight *856 is presumptively liable for demurrage accrued at the destination. Illinois Cent. R.R. Co. v. South Tec Dev. Warehouse, Inc., 337 F.3d 813, 820 (7th Cir. 2003) (explaining that in the absence of a contract providing otherwise, only a consignee is liable for demurrage). Given this presumption, the parties agree that TiEnergy's liability for demurrage turns on whether it is a “consignee” for purposes of § 10743. The tricky thing is that being a consignee under 10743 requires more than mere custody of the freight. Cf. Black's Law Dictionary (9th ed. 2009) (defining “consignee” to mean “[o]ne to whom goods are consigned” and “consign” to mean “transfer to another's custody or charge”). We consider other factors as well: whether the party agreed by contract to consignee status, whether the party was designated as consignee in the bill of lading, and the nature of the party's relationship to the freight. South Tec, 337 F.3d at 820–22. 8 In denying that it was the consignee of the railroad ties, TiEnergy emphasizes that it neither agreed to nor knew about its designation as consignee on the bill of lading. That is its best fact, because being unilaterally designated as the consignee on the bill of lading is not enough to render a recipient of freight liable for demurrage. South Tec, 337 F.3d at 821.3 At the same time, this fact does not get TiEnergy off the hook, because even a unilaterally designated party can be liable for demurrage when other factors are present reflecting an interest in or control of the goods. Id. This test is designed to separate intermediaries like warehouses and transloaders from recipients who have a legal or beneficial ownership interest in the freight. Those who merely handle the freight are not consignees; those with a relationship to it have that status. TiEnergy denies that it had any interest in or control of the railroad ties delivered by the detained railcars. According to TiEnergy, it was an intermediary like a warehouse or transloader. It received ties belonging to Allied and—acting solely on Allied's behalf—forwarded them to Xcel for incineration. Like other intermediaries *857 relieved of liability for demurrage, TiEnergy says that it acted merely as an agent with no interest of its own in the goods. 9 Classifying TiEnergy as an intermediary jams a square peg into a round hole. To begin with, TiEnergy is not in the freight-transfer or cargo-storage business. It is in the business of processing and disposing of used railroad ties. That distinguishes TiEnergy from the entities that present the hard cases for demurrage liability—warehousemen, pier operators, transloaders, and connecting carriers. See CSX Transp. Co. v. Novolog Bucks Cty., 502 F.3d 247, 250 (3d Cir. 2007). Unlike these entities, TiEnergy is not an intermediary indifferent to freight that it stores or transfers from one mode of transportation to the next. It agrees to take railroad ties so that it can use them—as it did when the ties from Allied arrived at its facility. TiEnergy ground the ties, thereby exhibiting its control of them. And it sold the ties to Xcel, thereby demonstrating that it enjoyed their benefit. TiEnergy's claim that it functioned solely as Allied's agent in selling the ties to Xcel Energy for incineration is belied by the fact that it kept the full payment for itself.4 The only conclusion a juror could reasonably draw from these undisputed facts is that TiEnergy had both control of and an interest in the ties. And under South Tec, that means that it had consignee status. 337 F.3d at 820–22. Consignees are liable for demurrage; thus, TiEnergy owes Wisconsin Central the fees accrued for the detained rail cars.5 It is worth noting that if TiEnergy had been a consignee functioning only as Allied's agent, the statute offered it a way out of liability for transportation rates. Under § 10743(a)(1), a “consignee that is an agent only, not having beneficial title to the property” has an option that other consignees do not: it can give the carrier written notice that it lacks beneficial title and the name and address of the person who does. If the agent takes that step, it escapes liability for “additional rates that may be found to be due after delivery.” § 10743(a)(1). Demurrage accrues after delivery, so an agent-consignee who invokes this exception does not have to pay it. TiEnergy, however, did not invoke this exception. It thus remains subject to the default rule that consignees must pay when rail cars delivering shipments are detained longer than the time the tariff allows. IV. 10 11 TiEnergy insists that if it is found liable for the demurrage charges, it is entitled to either indemnification or contribution from Allied. Indemnification shifts the entire loss to the other party, while contribution distributes it among multiple parties. Both remedies look to fault when distributing loss. See Schulson v. D'Ancona & Pflaum LLC, 354 Ill.App.3d 572, 290 Ill.Dec. 331, 821 N.E.2d 643, 647 (2004).6 *858 12 TiEnergy concedes that no written contract obligated Allied to indemnify it for any demurrage liability it incurred. (In fact, the parties had no written contract memorializing any of the details of their agreement.) Because it nonetheless asserts that Allied breached its agreement to assume responsibility for demurrage, it is presumably claiming that Allied and TiEnergy entered an oral contract regarding indemnity. It points to no evidence, however, supporting this assertion. TiEnergy's breach-of-contract claim therefore fails. 13 TiEnergy also argues that Allied must indemnify it because of an alleged agency relationship between the two. This argument fails for several reasons, but we can stop with this basic point: TiEnergy was not Allied's agent. A hallmark of the principal/agent relationship is the principal's right to control the conduct of the agent. See Wilson v. Edward Hosp., 367 Ill.Dec. 243, 981 N.E.2d 971, 978 (Ill. 2012). It is undisputed that Allied exercised no control over the manner in which TiEnergy disposed of the ties; nor, as we have already said, did TiEnergy sell them to Xcel on Allied's behalf. TiEnergy's claim for contribution in tort fares no better. This argument relies on the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/2, which—as its name suggests—permits one joint tortfeasor to seek contribution from another. Yet TiEnergy has not even tried to make the case that Wisconsin Central's claim for demurrage sounds in tort. Cf. Guerino v. Depot Place P'ship, 191 Ill.2d 314, 246 Ill.Dec. 629, 730 N.E.2d 1094, 1099 (2000) (holding that there is no claim under the Act when liability is predicated on a contract). Moreover, as the district court observed, Allied is not liable to Wisconsin Central for the demurrage; so even if this is a tort, there is no joint tortfeasor from whom to collect. The Act is wholly inapplicable.

Barrett

majority

Demurrage is a charge that rail carriers are statutorily required to impose when rail cars are detained beyond the time the tariff allows for loading or unloading. It serves two functions: it secures the rail carrier compensation for the use of the car, and it serves the public's interest in making the cars available to transport other property. The sooner a car is back in service, the sooner it is available to move the property of others. This case involves demurrage that accrued when rail cars belonging to Wisconsin Central were detained at TiEnergy's facility after delivering a load of railroad ties. Wisconsin Central sued TiEnergy to recover the charges, asserting that TiEnergy was liable for them as consignee of the goods. TiEnergy argued that it had not agreed to be the consignee; it maintained that Allied, the company that shipped the ties, should foot the bill. The district court held TiEnergy responsible, and we affirm its judgment. I. Allied Track Services, Inc. entered into two agreements to facilitate the shipment of approximately 100,000 railroad ties. It contracted with Wisconsin Central Limited's parent company, Canadian National Railway, to have Wisconsin Central ship the ties to TiEnergy, LLC's facility in Wisconsin. That contract incorporated CN Tariff 9000, which provided that demurrage would begin to accrue on the cars after two days of unloading time. Wisconsin Central also entered into an oral agreement with TiEnergy, which is in the business of processing and disposing of used railroad ties. TiEnergy agreed to receive the ties at its Wisconsin facility, where it would grind them. It would then sell the ties to Xcel Energy, which would burn them to generate power. When the process was complete, TiEnergy would provide Allied with proof that the ties had been incinerated in an environmentally safe manner. Allied listed TiEnergy as the consignee of the railroad ties on all relevant bills of lading, and the ties were shipped to TiEnergy's Wisconsin facility. After receiving the ties, TiEnergy went forward with its plan: it unloaded, ground, and sold them to Xcel Energy. The approximately 100 rail cars used to ship the ties, however, remained on the track and sidetrack beyond the two-day unloading period permitted by the tariff. Daily demurrage charges started to accrue on each car. Canadian National began billing TiEnergy for the demurrage. When it received the invoices, TiEnergy contacted both Canadian National and Allied to object. TiEnergy said that it had not agreed to be identified as the consignee on the bills of lading and that it thus could not be held responsible for demurrage. In the meantime, the cars remained on TiEnergy's track, and the demurrage charges continued to climb. 1 Wisconsin Central sued TiEnergy, seeking to recover approximately $100,000 in demurrage. TiEnergy filed a third-party complaint against Allied seeking indemnification or contribution. A flurry of motions followed the close of discovery: Wisconsin Central filed a motion for summary judgment against TiEnergy, TiEnergy filed a *854 cross-motion for summary judgment against Wisconsin Central, and Allied filed a motion for summary judgment against TiEnergy. In its opinion, the district court granted the motions filed by Wisconsin Central and Allied; it denied the one filed by TiEnergy. TiEnergy appeals the district court's grants of summary judgment in favor of Wisconsin Central and Allied.1 II. 2 Before we turn to the merits, we have two jurisdictional matters to address. The first concerns appellate jurisdiction. TiEnergy invoked our jurisdiction under which gives us “jurisdiction of appeals from all final decisions of the district courts of the United States.” To make the entry of final judgment clear, Federal Rule of Civil Procedure 58(a) provides that “[e]very judgment and amended judgment must be set out in a separate document.” While the district court docketed a Rule 58 judgment order reflecting its final disposition of the claims brought by Wisconsin Central against TiEnergy, it did not do so for the third-party claim that TiEnergy asserted against Allied. Because a judgment is not final for purposes of 1291 until it disposes of all claims in the suit, General Insurance Co. of the absence of the Rule 58 judgment order disposing of TiEnergy's third-party claim creates some uncertainty about our appellate jurisdiction. 3 We asked the parties to address this issue in supplemental briefing. They contend—and we agree—that although the district court failed to issue a separate judgment disposing of all the claims, it clearly signaled in its opinion that it was finished with the case. Rule 58’s “separate document” requirement is important because it keeps jurisdictional lines clear. We have said, however, that a district court's failure to comply with the formal requirement is not fatal to our jurisdiction if the district court has otherwise indicated its intent to finally dispose of all claims. The district court did so here. See Wisconsin Cent., 4 The second matter—and one on which we also ordered supplemental briefing—concerns original jurisdiction. Because this case focuses on the bill of lading, which is the shipping contract between the parties, it sounds like a breach-of-contract claim. But if this case is simply a contract dispute, we probably lack jurisdiction over it. Contract claims arise under state law, so they typically require diversity jurisdiction, and both Wisconsin Central and TiEnergy are citizens of Illinois. 28 U.S.C. 1332; see also In an exceptional circumstance, the presence of a federal issue can *855 transform a state-law claim into one that arises under federal law. See Grable & Sons Metal Products, There might be an argument for that here, but Wisconsin Central has not made it.2 5 Rather than asserting a contract claim that nonetheless arises under federal law, Wisconsin Central's complaint sought to recover demurrage pursuant to a provision of the Interstate Commerce Commission Termination Act that assigns liability for the payment of transportation rates. 49 U.S.C. 10743. Demurrage charges have long been treated as “rates for transportation” under that provision, see CSX Transportation and consignees are presumptively liable for it. Section 10743(c) grants rail carriers a cause of action to enforce that liability, and Wisconsin Central has invoked that grant here. A cause of action arises under the law that created it, American Well Works which means that this case arises under federal law. Jurisdiction exists pursuant to 28 U.S.C. 1337(a), which grants jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce.” In its supplemental brief, TiEnergy contends that 1337(a) carries an amount-in-controversy requirement that deprives us of jurisdiction. That provision limits federal jurisdiction over cases filed under 49 U.S.C. 11706 or 49 U.S.C. 14706 when the “matter in controversy for each receipt or bill of lading exceeds $10,000.” TiEnergy says that this limit applies, because the demurrage charges sought by Wisconsin Central include numerous invoices for less than $10,000. This argument is frivolous. Section 1337(a)’s amount-in-controversy limitation is plainly applicable only to cases filed under 49 U.S.C. 11706 or 49 U.S.C. 14706, and Wisconsin Central brought this action pursuant to 49 U.S.C. 10743. Moreover, the causes of action that 1337 limits—those brought under 11706 or 14706—involve actions brought against, not by rail carriers. This suit presents a federal question over which we have jurisdiction, and nothing in 1337(a) changes that. III. 6 7 Section 10743 codifies the common-law rule that the consignee of freight *856 is presumptively liable for demurrage accrued at the destination. Illinois Cent. R.R. Given this presumption, the parties agree that TiEnergy's liability for demurrage turns on whether it is a “consignee” for purposes of 10743. The tricky thing is that being a consignee under 10743 requires more than mere custody of the freight. Cf. Black's Law Dictionary (9th ed. 2009) (defining “consignee” to mean “[o]ne to whom goods are consigned” and “consign” to mean “transfer to another's custody or charge”). We consider other factors as well: whether the party agreed by contract to consignee status, whether the party was designated as consignee in the bill of lading, and the nature of the party's relationship to the freight. South 337 F.3d at –22. 8 In denying that it was the consignee of the railroad ties, TiEnergy emphasizes that it neither agreed to nor knew about its designation as consignee on the bill of lading. That is its best fact, because being unilaterally designated as the consignee on the bill of lading is not enough to render a recipient of freight liable for demurrage. South3 At the same time, this fact does not get TiEnergy off the hook, because even a unilaterally designated party can be liable for demurrage when other factors are present reflecting an interest in or control of the goods. This test is designed to separate intermediaries like warehouses and transloaders from recipients who have a legal or beneficial ownership interest in the freight. Those who merely handle the freight are not consignees; those with a relationship to it have that TiEnergy denies that it had any interest in or control of the railroad ties delivered by the detained railcars. According to TiEnergy, it was an intermediary like a warehouse or transloader. It received ties belonging to Allied and—acting solely on Allied's behalf—forwarded them to Xcel for incineration. Like other intermediaries *857 relieved of liability for demurrage, TiEnergy says that it acted merely as an agent with no interest of its own in the goods. 9 Classifying TiEnergy as an intermediary jams a square peg into a round hole. To begin with, TiEnergy is not in the freight-transfer or cargo-storage business. It is in the business of processing and disposing of used railroad ties. That distinguishes TiEnergy from the entities that present the hard cases for demurrage liability—warehousemen, pier operators, transloaders, and connecting carriers. See CSX Transp. Unlike these entities, TiEnergy is not an intermediary indifferent to freight that it stores or transfers from one mode of transportation to the next. It agrees to take railroad ties so that it can use them—as it did when the ties from Allied arrived at its facility. TiEnergy ground the ties, thereby exhibiting its control of them. And it sold the ties to Xcel, thereby demonstrating that it enjoyed their benefit. TiEnergy's claim that it functioned solely as Allied's agent in selling the ties to Xcel Energy for incineration is belied by the fact that it kept the full payment for itself.4 The only conclusion a juror could reasonably draw from these undisputed facts is that TiEnergy had both control of and an interest in the ties. And under South that means that it had consignee 337 F.3d at –22. Consignees are liable for demurrage; thus, TiEnergy owes Wisconsin Central the fees accrued for the detained rail cars.5 It is worth noting that if TiEnergy had been a consignee functioning only as Allied's agent, the statute offered it a way out of liability for transportation rates. Under 10743(a)(1), a “consignee that is an agent only, not having beneficial title to the property” has an option that other consignees do not: it can give the carrier written notice that it lacks beneficial title and the name and address of the person who does. If the agent takes that step, it escapes liability for “additional rates that may be found to be due after delivery.” 10743(a)(1). Demurrage accrues after delivery, so an agent-consignee who invokes this exception does not have to pay it. TiEnergy, however, did not invoke this exception. It thus remains subject to the default rule that consignees must pay when rail cars delivering shipments are detained longer than the time the tariff allows. IV. 10 11 TiEnergy insists that if it is found liable for the demurrage charges, it is entitled to either indemnification or contribution from Allied. Indemnification shifts the entire loss to the other party, while contribution distributes it among multiple parties. Both remedies look to fault when distributing loss. See6 *858 12 TiEnergy concedes that no written contract obligated Allied to indemnify it for any demurrage liability it incurred. (In fact, the parties had no written contract memorializing any of the details of their agreement.) Because it nonetheless asserts that Allied breached its agreement to assume responsibility for demurrage, it is presumably claiming that Allied and TiEnergy entered an oral contract regarding indemnity. It points to no evidence, however, supporting this assertion. TiEnergy's breach-of-contract claim therefore fails. 13 TiEnergy also argues that Allied must indemnify it because of an alleged agency relationship between the two. This argument fails for several reasons, but we can stop with this basic point: TiEnergy was not Allied's agent. A hallmark of the principal/agent relationship is the principal's right to control the conduct of the agent. See It is undisputed that Allied exercised no control over the manner in which TiEnergy disposed of the ties; nor, as we have already said, did TiEnergy sell them to Xcel on Allied's behalf. TiEnergy's claim for contribution in tort fares no better. This argument relies on the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/2, which—as its name suggests—permits one joint tortfeasor to seek contribution from another. Yet TiEnergy has not even tried to make the case that Wisconsin Central's claim for demurrage sounds in tort. Cf. Moreover, as the district court observed, Allied is not liable to Wisconsin Central for the demurrage; so even if this is a tort, there is no joint tortfeasor from whom to collect. The Act is wholly inapplicable.

Yafai v. Pompeo

A consular officer twice denied the visa application of Zahoor Ahmed, a citizen of Yemen, on the ground that she had sought to smuggle two children into the United States. Ahmed and her husband Mohsin Yafai—a United States citizen—filed suit challenging the officer's decision. But the decision is facially legitimate and bona fide, so the district court correctly dismissed the plaintiffs’ challenge to it under the doctrine of consular nonreviewability. I. Mohsin Yafai and Zahoor Ahmed were born, raised, and married in Yemen. Yafai became a naturalized United States citizen in 2001. After receiving his citizenship, Yafai filed I-130 petitions with the U.S. Citizenship and Immigration Service of the Department of Homeland Security on behalf of his wife and several of their children. The I-130 petitions—which, if granted, would permit them to apply for immigrant visas—were approved. Ahmed and her children subsequently applied for visas. But the consular officer denied Ahmed's visa application.1 The officer based the denial on attempted smuggling under 8 U.S.C. § 1182(a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” The denial stated: “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” Yafai and Ahmed told the embassy that Yaqub and Khaled were their children, *1020 both of whom had tragically drowned. Although it is not entirely clear from either the record or the plaintiffs’ brief, their position seems to have been that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased. In response, the consular officer requested additional documents about the children so that the officer could reconsider Ahmed's application. The officer requested (and Ahmed provided) seven types of documents: (1) vaccination records; (2) Khaled's school records; (3) hospital bills; (4) hospital birth records; (5) the police report from the drowning accident; (6) Khaled's passport; and (7) family photos. After providing the documents, the plaintiffs’ attorney contacted the consular office to request an update on the matter. An embassy fraud prevention manager working on Ahmed's case responded by email. The email stated: We acknowledge that there has been some repetition in examining the circumstances of the purported deaths of two beneficiaries, but we note that your clients do not testify credibly, testify contradictorily, deny the existence of evidence, and otherwise cast doubt on the accuracy of their responses. Hence they were questioned by the interviewing officer who referred their cases to the Fraud Prevention Unit whereupon we explored the same issues in more detail with you[r] clients. Based on their testimony, we concluded the evidence which you attached did exist, hence we requested its production in an effort to corroborate the testimony of your clients, not impeach it. As of this writing, a fraud investigator is reviewing the evidence and we will finalize our fraud report for the adjudicating officer. Several months after this email was sent, the consular officer reaffirmed the prior visa denial for attempted smuggling under § 1182(a)(6)(E).2 Yafai and Ahmed subsequently filed suit challenging the denial under the Declaratory Judgment Act and the Administrative Procedure Act. They argued that the consular officer acted in bad faith by ignoring evidence that Yaqub and Khaled were their children and that they were deceased. The district court dismissed the claims under the doctrine of consular nonreviewability. II. 1 2 3 Congress has delegated the power to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive's decisions. Kleindienst v. Mandel, 408 U.S. 753, 769–70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). To that end, the doctrine of consular nonreviewability “bars judicial review of visa decisions made by consular officials abroad.” *1021 Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017). The Supreme Court has identified a limited exception to this doctrine, however, when the visa denial implicates a constitutional right of an American citizen. Mandel, 408 U.S. at 769–70, 92 S.Ct. 2576; see Morfin v. Tillerson, 851 F.3d 710, 711 (7th Cir. 2017). Yet even in that circumstance, a court may not disturb the consular officer's decision if the reason given is “facially legitimate and bona fide.” Mandel, 408 U.S. at 769, 92 S.Ct. 2576. 4 The plaintiffs invoke this limited exception to the doctrine of consular nonreviewability on the ground that denying Ahmed a visa implicates one of Yafai's constitutional rights: his right to live in America with his spouse. The status of this right is uncertain. In Kerry v. Din, a plurality of the Supreme Court said that no such right exists, ––– U.S. ––––, 135 S.Ct. 2128, 2131, 192 L.Ed.2d 183 (2015) (plurality opinion), and if we were to adopt the plurality's reasoning, our analysis would end here. But we have avoided taking a position on this issue in the past, see, e.g., Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017), and we need not do so now. Even if the denial of Ahmed's visa application implicated a constitutional right of Yafai's, his claim fails because the consular officer's decision was facially legitimate and bona fide. 5 6 For a consular officer's decision to be facially legitimate and bona fide, the consular officer must identify (1) a valid statute of inadmissibility and (2) the necessary “discrete factual predicates” under the statute. See Din, 135 S.Ct. at 2140–41 (Kennedy, J., concurring). When a statute “specifies discrete factual predicates that the consular officer must find to exist before denying a visa,” the citation of the statutory predicates is itself sufficient. Id. at 2141. In other words, the consular officer need not disclose the underlying facts that led him to conclude that the statute was satisfied. Id. (“Mandel instructs us not to ‘look behind’ the Government's exclusion of [the alien spouse] for additional factual details beyond what its express reliance on [the relevant statutory provision] encompassed.”) (citing Mandel, 408 U.S. at 770, 92 S.Ct. 2576) ); see also Morfin, 851 F.3d at 713–14 (explaining that citation to the statutory requirements supplies a legitimate reason for denying a visa application). 7 Here, the officer provided a facially legitimate and bona fide reason for denying Ahmed's application. He cited a valid statutory basis: 8 U.S.C. § 1182(a)(6)(E). And he provided the factual predicate for his decision: “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” No more was required, and under Mandel, we cannot “look behind the exercise of that discretion.” 408 U.S. at 770, 92 S.Ct. 2576.3 *1022 III. 8 Yafai and Ahmed argue for an exception to Mandel's limited exception of consular nonreviewability. They contend that a court must engage in more searching review of a facially legitimate and bona fide decision if the plaintiffs make an affirmative showing that the decision was made in bad faith. And Yafai and Ahmed claim that they have made such a showing: they assert that the evidence they produced was strong, and the officer did not accept it. That, they say, demonstrates that the officer acted in bad faith. It is unclear how much latitude—if any—courts have to look behind a decision that is facially legitimate and bona fide to determine whether it was actually made in bad faith. In Mandel, the Court refused to look behind a facially legitimate and bona fide decision over the dissent's vigorous objection that “[e]ven the briefest peek behind [it] ... would reveal that it is a sham.” 408 U.S. at 778, 92 S.Ct. 2576 (Marshall, J., dissenting). Yet Justice Kennedy's concurrence in Din observes that an “affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity” might justify more searching review, 135 S.Ct. at 2141, and we have, at least in dicta, allowed for the same possibility, see Morfin, 851 F.3d at 713–14 (“Perhaps the refusal to issue Ulloa a visa could be said to lack a ‘facially legitimate and bona fide reason’ ... if the consular official had concluded that the indictment's charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider.”). Yafai and Ahmed might be right, therefore, that evidence of behind-the-scenes bad faith can overcome Mandel's rule that courts must stick to the face of the visa denial in evaluating it. That exception would not benefit the plaintiffs here, however, because they have failed to make “an affirmative showing” that the officer denied Ahmed's visa in bad faith. Din, 135 S.Ct. at 2141 (Kennedy, J., concurring). The plaintiffs contend that the only conclusion that an honest officer could draw from reviewing their evidence is that Ahmed qualified for a visa. But the fact that the officer did not believe Ahmed and Yafai's evidence does not mean that the officer was dishonest or had an illicit motive. See Bad Faith, Black's Law Dictionary (10th ed. 2014) (defining bad faith as “[d]ishonesty of belief, purpose, or motive”). The officer could have honestly concluded that Ahmed and Yafai's testimony was not credible and that the documents they provided did not substantiate it. Cf. Bustamante v. Mukasey, 531 F.3d 1059, 1062–63 (9th Cir. 2008) (stating that to establish bad faith, a plaintiff must “allege that the consular official did not in good faith believe the information he had”). Making an “affirmative showing of bad faith” requires a plaintiff to point to something more than an unfavorable decision. While it is not necessary for the Secretary of State to rebut Yafai and Ahmed's allegation of bad faith, we note that the evidence here reflects a good-faith evaluation of Ahmed's application. The officer asked Ahmed to submit additional documents so that the consulate could reconsider her visa application. A request for additional documents is inconsistent with the plaintiffs’ allegation that the officer ignored evidence in bad faith; on the contrary, the officer's willingness to reconsider Ahmed's application in light of additional evidence suggests a desire to get it right. And the embassy officer's email to the plaintiffs’ lawyer reveals good-faith reasons for rejecting the plaintiffs’ response to the smuggling charge. It details concerns about the plaintiffs’ credibility and contradictory testimony—concerns that cut directly against their argument that the officer acted insincerely in rejecting Ahmed's visa application. *1023 * * * The consular officer's decision to reject Ahmed's visa application was facially legitimate and bona fide, and the plaintiffs have made no affirmative showing that the officer acted in bad faith. Thus, the district court correctly dismissed the plaintiffs’ claims, which were asserted under both the Administrative Procedure Act and the Declaratory Judgment Act. See Morfin, 851 F.3d at 714 (dismissing claim under the APA because doctrine of consular nonreviewability applies); Matushkina, 877 F.3d at 295 (stating that “[c]ourts have applied the doctrine of consular nonreviewability even to suits where a plaintiff seeks to challenge a visa decision indirectly”). The judgment of the district court is AFFIRMED. Ripple, Circuit Judge, dissenting. Mohsin Yafai, a United States citizen, brought this action in the district court, alleging that a consular officer's decision to deny his wife an immigrant visa violates his right to due process of law. He submits that the officer, without any evidentiary support and with substantial evidence to the contrary, invented a theory that his wife had attempted to smuggle two children into the United States. My colleagues interpret the judicially created doctrine of consular non-reviewability to dictate dismissal of such a claim. I respectfully dissent because I believe that their view of the doctrine sweeps more broadly than required by the Supreme Court and our own precedent, and deprives Mr. Yafai of an important constitutional right. A. The first issue we must address is whether Mr. Yafai can maintain an action seeking redress for the denial of his wife's visa application. This step requires that we determine whether Mr. Yafai has any cognizable interest in his wife's application. In earlier cases, following Justice Kennedy's separate opinion in Kerry v. Din, ––– U.S. ––––, 135 S.Ct. 2128, 2139, 192 L.Ed.2d 183 (2015) (Kennedy, J., concurring in judgment), we have assumed, without deciding, that a United States citizen has a protected interest in a spouse's visa application. See, e.g., Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017). My colleagues continue to follow this path. Because I would grant relief on the merits, I cannot simply assume such a liberty interest. I must decide the issue. In my view, a citizen does have a cognizable liberty interest in a spouse's visa application. The Supreme Court certainly implied that a citizen can have a cognizable interest in an alien's visa application in Kleindienst v. Mandel, 408 U.S. 753, 762–65, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (suggesting American professors who sought Mandel's participation in a variety of conferences had a First Amendment interest in his presence and, therefore, his visa application). In Din, 135 S.Ct. at 2142–43 (Breyer, J., dissenting), the four dissenting justices specifically agreed that a United States citizen has an interest in an alien spouse's visa application. The three justices in the plurality, however, took the opposite view. Id. at 2131 (Scalia, J.) (plurality opinion). They noted that a couple is “free to live ... anywhere in the world that both individuals are permitted to reside” and that Congress has plenary power to regulate immigration, which it has exercised in its “long practice of regulating spousal immigration.” Id. at 2135–36, 2138. Justice Breyer's perspective is far more compatible with the values of our constitutional tradition. A citizen's right to live in this Country is protected under the Due Process Clause. See, e.g., Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); *1024 Ng Fung Ho v. White, 259 U.S. 276, 284–85, 42 S.Ct. 492, 66 L.Ed. 938 (1922). At the same time, our Nation's constitutional tradition values the institution of marriage highly, as it is “fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).1 Consequently, the Supreme Court has long recognized the importance of family and the principle that marriage includes the right of spouses to live together and raise a family. See, e.g., Obergefell v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 2590–2601, 192 L.Ed.2d 609 (2015); Zablocki v. Redhail, 434 U.S. 374, 384–86, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Moore v. City of East Cleveland, 431 U.S. 494, 500–04, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Griswold v. Connecticut, 381 U.S. 479, 485–86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Indeed, the right to conceive and to raise one's children has been deemed an “essential, basic civil right[ ] of man.”2 Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (citation and internal quotation marks omitted). The interests of parents in their children “is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (O'Connor, J.) (plurality opinion). It is incongruous to maintain, therefore, that a United States citizen does not have any interest in a spouse's presence in the Country and that the only recourse open to a citizen if the government denies a spouse entry is to leave the United States. Although Congress certainly can regulate spousal immigration and deny entry for good and sufficient reason, an American citizen has a liberty interest in living with his or her spouse. This interest requires that any exclusion of a citizen's spouse be imposed fairly and evenhandedly.3 *1025 Mr. Yafai, a United States citizen, therefore has a constitutionally protected interest in Ms. Ahmed's presence in the United States. This interest is secured by ensuring that our Government's consular officials evaluate fairly her visa application. What constitutes a fair evaluation is the question to which I now turn. B. In delineating the protections afforded citizens who sponsor an immigrant spouse's application for entry into the United States, we must begin, of course, with the unquestioned principle that Congress has plenary responsibility to regulate immigration into the United States. U.S. Const. art. I, § 8, cl. 4. In fulfilling that responsibility, Congress has enacted a prolix code that delegates a great deal of authority to the executive branch. See 8 U.S.C. § 1101 et seq. That delegation sets forth the distinctions and standards that Congress has deemed appropriate in administering entry into the United States. See 8 U.S.C. § 1182. We must not forget, however, that Congress also has given the judiciary the limited, but important, responsibility to ensure that the Executive administers the immigration process according to the standards enacted by Congress. The Immigration and Nationality Act explicitly sets forth when a court may not review the discretionary denial of a visa. See, e.g., 8 U.S.C. § 1182(a)(10)(C). The Act does not expressly preclude review of visa denials under the smuggling provision in 8 U.S.C. § 1182(a)(6)(E). Cf. 8 U.S.C. § 1252 (providing judicial review for orders of removal); Dhakal v. Sessions, 895 F.3d 532, 538 (7th Cir. 2018) (noting jurisdiction to review the denial of an asylum claim without a removal order because, “[a]lthough the APA is not an independent grant of jurisdiction, where federal jurisdiction is not precluded by another statute, general federal question jurisdiction exists under 28 U.S.C. § 1331” (citations omitted) ). In the course of fulfilling its responsibilities, the Judiciary has fashioned a consular non-reviewability doctrine. As a judge-made doctrine, it must be crafted and implemented in a manner compatible with the congressional mandate. The Supreme Court's decision in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), is the starting point for understanding this doctrine. There, the Supreme Court held that “when the Executive exercises” the delegated and plenary congressional power to make policies and rules for the exclusions of aliens “negatively on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion ... .” Id. at 770, 92 S.Ct. 2576 (emphasis added). In that case, Ernest Mandel, the plaintiff and a Belgian national, was invited to attend a variety of academic conferences in the United States and to speak about his communist views. Id. at 756–57, 92 S.Ct. 2576. His visa application was denied under a statutory provision that excluded from admission to the United States aliens who advocated for communism. Id. at 756, 92 S.Ct. 2576. The Government further stated that Mandel had not received a discretionary waiver because he had not followed his itinerary during a previous visit to the country. Id. at 758–59, 92 S.Ct. 2576. The Court held that, because “the Attorney General [had] inform[ed] Mandel's counsel *1026 of the reason for refusing his client a waiver,” and because “that reason was facially legitimate and bona fide,” further judicial review was unwarranted. Id. at 769, 92 S.Ct. 2576. The Court noted that the “plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established.” Id. at 769–70, 92 S.Ct. 2576. Therefore, the Court reasoned that “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id. at 770, 92 S.Ct. 2576. Notably, in Mandel, there was no contention that the Government had not considered Mandel's arguments. Rather, his sponsors sought judicial review of the merits of the underlying decision of immigration authorities: they contended that the official had not weighed properly First Amendment considerations in denying the waiver. The Supreme Court addressed the consular non-reviewability doctrine again in Kerry v. Din, ––– U.S. ––––, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015). In that case, the Government denied a spouse's application for a visa under a statutory provision providing that an alien would be inadmissible if he participated in any of eight enumerated types of terrorist activity. See 8 U.S.C. § 1182(a)(3)(B). There was no opinion for the Court, but Justice Kennedy, in his concurrence, explored Mandel's requirement of a facially legitimate and bona fide reason for a visa denial.4 He concluded “that the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under § 1182(a)(3)(B).”5 Din, 135 S.Ct. at 2141 (Kennedy, J., concurring in judgment). In his view, citing the terrorism provision, 8 U.S.C. § 1182(a)(3)(B), constituted sufficient explanation of the consular officer's reason for denying Din's husband a visa. Id. at 2140–41. Justice Kennedy determined that the Government did not have to point to which of the eight enumerated types of terrorist activity in § 1182(a)(3)(B) applied or to provide facts underlying its determination, in part because the statute expressly did not require the Government to do so. Id. at 2141; see also 8 U.S.C. § 1182(b)(3) (exempting individuals denied admission under the terrorism-related provisions from the statutory notice requirement). Under these circumstances, citation to a statute that itself “specifies discrete factual predicates” was enough to provide a facially legitimate and bona fide reason for the visa denial. Din, 135 S.Ct. at 2141 (Kennedy, J., concurring in judgment). That said, Justice Kennedy went on to note that Din's husband worked for the Taliban government, which “provides at least a facial connection to terrorist activity.” Id. Therefore, “[a]bsent an affirmative showing of bad faith on the part of the consular officer ... which Din *1027 has not plausibly alleged with sufficient particularity—Mandel instructs us not to ‘look behind’ the Government's exclusion of [Din's husband] for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed.” Id. In our own cases, we have attempted to apply the teachings of the Supreme Court in Mandel and Din.6 We have observed that no opinion in Din garnered a majority, and that Mandel must control our decision. Morfin v. Tillerson, 851 F.3d 710, 713 (7th Cir. 2017) (“[Din] left things as Mandel had left them—and the opinion in Mandel spoke for a majority of the Court, sparing us the need to determine how to identify the controlling view in Din given that the concurring opinion is not a logical subset of the lead opinion (or the reverse). Mandel tells us not to go behind a facially legitimate and bona fide explanation.” (citation omitted) ).7 Accordingly, we must accept the legitimacy of a “facially legitimate and bona fide” reason. We cannot “look behind” the stated reason, nor can we test its validity by second-guessing the Executive's weighing of various factors. While demonstrating our careful adherence to the teaching of Mandel, our recent cases also suggest the inherent limitations of the consular privilege. Properly understood, the Supreme Court's cases permit the judiciary to fulfill its congressionally mandated responsibilities. In each of our recent cases, we simply have determined that the Government asserted a facially legitimate and bona fide reason for exclusion by citing the statutory basis for the denial. In Morfin, 851 F.3d at 713, the consular officer cited the statute disqualifying for admission any alien who the consular officer has reason to believe is or has been a drug trafficker. Further, in Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017), we refused to go beyond the statutory ground cited and “recharacteriz[e]” a consular officer's determination that the visa applicant committed an act of terrorism by throwing rocks at Israeli soldiers as a thirteen-year-old boy. Finally, in Matushkina v. Nielsen, 877 F.3d 289, 295–96 (7th Cir. 2017), we found a consular officer's citation to the fraud and misrepresentation statute to be a facially legitimate and bona fide reason for the visa denial. In each case, however, we also went past the statutory citations and took notice of the evidence supporting the stated ground for inadmissibility. See Morfin, 851 F.3d at 713 (noting an indictment for drug trafficking *1028 supported the statutory requirement that the consular officer have “reason to believe” the alien is or has been a drug trafficker); Hazama, 851 F.3d at 709 (“The consular officer in Jerusalem knew several things before making his decision: first, this particular act of rock-throwing took place in one of the least settled places in the world ... ; second, rocks are not benign objects ... ; third, Ghneim did not deny that he had thrown the rocks; and fourth, Ghneim had several other blots on his record.”); Matushkina, 877 F.3d at 296 (“Matushkina acknowledged in the interview that she omitted information about her daughter's employment.”). In short, we made certain that the assertion by the consular officer was not made of whole cloth. As we put it in Morfin, 851 F.3d at 713, we assured ourselves that “the State Department was [not] imagining things.” See Hazama, 851 F.3d at 709 (“All we can do is to look at the face of the decision, see if the officer cited a proper ground under the statute, and ensure that no other applicable constitutional limitations are violated. Once that is done, if the undisputed record includes facts that would support that ground, our task is over.” (emphasis added) ); Morfin, 851 F.3d at 713–14 (“Perhaps the refusal to issue Ulloa a visa could be said to lack a ‘facially legitimate and bona fide reason’ (in Mandel's words) if the consular official had concluded that the indictment's charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider. But neither his complaint nor his appellate brief makes such an argument.” (emphasis added) ). Notably, in each of these cases, while assuring ourselves that consular officers stayed within the bounds of their authority, we never attempted to review the substantive merits of interpretive and discretionary decisions that they made. Indeed, in Hazama, 851 F.3d at 709, we accepted the consular official's determination that throwing rocks at Israeli soldiers as a thirteen-year-old boy constituted terrorist acts. We have made certain that there were bona fide facts present that provided some basis for the Department's assertion of the ground for exclusion. See id.; Morfin, 851 F.3d at 713; Matushkina, 877 F.3d at 295–96. We did not weigh the facts; we did not question the consular officer's characterization of the facts. We simply noted, to prevent arbitrariness, that the record contained some basis for the officer's decision. In none of these cases were we confronted with an allegation that the consular official had proceeded in bad faith. Nevertheless, we acknowledged that such an allegation, if plausibly made, would present a very different situation. We recognized that our statutory duty would require that we not look the other way. For instance, in Morfin, we acknowledged that a visa denial may lack a facially legitimate and bona fide reason if the applicant “had presented strong evidence of innocence that the consular officer refused to consider.” 851 F.3d at 713–14. In Hazama, 851 F.3d at 709, we acknowledged specifically the possibility that a case might raise serious allegations of bad faith. C. Today's case raises the concern of fundamental fairness that we previously acknowledged would fall outside the comparatively straightforward situations in Mandel, Din, and our earlier cases. Here, the evidence submitted by Mr. Yafai raises the distinct possibility that the consular officer, contrary to his representations made to Mr. Yafai's counsel, never considered the evidence submitted. Mr. Yafai, a citizen of the United States, wanted his family to come and live with him in this Country. He was successful in securing passports for those of his children who were born after he was naturalized and visas for those who were born earlier. An adult daughter, already married, stayed in *1029 Yemen. The consular officer denied a visa for his wife, Ms. Ahmed, under 8 U.S.C. § 1182(a)(6)(E) (“Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of the law is inadmissible.”). The denial included a single laconic statement that Ms. Ahmed violated the smuggling provision in § 1182(a)(6)(E): “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.”8 According to Mr. Yafai, while the family's applications were pending, two of the children had drowned accidentally. When the consular officials inexplicably denied Ms. Ahmed's application apparently on the ground that the two deceased children were not her own, the family submitted a substantial amount of evidence to overcome the accusation of fraud. That evidence included vaccination records for the deceased children, school records for the older deceased child, prenatal care and ultrasound records, publications concerning the drowning, a passport for the older deceased child, and complete family photos prior to the children's deaths.9 The consular office responded with another denial, which merely cited the immigration smuggling provision in § 1182(a)(6)(E).10 To this day, we have no idea what the basis was, or if there was any basis, for the Government's assertion that Ms. Ahmed attempted to smuggle two children into the United States. On this record, we cannot tell whether the adjudicating officer undertook a careful examination or whether, without any examination, he simply issued a denial based solely on a generalized, stereotypical assumption of what, in his view, happens in that country. This case is, therefore, precisely the unusual case that has made some of the Justices and our own court hesitate to sanction an ironclad, judge-made rule admitting of no exceptions. Here, in a case where the Government asserts no national security interest and where the important familial rights of an American citizen are at stake, the Government asks us to rubber stamp the consular decision on the basis of a conclusory assertion. Although Congress has tasked us, by statute, with the responsibility to prevent arbitrary and capricious government action, we look the other way despite the significant record evidence to refute the Government's assertion and no suggestion that the consular officer even considered it.11 Granted, we *1030 have no authority to assess the evidence, but under the statute, we do have the obligation to require, at the very least, that the Government assure us, by affidavit or similar evidence, that it actually took into consideration the evidence presented by the applicant and point to some factual support for the consular officer's decision to discount that evidence. In a case such as this one, where the Government makes no representation that such a demonstration would endanger national security, examination of the Government's explanation, in camera if appropriate, ought to satisfy any other legitimate concerns of the Government against disclosure in a public record. The Constitution gives Congress plenary authority over immigration matters and, as the Government reminds us, delegated a great deal of that authority to the Executive. The finely tuned provisions of the Immigration and Nationality Act delegate a great deal of authority to the Executive in immigration matters and, properly applied, the consular privilege ensures that that delegation of authority is not diluted by overly intrusive judicial proceedings. We cannot forget, however, that Congress has given the Judiciary the obligation to curb arbitrary action. It has made no exception for the action of consular officers. Congress did not, and would not, sanction consular officers’ making visa decisions in a purely arbitrary way that affects the basic rights of American citizens. We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand. As long as Congress keeps in place our statutory responsibility, we show no respect for the Constitution or for Congress by taking cover behind an overly expansive version of a judge-made doctrine. I respectfully dissent.

Barrett

majority

A consular officer twice denied the visa application of Zahoor Ahmed, a citizen of Yemen, on the ground that she had sought to smuggle two children into the United States. Ahmed and her husband Mohsin Yafai—a United States citizen—filed suit challenging the officer's decision. But the decision is facially legitimate and bona fide, so the district court correctly dismissed the plaintiffs’ challenge to it under the doctrine of consular nonability. I. Mohsin Yafai and Zahoor Ahmed were born, raised, and married in Yemen. Yafai became a naturalized United States citizen in 2001. After receiving his citizenship, Yafai filed I-130 petitions with the U.S. Citizenship and Immigration Service of the Department of Homeland Security on behalf of his wife and several of their children. The I-130 petitions—which, if granted, would permit them to apply for immigrant visas—were approved. Ahmed and her children subsequently applied for visas. But the consular officer denied Ahmed's visa application.1 The officer based the denial on attempted smuggling under (a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” The denial stated: “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” Yafai and Ahmed told the embassy that Yaqub and Khaled were their children, *1020 both of whom had tragically drowned. Although it is not entirely clear from either the record or the plaintiffs’ brief, their position seems to have been that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased. In response, the consular officer requested additional documents about the children so that the officer could reconsider Ahmed's application. The officer requested (and Ahmed provided) seven types of documents: (1) vaccination records; (2) Khaled's school records; (3) hospital bills; (4) hospital birth records; (5) the police report from the drowning accident; (6) Khaled's passport; and (7) family photos. After providing the documents, the plaintiffs’ attorney contacted the consular office to request an update on the matter. An embassy fraud prevention manager working on Ahmed's case responded by email. The email stated: We acknowledge that there has been some repetition in examining the circumstances of the purported deaths of two beneficiaries, but we note that your clients do not testify credibly, testify contradictorily, deny the existence of evidence, and otherwise cast doubt on the accuracy of their responses. Hence they were questioned by the interviewing officer who referred their cases to the Fraud Prevention Unit whereupon we explored the same issues in more detail with you[r] clients. Based on their testimony, we concluded the evidence which you attached did exist, hence we requested its production in an effort to corroborate the testimony of your clients, not impeach it. As of this writing, a fraud investigator is ing the evidence and we will finalize our fraud report for the adjudicating officer. Several months after this email was sent, the consular officer reaffirmed the prior visa denial for attempted smuggling under 1182(a)(6)(E).2 Yafai and Ahmed subsequently filed suit challenging the denial under the Declaratory Judgment Act and the Administrative Procedure Act. They argued that the consular officer acted in bad faith by ignoring evidence that Yaqub and Khaled were their children and that they were deceased. The district court dismissed the claims under the doctrine of consular nonability. II. 1 2 3 Congress has delegated the power to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive's decisions. To that end, the doctrine of consular nonability “bars judicial of visa decisions made by consular officials abroad.” *1021 The Supreme Court has identified a limited exception to this doctrine, however, when the visa denial implicates a constitutional right of an American citizen. –70, Yet even in that circumstance, a court may not disturb the consular officer's decision if the reason given is “facially legitimate and bona fide.” 4 The plaintiffs invoke this limited exception to the doctrine of consular nonability on the ground that denying Ahmed a visa implicates one of Yafai's constitutional rights: his right to live in America with his spouse. The status of this right is uncertain. In Kerry v. a plurality of the Supreme Court said that no such right exists, ––– U.S. ––––, and if we were to adopt the plurality's reasoning, our analysis would end here. But we have avoided taking a position on this issue in the past, see, e.g., and we need not do so now. Even if the denial of Ahmed's visa application implicated a constitutional right of Yafai's, his claim fails because the consular officer's decision was facially legitimate and bona fide. 5 6 For a consular officer's decision to be facially legitimate and bona fide, the consular officer must identify (1) a valid statute of inadmissibility and (2) the necessary “discrete factual predicates” under the statute. See –41 When a statute “specifies discrete factual predicates that the consular officer must find to exist before denying a visa,” the citation of the statutory predicates is itself sufficient. In other words, the consular officer need not disclose the underlying facts that led him to conclude that the statute was satisfied. (“ instructs us not to ‘look behind’ the Government's exclusion of [the alien spouse] for additional factual details beyond what its express reliance on [the relevant statutory provision] encompassed.”) (citing ) ); see also –14 (explaining that citation to the statutory requirements supplies a legitimate reason for denying a visa application). 7 Here, the officer provided a facially legitimate and bona fide reason for denying Ahmed's application. He cited a valid statutory basis: (a)(6)(E). And he provided the factual predicate for his decision: “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” No more was required, and under we cannot “look behind the exercise of that discretion.”3 *1022 III. 8 Yafai and Ahmed argue for an exception to 's limited exception of consular nonability. They contend that a court must engage in more searching of a facially legitimate and bona fide decision if the plaintiffs make an affirmative showing that the decision was made in bad faith. And Yafai and Ahmed claim that they have made such a showing: they assert that the evidence they produced was strong, and the officer did not accept it. That, they say, demonstrates that the officer acted in bad faith. It is unclear how much latitude—if any—courts have to look behind a decision that is facially legitimate and bona fide to determine whether it was actually made in bad faith. In the Court refused to look behind a facially legitimate and bona fide decision over the dissent's vigorous objection that “[e]ven the briefest peek behind [it] would reveal that it is a sham.” (Marshall, J., dissenting). Yet Justice Kennedy's concurrence in observes that an “affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity” might justify more searching 135 S.Ct. and we have, at least in dicta, allowed for the same possibility, see –14 (“Perhaps the refusal to issue Ulloa a visa could be said to lack a ‘facially legitimate and bona fide reason’ if the consular official had concluded that the indictment's charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider.”). Yafai and Ahmed might be right, therefore, that evidence of behind-the-scenes bad faith can overcome 's rule that courts must stick to the face of the visa denial in evaluating it. That exception would not benefit the plaintiffs here, however, because they have failed to make “an affirmative showing” that the officer denied Ahmed's visa in bad faith. 135 S.Ct. The plaintiffs contend that the only conclusion that an honest officer could draw from ing their evidence is that Ahmed qualified for a visa. But the fact that the officer did not believe Ahmed and Yafai's evidence does not mean that the officer was dishonest or had an illicit motive. See Bad Faith, Black's Law Dictionary (10th ed. 2014) (defining bad faith as “[d]ishonesty of belief, purpose, or motive”). The officer could have honestly concluded that Ahmed and Yafai's testimony was not credible and that the documents they provided did not substantiate it. Cf. Making an “affirmative showing of bad faith” requires a plaintiff to point to something more than an unfavorable decision. While it is not necessary for the Secretary of State to rebut Yafai and Ahmed's allegation of bad faith, we note that the evidence here reflects a good-faith evaluation of Ahmed's application. The officer asked Ahmed to submit additional documents so that the consulate could reconsider her visa application. A request for additional documents is inconsistent with the plaintiffs’ allegation that the officer ignored evidence in bad faith; on the contrary, the officer's willingness to reconsider Ahmed's application in light of additional evidence suggests a desire to get it right. And the embassy officer's email to the plaintiffs’ lawyer reveals good-faith reasons for rejecting the plaintiffs’ response to the smuggling charge. It details concerns about the plaintiffs’ credibility and contradictory testimony—concerns that cut directly against their argument that the officer acted insincerely in rejecting Ahmed's visa application. *1023 * * * The consular officer's decision to reject Ahmed's visa application was facially legitimate and bona fide, and the plaintiffs have made no affirmative showing that the officer acted in bad faith. Thus, the district court correctly dismissed the plaintiffs’ claims, which were asserted under both the Administrative Procedure Act and the Declaratory Judgment Act. See (dismissing claim under the APA because doctrine of consular nonability applies); (stating that “[c]ourts have applied the doctrine of consular nonability even to suits where a plaintiff seeks to challenge a visa decision indirectly”). The judgment of the district court is AFFIRMED. Ripple, Circuit Judge, dissenting. Mohsin Yafai, a United States citizen, brought this action in the district court, alleging that a consular officer's decision to deny his wife an immigrant visa violates his right to due process of law. He submits that the officer, without any evidentiary support and with substantial evidence to the contrary, invented a theory that his wife had attempted to smuggle two children into the United States. My colleagues interpret the judicially created doctrine of consular non-ability to dictate dismissal of such a claim. I respectfully dissent because I believe that their view of the doctrine sweeps more broadly than required by the Supreme Court and our own precedent, and deprives Mr. Yafai of an important constitutional right. A. The first issue we must address is whether Mr. Yafai can maintain an action seeking redress for the denial of his wife's visa application. This step requires that we determine whether Mr. Yafai has any cognizable interest in his wife's application. In earlier cases, following Justice Kennedy's separate opinion in Kerry v. ––– U.S. ––––, we have assumed, without deciding, that a United States citizen has a protected interest in a spouse's visa application. See, e.g., My colleagues continue to follow this path. Because I would grant relief on the merits, I cannot simply assume such a liberty interest. I must decide the issue. In my view, a citizen does have a cognizable liberty interest in a spouse's visa application. The Supreme Court certainly implied that a citizen can have a cognizable interest in an alien's visa application in 762–, (suggesting American professors who sought 's participation in a variety of conferences had a First Amendment interest in his presence and, therefore, his visa application). In –43 (Breyer, J., dissenting), the four dissenting justices specifically agreed that a United States citizen has an interest in an alien spouse's visa application. The three justices in the plurality, however, took the opposite view. at They noted that a couple is “free to live anywhere in the world that both individuals are permitted to reside” and that Congress has plenary power to regulate immigration, which it has exercised in its “long practice of regulating spousal immigration.” at 2135–36, 2138. Justice Breyer's perspective is far more compatible with the values of our constitutional tradition. A citizen's right to live in this Country is protected under the Due Process Clause. See, e.g., ; *1024 Ng Fung At the same time, our Nation's constitutional tradition values the institution of marriage highly, as it is “fundamental to our very existence and survival.”1 Consequently, the Supreme Court has long recognized the importance of family and the principle that marriage includes the right of spouses to live together and raise a family. See, e.g., ; ; ; ; Indeed, the right to conceive and to raise one's children has been deemed an “essential, basic civil right[ ] of man.”2 92 S.Ct. 08, The interests of parents in their children “is perhaps the oldest of the fundamental liberty interests recognized by this Court.” 0 S.Ct. 2054, It is incongruous to maintain, therefore, that a United States citizen does not have any interest in a spouse's presence in the Country and that the only recourse open to a citizen if the government denies a spouse entry is to leave the United States. Although Congress certainly can regulate spousal immigration and deny entry for good and sufficient reason, an American citizen has a liberty interest in living with his or her spouse. This interest requires that any exclusion of a citizen's spouse be imposed fairly and evenhandedly.3 *1025 Mr. Yafai, a United States citizen, therefore has a constitutionally protected interest in Ms. Ahmed's presence in the United States. This interest is secured by ensuring that our Government's consular officials evaluate fairly her visa application. What constitutes a fair evaluation is the question to which I now turn. B. In delineating the protections afforded citizens who sponsor an immigrant spouse's application for entry into the United States, we must begin, of course, with the unquestioned principle that Congress has plenary responsibility to regulate immigration into the United States. U.S. Const. art. I, 8, cl. 4. In fulfilling that responsibility, Congress has enacted a prolix code that delegates a great deal of authority to the executive branch. See 8 U.S.C. 1101 et seq. That delegation sets forth the distinctions and standards that Congress has deemed appropriate in administering entry into the United States. See We must not forget, however, that Congress also has given the judiciary the limited, but important, responsibility to ensure that the Executive administers the immigration process according to the standards enacted by Congress. The Immigration and Nationality Act explicitly sets forth when a court may not the discretionary denial of a visa. See, e.g., (a)(10)(C). The Act does not expressly preclude of visa denials under the smuggling provision in (a)(6)(E). Cf. 8 U.S.C. 52 (providing judicial for orders of removal); (noting jurisdiction to the denial of an asylum claim without a removal order because, “[a]lthough the APA is not an independent grant of jurisdiction, where federal jurisdiction is not precluded by another statute, general federal question jurisdiction exists under 28 U.S.C. 1331” (citations omitted) ). In the course of fulfilling its responsibilities, the Judiciary has fashioned a consular non-ability doctrine. As a judge-made doctrine, it must be crafted and implemented in a manner compatible with the congressional mandate. The Supreme Court's decision in is the starting point for understanding this doctrine. There, the Supreme Court held that “when the Executive exercises” the delegated and plenary congressional power to make policies and rules for the exclusions of aliens “negatively on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion” (emphasis added). In that case, Ernest the plaintiff and a Belgian national, was invited to attend a variety of academic conferences in the United States and to speak about his communist views. –57, His visa application was denied under a statutory provision that excluded from admission to the United States aliens who advocated for communism. The Government further stated that had not received a discretionary waiver because he had not followed his itinerary during a previous visit to the country. at 758–59, The Court held that, because “the Attorney General [had] inform[ed] 's counsel *1026 of the reason for refusing his client a waiver,” and because “that reason was facially legitimate and bona fide,” further judicial was unwarranted. The Court noted that the “plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established.” –70, Therefore, the Court reasoned that “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Notably, in there was no contention that the Government had not considered 's arguments. Rather, his sponsors sought judicial of the merits of the underlying decision of immigration authorities: they contended that the official had not weighed properly First Amendment considerations in denying the waiver. The Supreme Court addressed the consular non-ability doctrine again in Kerry v. ––– U.S. ––––, In that case, the Government denied a spouse's application for a visa under a statutory provision providing that an alien would be inadmissible if he participated in any of eight enumerated types of terrorist activity. See (a)(3)(B). There was no opinion for the Court, but Justice Kennedy, in his concurrence, explored 's requirement of a facially legitimate and bona fide reason for a visa denial.4 He concluded “that the Government satisfied any obligation it might have had to provide with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under 1182(a)(3)(B).”5 135 S.Ct. In his view, citing the terrorism provision, (a)(3)(B), constituted sufficient explanation of the consular officer's reason for denying 's husband a visa. at 2140–41. Justice Kennedy determined that the Government did not have to point to which of the eight enumerated types of terrorist activity in 1182(a)(3)(B) applied or to provide facts underlying its determination, in part because the statute expressly did not require the Government to do so. ; see also (b)(3) (exempting individuals denied admission under the terrorism-related provisions from the statutory notice requirement). Under these circumstances, citation to a statute that itself “specifies discrete factual predicates” was enough to provide a facially legitimate and bona fide reason for the visa denial. 135 S.Ct. That said, Justice Kennedy went on to note that 's husband worked for the Taliban government, which “provides at least a facial connection to terrorist activity.” Therefore, “[a]bsent an affirmative showing of bad faith on the part of the consular officer which *1027 has not plausibly alleged with sufficient particularity— instructs us not to ‘look behind’ the Government's exclusion of ['s husband] for additional factual details beyond what its express reliance on 1182(a)(3)(B) encompassed.” In our own cases, we have attempted to apply the teachings of the Supreme Court in and6 We have observed that no opinion in garnered a majority, and that must control our decision. (“[] left things as had left them—and the opinion in spoke for a majority of the Court, sparing us the need to determine how to identify the controlling view in given that the concurring opinion is not a logical subset of the lead opinion (or the reverse). tells us not to go behind a facially legitimate and bona fide explanation.” (citation omitted) ).7 Accordingly, we must accept the legitimacy of a “facially legitimate and bona fide” reason. We cannot “look behind” the stated reason, nor can we test its validity by second-guessing the Executive's weighing of various factors. While demonstrating our careful adherence to the teaching of our recent cases also suggest the inherent limitations of the consular privilege. Properly understood, the Supreme Court's cases permit the judiciary to fulfill its congressionally mandated responsibilities. In each of our recent cases, we simply have determined that the Government asserted a facially legitimate and bona fide reason for exclusion by citing the statutory basis for the denial. In the consular officer cited the statute disqualifying for admission any alien who the consular officer has reason to believe is or has been a drug trafficker. Further, in we refused to go beyond the statutory ground cited and “recharacteriz[e]” a consular officer's determination that the visa applicant committed an act of terrorism by throwing rocks at Israeli soldiers as a thirteen-year-old boy. Finally, in we found a consular officer's citation to the fraud and misrepresentation statute to be a facially legitimate and bona fide reason for the visa denial. In each case, however, we also went past the statutory citations and took notice of the evidence supporting the stated ground for inadmissibility. See ; 851 F.3d at (“The consular officer in Jerusalem knew several things before making his decision: first, this particular act of rock-throwing took place in one of the least settled places in the world ; second, rocks are not benign objects ; third, Ghneim did not deny that he had thrown the rocks; and fourth, Ghneim had several other blots on his record.”); (“ acknowledged in the interview that she omitted information about her daughter's employment.”). In short, we made certain that the assertion by the consular officer was not made of whole cloth. As we put it in we assured ourselves that “the State Department was [not] imagining things.” See 851 F.3d at (“All we can do is to look at the face of the decision, see if the officer cited a proper ground under the statute, and ensure that no other applicable constitutional limitations are violated. Once that is done, if the undisputed record includes facts that would support that ground, our task is over.” (emphasis added) ); –14 (“Perhaps the refusal to issue Ulloa a visa could be said to lack a ‘facially legitimate and bona fide reason’ (in 's words) if the consular official had concluded that the indictment's charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider. But neither his complaint nor his appellate brief makes such an argument.” (emphasis added) ). Notably, in each of these cases, while assuring ourselves that consular officers stayed within the bounds of their authority, we never attempted to the substantive merits of interpretive and discretionary decisions that they made. Indeed, in 851 F.3d at we accepted the consular official's determination that throwing rocks at Israeli soldiers as a thirteen-year-old boy constituted terrorist acts. We have made certain that there were bona fide facts present that provided some basis for the Department's assertion of the ground for exclusion. See id.; ; –96. We did not weigh the facts; we did not question the consular officer's characterization of the facts. We simply noted, to prevent arbitrariness, that the record contained some basis for the officer's decision. In none of these cases were we confronted with an allegation that the consular official had proceeded in bad faith. Nevertheless, we acknowledged that such an allegation, if plausibly made, would present a very different situation. We recognized that our statutory duty would require that we not look the other way. For instance, in we acknowledged that a visa denial may lack a facially legitimate and bona fide reason if the applicant “had presented strong evidence of innocence that the consular officer refused to consider.” –14. In 851 F.3d at we acknowledged specifically the possibility that a case might raise serious allegations of bad faith. C. Today's case raises the concern of fundamental fairness that we previously acknowledged would fall outside the comparatively straightforward situations in and our earlier cases. Here, the evidence submitted by Mr. Yafai raises the distinct possibility that the consular officer, contrary to his representations made to Mr. Yafai's counsel, never considered the evidence submitted. Mr. Yafai, a citizen of the United States, wanted his family to come and live with him in this Country. He was successful in securing passports for those of his children who were born after he was naturalized and visas for those who were born earlier. An adult daughter, already married, stayed in *1029 Yemen. The consular officer denied a visa for his wife, Ms. Ahmed, under (a)(6)(E) The denial included a single laconic statement that Ms. Ahmed violated the smuggling provision in 1182(a)(6)(E): “You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.”8 According to Mr. Yafai, while the family's applications were pending, two of the children had drowned accidentally. When the consular officials inexplicably denied Ms. Ahmed's application apparently on the ground that the two deceased children were not her own, the family submitted a substantial amount of evidence to overcome the accusation of fraud. That evidence included vaccination records for the deceased children, school records for the older deceased child, prenatal care and ultrasound records, publications concerning the drowning, a passport for the older deceased child, and complete family photos prior to the children's deaths.9 The consular office responded with another denial, which merely cited the immigration smuggling provision in 1182(a)(6)(E).10 To this day, we have no idea what the basis was, or if there was any basis, for the Government's assertion that Ms. Ahmed attempted to smuggle two children into the United States. On this record, we cannot tell whether the adjudicating officer undertook a careful examination or whether, without any examination, he simply issued a denial based solely on a generalized, stereotypical assumption of what, in his view, happens in that country. This case is, therefore, precisely the unusual case that has made some of the Justices and our own court hesitate to sanction an ironclad, judge-made rule admitting of no exceptions. Here, in a case where the Government asserts no national security interest and where the important familial rights of an American citizen are at stake, the Government asks us to rubber stamp the consular decision on the basis of a conclusory assertion. Although Congress has tasked us, by statute, with the responsibility to prevent arbitrary and capricious government action, we look the other way despite the significant record evidence to refute the Government's assertion and no suggestion that the consular officer even considered it.11 Granted, we *1030 have no authority to assess the evidence, but under the statute, we do have the obligation to require, at the very least, that the Government assure us, by affidavit or similar evidence, that it actually took into consideration the evidence presented by the applicant and point to some factual support for the consular officer's decision to discount that evidence. In a case such as this one, where the Government makes no representation that such a demonstration would endanger national security, examination of the Government's explanation, in camera if appropriate, ought to satisfy any other legitimate concerns of the Government against disclosure in a public record. The Constitution gives Congress plenary authority over immigration matters and, as the Government reminds us, delegated a great deal of that authority to the Executive. The finely tuned provisions of the Immigration and Nationality Act delegate a great deal of authority to the Executive in immigration matters and, properly applied, the consular privilege ensures that that delegation of authority is not diluted by overly intrusive judicial proceedings. We cannot forget, however, that Congress has given the Judiciary the obligation to curb arbitrary action. It has made no exception for the action of consular officers. Congress did not, and would not, sanction consular officers’ making visa decisions in a purely arbitrary way that affects the basic rights of American citizens. We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand. As long as Congress keeps in place our statutory responsibility, we show no respect for the Constitution or for Congress by taking cover behind an overly expansive version of a judge-made doctrine. I respectfully dissent.

Rae v. Children's National Medical Center

*1 Plaintiff Charlesworth Rae, an African-American man of Antiguan descent, was employed as an Investigational Research Pharmacist at Children's National Medical Center (“CNMC”) from February of 2010 until CNMC terminated his employment in December of 2014. (See 1st Am. Compl. (“Am. Compl.”), ECF No. 22-1, ¶¶ 3, 5, 7.) Rae has brought the instant action against CNMC and various CNMC employees (collectively, “Defendants”) under both federal and state law, alleging that he was not promoted, and was eventually terminated, due to his race and national origin, and also that Defendants ultimately fired him in retaliation for his having repeatedly expressed legitimate concerns about CNMC's pharmacy operations and for filing a police report accusing his supervisor of assault. (See id. ¶¶ 46–78.) Rae's claims have been narrowed through the course of this litigation, such that the only claims that are still at issue are those that he asserts for (1) wrongful termination in violation of public policy (Counts I and II); (2) racially discriminatory and retaliatory discharge in violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code Ann. §§ 2-1401.01–1404.04 (Count III); (3) racially discriminatory and retaliatory discharge in violation of 42 U.S.C. § 1981 (Count IV); and (4) racially discriminatory and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–e-17 (Count VI). Counts I–IV are asserted against CNMC, Dr. Sarah Donegan (Rae's supervisor), Dr. Ursula Tachie-Menson (Donegan's supervisor), Zandra Russell (a CNMC Human Resources representative), and Darryl Varnado (CNMC's Executive Vice President and Chief People Officer). (See id. at 1 n.1.)1 Count VI is asserted only against CNMC. (See id.) On March 15, 2017, after discovery had closed, this Court referred this matter to a magistrate judge for full case management through the district's random-assignment process. (See Min. Entry of Sept. 6, 2016; Min. Order of Mar. 15, 2017.) The case was assigned to Magistrate Judge Deborah Robinson, who subsequently granted in part a motion that Rae filed seeking to reopen discovery. (See Mem. Op. & Order, ECF No. 40, at 4, 7.) The parties proceeded to engage in a renewed period of discovery, and once they had resolved all of their discovery disputes, Defendants filed a motion for summary judgment. (See 2d. Joint Status Report, ECF No. 58; see also Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 59.) On March 28, 2018, Magistrate Judge Robinson issued the Report and Recommendation (“R & R”) that is appended hereto as Appendix A; in that Report, Magistrate Judge Robinson recommends that Defendants’ summary judgment motion be granted in its entirety with respect to Rae's remaining claims against the remaining defendants. (See R & R, ECF No. 71, at 2.) Before this Court at present is the R & R and Rae's objection thereto. (See Pl.’s Obj. to R & R (“Pl.’s Obj.”), ECF No. 78.) Rae argues that Magistrate Judge Robinson applied the wrong causation standard to his claims (see id. at 1), that the R & R improperly found that he had not specified any identifiable policy to support his claims for wrongful termination in violation of public policy (see id. at 2), that Magistrate Judge Robinson erred in finding that he had not identified evidence to support his claims of discrimination and retaliation against CNMC (see id. at 4, 12–13; 17–18), and that Magistrate Judge Robinson had improperly granted summary judgment to the individual defendants based on the purported failure of his claims against CNMC (see id. at 15). Rae's objection further maintains that CNMC may have “vitiated” their “at-will employment relationship” because it offered him a severance package—an argument that he did not include in the summary judgment briefing that Magistrate Judge Robinson addressed. (See id. at 17.)2 *2 This Court has carefully reviewed the R & R, the parties’ submissions, and the record evidence, and for the reasons explained below, the Court concludes that Magistrate Judge Robinson's report and recommendation must be ADOPTED IN PART, and Defendants’ motion for summary judgment will ultimately be GRANTED IN FULL. In particular, while the Court finds that Magistrate Judge Robinson applied the wrong causation standard to the wrongful discharge claim and that the R & R is also erroneous with respect to its finding that Rae had not identified any public policy to support his wrongful termination claims, the Court agrees with Magistrate Judge Robinson that there is insufficient record evidence of causation with respect to all of Rae's claims, and thus no reasonable jury could find that Rae had satisfied each of the elements for any of the legal claims presented. Therefore, Defendants are entitled to summary judgment. A separate Order consistent with this Memorandum Opinion will follow. I. BACKGROUND The factual and procedural background underlying this matter is fully recounted in Magistrate Judge Robinson's R & R and the various prior rulings that narrowed the scope of the claims on which Rae is proceeding. What follows is a brief recitation of the relevant background facts pertaining to Rae's remaining claims, which turn on his contention that Defendants are liable for “Racially Discriminatory/Retaliatory Discharge” (see Am. Compl., Counts III, IV, VI) and for terminating his employment in violation of public policy (see id. Counts I, II).3 A. Facts CNMC hired Rae in February of 2010 as a pharmacist in the Investigational Drug Services (“IDS”) Pharmacy, and he was an at-will employee of CNMC. (See Decl. of Charlesworth Rae (“Rae Decl.”), Ex. 1 to Pl.’s Opp'n to Defs.’ Mot. for Summ. J., ECF No. 60-2, ¶¶ 2–3.) Shortly after Rae was hired, he began expressing safety and regulatory concerns with respect to various practices that he allegedly observed at CNMC. For example, he reported to the Food and Drug Administration (“FDA”) his concerns about data tampering and falsification of records with respect to an ongoing study. (See id. ¶ 4.) Such reports continued throughout his tenure. (See, e.g., id. ¶¶ 5, 16–18.) In September of 2013, defendant Dr. Sarah Donegan (who is Caucasian) was hired as the Manager of the IDS Pharmacy, even though she lacked a license to practice pharmacy in the District of Columbia at the time that she was hired. (See id. ¶ 8.) Donegan and Rae had a tense relationship from the moment that Donegan began working at CNMC. In one instance, for example, Donegan conveyed to Rae that he was improperly loud and aggressive when he addressed her. (See Ex. 16 to Defs.’ Mot., ECF No. 59-18, at 1 (noting that Donegan told Rae during a meeting that she felt bullied by him during their interactions because he repeatedly interrupted her and increased his tone when talking to her); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1 (noting, in the context of a counseling memorandum that Donegan issued to Rae regarding his behavior, that Rae “raised [his] voice” and refused to lower it, and “became disruptive to others” during a meeting on May 29, 2014).) In addition, Donegan had concerns about Rae copying his personal email when responding to her or sending emails to CNMC employees, and she asked him to refrain from doing this—a request that Rae did not honor. (See Ex. 24 to Defs.’ Mot., ECF No. 59-26, at 1.) Rae also apparently initially resisted instructions from Donegan to sign off on certain paperwork in connection with a research study, which resulted in a warning from Donegan to Rae about his conduct being deemed insubordination. (See Ex. 25 to Defs.’ Mot., ECF No. 59-27, at 1–5.) Rae ultimately signed off on the necessary paperwork, but he indicated that he was doing so “under duress.” (Id. at 1.) *3 The tense nature of their relationship was apparently also obvious to others at CNMC. On December 13, 2013, Donegan's supervisor, Dr. Tachie-Menson, sent an email to CNMC's Human Resources office (“HR”) requesting a meeting to discuss Rae in light of her concerns that Rae “is undermining [Donegan's] authority [because] [w]henever he doesn't agree with a decision made by her, he sends a response to HR and to compliance[,] ... [and he] has been resistant to any change she has attempted to make for the improvement of the workflow and documentation compliance.” (Ex. 15 to Defs.’ Mot., ECF No. 59-17, at 1.) The record is also replete with email communications between Donegan and Rae—with cc's to Rae's personal email account, Tachie-Menson, and various individuals in HR, including HR contact Zandra Russell—and these exchanges consistently demonstrate Rae's resistance to Donegan's requests to meet with him individually to discuss issues related to his work. (See, e.g., Ex. 16 to Defs.’ Mot. at 1; see also Ex. 20 to Defs.’ Mot., ECF No. 59-22, at 1 (email from Rae to Donegan in response to an Outlook meeting invitation, in which Rae states, “Based on your repeated hostility towards me ... I would prefer not to meet ... today. Alternatively, I would like to have an opportunity to first discuss my concerns with the Legal Department before meeting with you and HR under these circumstances”); Ex. 22 to Defs.’ Mot., ECF No. 59-24, at 1 (email chain between Russell and Rae, during which Russell states, in response to Rae's statements about being uncomfortable meeting with Donegan, that “Dr. Donegan has the right as your manager to meet with you to discuss work-related issues[,]” and that “you were [previously] advised to meet with Pharmacy management when requested and to perform your job as expected”).) For his part, Rae allegedly had his own concerns about Donegan's conduct and work performance. In October of 2014, Rae filed a claim of assault with the Metropolitan Police Department, based on his allegation that Donegan had “hit [him] on [his] shoulder” in a manner that did not physically hurt him. (Rae Dep., Ex. 5 to Defs.’ Mot., ECF No. 59-7, at 22.) Rae also complained to CNMC's compliance officer that Donegan was engaging in the unauthorized practice of pharmacy, and he submitted various reports regarding safety concerns that he had with respect to Donegan's handling of drugs. (See, e.g., Rae Decl. ¶¶ 10–11, 13.) In addition, Rae filed two charges with the EEOC alleging that Donegan was discriminating against him and harassing him—the first on June 30, 2014, and the second on November 25, 2014. (See id. ¶¶ 21, 28.)4 In the context of the instant action, Rae further claims that Donegan shouted at him on various occasions (see, e.g., Ex. 14 to Defs.’ Mot., ECF No. 59-16, at 1), and that she otherwise engaged in conduct that was “professionally disrespectful, demeaning, and unbecoming of a manager” (Ex. 16 to Defs.’ Mot. at 1). Rae emailed Daryl Varnado (an HR executive), Russell, Tachie-Menson, and other HR staff on numerous occasions to complain about Donegan's treatment of him, including to report that Donegan was subjecting him to unwarranted “hostility” (e.g., Ex. 13 to Pl.’s Opp'n, ECF No. 60-14, at 1), that she had was violating CNMC's Harassment/Discrimination Policy and Procedure (see Ex. 14 to Pl.’s Opp'n, ECF No. 60-15, at 1), and that she had “publicly ridiculed and embarrassed” him (Ex. 15 to Pl.’s Opp'n, ECF No. 60-16, at 1). Rae's relationship with Donegan deteriorated over time, such that he eventually requested that an HR representative be present for any meeting between them. (See, e.g., Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Stmt. of Undisputed Facts, ECF No. 59-1, at 18–21.) However, Donegan and the HR office both made clear to Rae that he did not have a right to insist that someone else be present when he met with his supervisor (see, e.g., Ex. 23 to Defs.’ Mot., ECF No. 59-25, at 1; Ex. 24 to Defs.’ Mot., ECF No. 59-26, at 1), and Donegan ultimately informed Rae that if he refused to meet with her without a witness present, his refusal “will be characterized as insubordination” (Ex. 24 to Defs.’ Mot. at 1). The final and noteworthy incident before Rae's termination occurred on December 3, 2014. Donegan had instructed Rae to appear at the HR office on December 3rd at 3 PM for a “Performance Review Discussion” with her and Russell. (Ex. 18 to Pl.’s Opp'n, ECF No. 60-19, at 1; Ex. 37 to Defs.’ Mot. (“Termination Letter”), ECF No. 59-39, at 1.) Rae sent a responsive email to Tachie-Menson, copying Donegan and various other individuals on December 3rd: *4 I wish to acknowledge receipt of an invitation from my immediate supervisor, Dr. Sarah Donegan, for a mandatory meeting with me and a HR Representative (Zandra Russell) today at 3 pm. Based on the repeated hostile and unduly stressful meetings I have had with Dr. Donegan that have severely affected my health, coupled with my outstanding complaint of assault, it will be unhealthy and unproductive for me to meet with her at this time. Accordingly, I would like to request that any discussions regarding my performance evaluation at this time occur[ ] in writing. (Ex. 33 to Defs.’ Mot., ECF No. 59-35, at 1.) When Donegan subsequently asked Rae if he intended to attend the meeting as scheduled, he stated that he was waiting for Tachie-Menson to respond to his email. (See Rae Decl. ¶ 31.) A hallway confrontation between Rae and Donegan ensued, after which Rae went to his car. (See id. ¶¶ 32–33.) He returned to the building shortly thereafter and asked for a security escort to the 3 PM meeting. (See id. ¶ 34.) Donegan and Russell were not in the HR suite, and Donegan testified that this was because she believed that Rae had refused to attend the meeting. (See Donegan Dep., Ex. 6 to Defs.’ Mot., ECF No. 59-8, at 8.) Varnado was called to the suite, and he placed Rae on indefinite administrative leave pending an investigation. (See Rae Decl. ¶¶ 36–37.) In the course of the investigation that followed, Russell learned that “Rae came to Human Resources [on December 3] with a CNMC security officer to file a complaint about Donegan's request for a mandatory meeting with him” because he believed “that Dr. Donegan's request was a form of harassment.” (Russell Aff. ¶ 13.) “Based on the investigation into [ ] Rae's conduct, Human Resources recommended that [ ] Rae's employment be terminated for his repeated harassing and insubordinate conduct toward his supervisor, Dr. Donegan, which had been well documented.” (Id. ¶ 14.) This decision was memorialized in a letter that Russell drafted on December 4, 2014, terminating Rae's employment effective December 8, 2014. (See id. ¶ 15; Termination Letter at 1.) B. Procedural History Rae filed his initial complaint pro se on May 15, 2015, and on March 25, 2016, this Court issued an Order dismissing certain claims and allowing Rae to file an amended complaint. (See Compl., ECF No. 1; Order, ECF No. 18, at 1–2.).5 Rae filed his Amended Complaint on May 24, 2016. (See generally Am. Compl.) Rae secured counsel to represent him during the discovery period, but that representation ended after discovery closed and before summary judgment motions were filed. (See Notice of Appearance, ECF No. 30; Mot. to Substitute Counsel, ECF No. 32.) Once again proceeding pro se, Rae moved to reopen discovery, asserting that his former counsel had falsely represented that all discovery issues had been resolved. (See Mot. to Reopen Disc., ECF No. 34, at 2–3.) Magistrate Judge Robinson granted this request in part (see Mem. Op. & Order, ECF No. 40), and during the reopened discovery period, new counsel entered an appearance for Rae (see Notice of Appearance, ECF No. 51). Then, at the close of the reopened discovery period, the parties jointly represented to Magistrate Judge Robinson that all outstanding discovery issues had been resolved. (See 2d Joint Status Report, ECF No. 58.) CNMC filed its motion for summary judgment on July 28, 2017. In that motion, Defendants argue that Rae's claims for discrimination and retaliation fail as a matter of law, because CNMC has provided a legitimate, non-discriminatory reason for his termination—insubordination—and that there is no record evidence establishing that this reason is a pretext for discrimination or retaliation. (See Defs.’ Mem. at 32–35, 40–41.) Defendants further argue that Rae cannot prove that similarly-situated employees were treated differently (see id. at 39–40), and that they are also entitled to summary judgment on Rae's wrongful termination in violation of public policy claim, because Rae has not identified a specific policy that his termination violates and cannot prove that his termination was the result of anything other than his insubordination (see id. at 44–45). Finally, with respect to the claims Rae has brought against the individual CNMC employees, Defendants assert that such claims are foreclosed because there is no evidence that these individuals acted with malice or beyond the scope of their employment at CNMC. (See id. at 45–46.) *5 Rae opposes Defendants’ summary judgment motion, arguing that the record contains “sufficient evidence for a jury to conclude that the reason given for his termination was false[,]” and that “the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work environment and discrimination.” (Pl.’s Opp'n at 1–2.)6 Defendants’ motion for summary judgment became ripe for review on October 16, 2017. (See Reply to Pl.’s Opp'n, ECF No. 70.) Magistrate Judge Robinson issued her Report and Recommendation regarding Defendants’ motion on March 28, 2018. (See generally R & R.) The R & R recommends that Defendants’ motion for summary judgment with respect to Rae's claim for termination in violation of public policy be granted for two independent reasons. First, Magistrate Judge Robinson finds that Rae has failed to specify an “identifiable policy[,]” which is required to state a claim for wrongful discharge in violation of public policy under D.C. law. (R & R at 15 (internal quotation marks and citation omitted).) See Clay v. Howard Univ., 128 F. Supp. 3d 22, 27 (D.D.C. 2015) (“To state a claim for wrongful discharge in violation of public policy, the plaintiff must point to some identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution, and a close fit between the policy and the conduct at issue in the allegedly wrongful termination.” (quoting Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709–10 (D.C. 2013)) (internal quotation marks omitted).) Magistrate Judge Robinson also concludes that Rae “has offered no evidence that his protected conduct was the ‘sole reason’ ” for his termination, and has instead offered “only his bare speculation[.]” (R & R at 17 (quoting Hewitt v. Chugach Gov't Servs., Inc., No. 16-cv-2192, 2016 WL 7076987, at *2 (D.D.C. Dec. 5, 2016)).) Magistrate Judge Robinson's R & R further concludes that Defendants are entitled to summary judgment on Rae's retaliation claims, primarily because the only adverse action at issue was his termination (see id. at 7 n.5), and Rae “offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation (see id. at 18). Instead, according to the R & R, the “Statement of Genuine Issues” that is included in Rae's brief “merely recounts the chronology of events during the course of his employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to the public; his complaints regarding harassment, hostile work environment and discrimination, and his denial of having been insubordinate.” (Id.) Magistrate Judge Robinson also explains that she “reviewed each of the exhibits Plaintiff filed” in order to determine whether any “serves as evidence of a genuine issue regarding a fact material to Plaintiff's retaliation claims” and found that none did. (Id. at 19.)7 With respect to the retaliation claims that Rae has brought against the individual defendants, Magistrate Judge Robinson finds that the individual defendants are also entitled to summary judgment, because “any claim against any one of them must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment.” (Id. at 20.) *6 Rae has asserted a number of objections to the R & R's finding and conclusions. (See generally Pl.’s Obj.) With respect to his claim for wrongful termination in violation of public policy, Rae's objection is twofold. He argues, first, that he has identified a public policy to support his claims; specifically, “ ‘the public policy underlying the legal proscriptions on the storage and handling of drugs[.]’ ” (Pl.’s Obj. at 2 (quoting Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999)).) Rae also contends that the proper causation standard for claims alleging termination in violation of public policy is a “predominate reason” and not the “sole reason” standard that Magistrate Judge Robinson applied (id. at 1 (citing Bereston v. UHS of Del., Inc., 180 A.3d 95 (D.C. 2018)), and that there is sufficient record evidence to show that his conduct in reporting safety concerns regarding prescription drugs was a predominate reason for his termination (see id. at 4). With respect to his claims for retaliatory discharge under Title VII, section 1981, and the DCHRA, Rae contends that the proper causation standard for such claims is a “motivating reason” standard, rather than the “but for” standard that Magistrate Judge Robinson applied. (Id. at 1.) And he further maintains that the question of whether his protected conduct led to his termination is one for a jury, “because there is a close temporal relationship between [his] claimed protect[ed] activity and the falsity of the reasons Defendants give for [his] termination.” (Id. at 12.) Finally, Rae objects to the findings regarding his claims against the individual defendants, arguing that he did not have a fair opportunity during discovery to develop evidence about whether they acted with malice or outside the scope of their employment. (See id. at 16.)8 Defendants respond that this Court should overrule Rae's objections to the R & R because Magistrate Judge Robinson applied the appropriate causation standard for his claims (see Defs.’ Resp. to Pl.’s Obj., ECF No. 80, at 5), correctly found that he had not identified a public policy on which to predicate a wrongful termination claim (see id. at 6–8), properly concluded that Rae did not produce sufficient evidence to send any of his claims to a jury (see id. at 8–10), and correctly dismissed the claims against the individual defendants on the grounds that his underlying claims all failed (see id. at 10). Rae replied to Defendants’ arguments concerning his objection on July 6, 2018. (See Reply to Defs.’ Obj. Resp., ECF No. 85.)9 II. LEGAL STANDARDS A. Review Of Objections To A Magistrate Judge's Report And Recommendation When a magistrate judge issues a report and recommendation on a motion for summary judgment, any party may file written objections to the proposed findings and recommendations within fourteen days. See LCvR 72.2(a)(3), (b). Any objection must “specifically designate the order or part thereof to which objection is made, and the basis for the objection.” See LCvR 72.3(d). And upon receipt of a timely objection, this Court is obligated to “make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). *7 Put another way, “the Court's analysis with respect to such issues is ‘equivalent to a decision in the first instance on the merits’ of the [motion] for summary judgment.” Harris v. Friendship Pub. Charter Sch., No. 18-cv-396, 2019 WL 954814, at *2 (D.D.C. Feb. 27, 2019) (quoting Rooths v. District of Columbia, 802 F. Supp. 2d 56, 60 (D.D.C. 2011)). B. Motions For Summary Judgment Under Rule 56 To succeed on a motion for summary judgment, the moving party must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record[,]” Fed. R. Civ. P. 56(c)(1)(A), and “[a] fact is material if it ‘might affect the outcome of the suit under the governing law[,]’ ” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the non-moving party must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). When assessing a motion for summary judgment, this Court's role is solely to determine “whether there is a genuine dispute for trial[,]” and the Court must not make credibility assessments or weigh evidence. Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013). Instead, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Notably, however, the Court need not accept conclusory assertions that are unsupported by the record evidence. See Ass'n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by [video evidence in] the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). III. ANALYSIS As explained above, at issue at this stage of the instant case are Rae's claims for wrongful termination in violation of public policy (Counts I and II), and for racially discriminatory and retaliatory discharge in violation of the DCHRA (Count III), 42 U.S.C. § 1981 (Count IV), and Title VII (Count VI). Magistrate Judge Robinson's R & R recommends that this Court grant Defendants’ motion for summary judgment regarding these claims in its entirety, and this Court ultimately agrees, as explained below. While Rae is correct that certain aspects of the R & R are erroneous, the Court concludes that Rae has nevertheless provided insufficient evidence to support a jury finding that the reason given for his termination was pretextual and that the real reason was retaliation for his having engaged in certain protected activities or race discrimination. A. Defendants Are Entitled To Summary Judgment On Rae's Claims For Termination In Violation Of The Public Policies He Has Identified, Because There Is No Evidence That Defendants Terminated Rae In Violation Of Any Such Policy *8 As explained above, the R & R recommends that Defendants’ motion for summary judgment with respect to Rae's claim for termination in violation of public policy be granted because Rae had failed to point to the requisite “identifiable policy[,]” (R & R at 15 (quotation marks and citation omitted)), and because he “has offered no evidence that this protected conduct was the sole reason” for his discharge, instead relying on “only his bare speculation.” (See id. at 17 (internal quotation marks and citation omitted).) Rae asserts that he has identified “ ‘the public policy underlying the legal proscriptions on the storage and handling of drugs’ ” (Pl.’s Obj. at 2 (quoting Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999))), and he further maintains that there is sufficient record evidence to show that his protected conduct was a predominate reason for his termination (see Pl.’s Obj. at 4; see also Pl.’s Suppl. Obj. at 46.) This Court agrees with Rae that he has identified a public policy to support his wrongful termination claim, and that the “predominate reason” standard applies, but Rae has not provided evidence from which a reasonable jury could determine that his reports about drug handling and pharmacy practices were a predominate reason for his termination. 1. The R & R Incorrectly Found That Rae Had Not Identified A Public Policy And Applied The Wrong Legal Standard To His Claim In Adams v. George W. Cochran & Co., Inc., 597 A.2d 28 (D.C. 1991), the District of Columbia Court of Appeals held “that there is a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.” Id. at 34. The Court later clarified “that the ‘very narrow exception’ created in Adams” was not so narrow as to foreclose the exception entirely, and, in particular, that the exception “should not be read in a manner that makes it impossible to recognize any additional public policy exceptions to the at-will doctrine that may warrant recognition.” Carl v. Children's Hosp., 702 A.2d 159, 160 (D.C. 1997). In finding that Rae had not pointed to a recognized public policy that could support invocation of this exception, Magistrate Judge Robinson distinguished the key case on which Rae relies, Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999), which involved a plaintiff's claim that he was wrongfully discharged “in retaliation for his threat to report to the Federal Drug Administration [ ] the unlawful condition in which his employer was storing pharmaceutical drugs[.]” Id. at 1327. Relying on Adams, the D.C. Circuit panel found that the plaintiff's termination implicated “the public policy underlying the legal proscriptions on the storage and handling of drugs” and “protecting the public from the purchase of adulterated drugs[,]” and thus, that the plaintiff had stated a cognizable claim for termination in violation of public policy. Id. at 1331. Magistrate Judge Robinson nevertheless rejected Rae's reliance on Liberatore, on the grounds that Rae was basing his claim on what she perceived to be a different policy: “patient safety and the safety of drugs dispensed to the public.’ ” (R & R at 17 n.7 (quotation marks and citation omitted); see also Pl.’s Obj. at 9–10 (noting that Rae had made safety reports regarding “patient safety concerns pertaining to drug potency and regulatory concerns”); id. at 13 (pointing out Rae's reporting of “a number of ‘good catches’ drug safety interventions involving expired investigational drugs”).) This Court finds that the distinction that the R & R draws between a public policy concerning “the legal proscriptions on the storage and handling of drugs” and “protecting the public from the purchase of adulterated drugs”—which Liberatore plainly recognizes, 168 F.3d at 1327—on the one hand, and a public policy concerning “patient safety and the safety of drugs dispensed to the public’ ” (R & R at 17 n.7), on the other, is one without a difference, as far as the wrongful termination tort is concerned. Therefore, based on the authority of Liberatore, this Court concludes that Rae has, in fact, identified a public policy on which he can base the wrongful termination claim in Count I. And to the extent that Rae alternatively seeks to ground his tort claim on his report to MPD that Donegan assaulted him (see Pl.’s Opp'n at 8), he has likewise plainly identified the necessary public policy for Count II, see Perkins v. WCS Constr., LLC, No. 18-cv-751, 2018 WL 5792828, at *8 (D.D.C. Nov. 5, 2018) (finding that plaintiff stated a claim for wrongful termination in violation of public policy based on her reporting a criminal threat of assault). *9 The R & R also mistakenly determined that the narrow Adams exception to at will termination “is recognized in this jurisdiction [only] when violation of such public policy is the ‘sole reason’ for the employee's termination.” (R & R at 11 (quoting Arias v. Marriott Int'l, Inc., 217 F. Supp. 3d 189, 197 (D.D.C. 2016).) While the D.C. Court of Appeals in Adams initially established a “sole reason” standard, its later decisions have adopted the “predominant reason” standard to which Rae points. See, e.g., Bereston v. UHS of Delaware, Inc., 180 A.3d 95, 104 n.25 (D.C. 2018); Davis v. Cmty. Alternatives of Wash., D.C., Inc., 74 A.3d 707, 710 (D.C. 2013); Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 n.25 (D.C. 1998). Consequently, to survive Defendants’ motion for summary judgment with respect to Counts I and II, Rae's wrongful termination claims must be supported by sufficient evidence to permit a reasonable jury to conclude that Rae was discharged predominantly because he did not countenance CNMC's alleged violations of drug-handling or safety standards, or predominantly because he did not keep quiet about Donegan's alleged assault. 2. The R & R Correctly Found That There Is Insufficient Evidence Connecting Rae's Protected Conduct To His Termination On the record presented here, this Court concludes (as Magistrate Judge Robinson ultimately did) that there is no genuine issue of material fact concerning whether Rae's conduct in making drug safety reports or his police report concerning Donegan was a predominant reason for his termination. Rae's efforts to establish such a genuine dispute are primarily comprised of an attempt to raise the specter of pretext, by making various assertions that relate to the legitimate reason that CNMC offered for his termination—that his “continued pattern of insubordinate and harassing behavior” towards Donegan, including the facts surrounding his attendance at the December 3, 2014, meeting. (Termination Letter at 1.) For instance, Rae emphasizes that he “did in fact attend the meeting” on December 3rd, and he argues that this circumstance indicates that CNMC's “insubordination” contention is pretextual. (Pl.’s Obj. at 6.) But his analysis in this regard ignores both key facts about what Donegan believed concerning the meeting at issue, and also the related and well-established principle that, when considering questions of pretext in the employment realm, courts look not at “the correctness or desirability of the reasons offered, but whether the employer honestly believes in the reasons it offers.” Woodruff v. Peters, 482 F.3d 521, 531 (D.C. Cir. 2007) (quotation marks and citation omitted). And based on the undisputed record facts about what happened prior to that meeting, there can be no question that Donegan reasonably believed that Rae did not plan to attend the meeting. (See Donegan Dep. at 8.) Russell, too, apparently doubted Rae's willingness to meet as requested; she conducted an investigation and determined that Rae was present in Human Resources on December 3rd at 3 PM not for the mandatory meeting that Donegan had set, but for an entirely separate reason: to complain, once again, about Donegan asking to meet with him in person. (See Russell Aff. ¶ 13.) Thus, the record establishes that Russell and Donegan both sincerely and reasonably believed that Rae was being insubordinate regarding the December 3rd meeting. Rae also attempts to establish pretext based on the contention that his copying of correspondence to his personal email was not a violation of CNMC's IT policy. (See Pl.’s Obj. at 7 (asserting that, therefore, “Defendants’ stated reason for Plaintiff's alleged insubordination for copying his email is false”).) But any dispute over whether or not Rae's copying conduct violation CNMC's policies is not material. What is relevant is that Donegan gave Rae an express instruction based on her reading of the policy (see Ex. 27 to Defs.’ Mot., ECF No. 59-29, at 3–4), and that Rae refused to comply (see id.). Rae does not dispute that Donegan had demanded that he cease that behavior and that he did not do so; therefore, whether the IT policy actually prohibited Rae from copying his personal email address is entirely beside the point. (See id.) *10 Similarly, Rae's assertion that he did not continually harass Donegan, and that he did not act unprofessionally toward her or undermine her authority (see Pl.’s Obj. at 7–8), does not create a genuine issue regarding the real reason for his termination. Again, the record is replete with evidence that indisputably establishes Rae's insubordinate conduct and contentions on various occasions, and the evidence also amply demonstrates that Donegan and others had a legitimate basis for believing—and did, in fact, believe—that Rae had acted inappropriately toward Donegan and refused to follow her instructions. (See, e.g., Ex. 15 to Defs.’ Mot. at 1 (email from Tachie-Menson to HR personnel on December 13, 2013, expressing concerns that Rae is undermining Donegan's authority); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1 (counseling memorandum from Donegan to Rae on June 4, 2014, reflecting her belief that Rae inappropriately raised his voice when discussing a matter with her); Ex. 24 to Defs.’ Mot., ECF No. 59-26, at 1 (email from Donegan to Rae on August 24, 2014, stating that if he refused to participate in a meeting with her “it will be characterized as insubordination”); Ex. 25 to Defs.’ Mot., ECF No. 59-27, at 5 (email from Donegan to Rae on October 8, 2014, explaining that his refusal to comply with her instructions to sign certain documents would be deemed insubordination); see also Rae Decl. ¶ 20 (admitting that Donegan had expressed that she felt bullied by him).) And there is nothing in the record that supports the conclusion that Rae's reporting activity played any role in the termination decision, much less that it was the predominate reason for his firing. Indeed, the only record evidence that could conceivably support the predominance element of Rae's public policy claim is the proximity in time between Rae's drug safety and police reports and his termination. It appears that the last drug safety report he made was in May of 2014, which was seven months before his termination (see Pl.’s Opp'n at 7–8), and that he contacted the police in October of 2014, two months before his termination (Ex. 30 to Defs.’ Mot, ECF No. 59-32, at 1.). But Rae has not cited any wrongful termination cases that hold that the predominance element can be satisfied solely based on timing of the activity that the public policy protects relative to the employee's termination, and this is especially so where, as here, the two events are literally months apart. In the analogous realm of Title VII retaliation claims, see Perkins, 2018 WL 5792828, at *8, it is well established that a seven-month window between the protected activity and the adverse action does not give rise to a reasonable inference that the former was the predominant reasons for the latter. See, e.g., Wilson v. Mabus, 65 F. Supp. 3d 127, 133 (D.D.C. 2014) (finding that a four-month gap between protected activity and an adverse action is too attenuated to establish causation in a Title VII case). And, even if a two-month gap—such as the one between Rae's police report and his termination—is sufficiently close in time to raise a genuine issue concerning causation based on temporal proximity (which is doubtful), it would nevertheless be improper for a jury to infer that there is causation and pretext based on such temporal proximity standing alone. See, e.g., Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011) (noting that “positive evidence beyond mere proximity is required to defeat the presumption that the [employer's] proffered explanations are genuine” (internal quotation marks and citation omitted)); Snowden v. Zinke, 15-cv-1382, 2020 WL 7248349, at *14 (D.D.C. Dec. 9, 2020) (explaining, in the context of a Title VII retaliation case, that “temporal proximity between [protected activity and an adverse employment action], standing alone, is insufficient to raise a reasonable inference of pretext”). In the instant context, Rae has offered nothing more. As a result, this Court confidently concludes that there are no genuine disputes of material fact regarding whether Rae can establish each of the elements of the tort of wrongful termination in violation of public policy, which means that Defendants are entitled to summary judgment on Counts I and II. B. Defendants Are Entitled To Summary Judgment On Rae's Claims For Retaliation And Discrimination And Under Title VII, 42 U.S.C. § 1981, And The DCHRA, Because There Is No Evidence That Defendants Terminated Rae Due To His Protected Activities Or Race The Court next considers Rae's claims that that CNMC terminated him in retaliation against for his protected activity, or that his termination was discriminatory in violation of Title VII, section 1981, and the DCHRA. As mentioned, Magistrate Judge Robinson concluded that Rae's silence with respect to the discrimination claims in the context of his opposition amounted to a withdrawal of his claims in this regard. (See supra n.7.) But even if Rae had not forfeited his right to pursue those claims, Magistrate Judge Robinson's conclusion that Rae had “not offered ‘sufficient evidence’ from which a reasonable trier of fact could find in his favor; indeed, he has offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation” (R & R at 18) is not only accurate, it applies to the discrimination claims as well. *11 Magistrate Judge Robinson reached this conclusion while applying the McDonnell Douglas burden-shifting framework, which “requires that the plaintiff must, first, point to evidence of a ‘prima facie case’—i.e., (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two.” Rochon v. Lynch, 139 F. Supp. 3d 394, 403 (D.D.C. 2015) (internal quotation marks and citation omitted), aff'd, 664 F. App'x 8 (D.C. Cir. 2016). Once a plaintiff establishes his prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions, and if it does so, “the McDonnell Douglas framework—with its presumptions and burdens—disappear[s],” leaving only the ultimate question of “discrimination vel non[.]” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142. “And on that question, the burden of showing that a reasonable jury could find that defendant's reasons are pretextual and that the real reason for the adverse action was discriminatory or retaliatory animus falls on the plaintiff.” Rochon, 139 F. Supp. 3d at 403.10 Because Rae's termination indisputably qualifies as an adverse action, and because CNMC has articulated a legitimate, non-discriminatory reason for its decision to terminate his employment, the central question that this Court must answer to decide the pending summary judgment motion is “whether the employee ‘produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee’ on the basis of a protected class or activity.” Davis v. Mnuchin, No. 08-cv-0447, 2018 WL 8584035, at *13 (D.D.C. Nov. 13, 2018) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)). Rae objects to the R & R's conclusion that his evidence is insufficient in this regard, once again pointing to the purported falsity of the reasons that CNMC offered for his termination, and the proximity of time between his protected activities and his termination. (See Pl.’s Obj. at 12.) However, as this Court has already explained in Section III.A.2, supra, there is no record evidence to support Rae's assertion that the reason that CNMC proffered for his termination was false, or that Donegan and Russell did not actually believe that Rae had engaged in a “continued pattern of insubordinate and harassing behavior towards [Donegan.]” (Termination Letter at 1.) What is more, while Rae might well have complained to CNMC's Human Resources office about Donegan's treatment of him in late November of 2014 and early December of 2014, “[i]t is the binding precedent of this circuit that ‘positive evidence beyond mere proximity [between protected activity and adverse action] is required to defeat the presumption that the employer's proffered explanations are genuine.’ ” Snowden, 2020 WL 7248349, at *14 (quoting Talavera, 638 F.3d at 313 (alterations omitted)). Rae has not offered any admissible positive evidence demonstrating pretext, as previously discussed, and he has therefore failed to establish that there is a genuine issue of fact for trial concerning the reasons for his termination.11 C. The Individual Defendants Are Entitled To Summary Judgment On Rae's Wrongful Termination Claim And His Claims Under Section 1981 And The DCHRA Because, As Rae Has Pled Them, The Claims Against The Individuals Are Indistinguishable From His Failed Claims Against CNMC *12 Finally, this Court also agrees with Magistrate Judge Robinson's conclusion concerning the claims that Rae has brought against the individual defendants. Rae's complaint indicates that Counts I–IV are brought against CMNC and various individual defendants. (See Am. Compl. at 1 n.1) Magistrate Judge Robinson's R & R found that, so pled, “any claim against any one of [the individual defendants] must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment.” (R & R at 20.) Cf. Brown v. Children's Nat. Med. Ctr., 773 F. Supp. 2d 125, 136 (D.D.C. 2011) (explaining that “a claim for individual liability under [s]ection 1981 requires an affirmative showing linking the individual defendant with the discriminatory action’ ” (quoting Page v. Winn–Dixie Montgomery, Inc., 702 F. Supp. 2d 1334, 1355 (S.D. Ala. 2010))). The Court concurs with the R & R's conclusion that the claims that Rae has brought against the individual defendants are indistinguishable from the claims that he makes against CNMC with respect to those same causes of action. And Rae appears to take no issue with this basic legal principle; instead, he contends that his retaliation claims do, in fact, survive summary judgment. (See Pl.’s Obj. at 15–17.) Unfortunately for Rae, they do not. Therefore, the individuals defendants, too, are entitled to summary judgment with respect to Counts I–IV.12 IV. CONCLUSION For the reasons articulated above, and as stated in the accompanying Order, Magistrate Judge Robinson's Report and Recommendation is ADOPTED IN PART, and to the extent that she correctly concluded that there is no genuine issue of material fact concerning whether or not Defendants terminated Rae in violation of public policy or whether the reason that Defendants provided for Rae's termination—his insubordination and harassment of his supervisor—was a pretext for discrimination or retaliation. The fact that the R & R's analysis contains misrepresentations concerning various legal standards and misapprehends Rae's public policy argument does not undermine its ultimate determination that Rae has not presented sufficient evidence to proceed to trial. Consequently, Defendant's Motion for Summary Judgment (ECF No. 59) must be GRANTED. Appendix A REPORT AND RECOMMENDATION Plaintiff was formerly employed by Defendant Children's National Medical Center (hereinafter “CNMC”) as a research pharmacist. In this action, Plaintiff, in his First Amended Complaint, alleges that Defendant CNMC, and individual supervisory and management officials further identified herein, engaged in discriminatory and retaliatory conduct violative of public policy; the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq.; 42 U.S.C. § 1981, and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq. See generally First Amended Complaint (ECF No. 22-1). Defendants, in response to the First Amended Complaint, denied the allegations of discrimination and retaliation, and pled seven affirmative defenses, including the defenses that certain of Plaintiff's claims are barred by the applicable statute of limitations and his failure to exhaust his administrative remedies. See generally Answer and Affirmative Defenses (ECF No. 25). Discovery has closed, and Defendants Children's National Medical Center, et al.’s Motion for Summary Judgement (ECF No. 59) has been fully briefed. Upon consideration of the motion and accompanying Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (ECF No. 59-1) (“Defendants’ Memorandum”); Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment (ECF No. 60) (“Plaintiff's Opposition”); Defendants’ Reply to Plaintiff's Opposition to Defendants’ Motion for Summary Judgment (ECF No. 70) (“Defendants’ Reply”); Defendants’ statement of material facts as to which there is no genuine issue; Plaintiff's statement of genuine issues, and the exhibits filed by the parties in support of and in opposition to Defendants’ motion, the undersigned recommends that Defendants’ motion be granted with respect to the remaining claims and Defendants.1 I. Procedural Background *13 Plaintiff, proceeding pro se, commenced this action in May 2015 by the filing of a 50-page complaint in which he named CNMC and a total of seven management officials as defendants. Plaintiff stated that he was born in Antigua; immigrated to the United States in 1979; earned an undergraduate degree, and later, earned both doctor of pharmacy and juris doctor degrees. See Complaint (ECF No. 1) ¶¶ 10-11. Plaintiff stated that in February 2010, he was hired by CNMC as an Investigational Research Pharmacist “pursuant to an ‘at will’ employment contract.” See generally id. at 1. Plaintiff described a series of instances of perceived irregularities in the pharmacy operations which he brought to the attention of CNMC management officials throughout 2010. See generally id., ¶¶ 16-31. Plaintiff alleged that in 2011, he applied for, but was denied, a promotion. Id., ¶ 62. Plaintiff further alleged that continuing through as late as December, 2014, he voiced additional concerns regarding pharmacy operations, while being subjected to unwarranted criticism and false accusations by CNMC managers. See id., ¶¶ 63-161. Plaintiff stated that on December 8, 2014, he received a “Termination of Employment” letter by which he was advised that a decision had been made to terminate his employment on that date “[a]s a result of the continued pattern of insubordinate and harassing behavior towards your supervisor[.]” Id., ¶ 162. Plaintiff, in that complaint, stated that he filed charges of discrimination with the Equal Employment Opportunity Commission, in which he alleged both discrimination on the basis of his race, age, gender and national origin, and retaliation “for asserting his legal right in filing [a] report of assault [by an immediate supervisor, one of the named Defendants] with the Metropolitan Police [Department].” Id., ¶¶ 152, 165-169. Plaintiff, in that complaint, alleged “Harassment and Hostile Work Environment” (“First Count”); “Disparate Treatment” with respect to having been “passed over” for promotion, “singled out” for disciplinary action and ultimately terminated (Count Two); “reprisal” for reporting perceived pharmacy operations irregularities and filing a report of assault by his immediate supervisor (Count Three); assault (Count Four); wrongful termination (Count Five); defamation (Count Six), and “Negligent Supervision” (Count Seven). Plaintiff named CNMC as a Defendant; additionally, Plaintiff named as Defendants Kurt Newman, President and Chief Executive Officer; Sarah Donegan, Investigational Drug Services (“IDS”) Unit Manager; Ursula Tachie-Menson, Chief of Pharmacy; Zandra Russell, Senior Human Resources Business Partner; Denise Cooper, Principal Human Resources Consultant for Labor Strategy and Human Resources Compliance; Wilhelmina DeShazo, Senior Human Resources Business Partner, and Darryl Varnado, Executive Vice President and Chief People Officer. By an Order filed on March 25, 2016, the Court (K. Jackson, J.) granted Defendants’ motion to dismiss with respect to Counts One, Four, Six and Seven. Additionally, the Court granted Defendants’ motion to dismiss any claims under the Age Discrimination in Employment Act which Plaintiff asserted in the context of Counts Two and Three; and claims in Counts Two and Three brought under Title VII of the Civil Rights Act of 1964 arising from events that occurred prior to March 21, 2014, or under the D.C. Human Rights Act arising from events that occurred prior to February 12, 2014. Order (ECF No. 18) at 1. Finally, the Court granted Plaintiff's oral motion for leave to file an amended complaint, and required that in so doing, Plaintiff “must clarify the law under which each count is being brought and the particular defendant(s) to which each count pertains.” Id. at 2; see also Transcript of Proceedings at 46 (ECF No. 20). In the amended complaint filed in accordance with the March 25, 2016 Order, Plaintiff alleges “Wrongful Termination in Violation of Public Policy Promoting Drug Safety” (Count I); “Wrongful Termination in Violation of Public Policy Favoring Reports of Illegal Activity to Law Enforcement” (Count II); “Racially Discriminatory/Retaliatory Discharge in Violation of DC Human Rights Act” (Count III); “Racially Discriminatory/Retaliatory Discharge in Violation of 42 U.S.C. § 1981” (Count IV); “Discriminatory/Retaliatory Denial of Promotion[,]” also in violation of 42 U.S.C. § 1981 (Count V); “Racially Discriminatory/Retaliatory Discharge in violation of Title VII” (Count VI), and “Racially Discriminatory Disparate Treatment in violation of Title VII” (mistakenly designated Count VI, but hereinafter designated “Count VII”). First Amended Complaint (ECF No. 22-1). Plaintiff again named CNMC and the same seven management officials as Defendants; however, in the amended complaint, he indicated that Counts VI and VII “are only being asserted against Defendant Children's Nation Medical Center[,]” but that Counts I through V “[are being asserted] against all named defendants.” Id. at 1, n.1. The undersigned granted the unopposed motion of Defendants Kirk Newman and Wilhemina DeShazo for judgment on the pleadings, resulting in the dismissal of Plaintiff's First Amended Complaint as to them. 08/01/2017 Minute Order. The undersigned also dismissed Count V and Count VII of Plaintiff's First Amended Complaint, and Denise Cooper as a Defendant, see Plaintiff's Opposition at 1, n.1, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. 03/08/2018 Minute Order. Thus, the remaining claims are Plaintiff's claims that he was wrongfully terminated in violation of public policy (Counts I and II); “Racially Discriminatory/Retaliatory Discharge” in violation of the D.C. Human Rights Act (Count III); “Racially Discriminatory/Retaliatory Discharge” in violation of 42 U.S.C. § 1981 (Count IV), and “Racially Discriminatory/Retaliatory Discharge” in violation of Title VII (Count VI). The remaining individual Defendants are Sarah Donegan, Ursula Tachie-Menson, Zandra Russell and Darryl Varnado.2 II. The Parties’ Contentions *14 Defendants, in their memorandum of points and authorities in support of their motion, maintain that given the Court's ruling that the only claims of discrimination which Plaintiff may assert must have occurred after February 12, 2014, and that the only adverse employment action which remains viable is Plaintiff's claim regarding the termination of his employment. Defendants’ Memorandum at 30-31.3 Defendants submit that they are entitled to summary judgment in their favor for the following reasons: (1) Plaintiff has no direct evidence of discrimination or retaliation; (2) Defendant CNMC has documented legitimate, nondiscriminatory business reasons for its business decisions regarding Plaintiff; (3) Plaintiff has no evidence that the reasons CNMC offers for the termination of his employment are pretextual; (4) Plaintiff cannot identify any similarly-situated employee who engaged in misconduct similar to that in which Plaintiff engaged, but was treated more favorably; (5) with respect to Plaintiff's retaliation claims, the protected activities in which Plaintiff claims to have engaged lack close temporal proximity to Plaintiff's termination, and (6) Plaintiff cannot identify any public policy which was violated by his termination, or any evidence that CNMC terminated his employment because of any protected conduct. Id. at 2. With respect to Plaintiff's claims that he was terminated in violation of public policy, Defendants submit, more specifically, that Plaintiff “has failed to identify any specific public policy that would have been violated[ ]”; that “[he] cannot prove any of the alleged complaints he made were the ‘sole cause’ for his termination[,]” and that “[he] lacks evidence to convince a reasonable jury that his termination was caused by anything other than his own [in]subordination.” Id. at 37-38. With respect to the individual Defendants, Defendants broadly submit that Plaintiff has no evidence to support any claims against any of them. Id.; see also id. at 20, 38-39.4 Plaintiff, in his opposition, asserts that summary judgment in favor of Defendants should be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given for his termination was false and pretext[ual] and the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department[,] and (3) retaliation for reporting harassment, hostile work environment and discrimination.” Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiff's Opposition”) (ECF No. 60) at 1-2, 18.5 With respect to the four remaining individual Defendants, Plaintiff submits that “[he] has established individual liability under Section 1981 because [the four remaining individual Defendants] ... all participated in the decision to terminate [him].” Id. at 25-26. More specifically, Plaintiff submits that the four remaining individual Defendants “retaliated against [him] by terminating him for insubordination in the face of evidence that he was present at HR at the appointed time for the meeting on December 3, 2014.” Id. at 26. Defendants, in their reply to Plaintiff's opposition, submit that Plaintiff has failed to offer evidence from which a reasonable trier of fact could find that the reason offered by Defendants for the termination of Plaintiff's employment was not the actual reason, and that his employment was terminated because he filed an Equal Employment Opportunity Commission charge, or because he made anonymous complaints to regulatory agencies concerning pharmacy practices, or because he filed a police report against his supervisor. Defendants’ Reply at 1-2. More specifically, Defendants submit that “Plaintiff's entire case rests on pure speculation and his unsupported self-serving affidavit that merely recites the allegation in his Amended Complaint.” Id.; see also id. at 6 (“Plaintiff's conclusory and speculative assertions, which are devoid of any factual content, are nothing more than ‘mere[ ] allegations’ upon which Plaintiff cannot base his claims.”) (quoting Fed. R. Civ. P. 56(e)(2)). III. Applicable Standards A. Summary Judgment *15 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether a fact is material is determined based on whether it might affect the outcome of the suit under the governing law. Id. The party seeking summary judgment must identify “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 256 (internal quotation marks omitted). “Conclusory allegations without any factual support in the record cannot create a genuine dispute sufficient to survive summary judgment.” Coates v. Washington Metro. Area Transit Auth., Civil Action No. 15-02006, 2018 WL 1210861, at *2 (D.D.C. Mar. 8, 2018) (citing Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009)). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,” the district court may, among other actions, “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). Additionally, the Local Civil Rules of this Court require that [e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.... In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion. LCvR 7(h)(1). “The purpose of this rule is to ‘place[ ] the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.’ ” Bruder v. Chu, No. 11-1492, 2013 WL 3722334, at *1 (D.D.C. July 17, 2013) (quoting Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996)). “Because [LCvR 7(h)] helps the district court maintain docket control and decide motions for summary judgment efficiently, the D.C. Circuit has repeatedly upheld district court rulings that hold parties to strict compliance with this rule.” Lockhart v. Coastal Int'l Sec., Inc., No. 11-02264, 2013 WL 6571605, at *1, n.2 (D.D.C. Dec. 14, 2013) (internal quotation marks omitted) (quoting Robertson v. Am. Airlines, Inc., 239 F. Supp. 2d 5, 8 (D.D.C.2002)). When deciding a motion for summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences” are not the Court's role; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in the non-movant's favor. Liberty Lobby, 477 U.S. at 255; see also Figueroa v. Tillerson, Civil Action No. 16-00649, 2018 WL 646883, at *4 (D.D.C. Jan. 31, 2018) (“When deciding a motion for summary judgment, the Court must ‘examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to’ the nonmoving party.”) (quoting Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation omitted)). “If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate.” Coates, 2018 WL 1210861, at *2 (D.D.C. Mar. 8, 2018) (citing Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)). Ultimately, the Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52. Put another way, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). B. Wrongful Termination in Violation of Public Policy *16 Generally, in the District of Columbia, “an employer may discharge an at-will employee at any time and for any reason, or for no reason at all.” Harris v. D.C. Water & Sewer Auth., 195 F. Supp. 3d 100, 104 (D.D.C. 2016), appeal dismissed, Civil Action No. 16-7097, 2018 WL 846615 (D.C. Cir. Jan. 3, 2018) (quoting Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 30 (D.C. 1991) (citations omitted)). However, the District of Columbia Court of Appeals has held that an intentional tort for wrongful discharge exists “where ‘the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.’ ” LeFande v. District of Columbia, 864 F. Supp. 2d 44, 50 (D.D.C. 2012) (quoting Adams, 597 A.2d at 34). Later the District of Columbia Court of Appeals extended this narrow exception to permit courts to recognize additional public policy exceptions subject to the following qualification: The District of Columbia recognizes a common law tort of wrongful discharge “as an exception to the traditional at-will doctrine governing termination of employment, where the discharge violates ‘a clear mandate of public policy.’ ” District of Columbia v. Beretta, USA Corp., 872 A.2d 633, 645 (D.C. 2005) (en banc) (quoting Carl v. Children's Hosp., 702 A.2d 159, 164 (D.C. 1997)). When asked to apply the exception: [The] court should consider seriously only those arguments that reflect a clear mandate of public policy—i.e., those that make a clear showing, based on some identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution, that a new exception is needed. Furthermore, there must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination. LeFande, 864 F. Supp. at 50 (quoting Carl, 702 A.2d at 164) (emphasis supplied). Further, this narrow exception is recognized in this jurisdiction when violation of such public policy is the “sole reason” for the employee's termination. Arias v. Marriott Int'l, Inc., 217 F. Supp. 3d 189, 197 (D.D.C. 2016); see also Battles v. Washington Metro. Area Transit Auth., 272 F. Supp. 3d 5, 14, n.2 (D.D.C. 2017) (“there is a cause of action for wrongful termination where an at-will employee acted in furtherance of a public policy and was terminated solely on the basis of such conduct.” (citation and internal quotation marks omitted). C. Retaliation Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Where there is no direct evidence of discrimination, Title VII claims are assessed pursuant to the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. To allege a prima facie case of discrimination, a plaintiff must show that he “is a member of a protected class,” that he “suffered an adverse employment action,” and that “the unfavorable action gives rise to an inference of discrimination.” Youssef v. F.B.I., 687 F.3d 397, 401 (D.C. Cir. 2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)). Once the plaintiff has made out a prima facie case, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [employment action that is challenged].’ ” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817). Once an employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework ceases, and the court must then determine whether the plaintiff has proffered enough evidence to defeat the defendant's proffer and support a finding of discrimination. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). *17 At the summary judgment stage, courts may consider plaintiff's prima facie case, evidence proffered by the plaintiff to rebut the employer's explanations for actions taken, and any additional evidence of discrimination that the plaintiff might proffer. See E.g., Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012); see also Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (noting that, to avoid summary judgment, a plaintiff need not submit evidence “over and above” that necessary to rebut the employer's stated reason) (quotation omitted). A plaintiff's disagreement with an employer's explanation cannot alone “satisfy the burden of showing that a reasonable jury could find that the employer's asserted reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.” Burton v. District of Columbia, 153 F. Supp. 3d 13, 58 (D.D.C. 2015). “Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.” Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459, (1975). Courts analyze Title VII and Section 1981 employment discrimination claims under similar legal standards. “Under either Title VII or Section 1981, [the plaintiff] must demonstrate by a preponderance of the evidence that the actions taken by the employer were ‘more likely than not based on the consideration of impermissible factors’ such as race, ethnicity, or national origin.” Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 18 (D.D.C. 2009) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Under this standard, the plaintiff may either prove his claim with direct evidence of discrimination or he may indirectly prove discrimination under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973). The McDonnell Douglas burden-shifting framework applies to employment discrimination claims, id.; retaliation claims, Carney v. American Univ., 151 F.3d 1090, 1094 (D.C. Cir. 1998); and claims brought pursuant to Section 1981, Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Thus, the undersigned will also analyze the Section 1981 claim in tandem with the Title VII claim. When it comes to prohibiting discrimination and retaliation, the D.C. Human Rights Act “uses almost precisely the same language” as Title VII. Thomas v. District of Columbia, 209 F. Supp. 3d 200, 204 (D.D.C. 2016). Hence, “[w]hen presented with a suit alleging violations of each law, courts generally evaluate the claims under Title VII jurisprudence.” Id.; see also Carpenter v. Fed. Nat'l Mortg. Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999) (noting that District of Columbia courts follow the burden-shifting test applicable to Title VII claims when evaluating DCHRA claims and “seem[ ] ready to accept the federal constructions of Title VII, given the substantial similarity between it and the [DCHRA]”). Accordingly, the undersigned applies the Title VII standards to the consideration of Plaintiff's Section 1981 and D.C. Human Rights Act claims. IV. Discussion A. Alleged Termination of Employment in Violation of Public Policy As the undersigned discusses in greater detail in Section B., infra, Defendants proffer that the reason for the termination of Plaintiff's employment was a legitimate, non-discriminatory, reason, i.e., Plaintiff's “clear pattern of combative and insubordinate behavior toward his direct supervisor[.]” Defendants’ Memorandum at 1; see also id. at 10-18 (Defendants’ Statement of Undisputed Facts); 25-27. As evidence of such legitimate, nondiscriminatory reason, Defendants offer a total of 25 exhibits. See Defendants’ Statement of Material Facts at 10-18; Exhibits (ECF Nos. 59-15, 59-16, 59-17, 59-18, 59-19, 59-20, 59-21, 59-22, 59-23, 59-24, 59-25, 59-26, 59-27, 59-28, 59-29, 59-30, 59-31, 59-32, 59-33, 59-34, 59-35, 59-36, 59-37, 59-38, 59-39). The exhibits primarily consist of email and other exchanges – some of which were authored by Plaintiff himself – concerning the perceptions of Plaintiff's conduct. E.g., Exhibit 13 (ECF No 59-15) (email from Plaintiff requesting a meeting with a Human Resources representative “re Dr. Donegan's claim the ‘she feels she is being bullied’ by me whenever we interact”); Exhibit 14 (ECF No. 59-16) (including Plaintiff's acknowledgment that “I placed my pen on a prescription label that [Dr. Donegan] was holding in her hand[ ]”); Exhibit 19 (ECF No. 59-21) (Dr. Donegan's letter to Plaintiff, six months prior to the termination of his employment, noting, inter alia, that “it is expected that you comply with my instructions and be courteous and professional when dealing with me and your coworkers[,]” and that “your continued refusal to follow my direction could also be perceived as insubordinate, which is a violation of our Corrective Action Procedure.”); Exhibit 27 (ECF No. 59-29) at 3 (directive of Dr. Donegan to Plaintiff that he refrain, as she previously directed, from including his personal email when engaging in CNMC-related communications). *18 Before a court can reach the issue of whether an individual whose at-will employment was terminated has offered evidence from which a reasonable trier of fact could find that such termination was in violation of public policy – and that the allegedly protected conduct was the “sole reason” for the termination – the individual first must “point to some identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution[.]” Clay v. Howard University, 128 F. Supp. 3d 22, 28 (D.D.C. 2015) (the “common denominator” in viable wrongful termination claims is the existence of specific laws or regulations that clearly reflect a policy prohibiting the activity about which the employee complained, whether or not the employer actually violated the law or regulation.”) (citation and internal quotation marks omitted) (emphasis supplied). However, as Defendants aptly observe, see, e.g., Defendants’ Memorandum at 37, Plaintiff has failed to offer evidence of any “identifiable policy” allegedly violated. Rather, Plaintiff cites five District of Columbia Code provisions, three District of Columbia Municipal Regulations, a United States Code provision, and two Code of Federal Regulations provisions in support of his assertion that (1) “Public policy in the District of Columbia promotes patient safety and the safety of drugs dispensed to the public[,]” and “Public policy of the District of Columbia promotes the rights of its citizens to seek assistance of law enforcement through the filing of police reports.” Plaintiff's Opposition at 3 (Plaintiff's Statement of Genuine Issues), ¶¶ 11, 34; see also id. at 19-21, 27. As Plaintiff offers no exhibits to support these assertions, the undersigned has undertaken a review of each of the 11 provisions. Having done so, the undersigned finds that none of them – read individually or in combination with others – declares any “identifiable policy” on which a claim of wrongful termination in violation of public policy could be predicated. Cf. Omwenga v. United Nations Foundation, 244 F.Supp.3d 214, 221 (D.D.C. 2017) (finding that the municipal regulations cited by the Plaintiff reflect the public policy alleged).6 Given this finding, the undersigned concludes that no further inquiry with respect to whether a reasonable trier of fact could conclude that Plaintiff was terminated in violation of public policy is warranted. However, assuming, arguendo, the existence of an “identifiable policy” on which Plaintiff can base his claim, the undersigned further finds that Plaintiff has offered no evidence that his protected conducted was the “sole reason[.]” Hewitt v. Chugach Gov't Servs., Inc., Civil Action No. 16-02192, 2016 WL 7076987, at *2 (D.D.C. Dec. 5, 2016). Instead, Plaintiff offers only his bare speculation that his protected conduct was the reason for the termination. See, e.g., Plaintiff's Opposition at 20 (“Defendants’ reason for Plaintiff's termination is suspect because Defendants did not follow the Employee Handbook guidelines on termination and ignored Plaintiff's claim that he came to the meeting ... as requested.”). Such speculation is insufficient to survive a motion for summary judgment. E.g. Nunnally v. District of Columbia, 243 F. Supp. 3d 55, 68-69 (D.D.C. 2017) (observing that “a plaintiff's mere speculations are insufficient to create a genuine issue of fact regarding an employer's articulated reasons for its decisions and avoid summary judgment.”) (citation omitted).7 B. Alleged Retaliation in Violation of Title VII, Section 1981 and the D.C. Human Rights Act *19 Plaintiff, in his opposition to Defendants’ motion for summary judgment, maintains that Defendants’ motion should be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given for his termination was false and pretext[ual] and the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work environment and discrimination.” Plaintiff's Opposition at 1-2. The undersigned finds, however, that Plaintiff – his assertion to the contrary notwithstanding – has not offered “sufficient evidence” from which a reasonable trier of fact could find in his favor; indeed, he has offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation. As noted in Section A, supra, Defendants offer evidence in support of their proffer of a legitimate, non-discriminatory reason for the termination of Plaintiff's employment.8 Thus, Plaintiff must proffer evidence “to show that ‘the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” Gilliard v. Gruenberg, Civil Action No. 16-02007, 2018 WL 1471949, at *4 (D.D.C. Mar. 26, 2018) (quoting George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005)); see also Brady, 520 F.3d at 494, Woodruff, 482 F.3d at 530. However, Plaintiff, in his “Statement of Genuine Issues[,]” fails to identify a single “material fact[ ] as to which it is contended there exists a genuine issue necessary to be litigated,” see LCvR 7(h), and instead, merely recounts the chronology of events during the course of his employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to the public; his complaints regarding harassment, hostile work environment and discrimination, and his denial of having been insubordinate. See Plaintiff's Opposition at 2-18. However, “the Court can neither credit [any assertions], nor conclude that they controvert defendant's factual assertions.” Barot v. Embassy of Republic of Zambia, Civil Action No. 13-00451, 2018 WL 1210862, at *5, n.8 (D.D.C. Mar. 8, 2018) (citing LCvR 7(h)); see also Mack v. Georgetown Univ., Civil Action No. 15-00793, 2017 WL 4325596, at *2 (D.D.C. Aug. 4, 2017), report and recommendation adopted, 2017 WL 4325617 (D.D.C. Sept. 27, 2017) (“a district court should not be forced to comb through the factual record to ferret out disputes of material fact[ ]”).) (citation omitted). Nonetheless, the undersigned has reviewed each of the exhibits Plaintiff filed in an effort to determine whether any exhibit, or combination of exhibits, serves as evidence of a genuine issue regarding a fact material to Plaintiff's retaliation claims. Having done so, the undersigned answers the inquiry in the negative.9 Rather, the exhibits fairly may be characterized as documentation of Plaintiff's narrative concerning the interactions among him, his supervisor and other managers. See, e.g., Plaintiff's Exhibit 15 (ECF No. 60-16) (Plaintiff's “Report of Contact re Public ridicule and embarrassment by immediate supervisor[ ]”).10 C. Individual Defendants *20 As Plaintiff has failed to offer evidence from which a reasonable trier of fact could find in his favor regarding his claims of termination in violation of public policy, or his claims of retaliation, no discussion of Plaintiff's purported claims against the four remaining individual Defendants is necessary: any claim against any one of them must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment. Plaintiff's theory of liability with respect to the four remaining individual Defendants is that they “were personally involved in the [retaliatory] activity–Plaintiff's termination.” Plaintiff's Opposition at 25. Assuming, without deciding, that all four remaining individual Defendants “were personally involved” in the decision to terminate Plaintiff's employment, such involvement does not create a cause of action against them.11 V. Conclusion Defendants have offered legitimate, non-retaliatory and non-discriminatory reasons for the decision to terminate Plaintiff's employment. Plaintiff has failed to offer evidence that the actions challenged were violative of public policy. Likewise, Plaintiff has failed to offer evidence which could lead a reasonable trier of fact to discredit the proffered legitimate, non-retaliatory, non-discriminatory reasons; to find that the proffered reasons were pretextual, or to find that retaliation against him was the true reason for the termination of his employment. It is therefore, this 28th day of March, 2018, RECOMMENDED that Defendants Children's National Medical Center, et al.’s Motion for Summary Judgment (ECF No. 59) be GRANTED with respect to the remaining claims and Defendants.12 DEBORAH A. ROBINSON United States Magistrate Judge Within fourteen days, any party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each objection. In the absence of timely objections, further review of issues addressed may be deemed waived.

Jackson

majority

*1 Plaintiff Charlesworth Rae, an frican-merican man of ntiguan descent, was employed as an Investigational Research Pharmacist at Children's National Medical Center (“CNMC”) from February of 2010 until CNMC terminated his employment in December of 2014. (See 1st m. Compl. (“m. Compl.”), ECF No. 22-1, ¶¶ 3, 5, 7.) Rae has brought the instant action against CNMC and various CNMC employees (collectively, “Defendants”) under both federal and state law, alleging that he was not promoted, and was eventually terminated, due to his race and national origin, and also that Defendants ultimately fired him in retaliation for his having repeatedly expressed legitimate concerns about CNMC's pharmacy operations and for filing a police report accusing his supervisor of assault. (See ¶6–7.) Rae's claims have been narrowed through the course of this litigation, such that the only claims that are still at issue are those that he asserts for (1) wrongful termination in violation of public policy (Counts I and II); (2) racially discriminatory and retaliatory discharge in violation of the D.C. Human Rights ct (“DCHR”), –1404.04 (Count III); (3) racially discriminatory and retaliatory discharge in violation of ; and (4) racially discriminatory and retaliatory discharge in violation of Title VII of the Civil Rights ct of 1964, 42 U.S.C. 2000e–e-17 (Count VI). Counts I–IV are asserted against CNMC, Dr. Sarah Donegan (Rae's supervisor), Dr. Ursula Tachie-Menson (Donegan's supervisor), Zandra Russell (a CNMC Human Resources representative), and Darryl Varnado (CNMC's Executive Vice President and Chief People Officer). (See n.1.)1 Count VI is asserted only against CNMC. (See ) On March 15, after discovery had closed, this Court referred this matter to a magistrate judge for full case management through the district's random-assignment process. (See Min. Entry of Sept. 6, ; Min. Order of Mar. 15,) The case was assigned to Magistrate Judge Deborah Robinson, who subsequently granted in part a motion that Rae filed seeking to reopen discovery. (See Mem. Op. & Order, ECF No. 40, 7.) The parties proceeded to engage in a renewed period of discovery, and once they had resolved all of their discovery disputes, Defendants filed a motion for summary judgment. (See 2d. Joint Status Report, ECF No. 5; see also Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 59.) On March 2, Magistrate Judge Robinson issued the Report and Recommendation (“R & R”) that is appended hereto as ppendix ; in that Report, Magistrate Judge Robinson recommends that Defendants’ summary judgment motion be granted in its entirety with respect to Rae's remaining claims against the remaining defendants. (See R & R, ECF No. 71,) Before this Court at present is the R & R and Rae's objection thereto. (See Pl.’s Obj. to R & R (“Pl.’s Obj.”), ECF No. 7.) Rae argues that Magistrate Judge Robinson applied the wrong causation standard to his claims (see ), that the R & R improperly found that he had not specified any identifiable policy to support his claims for wrongful termination in violation of public policy (see ), that Magistrate Judge Robinson erred in finding that he had not identified evidence to support his claims of discrimination and retaliation against CNMC (see 12–13; 17–1), and that Magistrate Judge Robinson had improperly granted summary judgment to the individual defendants based on the purported failure of his claims against CNMC (see 5). Rae's objection further maintains that CNMC may have “vitiated” their “at-will employment relationship” because it offered him a severance package—an argument that he did not include in the summary judgment briefing that Magistrate Judge Robinson addressed. (See 7.)2 *2 This Court has carefully reviewed the R & R, the parties’ submissions, and the record evidence, and for the reasons explained below, the Court concludes that Magistrate Judge Robinson's report and recommendation must be DOPTED IN PRT, and Defendants’ motion for summary judgment will ultimately be GRNTED IN FULL. In particular, while the Court finds that Magistrate Judge Robinson applied the wrong causation standard to the wrongful discharge claim and that the R & R is also erroneous with respect to its finding that Rae had not identified any public policy to support his wrongful termination claims, the Court agrees with Magistrate Judge Robinson that there is insufficient record evidence of causation with respect to all of Rae's claims, and thus no reasonable jury could find that Rae had satisfied each of the elements for any of the legal claims presented. Therefore, Defendants are entitled to summary judgment. separate Order consistent with this Memorandum Opinion will follow. I. BCKGROUND The factual and procedural background underlying this matter is fully recounted in Magistrate Judge Robinson's R & R and the various prior rulings that narrowed the scope of the claims on which Rae is proceeding. What follows is a brief recitation of the relevant background facts pertaining to Rae's remaining claims, which turn on his contention that Defendants are liable for “Racially Discriminatory/Retaliatory Discharge” (see m. Compl., Counts III, IV, VI) and for terminating his employment in violation of public policy (see Counts I, II).3 Facts CNMC hired Rae in February of 2010 as a pharmacist in the Investigational Drug Services (“IDS”) Pharmacy, and he was an at-will employee of CNMC. (See Decl. of Charlesworth Rae (“Rae Decl.”), Ex. 1 to Pl.’s Opp'n to Defs.’ Mot. for Summ. J., ECF No. -2, ¶¶ 2–3.) Shortly after Rae was hired, he began expressing safety and regulatory concerns with respect to various practices that he allegedly observed at CNMC. For example, he reported to the Food and Drug dministration (“FD”) his concerns about data tampering and falsification of records with respect to an ongoing study. (See) Such reports continued throughout his tenure. (See, e.g., 16–1.) In September of defendant Dr. Sarah Donegan (who is Caucasian) was hired as the Manager of the IDS Pharmacy, even though she lacked a license to practice pharmacy in the District of Columbia at the time that she was hired. (See) Donegan and Rae had a tense relationship from the moment that Donegan began working at CNMC. In one instance, for example, Donegan conveyed to Rae that he was improperly loud and aggressive when he addressed her. (See Ex. 16 to Defs.’ Mot., ECF No. 59-1, (noting that Donegan told Rae during a meeting that she felt bullied by him during their interactions because he repeatedly interrupted her and increased his tone when talking to her); Ex. 19 to Defs.’ Mot., ECF No. 59-21,) In addition, Donegan had concerns about Rae copying his personal email when responding to her or sending emails to CNMC employees, and she asked him to refrain from doing this—a request that Rae did not honor. (See Ex. 24 to Defs.’ Mot., ECF No. 59-26,) Rae also apparently initially resisted instructions from Donegan to sign off on certain paperwork in connection with a research study, which resulted in a warning from Donegan to Rae about his conduct being deemed insubordination. (See Ex. 25 to Defs.’ Mot., ECF No. 59-, –5.) Rae ultimately signed off on the necessary paperwork, but he indicated that he was doing so “under duress.” () *3 The tense nature of their relationship was apparently also obvious to others at CNMC. On December 13, Donegan's supervisor, Dr. Tachie-Menson, sent an email to CNMC's Human Resources office (“HR”) requesting a meeting to discuss Rae in light of her concerns that Rae “is undermining [Donegan's] authority [because] [w]henever he doesn't agree with a decision made by her, he sends a response to HR and to compliance[,] [and he] has been resistant to any change she has attempted to make for the improvement of the workflow and documentation compliance.” (Ex. 15 to Defs.’ Mot., ECF No. 59-17,) The record is also replete with email communications between Donegan and Rae—with cc's to Rae's personal email account, Tachie-Menson, and various individuals in HR, including HR contact Zandra Russell—and these exchanges consistently demonstrate Rae's resistance to Donegan's requests to meet with him individually to discuss issues related to his work. (See, e.g., Ex. 16 to Defs.’ Mot. ; see also Ex. 20 to Defs.’ Mot., ECF No. 59-22, (email from Rae to Donegan in response to an Outlook meeting invitation, in which Rae states, “Based on your repeated hostility towards me I would prefer not to meet today. lternatively, I would like to have an opportunity to first discuss my concerns with the Legal Department before meeting with you and HR under these circumstances”); Ex. 22 to Defs.’ Mot., ECF No. 59-24, (email chain between Russell and Rae, during which Russell states, in response to Rae's statements about being uncomfortable meeting with Donegan, that “Dr. Donegan has the right as your manager to meet with you to discuss work-related issues[,]” and that “you were [previously] advised to meet with Pharmacy management when requested and to perform your job as expected”).) For his part, Rae allegedly had his own concerns about Donegan's conduct and work performance. In October of 2014, Rae filed a claim of assault with the Metropolitan Police Department, based on his allegation that Donegan had “hit [him] on [his] shoulder” in a manner that did not physically hurt him. (Rae Dep., Ex. 5 to Defs.’ Mot., ECF No. 59-7, 2.) Rae also complained to CNMC's compliance officer that Donegan was engaging in the unauthorized practice of pharmacy, and he submitted various reports regarding safety concerns that he had with respect to Donegan's handling of drugs. (See, e.g., Rae Decl. ¶¶ 10–11, 13.) In addition, Rae filed two charges with the EEOC alleging that Donegan was discriminating against him and harassing him—the first on June 2014, and the second on November 25, 2014. (See)4 In the context of the instant action, Rae further claims that Donegan shouted at him on various occasions (see, e.g., Ex. 14 to Defs.’ Mot., ECF No. 59-16, ), and that she otherwise engaged in conduct that was “professionally disrespectful, demeaning, and unbecoming of a manager” (Ex. 16 to Defs.’ Mot. ). Rae emailed Daryl Varnado (an HR executive), Russell, Tachie-Menson, and other HR staff on numerous occasions to complain about Donegan's treatment of him, including to report that Donegan was subjecting him to unwarranted “hostility” (e.g., Ex. 13 to Pl.’s Opp'n, ECF No. -14, ), that she had was violating CNMC's Harassment/Discrimination Policy and Procedure (see Ex. 14 to Pl.’s Opp'n, ECF No. -15, ), and that she had “publicly ridiculed and embarrassed” him (Ex. 15 to Pl.’s Opp'n, ECF No. -16, ). Rae's relationship with Donegan deteriorated over time, such that he eventually requested that an HR representative be present for any meeting between them. (See, e.g., Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Stmt. of Undisputed Facts, ECF No. 59-1, –21.) However, Donegan and the HR office both made clear to Rae that he did not have a right to insist that someone else be present when he met with his supervisor (see, e.g., Ex. 23 to Defs.’ Mot., ECF No. 59-25, ; Ex. 24 to Defs.’ Mot., ECF No. 59-26, ), and Donegan ultimately informed Rae that if he refused to meet with her without a witness present, his refusal “will be characterized as insubordination” (Ex. 24 to Defs.’ Mot. ). The final and noteworthy incident before Rae's termination occurred on December 3, 2014. Donegan had instructed Rae to appear at the HR office on December 3rd at 3 PM for a “Performance Review Discussion” with her and Russell. (Ex. 1 to Pl.’s Opp'n, ECF No. -19, ; Ex. 37 to Defs.’ Mot. (“Termination Letter”), ECF No. 59-39,) Rae sent a responsive email to Tachie-Menson, copying Donegan and various other individuals on December 3rd: *4 I wish to acknowledge receipt of an invitation from my immediate supervisor, Dr. Sarah Donegan, for a mandatory meeting with me and a HR Representative (Zandra Russell) today at 3 pm. Based on the repeated hostile and unduly stressful meetings I have had with Dr. Donegan that have severely affected my health, coupled with my outstanding complaint of assault, it will be unhealthy and unproductive for me to meet with her at this time. ccordingly, I would like to request that any discussions regarding my performance evaluation at this time occur[ ] in writing. (Ex. 33 to Defs.’ Mot., ECF No. 59-35,) When Donegan subsequently asked Rae if he intended to attend the meeting as scheduled, he stated that he was waiting for Tachie-Menson to respond to his email. (See Rae Decl. ¶ 31.) hallway confrontation between Rae and Donegan ensued, after which Rae went to his car. (See ¶¶ 32–33.) He returned to the building shortly thereafter and asked for a security escort to the 3 PM meeting. (See) Donegan and Russell were not in the HR suite, and Donegan testified that this was because she believed that Rae had refused to attend the meeting. (See Donegan Dep., Ex. 6 to Defs.’ Mot., ECF No. 59-, at) Varnado was called to the suite, and he placed Rae on indefinite administrative leave pending an investigation. (See Rae Decl. ¶¶ 36–37.) In the course of the investigation that followed, Russell learned that “Rae came to Human Resources [on December 3] with a CNMC security officer to file a complaint about Donegan's request for a mandatory meeting with him” because he believed “that Dr. Donegan's request was a form of harassment.” (Russell ff. ¶ 13.) “Based on the investigation into [ ] Rae's conduct, Human Resources recommended that [ ] Rae's employment be terminated for his repeated harassing and insubordinate conduct toward his supervisor, Dr. Donegan, which had been well documented.” ( ¶ 14.) This decision was memorialized in a letter that Russell drafted on December 4, 2014, terminating Rae's employment effective December 2014. (See ; Termination Letter) B. Procedural History Rae filed his initial complaint pro se on May 15, 2015, and on March 25, this Court issued an Order dismissing certain claims and allowing Rae to file an amended complaint. (See Compl., ECF No. 1; Order, ECF No. 1, –2.).5 Rae filed his mended Complaint on May 24, (See generally m. Compl.) Rae secured counsel to represent him during the discovery period, but that representation ended after discovery closed and before summary judgment motions were filed. (See Notice of ppearance, ECF No. ; Mot. to Substitute Counsel, ECF No. 32.) Once again proceeding pro se, Rae moved to reopen discovery, asserting that his former counsel had falsely represented that all discovery issues had been resolved. (See Mot. to Reopen Disc., ECF No. 34, –3.) Magistrate Judge Robinson granted this request in part (see Mem. Op. & Order, ECF No. 40), and during the reopened discovery period, new counsel entered an appearance for Rae (see Notice of ppearance, ECF No. 51). Then, at the close of the reopened discovery period, the parties jointly represented to Magistrate Judge Robinson that all outstanding discovery issues had been resolved. (See 2d Joint Status Report, ECF No. 5.) CNMC filed its motion for summary judgment on July 2, In that motion, Defendants argue that Rae's claims for discrimination and retaliation fail as a matter of law, because CNMC has provided a legitimate, non-discriminatory reason for his termination—insubordination—and that there is no record evidence establishing that this reason is a pretext for discrimination or retaliation. (See Defs.’ Mem. at 32–35, 40–41.) Defendants further argue that Rae cannot prove that similarly-situated employees were treated differently (see at 39–40), and that they are also entitled to summary judgment on Rae's wrongful termination in violation of public policy claim, because Rae has not identified a specific policy that his termination violates and cannot prove that his termination was the result of anything other than his insubordination (see 4–45). Finally, with respect to the claims Rae has brought against the individual CNMC employees, Defendants assert that such claims are foreclosed because there is no evidence that these individuals acted with malice or beyond the scope of their employment at CNMC. (See 5–46.) *5 Rae opposes Defendants’ summary judgment motion, arguing that the record contains “sufficient evidence for a jury to conclude that the reason given for his termination was false[,]” and that “the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work environment and discrimination.” (Pl.’s Opp'n –2.)6 Defendants’ motion for summary judgment became ripe for review on October 16, (See Reply to Pl.’s Opp'n, ECF No. 70.) Magistrate Judge Robinson issued her Report and Recommendation regarding Defendants’ motion on March 2, (See generally R & R.) The R & R recommends that Defendants’ motion for summary judgment with respect to Rae's claim for termination in violation of public policy be granted for two independent reasons. First, Magistrate Judge Robinson finds that Rae has failed to specify an “identifiable policy[,]” which is required to state a claim for wrongful discharge in violation of public policy under D.C. law. (R & R 5) See )) Magistrate Judge Robinson also concludes that Rae “has offered no evidence that his protected conduct was the ‘sole reason’ ” for his termination, and has instead offered “only his bare speculation[.]” ).) Magistrate Judge Robinson's R & R further concludes that Defendants are entitled to summary judgment on Rae's retaliation claims, primarily because the only adverse action at issue was his termination (see at 7 n.5), and Rae “offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation (see ). Instead, according to the R & R, the “Statement of Genuine Issues” that is included in Rae's brief “merely recounts the chronology of events during the course of his employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to the public; his complaints regarding harassment, hostile work environment and discrimination, and his denial of having been insubordinate.” () Magistrate Judge Robinson also explains that she “reviewed each of the exhibits Plaintiff filed” in order to determine whether any “serves as evidence of a genuine issue regarding a fact material to Plaintiff's retaliation claims” and found that none d ( 9.)7 With respect to the retaliation claims that Rae has brought against the individual defendants, Magistrate Judge Robinson finds that the individual defendants are also entitled to summary judgment, because “any claim against any one of them must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment.” ( 0.) *6 Rae has asserted a number of objections to the R & R's finding and conclusions. (See generally Pl.’s Obj.) With respect to his claim for wrongful termination in violation of public policy, Rae's objection is twofold. He argues, first, that he has identified a public policy to support his claims; specifically, “ ‘the public policy underlying the legal proscriptions on the storage and handling of drugs[.]’ ” ).) Rae also contends that the proper causation standard for claims alleging termination in violation of public policy is a “predominate reason” and not the “sole reason” standard that Magistrate Judge Robinson applied ), and that there is sufficient record evidence to show that his conduct in reporting safety concerns regarding prescription drugs was a predominate reason for his termination (see ). With respect to his claims for retaliatory discharge under Title VII, section 191, and the DCHR, Rae contends that the proper causation standard for such claims is a “motivating reason” standard, rather than the “but for” standard that Magistrate Judge Robinson applied. () nd he further maintains that the question of whether his protected conduct led to his termination is one for a jury, “because there is a close temporal relationship between [his] claimed protect[ed] activity and the falsity of the reasons Defendants give for [his] termination.” ( 2.) Finally, Rae objects to the findings regarding his claims against the individual defendants, arguing that he did not have a fair opportunity during discovery to develop evidence about whether they acted with malice or outside the scope of their employment. (See 6.) Defendants respond that this Court should overrule Rae's objections to the R & R because Magistrate Judge Robinson applied the appropriate causation standard for his claims (see Defs.’ Resp. to Pl.’s Obj., ECF No. 0, at 5), correctly found that he had not identified a public policy on which to predicate a wrongful termination claim (see –), properly concluded that Rae did not produce sufficient evidence to send any of his claims to a jury (see at –10), and correctly dismissed the claims against the individual defendants on the grounds that his underlying claims all failed (see 0). Rae replied to Defendants’ arguments concerning his objection on July 6, (See Reply to Defs.’ Obj. Resp., ECF No. 5.)9 II. LEGL STNDRDS Review Of Objections To Magistrate Judge's Report nd Recommendation When a magistrate judge issues a report and recommendation on a motion for summary judgment, any party may file written objections to the proposed findings and recommendations within fourteen days. See LCvR2(a)(3), (b). ny objection must “specifically designate the order or part thereof to which objection is made, and the basis for the objection.” See LCvR3(d). nd upon receipt of a timely objection, this Court is obligated to “make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made.” (b)(1). *7 Put another way, “the Court's analysis with respect to such issues is ‘equivalent to a decision in the first instance on the merits’ of the [motion] for summary judgment.” B. Motions For Summary Judgment Under Rule 56 To succeed on a motion for summary judgment, the moving party must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “ party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record[,]” Fed. R. Civ. P. 56(c)(1)(), and “[a] fact is material if it ‘might affect the outcome of the suit under the governing law[,]’ ” The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to any material fact. Celotex If the moving party meets this burden, the non-moving party must designate “specific facts showing that there is a genuine issue for trial.” When assessing a motion for summary judgment, this Court's role is solely to determine “whether there is a genuine dispute for trial[,]” and the Court must not make credibility assessments or weigh evidence. Instead, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” 477 U.S. 55. Notably, however, the Court need not accept conclusory assertions that are unsupported by the record evidence. See ss'n of Flight ttendants–CW, ; see also III. NLYSIS s explained above, at issue at this stage of the instant case are Rae's claims for wrongful termination in violation of public policy (Counts I and II), and for racially discriminatory and retaliatory discharge in violation of the DCHR (Count III), and Title VII (Count VI). Magistrate Judge Robinson's R & R recommends that this Court grant Defendants’ motion for summary judgment regarding these claims in its entirety, and this Court ultimately agrees, as explained below. While Rae is correct that certain aspects of the R & R are erroneous, the Court concludes that Rae has nevertheless provided insufficient evidence to support a jury finding that the reason given for his termination was pretextual and that the real reason was retaliation for his having engaged in certain protected activities or race discrimination. Defendants re Entitled To Summary Judgment On Rae's Claims For Termination In Violation Of The Public Policies He Has Identified, Because There Is No Evidence That Defendants Terminated Rae In Violation Of ny Such Policy * s explained above, the R & R recommends that Defendants’ motion for summary judgment with respect to Rae's claim for termination in violation of public policy be granted because Rae had failed to point to the requisite “identifiable policy[,]” (R & R 5 ), and because he “has offered no evidence that this protected conduct was the sole reason” for his discharge, instead relying on “only his bare speculation.” (See 7) Rae asserts that he has identified “ ‘the public policy underlying the legal proscriptions on the storage and handling of drugs’ ” )), and he further maintains that there is sufficient record evidence to show that his protected conduct was a predominate reason for his termination (see Pl.’s Obj. ; see also Pl.’s Suppl. Obj. 6.) This Court agrees with Rae that he has identified a public policy to support his wrongful termination claim, and that the “predominate reason” standard applies, but Rae has not provided evidence from which a reasonable jury could determine that his reports about drug handling and pharmacy practices were a predominate reason for his termination. 1. The R & R Incorrectly Found That Rae Had Not Identified Public Policy nd pplied The Wrong Legal Standard To His Claim In the District of Columbia Court of ppeals held “that there is a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.” The Court later clarified “that the ‘very narrow exception’ created in ” was not so narrow as to foreclose the exception entirely, and, in particular, that the exception “should not be read in a manner that makes it impossible to recognize any additional public policy exceptions to the at-will doctrine that may warrant recognition.” 1 In finding that Rae had not pointed to a recognized public policy that could support invocation of this exception, Magistrate Judge Robinson distinguished the key case on which Rae relies, which involved a plaintiff's claim that he was wrongfully discharged “in retaliation for his threat to report to the Federal Drug dministration [ ] the unlawful condition in which his employer was storing pharmaceutical drugs[.]” 3. Relying on the D.C. Circuit panel found that the plaintiff's termination implicated “the public policy underlying the legal proscriptions on the storage and handling of drugs” and “protecting the public from the purchase of adulterated drugs[,]” and thus, that the plaintiff had stated a cognizable claim for termination in violation of public policy. 331. Magistrate Judge Robinson nevertheless rejected Rae's reliance on Liberatore, on the grounds that Rae was basing his claim on what she perceived to be a different policy: “patient safety and the safety of drugs dispensed to the public.’ ” (R & R 7 ; see also Pl.’s Obj. at 9–10 (noting that Rae had made safety reports regarding “patient safety concerns pertaining to drug potency and regulatory concerns”); 3) This Court finds that the distinction that the R & R draws between a public policy concerning “the legal proscriptions on the storage and handling of drugs” and “protecting the public from the purchase of adulterated drugs”—which Liberatore plainly 16 F.3d 3—on the one hand, and a public policy concerning “patient safety and the safety of drugs dispensed to the public’ ” (R & R 7 ), on the other, is one without a difference, as far as the wrongful termination tort is concerned. Therefore, based on the authority of Liberatore, this Court concludes that Rae has, in fact, identified a public policy on which he can base the wrongful termination claim in Count I. nd to the extent that Rae alternatively seeks to ground his tort claim on his report to MPD that Donegan assaulted him (see Pl.’s Opp'n at ), he has likewise plainly identified the necessary public policy for Count II, see *9 The R & R also mistakenly determined that the narrow exception to at will termination “is recognized in this jurisdiction [only] when violation of such public policy is the ‘sole reason’ for the employee's termination.”) While the D.C. Court of ppeals in initially established a “sole reason” standard, its later decisions have adopted the “predominant reason” standard to which Rae points. See, e.g., ; ; Consequently, to survive Defendants’ motion for summary judgment with respect to Counts I and II, Rae's wrongful termination claims must be supported by sufficient evidence to permit a reasonable jury to conclude that Rae was discharged predominantly because he did not countenance CNMC's alleged violations of drug-handling or safety standards, or predominantly because he did not keep quiet about Donegan's alleged assault. 2. The R & R Correctly Found That There Is Insufficient Evidence Connecting Rae's Protected Conduct To His Termination On the record presented here, this Court concludes (as Magistrate Judge Robinson ultimately did) that there is no genuine issue of material fact concerning whether Rae's conduct in making drug safety reports or his police report concerning Donegan was a predominant reason for his termination. Rae's efforts to establish such a genuine dispute are primarily comprised of an attempt to raise the specter of pretext, by making various assertions that relate to the legitimate reason that CNMC offered for his termination—that his “continued pattern of insubordinate and harassing behavior” towards Donegan, including the facts surrounding his attendance at the December 3, 2014, meeting. (Termination Letter) For instance, Rae emphasizes that he “did in fact attend the meeting” on December 3rd, and he argues that this circumstance indicates that CNMC's “insubordination” contention is pretextual. (Pl.’s Obj.) But his analysis in this regard ignores both key facts about what Donegan believed concerning the meeting at issue, and also the related and well-established principle that, when considering questions of pretext in the employment realm, courts look not at “the correctness or desirability of the reasons offered, but whether the employer honestly believes in the reasons it offers.” nd based on the undisputed record facts about what happened prior to that meeting, there can be no question that Donegan reasonably believed that Rae did not plan to attend the meeting. (See Donegan Dep. at) Russell, too, apparently doubted Rae's willingness to meet as requested; she conducted an investigation and determined that Rae was present in Human Resources on December 3rd at 3 PM not for the mandatory meeting that Donegan had set, but for an entirely separate reason: to complain, once again, about Donegan asking to meet with him in person. (See Russell ff. ¶ 13.) Thus, the record establishes that Russell and Donegan both sincerely and reasonably believed that Rae was being insubordinate regarding the December 3rd meeting. Rae also attempts to establish pretext based on the contention that his copying of correspondence to his personal email was not a violation of CNMC's IT policy. (See Pl.’s Obj. at 7 (asserting that, therefore, “Defendants’ stated reason for Plaintiff's alleged insubordination for copying his email is false”).) But any dispute over whether or not Rae's copying conduct violation CNMC's policies is not material. What is relevant is that Donegan gave Rae an express instruction based on her reading of the policy (see Ex. to Defs.’ Mot., ECF No. 59-29, at 3–4), and that Rae refused to comply (see ). Rae does not dispute that Donegan had demanded that he cease that behavior and that he did not do so; therefore, whether the IT policy actually prohibited Rae from copying his personal email address is entirely beside the point. (See ) *10 Similarly, Rae's assertion that he did not continually harass Donegan, and that he did not act unprofessionally toward her or undermine her authority (see Pl.’s Obj. at 7–), does not create a genuine issue regarding the real reason for his termination. gain, the record is replete with evidence that indisputably establishes Rae's insubordinate conduct and contentions on various occasions, and the evidence also amply demonstrates that Donegan and others had a legitimate basis for believing—and did, in fact, believe—that Rae had acted inappropriately toward Donegan and refused to follow her instructions. (See, e.g., Ex. 15 to Defs.’ Mot. (email from Tachie-Menson to HR personnel on December 13, expressing concerns that Rae is undermining Donegan's authority); Ex. 19 to Defs.’ Mot., ECF No. 59-21, (counseling memorandum from Donegan to Rae on June 4, 2014, reflecting her belief that Rae inappropriately raised his voice when discussing a matter with her); Ex. 24 to Defs.’ Mot., ECF No. 59-26, (email from Donegan to Rae on ugust 24, 2014, stating that if he refused to participate in a meeting with her “it will be characterized as insubordination”); Ex. 25 to Defs.’ Mot., ECF No. 59-, at 5 (email from Donegan to Rae on October 2014, explaining that his refusal to comply with her instructions to sign certain documents would be deemed insubordination); see also Rae Decl. ¶ 20 (admitting that Donegan had expressed that she felt bullied by him).) nd there is nothing in the record that supports the conclusion that Rae's reporting activity played any role in the termination decision, much less that it was the predominate reason for his firing. Indeed, the only record evidence that could conceivably support the predominance element of Rae's public policy claim is the proximity in time between Rae's drug safety and police reports and his termination. It appears that the last drug safety report he made was in May of 2014, which was seven months before his termination (see Pl.’s Opp'n at 7–), and that he contacted the police in October of 2014, two months before his termination (Ex. to Defs.’ Mot, ECF No. 59-32,). But Rae has not cited any wrongful termination cases that hold that the predominance element can be satisfied solely based on timing of the activity that the public policy protects relative to the employee's termination, and this is especially so where, as here, the two events are literally months apart. In the analogous realm of Title VII retaliation claims, see Perkins, it is well established that a seven-month window between the protected activity and the adverse action does not give rise to a reasonable inference that the former was the predominant reasons for the latter. See, e.g., 65 F. Supp. 3d 1, nd, even if a two-month gap—such as the one between Rae's police report and his termination—is sufficiently close in time to raise a genuine issue concerning causation based on temporal proximity (which is doubtful), it would nevertheless be improper for a jury to infer that there is causation and pretext based on such temporal proximity standing alone. See, e.g., (noting that “positive evidence beyond mere proximity is required to defeat the presumption that the [employer's] proffered explanations are genuine” ); WL 7349, In the instant context, Rae has offered nothing more. s a result, this Court confidently concludes that there are no genuine disputes of material fact regarding whether Rae can establish each of the elements of the tort of wrongful termination in violation of public policy, which means that Defendants are entitled to summary judgment on Counts I and II. B. Defendants re Entitled To Summary Judgment On Rae's Claims For Retaliation nd Discrimination nd Under Title VII, nd The DCHR, Because There Is No Evidence That Defendants Terminated Rae Due To His Protected ctivities Or Race The Court next considers Rae's claims that that CNMC terminated him in retaliation against for his protected activity, or that his termination was discriminatory in violation of Title VII, section 191, and the DCHR. s mentioned, Magistrate Judge Robinson concluded that Rae's silence with respect to the discrimination claims in the context of his opposition amounted to a withdrawal of his claims in this regard. (See) But even if Rae had not forfeited his right to pursue those claims, Magistrate Judge Robinson's conclusion that Rae had “not offered ‘sufficient evidence’ from which a reasonable trier of fact could find in his favor; indeed, he has offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation” (R & R ) is not only accurate, it applies to the discrimination claims as well. *11 Magistrate Judge Robinson reached this conclusion while applying the McDonnell burden-shifting framework, which “requires that the plaintiff must, first, point to evidence of a ‘prima facie case’—i.e., (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two.” aff'd, Once a plaintiff establishes his prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions, and if it does so, “the McDonnell framework—with its presumptions and burdens—disappear[s],” leaving only the ultimate question of “discrimination vel non[.]” 5 U.S. “nd on that question, the burden of showing that a reasonable jury could find that defendant's reasons are pretextual and that the real reason for the adverse action was discriminatory or retaliatory animus falls on the plaintiff.” 139 F. Supp. 3d 03.10 Because Rae's termination indisputably qualifies as an adverse action, and because CNMC has articulated a legitimate, non-discriminatory reason for its decision to terminate his employment, the central question that this Court must answer to decide the pending summary judgment motion is “whether the employee ‘produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee’ on the basis of a protected class or activity.” WL 55, ). Rae objects to the R & R's conclusion that his evidence is insufficient in this regard, once again pointing to the purported falsity of the reasons that CNMC offered for his termination, and the proximity of time between his protected activities and his termination. (See Pl.’s Obj. 2.) However, as this Court has already explained in Section there is no record evidence to support Rae's assertion that the reason that CNMC proffered for his termination was false, or that Donegan and Russell did not actually believe that Rae had engaged in a “continued pattern of insubordinate and harassing behavior towards [Donegan.]” (Termination Letter) What is more, while Rae might well have complained to CNMC's Human Resources office about Donegan's treatment of him in late November of 2014 and early December of 2014, “[i]t is the binding precedent of this circuit that ‘positive evidence beyond mere proximity [between protected activity and adverse action] is required to defeat the presumption that the employer's proffered explanations are genuine.’ ” Snowden, WL 7349, (quoting 63 F.3d at ). Rae has not offered any admissible positive evidence demonstrating pretext, as previously discussed, and he has therefore failed to establish that there is a genuine issue of fact for trial concerning the reasons for his termination.11 C. The Individual Defendants re Entitled To Summary Judgment On Rae's Wrongful Termination Claim nd His Claims Under Section 191 nd The DCHR Because, s Rae Has Pled Them, The Claims gainst The Individuals re Indistinguishable From His Failed Claims gainst CNMC *12 Finally, this Court also agrees with Magistrate Judge Robinson's conclusion concerning the claims that Rae has brought against the individual defendants. Rae's complaint indicates that Counts I–IV are brought against CMNC and various individual defendants. (See m. Compl. n.1) Magistrate Judge Robinson's R & R found that, so pled, “any claim against any one of [the individual defendants] must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment.” (R & R 0.) Cf. )). The Court concurs with the R & R's conclusion that the claims that Rae has brought against the individual defendants are indistinguishable from the claims that he makes against CNMC with respect to those same causes of action. nd Rae appears to take no issue with this basic legal principle; instead, he contends that his retaliation claims do, in fact, survive summary judgment. (See Pl.’s Obj. 5–17.) Unfortunately for Rae, they do not. Therefore, the individuals defendants, too, are entitled to summary judgment with respect to Counts I–IV.12 IV. CONCLUSION For the reasons articulated above, and as stated in the accompanying Order, Magistrate Judge Robinson's Report and Recommendation is DOPTED IN PRT, and to the extent that she correctly concluded that there is no genuine issue of material fact concerning whether or not Defendants terminated Rae in violation of public policy or whether the reason that Defendants provided for Rae's termination—his insubordination and harassment of his supervisor—was a pretext for discrimination or retaliation. The fact that the R & R's analysis contains misrepresentations concerning various legal standards and misapprehends Rae's public policy argument does not undermine its ultimate determination that Rae has not presented sufficient evidence to proceed to trial. Consequently, Defendant's Motion for Summary Judgment (ECF No. 59) must be GRNTED. ppendix REPORT ND RECOMMENDTION Plaintiff was formerly employed by Defendant Children's National Medical Center (hereinafter “CNMC”) as a research pharmacist. In this action, Plaintiff, in his First mended Complaint, alleges that Defendant CNMC, and individual supervisory and management officials further identified herein, engaged in discriminatory and retaliatory conduct violative of public policy; the District of Columbia Human Rights ct (“DCHR”), et seq.; and Title VII of the Civil Rights ct (“Title VII”), 42 U.S.C. 2000e, et seq. See generally First mended Complaint (ECF No. 22-1). Defendants, in response to the First mended Complaint, denied the allegations of discrimination and retaliation, and pled seven affirmative defenses, including the defenses that certain of Plaintiff's claims are barred by the applicable statute of limitations and his failure to exhaust his administrative remedies. See generally nswer and ffirmative Defenses (ECF No. 25). Discovery has closed, and Defendants Children's National Medical Center, et al.’s Motion for Summary Judgement (ECF No. 59) has been fully briefed. Upon consideration of the motion and accompanying Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (ECF No. 59-1) (“Defendants’ Memorandum”); Plaintiff's Memorandum of Points and uthorities in Opposition to Defendants’ Motion for Summary Judgment (ECF No. ) (“Plaintiff's Opposition”); Defendants’ Reply to Plaintiff's Opposition to Defendants’ Motion for Summary Judgment (ECF No. 70) (“Defendants’ Reply”); Defendants’ statement of material facts as to which there is no genuine issue; Plaintiff's statement of genuine issues, and the exhibits filed by the parties in support of and in opposition to Defendants’ motion, the undersigned recommends that Defendants’ motion be granted with respect to the remaining claims and Defendants.1 I. Procedural Background *13 Plaintiff, proceeding pro se, commenced this action in May 2015 by the filing of a -page complaint in which he named CNMC and a total of seven management officials as defendants. Plaintiff stated that he was born in ntigua; immigrated to the United States in 9; earned an undergraduate degree, and later, earned both doctor of pharmacy and juris doctor degrees. See Complaint (ECF No. 1) ¶¶ 10-11. Plaintiff stated that in February 2010, he was hired by CNMC as an Investigational Research Pharmacist “pursuant to an ‘at will’ employment contract.” See generally Plaintiff described a series of instances of perceived irregularities in the pharmacy operations which he brought to the attention of CNMC management officials throughout 2010. See generally Plaintiff alleged that in 2011, he applied for, but was denied, a promotion. Plaintiff further alleged that continuing through as late as December, 2014, he voiced additional concerns regarding pharmacy operations, while being subjected to unwarranted criticism and false accusations by CNMC managers. See Plaintiff stated that on December 2014, he received a “Termination of Employment” letter by which he was advised that a decision had been made to terminate his employment on that date “[a]s a result of the continued pattern of insubordinate and harassing behavior towards your supervisor[.]” Plaintiff, in that complaint, stated that he filed charges of discrimination with the Equal Employment Opportunity Commission, in which he alleged both discrimination on the basis of his race, age, gender and national origin, and retaliation “for asserting his legal right in filing [a] report of assault [by an immediate supervisor, one of the named Defendants] with the Metropolitan Police [Department].” ¶2, 165-169. Plaintiff, in that complaint, alleged “Harassment and Hostile Work Environment” (“First Count”); “Disparate Treatment” with respect to having been “passed over” for promotion, “singled out” for disciplinary action and ultimately terminated (Count Two); “reprisal” for reporting perceived pharmacy operations irregularities and filing a report of assault by his immediate supervisor (Count Three); assault (Count Four); wrongful termination (Count Five); defamation (Count Six), and “Negligent Supervision” (Count Seven). Plaintiff named CNMC as a Defendant; additionally, Plaintiff named as Defendants Kurt Newman, President and Chief Executive Officer; Sarah Donegan, Investigational Drug Services (“IDS”) Unit Manager; Ursula Tachie-Menson, Chief of Pharmacy; Zandra Russell, Senior Human Resources Business Partner; Denise Cooper, Principal Human Resources Consultant for Labor Strategy and Human Resources Compliance; Wilhelmina DeShazo, Senior Human Resources Business Partner, and Darryl Varnado, Executive Vice President and Chief People Officer. By an Order filed on March 25, the Court (K. Jackson, J.) granted Defendants’ motion to dismiss with respect to Counts One, Four, Six and Seven. dditionally, the Court granted Defendants’ motion to dismiss any claims under the ge Discrimination in Employment ct which Plaintiff asserted in the context of Counts Two and Three; and claims in Counts Two and Three brought under Title VII of the Civil Rights ct of 1964 arising from events that occurred prior to March 21, 2014, or under the D.C. Human Rights ct arising from events that occurred prior to February 12, 2014. Order (ECF No. 1) Finally, the Court granted Plaintiff's oral motion for leave to file an amended complaint, and required that in so doing, Plaintiff “must clarify the law under which each count is being brought and the particular defendant(s) to which each count pertains.” ; see also Transcript of Proceedings 6 (ECF No. 20). In the amended complaint filed in accordance with the March 25, Order, Plaintiff alleges “Wrongful Termination in Violation of Public Policy Promoting Drug Safety” (Count I); “Wrongful Termination in Violation of Public Policy Favoring Reports of Illegal ctivity to Law Enforcement” (Count II); “Racially Discriminatory/Retaliatory Discharge in Violation of DC Human Rights ct” (Count III); “Racially Discriminatory/Retaliatory Discharge in Violation of ” ; “Discriminatory/Retaliatory Denial of Promotion[,]” also in violation of (Count V); “Racially Discriminatory/Retaliatory Discharge in violation of Title VII” (Count VI), and “Racially Discriminatory Disparate Treatment in violation of Title VII” (mistakenly designated Count VI, but hereinafter designated “Count VII”). First mended Complaint (ECF No. 22-1). Plaintiff again named CNMC and the same seven management officials as Defendants; however, in the amended complaint, he indicated that Counts VI and VII “are only being asserted against Defendant Children's Nation Medical Center[,]” but that Counts I through V “[are being asserted] against all named defendants.” n.1. The undersigned granted the unopposed motion of Defendants Kirk Newman and Wilhemina DeShazo for judgment on the pleadings, resulting in the dismissal of Plaintiff's First mended Complaint as to them. 0/01/ Minute Order. The undersigned also dismissed Count V and Count VII of Plaintiff's First mended Complaint, and Denise Cooper as a Defendant, see Plaintiff's Opposition n.1, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. 03/0/ Minute Order. Thus, the remaining claims are Plaintiff's claims that he was wrongfully terminated in violation of public policy (Counts I and II); “Racially Discriminatory/Retaliatory Discharge” in violation of the D.C. Human Rights ct (Count III); “Racially Discriminatory/Retaliatory Discharge” in violation of and “Racially Discriminatory/Retaliatory Discharge” in violation of Title VII (Count VI). The remaining individual Defendants are Sarah Donegan, Ursula Tachie-Menson, Zandra Russell and Darryl Varnado.2 II. The Parties’ Contentions *14 Defendants, in their memorandum of points and authorities in support of their motion, maintain that given the Court's ruling that the only claims of discrimination which Plaintiff may assert must have occurred after February 12, 2014, and that the only adverse employment action which remains viable is Plaintiff's claim regarding the termination of his employment. Defendants’ Memorandum at -31.3 Defendants submit that they are entitled to summary judgment in their favor for the following reasons: (1) Plaintiff has no direct evidence of discrimination or retaliation; (2) Defendant CNMC has documented legitimate, nondiscriminatory business reasons for its business decisions regarding Plaintiff; (3) Plaintiff has no evidence that the reasons CNMC offers for the termination of his employment are pretextual; (4) Plaintiff cannot identify any similarly-situated employee who engaged in misconduct similar to that in which Plaintiff engaged, but was treated more favorably; (5) with respect to Plaintiff's retaliation claims, the protected activities in which Plaintiff claims to have engaged lack close temporal proximity to Plaintiff's termination, and (6) Plaintiff cannot identify any public policy which was violated by his termination, or any evidence that CNMC terminated his employment because of any protected conduct. With respect to Plaintiff's claims that he was terminated in violation of public policy, Defendants submit, more specifically, that Plaintiff “has failed to identify any specific public policy that would have been violated[ ]”; that “[he] cannot prove any of the alleged complaints he made were the ‘sole cause’ for his termination[,]” and that “[he] lacks evidence to convince a reasonable jury that his termination was caused by anything other than his own [in]subordination.” With respect to the individual Defendants, Defendants broadly submit that Plaintiff has no evidence to support any claims against any of them. ; see also 0, 3-39.4 Plaintiff, in his opposition, asserts that summary judgment in favor of Defendants should be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given for his termination was false and pretext[ual] and the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department[,] and (3) retaliation for reporting harassment, hostile work environment and discrimination.” Plaintiff's Memorandum of Points and uthorities in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiff's Opposition”) (ECF No. ) -2, 1.5 With respect to the four remaining individual Defendants, Plaintiff submits that “[he] has established individual liability under Section 191 because [the four remaining individual Defendants] all participated in the decision to terminate [him].” 5-26. More specifically, Plaintiff submits that the four remaining individual Defendants “retaliated against [him] by terminating him for insubordination in the face of evidence that he was present at HR at the appointed time for the meeting on December 3, 2014.” 6. Defendants, in their reply to Plaintiff's opposition, submit that Plaintiff has failed to offer evidence from which a reasonable trier of fact could find that the reason offered by Defendants for the termination of Plaintiff's employment was not the actual reason, and that his employment was terminated because he filed an Equal Employment Opportunity Commission charge, or because he made anonymous complaints to regulatory agencies concerning pharmacy practices, or because he filed a police report against his supervisor. Defendants’ Reply -2. More specifically, Defendants submit that “Plaintiff's entire case rests on pure speculation and his unsupported self-serving affidavit that merely recites the allegation in his mended Complaint.” ; see also (quoting Fed. R. Civ. P. 56(e)(2)). III. pplicable Standards Summary Judgment *15 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). n issue is genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Whether a fact is material is determined based on whether it might affect the outcome of the suit under the governing law. The party seeking summary judgment must identify “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex “[] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” 477 U.S. 4, 256 “Conclusory allegations without any factual support in the record cannot create a genuine dispute sufficient to survive summary judgment.” WL 121061, ). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,” the district court may, among other actions, “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). dditionally, the Local Civil Rules of this Court require that [e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. n opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion. LCvR 7(h)(1). “The purpose of this rule is to ‘place[ ] the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.’ ” “Because [LCvR 7(h)] helps the district court maintain docket control and decide motions for summary judgment efficiently, the D.C. Circuit has repeatedly upheld district court rulings that hold parties to strict compliance with this rule.” WL 65715, n.2 ). When deciding a motion for summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences” are not the Court's role; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in the non-movant's favor. Liberty 477 U.S. 55; see also WL 6463, ). “If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate.” Coates, WL 121061, ). Ultimately, the Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty 477 U.S. 51–52. Put another way, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 56 “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty 477 U.S. 49- B. Wrongful Termination in Violation of Public Policy *16 Generally, in the District of Columbia, “an employer may discharge an at-will employee at any time and for any reason, or for no reason at all.” appeal dismissed, Civil ction No. 16-7097, WL 415 ). However, the District of Columbia Court of ppeals has held that an intentional tort for wrongful discharge exists “where ‘the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.’ ” 64 F. Supp. 2d 44, (quoting 5972d ). Later the District of Columbia Court of ppeals extended this narrow exception to permit courts to recognize additional public policy exceptions subject to the following qualification: The District of Columbia a common law tort of wrongful discharge “as an exception to the traditional at-will doctrine governing termination of employment, where the discharge violates ‘a clear mandate of public policy.’ ” District of2d 633, ). When asked to apply the exception: [The] court should consider seriously only those arguments that reflect a clear mandate of public policy—i.e., those that make a clear showing, based on some identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution, that a new exception is needed. Furthermore, there must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination. 64 F. Supp. at (quoting 7022d 64) (emphasis supplied). Further, this narrow exception is recognized in this jurisdiction when violation of such public policy is the “sole reason” for the employee's termination. ; see also 2 F. Supp. 3d 5, C. Retaliation Title VII of the Civil Rights ct makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. 2000e–2(a)(1). Where there is no direct evidence of discrimination, Title VII claims are assessed pursuant to the burden-shifting framework set forth by the Supreme Court in McDonnell 02-03 (3). Plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. To allege a prima facie case of discrimination, a plaintiff must show that he “is a member of a protected class,” that he “suffered an adverse employment action,” and that “the unfavorable action gives rise to an inference of discrimination.” 67 F.3d 397, ). Once the plaintiff has made out a prima facie case, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [employment action that is challenged].’ ” 511 F.3d (quoting McDonnell U.S. at 02, 93 S. Ct. 117). Once an employer has proffered a nondiscriminatory reason, the McDonnell burden-shifting framework ceases, and the court must then determine whether the plaintiff has proffered enough evidence to defeat the defendant's proffer and support a finding of discrimination. ; 5 *17 t the summary judgment stage, courts may consider plaintiff's prima facie case, evidence proffered by the plaintiff to rebut the employer's explanations for actions taken, and any additional evidence of discrimination that the plaintiff might proffer. See E.g., 65 F.3d 1096, ; see also 6 F.3d 1344, (quotation omitted). plaintiff's disagreement with an employer's explanation cannot alone “satisfy the burden of showing that a reasonable jury could find that the employer's asserted reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.” 5 “Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.” (5). Courts analyze Title VII and Section 191 employment discrimination claims under similar legal standards. “Under either Title VII or Section 191, [the plaintiff] must demonstrate by a preponderance of the evidence that the actions taken by the employer were ‘more likely than not based on the consideration of impermissible factors’ such as race, ethnicity, or national origin.” 1 (quoting Texas Dep't of Cmty. 4 U.S. (191)). Under this standard, the plaintiff may either prove his claim with direct evidence of discrimination or he may indirectly prove discrimination under the familiar burden-shifting analysis of McDonnell 02, (3). The McDonnell burden-shifting framework applies to employment discrimination claims, ; retaliation claims, F.3d 1090, ; and claims brought pursuant to Section 191, 37 F.3d 7 Thus, the undersigned will also analyze the Section 191 claim in tandem with the Title VII claim. When it comes to prohibiting discrimination and retaliation, the D.C. Human Rights ct “uses almost precisely the same language” as Title VII. Hence, “[w]hen presented with a suit alleging violations of each law, courts generally evaluate the claims under Title VII jurisprudence.” ; see also ccordingly, the undersigned applies the Title VII standards to the consideration of Plaintiff's Section 191 and D.C. Human Rights ct claims. IV. Discussion lleged Termination of Employment in Violation of Public Policy s the undersigned discusses in greater detail in Section B., infra, Defendants proffer that the reason for the termination of Plaintiff's employment was a legitimate, non-discriminatory, reason, i.e., Plaintiff's “clear pattern of combative and insubordinate behavior toward his direct supervisor[.]” Defendants’ Memorandum ; see also 0-1 ; 25-. s evidence of such legitimate, nondiscriminatory reason, Defendants offer a total of 25 exhibits. See Defendants’ Statement of Material Facts 0-1; Exhibits (ECF Nos. 59-15, 59-16, 59-17, 59-1, 59-19, 59-20, 59-21, 59-22, 59-23, 59-24, 59-25, 59-26, 59-, 59-2, 59-29, 59-, 59-31, 59-32, 59-33, 59-34, 59-35, 59-36, 59-37, 59-3, 59-39). The exhibits primarily consist of email and other exchanges – some of which were authored by Plaintiff himself – concerning the perceptions of Plaintiff's conduct. E.g., Exhibit 13 (ECF No 59-15) (email from Plaintiff requesting a meeting with a Human Resources representative “re Dr. Donegan's claim the ‘she feels she is being bullied’ by me whenever we interact”); Exhibit 14 (ECF No. 59-16) (including Plaintiff's acknowledgment that “I placed my pen on a prescription label that [Dr. Donegan] was holding in her hand[ ]”); Exhibit 19 (ECF No. 59-21) (Dr. Donegan's letter to Plaintiff, six months prior to the termination of his employment, noting, inter alia, that “it is expected that you comply with my instructions and be courteous and professional when dealing with me and your coworkers[,]” and that “your continued refusal to follow my direction could also be perceived as insubordinate, which is a violation of our Corrective ction Procedure.”); Exhibit (ECF No. 59-29) at 3 (directive of Dr. Donegan to Plaintiff that he refrain, as she previously directed, from including his personal email when engaging in CNMC-related communications). *1 Before a court can reach the issue of whether an individual whose at-will employment was terminated has offered evidence from which a reasonable trier of fact could find that such termination was in violation of public policy – and that the allegedly protected conduct was the “sole reason” for the termination – the individual first must “point to some identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution[.]” 2 (citation and internal quotation marks omitted) (emphasis supplied). However, as Defendants aptly observe, see, e.g., Defendants’ Memorandum at 37, Plaintiff has failed to offer evidence of any “identifiable policy” allegedly violated. Rather, Plaintiff cites five District of Columbia Code provisions, three District of Columbia Municipal Regulations, a United States Code provision, and two Code of Federal Regulations provisions in support of his assertion that (1) “Public policy in the District of Columbia promotes patient safety and the safety of drugs dispensed to the public[,]” and “Public policy of the District of Columbia promotes the rights of its citizens to seek assistance of law enforcement through the filing of police reports.” Plaintiff's Opposition at 3 (Plaintiff's Statement of Genuine Issues), ¶¶ 11, 34; see also 9-21, s Plaintiff offers no exhibits to support these assertions, the undersigned has undertaken a review of each of the 11 provisions. Having done so, the undersigned finds that none of them – read individually or in combination with others – declares any “identifiable policy” on which a claim of wrongful termination in violation of public policy could be predicated. Cf.6 Given this finding, the undersigned concludes that no further inquiry with respect to whether a reasonable trier of fact could conclude that Plaintiff was terminated in violation of public policy is warranted. However, assuming, arguendo, the existence of an “identifiable policy” on which Plaintiff can base his claim, the undersigned further finds that Plaintiff has offered no evidence that his protected conducted was the “sole reason[.]” Instead, Plaintiff offers only his bare speculation that his protected conduct was the reason for the termination. See, e.g., Plaintiff's Opposition 0 (“Defendants’ reason for Plaintiff's termination is suspect because Defendants did not follow the Employee Handbook guidelines on termination and ignored Plaintiff's claim that he came to the meeting as requested.”). Such speculation is insufficient to survive a motion for summary judgment. E.g. 6-697 B. lleged Retaliation in Violation of Title VII, Section 191 and the D.C. Human Rights ct *19 Plaintiff, in his opposition to Defendants’ motion for summary judgment, maintains that Defendants’ motion should be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given for his termination was false and pretext[ual] and the real reasons were (1) retaliation for reporting violations of regulations related to patient safety and the safety of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work environment and discrimination.” Plaintiff's Opposition -2. The undersigned finds, however, that Plaintiff – his assertion to the contrary notwithstanding – has not offered “sufficient evidence” from which a reasonable trier of fact could find in his favor; indeed, he has offered no evidence that the proffered reason for the termination of his employment was false, or was a pretext for retaliation. s noted in Section Defendants offer evidence in support of their proffer of a legitimate, non-discriminatory reason for the termination of Plaintiff's employment. Thus, Plaintiff must proffer evidence “to show that ‘the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” Gilliard v. Gruenberg, Civil ction No. 16-02007, WL 1471949, ); see also 520 F.3d 94, 42 F.3d at 5. However, Plaintiff, in his “Statement of Genuine Issues[,]” fails to identify a single “material fact[ ] as to which it is contended there exists a genuine issue necessary to be litigated,” see LCvR 7(h), and instead, merely recounts the chronology of events during the course of his employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to the public; his complaints regarding harassment, hostile work environment and discrimination, and his denial of having been insubordinate. See Plaintiff's Opposition -1. However, “the Court can neither credit [any assertions], nor conclude that they controvert defendant's factual assertions.” Barot v. Embassy of Republic of Zambia, Civil ction No. 13-00451, WL 121062, at *5, n. ; see also Mack v. Georgetown Univ., Civil ction No. 15-00793, report and recommendation adopted, WL 4325617) Nonetheless, the undersigned has reviewed each of the exhibits Plaintiff filed in an effort to determine whether any exhibit, or combination of exhibits, serves as evidence of a genuine issue regarding a fact material to Plaintiff's retaliation claims. Having done so, the undersigned answers the inquiry in the negative.9 Rather, the exhibits fairly may be characterized as documentation of Plaintiff's narrative concerning the interactions among him, his supervisor and other managers. See, e.g., Plaintiff's Exhibit 15 (ECF No. -16) (Plaintiff's “Report of Contact re Public ridicule and embarrassment by immediate supervisor[ ]”).10 C. Individual Defendants *20 s Plaintiff has failed to offer evidence from which a reasonable trier of fact could find in his favor regarding his claims of termination in violation of public policy, or his claims of retaliation, no discussion of Plaintiff's purported claims against the four remaining individual Defendants is necessary: any claim against any one of them must be predicated upon one or more of the causes of action which Plaintiff pled, none of which can survive summary judgment. Plaintiff's theory of liability with respect to the four remaining individual Defendants is that they “were personally involved in the [retaliatory] activity–Plaintiff's termination.” Plaintiff's Opposition 5. ssuming, without deciding, that all four remaining individual Defendants “were personally involved” in the decision to terminate Plaintiff's employment, such involvement does not create a cause of action against them.11 V. Conclusion Defendants have offered legitimate, non-retaliatory and non-discriminatory reasons for the decision to terminate Plaintiff's employment. Plaintiff has failed to offer evidence that the actions challenged were violative of public policy. Likewise, Plaintiff has failed to offer evidence which could lead a reasonable trier of fact to discredit the proffered legitimate, non-retaliatory, non-discriminatory reasons; to find that the proffered reasons were pretextual, or to find that retaliation against him was the true reason for the termination of his employment. It is therefore, this 2th day of March, RECOMMENDED that Defendants Children's National Medical Center, et al.’s Motion for Summary Judgment (ECF No. 59) be GRNTED with respect to the remaining claims and Defendants.12 DEBORH ROBINSON United States Magistrate Judge Within fourteen days, any party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each objection. In the absence of timely objections, further review of issues addressed may be deemed waived.

Adams v. McConnell

Plaintiff, appearing pro se, has filed a “Petition for a Redress of Grievances Against the Government,” and an application to proceed in forma pauperis. The application will be granted, and the case will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)(iii) (requiring dismissal of a case upon a determination that the complaint fails to state a claim upon which relief may be granted, is frivolous, or seeks monetary relief from an immune defendant). Plaintiff is a resident of Harrison, Arkansas, who has sued United States Senator Mitch McConnell for positions he has taken as Senate Majority Leader. He claims that McConnell exceeded his authority by “passing a Covid-19 relief Bill into law with blanket immunity abridging First Amendment rights to legal redress[.]” Pet. ¶ 35. Plaintiff seeks monetary damages exceeding $10 million and an order compelling “defendant to repeal any and all laws that he passed that are ultra vires to harm Adams.” Id. at 11. The Petition is premised on McConnell's conduct as Senate Majority Leader, for which he enjoys absolute immunity under the Speech or Debate Clause, U.S. CONST. art. I, § 6, cl. 1. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995) (“The Clause confers on Members of Congress immunity for all actions within the legislative sphere, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes”) (cleaned up); cf. Pet. ¶ 7 (alleging that McConnell “has shown a pattern of practice to violate the U.S. Constitution, his oath of office and ethical norms to cause plaintiff Dale B. Adams irreparable harm by passing laws that abridge First Amendment rights”); id. ¶ 16 (“Defendant United States Senator Mitch A. McConnell Jr., has held our devastated economy, the destitute citizens and other honorable members of Congress hostage who try to abide by their oath of office serving their constituents, while Senator McConnell will not agree to pass any Covid-19 relief Bill into law without including a clause for liability reform (“immunity”)); id. ¶ 26 (“undue delay for passing Covid-19 emergency relief by U.S. Senator Mitch A. McConnell Jr., is causing Adams and millions of other citizens a financial hardship”). An “in forma pauperis complaint is properly dismissed as frivolous ... if [as here] it is clear from the face of the pleading that the named defendant is absolutely immune from suit on the claims asserted.” Crisafi v. Holland 655 F.2d 1305, 1308 (D.C. Cir. 1981). To the extent that McConnell is not immune, the Petition is at most “a generalized grievance” warranting no “exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Consequently, this case will be dismissed with prejudice. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (A dismissal with prejudice is warranted upon determining “that ‘the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’ ”) (quoting Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (other citation omitted)). A separate order accompanies this Memorandum Opinion.

Jackson

majority

Plaintiff, appearing pro se, has filed a “Petition for a Redress of Grievances Against the Government,” and an application to proceed in forma pauperis. The application will be granted, and the case will be dismissed pursuant to (e)(2)(B)(ii)(iii) (requiring dismissal of a case upon a determination that the complaint fails to state a claim upon which relief may be granted, is frivolous, or seeks monetary relief from an immune defendant). Plaintiff is a resident of Harrison, Arkansas, who has sued United States Senator Mitch McConnell for positions he has taken as Senate Majority Leader. He claims that McConnell exceeded his authority by “passing a Covid-19 relief Bill into law with blanket immunity abridging First Amendment rights to legal redress[.]” Pet. ¶ 35. Plaintiff seeks monetary damages exceeding $10 million and an order compelling “defendant to repeal any and all laws that he passed that are ultra vires to harm Adams.” The Petition is premised on McConnell's conduct as Senate Majority Leader, for which he enjoys absolute immunity under the Speech or Debate Clause, U.S. CONST. art. I, 6, cl. 1. See Brown & Williamson Tobacco (cleaned up); cf. Pet. ¶ 7 (alleging that McConnell “has shown a pattern of practice to violate the U.S. Constitution, his oath of office and ethical norms to cause plaintiff Dale B. Adams irreparable harm by passing laws that abridge First Amendment rights”); (“Defendant United States Senator Mitch A. McConnell Jr., has held our devastated economy, the destitute citizens and other honorable members of Congress hostage who try to abide by their oath of office serving their constituents, while Senator McConnell will not agree to pass any Covid-19 relief Bill into law without including a clause for liability reform (“immunity”)); An “in forma pauperis complaint is properly dismissed as frivolous if [as here] it is clear from the face of the pleading that the named defendant is absolutely immune from suit on the claims asserted.” To the extent that McConnell is not immune, the Petition is at most “a generalized grievance” warranting no “exercise of jurisdiction.” Consequently, this case will be dismissed with prejudice. See ). A separate order accompanies this Memorandum Opinion.

American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board

On March 6, 2020, the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO” or “Plaintiff”) filed a complaint in this Court to challenge *233 a rule that the National Labor Relations Board (“NLRB”) recently promulgated in order to regulate union-representation elections. (See Compl., ECF No. 1.) The complaint invokes the Administrative Procedure Act (“APA”), Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551–559, 701–706), and claims that the NLRB's 2019 Election Rule is unlawful in several respects. See Compl. ¶¶ 43–50 (Count One) (arguing that the NLRB wrongly eschewed the required notice-and-comment process); ¶¶ 51–59 (Count Two) (claiming that the rule is arbitrary and capricious as a whole); id. ¶¶ 60–69 (Count Three) (asserting that several rule provisions, including the new impoundment requirement, are arbitrary and capricious); id. ¶¶ 70–81 (Count Four) (maintaining that the impoundment provision, among others, violates section 153(b) of the National Labor Relations Act (“NLRA”).) This Court has already issued an order that grants summary judgment in favor of the AFL-CIO with respect to the complaint's first claim; i.e., the Court has held that certain provisions of the 2019 Election Rule are unlawful because the NLRB did not engage in the notice-and-comment rulemaking process that the APA requires. (See Order of May 30, 2020, ECF No. 34, at 1–2; see also Compl. ¶ 48.) And based solely upon that conclusion—which, again, pertains only to Count One of the AFL-CIO's complaint—the Court has invalidated the five rule provisions that the complaint identifies as procedurally improper on notice-and-comment grounds, and it has remanded the entire matter back to the NLRB for reconsideration, without proceeding to consider the remaining claims in the AFL-CIO's complaint. (See Mem. Opinion of June 7, 2020, ECF No. 36, at 47–48 (rejecting the AFL-CIO's argument that the rule should be vacated in its entirety on non-severability grounds, and sending the matter back to the NLRB based in part on the AFL-CIO's assertion that the Court need not consider the complaint's remaining claims if summary judgment is entered in Plaintiff's favor with respect to Count One).)1 After this Court issued the Memorandum Opinion that explained its Order of May 30, 2020, see generally AFL-CIO v. N.L.R.B. (“AFL-CIO I”), No. 20-cv-0675, 466 F.Supp.3d 68 (D.D.C. June 7, 2020), the AFL-CIO filed a motion for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b), asking the Court to revisit its decision not to reach Plaintiff's remaining claims concerning the 2019 Election Rule. (See Pl.’s Mot. for Reconsideration, ECF No. 37, at 1–2.) That motion, which the NLRB opposes (see Def.’s Mem. in Opp'n to Pl.’s Mot. for Reconsideration (“Def.’s Opp'n to Reconsideration”), ECF No. 39), is before this Court at present. The AFL-CIO contends that the Court misinterpreted its “suggestion that the Court did not need to proceed to Counts Two to Four” if the Court agreed that certain provisions of the 2019 Election Rule violated the APA's notice-and-comment requirement, because the remand request “was always premised on the Court's agreement with the AFL-CIO's argument that [those] provisions of the NLRB's rule were non-severable, and therefore, the entire rule was invalid on notice and comment grounds.” (Pl.’s Mot. for Reconsideration at 2.) In essence, the AFL-CIO now seeks rescission of the part of the Court's Order that remands this matter to the agency, insofar as the AFL-CIO's motion for reconsideration asks the Court to “proceed *234 to rule on Counts Two, Three, and Four” of the complaint. (Id. at 8) This Court has the discretion to revise its prior interlocutory order under Federal Rule of Civil Procedure 54(b) and, for the reasons explained fully below, this Court is persuaded that its prior Order was based upon a significant misunderstanding: the Court understood the AFL-CIO to be calling for an unqualified return of the matter to the NLRB if the Court ruled in the AFL-CIO's favor on Count One, when the AFL-CIO actually intended for its remand request to be contingent upon this Court's agreement that the invalidated provisions of the 2019 Election Rule were not severable. Therefore, the AFL-CIO's motion for reconsideration will be GRANTED, and the Court's Order of May 30, 2020, will be AMENDED to rescind the Court's remand of this matter to the agency, in order to facilitate the Court's consideration of the AFL-CIO's remaining claims. In light of its ruling on the motion for reconsideration, this Court has also proceeded to consider the parties’ summary judgment arguments concerning the remaining counts in the complaint, as the AFL-CIO has requested. As explained herein (see infra Section I.B), the Court concludes that the NLRB is entitled to summary judgment on Counts Two, Three, and Four of the AFL-CIO's complaint. In particular, the Court finds that the NLRB's decisionmaking process with respect to its promulgation of the 2019 Election Rule as whole—and also with respect to the provision that provides for the automatic impoundment of election ballots pending NLRB review—was sufficiently reasoned to clear the APA's arbitrary-and-capricious policymaking hurdle. And the Court has also determined that the impoundment provision does not violate the NLRA, because that statute is silent regarding the issue, and the NLRB advanced a reasonable interpretation of the NLRA's limits when it adopted the impoundment policy. Consequently, the Court's May 30th Order will be further amended to reflect the Court's conclusion that, ultimately, both parties’ cross-motions for summary judgment must be granted in part and denied in part. (See Amend. Order, ECF No. 41.) The AFL-CIO's motion for summary judgment will be granted with respect to Count One (for the reasons set forth in the Memorandum Opinion issued on June 7, 2020) and denied with respect to Counts Two, Three, and Four, for the reasons explained below. And the NLRB's cross-motion for summary judgment is denied with respect to Count One (as set forth in the Court's prior Memorandum Opinion) and granted with respect to the remaining counts in the complaint, as discussed in Section I.B of the instant Memorandum Opinion and Order. I. DISCUSSION A. The AFL-CIO's Motion For Reconsideration, Properly Construed As A Motion To Revise This Court's Prior Interlocutory Judgment Pursuant To Federal Rule Of Civil Procedure 54(b), Will Be Granted 1. The AFL-CIO Is Seeking Reconsideration Of An Interlocutory Order, Not A Final Judgment The Federal Rules of Civil Procedure provide three avenues for a party to seek reconsideration of a court's ruling: “Rule 54 governs reconsideration of interlocutory orders,” while “Rules 59(e) and 60(b) dictate when a party may obtain reconsideration of a final judgment.” Ali v. Carnegie Inst. of Washington, 309 F.R.D. 77, 80 (D.D.C. 2015); see also *235 Murphy v. Exec. Office for U.S. Attorneys, 11 F. Supp. 3d 7, 8 (D.D.C. 2014), aff'd, 789 F.3d 204 (D.C. Cir. 2015). Indeed, while a motion brought under Rule 59(e) seeks “to alter or amend a judgment,” Fed. R. Civ. P. 59(e), and a Rule 60(b) motion requests relief “from a final judgment, order, or proceeding,” Fed. R. Civ. P. 60(b)—and thus these two rules indisputably pertain to the court's reconsideration of final judgments, see West v. Holder, 309 F.R.D. 54, 55 (D.D.C. 2015)—Rule 54(b) permits a court to revise or reconsider any order “that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties[,]” Fed. R. Civ. P. 54(b). To this end, Rule 54(b) plainly provides that, unless the court says otherwise, “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Id. 1 So it is here. The AFL-CIO filed a complaint that made four separate claims with respect to the alleged unlawfulness of the NLRB's 2019 Election Rule, and in its Order of May 30, 2020, this Court did not purport to resolve the entire case; instead, it granted summary judgment only with respect to one of the AFL-CIO's four claims. (See Order at 2 (ordering that “judgment is entered in Plaintiff's favor with respect to Count One of the Complaint”).) The interlocutory nature of the Court's review was entirely transparent; in fact, the Court expressly declined to reach the other APA claims that appear in the AFL-CIO's complaint. See AFL-CIO I, 466 F.Supp.3d at 95–96. And the AFL-CIO's own motion tacitly concedes that the Court has not yet entered a final judgment in this case, for the union's basic ask is that the Court “proceed to rule on Counts Two, Three, and Four.” (Pl.’s Mot. for Reconsideration at 8.) 2 “The district court ordinarily enters a final judgment only after it has disposed of all claims against all parties[,]” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 221 (D.C. Cir. 2011) (emphasis added), and until then, a request to reconsider any of its “order[s] or other decision[s]” is governed by Rule 54(b), Fed. R. Civ. P. 54(b). Cf. 47 Am. Jur. 2d Judgments § 638 (2020) (“In general, a partial summary judgment is merely an interlocutory judgment which can be added to, amended, or set aside by the court at any time prior to final judgment.”). Therefore, the AFL-CIO's instant motion to reconsider this Court's Order of May 30, 2020, is properly construed as a motion to revise that interlocutory judgment pursuant to Rule 54(b), and a request that the Court proceed to render a final judgment in this case—i.e., one that addresses all of the AFL-CIO's claims. See, e.g., Ofisi v. BNP Paribas, S.A., 285 F. Supp. 3d 240, 243 (D.D.C. 2018) (construing a motion for reconsideration, which invoked Rule 60(b), as a Rule 54(b) motion to revise an interlocutory judgment). 2. In Its Discretion, This Court Will Grant The AFL-CIO's Motion And Proceed To Review The Remainder Of Its Claims 3 4 5 “Motions for reconsideration of interlocutory orders are within the discretion of the trial court[,]” Jordan v. Dep't of Labor, 308 F. Supp. 3d 24, 35 (D.D.C. 2018), aff'd, 2018 WL 5819393 (D.C. Cir. Oct. 19, 2018), and “[t]he Court may reconsider and revise its interlocutory orders as justice requires[,]” id. And it is clear beyond cavil that justice requires reconsideration when, among other things, a court has “patently misunderstood a party” or *236 “has made an error not of reasoning but of apprehension[.]” Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). 6 In the instant case, the AFL-CIO has made a persuasive argument that this Court misunderstood Plaintiff's statements concerning whether or not the Court should proceed to consider the remaining claims in the AFL-CIO's complaint in the event that the Court agreed with the AFL-CIO's notice-and-comment challenge. (See, e.g., Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s Mot. for Summ. J.”), ECF No. 23-1, at 10 (“If the Court agrees with Plaintiff's primary claim that the NLRB promulgated the 2019 election rule in violation of the APA's notice-and-comment requirement, the Court may grant summary judgment and remand the rule to the Board without reaching Plaintiff's alternative grounds for invalidating the rule.”); Hr'g Tr., ECF No. 38, at 36 (“MR. GINSBURG: [W]e do not believe you need to reach that [arbitrary-and-capricious] argument if you agree that these are substantive changes that should have gone through notice and comment in the first instance.”); see also id. at 31, 66.) Specifically, the AFL-CIO has now clarified that its repeated calls for remanding the matter to the agency based solely upon the Court's Count One ruling were intended to suggest that this Court should skip consideration of the AFL-CIO's remaining claims only “if the court agreed that the rule is substantive in its entirety because the procedural elements are not severable[.]” (Pl.’s Mot. for Reconsideration at 7.) Moreover, the NLRB has done little to convince the Court that it should not reconsider its remand and should not proceed to review the other claims that the AFL-CIO has unquestionably asserted. Indeed, the agency's opposition appears to be based almost entirely on the stringent nature of an inapplicable legal standard. See Def.’s Opp'n to Reconsideration at 2 (observing that “successful requests for reconsideration under Rule 60(b)(1) are rare” (internal quotation marks and citation omitted).) What is more, the agency has apparently proceeded apace to enforce the remainder of the 2019 Election Rule in the wake of this Court's Order granting the AFL-CIO summary judgment solely with respect to Count One, notwithstanding the pendency of other legal claims that assail the 2019 Election Rule in its entirety. Cf. Pl.’s Mot. for Reconsideration at 4 (explaining how the NLRB's actions suggest that it has interpreted this Court's May 30th Order “as having agreed with the NLRB on severability and granted the NLRB's cross-motion for summary judgment as to Plaintiff's Counts Two, Three, and Four rather than as having denied the motion as to those counts” (emphasis in original) (internal citation omitted)). Thus, the Board is hard pressed to complain about the AFL-CIO's attempt to ensure that the rest of its claims are considered. In short, this Court misapprehended Plaintiff's requested remedy for the first APA violation that it successfully identified—which qualifies as a clear error, see Singh, 383 F. Supp. 2d at 101—and, as such, justice requires revision of the Court's prior order, id. Therefore, the AFL-CIO's motion for reconsideration will be granted and the Court will proceed to consider Plaintiff's additional claims, such that the Order of May 30, 2020, will ultimately be amended to reflect the conclusions that Court has now reached concerning the remaining claims, which are discussed below. B. The NLRB Is Entitled To Summary Judgment With Respect To Counts Two, Three, And Four Of The AFL-CIO's Complaint On June 7, 2020, this Court issued a lengthy Memorandum Opinion that describes *237 in detail the relevant background for the instant dispute between the AFL-CIO and the NLRB concerning the validity of the 2019 Election Rule. See AFL-CIO I, 466 F.Supp.3d at 74–81. Those background facts are incorporated into this Memorandum Opinion and Order by reference, and thus the Court assumes familiarity with those facts. As relevant here, it suffices to repeat merely that the NLRB's 2019 Election Rule prescribes certain procedures that govern representation elections for collective bargaining purposes. See id. at 79–81. The reader is also reminded that, at this point in the litigation, the Court has set aside five provisions of the 2019 Election Rule that the AFL-CIO has successfully challenged as violations of the APA's notice-and-comment rulemaking requirement. See id. at 87–88. The Court now turns to the AFL-CIO's three remaining contentions: (1) that the 2019 Election Rule as a whole is arbitrary and capricious, and must be set aside on that basis (see Compl. ¶¶ 51–59 (Count Two)); (2) that the provision of the 2019 Election Rule that requires the automatic impoundment of election ballots under certain circumstances is arbitrary and capricious (see id. ¶¶ 60–69 (Count Three)); and (3) that the impoundment provision also violates section 153(b) of the NLRA (see id. ¶¶ 70–81 (Count Four)).2 In its motion for summary judgment, the AFL-CIO argues that the NLRB's “promulgation of the [2019 Election Rule] was arbitrary and capricious as a whole because the Board completely ignored available evidence that contradicts the rationale for the rule.” (Pl.’s Mot. for Summ. J. at 37.) The AFL-CIO further contends that the impoundment provision is either arbitrary and capricious, because it “forces the Board to decide issues that in many cases will become moot once the ballots are opened” and raises “uncertainty to an entirely different level” for employers (id. at 47–48), or violates section 153(b) of the NLRA, since that statutory provision “preclude[s] automatic, categorical stays” of regional-director duties, such as the one the impoundment provision triggers (Pl.’s Mem. in Opp'n to Def.’s Mot. for Summ. J. (“Pl.’s Summ. J. Opp'n”), ECF No. 29, at 28). In response, the NLRB maintains that the 2019 Election Rule is not arbitrary and capricious in its entirety, given that the Board “considered many of the same policy considerations as those examined by the 2014 Board majority[,]” such as “efficiency, fair and accurate voting, transparency and uniformity, changed technology, and timeliness,” and concluded that “important interests, such as fairness, voting accuracy, and finality, had been sacrificed and would be better served by allowing more time for the electoral process.” (Def.’s Mem. in Supp. of NLRB's Mot. for Summ. J., ECF No. 22-1, at 28.) The NLRB similarly argues that the Board intentionally and rationally determined that “automatic impoundment in these narrow circumstances will promote transparency” (id. at 39), and that its decision to adopt an impoundment policy does not violate the NLRA, because that statute “is either silent or ambiguous” on the automatic impoundment issue, and the Board's interpretation is “based on a *238 permissible construction of the statute” (id. at 47). As explained below, this Court concludes that the NLRB has the better of this argument, in light of well-established and, indeed, foundational principles of administrative law. Therefore, summary judgment must be entered in the NLRB's favor with respect to Counts Two through Four of the AFL-CIO's complaint. 1. The APA Requires Agencies To Engage In Reasoned Decisionmaking, But This Limitation Is A Relatively Narrow Constraint On An Agency's Policymaking Authority 7 8 9 The Administrative Procedure Act of 1946 codified established common law principles by specifying “the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts[.]” Franklin v. Massachusetts, 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). For example, it was well established, long before 1946, that “arbitrary power resides nowhere in our system of government,” United States ex rel. Champion Lumber Co. v. Fisher, 227 U.S. 445, 448–49, 33 S.Ct. 329, 57 L.Ed. 591 (1913); thus, in the APA, Congress fashioned a statutory cause of action, and a remedy, for the longstanding legal claim that the agency-defendant had unlawfully made the challenged policy determination in an “arbitrary [or] capricious” fashion. 5 U.S.C. § 706(2)(A). This principle—i.e., judicial review of agency actions that are procedurally arbitrary or capricious—is fundamental to our democratic system of government. See Raoul Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965, 966 (1969) (“For more than 125 years before the passage of the APA the Supreme Court declared again and again that there is no room for arbitrary action in our system, that power to act arbitrarily is not delegated.”); see also, e.g., United States ex rel. Champion Lumber Co. v. Fisher, 39 App. D.C. 158, 161 (D.C. Cir. 1912). And it appears, unsurprisingly, that courts’ firm rejection of arbitrary action by government officials finds its origin in the Due Process Clause of the U.S. Constitution. See People of State of New York ex rel. N.Y. & Queens Gas Co. v. McCall, 245 U.S. 345, 348–49, 38 S.Ct. 122, 62 L.Ed. 337 (1917); see also Goldsmith v. Clabaugh, 6 F.2d 94, 96 (D.C. Cir. 1925) (explaining that “a board composed of public officials” may not make discretionary decisions in an “arbitrary or capricious” way or “for undisclosed reasons,” for doing so “violate[s] the fundamental principles of justice and due process of law”).3 10 11 12 13 14 At bottom, the APA “requires agencies to engage in reasoned decisionmaking, and directs that agency actions be set aside if they are arbitrary or capricious[.]” *239 Dep't of Homeland Sec. v. Regents of the Univ. of Cal., ––– U.S. ––––, 140 S.Ct. 1891, 1904-05, 207 L.Ed.2d 353 (2020) (internal quotation marks and citation omitted); see also Michigan v. E.P.A., 576 U.S. 743, 135 S. Ct. 2699, 2706, 192 L.Ed.2d 674 (2015) (explaining that the APA's no-arbitrariness command means that agencies must engage in “reasoned decisionmaking” with respect to their policy prescriptions (internal quotation marks and citation omitted)). However, and significantly for present purposes, the “scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency[.]” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). That is, “if one thing should be clear, it is that courts are not to engage (at least in the arena of judicial review of agency action) in substantive policymaking.” Cont'l Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451 (D.C. Cir. 1988). And this is so despite the fact that “courts [do] retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking[.]” Judulang v. Holder, 565 U.S. 42, 53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). Simply stated, a court's non-policymaking duty under the APA is merely to ensure that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made[.]” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (internal quotation marks and citation omitted); see also Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634, 646 (D.C. Cir. 2020) (noting that an agency has the “obligation ‘to enable’ a reviewing court to conclude that the agency's action ‘was the product of reasoned decisionmaking’ ” (quoting State Farm, 463 U.S. at 52, 103 S.Ct. 2856)). 15 16 17 18 It is important to note that a court's examination for the APA's limited purposes can reveal violations of the arbitrary-and-capricious mandate that can take various forms. For example, if the agency fails to “provide any explanation whatsoever” for a challenged action, Swedish Am. Hosp. v. Sebelius, 773 F. Supp. 2d 1, 14 (D.D.C. 2011), then it has violated the APA's arbitrariness prohibition by not providing a factual basis upon which a court may conclude that the agency has actually engaged in reasoned decisionmaking, see A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995) (noting that the requirement that an agency explain its decision enables courts to fulfill their duty of ensuring non-arbitrary decisionmaking under the APA). An agency that, instead, transparently engages in policymaking, but arrives at its discretionary decision “by Ouija board or dart board, rock/paper/scissors, or even the Magic 8 Ball[,]” has acted in an arbitrary-and-capricious manner for APA purposes because its policy determination is not a reasoned one. Make the Rd. N.Y. v. McAleenan (“MTRNY”), 405 F. Supp. 3d 1, 47 (D.D.C. 2019), rev'd on other grounds sub nom., Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020). An agency similarly transgresses the APA's arbitrariness restriction if it “entirely fail[s] to consider an important aspect of the problem,” or if its decision “runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise[,]” State Farm, 463 U.S. at 43, 103 S.Ct. 2856; see also Regents, 140 S.Ct. at 1913-14. Under any of these circumstances, it is the court's obligation to declare that the challenged rule is procedurally unlawful, and to vacate the agency's action under section 706(2)(A) of the APA. See Regents, 140 S.Ct. at 1904-05. *240 19 20 21 Moreover, the “foundational precept of administrative law” that prohibits arbitrary-and-capricious policymaking in any of these forms “is especially important where, as here, an agency changes course.” Wheeler, 956 F.3d at 644. If an agency has chosen to depart from its prior position, it “must show that there are good reasons for the new policy[,]” and when fashioning those “good reasons,” the agency cannot simply “disregard[ ] facts and circumstances that underlay or were engendered by the prior policy” without offering “a reasoned explanation” for the decision to disregard those considerations at present. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515–16, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (emphasis added); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1284 (D.C. Cir. 2019) (explaining that an agency acts arbitrarily if it provides “no explanation for the change” in its policies or “completely ignores its previous finding[s]”). Furthermore, if the agency's reasoning fails to display “awareness that it is changing position[,]” Fox Television, 556 U.S. at 515, 129 S.Ct. 1800 (emphasis in original), including an explanation for why the agency is departing from its prior policy where that “new policy rests upon factual findings that contradict those which underlay its prior policy” or where “its prior policy has engendered serious reliance interests that must be taken into account[,]” id., then the agency has not “provide[d] a reasoned explanation for the change[,]” as the APA's arbitrary-and-capricious mandate requires, Encino Motorcars, LLC v. Navarro, ––– U.S. ––––, 136 S. Ct. 2117, 2125, 195 L.Ed.2d 382 (2016). 22 23 24 Be that as it may, when an agency opts to depart from prior practice, it need “not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one[.]” Fox Television, 556 U.S. at 515, 129 S.Ct. 1800 (emphasis in original). Instead, “it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Id. (emphasis in original). In other words, if the agency is “not writing on a blank slate,” the APA merely requires it “to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” Regents, 140 S.Ct. at 1915 (internal quotation marks and citation omitted). And this is so precisely because making the “difficult decision” of whether “other interests and policy concerns outweigh any reliance interests” is “the agency's job,” not the court's. Id. (emphasis added); see also MTRNY, 405 F. Supp. 3d at 57 (“Congress intentionally delegated the designation authority to the expert agency that it likely believed was best equipped to make rational decisions about who should be exposed to the significant and consequential risks it was creating.”). 2. The NLRB Engaged In Reasoned Decisionmaking With Respect To The 2019 Election Rule As A Whole 25 In the instant case, the Court is persuaded that the NLRB's policymaking process with respect to promulgation of the 2019 Election Rule as whole was sufficient to satisfy the APA's reasoned-decisionmaking requirement. To start, the record plainly establishes that the NLRB fully recognized that it was changing the existing policy concerning the practices that pertain to representation elections. In fact, the agency commenced its decisionmaking process by intentionally gathering information about how the 2014 rule was working, see Representation—Case Procedures, 82 Fed. Reg. 58,783 (Dec. 14, 2017) (“Request for Information”), and having *241 done so, the agency was fully aware of the interests at stake with respect to any changes it was contemplating, including the impact of any such change on those who had adjusted to, and were relying on, the prior system. What is more, the text of the 2019 Election Rule demonstrates the NLRB's awareness of the values upon which the prior rule was based, see 84 Fed. Reg. at 69,528 (recognizing that the 2014 Election Rule “serve[d] and balance[d] many different interests[,]” and that “speed in the electoral process was a very important consideration”), and the Board articulated its reasons for deciding to change course: that, in addition to “efficiency[,]” the Board now also values “certainty and finality, uniformity and transparency, [and] fair and accurate voting” when it comes to election determinations, id. at 69,539. This policy decision was entirely the NLRB's to make, and the record establishes that the Board exercised its discretion with relevant information in hand and with eyes wide open concerning the impact of the significant changes that it was adopting. See Am. Hosp. Ass'n v. N.L.R.B., 499 U.S. 606, 618–19, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991) (“The question whether the Board has changed its view about certain issues ... does not undermine the validity of a rule that is based on substantial evidence and supported by a reasoned analysis.” (internal quotation marks and citation omitted)). 26 As a result, this Court cannot accept the AFL-CIO's argument that the NLRB acted arbitrarily and capriciously in violation of the APA because it “plowed ahead without conducting [certain relevant statistical] analyses” on the effectiveness of the 2014 Election Rule that the responses to the NLRB's Request for Information identified. (Pl.’s Mot. for Summ. J. at 39.) To do so would be essentially to mandate that an agency must explore “every alternative device and thought conceivable by the mind of man[,]” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), despite the fact that the Supreme Court has long rejected such an expansive view of the requirements of non-arbitrary policymaking. (See supra Section I.B.1.) Nor was the NLRB required to engage in the particular kinds of statistical analyses that the AFL-CIO would have preferred. To the contrary, the Board's choice “not to do an empirical study does not make [the agency's action] an unreasoned decision” for APA purposes, Chamber of Commerce of U.S. v. S.E.C., 412 F.3d 133, 142 (D.C. Cir. 2005) (emphasis added), and this is especially so given that the NLRB specifically explained that its “reasons for revising or rescinding some of the 2014 amendments are ... based on non-statistical policy choices[,]” 84 Fed. Reg. at 69,557. It is also evident on the face of the 2019 Election Rule that the Board described adequately its decisionmaking process with respect to the procedures that the agency was mandating concerning certification of a representation election. The NLRB was plainly making policy judgments, and its value-driven choices did not primarily rely on either statistical data or particular facts about the operation of the prior regime. Cf. Olivares v. Transportation Sec. Admin., 819 F.3d 454, 466 (D.C. Cir. 2016) (noting that sometimes, with respect to agency policymaking, “facts alone do not provide the answer” (internal quotation marks and citation omitted)). Indeed, far from “fail[ing] to consider available evidence” (Pl.’s Mot. for Summ. J. at 42), the NLRB appears to have looked at the existing relevant information about the operation of the prior rule, and identified “the considerations it found persuasive” from within *242 that corpus of information, Olivares, 819 F.3d at 466 (internal quotation marks and citation omitted) (emphasis added), which is really all that the APA's reasoned-decisionmaking requirement demands. For example, in the text of the 2019 Election Rule, the NLRB expressly acknowledges that “the Board's statistics demonstrate that the median time between the filing of a petition and the election has been significantly reduced since the 2014 amendments became effective[.]” 84 Fed. Reg. at 69,528–29. But the agency also expresses its renewed interest in considering whether those “gains in speed have come at the expense of other relevant interests,” including “certainty and finality[.]” Id. And, ultimately, the Board preferenced the latter, by observing that the 2014 rule's efficiency gains also permitted “issues of unit scope and employee eligibility” to “linger on after the election for weeks, months, or even years before being resolved[,]” and thereby created a “barrier” to reaching “certainty and finality” of election results. Id. This Court also has little doubt that the NLRB employed reasoning when it decided to value the kind o The impoundment provision of the 2019 Election Rule states that, “[w]here a request for review of a direction of election is filed within 10 business days of that direction” and “the Board has not ruled on the request ... before the conclusion of the election,” any “ballots whose validity might be affected by the Board's ruling on *243 the request or decision on review will be segregated and all ballots will be impounded and remain unopened pending such ruling or decision.” 84 Fed. Reg. at 69,526.4 The AFL-CIO contends that this impoundment-of-ballots requirement—which effectively stalls ballot counting and election certification until these challenges are reviewed and ruled upon—is not the product of reasoned decisionmaking, because it “forces the Board to decide issues that in many cases will become moot once the ballots are opened.” (Pl.’s Mot. for Summ. J. at 47–48.) The AFL-CIO further argues that impounding the ballots raises the employers' “uncertainty to an entirely different level” because it prevents employers from determining “whether employees voted for representation in the first instance[,]” which is significant because employers are barred “from unilaterally changing terms and conditions of employment starting on the date of the election if [and only if] the union is ultimately certified.” (Id. at 48.) Alternatively, the AFL-CIO asserts that this impoundment policy violates the APA because it breaches section 153(b) of the NLRA, which states that a request for Board review of “any action of a regional director delegated to him” shall not, “unless specifically ordered by the Board, operate as a stay of any action taken by the regional director.” (Id. at 49 (quoting 29 U.S.C. § 153(b)).) As fully explained below, this Court concludes that neither APA claim is availing. The Court's prior discussion concerning the extent, and limits, of the APA's arbitrary-and-capricious requirement and the Court's role in enforcing it (see supra Section I.B.1) is sufficient to permit expeditious dispatch of the AFL-CIO's first contention. Nothing in the Federal Register notice or the administrative record hints at arbitrary action in any of the forms described above; instead, the 2019 Election Rule plainly articulates the NLRB's policy-driven view that the impoundment provision will enhance “finality and certainty, fair and accurate voting, transparency and uniformity, ballot secrecy, and even (in certain respects) efficiency[,]” 84 Fed. Reg. at 69,548. As a result, the AFL-CIO's counterargument—i.e., that the provision does not, in fact, “promote[ ] transparency” because it “forces the Board to decide issues that in many cases will become moot once the ballots are opened” (Pl.’s Mot. for Summ. J at 47) and raises “uncertainty to an entirely different level” for employers (id. at 48)—is largely beside the point. The NLRB apparently believes that an impoundment practice best furthers the objectives of transparency, mootness, and certainty, which is not an entirely irrational or unreasonable view, all things considered, and as explained above, it is the agency's prerogative to weigh the downsides of the proposed policy change (such as the ones that the AFL-CIO now perceives) against the beneficial outcomes that the agency is seeking. See Fox Television, 556 U.S. at 515, 129 S.Ct. 1800. All that the APA's no-arbitrariness mandate requires, and thus all that this Court is permitted to compel, is the agency's transparent consideration of the relevant facts and factors when it weighs the costs of the new policy against the benefits that it believes the change will yield. And, here, the NLRB has clearly done so. See, e.g., 84 Fed. Reg. at 69,548 (explaining that, “although it is possible that the results of an election will *244 render issues moot, there is no way to know in advance if this will be the case, and where the issues are not mooted by the election results, the parties will have greater finality and certainty if these matters are resolved prior to the vote count”); see also id. (positing that “impoundment of the ballots will reduce the possibility of confusion where results are announced prior to the Board's ruling on a pending request for review, but then the Board's subsequent ruling nullifies or alters the results”). Thus, this Court cannot find that the NLRB's impoundment provision is arbitrary and capricious in violation of section 706(2)(A) of the APA. 28 The Court is also unable to conclude that that the new impoundment provision violates section 153(b) of the NLRA, as the AFL-CIO claims. (See Pl.’s Mot. for Summ. J. at 49.) As previously noted, section 153(b) of the NLRA authorizes the NLRB to delegate the Board's own authority in representation cases to its regional directors, 29 U.S.C. § 153(b), and also establishes that, “upon the filing of a request ... by any interested person, the Board may review any action of a regional director delegated to him[,]” id. The statute further provides that “such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director[.]” Id. (emphasis added). And the AFL-CIO maintains that this statutory bar on stays of actions the regional director has taken forecloses a stay on a regional director's future acts, such that the impoundment provision in the 2019 Election Rule is “unambiguously” unlawful. (See Pl.’s Summ. J. Opp'n at 27.) To understand why the Court disagrees with the AFL-CIO's characterization of the rule's impoundment policy, it is crucial to recognize that the particular action of the regional director that is under review at the time of impoundment is the regional director's “decision and direction of election[,]” 29 C.F.R. § 102.67(c) (2020), which is but one of the regional director's delegated duties. In the absence of the impoundment provision and in the ordinary course of affairs, the regional director calls for an election, the election then occurs, and once the election has been conducted, the regional director will count the ballots that were cast and will certify the election results. 29 C.F.R. § 102.69 (2019). The impoundment provision has no bearing on whether the election that a regional director has called proceeds, i.e., it does not impact the act of the regional director that has already been taken. Rather, if a request for Board review is filed “within 10 business days” of the regional director's call for an election, and if such request “has not been ruled upon or has been granted before the election is conducted,” 29 C.F.R. § 102.67(c) (2020), then the impoundment rule operates to stymie certain actions that the regional director intends to take, but has not yet taken (i.e., counting the ballots and certifying the election). 29 30 In this Court's view, section 153(b)’s stay prohibition plainly speaks solely to actions that have been “taken” by regional directors, 29 U.S.C. § 153(b), and says nothing about whether actions that regional directors have not yet taken (but will take) can be stayed or postponed. “Congress’ use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Moreover, “Congress’ choice of words is presumed to be deliberate[.]” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). As relevant here, the word “taken” in section 153(b) of the NLRA appears to identify, and prevent the postponement of, a subset of the decisions that the NLRB has “delegated” *245 to regional directors: those that have already been made. 29 U.S.C. § 153(b). And because section 153(b) is “silent or [at best] ambiguous[,]” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), about the prospective-action issue that the 2019 Election Rule raises—i.e., whether the NLRA prohibits the agency from preventing the regional director from making a future decision—the only question for the court is whether the agency's rule “is based on a permissible construction of the statute[,]” id. 31 In this regard, the AFL-CIO appears to suggest that the NLRB's promulgation of the impoundment rule is an unreasonable interpretation of the NLRA's stay provision, because “prospectively preventing [regional directors] from taking certain categories of action without a specific order in a particular case” has the effect of “wholly undermin[ing] the clear purpose[s]” of section 153(b), which the AFL-CIO identifies as “preclud[ing] automatic, categorical stays” (Pl.’s Summ. J. Opp'n at 28) and “speed[ing] the work of the Board” (Pl.’s Mot. for Summ. J. at 49 (internal quotation marks and citation omitted)). But there is no indication in the legislative history or elsewhere that Congress intended to prohibit all stays of any action the Board delegates to its regional directors, retrospective and prospective; thus, it is not unreasonable for the NLRB to conclude that the postponement of future actions of a regional director is permissible. It is also clear to this Court that impoundment provision comports with the stated purposes of the NLRA's stay prohibition at a certain level of abstraction, because it appears that section 153(b) was simply intended to “expedite final disposition of cases by the Board, by turning over part of its caseload to its regional directors for final determination[,]” 105 Cong. Rec. 19,770 (daily ed. Sept. 14, 1959) (statement of Sen. Goldwater), and one of the many stated reasons why the NLRB is requiring impoundment is to avoid “situations where the Board's ruling on the request for review requires a rerun election because challenged ballots were opened and commingled with the valid ballots[,]” 84 Fed. Reg. at 69,548—i.e., to expedite final disposition of such cases. 32 In short, the NLRB “has a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees[,]” Sitka Sound Seafoods, Inc. v. N.L.R.B., 206 F.3d 1175, 1178 (D.C. Cir. 2000) (internal quotation marks and citation omitted), and the NLRA does not appear to address whether an election-related action that an agent of the Board is slated to take may be prospectively stayed, through rulemaking by the NLRB or in any other fashion. Therefore, this Court cannot find that the NLRB's exercise of its authority to promulgate the impoundment rule contravenes section 153(b)’s stay prohibition, or is an otherwise unreasonable interpretation of that statutory provision. II. ORDER For the foregoing reasons, it is hereby ORDERED that the AFL-CIO's Motion for Reconsideration (ECF No. 37) is GRANTED, and the Court's Order of May 30, 2020, will be AMENDED to rescind the Court's remand of this matter to the agency and to reflect the Court's conclusions with respect to the parties’ cross-motions for summary judgment concerning Counts Two, Three, and Four of the AFL-CIO's complaint. Specifically, as discussed herein and as reflected in the accompanying Amended Order (see ECF No. 41), the Court has concluded that both parties’ cross-motions for summary judgment (see *246 ECF Nos. 22, 23) must be granted in part and denied in part. The AFL-CIO is entitled to summary judgment with respect to Court One of complaint, while the NLRB is entitled to summary judgment with respect to the complaint's remaining counts. Administrative agencies have a duty to both notify the public before promulgating rules that potentially affect the substantive rights of regulated parties and review the solicited public feedback before finally adopting such significant policy changes. See Administrative Procedures Act (“APA”), Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551–559, 701–706). The law presumes that an agency will engage in notice-and-comment rulemaking in nearly every instance in which a final rule is adopted. Thus, if an agency promulgates a rule without providing notice and receiving public comments, the agency must be prepared to demonstrate that the rule it intends to enforce is not actually subject to those APA prescriptions, because it satisfies one of the narrow exceptions to notice-and-comment rulemaking that are specifically identified in the APA. The instant case involves one of those statutory exceptions: notice-and-comment rulemaking is not required with respect to “rules of agency organization, procedure, or practice[.]” 5 U.S.C § 553(b)(A). This is generally and colloquially referred to as the APA exception for “procedural” rules. Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014). On December 18, 2019, the National Labor Relations Board (“NLRB” or “the Board”) took the rare step of promulgating a rule that prescribes certain procedures that employers, employees, and labor unions have to implement with respect to the election of employee representatives for collective bargaining purposes. See 84 Fed. Reg. 69,524 (Dec. 18, 2019) (hereinafter “2019 Election Rule”). The undisputed purpose behind the 2019 Election Rule was to rescind certain election-related regulations that the Board had adopted in 2014: back then, the NLRB undertook notice-and-comment rulemaking to promulgate a rule that was primarily designed to effectuate “the essential principle that [union] representation cases should be resolved quickly and fairly[,]” 79 Fed. Reg. 74,308, 74,308 (Dec. 15, 2014), while the 2019 Election Rule sought to implement various pre-election and pre-certification safeguards in order to “promote[ ] efficiency and expeditious final resolution of the question of representation,” 84 Fed. Reg. at 69,529 (emphasis in original). Significantly for present purposes, when the NLRB reversed course and enacted the 2019 Election Rule, the agency took the position that the rule it was adopting was merely procedural in nature for the purpose of the APA, and as such, it promulgated the rule amendments without notifying *74 the public of the new provisions of law that implemented this policy shift and without soliciting public comment about them. See 84 Fed. Reg. at 69,528. One of the labor organizations that has a significant interest in NLRB rulemaking—the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”)—has filed the instant lawsuit to challenge the 2019 Election Rule, and argues that the NLRB's rulemaking violates the APA in several respects. (See Compl., ECF No. 1, at 1.) The AFL-CIO's primary argument is that notice-and-comment rulemaking was required with respect to certain provisions of the 2019 Election Rule (see id. ¶¶ 43–50 (Count I)), and it further maintains that the 2019 Election Rule is both arbitrary and capricious (as a whole (see id. ¶¶ 51–59 (Count II)) and with respect to specific provisions (id. ¶¶ 60–69 (Count III))), and inconsistent with the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151–69 (see id. ¶¶ 70–81 (Count IV)). Accordingly, the AFL-CIO seeks a declaration that the entire 2019 Election Rule violates the APA and a court order that vacates it. (See id. at 15 (“Prayer for Relief”).) Before this Court at present are the parties’ cross-motions for summary judgment (see Def.’s Mot. for Summ. J., ECF No. 22; Pl.’s Mot. for Summ. J., ECF No. 23), and also a threshold motion that the NLRB has filed, which argues that this matter must be transferred to the D.C. Circuit for lack of jurisdiction (see Def.’s Mot. to Transfer to the D.C. Cir. to Cure Want of Jurisdiction, ECF No. 15). Given the May 31, 2020, effective date of the challenged rule, this Court held a telephonic motions hearing on May 14, 2020, after which it took the motions under advisement, on an expedited basis. (See Minute Entry of May 14, 2020.) The Court then issued an Order on May 30, 2020, which GRANTED the AFL-CIO's motion for summary judgment, DENIED the Board's motion to transfer and cross-motion for summary judgment, and REMANDED the matter to the agency for reconsideration in light of this Court's ruling. (See Order of May 30, 2020, ECF No. 34.) The present Memorandum Opinion explains the reasons for this Court's Order. In short, the Court has concluded that it has subject-matter jurisdiction to entertain the AFL-CIO's challenges under 28 U.S.C. § 1331, and that the instant case need not be transferred to the U.S. Court of Appeals for the District of Columbia Circuit, because the direct-review provision of the NLRA that channels review of certain NLRB actions directly to the courts of appeals does not apply to the agency action at issue here. With respect to the merits of the AFL-CIO's APA claims, this Court agrees that the challenged parts of the 2019 Election Rule do not qualify as procedural rules within the meaning of the APA's exception to notice-and-comment rulemaking, and the Court thus finds that those particular provisions were promulgated unlawfully and must be set aside. I. BACKGROUND A. The NLRB's General Authority To Regulate Labor Practices Under The National Labor Relations Act The NLRB is an administrative agency that Congress created in 1935, when it enacted the National Labor Relations Act, 29 U.S.C. §§ 151–69, which is the primary federal statute that regulates private sector labor-employer relations in the United States. The text of the NLRA makes clear that Congress intended to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, *75 self-organization, and designation of representatives of their own choosing[.]” Id. § 151. In furtherance of these goals, the statute expressly bestows upon the NLRB the power to engage in general and specific rulemaking, see id. §§ 156, 159(c)(1), and to adjudicate certain disputes that commonly arise between labor organizations, employees, and employers, see §§ 158, 159, 160. The NLRA also plainly distinguishes between the NLRB's exercise of its powers with respect to addressing alleged unfair labor practices, on the one hand, and regulating collective bargaining practices (generally referred to as “representation”), on the other. Indeed, after establishing that employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively ... [and] to refrain from any or all of such activities[,]” id. § 157, the NLRA enumerates the various actions that constitute “unfair labor practices” on the part of both employers and employees in one section of the statute, see id. § 158, and separately addresses “representatives and elections” (i.e., how representatives are chosen and representation elections are conducted) for collective bargaining purposes in another, see id. § 159. In the unfair labor practice realm, the NLRA empowers the NLRB “to prevent any person from engaging in any unfair labor practice affecting commerce.” Id. § 160(a). Such unfair labor practices include an employer's “interfere[nce] with the formation or administration of any labor organization,” id. § 158(a)(2), or the refusal on the part of either an employer or a labor organization to engage in collective bargaining with the other, id. §§ 158(a)(5), (b)(3). And with respect to the employees’ selection of their representatives for collective bargaining purposes, the NLRA confers upon the NLRB, inter alia, the power to determine “the unit appropriate for the purposes of collective bargaining[,]” id. § 159(b), and to adjudicate any “question of representation affecting commerce[,]” id. § 159(c)(1)(B); see also 29 C.F.R. § 102.64 (2019) (explaining that “[a] question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative”). For present purposes, it is important to understand that the NLRA addresses the specific powers of the NLRB with respect to preventing unfair labor practices in section 160 of Title 29, which is entitled “[p]revention of unfair labor practices.” See 29 U.S.C. § 160. The first four subsections of section 160 pertain to various aspects of the Board's authority with respect to responding to such practices. See, e.g., id. § 160(a) (the Board has general authority to address unfair labor practices “affecting commerce”); id. § 160(b) (the Board can issue a complaint and schedule a hearing when someone is accused of engaging in unfair labor practices); id. § 160(c) (the Board can take testimony, make findings, order the cessation of unfair labor practices, and take affirmative actions to effectuate the policies of the statute); id. § 160(d) (the Board is free to modify its orders concerning unfair labor practices until judicial review or judicial enforcement is sought). Additionally, section 160 expressly provides that the Board's orders concerning unfair labor practices may be enforced or challenged in federal court. See id. §§ 160(e), (f). Pursuant to section 160(e), “[t]he Board shall have power to petition any court of appeals of the United States ... wherein the unfair labor practice in question occurred or wherein such person resides or transacts *76 business, for the enforcement of [the Board's] order[.]” Id. § 160(e). Likewise, and importantly, under section 160(f), “[a]ny person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia[.]” Id. § 160(f). B. The NLRB's Relatively Recent Rulemaking Concerning The Procedures For Conducting Representation Elections Although section 156 of the NLRA provides the NLRB with the general “authority from time to time to make, amend, and rescind ... such rules and regulations as may be necessary to carry out the provisions” of the statute, 29 U.S.C. § 156, the Board has seldom acted through notice-and-comment rulemaking on any subject, see N.L.R.B. v. Curtin Matheson Sci., Inc., 494 U.S. 775, 818, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990) (Scalia, J., dissenting) (“Despite the fact that the NLRB has explicit rulemaking authority, it has chosen—unlike any other major agency of the Federal Government—to make almost all its policy through adjudication.” (internal citation omitted)); see also generally Cornelius Peck, The Atrophied Rulemaking Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961). However, over the last decade, the Board has opted to regulate the procedures that relate to the election of union representatives through a series of rulemakings, see 29 U.S.C. § 159(c)(1), in addition to its adjudications. First, in 2011, the NLRB issued a final rule that addressed certain representation-election practices. See Representation—Case Procedures, 76 Fed. Reg. 80,138 (Dec. 22, 2011). The final rule that the agency issued was unusual insofar as it was promulgated through notice-and-comment rulemaking. See id. at 80,142 (explaining that “[a] review of prior Board rulemaking procedures” had “reveal[ed] that the Board ha[d] not held a public hearing attended by all Board Members for at least half a century”). The 2011 rule was challenged in court and was ultimately invalidated on the sole ground that the Board acted in the absence of a quorum. See Chamber of Commerce v. N.L.R.B., 879 F. Supp. 2d 18, 20–21, 30 (D.D.C. 2012). In 2014, the NLRB announced a proposed rule that was almost identical to the 2011 regulation—it was likewise aimed at facilitating the expeditious certification of new labor organizations by “remov[ing] unnecessary barriers to the fair and expeditious resolution of representation cases[,]” eliminating “[d]uplicative and unnecessary litigation,” and “simplify[ing] representation-case procedures,” among other things. 79 Fed. Reg. at 74,308; see also id. (asserting that the 2014 rule would allow the Board to “better fulfill its duty to protect employees’ rights by fairly, efficiently, and expeditiously resolving questions of representation”). The agency subjected its proposed regulation to notice-and-comment rulemaking, including holding at least one public hearing, and eventually promulgated the rules over the dissent of two Board members. See id. The 2014 rule survived a subsequent court challenge, see generally Chamber of Commerce v. N.L.R.B., 118 F. Supp. 3d 171 (D.D.C. 2015); Associated Builders & Contractors of Texas, Inc. v. N.L.R.B., No. 1:15-CV-026, 2015 WL 3609116, at *1 (W.D. Tex. June 1, 2015), aff'd, 826 F.3d 215 (5th Cir. 2016), and was implemented in full in 2015. *77 The 2014 rule made approximately twenty-five changes to the procedures that had previously governed the election of union representatives for collective bargaining purposes, 79 Fed. Reg. at 74,308–10 (summarizing the amendments)—five of which are relevant to the instant dispute. First, the 2014 rule eliminated parties’ right to litigate questions of individual eligibility and inclusion in the unit before the election of a union representative (i.e., at the pre-election hearing); instead, the rule gave NLRB Regional Directors discretion to permit disputed individuals to vote subject to challenge, with the challenges being resolved (if necessary) after the election. See id. at 74,385.1 Second, the 2014 rule required the Regional Directors to set a representation election for “the earliest date practicable,” id. at 74,310, and eliminated the requirement that “[e]lections ... be automatically stayed [for 25 to 30 calendar days] in anticipation of requests for review[,]” id. at 74,309. Third, the 2014 rule codified the requirement that employers provide a list of eligible voters to the union or the petitioning employees, together with their contact information, and further provided that employers should serve the list on the petitioners within two business days of the direction of election. Id. at 74,310. Fourth, the 2014 rule stated that the task of certifying the results of elections should be performed at the Regional Director level in every case. Id. Fifth, and finally, the 2014 rule provided that a party's filing of a request for Board review of a Regional Director's certification of the election would not stay the election, the counting of ballots, or the certification itself, “unless specifically ordered by the Board[.]” Id. at 74,309.2 When it promulgated the 2014 rule, the NLRB specifically recognized that the NLRA “enshrines a democratic framework for employee choice and, within that framework, charges the Board to promulgate rules and regulations in order that employees’ votes may be recorded accurately, efficiently and speedily.” Id. at 74,314 (emphasis added) (internal quotation marks and citation omitted). Accordingly, the 2014 rule was “[i]ntended to decrease the time preceding union elections,” Associated Builders & Contractors, 826 F.3d at 219, although timeliness was just “one of many reasons proffered for the amendments[,]” 79 Fed. Reg. at 74,315. C. The 2019 Election Rule In December of 2017, the NLRB issued a request for information (“RFI”) concerning how the 2014 rule was working. See Representation—Case Procedures, 82 Fed. Reg. 58,783 (Dec. 14, 2017).3 The NLRB *78 posted that “it will be helpful to solicit and consider public responses to this request for information[,]” id. at 58,783, and sought public input with respect to the following questions: 1. Should the 2014 Election Rule be retained without change? 2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified? 3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule's adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed? Id. at 58,784. The agency received nearly 7,000 submissions in response to its RFI (see Pl.’s Mot. for Summ. J. at 17), including a response from the NLRB's own Regional Directors. Among other things, these highly interested stakeholders observed that, “[w]hile parties initially voiced great concerns about the 2014 Election Rule, to all the parties’ credit, after the initial learning curve, there have been very few difficulties in the adoption of the rules[.]” (Letter from Regional Director Committee to Marvin Kaplan, Chairman, N.L.R.B., at 4 (Apr. 13, 2018), J.A., Doc. 21, ECF No. 33-3, at 8721.) Approximately 24 months after it issued the RFI, the NLRB promulgated the final rule at issue in this case, over the dissent of one of its three Board members. See Representation–Case Procedures, 84 Fed. Reg. 69,524 (Dec. 18, 2019). The 2019 Election Rule, which was eventually slated to take effect on May 31, 2020, see Representation–Case Procedures, 85 Fed. Reg. 17,500 (Mar. 30, 2020), largely repealed the election procedures that the agency had adopted in the 2014 rule, in order to “promote[ ] efficiency and expeditious final resolution of the question of representation, even if the election itself is not conducted as quickly as it may have been under the 2014 amendments[,]” 84 Fed. Reg. at 69,529 (emphasis in original). The 2019 Election Rule spans more than 70 pages in the Federal Register, and the effective repeal of the 2014 rule is accomplished in a various ways. As relevant here, certain provisions of the 2019 Election Rule directly impact the timing of many of the required steps that lead up to the certification of an election for union representatives, and the rule also provides directives concerning the employees’ selection of an individual to serve as the election observer. Specifically, while the 2014 rule had authorized post-election resolution of questions of individual eligibility and unit-inclusion, see 29 C.F.R. § 102.64(a) (2019), the 2019 Election Rule states that, normally, such questions are to be litigated during a pre-election hearing and adjudicated prior to the election, see 84 Fed. Reg. at 69,539.4 The 2014 rule had also provided that “[t]he regional director shall schedule the election for the earliest date practicable consistent *79 with these rules[,]” 29 C.F.R. § 102.67(b) (2019), but the 2019 Election Rule adds that “the Regional Director will normally not schedule an election before the 20th business day after the date of the direction of election, to permit the Board to rule on any request for review which may be filed pursuant to paragraph (c) of this section[,]” 84 Fed. Reg. at 69,595. And instead of requiring the Regional Director to issue a certification of the results of the election “forthwith” (with some narrow exceptions), 29 C.F.R. § 102.69(b) (2019), the 2019 Election Rule provides that Regional Directors will issue certifications of election results only after the Board had decided a request for review or after the time for filing a request for review has passed, see 84 Fed. Reg. at 69,554, 69,597.5 The 2019 Election Rule also delays the employer's deadline to provide to the petitioner the voter list, which the Supreme Court has characterized as a record that promotes “the fair and free choice of bargaining representatives ... by allowing unions the right of access to employees that management already possesses[.]” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). Under the 2014 rule, the employer was required to provide the voter list “within 2 business days after issuance of the direction” of an election, 29 C.F.R. § 102.67(l) (2019), while the 2019 amendment gives employers up to five business days to tender that record, 84 Fed. Reg. at 69,531. Moreover, rather than allowing parties to choose an election observer of their choice without restriction (except for various limitations that the Board's adjudications manifest, see, e.g., Embassy Suites Hotel, Inc., 313 N.L.R.B. 302, 302 (1993)), the 2019 Election Rule provides that, whenever possible, a party will select as its election observer either a current member of the voting unit or a current nonsupervisory employee, see 84 Fed. Reg. at 69,597. In the Federal Register notice that announces the 2019 Election Rule, the NLRB states that the agency did not need to undertake notice-and-comment rulemaking, because “the final rule is procedural as defined in 5 U.S.C. § 553(b)(A), and is therefore exempt from notice and comment.” 84 Fed. Reg. at 69,528. The Board further explained that, “although foregoing notice and comment deviates from the process used in 2014, it is consistent with the Board's general approach in this area” because, “despite having used notice-and-comment rulemaking [in 2014], the explanation for the 2014 amendments was at pains to emphasize that this process was not required by law[,]” and “the fact that the final rule modifies certain of the 2014 amendments that were adopted after notice-and-comment rulemaking in no way requires notice-and-comment rulemaking now.” Id. The NLRB took care to clarify that “[n]one of the procedural changes ... ma[d]e today are premised on the responses to the Request for Information; indeed, [the Board] would make each of these changes irrespective of the existence of the Request for Information.” Id. at 69,528 n.12. D. Procedural History The AFL-CIO filed the complaint in the instant case on March 6, 2020. (See Compl., *80 ECF No. 1.) The labor organization alleges that the Board's 2019 Election Rule violated the APA because certain provisions are not merely procedural for APA purposes, as the NLRB claims, and are thus not exempt from the APA's notice-and-comment requirement. (See id. ¶¶ 43–50 (Count I).) The AFL-CIO's complaint also claims that the 2019 Election Rule is arbitrary and capricious, both as a whole (see id. ¶¶ 51–59 (Count II)), and with respect to specific parts (see id. ¶¶ 60–69 (Count III)), and the union further maintains that the 2019 Election Rule is inconsistent with the NLRA (see id. ¶¶ 70–81 (Count IV)). Three days after filing the complaint, the AFL-CIO filed a motion for preliminary injunction, requesting preliminary relief in light of the then-impending April 16, 2020, effective date of the 2019 Election Rule. (See Mot. for Prelim. Inj., ECF No. 3.) This Court held a telephonic status conference on March 18, 2020, during which an extension of the effective date of the rule was discussed, in order to permit full briefing and fair consideration of the issues in the context of proposed cross-motions for summary judgment that the Court would review on an expedited basis. (See Min. Entry of Mar. 18, 2020.) The following day, the NLRB notified the Court that the effective date of its rule would be postponed until May 31, 2020. (See Notice, ECF No. 18.) The parties then filed cross-motions for summary judgment (see Def.’s Mot. for Summ. J., ECF No. 22; Pl.’s Mot. for Summ. J., ECF No. 23), and their respective responses followed (see Def.’s Opp'n to Pl.’s Mot. for Summ. J. (“Def.’s Summ. J. Opp'n”), ECF No. 28; Pl.’s Opp'n to Def.’s Mot. for Summ. J. (“Pl.’s Summ. J. Opp'n”), ECF No. 29). In its motion, the NLRB argues that the agency is entitled to summary judgment because the 2019 Election Rule is a procedural rule, such that it is exempted from notice-and-comment rulemaking, and that it is neither arbitrary and capricious nor a violation of the NLRA, given that the Board “acted within the scope of the broad authority granted by Congress to make, amend, and rescind rules necessary to carry out the Act.” (See Def.’s Mot. for Summ. J. at 16). For its part, the AFL-CIO reiterates its view that certain parts of the 2019 Election Rule are unlawful because they were not promulgated after the required notice-and-comment rulemaking (see Pl.’s Mot. for Summ. J. at 20), and also maintains that the entire rule fails to meet “basic standard[s] of reasoned decision-making” (id. at 39), and is otherwise in violation of the law (id. at 49). The NLRB has also filed a motion to transfer the case to the U.S. Court of Appeals for the D.C. Circuit pursuant to section 160(f) of Title 29 of the United States Code. (See Def.’s Mot. to Transfer, ECF No. 15; see also Def.’s Reply to Pl.’s Opp'n to Transfer (“Def.’s Reply to Transfer”), ECF No. 26.) The motion argues, for the first time in the NLRB's history, that this direct-review provision vests the jurisdiction to review the instant exercise of rulemaking authority by the NLRB in the court of appeals rather than in the district court. (See Def.’s Mot. to Transfer at 3–4.) In opposition to the transfer motion, the AFL-CIO argues that section 160(f) is limited to NLRB orders that concern unfair labor practice disputes, and that this Court has subject-matter jurisdiction under 28 U.S.C. § 1331 to review its challenge to the 2019 Election Rule, which pertains to the election of union representatives for collective bargaining purposes. (See Pl.’s Opp'n to Mot. to Transfer (“Pl.’s Opp'n to Transfer”), ECF No. 20.) This Court held a telephonic motions hearing on May 14, 2020, and at the end of the hearing the Court took the motion to *81 transfer and cross-motions for summary judgment, now ripe for review, under advisement. (See Minute Entry of May 14, 2020.) II. LEGAL STANDARD A. Motions To Transfer Cases To The Court Of Appeals Pursuant To A Direct-Review Statute 1 2 3 4 Although Congress certainly has the prerogative to “choose the court in which judicial review of agency decisions may occur[,]” Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988) (internal quotation marks, alterations, and citation omitted), “[i]n this circuit, the normal default rule is that persons seeking review of agency action go first to district court rather than to a court of appeals[,]” Am. Petroleum Inst. v. S.E.C., 714 F.3d 1329, 1332 (D.C. Cir. 2013) (internal quotation marks and citation omitted). “[T]he APA neither confers nor restricts jurisdiction,” so it is “the general federal-question statute, 28 U.S.C. § 1331[,]” that is the font of authority for district courts to review claims brought under the APA. Trudeau v. F.T.C., 456 F.3d 178, 185 (D.C. Cir. 2006). And, “unless Congress expressly says otherwise, APA review takes place first in the federal district courts, not the courts of appeals.” Rodriguez v. Penrod, 857 F.3d 902, 906 (D.C. Cir. 2017). Indeed, it is by now clear beyond cavil that, where the district court has subject-matter jurisdiction under section 1331, “[i]nitial review occurs at the appellate level only when a direct-review statute specifically gives the court of appeals subject-matter jurisdiction to directly review agency action.” Watts v. S.E.C., 482 F.3d 501, 505 (D.C. Cir. 2007). 5 6 7 With respect to interpreting such direct-review statutes, “[w]hether initial subject-matter jurisdiction lies initially in the court of appeals must of course be governed by the intent of Congress and not by any views we may have about sound policy.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Because “courts have just so much jurisdiction as Congress has provided by statute[,]” Sierra Club v. Thomas, 828 F.2d 783, 792 (D.C. Cir. 1987), they must “act on the basis of statutory language and probative legislative history” in order to discern congressional intent with respect to jurisdictional provisions, including direct review provisions, Am. Petroleum Inst., 714 F.3d at 1337. However, if a particular direct-review provision is “ambiguous on its face,” it will likely be read to confer direct-review authority to the court of appeals, for the Supreme Court has specifically instructed that, “[a]bsent a firm indication that Congress intended to locate initial APA review of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals.” Lorion, 470 U.S. at 737, 105 S.Ct. 1598. Thus, as relevant here, the D.C. Circuit has adopted a presumption with respect to ambiguous direct-review provisions, which holds that a statutory provision “creating a right of direct judicial review in the court of appeals of an administrative ‘order’ authorizes such review of any agency action that is otherwise susceptible of review on the basis of the administrative record alone.” N.Y. Republican State Comm. v. S.E.C. (“NYRSC”), 799 F.3d 1126, 1131 (D.C. Cir. 2015) (emphasis added). B. Summary Judgment In The APA Context 8 As a general matter, summary judgment may be granted in favor of a party pursuant to Federal Rule of Civil Procedure 56 “if the pleadings, the discovery *82 and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass'n. of Am., Inc. v. Nat'l Mediation Bd., 719 F. Supp. 2d 26, 31–32 (D.D.C. 2010), aff'd, 663 F.3d 476 (D.C. Cir. 2011) (alteration in original) (quoting Fed. R. Civ. P. 56(c)). In the instant case, however, the parties have sought summary judgment with respect to an action of an administrative agency that allegedly violates the APA; as a result, the typical legal standard articulated in Federal Rule of Civil Procedure 56 does not apply. See Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C. 2011) (internal citation omitted). Instead, “in APA cases, the summary judgment standard functions slightly differently, because the reviewing court generally reviews the agency's decision as an appellate court addressing issues of law.” Policy & Research, LLC v. Dep't of Health & Human Servs., 313 F. Supp. 3d 62, 74 (D.D.C. 2018) (internal quotation marks, alterations, and citation omitted). Thus, in the instant context, “it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record,” and “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Zemeka v. Holder, 963 F. Supp. 2d 22, 24 (D.D.C. 2013) (internal quotation marks and citations omitted). “Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Wilhelmus, 796 F. Supp. 2d at 160 (citation omitted). III. ANALYSIS The NLRB vigorously maintains, as a threshold matter, that the instant APA dispute concerning its newly promulgated election-procedures rule must be transferred to the court of appeals forthwith, because the direct-review provision in section 160(f) of the NLRA divests this Court of jurisdiction over the claims that the AFL-CIO brings here. (See Def.’s Mot. to Transfer at 5 (arguing that “the AFL-CIO's Complaint was filed in a court which lacks subject-matter jurisdiction to hear it”).) The Board argues further that, if this Court addresses the AFL-CIO's challenges to the 2019 Election Rule, summary judgment must be granted in the NLRB's favor, because the challenged regulatory provisions are procedural rules that did not require pre-promulgation notice-and-comment rulemaking, and none of them is arbitrary and capricious or otherwise violative of the NLRA. (See Def.’s Mot. for Summ. J. at 16.) The AFL-CIO responds that section 160(f)’s direct-review provision is inapposite (see Pl.’s Opp'n to Transfer at 1), and that the union is entitled to summary judgment on its APA claims, because the NLRB's promulgation of the challenged election-procedures provisions required notice-and-comment rulemaking, and not only violated the APA's prohibitions against arbitrary and capricious rules, but also transgressed the NLRA (see Pl.’s Mot. for Summ. J. at 9–10). As explained below, this Court has concluded that section 160(f)’s direct-review provision does not divest the district court of subject-matter jurisdiction over the instant dispute, and it has further found that no fair assessment of the regulatory provisions leads to the conclusion that the challenged parts of the 2019 Election Rule are mere procedural rules. Consequently, the APA required that the challenged parts of the 2019 Election Rule be promulgated through notice-and-comment rulemaking, and given that the NLRB did not actually *83 engage in such a pre-promulgation process, the provisions that the AFL-CIO has challenged on notice-and-comments grounds must be set aside. But this Court will not invalidate the entire rule to remedy the notice-and-comment defect, in accordance with well-established legal norms that require deference to agency decision-making in the wake of a district court's review of administrative action. Instead, the Court will remand the matter to the agency for further consideration in light of this Court's ruling. A. The Court Has Jurisdiction To Consider The Parties’ Cross-Motions For Summary Judgment, Notwithstanding The NLRA's Direct-Review Provision 9 There is no question that federal courts are courts “of limited jurisdiction,” and thus any “inquiry must always begin by asking whether [the courts] have jurisdiction” over the claim presented. Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258, 1261 (D.C. Cir. 2012). The parties here disagree on whether district courts have subject-matter jurisdiction to entertain any APA challenge to a rule promulgated by the NLRB (see Def.’s Mot. to Transfer at 3; Pl.’s Opp'n to Transfer at 2), and this dispute arises because section 160(f) of the NLRA provides, in relevant part, that [a]ny person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia[.] 29 U.S.C. § 160(f). This Court easily concludes that the text, structure, and legislative history of section 160(f) make it unambiguously clear that section 160(f) does not channel to the courts of appeals direct-review jurisdiction over challenges to NLRB rules governing the election of union representatives for collective bargaining purposes, as explained below. 1. Section 160(f) Pertains Solely To Claims That Relate To Agency Actions Concerning Unfair Labor Practices 10 Beginning, as this Court must, with the text of section 160(f), it is clear that this statutory provision is directed to “final order[s]” of the NLRB that “grant[ ] or deny[ ] in whole or in part the relief sought” in the context of the “unfair labor practice in question.” 29 U.S.C. § 160(f). Thus, by its terms, the direct-review provision is quite specific and relatively narrow, insofar as it provides for direct judicial review in the court of appeals of only those “orders” of the NLRB that are “final,” and such final orders must “grant[ ] or deny[ ]” some type of “relief” that has been “sought” by an entity that the NLRA governs. Id. Setting aside for the moment whether or not the “final order” requirement is broad enough to cover an NLRB “rule” like the one at issue here, there is no reasonable argument that credibly casts the 2019 Election Rule as an agency action that grants or denies any relief to a regulated party, and this problem alone is sufficient to cast doubt on the NLRB's contention that section 160(f) applies to the AFL-CIO's claims.6 But what clinches the conclusion *84 that section 160(f) does not divest the district court of the subject-matter jurisdiction that it would otherwise have to address the AFL-CIO's claims under 28 U.S.C. § 1331 is the very simple fact that what is being directed to the court of appeals for direct-review per the text of the statute is NLRB actions concerning the “unfair labor practice in question”—a textual reference that strongly suggests that the provision is only triggered when some kind of unfair labor practice is at issue. Cf. Am. Fed'n of Labor v. N.L.R.B., 308 U.S. 401, 409, 60 S.Ct. 300, 84 L.Ed. 347 (1940) (holding that section 160(f) authorizes judicial review of NLRA section 158 “unfair labor practice” orders, but it does not authorize judicial review of NLRA section 159 “representation” adjudications). The structure of section 160 of the NLRA confirms that this interpretation is the only possible reading of this direct-review provision. In this regard, as the Court previously explained, subsection (f) “appears as an integral part” of section 160, id. at 407, 60 S.Ct. 300—which is itself entitled “prevention of unfair labor practices[,]” 29 U.S.C. § 160—and “[a]ll the other subdivisions relate exclusively to proceedings for the prevention of unfair labor practices[,]” Am. Fed'n of Labor, 308 U.S. at 407, 60 S.Ct. 300.7 The NLRB provides no explanation for its suggestion that Congress intended to place section 160(f) in the heart of a section solely governing unfair labor practices, and yet somehow meant for this particular provision alone to apply more broadly. Cf. Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (explaining that “the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute” (internal quotation marks and citation omitted)). And because the entirety of section 160 solely focuses on NLRB orders on unfair labor practice disputes, the only reasonable construction of subdivision (f) takes into account that it only concerns NLRB orders on unfair labor practice disputes as well. The structure of the NLRA itself further solidifies this Court's view that section 160(f) mandates direct review of NLRB actions that pertain to unfair labor practices. Cf. *85 Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989) (“[I]n expounding a statute, we are not guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” (internal quotation marks, alterations, and citation omitted)). As explained in Section I.A above, the NLRA draws a clear distinction between unfair labor practices and union elections in the collective bargaining context, and provides the NLRB with the power to adjudicate disputes and to promulgate rules with respect to both spheres of labor-related conduct. “Separate and distinct” provisions of the NLRA “govern the procedure in unfair labor practice cases and in representation cases[,]” and “[t]he procedure to be followed in the unfair labor practice cases is outlined in some detail” in section 160, “which deal[s] with unfair labor practices only and do[es] not deal with the area of representation elections[,]” which are addressed in section 159 of the statute. Dep't & Specialty Store Emp. Union, Local 1265 v. Brown, 284 F.2d 619, 626 (9th Cir. 1960); see also Am. Fed'n of Labor, 308 U.S. at 406, 60 S.Ct. 300 (noting that section 160, “which as its heading indicates relates to the prevention of unfair labor practices[,]” includes no “mention of investigations or certifications authorized and defined by” section 159). This Court's reading of section 160(f) is also consistent with the scant legislative history pertaining to this statutory provision. The House Report on the draft bill that became the NLRA clarifies that section 160 is intended to empower the NLRB “to prevent any person from engaging in any unfair labor practice[,]” and that it authorizes the federal courts to get involved in two circumstances. H.R. Rep. No. 74-969 at 21–22 (1935). The Report says, first, “[i]f the person complained of fails or neglects to obey the Board's order, it is provided that the Board shall be empowered to petition any appropriate Circuit Court of Appeals of the United States for the enforcement of such order.” Id. at 22. And, second, “[a]ccording to a similar procedure, any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in the appropriate circuit court of appeals, or in the Court of Appeals of the District of Columbia.” Id. This same source explains that the provision that allows an aggrieved person to solicit the intervention of the circuit court “is intended here to give the party aggrieved a full, expeditious, and exclusive method of review in one proceeding after a final order is made[,]” and “[u]ntil such final order is made the party is not injured, and cannot be heard to complain[.]” Id. This all means that both Congress's own description of the intended purpose of section 160 and section 160(f), and also the text and structure of the statute that Congress crafted to convey that intent, leave no doubt as to the limited scope of the direct review created by the NLRA: it concerns the enforcement and review of NLRB orders that pertain to unfair labor practice charges. 2. That Ambiguous Direct-Review Provisions Pertaining To Agency “Orders” Presumptively Must Also Be Read To Include “Rules” Is Of No Moment 11 The NLRB points out that the D.C. Circuit has long maintained, as a general matter, that where there is ambiguity with respect to the scope of a direct-review statute, the term “order” should be interpreted to include an agency “rule[.]” NYRSC, 799 F.3d at 1131; see also Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys., 551 F.2d 1270, 1273–78 (D.C. Cir. 1977) (interpreting Section 9 of the Bank Holding Act, which authorizes “[a]ny party aggrieved by an order of the Board under *86 this chapter [to] obtain a review of such order ... in the Court of Appeals in the District of Columbia[,]” and holding that “the purposes underlying Section 9 will best be served if ‘order’ is interpreted to mean any agency action capable of review on the basis of the administrative record,” including agency regulations). Given this binding authority, the Board here takes the unprecedent step of arguing that the text of section 160(f) must be read to mandate direct-review authority to the courts of appeals with respect to both any order of the NLRB and any rule that the NLRB promulgates (with the exception of orders certifying the election of union representatives), and as such, section 160(f) applies to divest this Court of jurisdiction over the AFL-CIO's claims. (See Def.’s Mot. to Transfer at 3–5 (acknowledging that the Board never made this argument in prior challenges to its rules).) But this entirely novel contention is also entirely unpersuasive, because section 160(f) is not at all ambiguous in scope, as demonstrated above—and, indeed, it makes crystal clear that the challenged agency action that is subject to the courts of appeals’ direct review must be one that involves unfair labor practices, while the election rule at issue here indisputably concerns collective bargaining procedures. See Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1287 (D.C. Cir. 2007) (noting that, when interpreting a direct-review provision, the question is whether the provision is “ambiguous in any sense relevant”). Not to belabor the point, the Court merely reiterates that Congress intentionally designed subsection (f) of section 160 to provide “aggrieved parties” with the right to seek review of a “final order” of the NLRB pertaining to such an unfair labor practice in the court of appeals “in the circuit wherein the unfair labor practice in question was alleged to have been engaged in[,]” among other places, 29 U.S.C. § 160(f), in the same way that Board can seek court enforcement of any agency order concerning an alleged unfair labor practice pursuant to subsection (e), see id. § 160(e). See generally supra Section III.A.1. To be sure, subsection (f) is also in the nature of “a venue clause” (Def.’s Reply to Transfer at 8 (emphasis omitted)) insofar as it specifies which of the courts of appeals such aggrieved persons can petition to obtain judicial review. But the text, structure, and legislative history of this direct-review provision unequivocally establishes that, at bottom, the subject of a petition for review that is filed with the court of appeals under section 160(f) must be an NLRB action that pertains to unfair labor practices as opposed to any other topic that the agency might have acted to address. Thus, the NLRB's reliance on that the DC. Circuit's holding that an “order” for direct-review-statute purposes presumptively includes “rules” (see Def.’s Mot. to Transfer at 3) is entirely beside the point. That is, regardless of whether, “absent contrary congressional intent,” an ambiguous “statutory review provision creating a right of direct judicial review in the court of appeals of an administrative ‘order’ [also] authorizes such review of” any agency rule, NYRSC, 799 F.3d at 1131, Congress's intent with respect to section 160(f) is not absent; instead, Congress has unambiguously made it crystal clear that, to trigger the direct-review directive, any NLRB order (or, perhaps, any NLRB rule) must, as a threshold matter, relate to unfair labor practices. 12 This critical prerequisite manifestly distinguishes the instant direct-review provision from those in each of the cases that NLRB points to as precedents for the application of the presumption that “orders” *87 includes “rules.” (See Def.’s Mot. to Transfer at 3–4; Def.’s Reply to Transfer at 12–13.)8 And the NLRB does not appear to dispute that the 2019 Election Rule concerns collective bargaining practices, not unfair labor practice determinations. Therefore, it is clear to this Court that it retains jurisdiction over the instant challenge to the NLRB's rulemaking, not because the NLRB has promulgated a rule rather than issuing an order, but because the NLRB's action regulates representation rather than unfair labor practices, such that subsection (f)’s direct-review provision does not apply.9 Consequently, the Court will proceed to review the merits of the AFL-CIO's claims pursuant to the general subject-matter jurisdiction that Congress has conferred to it under 28 U.S.C. § 1331. B. The Board's 2019 Election Rule Required Notice-And-Comment Rulemaking Under The APA Because It Is Not A Procedural Rule The APA “separates legislative [or substantive] rules, which have the force and effect of law, from three types of rules that do not: interpretive rules, general statements of policy, and procedural rules[,]” Planned Parenthood of Wisconsin, Inc. v. Azar, 316 F. Supp. 3d 291, 304 (D.D.C. 2018), vacated as moot, 942 F.3d 512 (D.C. Cir. 2019) (internal quotation marks and citations omitted), and as relevant here, the APA also provides that interpretive rules, policy statements, and procedural rules are exempted from the statute's notice-and-comment requirement, see 5 U.S.C. § 553(b)(A). The exception for “procedural rules” is “the hardest to define[,]” Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980); however, the APA states that Congress intended to permit agencies to promulgate “rules of agency organization, procedure, or practice” without first submitting rules of that nature to public scrutiny, 5 U.S.C. § 553(b)(A). The nub of the instant dispute is the NLRB's valiant effort to shoehorn five parts of its 2019 Election Rule into this narrow classification. But for the reasons explained below, this Court finds that the challenged provisions of the 2019 Election Rule are not procedural rules, and as a result, their promulgation violated the APA's otherwise mandatory notice-and-comment requirements. *88 1. The Challenged Provisions Are Not Procedural Rules Because They Are Not Rules Of Agency Organization, Procedure, Or Practice The first step in understanding this Court's evaluation of the instant dispute is to recognize that the parties have framed this issue as a quest to ascertain whether or not the 2019 Election Rule is a substantive rule for which notice-and-comment rulemaking is required—a subject upon which they vehemently disagree. (Compare Pl.’s Mot. for Summ. J. at 21 (arguing that the 2019 “amendments are substantive” (emphasis added)) with Def.’s Summ. J. Opp'n at 7 (contending that the challenged provisions are not substantive rules, because “none of the changes challenged by AFL-CIO in the 2019 [Election Rule] is so burdensome that they either foreclose fair consideration of the underlying controversy or have the intent or effect of changing the substantive outcome of the elections”).) The parties appear to agree that the 2019 Election Rule is, in fact, a “rule” for the purpose of the APA, see 5 U.S.C. § 551(4); therefore, it is puzzling that the parties have framed the applicable legal standards in a manner that seems to lose track of the central question—i.e., whether the 2019 Election Rule provisions are procedural rules and thus exempt from required notice-and-comment rulemaking—and have instead primarily engaged in a debate over whether the challenged parts of the 2019 Election Rule qualify as substantive and, as such, were entitled to notice-and-comment rulemaking in the first place. The parties’ struggle to keep their eyes on the ball is not surprising: the D.C. Circuit, too, “ha[s] struggled with the distinction between ‘substantive’ and ‘procedural’ rules[,]” JEM Broad. Co. v. F.C.C., 22 F.3d 320, 326 (D.C. Cir. 1994), and has repeatedly suggested that “the distinction between substantive and procedural rules is one of degree[,]” rather than kind, Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec. (“EPIC”), 653 F.3d 1, 5 (D.C. Cir. 2011). The Circuit has also indicated that the relevant analysis “is functional, not formal[,]” Chamber of Commerce v. Dep't of Labor, 174 F.3d 206, 212 (D.C. Cir. 1999), but it has not further expounded upon how one is expected to draw that line, as a practical matter, with respect to any particular rule formulation. Cf. Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) (noting that this “inquiry turns out to be quite difficult and confused”). 13 Yet, the seemingly inscrutable task of discerning which agency rules function in a sufficiently substantive manner to qualify for notice-and-comment rulemaking is made substantially easier when one revisits the text of the APA, which helpfully establishes that an agency rule is essentially presumed to be substantive for the purpose of the notice-and-comment requirement, and that notice-and-comment rulemaking is thus generally required unless a rule satisfies one of the listed exceptions. See 5 U.S.C. § 553(b). Therefore, this Court has initially focused its attention on identifying the contours of the exception that the NLRB relies upon in this case rather than on defining the limits of the general rule, so as to determine whether the challenged parts of the 2019 Election Rule qualify as procedural rules. Cf. Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (warning of the risks of “allow[ing] the exceptions itemized in § 553 to swallow the APA's well-intentioned directive”). 14 To be clear, attempting to ascertain the “procedural” nature of an agency rule by eliminating the possibility that the rule is “substantive” would be a rational approach if there were only those two options in the universe of possible rule *89 classifications, and if each was equally likely to occur. However, as noted above, the APA carves out and exempts from notice-and-comment rulemaking three different kinds of agency rules—not only “rules of agency organization, procedure, or practice,” 5 U.S.C. § 553(b)(A), but also “interpretive rules” and “general statements of policy,” id. And even more importantly, notice-and-comment rulemaking is the default when an agency promulgates a rule, while “the various exceptions” are to “be narrowly construed and only reluctantly countenanced.” N.J. Dep't of Envtl. Prot. v. E.P.A., 626 F.2d 1038, 1045 (D.C. Cir. 1980); see also Mendoza, 754 F.3d at 1023. This means that, if the task at hand is to determine when notice-and-comment is not required, than doing so is most effectively and efficiently accomplished by demarcating the boundaries of the limited exception at issue, and determining whether, in light of those parameters, the agency has satisfied its burden of establishing that the rule it promulgated meets that mark. Here, the NLRB argues that the challenged provisions of the 2019 Election Rule are exempt from notice-and-comment rulemaking under the procedural-rule exception; therefore, this Court has primarily undertaken to examine whether or not the provisions at issue qualify as such. Put another way, in order to prevent veering off course in this very murky area of administrative law, this Court begins its analysis of the nature of the challenged provisions of the 2019 Election Rule for APA purposes by establishing the scope of the intended target: the procedural-rule exception. In this regard, the D.C. Circuit has instructed that the APA's procedural-rule exception exists “to ensure that agencies retain latitude in organizing their internal operations,” but it has also noted that “many ... internal agency practices affect parties outside the agency—often in significant ways.” Batterton, 648 F.2d at 707. The D.C. Circuit has provided few other insights into the proper method for identifying procedural rules, but it is helpful to recall that the term “procedural rule” is itself general nomenclature that is shorthand for the “rules of agency organization, procedure, or practice” that are expressly exempted from the notice-and-comment requirement under section 553(b) of the APA. 15 16 17 The Supreme Court has described the procedural rules provision as, essentially, a “housekeeping statute,” Chrysler Corp. v. Brown, 441 U.S. 281, 310, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), and the D.C. Circuit has clarified Congress's intent with respect to this provision by explaining that “Congress provided this exemption from the normal rulemaking procedures to ensure that agencies retain latitude in organizing their internal operations[,]” Mendoza, 754 F.3d at 1023 (internal quotation marks and citation omitted) (emphasis added). Thus, rules that are properly characterized as procedural in nature for APA purposes, and are thus exempted from notice-and-comment rulemaking, are “primarily directed toward improving the efficient and effective operations of an agency[,]” Batterton, 648 F.2d at 702 n.34; that is, they generally “relate to the method of operation of the agency[,]” id. at 708 n.70 (citation omitted), although they can sometimes set “timetable[s] for [regulated entities] asserting substantive rights[,]” Lamoille Valley R.R. Co. v. Interstate Commerce Comm'n, 711 F.2d 295, 328 (D.C. Cir. 1983), or “alter the manner in which the parties present themselves or their viewpoints to the agency[,]” Nat'l Mining Ass'n, 758 F.3d at 250. Importantly, the D.C. Circuit has also warned that the procedural-rule exception “should not be deemed to include any action which goes beyond formality[,]” *90 Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974), because procedural rules are intended simply to “deal[ ] with the method of operation utilized by the [agency] in the dispatch of its business[,]” Kessler v. F.C.C., 326 F.2d 673, 680 (D.C. Cir. 1963) (citation omitted). It is instructive to consider a few examples of agency rules that the D.C. Circuit has found to be procedural in nature. For example, the circuit has concluded that rules that create or modify deadlines for regulated entities to notify the agency of their choice to exercise certain substantive rights are procedural rules. See, e.g., Lamoille Valley, 711 F.2d at 328; Ranger v. F.C.C., 294 F.2d 240, 244 (D.C. Cir. 1961). Similarly, regulations regarding how the agency is going to receive petitions from regulated entities, or the internal steps that the agency will take to screen such applications, have been considered procedural. See, e.g., Nat'l Mining Ass'n, 758 F.3d at 250; James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. 2000). The circuit has also concluded that regulations that govern an agency's internal procedures with respect to its processing of incomplete or objected-to petitions filed by regulated entities satisfy the procedural-rule exception. See, e.g., JEM Broad. Co., 22 F.3d at 327–28; Neighborhood TV Co. v. F.C.C., 742 F.2d 629, 637 (D.C. Cir. 1984). And, lastly, procedural rules include agency regulations organizing the agency's internal procedures to meet its own legal duties. See, e.g., Pub. Citizen v. Dep't of State, 276 F.3d 634, 638 (D.C. Cir. 2002). 18 19 Thus, it is fair to say that D.C. Circuit's precedents, as well as its more general pronouncements regarding the scope and meaning of the procedural-rule exception, suggest that procedural rules primarily concern the agency's internal operations, even if such rules also occasionally create expectations for regulated entities with respect to the timeframe, means, and methods by which those entities assert their substantive rights vis-à-vis the agency. Moreover, where (as here) a plaintiff challenges a rule provision that is plainly not directed to internal agency processes, the APA seemingly requires the agency to demonstrate that its rulemaking action nevertheless relates to “agency organization, procedure, or practice[,]” 5 U.S.C. § 553(b)(A), to such a degree that it cannot be fairly characterized as having a substantive impact on the parties. In other words, in this Court's view, if the agency cannot show that the default assumptions of the APA have been properly displaced because the rule at issue is, in fact, directed at the agency's internal processes despite the incidental effect on the parties, then the rule cannot be characterized as fitting within the APA's narrow procedural exemption, and notice-and-comment is required. Cf. EPIC, 653 F.3d at 5–6 (“[T]he distinction between substantive and procedural rules is one of degree depending upon whether the substantive effect is sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA[,]” which include “serv[ing] the need for public participation in agency decisionmaking” and “ensur[ing] the agency has all pertinent information before it when making a decision” (internal quotation marks and citations omitted)). 20 Applying these principles to the instant case, this Court concludes that each of the provisions of the 2019 Election Rule that the AFL-CIO challenges as a notice-and-comment violation reaches far outside the Board's internal operations, and the NLRB has failed to show that each provision nonetheless still fits within the narrow scope of the procedural-rule exception. Take, for instance, the 2019 Election Rule's mandate that Regional Directors “will normally not schedule an election *91 before the 20th business day after the date of the direction of election,” 84 Fed. Reg. at 69,595, and also the rule's extension of the window of time within which employers must compile the list of eligible voters and disclose it to the Board and the employees, see id. at 69,531. By lengthening the timeframes wherein the agency (through its Regional Directors) and employers who presumably oppose unionization are supposed to undertake certain significant actions with respect to aspects of the representation-elections process, the NLRB is doing much more than merely and ministerially altering deadlines for parties to express their intentions to the agency. See, e.g., Lamoille Valley, 711 F.2d at 328; Ranger, 294 F.2d at 244. Rather, the NLRB has delayed the timeframe within which duties that are owed to the regulated entities will be carried out. To be sure, these rules can be characterized as procedural at a certain level of abstraction, because they generally relate to the procedures that must be followed to conduct representation elections. But rule provisions that dictate when the Regional Directors will take certain necessary actions on behalf of the agency in response to employees’ filings, or when employers must disclose certain information once the employees have already asserted their substantive rights, do not bear meaningfully on the agency's internal processes, yet they do have a significant impact on the employees’ ability to mount a successful campaign for unionization, as is their right under the NLRA. Likewise, when the 2019 Election Rule provides that “[d]isputes concerning unit scope, voter eligibility and supervisory status will normally be litigated and resolved by the [R]egional [D]irector before an election is directed[,]” 84 Fed. Reg. at 69,539; or requires the employees to choose as their election observer either “a current member of the voting unit” or “a current nonsupervisory employee[,]” id. at 69,597; or mandates that “the certification [of the election results] will issue only after the Board's ruling on [any] request” for review, id. at 69,554, the Board is manifestly outward facing, and is unquestionably guiding the conduct of regulated entities in a manner that primarily impacts matters outside its own internal operations. To put a finer point on this particular assessment, by requiring pre-election litigation of potential voter eligibility problems, the NLRB is causing employees to wait for issues concerning the scope of the collective bargaining unit to be sorted out prior to an election, with the distinct possibility that such a delay will hinder the employees’ prospects of mobilizing a sufficient number of peers to unionize the workplace, and with no apparent corresponding benefit with respect to the internal workings of the agency. And the election-observer provision, which plainly directs whom the employees can choose to protect their interests while the election is underway, might well be a significant constraint for employees who are seeking to unionize, but appears to make not one whit of difference with respect to the agency's internal operations. Finally, to the extent that the 2019 Election Rule delays certification, it likewise forestalls the benefits that employees are seeking when they campaign for unionization, see, e.g., 29 U.S.C. § 158(b)(7) (allowing only “currently certified” labor organizations to picket for longer than 30 days an employer who refuses to “recognize or bargain with a labor organization as the representative of his employees”), while the beneficial effect of this prescribed delay on any internal practice or process of the NLRB has yet to be established. The Board's response is that the challenged provisions of the 2019 Election Rule qualify as procedural rules regardless, *92 because they only “govern[ ] the content and timing of case filings” (Def.’s Mot. for Summ. J. at 21 (quoting Nat'l Whistleblower Ctr. v. Nuclear Regulatory Comm'n, 208 F.3d 256, 262 (D.C. Cir. 2000))), and/or merely change “when [certain] issues are presented to, and decided by, the Board” (id. at 17). Boiled to bare essence, this contention suggests that the NLRB considers any rule that merely relates to procedures as opposed to substantive rights as a procedural rule for the purpose of the APA (see Hr'g Tr. at 58–59)—a misconception that appears to be fueled, first and foremost, by a misunderstanding of the intended scope of the APA's procedural-rule exception. Indeed, as explained above, section 553(b)(A) of the APA does not encompass any and all rules that relate to procedures that an agency says a regulated entity must follow; instead, procedural rules are properly understood as agency rules that relate primarily to “internal house-keeping measures organizing agency activities[,]” Batterton, 648 F.2d at 702, which is precisely why they need not be subjected to notice and public comment. The NLRB also presents an “overly abstract account” of the challenged provisions of the 2019 Election Rule—one that casts their implications at a high “level of generality[,]” EPIC, 653 F.3d at 2–3, and thereby ignores the actual impact of the challenged provisions of this rule on parties other than the agency itself. The Board may say that these provisions have only “an incidental effect on parties” (Def.’s Mot. for Summ. J. at 20), but its own Federal Register notice belies its understanding that these rule changes will significantly impact representation-election processes, which appears to be the very reason why the NLRB adopted these reforms. See, e.g., 84 Fed. Reg. at 69,529 (stating, in reference to elections undertaken prior to the 2019 rule changes, that “[t]he mere fact that elections are taking place quickly does not necessarily mean that this speed is promoting finality or the most efficient resolution of the question of representation”). Thus, it is clear to this Court that each of the challenged provisions of the 2019 Election Rule actually (and, apparently, intentionally) reaches beyond the agency's own “organization, procedure[s], or practice[s]” to direct regulated entities concerning how representation elections are to be conducted, 5 U.S.C. § 553(b)(A), in a manner that actually (and, apparently, intentionally) impacts the substantive rights of parties. Therefore, these provisions transcend the narrow scope of the procedural-rule exception. 2. Even If Identifying Procedural Rules Requires Determining If A Rule Is “Not Substantive” In Nature, The Challenged Provisions Are Substantive And, Thus, Notice-And-Comment Rulemaking Was Required 22 Despite the fact that the text of the APA appears to require courts to determine whether an agency rule is procedural and therefore exempt from notice-and-comment rulemaking, the D.C. Circuit has, at times, suggested that in order to evaluate properly whether or not the APA requires notice-and-comment rulemaking, courts must ask whether the rule at issue is not substantive. See, e.g., Bowen, 834 F.2d at 1045 (asserting that the reading “that seems most consonant with Congress’ purposes in adopting the APA is to construe [the procedural-rule exception] as an attempt to preserve agency flexibility in dealing with limited situations where substantive rights are not at stake”). In the discussion that follows, this Court considers whether the challenged parts of the 2019 Election Rule are, or are not, substantive rules as the D.C. Circuit has defined *93 them; it mirrors much of what has already been said, because, unfortunately for the NLRB, even under that framing of the relevant legal standards, the challenged provisions of the 2019 Election Rule are plainly substantive in nature, such that notice-and-comment rulemaking should have been implemented. 23 In Batterton v. Marshall—an oft-cited case concerning the distinction between substantive and procedural rules—the D.C. Circuit defines substantive rules as those that “effectuate statutory purposes[,]” and emphasizes that, “[i]n so doing, they grant rights, impose obligations, [ ] produce other significant effects on private interests[,] ... narrowly constrict the discretion of agency officials by largely determining the issue addressed[,]” or otherwise “have substantive legal effect.” Batterton, 648 F.2d at 701–02. In other words, “where the agency action trenches on substantial private rights and interests[,]” id. at 708, or where the agency action “conclusively bind[s] the agency, the court, or affected private parties[,]” id. at 704, or where the agency is changing the applicable “substantive standards[,]” Glickman, 229 F.3d at 280, the exception for procedural rules cannot be applied to relieve the agency of its notice-and-comment rulemaking obligations. In deciding whether or not a claimed procedural rule is actually substantive, the D.C. Circuit has “examine[d] how the rule affects not only the rights of aggrieved parties, but their interests as well.” Chamber of Commerce, 174 F.3d at 212 (internal quotation marks and citation omitted). The D.C. Circuit has also at times undertaken to identify a rule as substantive by seeking to determine whether or not the rule has “the force of law.” Id. Cf. Chrysler Corp., 441 U.S. at 308, 99 S.Ct. 1705 (explaining that an agency pronouncement that has “the force of law” is one that is “binding on the courts unless [it is] arbitrary or not promulgated pursuant to prescribed procedures”). A “force of law” finding “will not necessarily be controlling,” but “whether a rule has the force of law often will bear upon its proper classification as substantive or procedural.” Chamber of Commerce, 174 F.3d at 212.10 Applying this alternative framework to the provisions of the 2019 Election Rule that the AFL-CIO is challenging on notice-and-comment grounds, this Court concludes that the rules at issue are certainly more substantive than procedural, because they plainly impose obligations, alter substantive rights, and have substantive effects on private interests. See Batterton, 648 F.2d at 701–02; see also EPIC, 653 F.3d at 5–6 (explaining that “the distinction between substantive and procedural rules is one of degree” (internal quotation marks omitted)). For example, as the Court previously explained, the provision that requires Regional Directors to decline to certify the election results until any request for review has been decided by the Board, see 84 Fed. Reg. at 69,554, delays employees’ procurement of significant statutory rights that depend on the NLRB's certification, see, e.g., 29 U.S.C. § 158(b)(7); see also EPIC, 653 F.3d at 6 (suggesting that, where a policy change “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking[,]” the new rule qualifies as “substantive”). While perhaps *94 less directly impactful, the imposition of restrictions regarding whom the employees can choose as their election observer, see 84 Fed. Reg. at 69,587, not only alters the employees right to choose their own observer, but it also plainly appears to have the force of law, because it “forecloses alternate courses of action” and “conclusively binds the ... affected private parties[,]” Batterton, 648 F.2d at 702. The other challenged provisions of the 2019 Election Rule—i.e., the increase in the number of challenges that can be raised and must be resolved before the election, see 84 Fed. Reg. at 69,539; the mandatory delay of the election date, see id. at 69,595; and the extention of time for releasing the eligible voters’ list, see id. at 69,531—may, or may not, have a substantial impact on a particular unionization effort (one could imagine that the degree of impact each of these provisions has might vary widely, depending on the circumstances presented); however, each of these rules “grant[s] rights” and “impose[s] obligations[,]” and could conceivably produce “significant effects on private interests[,]” Batterton, 648 F.2d at 701–02. Thus, each of those provisions, too, qualify as substantive for the purpose of the APA's notice-and-comment prescriptions. In this regard, and in conclusion, this Court has found it helpful to consider the relatively recent pronouncements of the D.C. Circuit in two cases in which the court of appeals found that agencies had sidestepped their duties to undertake notice-and-comment rulemaking with respect to substantive rules, and had thus committed an APA violation. In Electronic Privacy Information Center v. Department of Homeland Security, the D.C. Circuit reviewed a Transportation Security Administration (“TSA”) decision to screen airline passengers using advanced imaging technology rather than magnetometers, which the agency itself described as a change in its own procedures to process passengers through the checkpoint. See 653 F.3d at 2–3, 5. The D.C. Circuit noted that the TSA's view was an “overly abstract account of the change in procedure at the checkpoint[,] elid[ing] the privacy interests at the heart of the petitioners’ concern[,]” id. at 6, because the change “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking[,]” id. Similarly, in Mendoza v. Perez, the D.C. Circuit considered two Department of Labor guidance letters concerning applications for temporary work visas for immigrants employed in the herding industry. 754 F.3d at 1003. The circuit found that, if “stated at a high enough level of generality,” those letters might seem procedural—indeed, they set forth the agency's enforcement plan for determining employer compliance with the applicable immigration laws, and described how employers seeking a certification that the requirements to petition for such work visas were met should present themselves to the agency—“[b]ut a more practical account of the rules makes it clear the [letters] create substantive requirements by, inter alia, setting the minimum wage an employer must offer American workers before it can obtain [the work visa] certification” and by “set[ting] the bar for what employers must do to obtain approval.” Id. at 1024. So it is here. The NLRB apparently conceives of its 2019 Election Rule at a level of abstraction that qualifies it as a “procedural” rule insofar as it generally pertains the steps that must be followed to conduct a representation election, and the agency argues that the rule is not substantive insofar as it does not bar, or otherwise substantially impede, the conduct of that election. (See Def.’s Mot. for Summ. J. at 22.) But none of the challenged provisions *95 is actually addressed to “internal house-keeping measures organizing agency activities[,]” Batterton, 648 F.2d at 702, nor do these provisions merely set “timetable[s] for asserting substantive rights,” Lamoille Valley, 711 F.2d at 328, or “alter the manner in which the parties present themselves or their viewpoints to the agency[,]” Nat'l Mining Ass'n, 758 F.3d at 250. Instead, the challenged provisions carry many of the indicia of substantive rules—i.e., they grant rights and impose obligations; they produce “significant effects on private interests”; and they “foreclose alternate courses of action” or “conclusively bind the ... affected private parties.” Batterton, 648 F.2d at 701–02, 704. Therefore, this Court finds that the NLRB's promulgation of these particular rules without engaging in notice-and-comment rulemaking violated the APA C. The Court Will Vacate The Challenged Provisions Of The 2019 Election Rule And Remand This Matter To The Board Finally, the Court will briefly address next steps, including the appropriate scope of the remedy, given its conclusion that some of the 2019 Election Rule's provisions have been unlawfully promulgated. The AFL-CIO asserted in its briefing and during the motions hearing that, if the Court concludes that the provisions of the 2019 Election Rule that are challenged on notice-and-comment grounds have to be set aside as unlawful, then the Court should end its analysis there and not proceed to consider the other legal claims in the complaint. (See Pl.’s Mot. for Summ. J. at 4 (“If the Court agrees with Plaintiff's primary claim that the NLRB promulgated the 2019 election rule in violation of the APA's notice-and-comment requirement, the Court may grant summary judgment and remand the rule to the Board without reaching Plaintiff's alternative grounds for invalidating the rule.”); see also Hr'g Tr. at 38–39.) Notably, the AFL-CIO maintains that the entire 2019 Election Rule should be vacated and sent back to the agency if based on a finding that some of the rule provisions were improperly adopted because, according to the AFL-CIO, “the [challenged provisions of the 2019 Election Rule] are not discrete and it would be illogical to adopt some reforms without regard to whether others are adopted.” (Pl.’s Mot. for Summ. J. at 35.) The NLRB strongly objects to the AFL-CIO's severability argument (see Def.’s Mot. for Summ. J. at 50–53); in this regard, the Board points to the text of 2019 Election Rule (id. at 50–51), which specifically states that the NLRB “would adopt each of these amendments individually, or in any combination, regardless of whether any of the other amendments were made[,]” and that, “[f]or this reason, the amendments are severable[,]” 84 Fed. Reg. at 69,525 n.5. This Court is of the view that the standard severability analysis is not warranted in a case such as this one—i.e., where the plaintiff specifically challenges only certain parts of a regulation on the grounds that the defendant has violated the APA's procedural requirements—because the APA plainly authorizes this Court to vacate unlawful parts of a rule, and the agency itself will have ample opportunity to decide how to treat the remainder of its policy prescription when the Court remands the matter back for reconsideration in light of the Court's opinion. To the extent that this Court must nevertheless consider severability in the instant circumstances as a matter of law, it finds, in the alternative, that the provisions of the 2019 Election Rule that the AFL-CIO has challenged on notice-and-comment grounds can, and should be, severed from the rest of the rule. *96 1. Severability Analysis Is Neither Warranted Nor Clearly Authorized Under The Circumstances Presented In This Case In the ordinary case, it would make eminent sense to inquire whether or not the whole of a congressional enactment that carries the force of law must be invalidated if one or more of its provisions are struck down by the courts, especially if the law itself is silent as to the effect of such partial invalidation. Cf. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (reasoning that “the invalid part [of a statute] may be dropped” and the rest of the law allowed to take effect “if what is left is fully operative as a law” “[u]nless it is evident that the Legislature would not have enacted those [remaining] provisions[,] which are within its power, independently of that which is not” (quotation marks and citation omitted)). Indeed, in some circumstances, it might even be necessary to address whether the remaining parts of a partially invalidate law can be allowed to stand in order to avoid further violations of the rights of the regulated parties. See Michael D. Shumsky, Severability, Inseverability, and the Rule of Law, 41 Harv. J. on Legis. 227, 256 (2004) (observing that “the [severability] standard seems to recognize something constitutionally troubling about a residual statutory scheme that cannot function” (emphasis in original)). 24 In this Court's view, however, the conceptual question of the legal status of a partly invalidated law seldom arises in the context of a challenge to an agency's rulemaking, for the APA itself provides the answer to what happens after a regulation is found to be unlawful: courts “hold unlawful and set aside [such] agency action[,]” 5 U.S.C. § 706(2), and the “agency action” that the court sets aside may be either “the whole or apart of an agency rule [or] order[,]” id. § 551(13) (emphasis added). Moreover, once an unlawful agency rule is set aside in whole or in part, the court remands the matter to the agency so that the agency can reconsider the rule in light of the court's ruling. See, e.g., Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir. 1990) (explaining that, “should a district court on APA review find agency action defective, either substantively or procedurally, it ordinarily must remand to the agency for further proceedings”). 25 This means that the APA clearly contemplates a circumstance in which a court will find that part of an agency rule is unlawful, and nothing in the text of the APA suggests that a court has to proceed to invalidate the entire rule on the basis of the unlawfulness of any of its parts; indeed, the court's “scope of review” under the APA is plainly limited to the “agency action” that is challenged as, and found to be, in violation of the statute. 5 U.S.C. § 706(2). Binding precedents have also clearly established that the agency decides what happens next when all or part of a challenged action has been invalidated. See Cont'l Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451 (D.C. Cir. 1988) (“[I]f one thing should be clear, it is that courts are not to engage (at least in the arena of judicial review of agency action) in substantive policymaking.”). Thus, for a court to proceed to speculate as to how the agency might have responded to the court's partial vacatur, if it had known that a certain part of its rule would be vacated, seems both unnecessary and imprudent. What is more, because an agency in the NLRB's position gets to decide what happens next in any event, it is unlikely this Court's effort to engage in the sometimes tricky exercise of analyzing severability will make any practical difference. To understand why this is so, imagine that the Court determines that the 2019 Election *97 Rule is severable and vacates only the challenged provisions before remanding the matter back to the agency. Upon receipt, the agency will still have to determine whether or not, as a policy matter, it intends to enforce the parts of the rule that have not been invalidated, and, presumably, the agency is free to make that non-justiciable determination either immediately or after curing the notice-and-comment defect (or appealing this Court's order).11 The same result appears to follow if the Court were to find that the remaining parts of the rule are so intertwined with the unlawful provisions that the entire rule must be vacated. Nothing prevents the agency from issuing a new rule concerning the subject of the vacated regulation, and presumably that new rule could reiterate the policies that were not previously found to be violative of the APA in and of themselves, and it could do so immediately, or wait to cure the established notice-and comment defect (or appeal the district court's ruling).12 26 Thus, it is hard for this Court to appreciate why there is any need to speculate as to what the NLRB would have wanted in terms of the remainder of the 2019 Election Rule, when the NLRB will decide how to move forward regardless. Cf. S.E.C. v. Chenery Corp., 332 U.S. 194, 196–97, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency's action.”). And simply remanding to the agency for reconsideration in light of the Court's opinion (without commenting on what should happen with respect to the remainder of the rule) not only faithfully recognizes the district court's limited authority under both the APA and the Constitution, but it also underscores the fact that agencies, not courts, determine the logic of their own duly enacted policies, so long as their rulemaking is otherwise consistent with the law. This Court also fails to discern any prejudice to plaintiffs, for non-severability is not the only means of securing vacatur of an entire agency rule, and plaintiffs are always free to press an independent basis for setting aside the remainder of the rule and to ask the court *98 to do so despite any finding that a part of the rule is unlawful.13 The bottom line is this: at this point, the AFL-CIO has only successfully established that certain parts of the 2019 Election Rule should be struck down as unlawful on notice-and-comment grounds, and, ultimately, it will be up to the agency to decide whether and to what extent “the remainder of the regulation could function sensibly without the stricken provision.” (Pl.’s Mot. for Summ. J. at 35 (quoting MD/DC/DE Broadcasters Ass'n v. F.C.C., 236 F.3d 13, 22 (D.C. Cir. 2001)).) Thus, the most prudent course of action is for the Court to follow the remedial path that hews most closely to the well-accepted and limited role of the federal courts with respect to actions of regulatory authorities, by merely holding unlawful and setting aside those parts of the rule that cannot be maintained due to the established APA violation. 2. In Any Event The Parts Of The 2019 Election Rule That The AFL-CIO Has Successfully Challenged On Notice-And-Comment Grounds Are Severable 27 That all said, to the extent that binding precedent suggests that a standard severability analysis must be undertaken in the context of APA challenges with respect to partially invalidated rules, see, e.g., Carlson v. Postal Regulatory Comm'n, 938 F.3d 337, 351 (D.C. Cir. 2019) (asking “whether” a challenged provision could be severed from the remainder of an agency rule, based on a finding that (1) “the agency would have adopted the same disposition regarding the unchallenged portion of the regulation if the challenged portion were subtracted” and (2) the parts of the regulation that remain can “function sensibly without the stricken provision” (internal quotation marks, citations, and alternation omitted)), this Court will merely add that it has no doubt that the challenged provisions of the 2019 Election Rule are severable, for the following reasons. First, this Court is “without any substantial doubt that the agency would have adopted the severed portion on its own.” ACA Int'l v. F.C.C., 885 F.3d 687, 708 (D.C. Cir. 2018) (quotation marks and citation omitted). As repeatedly referenced above, the 2019 Election Rule contains an express severability provision, see 84 Fed. Reg. at 69,525 n.5, which plainly demonstrates the agency's actual intent regarding partial invalidation. Cf. Alaska Airlines, 480 U.S. at 686, 107 S.Ct. 1476 (noting that a severability clause creates a rebuttable “presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.”). See also Am. Petroleum Inst. v. E.P.A., 862 F.3d 50, 71–72 (D.C. Cir. 2017) (explaining that the court could not find that two provisions were “wholly independent” because “[a]t no point in the record does EPA propose keeping the [one provision] and repealing [the other]”). Furthermore, even if the NLRB's severability rule statement is “contradicted by other statements in the preamble[,]” as the AFL-CIO claims (Pl.’s Mot. for Summ. J. at *99 35), the AFL-CIO's memoranda do not explain the conflict, and regardless, the Court concludes that the NLRB has made it unmistakably clear that the Board made an intentional determination that nearly all of the rule's provisions, including the parts that the AFL-CIO challenges as notice-and-comment violations, should be treated as severable. See 84 Fed. Reg. at 69,533 n.40 (expressly asserting that certain other provisions of the 2019 Election Rule are not to be deemed severable); see also MD/DC/DE, 236 F.3d at 22 (explaining that, where the agency “clearly intends that the regulation be treated as severable, to the extent possible, for it said so in adopting the regulation[,]” the only “question for the court, then, is whether the balance of the rule can function independently if shorn of its [unlawful] aspects”). 28 Second, and for what it's worth, the remaining provisions of 2019 Election Rule—i.e., those that this Court has not yet addressed, much less determined to be unlawful—can most likely “function sensibly without the stricken provision[s].” Sorenson Commc'ns, Inc. v. F.C.C., 755 F.3d 702, 710 (D.C. Cir. 2014). Under standard severability analysis, an “entire rule must be vacated” only if severing the unlawful aspects “would severely distort the [agency's] program and produce a rule strikingly different from any the [agency] has ever considered or promulgated in the lengthy course of these proceedings.” MD/DC/DE, 236 F.3d at 23. And this Court perceives little risk of such severe distortion here. While some of the residual does relate back to the unlawfully promulgated provisions that expand the issues that must be litigated at the pre-election hearing, including the extension of the delay between the announcement of a pre-election hearing and the actual hearing (see Pl.’s Summ. J. Opp'n at 16), the Court is persuaded that the remaining provisions can still “function sensibly without the [underlying and now] stricken provision[,]” Sorenson, 755 F.3d at 710, especially given that the Board's overarching purpose for many of these rule changes is to “permit parties to more easily manage the obligations imposed on them by the filing of a petition and to better prepare for the hearing, thus promoting orderly litigation[,]” 84 Fed. Reg. at 69,525, and both the stricken provisions and the residual parts reflect various means of achieving the same goals. 29 30 In sum, it is clear beyond cavil that, when remedying an APA violation, courts should ordinarily “limit the solution to the problem[.]” Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 82 (D.C. Cir. 2020) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006)). Here, the AFL-CIO has chosen to press its notice-and-comment challenge with respect to only certain provisions of the 2019 Election Rule, and it has also requested that the Court not proceed to adjudicate its other claims with respect the remainder of the rule. (See Pl.’s Mot. for Summ. J. at 4; Hr'g Tr. at 38–39.) Thus, this Court has only assessed the alleged procedural propriety of the five rule provisions that the AFL-CIO has successfully challenged as a violation of the APA's notice-and-comment requirement, and it is only those provisions that this Court is plainly authorized to hold unlawful and set aside. Consistent with this Court's view that courts should not substitute their own judgment about the logic of an otherwise lawful policy prescription for that of the agency, the Court will not vacate the entire 2019 Election Rule; it opts instead to remand this matter back to the Board for consideration of how to proceed with respect to both the invalidated and as-yet unchallenged parts of rule in light of this Court's ruling. *100 IV. CONCLUSION Section 160(f) of the NLRA is a direct-review provision that plainly governs only NLRB actions that pertain to unfair labor practice disputes; therefore, this Court retains subject-matter jurisdiction to entertain the challenges to the NLRB's 2019 Election Rule that the AFL-CIO has brought under the APA. Moreover, having exercised its jurisdiction to address whether or not certain portions of the 2019 Election Rule violate the APA because they required notice-and-comment rulemaking, this Court has concluded that the challenged portions of the 2019 Election Rule are not procedural rules that are exempt from that rulemaking requirement, and thus those provisions must be held unlawful and set aside. At the AFL-CIO's request, the Court has not proceeded further to consider the AFL-CIO's remaining substantive APA challenges. Instead, as set forth in the Order dated May 30, 2020, the Court has DENIED both the Board's motion to transfer the case to the D.C. Circuit and its motion for summary judgment, and has GRANTED the AFL-CIO's motion for summary judgment with respect to Count One of the Complaint. The provisions of the rule that are challenged in Count One have now been deemed invalid, and this matter is remanded to the Board for consideration in light of this Court's Memorandum Opinion and Order.

Jackson

majority

O March 6, the America Federatio of ad Cogress of dustrial Orgaizatios (“AFL-CO” or “Plaitiff”) filed a complait i this Court to challege *233 a rule that the Natioal Relatios Board (“NLRB”) recetly promulgated i order to regulate uio-represetatio electios. (See Compl., ECF No. 1.) The complait ivokes the Admiistrative Procedure Act (“APA”), Stat. 237 (1946) (codified as ameded at –9, 701–706), ad claims that the NLRB's 2019 Electio Rule is ulawful i several respects. See Compl. ¶¶ –0 (Cout Oe) (arguig that the NLRB wrogly eschewed the required otice-ad-commet process); ¶¶ 1–9 (Cout Two) (claimig that the rule is arbitrary ad capricious as a whole); ¶¶ 60–69 (Cout Three) (assertig that several rule provisios, icludig the ew impoudmet requiremet, are arbitrary ad capricious); ¶¶ 70–1 (Cout Four) (maitaiig that the impoudmet provisio, amog others, violates sectio 1(b) of the Natioal Relatios Act (“NLRA”).) This Court has already issued a order that grats summary judgmet i favor of the AFL-CO with respect to the complait's first claim; i.e., the Court has held that certai provisios of the 2019 Electio Rule are ulawful because the NLRB did ot egage i the otice-ad-commet rulemakig process that the APA requires. (See Order of May 30, ECF No. 34, at 1–2; see also Compl. ¶ 4.) Ad based solely upo that coclusio—which, agai, pertais oly to Cout Oe of the AFL-CO's complait—the Court has ivalidated the five rule provisios that the complait idetifies as procedurally improper o otice-ad-commet grouds, ad it has remaded the etire matter back to the NLRB for recosideratio, without proceedig to cosider the remaiig claims i the AFL-CO's complait. (See Mem. Opiio of Jue 7, ECF No. 36, at –4 (rejectig the AFL-CO's argumet that the rule should be vacated i its etirety o o-severability grouds, ad sedig the matter back to the NLRB based i part o the AFL-CO's assertio that the Court eed ot cosider the complait's remaiig claims if summary judgmet is etered i Plaitiff's favor with respect to Cout Oe).)1 After this Court issued the Memoradum Opiio that explaied its Order of May 30, see the AFL-CO filed a motio for recosideratio uder Federal Rules of Civil Procedure 9(e) ad 60(b), askig the Court to revisit its decisio ot to reach Plaitiff's remaiig claims cocerig the 2019 Electio Rule. (See Pl.’s Mot. for Recosideratio, ECF No. 37, at 1–2.) That motio, which the NLRB opposes (see Def.’s Mem. i Opp' to Pl.’s Mot. for Recosideratio (“Def.’s Opp' to Recosideratio”), ECF No. 39), is before this Court at preset. The AFL-CO coteds that the Court misiterpreted its “suggestio that the Court did ot eed to proceed to Couts Two to Four” if the Court agreed that certai provisios of the 2019 Electio Rule violated the APA's otice-ad-commet requiremet, because the remad request “was always premised o the Court's agreemet with the AFL-CO's argumet that [those] provisios of the NLRB's rule were o-severable, ad therefore, the etire rule was ivalid o otice ad commet grouds.” (Pl.’s Mot. for Recosideratio at 2.) essece, the AFL-CO ow seeks rescissio of the part of the Court's Order that remads this matter to the agecy, isofar as the AFL-CO's motio for recosideratio asks the Court to “proceed * to rule o Couts Two, Three, ad Four” of the complait. ( at ) This Court has the discretio to revise its prior iterlocutory order uder Federal Rule of Civil Procedure 4(b) ad, for the reasos explaied fully below, this Court is persuaded that its prior Order was based upo a sigificat misuderstadig: the Court uderstood the AFL-CO to be callig for a uqualified retur of the matter to the NLRB if the Court ruled i the AFL-CO's favor o Cout Oe, whe the AFL-CO actually iteded for its remad request to be cotiget upo this Court's agreemet that the ivalidated provisios of the 2019 Electio Rule were ot severable. Therefore, the AFL-CO's motio for recosideratio will be GRANTED, ad the Court's Order of May 30, will be AMEND to rescid the Court's remad of this matter to the agecy, i order to facilitate the Court's cosideratio of the AFL-CO's remaiig claims. light of its rulig o the motio for recosideratio, this Court has also proceeded to cosider the parties’ summary judgmet argumets cocerig the remaiig couts i the complait, as the AFL-CO has requested. As explaied herei (see ifra SectioB), the Court cocludes that the NLRB is etitled to summary judgmet o Couts Two, Three, ad Four of the AFL-CO's complait. particular, the Court fids that the NLRB's decisiomakig process with respect to its promulgatio of the 2019 Electio Rule as whole—ad also with respect to the provisio that provides for the automatic impoudmet of electio ballots pedig NLRB review—was sufficietly reasoed to clear the APA's arbitrary-ad-capricious policymakig hurdle. Ad the Court has also determied that the impoudmet provisio does ot violate the NLRA, because that statute is silet regardig the issue, ad the NLRB advaced a reasoable iterpretatio of the NLRA's limits whe it adopted the impoudmet policy. Cosequetly, the Court's May 30th Order will be further ameded to reflect the Court's coclusio that, ultimately, both parties’ cross-motios for summary judgmet must be grated i part ad deied i part. (See Amed. Order, ECF No. 41.) The AFL-CO's motio for summary judgmet will be grated with respect to Cout Oe ad deied with respect to Couts Two, Three, ad Four, for the reasos explaied below. Ad the NLRB's cross-motio for summary judgmet is deied with respect to Cout Oe (as set forth i the Court's prior Memoradum Opiio) ad grated with respect to the remaiig couts i the complait, as discussed i SectioB of the istat Memoradum Opiio ad Order. DSCUSSON A. The AFL-CO's Motio For Recosideratio, Properly Costrued As A Motio To Revise This Court's Prior terlocutory Judgmet Pursuat To Federal Rule Of Civil Procedure 4(b), Will Be Grated 1. The AFL-CO s Seekig Recosideratio Of A terlocutory Order, Not A Fial Judgmet The Federal Rules of Civil Procedure provide three aveues for a party to seek recosideratio of a court's rulig: “Rule 4 govers recosideratio of iterlocutory orders,” while “Rules 9(e) ad 60(b) dictate whe a party may obtai recosideratio of a fial judgmet.” ; see also *2 aff'd, 79 F.3d 204 deed, while a motio brought uder Rule 9(e) seeks “to alter or amed a judgmet,” Fed. R. Civ. P. 9(e), ad a Rule 60(b) motio requests relief “from a fial judgmet, order, or proceedig,” Fed. R. Civ. P. 60(b)—ad thus these two rules idisputably pertai to the court's recosideratio of fial judgmets, see —Rule 4(b) permits a court to revise or recosider ay order “that adjudicates fewer tha all the claims or the rights ad liabilities of fewer tha all the parties[,]” Fed. R. Civ. P. 4(b). To this ed, Rule 4(b) plaily provides that, uless the court says otherwise, “ay order or other decisio, however desigated, that adjudicates fewer tha all the claims or the rights ad liabilities of fewer tha all the parties does ot ed the actio as to ay of the claims or parties ad may be revised at ay time before the etry of a judgmet adjudicatig all the claims ad all the parties’ rights ad liabilities.” 1 So it is here. The AFL-CO filed a complait that made four separate claims with respect to the alleged ulawfuless of the NLRB's 2019 Electio Rule, ad i its Order of May 30, this Court did ot purport to resolve the etire case; istead, it grated summary judgmet oly with respect to oe of the AFL-CO's four claims. (See Order at 2 (orderig that “judgmet is etered i Plaitiff's favor with respect to Cout Oe of the Complait”).) The iterlocutory ature of the Court's review was etirely trasparet; i fact, the Court expressly declied to reach the other APA claims that appear i the AFL-CO's complait. See AFL-CO –. Ad the AFL-CO's ow motio tacitly cocedes that the Court has ot yet etered a fial judgmet i this case, for the uio's basic ask is that the Court “proceed to rule o Couts Two, Three, ad Four.” (Pl.’s Mot. for Recosideratio at) 2 “The district court ordiarily eters a fial judgmet oly after it has disposed of all claims agaist all parties[,]” Capitol Sprikler spectio, c. v. Guest Servs., c., ad util the, a request to recosider ay of its “order[s] or other decisio[s]” is govered by Rule 4(b), Fed. R. Civ. P. 4(b). Cf. Am. Jur. 2d Judgmets 63 (“ geeral, a partial summary judgmet is merely a iterlocutory judgmet which ca be added to, ameded, or set aside by the court at ay time prior to fial judgmet.”). Therefore, the AFL-CO's istat motio to recosider this Court's Order of May 30, is properly costrued as a motio to revise that iterlocutory judgmet pursuat to Rule 4(b), ad a request that the Court proceed to reder a fial judgmet i this case—i.e., oe that addresses all of the AFL-CO's claims. See, 2 F. Supp. 3d 0, (D.D.C. 201) 2. ts Discretio, This Court Will Grat The AFL-CO's Motio Ad Proceed To Review The Remaider Of ts Claims 3 4 “Motios for recosideratio of iterlocutory orders are withi the discretio of the trial court[,]” 30 F. Supp. 3d (D.D.C. 201), aff'd, 201 WL 19393 (D.C. Cir. Oct. 19, 201), ad “[t]he Court may recosider ad revise its iterlocutory orders as justice requires[,]” Ad it is clear beyod cavil that justice requires recosideratio whe, amog other thigs, a court has “patetly misuderstood a party” or *236 “has made a error ot of reasoig but of apprehesio[.]” 33 F. Supp. 2d 99, 6 the istat case, the AFL-CO has made a persuasive argumet that this Court misuderstood Plaitiff's statemets cocerig whether or ot the Court should proceed to cosider the remaiig claims i the AFL-CO's complait i the evet that the Court agreed with the AFL-CO's otice-ad-commet challege. (See, Pl.’s Mem. i Supp. of Mot. for Summ. J. (“Pl.’s Mot. for Summ. J.”), ECF No. 23-1, at 10 (“f the Court agrees with Plaitiff's primary claim that the NLRB promulgated the 2019 electio rule i violatio of the APA's otice-ad-commet requiremet, the Court may grat summary judgmet ad remad the rule to the Board without reachig Plaitiff's alterative grouds for ivalidatig the rule.”); Hr'g Tr., ECF No. 3, at 36 (“MR. GNSBURG: [W]e do ot believe you eed to reach that [arbitrary-ad-capricious] argumet if you agree that these are substative chages that should have goe through otice ad commet i the first istace.”); see also) Specifically, the AFL-CO has ow clarified that its repeated calls for remadig the matter to the agecy based solely upo the Court's Cout Oe rulig were iteded to suggest that this Court should skip cosideratio of the AFL-CO's remaiig claims oly “if the court agreed that the rule is substative i its etirety because the procedural elemets are ot severable[.]” (Pl.’s Mot. for Recosideratio at 7.) Moreover, the NLRB has doe little to covice the Court that it should ot recosider its remad ad should ot proceed to review the other claims that the AFL-CO has uquestioably asserted. deed, the agecy's oppositio appears to be based almost etirely o the striget ature of a iapplicable legal stadard. See Def.’s Opp' to Recosideratio at 2 (observig that “successful requests for recosideratio uder Rule 60(b)(1) are rare”) What is more, the agecy has apparetly proceeded apace to eforce the remaider of the 2019 Electio Rule i the wake of this Court's Order gratig the AFL-CO summary judgmet solely with respect to Cout Oe, otwithstadig the pedecy of other legal claims that assail the 2019 Electio Rule i its etirety. Cf. Pl.’s Mot. for Recosideratio at 4 (explaiig how the NLRB's actios suggest that it has iterpreted this Court's May 30th Order “as havig agreed with the NLRB o severability ad grated the NLRB's cross-motio for summary judgmet as to Plaitiff's Couts Two, Three, ad Four rather tha as havig deied the motio as to those couts” ). Thus, the Board is hard pressed to complai about the AFL-CO's attempt to esure that the rest of its claims are cosidered. short, this Court misappreheded Plaitiff's requested remedy for the first APA violatio that it successfully idetified—which qualifies as a clear error, see 33 F. Supp. 2d at —ad, as such, justice requires revisio of the Court's prior order, Therefore, the AFL-CO's motio for recosideratio will be grated ad the Court will proceed to cosider Plaitiff's additioal claims, such that the Order of May 30, will ultimately be ameded to reflect the coclusios that Court has ow reached cocerig the remaiig claims, which are discussed below. B. The NLRB s Etitled To Summary Judgmet With Respect To Couts Two, Three, Ad Four Of The AFL-CO's Complait O Jue 7, this Court issued a legthy Memoradum Opiio that describes *237 i detail the relevat backgroud for the istat dispute betwee the AFL-CO ad the NLRB cocerig the validity of the 2019 Electio Rule. See AFL-CO –1. Those backgroud facts are icorporated ito this Memoradum Opiio ad Order by referece, ad thus the Court assumes familiarity with those facts. As relevat here, it suffices to repeat merely that the NLRB's 2019 Electio Rule prescribes certai procedures that gover represetatio electios for collective bargaiig See at 79–1. The reader is also remided that, at this poit i the litigatio, the Court has set aside five provisios of the 2019 Electio Rule that the AFL-CO has successfully challeged as violatios of the APA's otice-ad-commet rulemakig requiremet. See at 7–. The Court ow turs to the AFL-CO's three remaiig cotetios: (1) that the 2019 Electio Rule as a whole is arbitrary ad capricious, ad must be set aside o that basis (see Compl. ¶¶ 1–9 (Cout Two)); (2) that the provisio of the 2019 Electio Rule that requires the automatic impoudmet of electio ballots uder certai circumstaces is arbitrary ad capricious (see ¶¶ 60–69 (Cout Three)); ad (3) that the impoudmet provisio also violates sectio 1(b) of the NLRA (see ¶¶ 70–1 (Cout Four)).2 its motio for summary judgmet, the AFL-CO argues that the NLRB's “promulgatio of the [2019 Electio Rule] was arbitrary ad capricious as a whole because the Board completely igored available evidece that cotradicts the ratioale for the rule.” (Pl.’s Mot. for Summ. J. at 37.) The AFL-CO further coteds that the impoudmet provisio is either arbitrary ad capricious, because it “forces the Board to decide issues that i may cases will become moot oce the ballots are opeed” ad raises “ucertaity to a etirely differet level” for employers ( at –4), or violates sectio 1(b) of the NLRA, sice that statutory provisio “preclude[s] automatic, categorical stays” of regioal-director duties, such as the oe the impoudmet provisio triggers (Pl.’s Mem. i Opp' to Def.’s Mot. for Summ. J. (“Pl.’s Summ. J. Opp'”), ECF No. 29, at 2). respose, the NLRB maitais that the 2019 Electio Rule is ot arbitrary ad capricious i its etirety, give that the Board “cosidered may of the same policy cosideratios as those examied by the 20 Board majority[,]” such as “efficiecy, fair ad accurate votig, trasparecy ad uiformity, chaged techology, ad timeliess,” ad cocluded that “importat iterests, such as fairess, votig accuracy, ad fiality, had bee sacrificed ad would be better served by allowig more time for the electoral process.” (Def.’s Mem. i Supp. of NLRB's Mot. for Summ. J., ECF No. -1, at 2.) The NLRB similarly argues that the Board itetioally ad ratioally determied that “automatic impoudmet i these arrow circumstaces will promote trasparecy” ( at 39), ad that its decisio to adopt a impoudmet policy does ot violate the NLRA, because that statute “is either silet or ambiguous” o the automatic impoudmet issue, ad the Board's iterpretatio is “based o a *23 permissible costructio of the statute” ( at ). As explaied below, this Court cocludes that the NLRB has the better of this argumet, i light of well-established ad, ideed, foudatioal priciples of admiistrative law. Therefore, summary judgmet must be etered i the NLRB's favor with respect to Couts Two through Four of the AFL-CO's complait. 1. The APA Requires Agecies To Egage Reasoed Decisiomakig, But This Limitatio s A Relatively Narrow Costrait O A Agecy's Policymakig Authority 7 9 The Admiistrative Procedure Act of 1946 codified established commo law priciples by specifyig “the procedures by which federal agecies are accoutable to the public ad their actios subject to review by the courts[.]” U.S. 7, For example, it was well established, log before 1946, that “arbitrary power resides owhere i our system of govermet,” Uited States ex rel. Champio Lumber 44–49, ; thus, i the APA, Cogress fashioed a statutory cause of actio, ad a remedy, for the logstadig legal claim that the agecy-defedat had ulawfully made the challeged policy determiatio i a “arbitrary [or] capricious” fashio. U.S.C. 706(2)(A). This priciple—i.e., judicial review of agecy actios that are procedurally arbitrary or capricious—is fudametal to our democratic system of govermet. See Raoul Berger, Admiistrative Arbitrariess: A Sythesis, 7 Yale L.J. ; see also, Uited States ex rel. Champio Lumber 39 App. D.C. 1, Ad it appears, usurprisigly, that courts’ firm rejectio of arbitrary actio by govermet officials fids its origi i the Due Process Clause of the U.S. Costitutio. See People of State of New York ex rel. N.Y. & Quees Gas 34–49, 3 S.Ct. 1, ; see also3 10 11 12 13 At bottom, the APA “requires agecies to egage i reasoed decisiomakig, ad directs that agecy actios be set aside if they are arbitrary or capricious[.]” *239 Dep't of Homelad 0 S.Ct. 191, 207 L.Ed.2d 3 ; see also 1 S. Ct. 2699, (explaiig that the APA's o-arbitrariess commad meas that agecies must egage i “reasoed decisiomakig” with respect to their policy prescriptios ). However, ad sigificatly for preset the “scope of review uder the arbitrary ad capricious stadard is arrow ad a court is ot to substitute its judgmet for that of the agecy[.]” Motor Vehicle Mfrs. Ass' of U.S., c. v. State Mut. Auto. s. 103 S.Ct. 26, 77 L.Ed.2d 4 (193) That is, “if oe thig should be clear, it is that courts are ot to egage (at least i the area of judicial review of agecy actio) i substative policymakig.” Cot'l Air Lies, c. v. Dep't of Trasp., F.2d 44, (D.C. Cir. 19). Ad this is so despite the fact that “courts [do] retai a role, ad a importat oe, i esurig that agecies have egaged i reasoed decisiomakig[.]” 11 L.Ed.2d 449 Simply stated, a court's o-policymakig duty uder the APA is merely to esure that the agecy has “examie[d] the relevat data ad articulate[d] a satisfactory explaatio for its actio icludig a ratioal coectio betwee the facts foud ad the choice made[.]” State 463 U.S. at 103 S.Ct. 26 ; see also Physicias for Soc. (otig that a agecy has the “obligatio ‘to eable’ a reviewig court to coclude that the agecy's actio ‘was the product of reasoed decisiomakig’ ” (quotig State 103 S.Ct. 26)). 1 16 17 1 t is importat to ote that a court's examiatio for the APA's limited ca reveal violatios of the arbitrary-ad-capricious madate that ca take various forms. For example, if the agecy fails to “provide ay explaatio whatsoever” for a challeged actio, Swedish Am. the it has violated the APA's arbitrariess prohibitio by ot providig a factual basis upo which a court may coclude that the agecy has actually egaged i reasoed decisiomakig, see A.L. Pharma, c. v. Shalala, 62 F.3d 4, 91 A agecy that, istead, trasparetly egages i policymakig, but arrives at its discretioary decisio “by Ouija board or dart board, rock/paper/scissors, or eve the Magic Ball[,]” has acted i a arbitrary-ad-capricious maer for APA because its policy determiatio is ot a reasoed oe. Make the Rd. rev'd o other grouds sub om., Make the Rd. 2 F.3d 612 A agecy similarly trasgresses the APA's arbitrariess restrictio if it “etirely fail[s] to cosider a importat aspect of the problem,” or if its decisio “rus couter to the evidece before the agecy, or is so implausible that it could ot be ascribed to a differece i view or the product of agecy expertise[,]” State 463 U.S. at 103 S.Ct. 26; see also 0 S.Ct. at -. Uder ay of these circumstaces, it is the court's obligatio to declare that the challeged rule is procedurally ulawful, ad to vacate the agecy's actio uder sectio 706(2)(A) of the APA. See 0 S.Ct. at *0 19 20 21 Moreover, the “foudatioal precept of admiistrative law” that prohibits arbitrary-ad-capricious policymakig i ay of these forms “is especially importat where, as here, a agecy chages course.” f a agecy has chose to depart from its prior positio, it “must show that there are good reasos for the ew policy[,]” ad whe fashioig those “good reasos,” the agecy caot simply “disregard[ ] facts ad circumstaces that uderlay or were egedered by the prior policy” without offerig “a reasoed explaatio” for the decisio to disregard those cosideratios at preset. F.C.C. v. Fox Statios, c., 6 U.S. 02, 1–16, 129 S.Ct. 10, 173 L.Ed.2d 73 ; see also Uited 1 Furthermore, if the agecy's reasoig fails to display “awareess that it is chagig positio[,]” Fox 6 U.S. at 1, 129 S.Ct. 10 icludig a explaatio for why the agecy is departig from its prior policy where that “ew policy rests upo factual fidigs that cotradict those which uderlay its prior policy” or where “its prior policy has egedered serious reliace iterests that must be take ito accout[,]” the the agecy has ot “provide[d] a reasoed explaatio for the chage[,]” as the APA's arbitrary-ad-capricious madate requires, Ecio Motorcars, 19 L.Ed.2d 32 23 Be that as it may, whe a agecy opts to depart from prior practice, it eed “ot demostrate to a court's satisfactio that the reasos for the ew policy are better tha the reasos for the old oe[.]” Fox 6 U.S. at 1, 129 S.Ct. 10 stead, “it suffices that the ew policy is permissible uder the statute, that there are good reasos for it, ad that the agecy believes it to be better, which the coscious chage of course adequately idicates.” other words, if the agecy is “ot writig o a blak slate,” the APA merely requires it “to assess whether there were reliace iterests, determie whether they were sigificat, ad weigh ay such iterests agaist competig policy cocers.” 0 S.Ct. at 191 Ad this is so precisely because makig the “difficult decisio” of whether “other iterests ad policy cocers outweigh ay reliace iterests” is “the agecy's job,” ot the court's. ; see also 2. The NLRB Egaged Reasoed Decisiomakig With Respect To The 2019 Electio Rule As A Whole 2 the istat case, the Court is persuaded that the NLRB's policymakig process with respect to promulgatio of the 2019 Electio Rule as whole was sufficiet to satisfy the APA's reasoed-decisiomakig requiremet. To start, the plaily establishes that the NLRB fully recogized that it was chagig the existig policy cocerig the practices that pertai to represetatio electios. fact, the agecy commeced its decisiomakig process by itetioally gatherig iformatio about how the 20 rule was workig, see Represetatio—Case Procedures, 2 Fed. Reg.73 (“Request for formatio”), ad havig *1 doe so, the agecy was fully aware of the iterests at stake with respect to ay chages it was cotemplatig, icludig the impact of ay such chage o those who had adjusted to, ad were relyig o, the prior system. What is more, the text of the 2019 Electio Rule demostrates the NLRB's awareess of the values upo which the prior rule was based, see 4 Fed. Reg.2 (recogizig that the 20 Electio Rule “serve[d] ad balace[d] may differet iterests[,]” ad that “speed i the electoral process was a very importat cosideratio”), ad the Board articulated its reasos for decidig to chage course: that, i additio to “efficiecy[,]” the Board ow also values “certaity ad fiality, uiformity ad trasparecy, [ad] fair ad accurate votig” whe it comes to electio determiatios,9. This policy decisio was etirely the NLRB's to make, ad the establishes that the Board exercised its discretio with relevat iformatio i had ad with eyes wide ope cocerig the impact of the sigificat chages that it was adoptig. See Am. Hosp. 61–19, 111 S.Ct. 19, (“The questio whether the Board has chaged its view about certai issues does ot udermie the validity of a rule that is based o substatial evidece ad supported by a reasoed aalysis.” ). 26 As a result, this Court caot accept the AFL-CO's argumet that the NLRB acted arbitrarily ad capriciously i violatio of the APA because it “plowed ahead without coductig [certai relevat statistical] aalyses” o the effectiveess of the 20 Electio Rule that the resposes to the NLRB's Request for formatio idetified. (Pl.’s Mot. for Summ. J. at 39.) To do so would be essetially to madate that a agecy must explore “every alterative device ad thought coceivable by the mid of ma[,]” Vermot Yakee Nuclear Power v. Natural Resources Defese Coucil, c., 4 U. S. 19, 1, 9 S.Ct. 1197, L.Ed.2d 460 (197), despite the fact that the Supreme Court has log rejected such a expasive view of the requiremets of o-arbitrary policymakig. (See SectioB.1.) Nor was the NLRB required to egage i the particular kids of statistical aalyses that the AFL-CO would have preferred. To the cotrary, the Board's choice “ot to do a empirical study does ot make [the agecy's actio] a ureasoed decisio” for APA Chamber of of 2 ad this is especially so give that the NLRB specifically explaied that its “reasos for revisig or rescidig some of the 20 amedmets are based o o-statistical policy choices[,]” 4 Fed. Reg.7. t is also evidet o the face of the 2019 Electio Rule that the Board described adequately its decisiomakig process with respect to the procedures that the agecy was madatig cocerig certificatio of a represetatio electio. The NLRB was plaily makig policy judgmets, ad its value-drive choices did ot primarily rely o either statistical data or particular facts about the operatio of the prior regime. Cf. 19 F.3d 44, (otig that sometimes, with respect to agecy policymakig, “facts aloe do ot provide the aswer” ). deed, far from “fail[ig] to cosider available evidece” (Pl.’s Mot. for Summ. J. at 42), the NLRB appears to have looked at the existig relevat iformatio about the operatio of the prior rule, ad idetified “the cosideratios it foud persuasive” from withi *2 that corpus of iformatio, 19 F.3d at which is really all that the APA's reasoed-decisiomakig requiremet demads. For example, i the text of the 2019 Electio Rule, the NLRB expressly ackowledges that “the Board's statistics demostrate that the media time betwee the filig of a petitio ad the electio has bee sigificatly reduced sice the 20 amedmets became effective[.]” 4 Fed. Reg.2–29. But the agecy also expresses its reewed iterest i cosiderig whether those “gais i speed have come at the expese of other relevat iterests,” icludig “certaity ad fiality[.]” Ad, ultimately, the Board prefereced the latter, by observig that the 20 rule's efficiecy gais also permitted “issues of uit scope ad employee eligibility” to “liger o after the electio for weeks, moths, or eve years before beig resolved[,]” ad thereby created a “barrier” to reachig “certaity ad fiality” of electio results. This Court also has little doubt that the NLRB employed reasoig whe it decided to value the kid o The impoudmet provisio of the 2019 Electio Rule states that, “[w]here a request for review of a directio of electio is filed withi 10 busiess days of that directio” ad “the Board has ot ruled o the request before the coclusio of the electio,” ay “ballots whose validity might be affected by the Board's rulig o * the request or decisio o review will be segregated ad all ballots will be impouded ad remai uopeed pedig such rulig or decisio.” 4 Fed. Reg.26.4 The AFL-CO coteds that this impoudmet-of-ballots requiremet—which effectively stalls ballot coutig ad electio certificatio util these challeges are reviewed ad ruled upo—is ot the product of reasoed decisiomakig, because it “forces the Board to decide issues that i may cases will become moot oce the ballots are opeed.” (Pl.’s Mot. for Summ. J. at –4.) The AFL-CO further argues that impoudig the ballots raises the employers' “ucertaity to a etirely differet level” because it prevets employers from determiig “whether employees voted for represetatio i the first istace[,]” which is sigificat because employers are barred “from uilaterally chagig terms ad coditios of employmet startig o the date of the electio if [ad oly if] the uio is ultimately certified.” ( at 4.) Alteratively, the AFL-CO asserts that this impoudmet policy violates the APA because it breaches sectio 1(b) of the NLRA, which states that a request for Board review of “ay actio of a regioal director delegated to him” shall ot, “uless specifically ordered by the Board, operate as a stay of ay actio take by the regioal director.” ( at 49 (quotig 29 U.S.C. 1(b)).) As fully explaied below, this Court cocludes that either APA claim is availig. The Court's prior discussio cocerig the extet, ad limits, of the APA's arbitrary-ad-capricious requiremet ad the Court's role i eforcig it (see SectioB.1) is sufficiet to permit expeditious dispatch of the AFL-CO's first cotetio. Nothig i the Federal Register otice or the admiistrative hits at arbitrary actio i ay of the forms described above; istead, the 2019 Electio Rule plaily articulates the NLRB's policy-drive view that the impoudmet provisio will ehace “fiality ad certaity, fair ad accurate votig, trasparecy ad uiformity, ballot secrecy, ad eve (i certai respects) efficiecy[,]” 4 Fed. Reg.4. As a result, the AFL-CO's couterargumet—i.e., that the provisio does ot, i fact, “promote[ ] trasparecy” because it “forces the Board to decide issues that i may cases will become moot oce the ballots are opeed” (Pl.’s Mot. for Summ. J at ) ad raises “ucertaity to a etirely differet level” for employers ( at 4)—is largely beside the poit. The NLRB apparetly believes that a impoudmet practice best furthers the objectives of trasparecy, mootess, ad certaity, which is ot a etirely irratioal or ureasoable view, all thigs cosidered, ad as explaied above, it is the agecy's prerogative to weigh the dowsides of the proposed policy chage (such as the oes that the AFL-CO ow perceives) agaist the beeficial outcomes that the agecy is seekig. See Fox 6 U.S. at 1, 129 S.Ct. 10. All that the APA's o-arbitrariess madate requires, ad thus all that this Court is permitted to compel, is the agecy's trasparet cosideratio of the relevat facts ad factors whe it weighs the costs of the ew policy agaist the beefits that it believes the chage will yield. Ad, here, the NLRB has clearly doe so. See, 4 Fed. Reg.4 (explaiig that, “although it is possible that the results of a electio will *4 reder issues moot, there is o way to kow i advace if this will be the case, ad where the issues are ot mooted by the electio results, the parties will have greater fiality ad certaity if these matters are resolved prior to the vote cout”); see also Thus, this Court caot fid that the NLRB's impoudmet provisio is arbitrary ad capricious i violatio of sectio 706(2)(A) of the APA. 2 The Court is also uable to coclude that that the ew impoudmet provisio violates sectio 1(b) of the NLRA, as the AFL-CO claims. (See Pl.’s Mot. for Summ. J. at 49.) As previously oted, sectio 1(b) of the NLRA authorizes the NLRB to delegate the Board's ow authority i represetatio cases to its regioal directors, 29 U.S.C. 1(b), ad also establishes that, “upo the filig of a request by ay iterested perso, the Board may review ay actio of a regioal director delegated to him[,]” The statute further provides that “such a review shall ot, uless specifically ordered by the Board, operate as a stay of ay actio take by the regioal director[.]” Ad the AFL-CO maitais that this statutory bar o stays of actios the regioal director has take forecloses a stay o a regioal director's future acts, such that the impoudmet provisio i the 2019 Electio Rule is “uambiguously” ulawful. (See Pl.’s Summ. J. Opp' at 27.) To uderstad why the Court disagrees with the AFL-CO's characterizatio of the rule's impoudmet policy, it is crucial to recogize that the particular actio of the regioal director that is uder review at the time of impoudmet is the regioal director's “decisio ad directio of electio[,]” 29 C.F.R. 102.67(c) which is but oe of the regioal director's delegated duties. the absece of the impoudmet provisio ad i the ordiary course of affairs, the regioal director calls for a electio, the electio the occurs, ad oce the electio has bee coducted, the regioal director will cout the ballots that were cast ad will certify the electio results. 29 C.F.R. 102.69 The impoudmet provisio has o bearig o whether the electio that a regioal director has called proceeds, i.e., it does ot impact the act of the regioal director that has already bee take. Rather, if a request for Board review is filed “withi 10 busiess days” of the regioal director's call for a electio, ad if such request “has ot bee ruled upo or has bee grated before the electio is coducted,” 29 C.F.R. 102.67(c) the the impoudmet rule operates to stymie certai actios that the regioal director iteds to take, but has ot yet take (i.e., coutig the ballots ad certifyig the electio). 29 30 this Court's view, sectio 1(b)’s stay prohibitio plaily speaks solely to actios that have bee “take” by regioal directors, 29 U.S.C. 1(b), ad says othig about whether actios that regioal directors have ot yet take (but will take) ca be stayed or postpoed. “Cogress’ use of a verb tese is sigificat i costruig statutes.” Uited 112 S.Ct. 11, Moreover, “Cogress’ choice of words is presumed to be deliberate[.]” Uiv. of Texas Sw. Med. 70 U.S. 33, 3, 16 L.Ed.2d 03 As relevat here, the word “take” i sectio 1(b) of the NLRA appears to idetify, ad prevet the postpoemet of, a subset of the decisios that the NLRB has “delegated” * to regioal directors: those that have already bee made. 29 U.S.C. 1(b). Ad because sectio 1(b) is “silet or [at best] ambiguous[,]” Chevro, U.S.A., c. v. Nat. Res. Def. Coucil, c., 467 U.S. 37, 104 S.Ct. 277, 1 L.Ed.2d 694 (194), about the prospective-actio issue that the 2019 Electio Rule raises—i.e., whether the NLRA prohibits the agecy from prevetig the regioal director from makig a future decisio—the oly questio for the court is whether the agecy's rule “is based o a permissible costructio of the statute[,]” 31 this regard, the AFL-CO appears to suggest that the NLRB's promulgatio of the impoudmet rule is a ureasoable iterpretatio of the NLRA's stay provisio, because “prospectively prevetig [regioal directors] from takig certai categories of actio without a specific order i a particular case” has the effect of “wholly udermi[ig] the clear purpose[s]” of sectio 1(b), which the AFL-CO idetifies as “preclud[ig] automatic, categorical stays” (Pl.’s Summ. J. Opp' at 2) ad “speed[ig] the work of the Board” (Pl.’s Mot. for Summ. J. at 49 ). But there is o idicatio i the legislative history or elsewhere that Cogress iteded to prohibit all stays of ay actio the Board delegates to its regioal directors, retrospective ad prospective; thus, it is ot ureasoable for the NLRB to coclude that the postpoemet of future actios of a regioal director is permissible. t is also clear to this Court that impoudmet provisio comports with the stated of the NLRA's stay prohibitio at a certai level of abstractio, because it appears that sectio 1(b) was simply iteded to “expedite fial dispositio of cases by the Board, by turig over part of its caseload to its regioal directors for fial determiatio[,]” 10 Cog. Rec. 19,770 (daily ed. Sept. 199) (statemet of Se. Goldwater), ad oe of the may stated reasos why the NLRB is requirig impoudmet is to avoid “situatios where the Board's rulig o the request for review requires a reru electio because challeged ballots were opeed ad commigled with the valid ballots[,]” 4 Fed. Reg.4—i.e., to expedite fial dispositio of such cases. 32 short, the NLRB “has a wide degree of discretio i establishig the procedure ad safeguards ecessary to isure the fair ad free choice of bargaiig represetatives by employees[,]” Sitka Soud Seafoods, c. v. N.L.R.B., 117 ad the NLRA does ot appear to address whether a electio-related actio that a aget of the Board is slated to take may be prospectively stayed, through rulemakig by the NLRB or i ay other fashio. Therefore, this Court caot fid that the NLRB's exercise of its authority to promulgate the impoudmet rule cotravees sectio 1(b)’s stay prohibitio, or is a otherwise ureasoable iterpretatio of that statutory provisio. ORR For the foregoig reasos, it is hereby ORRED that the AFL-CO's Motio for Recosideratio (ECF No. 37) is GRANTED, ad the Court's Order of May 30, will be AMEND to rescid the Court's remad of this matter to the agecy ad to reflect the Court's coclusios with respect to the parties’ cross-motios for summary judgmet cocerig Couts Two, Three, ad Four of the AFL-CO's complait. Specifically, as discussed herei ad as reflected i the accompayig Ameded Order (see ECF No. 41), the Court has cocluded that both parties’ cross-motios for summary judgmet (see *6 ECF Nos. 23) must be grated i part ad deied i part. The AFL-CO is etitled to summary judgmet with respect to Court Oe of complait, while the NLRB is etitled to summary judgmet with respect to the complait's remaiig couts. Admiistrative agecies have a duty to both otify the public before promulgatig rules that potetially affect the substative rights of regulated parties ad review the solicited public feedback before fially adoptig such sigificat policy chages. See Admiistrative Procedures Act (“APA”), Stat. 237 (1946) (codified as ameded at –9, 701–706). The law presumes that a agecy will egage i otice-ad-commet rulemakig i early every istace i which a fial rule is adopted. Thus, if a agecy promulgates a rule without providig otice ad receivig public commets, the agecy must be prepared to demostrate that the rule it iteds to eforce is ot actually subject to those APA prescriptios, because it satisfies oe of the arrow exceptios to otice-ad-commet rulemakig that are specifically idetified i the APA. The istat case ivolves oe of those statutory exceptios: otice-ad-commet rulemakig is ot required with respect to “rules of agecy orgaizatio, procedure, or practice[.]” U.S.C 3(b)(A). This is ad colloquially referred to as the APA exceptio for “procedural” rules. O December 1, 2019, the Natioal Relatios Board (“NLRB” or “the Board”) took the rare step of promulgatig a rule that prescribes certai procedures that employers, employees, ad labor uios have to implemet with respect to the electio of employee represetatives for collective bargaiig See 4 Fed. Reg. 69, The udisputed purpose behid the 2019 Electio Rule was to rescid certai electio-related regulatios that the Board had adopted i 20: back the, the NLRB udertook otice-ad-commet rulemakig to promulgate a rule that was primarily desiged to effectuate “the essetial priciple that [uio] represetatio cases should be resolved quickly ad fairly[,]” 79 Fed. Reg.30,30 while the 2019 Electio Rule sought to implemet various pre-electio ad pre-certificatio safeguards i order to “promote[ ] efficiecy ad expeditious fial resolutio of the questio of represetatio,” 4 Fed. Reg.29 Sigificatly for preset whe the NLRB reversed course ad eacted the 2019 Electio Rule, the agecy took the positio that the rule it was adoptig was merely procedural i ature for the purpose of the APA, ad as such, it promulgated the rule amedmets without otifyig * the public of the ew provisios of law that implemeted this policy shift ad without solicitig public commet about them. See 4 Fed. Reg.2. Oe of the labor orgaizatios that has a sigificat iterest i NLRB rulemakig—the America Federatio of ad Cogress of dustrial Orgaizatios (“AFL-CO”)—has filed the istat lawsuit to challege the 2019 Electio Rule, ad argues that the NLRB's rulemakig violates the APA i several respects. (See Compl., ECF No. 1, at 1.) The AFL-CO's primary argumet is that otice-ad-commet rulemakig was required with respect to certai provisios of the 2019 Electio Rule (see ¶¶ –0 (Cout )), ad it further maitais that the 2019 Electio Rule is both arbitrary ad capricious (as a whole (see ¶¶ 1–9 (Cout )) ad with respect to specific provisios ( ¶¶ 60–69 (Cout ))), ad icosistet with the Natioal Relatios Act (“NLRA”), 29 U.S.C. 11–69 (see ¶¶ 70–1 (Cout V)). Accordigly, the AFL-CO seeks a declaratio that the etire 2019 Electio Rule violates the APA ad a court order that vacates it. (See) Before this Court at preset are the parties’ cross-motios for summary judgmet (see Def.’s Mot. for Summ. J., ECF No. ; Pl.’s Mot. for Summ. J., ECF No. 23), ad also a threshold motio that the NLRB has filed, which argues that this matter must be trasferred to the D.C. Circuit for lack of jurisdictio (see Def.’s Mot. to Trasfer to the D.C. Cir. to Cure Wat of Jurisdictio, ECF No. 1). Give the May 31, effective date of the challeged rule, this Court held a telephoic motios hearig o May after which it took the motios uder advisemet, o a expedited basis. (See Miute Etry of May) The Court the issued a Order o May 30, which GRANTED the AFL-CO's motio for summary judgmet, NED the Board's motio to trasfer ad cross-motio for summary judgmet, ad REMAND the matter to the agecy for recosideratio i light of this Court's rulig. (See Order of May 30, ECF No. 34.) The preset Memoradum Opiio explais the reasos for this Court's Order. short, the Court has cocluded that it has subject-matter jurisdictio to etertai the AFL-CO's challeges uder 2 U.S.C. 1331, ad that the istat case eed ot be trasferred to the U.S. Court of Appeals for the District of Columbia Circuit, because the direct-review provisio of the NLRA that chaels review of certai NLRB actios directly to the courts of appeals does ot apply to the agecy actio at issue here. With respect to the merits of the AFL-CO's APA claims, this Court agrees that the challeged parts of the 2019 Electio Rule do ot qualify as procedural rules withi the meaig of the APA's exceptio to otice-ad-commet rulemakig, ad the Court thus fids that those particular provisios were promulgated ulawfully ad must be set aside. BACKGROUND A. The NLRB's Geeral Authority To Regulate Practices Uder The Natioal Relatios Act The NLRB is a admiistrative agecy that Cogress created i 19, whe it eacted the Natioal Relatios Act, 29 U.S.C. 11–69, which is the primary federal statute that regulates private sector labor-employer relatios i the Uited States. The text of the NLRA makes clear that Cogress iteded to “ecourag[e] the practice ad procedure of collective bargaiig” ad to “protect[ ] the exercise by workers of full freedom of associatio, *7 self-orgaizatio, ad desigatio of represetatives of their ow choosig[.]” 11. furtherace of these goals, the statute expressly bestows upo the NLRB the power to egage i geeral ad specific rulemakig, see 16, 19(c)(1), ad to adjudicate certai disputes that commoly arise betwee labor orgaizatios, employees, ad employers, see 1, 19, The NLRA also plaily distiguishes betwee the NLRB's exercise of its powers with respect to addressig alleged ufair labor practices, o the oe had, ad regulatig collective bargaiig practices ( referred to as “represetatio”), o the other. deed, after establishig that employees have “the right to self-orgaizatio, to form, joi, or assist labor orgaizatios, to bargai collectively [ad] to refrai from ay or all of such activities[,]” 17, the NLRA eumerates the various actios that costitute “ufair labor practices” o the part of both employers ad employees i oe sectio of the statute, see 1, ad separately addresses “represetatives ad electios” (i.e., how represetatives are chose ad represetatio electios are coducted) for collective bargaiig i aother, see 19. the ufair labor practice realm, the NLRA empowers the NLRB “to prevet ay perso from egagig i ay ufair labor practice affectig commerce.” (a). Such ufair labor practices iclude a employer's “iterfere[ce] with the formatio or admiistratio of ay labor orgaizatio,” 1(a)(2), or the refusal o the part of either a employer or a labor orgaizatio to egage i collective bargaiig with the other, 1(a)(), (b)(3). Ad with respect to the employees’ selectio of their represetatives for collective bargaiig the NLRA cofers upo the NLRB, iter alia, the power to determie “the uit appropriate for the of collective bargaiig[,]” 19(b), ad to adjudicate ay “questio of represetatio affectig commerce[,]” 19(c)(1)(B); see also 29 C.F.R. 102.64 (explaiig that “[a] questio of represetatio exists if a proper petitio has bee filed cocerig a uit appropriate for the purpose of collective bargaiig or cocerig a uit i which a idividual or labor orgaizatio has bee certified or is beig curretly recogized by the employer as the bargaiig represetative”). For preset it is importat to uderstad that the NLRA addresses the specific powers of the NLRB with respect to prevetig ufair labor practices i sectio of Title 29, which is etitled “[p]revetio of ufair labor practices.” See 29 U.S.C. The first four subsectios of sectio pertai to various aspects of the Board's authority with respect to respodig to such practices. See, (a) (the Board has geeral authority to address ufair labor practices “affectig commerce”); (b) (the Board ca issue a complait ad schedule a hearig whe someoe is accused of egagig i ufair labor practices); (c) (the Board ca take testimoy, make fidigs, order the cessatio of ufair labor practices, ad take affirmative actios to effectuate the policies of the statute); (d) (the Board is free to modify its orders cocerig ufair labor practices util judicial review or judicial eforcemet is sought). Additioally, sectio expressly provides that the Board's orders cocerig ufair labor practices may be eforced or challeged i federal court. See (e), (f). Pursuat to sectio (e), “[t]he Board shall have power to petitio ay court of appeals of the Uited States wherei the ufair labor practice i questio occurred or wherei such perso resides or trasacts *76 busiess, for the eforcemet of [the Board's] order[.]” (e). Likewise, ad importatly, uder sectio (f), “[a]y perso aggrieved by a fial order of the Board gratig or deyig i whole or i part the relief sought may obtai a review of such order i ay Uited States court of appeals i the circuit wherei the ufair labor practice i questio was alleged to have bee egaged i or wherei such perso resides or trasacts busiess, or i the Uited States Court of Appeals for the District of Columbia[.]” (f). B. The NLRB's Relatively Recet Rulemakig Cocerig The Procedures For Coductig Represetatio Electios Although sectio 16 of the NLRA provides the NLRB with the geeral “authority from time to time to make, amed, ad rescid such rules ad regulatios as may be ecessary to carry out the provisios” of the statute, 29 U.S.C. 16, the Board has seldom acted through otice-ad-commet rulemakig o ay subject, see N.L.R.B. v. Curti Matheso Sci., c., 1, 10 L.Ed.2d 1 (“Despite the fact that the NLRB has explicit rulemakig authority, it has chose—ulike ay other major agecy of the Federal Govermet—to make almost all its policy through adjudicatio.” ); see also Corelius Peck, The Atrophied Rulemakig Powers of the Natioal Relatios Board, (11). However, over the last decade, the Board has opted to regulate the procedures that relate to the electio of uio represetatives through a series of rulemakigs, see 29 U.S.C. 19(c)(1), i additio to its adjudicatios. First, i the NLRB issued a fial rule that addressed certai represetatio-electio practices. See Represetatio—Case Procedures, 76 Fed. Reg.13 The fial rule that the agecy issued was uusual isofar as it was promulgated through otice-ad-commet rulemakig. See at2 The rule was challeged i court ad was ultimately ivalidated o the sole groud that the Board acted i the absece of a quorum. See Chamber of 79 F. Supp. 2d 1, 20, the NLRB aouced a proposed rule that was almost idetical to the regulatio—it was likewise aimed at facilitatig the expeditious certificatio of ew labor orgaizatios by “remov[ig] uecessary barriers to the fair ad expeditious resolutio of represetatio cases[,]” elimiatig “[d]uplicative ad uecessary litigatio,” ad “simplify[ig] represetatio-case procedures,” amog other thigs. 79 Fed. Reg. at30; see also (assertig that the 20 rule would allow the Board to “better fulfill its duty to protect employees’ rights by fairly, efficietly, ad expeditiously resolvig questios of represetatio”). The agecy subjected its proposed regulatio to otice-ad-commet rulemakig, icludig holdig at least oe public hearig, ad evetually promulgated the rules over the disset of two Board members. See The 20 rule survived a subsequet court challege, see Chamber of 11 F. Supp. 3d 171 ; Associated Builders & of Texas, c. v. N.L.R.B., No. 1:1-CV-026, WL 3609116, aff'd, 26 F.3d 21 ad was implemeted i full i *77 The 20 rule made approximately twety-five chages to the procedures that had previously govered the electio of uio represetatives for collective bargaiig 79 Fed. Reg. at30–10 (summarizig the amedmets)—five of which are relevat to the istat dispute. First, the 20 rule elimiated parties’ right to litigate questios of idividual eligibility ad iclusio i the uit before the electio of a uio represetative (i.e., at the pre-electio hearig); istead, the rule gave NLRB Regioal Directors discretio to permit disputed idividuals to vote subject to challege, with the challeges beig resolved (if ecessary) after the electio. See at.1 Secod, the 20 rule required the Regioal Directors to set a represetatio electio for “the earliest date practicable,” ad elimiated the requiremet that “[e]lectios be automatically stayed [for 2 to 30 caledar days] i aticipatio of requests for review[,]” Third, the 20 rule codified the requiremet that employers provide a list of eligible voters to the uio or the petitioig employees, together with their cotact iformatio, ad further provided that employers should serve the list o the petitioers withi two busiess days of the directio of electio. Fourth, the 20 rule stated that the task of certifyig the results of electios should be performed at the Regioal Director level i every case. Fifth, ad fially, the 20 rule provided that a party's filig of a request for Board review of a Regioal Director's certificatio of the electio would ot stay the electio, the coutig of ballots, or the certificatio itself, “uless specifically ordered by the Board[.]”2 Whe it promulgated the 20 rule, the NLRB specifically recogized that the NLRA “eshries a democratic framework for employee choice ad, withi that framework, charges the Board to promulgate rules ad regulatios i order that employees’ votes may be ed accurately, efficietly ad speedily.” at3 Accordigly, the 20 rule was “[i]teded to decrease the time precedig uio electios,” Associated Builders & 26 F.3d at 219, although timeliess was just “oe of may reasos proffered for the amedmets[,]” C. The 2019 Electio Rule December of 2017, the NLRB issued a request for iformatio (“RF”) cocerig how the 20 rule was workig. See Represetatio—Case Procedures, 2 Fed. Reg.733 The NLRB *7 posted that “it will be helpful to solicit ad cosider public resposes to this request for iformatio[,]” at73, ad sought public iput with respect to the followig questios: 1. Should the 20 Electio Rule be retaied without chage? 2. Should the 20 Electio Rule be retaied with modificatios? f so, what should be modified? 3. Should the 20 Electio Rule be rescided? f so, should the Board revert to the Electio Regulatios that were i effect prior to the 20 Electio Rule's adoptio, or should the Board make chages to the prior Electio Regulatios? f the Board should make chages to the prior Electio Regulatios, what should be chaged? at. The agecy received early 7,000 submissios i respose to its RF (see Pl.’s Mot. for Summ. J. at 17), icludig a respose from the NLRB's ow Regioal Directors. Amog other thigs, these highly iterested stakeholders observed that, “[w]hile parties iitially voiced great cocers about the 20 Electio Rule, to all the parties’ credit, after the iitial learig curve, there have bee very few difficulties i the adoptio of the rules[.]” (Letter from Regioal Director Committee to Marvi Kapla, Chairma, N.L.R.B., at 4 (Apr. 13, 201), J.A., Doc. 21, ECF No. 33-3, at 721.) Approximately moths after it issued the RF, the NLRB promulgated the fial rule at issue i this case, over the disset of oe of its three Board members. See Represetatio–Case Procedures, 4 Fed. Reg. 69, The 2019 Electio Rule, which was evetually slated to take effect o May 31, see Represetatio–Case Procedures, Fed. Reg. 17,00 largely repealed the electio procedures that the agecy had adopted i the 20 rule, i order to “promote[ ] efficiecy ad expeditious fial resolutio of the questio of represetatio, eve if the electio itself is ot coducted as quickly as it may have bee uder the 20 amedmets[,]” 4 Fed. Reg.29 The 2019 Electio Rule spas more tha 70 pages i the Federal Register, ad the effective repeal of the 20 rule is accomplished i a various ways. As relevat here, certai provisios of the 2019 Electio Rule directly impact the timig of may of the required steps that lead up to the certificatio of a electio for uio represetatives, ad the rule also provides directives cocerig the employees’ selectio of a idividual to serve as the electio observer. Specifically, while the 20 rule had authorized post-electio resolutio of questios of idividual eligibility ad uit-iclusio, see 29 C.F.R. 102.64(a) the 2019 Electio Rule states that, ormally, such questios are to be litigated durig a pre-electio hearig ad adjudicated prior to the electio, see 4 Fed. Reg.9.4 The 20 rule had also provided that “[t]he regioal director shall schedule the electio for the earliest date practicable cosistet *79 with these rules[,]” 29 C.F.R. 102.67(b) but the 2019 Electio Rule adds that “the Regioal Director will ormally ot schedule a electio before the 20th busiess day after the date of the directio of electio, to permit the Board to rule o ay request for review which may be filed pursuat to paragraph (c) of this sectio[,]” 4 Fed. Reg.9. Ad istead of requirig the Regioal Director to issue a certificatio of the results of the electio “forthwith” (with some arrow exceptios), 29 C.F.R. 102.69(b) the 2019 Electio Rule provides that Regioal Directors will issue certificatios of electio results oly after the Board had decided a request for review or after the time for filig a request for review has passed, see 4 Fed. Reg.4, 69,97. The 2019 Electio Rule also delays the employer's deadlie to provide to the petitioer the voter list, which the Supreme Court has characterized as a that promotes “the fair ad free choice of bargaiig represetatives by allowig uios the right of access to employees that maagemet already possesses[.]” 9 S.Ct. 26, Uder the 20 rule, the employer was required to provide the voter list “withi 2 busiess days after issuace of the directio” of a electio, 29 C.F.R. 102.67(l) while the 2019 amedmet gives employers up to five busiess days to teder that 4 Fed. Reg.1. Moreover, rather tha allowig parties to choose a electio observer of their choice without restrictio ), the 2019 Electio Rule provides that, wheever possible, a party will select as its electio observer either a curret member of the votig uit or a curret osupervisory employee, see 4 Fed. Reg.97. the Federal Register otice that aouces the 2019 Electio Rule, the NLRB states that the agecy did ot eed to udertake otice-ad-commet rulemakig, because “the fial rule is procedural as defied i U.S.C. 3(b)(A), ad is therefore exempt from otice ad commet.” 4 Fed. Reg.2. The Board further explaied that, “although foregoig otice ad commet deviates from the process used i 20, it is cosistet with the Board's geeral approach i this area” because, “despite havig used otice-ad-commet rulemakig [i 20], the explaatio for the 20 amedmets was at pais to emphasize that this process was ot required by law[,]” ad “the fact that the fial rule modifies certai of the 20 amedmets that were adopted after otice-ad-commet rulemakig i o way requires otice-ad-commet rulemakig ow.” The NLRB took care to clarify that “[]oe of the procedural chages ma[d]e today are premised o the resposes to the Request for formatio; ideed, [the Board] would make each of these chages irrespective of the existece of the Request for formatio.”212. D. Procedural History The AFL-CO filed the complait i the istat case o March 6, (See Compl., * ECF No. 1.) The labor orgaizatio alleges that the Board's 2019 Electio Rule violated the APA because certai provisios are ot merely procedural for APA as the NLRB claims, ad are thus ot exempt from the APA's otice-ad-commet requiremet. (See ¶¶ –0 (Cout ).) The AFL-CO's complait also claims that the 2019 Electio Rule is arbitrary ad capricious, both as a whole (see ¶¶ 1–9 (Cout )), ad with respect to specific parts (see ¶¶ 60–69 (Cout )), ad the uio further maitais that the 2019 Electio Rule is icosistet with the NLRA (see ¶¶ 70–1 (Cout V)). Three days after filig the complait, the AFL-CO filed a motio for prelimiary ijuctio, requestig prelimiary relief i light of the the-impedig April 16, effective date of the 2019 Electio Rule. (See Mot. for Prelim. j., ECF No. 3.) This Court held a telephoic status coferece o March 1, durig which a extesio of the effective date of the rule was discussed, i order to permit full briefig ad fair cosideratio of the issues i the cotext of proposed cross-motios for summary judgmet that the Court would review o a expedited basis. (See Mi. Etry of Mar. 1,) The followig day, the NLRB otified the Court that the effective date of its rule would be postpoed util May 31, (See Notice, ECF No. 1.) The parties the filed cross-motios for summary judgmet (see Def.’s Mot. for Summ. J., ECF No. ; Pl.’s Mot. for Summ. J., ECF No. 23), ad their respective resposes followed (see Def.’s Opp' to Pl.’s Mot. for Summ. J. (“Def.’s Summ. J. Opp'”), ECF No. 2; Pl.’s Opp' to Def.’s Mot. for Summ. J. (“Pl.’s Summ. J. Opp'”), ECF No. 29). its motio, the NLRB argues that the agecy is etitled to summary judgmet because the 2019 Electio Rule is a procedural rule, such that it is exempted from otice-ad-commet rulemakig, ad that it is either arbitrary ad capricious or a violatio of the NLRA, give that the Board “acted withi the scope of the broad authority grated by Cogress to make, amed, ad rescid rules ecessary to carry out the Act.” (See Def.’s Mot. for Summ. J. at 16). For its part, the AFL-CO reiterates its view that certai parts of the 2019 Electio Rule are ulawful because they were ot promulgated after the required otice-ad-commet rulemakig (see Pl.’s Mot. for Summ. J. at 20), ad also maitais that the etire rule fails to meet “basic stadard[s] of reasoed decisio-makig” ( at 39), ad is otherwise i violatio of the law ( at 49). The NLRB has also filed a motio to trasfer the case to the U.S. Court of Appeals for the D.C. Circuit pursuat to sectio (f) of Title 29 of the Uited States Code. (See Def.’s Mot. to Trasfer, ECF No. 1; see also Def.’s Reply to Pl.’s Opp' to Trasfer (“Def.’s Reply to Trasfer”), ECF No. 26.) The motio argues, for the first time i the NLRB's history, that this direct-review provisio vests the jurisdictio to review the istat exercise of rulemakig authority by the NLRB i the court of appeals rather tha i the district court. (See Def.’s Mot. to Trasfer at 3–4.) oppositio to the trasfer motio, the AFL-CO argues that sectio (f) is limited to NLRB orders that cocer ufair labor practice disputes, ad that this Court has subject-matter jurisdictio uder 2 U.S.C. 1331 to review its challege to the 2019 Electio Rule, which pertais to the electio of uio represetatives for collective bargaiig (See Pl.’s Opp' to Mot. to Trasfer (“Pl.’s Opp' to Trasfer”), ECF No. 20.) This Court held a telephoic motios hearig o May ad at the ed of the hearig the Court took the motio to *1 trasfer ad cross-motios for summary judgmet, ow ripe for review, uder advisemet. (See Miute Etry of May) LEGAL STANDARD A. Motios To Trasfer Cases To The Court Of Appeals Pursuat To A Direct-Review Statute 1 2 3 4 Although Cogress certaily has the prerogative to “choose the court i which judicial review of agecy decisios may occur[,]” Five Flags Pipe Lie 4 F.2d 1, 19 (D.C. Cir. 19) “[i] this circuit, the ormal default rule is that persos seekig review of agecy actio go first to district court rather tha to a court of appeals[,]” Am. Petroleum st. v. S.E.C., 7 F.3d 1329, “[T]he APA either cofers or restricts jurisdictio,” so it is “the geeral federal-questio statute, 2 U.S.C. 1331[,]” that is the fot of authority for district courts to review claims brought uder the APA. 46 F.3d 17, 1 Ad, “uless Cogress expressly says otherwise, APA review takes place first i the federal district courts, ot the courts of appeals.” 7 F.3d 902, deed, it is by ow clear beyod cavil that, where the district court has subject-matter jurisdictio uder sectio 1331, “[i]itial review occurs at the appellate level oly whe a direct-review statute specifically gives the court of appeals subject-matter jurisdictio to directly review agecy actio.” 42 F.3d 01, 6 7 With respect to iterpretig such direct-review statutes, “[w]hether iitial subject-matter jurisdictio lies iitially i the court of appeals must of course be govered by the itet of Cogress ad ot by ay views we may have about soud policy.” Florida Power & Light 0 U.S. 729, 10 S.Ct. 19, 4 L.Ed.2d 6 (19). Because “courts have just so much jurisdictio as Cogress has provided by statute[,]” Sierra 2 F.2d 73, (D.C. Cir. 197), they must “act o the basis of statutory laguage ad probative legislative history” i order to discer cogressioal itet with respect to jurisdictioal provisios, icludig direct review provisios, Am. Petroleum st., 7 F.3d at 1337. However, if a particular direct-review provisio is “ambiguous o its face,” it will likely be read to cofer direct-review authority to the court of appeals, for the Supreme Court has specifically istructed that, “[a]bset a firm idicatio that Cogress iteded to locate iitial APA review of agecy actio i the district courts, we will ot presume that Cogress iteded to depart from the soud policy of placig iitial APA review i the courts of appeals.” Lorio, 0 U.S. at 737, 10 S.Ct. 19. Thus, as relevat here, the D.C. Circuit has adopted a presumptio with respect to ambiguous direct-review provisios, which holds that a statutory provisio “creatig a right of direct judicial review i the court of appeals of a admiistrative ‘order’ authorizes such review of ay agecy actio that is otherwise susceptible of review o the basis of the admiistrative aloe.” N.Y. Republica State B. Summary Judgmet The APA Cotext As a geeral matter, summary judgmet may be grated i favor of a party pursuat to Federal Rule of Civil Procedure 6 “if the pleadigs, the discovery *2 ad disclosure materials o file, ad ay affidavits [or declaratios] show that there is o geuie issue as to ay material fact ad that the movat is etitled to a judgmet as matter of law.” Air Trasp. Ass'. of Am., c. v. Nat'l Mediatio Bd., aff'd, 663 F.3d 6 (quotig Fed. R. Civ. P. 6(c)). the istat case, however, the parties have sought summary judgmet with respect to a actio of a admiistrative agecy that allegedly violates the APA; as a result, the typical legal stadard articulated i Federal Rule of Civil Procedure 6 does ot apply. See F. Supp. 2d 17, stead, “i APA cases, the summary judgmet stadard fuctios slightly differetly, because the reviewig court reviews the agecy's decisio as a appellate court addressig issues of law.” Policy & Research, (D.D.C. 201) Thus, i the istat cotext, “it is the role of the agecy to resolve factual issues to arrive at a decisio that is supported by the admiistrative” ad “the fuctio of the district court is to determie whether or ot as a matter of law the evidece i the admiistrative permitted the agecy to make the decisio it d” 3 F. Supp. 2d “Summary judgmet thus serves as the mechaism for decidig, as a matter of law, whether the agecy actio is supported by the admiistrative ad otherwise cosistet with the APA stadard of review.” F. Supp. 2d at ANALYSS The NLRB vigorously maitais, as a threshold matter, that the istat APA dispute cocerig its ewly promulgated electio-procedures rule must be trasferred to the court of appeals forthwith, because the direct-review provisio i sectio (f) of the NLRA divests this Court of jurisdictio over the claims that the AFL-CO brigs here. (See Def.’s Mot. to Trasfer at (arguig that “the AFL-CO's Complait was filed i a court which lacks subject-matter jurisdictio to hear it”).) The Board argues further that, if this Court addresses the AFL-CO's challeges to the 2019 Electio Rule, summary judgmet must be grated i the NLRB's favor, because the challeged regulatory provisios are procedural rules that did ot require pre-promulgatio otice-ad-commet rulemakig, ad oe of them is arbitrary ad capricious or otherwise violative of the NLRA. (See Def.’s Mot. for Summ. J. at 16.) The AFL-CO respods that sectio (f)’s direct-review provisio is iapposite (see Pl.’s Opp' to Trasfer at 1), ad that the uio is etitled to summary judgmet o its APA claims, because the NLRB's promulgatio of the challeged electio-procedures provisios required otice-ad-commet rulemakig, ad ot oly violated the APA's prohibitios agaist arbitrary ad capricious rules, but also trasgressed the NLRA (see Pl.’s Mot. for Summ. J. at 9–10). As explaied below, this Court has cocluded that sectio (f)’s direct-review provisio does ot divest the district court of subject-matter jurisdictio over the istat dispute, ad it has further foud that o fair assessmet of the regulatory provisios leads to the coclusio that the challeged parts of the 2019 Electio Rule are mere procedural rules. Cosequetly, the APA required that the challeged parts of the 2019 Electio Rule be promulgated through otice-ad-commet rulemakig, ad give that the NLRB did ot actually *3 egage i such a pre-promulgatio process, the provisios that the AFL-CO has challeged o otice-ad-commets grouds must be set aside. But this Court will ot ivalidate the etire rule to remedy the otice-ad-commet defect, i accordace with well-established legal orms that require deferece to agecy decisio-makig i the wake of a district court's review of admiistrative actio. stead, the Court will remad the matter to the agecy for further cosideratio i light of this Court's rulig. A. The Court Has Jurisdictio To Cosider The Parties’ Cross-Motios For Summary Judgmet, Notwithstadig The NLRA's Direct-Review Provisio 9 There is o questio that federal courts are courts “of limited jurisdictio,” ad thus ay “iquiry must always begi by askig whether [the courts] have jurisdictio” over the claim preseted. Salazar ex rel. 671 F.3d 12, The parties here disagree o whether district courts have subject-matter jurisdictio to etertai ay APA challege to a rule promulgated by the NLRB (see Def.’s Mot. to Trasfer at 3; Pl.’s Opp' to Trasfer at 2), ad this dispute arises because sectio (f) of the NLRA provides, i relevat part, that [a]y perso aggrieved by a fial order of the Board gratig or deyig i whole or i part the relief sought may obtai a review of such order i ay Uited States court of appeals i the circuit wherei the ufair labor practice i questio was alleged to have bee egaged i or wherei such perso resides or trasacts busiess, or i the Uited States Court of Appeals for the District of Columbia[.] 29 U.S.C. (f). This Court easily cocludes that the text, structure, ad legislative history of sectio (f) make it uambiguously clear that sectio (f) does ot chael to the courts of appeals direct-review jurisdictio over challeges to NLRB rules goverig the electio of uio represetatives for collective bargaiig as explaied below. 1. Sectio (f) Pertais Solely To Claims That Relate To Agecy Actios Cocerig Ufair Practices 10 Begiig, as this Court must, with the text of sectio (f), it is clear that this statutory provisio is directed to “fial order[s]” of the NLRB that “grat[ ] or dey[ ] i whole or i part the relief sought” i the cotext of the “ufair labor practice i questio.” 29 U.S.C. (f). Thus, by its terms, the direct-review provisio is quite specific ad relatively arrow, isofar as it provides for direct judicial review i the court of appeals of oly those “orders” of the NLRB that are “fial,” ad such fial orders must “grat[ ] or dey[ ]” some type of “relief” that has bee “sought” by a etity that the NLRA govers. Settig aside for the momet whether or ot the “fial order” requiremet is broad eough to cover a NLRB “rule” like the oe at issue here, there is o reasoable argumet that credibly casts the 2019 Electio Rule as a agecy actio that grats or deies ay relief to a regulated party, ad this problem aloe is sufficiet to cast doubt o the NLRB's cotetio that sectio (f) applies to the AFL-CO's claims.6 But what cliches the coclusio *4 that sectio (f) does ot divest the district court of the subject-matter jurisdictio that it would otherwise have to address the AFL-CO's claims uder 2 U.S.C. 1331 is the very simple fact that what is beig directed to the court of appeals for direct-review per the text of the statute is NLRB actios cocerig the “ufair labor practice i questio”—a textual referece that strogly suggests that the provisio is oly triggered whe some kid of ufair labor practice is at issue. Cf. Am. Fed' of 30 U.S. 401, 4 L.Ed. 3 (holdig that sectio (f) authorizes judicial review of NLRA sectio 1 “ufair labor practice” orders, but it does ot authorize judicial review of NLRA sectio 19 “represetatio” adjudicatios). The structure of sectio of the NLRA cofirms that this iterpretatio is the oly possible readig of this direct-review provisio. this regard, as the Court previously explaied, subsectio (f) “appears as a itegral part” of sectio —which is itself etitled “prevetio of ufair labor practices[,]” 29 U.S.C. —ad “[a]ll the other subdivisios relate exclusively to proceedigs for the prevetio of ufair labor practices[,]” Am. Fed' of 30 U.S.7 The NLRB provides o explaatio for its suggestio that Cogress iteded to place sectio (f) i the heart of a sectio solely goverig ufair labor practices, ad yet somehow meat for this particular provisio aloe to apply more broadly. Cf. 23 U.S. 2, 11 S.Ct. 1219, 0 L.Ed.2d 0 (199) (explaiig that “the title of a statute ad the headig of a sectio are tools available for the resolutio of a doubt about the meaig of a statute” ). Ad because the etirety of sectio solely focuses o NLRB orders o ufair labor practice disputes, the oly reasoable costructio of subdivisio (f) takes ito accout that it oly cocers NLRB orders o ufair labor practice disputes as well. The structure of the NLRA itself further solidifies this Court's view that sectio (f) madates direct review of NLRB actios that pertai to ufair labor practices. Cf. * 109 S.Ct. 166, 104 L.Ed.2d 9 (199) (“[] expoudig a statute, we are ot guided by a sigle setece or member of a setece, but look to the provisios of the whole law, ad to its object ad policy.” ). As explaied i SectioA above, the NLRA draws a clear distictio betwee ufair labor practices ad uio electios i the collective bargaiig cotext, ad provides the NLRB with the power to adjudicate disputes ad to promulgate rules with respect to both spheres of labor-related coduct. “Separate ad distict” provisios of the NLRA “gover the procedure i ufair labor practice cases ad i represetatio cases[,]” ad “[t]he procedure to be followed i the ufair labor practice cases is outlied i some detail” i sectio “which deal[s] with ufair labor practices oly ad do[es] ot deal with the area of represetatio electios[,]” which are addressed i sectio 19 of the statute. Dep't & Specialty Store Emp. Uio, Local F.2d 619, (9th Cir. 10); see also Am. Fed' of 30 U.S. at 406, (otig that sectio “which as its headig idicates relates to the prevetio of ufair labor practices[,]” icludes o “metio of ivestigatios or certificatios authorized ad defied by” sectio 19). This Court's readig of sectio (f) is also cosistet with the scat legislative history pertaiig to this statutory provisio. The House Report o the draft bill that became the NLRA clarifies that sectio is iteded to empower the NLRB “to prevet ay perso from egagig i ay ufair labor practice[,]” ad that it authorizes the federal courts to get ivolved i two circumstaces. H.R. Rep. No. -9 at 21– (19). The Report says, first, “[i]f the perso complaied of fails or eglects to obey the Board's order, it is provided that the Board shall be empowered to petitio ay appropriate Circuit Court of Appeals of the Uited States for the eforcemet of such order.” Ad, secod, “[a]ccordig to a similar procedure, ay perso aggrieved by a fial order of the Board gratig or deyig i whole or i part the relief sought may obtai a review of such order i the appropriate circuit court of appeals, or i the Court of Appeals of the District of Columbia.” This same source explais that the provisio that allows a aggrieved perso to solicit the itervetio of the circuit court “is iteded here to give the party aggrieved a full, expeditious, ad exclusive method of review i oe proceedig after a fial order is made[,]” ad “[u]til such fial order is made the party is ot ijured, ad caot be heard to complai[.]” This all meas that both Cogress's ow descriptio of the iteded purpose of sectio ad sectio (f), ad also the text ad structure of the statute that Cogress crafted to covey that itet, leave o doubt as to the limited scope of the direct review created by the NLRA: it cocers the eforcemet ad review of NLRB orders that pertai to ufair labor practice charges. 2. That Ambiguous Direct-Review Provisios Pertaiig To Agecy “Orders” Presumptively Must Also Be Read To clude “Rules” s Of No Momet 11 The NLRB poits out that the D.C. Circuit has log maitaied, as a geeral matter, that where there is ambiguity with respect to the scope of a direct-review statute, the term “order” should be iterpreted to iclude a agecy “rule[.]” 799 F.3d at ; see also v. st. v. Bd. of Goverors of Fed. Reserve Sys., 1 F.2d 1270, 1273–7 (iterpretig Sectio 9 of the Bak Holdig Act, which authorizes “[a]y party aggrieved by a order of the Board uder *6 this chapter [to] obtai a review of such order i the Court of Appeals i the District of Columbia[,]” ad holdig that “the uderlyig Sectio 9 will best be served if ‘order’ is iterpreted to mea ay agecy actio capable of review o the basis of the admiistrative” icludig agecy regulatios). Give this bidig authority, the Board here takes the uprecedet step of arguig that the text of sectio (f) must be read to madate direct-review authority to the courts of appeals with respect to both ay order of the NLRB ad ay rule that the NLRB promulgates (with the exceptio of orders certifyig the electio of uio represetatives), ad as such, sectio (f) applies to divest this Court of jurisdictio over the AFL-CO's claims. (See Def.’s Mot. to Trasfer at 3– (ackowledgig that the Board ever made this argumet i prior challeges to its rules).) But this etirely ovel cotetio is also etirely upersuasive, because sectio (f) is ot at all ambiguous i scope, as demostrated above—ad, ideed, it makes crystal clear that the challeged agecy actio that is subject to the courts of appeals’ direct review must be oe that ivolves ufair labor practices, while the electio rule at issue here idisputably cocers collective bargaiig procedures. See Pub. Citize, c. v. Nat'l Highway Traffic Safety Admi., 49 F.3d 1279, 127 Not to belabor the poit, the Court merely reiterates that Cogress itetioally desiged subsectio (f) of sectio to provide “aggrieved parties” with the right to seek review of a “fial order” of the NLRB pertaiig to such a ufair labor practice i the court of appeals “i the circuit wherei the ufair labor practice i questio was alleged to have bee egaged i[,]” amog other places, 29 U.S.C. (f), i the same way that Board ca seek court eforcemet of ay agecy order cocerig a alleged ufair labor practice pursuat to subsectio (e), see (e). See SectioA.1. To be sure, subsectio (f) is also i the ature of “a veue clause” (Def.’s Reply to Trasfer at (emphasis omitted)) isofar as it specifies which of the courts of appeals such aggrieved persos ca petitio to obtai judicial review. But the text, structure, ad legislative history of this direct-review provisio uequivocally establishes that, at bottom, the subject of a petitio for review that is filed with the court of appeals uder sectio (f) must be a NLRB actio that pertais to ufair labor practices as opposed to ay other topic that the agecy might have acted to address. Thus, the NLRB's reliace o that the DC. Circuit's holdig that a “order” for direct-review-statute presumptively icludes “rules” (see Def.’s Mot. to Trasfer at 3) is etirely beside the poit. That is, regardless of whether, “abset cotrary cogressioal itet,” a ambiguous “statutory review provisio creatig a right of direct judicial review i the court of appeals of a admiistrative ‘order’ [also] authorizes such review of” ay agecy rule, 799 F.3d at Cogress's itet with respect to sectio (f) is ot abset; istead, Cogress has uambiguously made it crystal clear that, to trigger the direct-review directive, ay NLRB order (or, perhaps, ay NLRB rule) must, as a threshold matter, relate to ufair labor practices. 12 This critical prerequisite maifestly distiguishes the istat direct-review provisio from those i each of the cases that NLRB poits to as precedets for the applicatio of the presumptio that “orders” *7 icludes “rules.” (See Def.’s Mot. to Trasfer at 3–4; Def.’s Reply to Trasfer at 12–13.) Ad the NLRB does ot appear to dispute that the 2019 Electio Rule cocers collective bargaiig practices, ot ufair labor practice determiatios. Therefore, it is clear to this Court that it retais jurisdictio over the istat challege to the NLRB's rulemakig, ot because the NLRB has promulgated a rule rather tha issuig a order, but because the NLRB's actio regulates represetatio rather tha ufair labor practices, such that subsectio (f)’s direct-review provisio does ot apply.9 Cosequetly, the Court will proceed to review the merits of the AFL-CO's claims pursuat to the geeral subject-matter jurisdictio that Cogress has coferred to it uder 2 U.S.C. 1331. B. The Board's 2019 Electio Rule Required Notice-Ad-Commet Rulemakig Uder The APA Because t s Not A Procedural Rule The APA “separates legislative [or substative] rules, which have the force ad effect of law, from three types of rules that do ot: iterpretive rules, geeral statemets of policy, ad procedural rules[,]” Plaed Parethood of Wiscosi, c. v. Azar, (D.D.C. 201), vacated as moot, ad as relevat here, the APA also provides that iterpretive rules, policy statemets, ad procedural rules are exempted from the statute's otice-ad-commet requiremet, see U.S.C. 3(b)(A). The exceptio for “procedural rules” is “the hardest to defie[,]” 64 F.2d 694, (D.C. Cir. 19); however, the APA states that Cogress iteded to permit agecies to promulgate “rules of agecy orgaizatio, procedure, or practice” without first submittig rules of that ature to public scrutiy, U.S.C. 3(b)(A). The ub of the istat dispute is the NLRB's valiat effort to shoehor five parts of its 2019 Electio Rule ito this arrow classificatio. But for the reasos explaied below, this Court fids that the challeged provisios of the 2019 Electio Rule are ot procedural rules, ad as a result, their promulgatio violated the APA's otherwise madatory otice-ad-commet requiremets. * 1. The Challeged Provisios Are Not Procedural Rules Because They Are Not Rules Of Agecy Orgaizatio, Procedure, Or Practice The first step i uderstadig this Court's evaluatio of the istat dispute is to recogize that the parties have framed this issue as a quest to ascertai whether or ot the 2019 Electio Rule is a substative rule for which otice-ad-commet rulemakig is required—a subject upo which they vehemetly disagree. (Compare Pl.’s Mot. for Summ. J. at 21 (arguig that the 2019 “amedmets are substative” ) with Def.’s Summ. J. Opp' at 7 (cotedig that the challeged provisios are ot substative rules, because “oe of the chages challeged by AFL-CO i the 2019 [Electio Rule] is so burdesome that they either foreclose fair cosideratio of the uderlyig cotroversy or have the itet or effect of chagig the substative outcome of the electios”).) The parties appear to agree that the 2019 Electio Rule is, i fact, a “rule” for the purpose of the APA, see U.S.C. 1(4); therefore, it is puzzlig that the parties have framed the applicable legal stadards i a maer that seems to lose track of the cetral questio—i.e., whether the 2019 Electio Rule provisios are procedural rules ad thus exempt from required otice-ad-commet rulemakig—ad have istead primarily egaged i a debate over whether the challeged parts of the 2019 Electio Rule qualify as substative ad, as such, were etitled to otice-ad-commet rulemakig i the first place. The parties’ struggle to keep their eyes o the ball is ot surprisig: the D.C. Circuit, too, “ha[s] struggled with the distictio betwee ‘substative’ ad ‘procedural’ rules[,]” JEM Broad. ad has repeatedly suggested that “the distictio betwee substative ad procedural rules is oe of degree[,]” rather tha kid, Elec. Privacy fo. Ctr. v. Dep't of Homelad Sec. (“EPC”), 6 F.3d 1, The Circuit has also idicated that the relevat aalysis “is fuctioal, ot formal[,]” Chamber of v. Dep't of 1 F.3d 206, but it has ot further expouded upo how oe is expected to draw that lie, as a practical matter, with respect to ay particular rule formulatio. Cf. Nat'l Miig 7 F.3d 21 13 Yet, the seemigly iscrutable task of discerig which agecy rules fuctio i a sufficietly substative maer to qualify for otice-ad-commet rulemakig is made substatially easier whe oe revisits the text of the APA, which helpfully establishes that a agecy rule is essetially presumed to be substative for the purpose of the otice-ad-commet requiremet, ad that otice-ad-commet rulemakig is thus required uless a rule satisfies oe of the listed exceptios. See U.S.C. 3(b). Therefore, this Court has iitially focused its attetio o idetifyig the cotours of the exceptio that the NLRB relies upo i this case rather tha o defiig the limits of the geeral rule, so as to determie whether the challeged parts of the 2019 Electio Rule qualify as procedural rules. Cf. Am. Hosp. 34 F.2d 1037, (D.C. Cir. 197) (warig of the risks of “allow[ig] the exceptios itemized i 3 to swallow the APA's well-itetioed directive”). To be clear, attemptig to ascertai the “procedural” ature of a agecy rule by elimiatig the possibility that the rule is “substative” would be a ratioal approach if there were oly those two optios i the uiverse of possible rule *9 classificatios, ad if each was equally likely to occur. However, as oted above, the APA carves out ad exempts from otice-ad-commet rulemakig three differet kids of agecy rules—ot oly “rules of agecy orgaizatio, procedure, or practice,” U.S.C. 3(b)(A), but also “iterpretive rules” ad “geeral statemets of policy,” Ad eve more importatly, otice-ad-commet rulemakig is the default whe a agecy promulgates a rule, while “the various exceptios” are to “be arrowly costrued ad oly reluctatly couteaced.” N.J. Dep't of Evtl. F.2d 103, 104 (D.C. Cir. 19); see also 74 F.3d at This meas that, if the task at had is to determie whe otice-ad-commet is ot required, tha doig so is most effectively ad efficietly accomplished by demarcatig the boudaries of the limited exceptio at issue, ad determiig whether, i light of those parameters, the agecy has satisfied its burde of establishig that the rule it promulgated meets that mark. Here, the NLRB argues that the challeged provisios of the 2019 Electio Rule are exempt from otice-ad-commet rulemakig uder the procedural-rule exceptio; therefore, this Court has primarily udertake to examie whether or ot the provisios at issue qualify as such. Put aother way, i order to prevet veerig off course i this very murky area of admiistrative law, this Court begis its aalysis of the ature of the challeged provisios of the 2019 Electio Rule for APA by establishig the scope of the iteded target: the procedural-rule exceptio. this regard, the D.C. Circuit has istructed that the APA's procedural-rule exceptio exists “to esure that agecies retai latitude i orgaizig their iteral operatios,” but it has also oted that “may iteral agecy practices affect parties outside the agecy—ofte i sigificat ways.” 64 F.2d at The D.C. Circuit has provided few other isights ito the proper method for idetifyig procedural rules, but it is helpful to recall that the term “procedural rule” is itself geeral omeclature that is shorthad for the “rules of agecy orgaizatio, procedure, or practice” that are expressly exempted from the otice-ad-commet requiremet uder sectio 3(b) of the APA. 1 16 17 The Supreme Court has described the procedural rules provisio as, essetially, a “housekeepig statute,” Chrysler 441 U.S. 21, 99 S.Ct. 170, 60 L.Ed.2d 20 ad the D.C. Circuit has clarified Cogress's itet with respect to this provisio by explaiig that “Cogress provided this exemptio from the ormal rulemakig procedures to esure that agecies retai latitude i orgaizig their iteral operatios[,]” 74 F.3d at Thus, rules that are properly characterized as procedural i ature for APA ad are thus exempted from otice-ad-commet rulemakig, are “primarily directed toward improvig the efficiet ad effective operatios of a agecy[,]” 64 F.2d at 70234; that is, they “relate to the method of operatio of the agecy[,]” at 7070 although they ca sometimes set “timetable[s] for [regulated etities] assertig substative rights[,]” Lamoille R.R. v. terstate Comm', 711 F.2d 29, 32 (D.C. Cir. 193), or “alter the maer i which the parties preset themselves or their viewpoits to the agecy[,]” Nat'l Miig Ass', 7 F.3d at 20. mportatly, the D.C. Circuit has also wared that the procedural-rule exceptio “should ot be deemed to iclude ay actio which goes beyod formality[,]” *90 07 F.2d 1107, (D.C. Cir. 19), because procedural rules are iteded simply to “deal[ ] with the method of operatio utilized by the [agecy] i the dispatch of its busiess[,]” F.2d 673, 6 (D.C. Cir. 13) t is istructive to cosider a few examples of agecy rules that the D.C. Circuit has foud to be procedural i ature. For example, the circuit has cocluded that rules that create or modify deadlies for regulated etities to otify the agecy of their choice to exercise certai substative rights are procedural rules. See, Lamoille 711 F.2d at 32; Rager v. F.C.C., 294 F.2d 0, 4 (D.C. Cir. 11). Similarly, regulatios regardig how the agecy is goig to receive petitios from regulated etities, or the iteral steps that the agecy will take to scree such applicatios, have bee cosidered procedural. See, Nat'l Miig Ass', 7 F.3d at 20; James V. Hurso Assocs., c. v. Glickma, The circuit has also cocluded that regulatios that gover a agecy's iteral procedures with respect to its processig of icomplete or objected-to petitios filed by regulated etities satisfy the procedural-rule exceptio. See, JEM Broad. –2; Neighborhood TV 2 F.2d 629, (D.C. Cir. 194). Ad, lastly, procedural rules iclude agecy regulatios orgaizig the agecy's iteral procedures to meet its ow legal duties. See, Pub. Citize v. Dep't of State, 63 1 19 Thus, it is fair to say that D.C. Circuit's precedets, as well as its more geeral prooucemets regardig the scope ad meaig of the procedural-rule exceptio, suggest that procedural rules primarily cocer the agecy's iteral operatios, eve if such rules also occasioally create expectatios for regulated etities with respect to the timeframe, meas, ad methods by which those etities assert their substative rights vis-à-vis the agecy. Moreover, where (as here) a plaitiff challeges a rule provisio that is plaily ot directed to iteral agecy processes, the APA seemigly requires the agecy to demostrate that its rulemakig actio evertheless relates to “agecy orgaizatio, procedure, or practice[,]” U.S.C. 3(b)(A), to such a degree that it caot be fairly characterized as havig a substative impact o the parties. other words, i this Court's view, if the agecy caot show that the default assumptios of the APA have bee properly displaced because the rule at issue is, i fact, directed at the agecy's iteral processes despite the icidetal effect o the parties, the the rule caot be characterized as fittig withi the APA's arrow procedural exemptio, ad otice-ad-commet is required. Cf. EPC, 6 F.3d at –6 (“[T]he distictio betwee substative ad procedural rules is oe of degree depedig upo whether the substative effect is sufficietly grave so that otice ad commet are eeded to safeguard the policies uderlyig the APA[,]” which iclude “serv[ig] the eed for public participatio i agecy decisiomakig” ad “esur[ig] the agecy has all pertiet iformatio before it whe makig a decisio” ). 20 Applyig these priciples to the istat case, this Court cocludes that each of the provisios of the 2019 Electio Rule that the AFL-CO challeges as a otice-ad-commet violatio reaches far outside the Board's iteral operatios, ad the NLRB has failed to show that each provisio oetheless still fits withi the arrow scope of the procedural-rule exceptio. Take, for istace, the 2019 Electio Rule's madate that Regioal Directors “will ormally ot schedule a electio *91 before the 20th busiess day after the date of the directio of electio,” 4 Fed. Reg.9, ad also the rule's extesio of the widow of time withi which employers must compile the list of eligible voters ad disclose it to the Board ad the employees, see1. By legtheig the timeframes wherei the agecy (through its Regioal Directors) ad employers who presumably oppose uioizatio are supposed to udertake certai sigificat actios with respect to aspects of the represetatio-electios process, the NLRB is doig much more tha merely ad miisterially alterig deadlies for parties to express their itetios to the agecy. See, Lamoille 711 F.2d at 32; Rager, 294 F.2d at 4. Rather, the NLRB has delayed the timeframe withi which duties that are owed to the regulated etities will be carried out. To be sure, these rules ca be characterized as procedural at a certai level of abstractio, because they relate to the procedures that must be followed to coduct represetatio electios. But rule provisios that dictate whe the Regioal Directors will take certai ecessary actios o behalf of the agecy i respose to employees’ filigs, or whe employers must disclose certai iformatio oce the employees have already asserted their substative rights, do ot bear meaigfully o the agecy's iteral processes, yet they do have a sigificat impact o the employees’ ability to mout a successful campaig for uioizatio, as is their right uder the NLRA. Likewise, whe the 2019 Electio Rule provides that “[d]isputes cocerig uit scope, voter eligibility ad supervisory status will ormally be litigated ad resolved by the [R]egioal [D]irector before a electio is directed[,]” 4 Fed. Reg.9; or requires the employees to choose as their electio observer either “a curret member of the votig uit” or “a curret osupervisory employee[,]”97; or madates that “the certificatio [of the electio results] will issue oly after the Board's rulig o [ay] request” for review,4, the Board is maifestly outward facig, ad is uquestioably guidig the coduct of regulated etities i a maer that primarily impacts matters outside its ow iteral operatios. To put a fier poit o this particular assessmet, by requirig pre-electio litigatio of potetial voter eligibility problems, the NLRB is causig employees to wait for issues cocerig the scope of the collective bargaiig uit to be sorted out prior to a electio, with the distict possibility that such a delay will hider the employees’ prospects of mobilizig a sufficiet umber of peers to uioize the workplace, ad with o apparet correspodig beefit with respect to the iteral workigs of the agecy. Ad the electio-observer provisio, which plaily directs whom the employees ca choose to protect their iterests while the electio is uderway, might well be a sigificat costrait for employees who are seekig to uioize, but appears to make ot oe whit of differece with respect to the agecy's iteral operatios. Fially, to the extet that the 2019 Electio Rule delays certificatio, it likewise forestalls the beefits that employees are seekig whe they campaig for uioizatio, see, 29 U.S.C. 1(b)(7) (allowig oly “curretly certified” labor orgaizatios to picket for loger tha 30 days a employer who refuses to “recogize or bargai with a labor orgaizatio as the represetative of his employees”), while the beeficial effect of this prescribed delay o ay iteral practice or process of the NLRB has yet to be established. The Board's respose is that the challeged provisios of the 2019 Electio Rule qualify as procedural rules regardless, *92 because they oly “gover[ ] the cotet ad timig of case filigs” )), ad/or merely chage “whe [certai] issues are preseted to, ad decided by, the Board” ( at 17). Boiled to bare essece, this cotetio suggests that the NLRB cosiders ay rule that merely relates to procedures as opposed to substative rights as a procedural rule for the purpose of the APA (see Hr'g Tr. at –9)—a miscoceptio that appears to be fueled, first ad foremost, by a misuderstadig of the iteded scope of the APA's procedural-rule exceptio. deed, as explaied above, sectio 3(b)(A) of the APA does ot ecompass ay ad all rules that relate to procedures that a agecy says a regulated etity must follow; istead, procedural rules are properly uderstood as agecy rules that relate primarily to “iteral house-keepig measures orgaizig agecy activities[,]” 64 F.2d at 702, which is precisely why they eed ot be subjected to otice ad public commet. The NLRB also presets a “overly abstract accout” of the challeged provisios of the 2019 Electio Rule—oe that casts their implicatios at a high “level of geerality[,]” EPC, 6 F.3d at 2–3, ad thereby igores the actual impact of the challeged provisios of this rule o parties other tha the agecy itself. The Board may say that these provisios have oly “a icidetal effect o parties” (Def.’s Mot. for Summ. J. at 20), but its ow Federal Register otice belies its uderstadig that these rule chages will sigificatly impact represetatio-electio processes, which appears to be the very reaso why the NLRB adopted these reforms. See, 4 Fed. Reg.29 (statig, i referece to electios udertake prior to the 2019 rule chages, that “[t]he mere fact that electios are takig place quickly does ot ecessarily mea that this speed is promotig fiality or the most efficiet resolutio of the questio of represetatio”). Thus, it is clear to this Court that each of the challeged provisios of the 2019 Electio Rule actually (ad, apparetly, itetioally) reaches beyod the agecy's ow “orgaizatio, procedure[s], or practice[s]” to direct regulated etities cocerig how represetatio electios are to be coducted, U.S.C. 3(b)(A), i a maer that actually (ad, apparetly, itetioally) impacts the substative rights of parties. Therefore, these provisios trasced the arrow scope of the procedural-rule exceptio. 2. Eve f detifyig Procedural Rules Requires Determiig f A Rule s “Not Substative” Nature, The Challeged Provisios Are Substative Ad, Thus, Notice-Ad-Commet Rulemakig Was Required Despite the fact that the text of the APA appears to require courts to determie whether a agecy rule is procedural ad therefore exempt from otice-ad-commet rulemakig, the D.C. Circuit has, at times, suggested that i order to evaluate properly whether or ot the APA requires otice-ad-commet rulemakig, courts must ask whether the rule at issue is ot substative. See, Bowe, 34 F.2d at 104 (assertig that the readig “that seems most cosoat with Cogress’ i adoptig the APA is to costrue [the procedural-rule exceptio] as a attempt to preserve agecy flexibility i dealig with limited situatios where substative rights are ot at stake”). the discussio that follows, this Court cosiders whether the challeged parts of the 2019 Electio Rule are, or are ot, substative rules as the D.C. Circuit has defied *93 them; it mirrors much of what has already bee said, because, ufortuately for the NLRB, eve uder that framig of the relevat legal stadards, the challeged provisios of the 2019 Electio Rule are plaily substative i ature, such that otice-ad-commet rulemakig should have bee implemeted. 23 —a oft-cited case cocerig the distictio betwee substative ad procedural rules—the D.C. Circuit defies substative rules as those that “effectuate statutory [,]” ad emphasizes that, “[i] so doig, they grat rights, impose obligatios, [ ] produce other sigificat effects o private iterests[,] arrowly costrict the discretio of agecy officials by largely determiig the issue addressed[,]” or otherwise “have substative legal effect.” 64 F.2d at 701–02. other words, “where the agecy actio treches o substatial private rights ad iterests[,]” at 70, or where the agecy actio “coclusively bid[s] the agecy, the court, or affected private parties[,]” or where the agecy is chagig the applicable “substative stadards[,]” Glickma, 9 F.3d at 2, the exceptio for procedural rules caot be applied to relieve the agecy of its otice-ad-commet rulemakig obligatios. decidig whether or ot a claimed procedural rule is actually substative, the D.C. Circuit has “examie[d] how the rule affects ot oly the rights of aggrieved parties, but their iterests as well.” Chamber of 1 F.3d at The D.C. Circuit has also at times udertake to idetify a rule as substative by seekig to determie whether or ot the rule has “the force of law.” Cf. Chrysler 441 U.S. at 30, 99 S.Ct. 170 (explaiig that a agecy prooucemet that has “the force of law” is oe that is “bidig o the courts uless [it is] arbitrary or ot promulgated pursuat to prescribed procedures”). A “force of law” fidig “will ot ecessarily be cotrollig,” but “whether a rule has the force of law ofte will bear upo its proper classificatio as substative or procedural.” Chamber of 1 F.3d at10 Applyig this alterative framework to the provisios of the 2019 Electio Rule that the AFL-CO is challegig o otice-ad-commet grouds, this Court cocludes that the rules at issue are certaily more substative tha procedural, because they plaily impose obligatios, alter substative rights, ad have substative effects o private iterests. See 64 F.2d at 701–02; see also EPC, 6 F.3d at –6 (explaiig that “the distictio betwee substative ad procedural rules is oe of degree” ). For example, as the Court previously explaied, the provisio that requires Regioal Directors to declie to certify the electio results util ay request for review has bee decided by the Board, see 4 Fed. Reg.4, delays employees’ procuremet of sigificat statutory rights that deped o the NLRB's certificatio, see, 29 U.S.C. 1(b)(7); see also EPC, 6 F.3d (suggestig that, where a policy chage “substatively affects the public to a degree sufficiet to implicate the policy iterests aimatig otice-ad-commet rulemakig[,]” the ew rule qualifies as “substative”). While perhaps *94 less directly impactful, the impositio of restrictios regardig whom the employees ca choose as their electio observer, see 4 Fed. Reg.7, ot oly alters the employees right to choose their ow observer, but it also plaily appears to have the force of law, because it “forecloses alterate courses of actio” ad “coclusively bids the affected private parties[,]” 64 F.2d at 702. The other challeged provisios of the 2019 Electio Rule—i.e., the icrease i the umber of challeges that ca be raised ad must be resolved before the electio, see 4 Fed. Reg.9; the madatory delay of the electio date, see9; ad the extetio of time for releasig the eligible voters’ list, see1—may, or may ot, have a substatial impact o a particular uioizatio effort (oe could imagie that the degree of impact each of these provisios has might vary widely, depedig o the circumstaces preseted); however, each of these rules “grat[s] rights” ad “impose[s] obligatios[,]” ad could coceivably produce “sigificat effects o private iterests[,]” 64 F.2d at 701–02. Thus, each of those provisios, too, qualify as substative for the purpose of the APA's otice-ad-commet prescriptios. this regard, ad i coclusio, this Court has foud it helpful to cosider the relatively recet prooucemets of the D.C. Circuit i two cases i which the court of appeals foud that agecies had sidestepped their duties to udertake otice-ad-commet rulemakig with respect to substative rules, ad had thus committed a APA violatio. Electroic Privacy formatio Ceter v. Departmet of Homelad Security, the D.C. Circuit reviewed a Trasportatio Security Admiistratio (“TSA”) decisio to scree airlie passegers usig advaced imagig techology rather tha magetometers, which the agecy itself described as a chage i its ow procedures to process passegers through the checkpoit. See 6 F.3d at 2–3, The D.C. Circuit oted that the TSA's view was a “overly abstract accout of the chage i procedure at the checkpoit[,] elid[ig] the privacy iterests at the heart of the petitioers’ cocer[,]” because the chage “substatively affects the public to a degree sufficiet to implicate the policy iterests aimatig otice-ad-commet rulemakig[,]” Similarly, i the D.C. Circuit cosidered two Departmet of guidace letters cocerig applicatios for temporary work visas for immigrats employed i the herdig idustry. 74 F.3d at 1003. The circuit foud that, if “stated at a high eough level of geerality,” those letters might seem procedural—ideed, they set forth the agecy's eforcemet pla for determiig employer compliace with the applicable immigratio laws, ad described how employers seekig a certificatio that the requiremets to petitio for such work visas were met should preset themselves to the agecy—“[b]ut a more practical accout of the rules makes it clear the [letters] create substative requiremets by, iter alia, settig the miimum wage a employer must offer America workers before it ca obtai [the work visa] certificatio” ad by “set[tig] the bar for what employers must do to obtai approval.” at 10. So it is here. The NLRB apparetly coceives of its 2019 Electio Rule at a level of abstractio that qualifies it as a “procedural” rule isofar as it pertais the steps that must be followed to coduct a represetatio electio, ad the agecy argues that the rule is ot substative isofar as it does ot bar, or otherwise substatially impede, the coduct of that electio. (See Def.’s Mot. for Summ. J.) But oe of the challeged provisios *9 is actually addressed to “iteral house-keepig measures orgaizig agecy activities[,]” 64 F.2d at 702, or do these provisios merely set “timetable[s] for assertig substative rights,” Lamoille 711 F.2d at 32, or “alter the maer i which the parties preset themselves or their viewpoits to the agecy[,]” Nat'l Miig Ass', 7 F.3d at 20. stead, the challeged provisios carry may of the idicia of substative rules—i.e., they grat rights ad impose obligatios; they produce “sigificat effects o private iterests”; ad they “foreclose alterate courses of actio” or “coclusively bid the affected private parties.” 64 F.2d at 701–02, 704. Therefore, this Court fids that the NLRB's promulgatio of these particular rules without egagig i otice-ad-commet rulemakig violated the APA C. The Court Will Vacate The Challeged Provisios Of The 2019 Electio Rule Ad Remad This Matter To The Board Fially, the Court will briefly address ext steps, icludig the appropriate scope of the remedy, give its coclusio that some of the 2019 Electio Rule's provisios have bee ulawfully promulgated. The AFL-CO asserted i its briefig ad durig the motios hearig that, if the Court cocludes that the provisios of the 2019 Electio Rule that are challeged o otice-ad-commet grouds have to be set aside as ulawful, the the Court should ed its aalysis there ad ot proceed to cosider the other legal claims i the complait. (See Pl.’s Mot. for Summ. J. at 4 (“f the Court agrees with Plaitiff's primary claim that the NLRB promulgated the 2019 electio rule i violatio of the APA's otice-ad-commet requiremet, the Court may grat summary judgmet ad remad the rule to the Board without reachig Plaitiff's alterative grouds for ivalidatig the rule.”); see also Hr'g Tr. at 3–39.) Notably, the AFL-CO maitais that the etire 2019 Electio Rule should be vacated ad set back to the agecy if based o a fidig that some of the rule provisios were improperly adopted because, accordig to the AFL-CO, “the [challeged provisios of the 2019 Electio Rule] are ot discrete ad it would be illogical to adopt some reforms without regard to whether others are adopted.” (Pl.’s Mot. for Summ. J. at) The NLRB strogly objects to the AFL-CO's severability argumet (see Def.’s Mot. for Summ. J. at 0–); i this regard, the Board poits to the text of 2019 Electio Rule ( at 0–1), which specifically states that the NLRB “would adopt each of these amedmets idividually, or i ay combiatio, regardless of whether ay of the other amedmets were made[,]” ad that, “[f]or this reaso, the amedmets are severable[,]” 4 Fed. Reg.2 This Court is of the view that the stadard severability aalysis is ot warrated i a case such as this oe—i.e., where the plaitiff specifically challeges oly certai parts of a regulatio o the grouds that the defedat has violated the APA's procedural requiremets—because the APA plaily authorizes this Court to vacate ulawful parts of a rule, ad the agecy itself will have ample opportuity to decide how to treat the remaider of its policy prescriptio whe the Court remads the matter back for recosideratio i light of the Court's opiio. To the extet that this Court must evertheless cosider severability i the istat circumstaces as a matter of law, it fids, i the alterative, that the provisios of the 2019 Electio Rule that the AFL-CO has challeged o otice-ad-commet grouds ca, ad should be, severed from the rest of the rule. * 1. Severability Aalysis s Neither Warrated Nor Clearly Authorized Uder The Circumstaces Preseted This Case the ordiary case, it would make emiet sese to iquire whether or ot the whole of a cogressioal eactmet that carries the force of law must be ivalidated if oe or more of its provisios are struck dow by the courts, especially if the law itself is silet as to the effect of such partial ivalidatio. Cf. Alaska Airlies, c. v. Brock, 4 U.S. 67, 64, 107 S.Ct. 76, (197) (reasoig that “the ivalid part [of a statute] may be dropped” ad the rest of the law allowed to take effect “if what is left is fully operative as a law” “[u]less it is evidet that the Legislature would ot have eacted those [remaiig] provisios[,] which are withi its power, idepedetly of that which is ot” (quotatio marks ad citatio omitted)). deed, i some circumstaces, it might eve be ecessary to address whether the remaiig parts of a partially ivalidate law ca be allowed to stad i order to avoid further violatios of the rights of the regulated parties. See Michael D. Shumsky, Severability, severability, ad the Rule of Law, 41 Harv. J. o Legis. 7, 26 (observig that “the [severability] stadard seems to recogize somethig costitutioally troublig about a residual statutory scheme that caot fuctio” ). this Court's view, however, the coceptual questio of the legal status of a partly ivalidated law seldom arises i the cotext of a challege to a agecy's rulemakig, for the APA itself provides the aswer to what happes after a regulatio is foud to be ulawful: courts “hold ulawful ad set aside [such] agecy actio[,]” U.S.C. 706(2), ad the “agecy actio” that the court sets aside may be either “the whole or apart of a agecy rule [or] order[,]” 1(13) Moreover, oce a ulawful agecy rule is set aside i whole or i part, the court remads the matter to the agecy so that the agecy ca recosider the rule i light of the court's rulig. See, Evtl. Def. Fud v. Reilly, 909 F.2d 97, 106 (explaiig that, “should a district court o APA review fid agecy actio defective, either substatively or procedurally, it ordiarily must remad to the agecy for further proceedigs”). 2 This meas that the APA clearly cotemplates a circumstace i which a court will fid that part of a agecy rule is ulawful, ad othig i the text of the APA suggests that a court has to proceed to ivalidate the etire rule o the basis of the ulawfuless of ay of its parts; ideed, the court's “scope of review” uder the APA is plaily limited to the “agecy actio” that is challeged as, ad foud to be, i violatio of the statute. U.S.C. 706(2). Bidig precedets have also clearly established that the agecy decides what happes ext whe all or part of a challeged actio has bee ivalidated. See Cot'l Air Lies, c. v. Dep't of Trasp., F.2d 44, (D.C. Cir. 19) (“[]f oe thig should be clear, it is that courts are ot to egage (at least i the area of judicial review of agecy actio) i substative policymakig.”). Thus, for a court to proceed to speculate as to how the agecy might have respoded to the court's partial vacatur, if it had kow that a certai part of its rule would be vacated, seems both uecessary ad imprudet. What is more, because a agecy i the NLRB's positio gets to decide what happes ext i ay evet, it is ulikely this Court's effort to egage i the sometimes tricky exercise of aalyzig severability will make ay practical differece. To uderstad why this is so, imagie that the Court determies that the 2019 Electio *97 Rule is severable ad vacates oly the challeged provisios before remadig the matter back to the agecy. Upo receipt, the agecy will still have to determie whether or ot, as a policy matter, it iteds to eforce the parts of the rule that have ot bee ivalidated, ad, presumably, the agecy is free to make that o-justiciable determiatio either immediately or after curig the otice-ad-commet defect (or appealig this Court's order).11 The same result appears to follow if the Court were to fid that the remaiig parts of the rule are so itertwied with the ulawful provisios that the etire rule must be vacated. Nothig prevets the agecy from issuig a ew rule cocerig the subject of the vacated regulatio, ad presumably that ew rule could reiterate the policies that were ot previously foud to be violative of the APA i ad of themselves, ad it could do so immediately, or wait to cure the established otice-ad commet defect (or appeal the district court's rulig).12 26 Thus, it is hard for this Court to appreciate why there is ay eed to speculate as to what the NLRB would have wated i terms of the remaider of the 2019 Electio Rule, whe the NLRB will decide how to move forward regardless. Cf. S.E.C. v. Cheery 1–97, 91 L.Ed. 199 (19) (“t will ot do for a court to be compelled to guess at the theory uderlyig the agecy's actio.”). Ad simply remadig to the agecy for recosideratio i light of the Court's opiio (without commetig o what should happe with respect to the remaider of the rule) ot oly faithfully recogizes the district court's limited authority uder both the APA ad the Costitutio, but it also uderscores the fact that agecies, ot courts, determie the logic of their ow duly eacted policies, so log as their rulemakig is otherwise cosistet with the law. This Court also fails to discer ay prejudice to plaitiffs, for o-severability is ot the oly meas of securig vacatur of a etire agecy rule, ad plaitiffs are always free to press a idepedet basis for settig aside the remaider of the rule ad to ask the court *9 to do so despite ay fidig that a part of the rule is ulawful.13 The bottom lie is this: at this poit, the AFL-CO has oly successfully established that certai parts of the 2019 Electio Rule should be struck dow as ulawful o otice-ad-commet grouds, ad, ultimately, it will be up to the agecy to decide whether ad to what extet “the remaider of the regulatio could fuctio sesibly without the stricke provisio.” ).) Thus, the most prudet course of actio is for the Court to follow the remedial path that hews most closely to the well-accepted ad limited role of the federal courts with respect to actios of regulatory authorities, by merely holdig ulawful ad settig aside those parts of the rule that caot be maitaied due to the established APA violatio. 2. Ay Evet The Parts Of The 2019 Electio Rule That The AFL-CO Has Successfully Challeged O Notice-Ad-Commet Grouds Are Severable 27 That all said, to the extet that bidig precedet suggests that a stadard severability aalysis must be udertake i the cotext of APA challeges with respect to partially ivalidated rules, see, Carlso v. Postal Regulatory Comm', 93 F.3d 337, 1 (askig “whether” a challeged provisio could be severed from the remaider of a agecy rule, based o a fidig that (1) “the agecy would have adopted the same dispositio regardig the uchalleged portio of the regulatio if the challeged portio were subtracted” ad (2) the parts of the regulatio that remai ca “fuctio sesibly without the stricke provisio” (iteral quotatio marks, citatios, ad alteratio omitted)), this Court will merely add that it has o doubt that the challeged provisios of the 2019 Electio Rule are severable, for the followig reasos. First, this Court is “without ay substatial doubt that the agecy would have adopted the severed portio o its ow.” ACA t'l v. F.C.C., F.3d 67, 70 (D.C. Cir. 201) (quotatio marks ad citatio omitted). As repeatedly refereced above, the 2019 Electio Rule cotais a express severability provisio, see 4 Fed. Reg.2, which plaily demostrates the agecy's actual itet regardig partial ivalidatio. Cf. Alaska Airlies, 4 U.S. 6, 107 S.Ct. 76 (otig that a severability clause creates a rebuttable “presumptio that Cogress did ot ited the validity of the statute i questio to deped o the validity of the costitutioally offesive provisio.”). See also Am. Petroleum st. v. E.P.A., 62 F.3d 0, (explaiig that the court could ot fid that two provisios were “wholly idepedet” because “[a]t o poit i the does EPA propose keepig the [oe provisio] ad repealig [the other]”). Furthermore, eve if the NLRB's severability rule statemet is “cotradicted by other statemets i the preamble[,]” as the AFL-CO claims (Pl.’s Mot. for Summ. J. at *99 ), the AFL-CO's memorada do ot explai the coflict, ad regardless, the Court cocludes that the NLRB has made it umistakably clear that the Board made a itetioal determiatio that early all of the rule's provisios, icludig the parts that the AFL-CO challeges as otice-ad-commet violatios, should be treated as severable. See 4 Fed. Reg.340 (expressly assertig that certai other provisios of the 2019 Electio Rule are ot to be deemed severable); see also MD/DC/, 236 F.3d (explaiig that, where the agecy “clearly iteds that the regulatio be treated as severable, to the extet possible, for it said so i adoptig the regulatio[,]” the oly “questio for the court, the, is whether the balace of the rule ca fuctio idepedetly if shor of its [ulawful] aspects”). 2 Secod, ad for what it's worth, the remaiig provisios of 2019 Electio Rule—i.e., those that this Court has ot yet addressed, much less determied to be ulawful—ca most likely “fuctio sesibly without the stricke provisio[s].” Soreso Commc's, c. v. F.C.C., 7 F.3d 702, Uder stadard severability aalysis, a “etire rule must be vacated” oly if severig the ulawful aspects “would severely distort the [agecy's] program ad produce a rule strikigly differet from ay the [agecy] has ever cosidered or promulgated i the legthy course of these proceedigs.” MD/DC/, Ad this Court perceives little risk of such severe distortio here. While some of the residual does relate back to the ulawfully promulgated provisios that expad the issues that must be litigated at the pre-electio hearig, icludig the extesio of the delay betwee the aoucemet of a pre-electio hearig ad the actual hearig (see Pl.’s Summ. J. Opp' at 16), the Court is persuaded that the remaiig provisios ca still “fuctio sesibly without the [uderlyig ad ow] stricke provisio[,]” Soreso, 7 F.3d at especially give that the Board's overarchig purpose for may of these rule chages is to “permit parties to more easily maage the obligatios imposed o them by the filig of a petitio ad to better prepare for the hearig, thus promotig orderly litigatio[,]” 4 Fed. Reg.2, ad both the stricke provisios ad the residual parts reflect various meas of achievig the same goals. 29 30 sum, it is clear beyod cavil that, whe remedyig a APA violatio, courts should ordiarily “limit the solutio to the problem[.]” Nat. Res. Def. Coucil v. 9 F.3d 6, 2 ). Here, the AFL-CO has chose to press its otice-ad-commet challege with respect to oly certai provisios of the 2019 Electio Rule, ad it has also requested that the Court ot proceed to adjudicate its other claims with respect the remaider of the rule. (See Pl.’s Mot. for Summ. J. at 4; Hr'g Tr. at 3–39.) Thus, this Court has oly assessed the alleged procedural propriety of the five rule provisios that the AFL-CO has successfully challeged as a violatio of the APA's otice-ad-commet requiremet, ad it is oly those provisios that this Court is plaily authorized to hold ulawful ad set aside. Cosistet with this Court's view that courts should ot substitute their ow judgmet about the logic of a otherwise lawful policy prescriptio for that of the agecy, the Court will ot vacate the etire 2019 Electio Rule; it opts istead to remad this matter back to the Board for cosideratio of how to proceed with respect to both the ivalidated ad as-yet uchalleged parts of rule i light of this Court's rulig. *100 V. CONCLUSON Sectio (f) of the NLRA is a direct-review provisio that plaily govers oly NLRB actios that pertai to ufair labor practice disputes; therefore, this Court retais subject-matter jurisdictio to etertai the challeges to the NLRB's 2019 Electio Rule that the AFL-CO has brought uder the APA. Moreover, havig exercised its jurisdictio to address whether or ot certai portios of the 2019 Electio Rule violate the APA because they required otice-ad-commet rulemakig, this Court has cocluded that the challeged portios of the 2019 Electio Rule are ot procedural rules that are exempt from that rulemakig requiremet, ad thus those provisios must be held ulawful ad set aside. At the AFL-CO's request, the Court has ot proceeded further to cosider the AFL-CO's remaiig substative APA challeges. stead, as set forth i the Order dated May 30, the Court has NED both the Board's motio to trasfer the case to the D.C. Circuit ad its motio for summary judgmet, ad has GRANTED the AFL-CO's motio for summary judgmet with respect to Cout Oe of the Complait. The provisios of the rule that are challeged i Cout Oe have ow bee deemed ivalid, ad this matter is remaded to the Board for cosideratio i light of this Court's Memoradum Opiio ad Order.

Amos v. Saul

Plaintiff Jerome Amos applied to the Commissioner of Social Security, Defendant Andrew Saul (“Commissioner” or “Defendant”), for disability insurance benefits in 2013, claiming that he was disabled due to post-traumatic stress disorder (“PTSD”), migraine headaches, bilateral hearing loss, sleep apnea, and upper and lower back pain. (See Admin. R., ECF No. 4-3, at 2.)1 In May of 2016, an Administrative Law Judge (“ALJ”) held a hearing on Amos's application (see Admin. R., ECF No. 4-2, at 41), and determined that Amos was not disabled under the Social Security Act (see id. at 35). Amos requested review by the Appeals Council (see Admin. R., ECF No. 4-4, at 73–74), and the Appeals Council denied his request, making the ALJ's decision the agency's final decision (see Admin. R., ECF No. 4-2, at 2). Amos filed the instant lawsuit on August 22, 2017, requesting that this Court reverse the ALJ's denial decision and award Amos disability insurance benefits, or, in the alternative, remand the case to the Commissioner for a new administrative hearing. (See Compl., ECF No. 1, at 2.) On August 25, 2017, this Court referred this matter to a magistrate judge for full case management. (See Min. Order of Aug. 25, 2017.) On July 13, 2018, Amos filed a motion asking the Court either to reverse the Commissioner's decision or to remand this matter back to the agency for a new hearing, arguing that the ALJ's decision is not supported by substantial evidence and that the decision is erroneous as a matter of law. (See Pl.'s Mem. in Support of Pl.'s Mot. for J. of Reversal, ECF No. 7-1, at 1.) Subsequently, on August 27, 2018, Defendant filed a motion for judgment of affirmance of the ALJ's decision, arguing that “the ALJ applied the correct law and relied on substantial evidence to find that Plaintiff did not meet the [Social Security] Act's definition of disability when the record shows that Plaintiff traveled extensively and maintained independence.” (Def.'s Mem. in Supp. of Mot. for J. of Affirmance & in Opp'n to Pl.'s Mot. for J. of Reversal, ECF No. 8, at 4.) Before this Court at present is the Report and Recommendation that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Amos's motion for reversal and Defendant's motion for affirmance. (See R. & R., ECF No. 14.)2 The Report and Recommendation reflects Magistrate Judge Harvey's opinion that Amos's motion for reversal should be granted; Defendant's motion for affirmance should be denied; and the case should be remanded to the Commissioner for additional proceedings. (See id. at 24.) Specifically, Magistrate Judge Harvey finds that the ALJ's findings regarding Amos's residual functional capacity were not supported by substantial evidence, because the ALJ failed to address the Department of Veterans Affairs' Rating Decision (“VA Rating Decision”) when assessing Amos's physical and mental ability to perform work. (See id. at 15.) Magistrate Judge Harvey further finds that the VA Rating Decision constitutes material evidence regarding Plaintiff's PTSD (see id.), and that Social Security Ruling 06-03p required the ALJ to afford the VA Rating Decision some weight (see id. at 16; see also id. & n.6 (explaining that Social Security Ruling 06-03p governs Amos's claim, because it was filed before March 27, 2017)). Finally, Magistrate Judge Harvey determines that there is no merit to Amos's contentions that the ALJ either improperly assessed his migraine headaches or failed to consider properly Amos's wife's testimony. (See id. at 15.) *2 In addition to articulating these conclusions, Magistrate Judge Harvey's Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (See id. at 24.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (See id. at 24–25.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. See LCvR 72.3(b). The due date for objections has passed, and neither party has filed objections.

Jackson

majority

Plaintiff Jerome Amos applied to the Commissioner of Social Security, Defendant Andrew Saul (“Commissioner” or “Defendant”), for disability insurance benefits in 2013, claiming that he was disabled due to post-traumatic stress disorder (“PTSD”), migraine headaches, bilateral hearing loss, sleep apnea, and upper and lower back pain. (See Admin. R., ECF No. 4-3, at 2.)1 In May of 2016, an Administrative Law Judge (“ALJ”) held a hearing on Amos's application (see Admin. R., ECF No. 4-2, at 41), and determined that Amos was not disabled under the Social Security Act (see ). Amos requested review by the Appeals Council (see Admin. R., ECF No. 4-4, at 73–74), and the Appeals Council denied his request, making the ALJ's decision the agency's final decision (see Admin. R., ECF No. 4-2, at 2). Amos filed the instant lawsuit on August 22, 2017, requesting that this Court reverse the ALJ's denial decision and award Amos disability insurance benefits, or, in the alternative, remand the case to the Commissioner for a new administrative hearing. (See Compl., ECF No. 1, at 2.) On August 25, 2017, this Court referred this matter to a magistrate judge for full case management. (See Min. Order of Aug. 25, 2017.) On July 13, 2018, Amos filed a motion asking the Court either to reverse the Commissioner's decision or to remand this matter back to the agency for a new hearing, arguing that the ALJ's decision is not supported by substantial evidence and that the decision is erroneous as a matter of law. (See Pl.'s Mem. in Support of Pl.'s Mot. for J. of Reversal, ECF No. 7-1, at 1.) Subsequently, on August 27, 2018, Defendant filed a motion for judgment of affirmance of the ALJ's decision, arguing that “the ALJ applied the correct law and relied on substantial evidence to find that Plaintiff did not meet the [Social Security] Act's definition of disability when the record shows that Plaintiff traveled extensively and maintained independence.” (Def.'s Mem. in Supp. of Mot. for J. of Affirmance & in Opp'n to Pl.'s Mot. for J. of Reversal, ECF No. 8, at 4.) Before this Court at present is the Report and Recommendation that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Amos's motion for reversal and Defendant's motion for affirmance. (See R. & R., ECF No. 14.)2 The Report and Recommendation reflects Magistrate Judge Harvey's opinion that Amos's motion for reversal should be granted; Defendant's motion for affirmance should be denied; and the case should be remanded to the Commissioner for additional proceedings. (See) Specifically, Magistrate Judge Harvey finds that the ALJ's findings regarding Amos's residual functional capacity were not supported by substantial evidence, because the ALJ failed to address the Department of Veterans Affairs' Rating Decision (“VA Rating Decision”) when assessing Amos's physical and mental ability to perform work. (See) Magistrate Judge Harvey further finds that the VA Rating Decision constitutes material evidence regarding Plaintiff's PTSD (see ), and that Social Security Ruling 06-03p required the ALJ to afford the VA Rating Decision some weight (see ; see also ). Finally, Magistrate Judge Harvey determines that there is no merit to Amos's contentions that the ALJ either improperly assessed his migraine headaches or failed to consider properly Amos's wife's testimony. (See) *2 In addition to articulating these conclusions, Magistrate Judge Harvey's Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (See) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (See –25.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. See LCvR 72.3(b). The due date for objections has passed, and neither party has filed objections.

Baisden v. Barr

On January 31, 2012, Plaintiff Lowell Baisden was sentenced to a 37-month term of imprisonment after pleading guilty to willfully attempting to evade the federal income tax that his two co-defendants owed. See Judgment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 283 (D. Neb. Jan. 31, 2012). Thus, Baisden has been convicted of “a crime punishable by imprisonment for a term exceeding one year[,]” and, as a result, he is now prohibited from possessing “any firearm or ammunition” under federal law. 18 U.S.C. § 922(g)(1); see also id. § 922(d)(1) (making it unlawful “to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... has been convicted ... of[ ] a crime punishable by imprisonment for a term exceeding one year”). On October 3, 2019, Baisden filed the instant civil action against Defendants William P. Barr, in his official capacity as Attorney General of the United States, and Regina Lombardo, in her official capacity as Acting Deputy Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) (collectively, “Defendants”), to seek “declaratory and injunctive relief” (see Compl., ECF No. 1, ¶ 1) that allows him to possess a firearm pursuant to the statutory exemption for “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices[,]” 18 U.S.C. § 921(a)(20)(A). Before this Court at present is the government's motion to dismiss Baisden's complaint (see Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 6), which Baisden opposes (see Pl.’s Opp'n to Def.’s Mot. (“Pl.’s Opp'n”), ECF No. 8). In the motion to dismiss, the government argues that Baisden has failed to allege facts that demonstrate that he has Article III standing (see Def.’s Mot. at 9–13), and that, in any event, Baisden has not stated a claim on which relief can be granted, because federal tax evasion does not fall within the statutory exception to the federal prohibition on possession of firearms by felons (see id. 13–20).1 For the reasons explained below, this Court agrees with the government that, given the factual allegations contained in Baisden's complaint, Baisden has yet to allege any cognizable, non-speculative injury that is capable of supporting Article III standing. Consequently, Defendants’ motion to dismiss will be GRANTED, and Baisden will be provided with an opportunity to amend his complaint and attempt to cure this defect, such that the Court may exercise subject-matter jurisdiction over his claims consistent with its Article III authority. I. BACKGROUND2 *2 In 2009, Baisden was a resident of Bakersfield, California, and was a licensed certified public accountant (“CPA”) in California. See Indictment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶ 3 (D. Neb. Mar. 20, 2009). In this capacity, Baisden provided accounting, tax preparation, and consulting services to clients in California, Nebraska, and other states. See id. In 2004, in conjunction with preparing tax returns for a married couple, Baisden “submitted false tax returns in an effort to evade the income tax owed by the couple to the United States.” United States v. Baisden, 713 F.3d 450, 452 (8th Cir. 2013). On March 20, 2009, a grand jury indicted Baisden on five criminal counts, including willfully attempting to evade and defeat the income tax due for the married couple in the amount of $236,217, in violation of 26 U.S.C. § 7201, and 18 U.S.C. § 2. See Indictment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶¶ 30–31 (D. Neb. Mar. 20, 2009). Baisden pleaded guilty to this charge on January 31, 2012, in exchange for the government dismissing the remaining counts in the indictment, see Plea Agreement, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 223, at 1 (D. Neb. Oct. 3, 2011), and the district court sentenced him to a term of 37 months of imprisonment, see Judgment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 283, at 1 (D. Neb. Jan. 31, 2012). Baisden served his term of incarceration at Taft Correctional Institute in California, and was released on July 8, 2014. (See Compl. ¶ 31.) Shortly thereafter, jurisdiction over his criminal case was transferred to the Eastern District of California, see Transfer of Jurisdiction, United States v. Baisden, No. 1:15-cr-3, ECF No. 2 (E.D. Cal. Jan. 8, 2015), and the associated period of supervised release was terminated on June 16, 2016 (see Compl. ¶ 35). Baisden filed the instant lawsuit, pro se, against the Attorney General and ATF on October 3, 2019. (See Compl. at 1.) The complaint includes a long and detailed recitation of the civil and criminal tax-related actions that the United States brought against Baisden and his co-defendants between 2002 and 2016, which are not relevant for purposes of the instant dispute. (See generally id. ¶¶ 4–38, 48–67.) The complaint also discusses, at times verbatim, the standing analysis in Reyes v. Sessions, 342 F. Supp. 3d 141 (D.D.C. 2018)—a case that similarly involved a convicted felon's challenge to the federal ban on firearms possession. (See Compl. ¶¶ 39–44.) In particular, Baisden's complaint recounts that the court in Reyes held that the plaintiff had alleged “the injury of not being able to purchase or obtain firearms” (id. ¶ 42), and that he had “pleaded sufficient facts to establish [that] injury in fact” (id. ¶ 43)—findings that Baisden says apply to his case as well (see id. ¶ 44 (“Baisden possesses this same standing.”)). Baisden's complaint also states that he is seeking “declaratory and injunctive relief in regard to the complete denial, under Section 922 of Title 18 of United States Code, of [his] Second Amendment right to keep and bear arms solely and exclusively as a result of his 2011 conviction for aiding and abetting federal income tax evasion offense.” (Id. ¶ 1.) On January 17, 2020, Defendants filed a motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. (See Defs.’ Mot., ECF No. 6; see also Reply Mem. in Supp. of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 9.) Specifically, Defendants argue that Baisden lacks Article III standing, for two reasons: first, because he has not alleged any “particularized and non-conjectural injury” such as any plans to own a firearm (see Defs.’ Reply at 10); and, second, because any claimed injury by operation of the challenged federal laws is neither fairly traceable to those laws nor redressable by a favorable ruling in this case, given that “an independent statute in California, Plaintiff's state of residence, specifically bars him from possessing a firearm due to his felony conviction” (Defs.’ Mot. at 3). Additionally, the government argues that, “even if Plaintiff had standing to challenge the application of federal law to him, his claim fails as a matter of law[,]” because “the primary purpose and the elements of the federal tax evasion statute demonstrate[ ] that it is designed primarily to deter and punish loss of revenues to the United States Treasury, rather than to address competitive harm or economic harm to consumers[,]” and, therefore, Baisden's “conviction for tax evasion does not fall within the scope of the statutory business practices exception.” (Id. at 3–4.) *3 Baisden opposes the government's motion. His response brief contends that he has Article III standing because he “is living with his relatives in both California and Ohio” (Pl.’s Opp'n at 5), and, “last year, [he] realized that he live[d] in Ohio long enough to qualify under state law to exercise his gun rights” (id. at 6), which means that, “but for his 2011 Federal conviction, Baisden is being currently prevented from exercising his constitutionally-protected gun rights in Ohio where Baisden can use guns today” (id. at 7). In support of constitutional standing, Baisden also argues that he would be permitted to own a firearm under the laws of at least twenty other states, and that he “will have gun rights in the future” in six additional states. (Id. at 8.) Moreover, on the merits, Baisden takes the position that his crime of conviction—aiding and abetting tax evasion—is designed primarily to address economic harm to consumers, and thus qualifies under the business practices exception. (See id. at 9–12.) The government filed its reply brief on February 10, 2020 (see Defs.’ Reply, ECF No. 9), and Baisden filed an opposed motion for leave to file a surreply on February 20, 2020 (see Pl.’s Mot. for Leave to File a Surreply (“Pl.’s Surreply”), ECF No. 10; see also Defs.’ Mem. in Opp'n to Pl.’s Surreply, ECF No. 11; Pl.’s Reply to Pl.’s Surreply, ECF No. 12).3 These motions are now ripe for decision. II. LEGAL STANDARDS A. Rule 12(b)(1) Motions To Dismiss For Lack Of Jurisdiction The doctrines of standing, mootness, and ripeness are “[t]hree inter-related” doctrines of justiciability that determine the “constitutional boundaries” of a court's jurisdiction. Worth v. Jackson, 451 F.3d 854, 855–57 (D.C. Cir. 2006). “Under Rule 12(b)(1), it is to be presumed that a cause lies outside the federal courts’ limited jurisdiction, unless the plaintiff establishes by a preponderance of the evidence that the Court possesses jurisdiction,” Muhammad v. F.D.I.C., 751 F. Supp. 2d 114, 118 (D.D.C. 2010) (internal quotation marks, citations, and alteration omitted), and thus Rule 12(b)(1) imposes on the court an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority[,]” Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005) (internal quotation marks and citations omitted). When ruling on a Rule 12(b)(1) motion, the court must “treat the complaint's factual allegations as true” and must afford the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Delta Air Lines, Inc. v. Export–Import Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and citation omitted). However, those factual allegations receive “closer scrutiny” than they would in the Rule 12(b)(6) context, Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (internal quotation marks and citation omitted), and the Court need not “accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations[,]” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001). Moreover, unlike a Rule 12(b)(6) motion, a court may look to documents outside of the complaint in order to evaluate whether or not it has jurisdiction to entertain a claim. See Jerome Stevens Pharm., Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir. 2005). B. Article III Standing To Sue The doctrine of Article III standing addresses whether the plaintiff has demonstrated “such a personal stake in the outcome of the controversy as to warrant [the] invocation of federal-court jurisdiction.” New England Anti-Vivisection Soc'y v. U.S. Fish & Wildlife Serv., 208 F. Supp. 3d 142, 155 (D.D.C. 2016) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.” Renne v. Geary, 501 U.S. 312, 316 (1991) (internal quotation marks and citation omitted). And evaluating standing requires the court to assess whether a plaintiff has demonstrated the “irreducible constitutional minimum” necessary to implicate a federal court's subject-matter jurisdiction over a lawsuit, Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks and citation omitted), which consists of three elements: injury in fact, causation, and redressability, see Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012). These Article III requirements are “essential and unchanging[.]” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). *4 First, the plaintiff must have suffered an injury in fact—“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). “Allegations of possible future injury do not satisfy the requirements of Art. III[,]” for a “threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation marks and citation omitted). Second, the plaintiff must allege “a causal connection between the injury and the conduct complained of[,]” Lujan, 504 U.S. at 560; in other words, “the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court[,]” id. (internal quotation marks, citation, and alterations omitted). Notably, “the mere possibility that causation is present is not enough; the presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied.” Mideast Sys. & China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986). Third, the complaint must state facts that make it “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks and citation omitted). Indeed, “the indirectness of the injury ... may make it substantially more difficult ... to establish that, in fact, ... prospective relief will remove the harm.” Warth v. Seldin, 422 U.S. 490, 505 (1975). III. ANALYSIS In the instant case, the complaint recounts at length Baisden's so-called “tax mitigation work” over the course of many years (see, e.g., Compl. ¶¶ 4–38, 48–67), and its only allusion to any injury is one paragraph that “alleges that § 922(g)(1), which prohibits firearm possession by certain felons, and § 922(d)(1), which prohibits the sale and transfer of firearms to certain felons, together prevent [Baisden] from acquiring a firearm” (id. ¶ 40). The complaint also clarifies that Baisden is seeking “a declaration that Section 922(g)(1) and Section 922(d)(1) do not apply to bar him to acquire and possess a firearm[,] and an entry of an order permanently enjoining [the Attorney General] and ATF from enforcing Section 922(g)(1) and Section 922(d)(1) against him.” (Id. ¶ 47.) A sworn statement that Baisden has submitted further states that he “will use a gun for any lawful purpose as allowed in other states, when this Federal firearms disability is removed.” (Baisden Decl., ECF No. 8-1, ¶ 16.) Consequently, in the abstract, Baisden's inability to possess a firearm lawfully might qualify as a cognizable injury in fact under Article III. See, e.g., Medina v. Sessions, 279 F. Supp. 3d 281, 286–87 (D.D.C. 2017). But such a theoretical possibility is not a sufficient factual basis upon which to determine that Baisden has Article III standing to bring the claims at issue. This is because, a threshold matter, Baisden's complaint is completely silent with respect to any specific facts concerning whether he ever owned a firearm or possessed a permit, ever used a firearm or intended to use one, or ever wished or desired to possess one in the future. This deficiency is a fatal one, for purposes of Article III standing, because it is not enough merely to allege “an invasion of a legally protected interest which is [ ] concrete and particularized,” but that concrete injury must also be “actual or imminent, not conjectural or hypothetical[.]” Lujan, 504 U.S. at 560–61 (internal quotation marks and citations omitted). To be sure, the complaints filed by pro se plaintiffs, such as Baisden, are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), but the benefit afforded to a pro se litigant regarding construction of the complaint “is not ... a license to ignore the Federal Rules of Civil Procedure[,]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009). Thus, Baisden's complaint must contain allegations of fact that establish that he has an actual injury—as opposed to a purely hypothetical one—and his later filings, such as the sworn declaration that is attached to his brief in opposition to the government's motion to dismiss, cannot amend his complaint in this regard. See Mattiaccio v. DHA Grp., Inc., 908 F. Supp. 2d 136, 139 (D.D.C. 2012) (explaining that not even a pro se litigant can “amend his [c]omplaint by way of declaration or assertions in his pleadings”). *5 Notably, even if this Court were to infer from Baisden's sworn declaration that he has been injured due to an unspecified, generalized wish to possess a firearm in some state, including Ohio (see Baisden Decl. ¶ 16), “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.” Summers, 555 U.S. at 496 (internal citation omitted); see also Hassan v. United States, 441 F. App'x 10, 11 (2d Cir. 2011) (holding that a naturalized citizen who “alleges no specific steps toward, or concrete plans in furtherance of, a run for the presidency” had not alleged an injury in fact to challenge the requirement that U.S. Presidents be natural born citizens); Baz v. Dep't of Homeland Sec., No. 18-cv-01013, 2019 WL 5102827, at *5 (D.D.C. Oct. 11, 2019) (holding that a plaintiff who challenged his inclusion in a no-fly list failed to allege an injury in fact because he “never allege[d] that he was prevented from boarding a particular flight that would merely transit the United States” or that “he plans in the relatively near future to board a flight that would transit U.S. airspace”). Baisden does suggest that possessing a firearm subjects him to criminal liability under federal law. (See Comp. ¶ 40.) But in the absence of some factual allegation that indicates that he has a plan or a particular intention to possess a firearm, that legal bar does not constitute a cognizable injury in fact, and this is so even though a plaintiff need not “expose himself to liability before bringing suit to challenge the basis for the threat[.]” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). Indeed, “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (internal quotation marks and citation omitted). Still, there must be some plausible allegation of an intention to engage in the proscribed conduct and, in this respect, courts look to “whether the plaintiffs have articulated a concrete plan to violate the law in question[.]” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (internal quotation marks and citation omitted); see also Doe Run Res. Corp. v. E.P.A., 528 F. App'x 1, 2 (D.C. Cir. 2013) (holding that a plaintiff who had “no concrete plans” of engaging in a certain conduct, but merely alleged that he was “exploring ... opportunities” to do so, had not pleaded a non-speculative injury in fact under Article III). Here, unfortunately, Baisden's filings are silent with respect to his plans or intentions to possess a firearm, and as a result, he has failed to allege a cognizable injury in fact for purposes of Article III standing. The two cases upon which Baisden primarily relies to support his standing argument (see, e.g., Compl. ¶ 42–44 (discussing Reyes, 342 F. Supp. 3d at 145–46); Pl.’s Opp'n at 7 (discussing Medina, 279 F. Supp. 3d at 286–87)) do not compel a different conclusion. The plaintiff in Medina v. Sessions alleged that he “intend[ed] to purchase and possess firearms for sport and self-defense within his own home[,]” Complaint, Medina v. Sessions, No. 16-cv-1718, ECF No. 1, ¶ 5 (D.D.C. Aug. 24, 2016), and, even more specifically, that he had previously purchased land in Wyoming, possessed a Wyoming hunting license, and had hunted there using a replica of an antique firearm for many years, see id. ¶¶ 26–33. Similarly, in Reyes v. Sessions, the plaintiff alleged that he “desire[d] to purchase and possess firearms for defense of both himself and his family, and for hunting[.]” Complaint, Reyes v. Sessions, No. 17-cv-1643, ECF No. 1, ¶ 10 (D.D.C. Aug. 14, 2017). The complaint in the Reyes case also stated that, “in August 2017, [Reyes] discussed his desire to purchase a handgun with two different firearms merchants[,]” and that, “[u]pon disclosing that he had been convicted of a white collar federal felony, he was informed by both merchants that federal law prohibits the sale of a firearm to felons and that if he checked the box on the background check form indicating that he has been convicted of a felony, the sale would be cancelled[.]” Id. ¶ 32. The Reyes complaint further explained that the plaintiff thus had refrained from attempting to acquire a firearm “because, were he successful, he would be subject to arrest, prosecution, incarceration, and fine, at Defendants’ instigation and direction, for violating Section 922(g)(1).” Id. ¶ 30. See also Dearth v. Holder, 641 F.3d 499, 502 (D.C. Cir. 2011) (noting how the plaintiff in that case had “twice attempted to go through the ‘formal process’ of applying to purchase a firearm and each time failed because of the laws and regulations he now challenges”). *6 Again, in the instant case, Baisden's complaint lacks any allegations of fact that demonstrate that he has “concrete plans” to possess a firearm, Summers, 555 U.S. at 496, such that he can be deemed actually injured by the ban he seeks to challenge and/or by the government's potential application of that ban to him. Thus, the complaint in this case is plainly insufficient to survive the government's motion to dismiss for lack of subject-matter jurisdiction.

Jackson

majority

On January 31, 01, Plaintiff Lowell Baisden was sentenced to a 37-month term of imprisonment after pleading guilty to willfully attempting to evade the federal income tax that his two co-defendants owed. See Judgment, United No. 4:09-cr-03031-, ECF No. 83 Thus, Baisden has been convicted of “a crime punishable by imprisonment for a term exceeding one year[,]” and, as a result, he is now prohibited from possessing “any firearm or ammunition” under federal law. (g)(1); see also 9(d)(1) (making it unlawful “to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person has been convicted of[ ] a crime punishable by imprisonment for a term exceeding one year”). On October 3, Baisden filed the instant civil action against Defendants William P. Barr, in his official capacity as Attorney General of the United States, and Regina Lombardo, in her official capacity as Acting Deputy Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) (collectively, “Defendants”), to seek “declaratory and injunctive relief” (see Compl., ECF No. 1, ¶ 1) that allows him to possess a firearm pursuant to the statutory exemption for “offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices[,]” 18 U.S.C. 91(a)(0)(A). Before this Court at present is the government's motion to dismiss Baisden's complaint (see Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 6), which Baisden opposes (see Pl.’s Opp'n to Def.’s Mot. (“Pl.’s Opp'n”), ECF No. 8). In the motion to dismiss, the government argues that Baisden has failed to allege facts that demonstrate that he has Article III standing (see Def.’s Mot. at 9–), and that, in any event, Baisden has not stated a claim on which relief can be granted, because federal tax evasion does not fall within the statutory exception to the federal prohibition on possession of firearms by felons (see –0).1 For the reasons explained below, this Court agrees with the government that, given the factual allegations contained in Baisden's complaint, Baisden has yet to allege any cognizable, non-speculative injury that is capable of supporting Article III standing. Consequently, Defendants’ motion to dismiss will be GRANTED, and Baisden will be provided with an opportunity to amend his complaint and attempt to cure this defect, such that the Court may exercise subject-matter jurisdiction over his claims consistent with its Article III authority. I. BACKGROUND * In 009, Baisden was a resident of Bakersfield, California, and was a licensed certified public accountant (“CPA”) in California. See Indictment, United No. 4:09-cr-03031-, ECF No. 1, ¶ 3 In this capacity, Baisden provided accounting, tax preparation, and consulting services to clients in California, Nebraska, and other states. See In 004, in conjunction with preparing tax returns for a married couple, Baisden “submitted false tax returns in an effort to evade the income tax owed by the couple to the United States.” United On March 0, 009, a grand jury indicted Baisden on five criminal counts, including willfully attempting to evade and defeat the income tax due for the married couple in the amount of $36, in violation of 6 U.S.C. 701, and 18 U.S.C. See Indictment, United No. 4:09-cr-03031-, ECF No. 1, ¶–31 Baisden pleaded guilty to this charge on January 31, 01, in exchange for the government dismissing the remaining counts in the indictment, see Plea Agreement, United No. 4:09-cr-03031-, ECF No. 3, at 1 and the district court sentenced him to a term of 37 months of imprisonment, see Judgment, United No. 4:09-cr-03031-, ECF No. 83, at 1 Baisden served his term of incarceration at Taft Correctional Institute in California, and was released on July 8, 014. (See Compl. ¶ 31.) Shortly thereafter, jurisdiction over his criminal case was transferred to the Eastern District of California, see Transfer of Jurisdiction, United No. 1:15-cr-3, ECF No. and the associated period of supervised release was terminated on June 16, 016 (see Compl. ¶ 35). Baisden filed the instant lawsuit, pro se, against the Attorney General and ATF on October 3, (See Compl. at 1.) The complaint includes a long and detailed recitation of the civil and criminal tax-related actions that the United States brought against Baisden and his co-defendants between 00 and 016, which are not relevant for purposes of the instant dispute. (See generally ¶¶ 4–38, 48–67.) The complaint also discusses, at times verbatim, the standing analysis in —a case that similarly involved a convicted felon's challenge to the federal ban on firearms possession. (See Compl. ¶¶ 39–44.) In particular, Baisden's complaint recounts that the court in held that the plaintiff had alleged “the injury of not being able to purchase or obtain firearms” ( ¶ 4), and that he had “pleaded sufficient facts to establish [that] injury in fact” ( ¶ 43)—findings that Baisden says apply to his case as well (see ). Baisden's complaint also states that he is seeking “declaratory and injunctive relief in regard to the complete denial, under Section 9 of Title 18 of United States Code, of [his] Second Amendment right to keep and bear arms solely and exclusively as a result of his 0 conviction for aiding and abetting federal income tax evasion offense.” ( ¶ 1.) On January 00, Defendants filed a motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. (See Defs.’ Mot., ECF No. 6; see also Reply Mem. in Supp. of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 9.) Specifically, Defendants argue that Baisden lacks Article III standing, for two reasons: first, because he has not alleged any “particularized and non-conjectural injury” such as any plans to own a firearm (see Defs.’ Reply at 10); and, second, because any claimed injury by operation of the challenged federal laws is neither fairly traceable to those laws nor redressable by a favorable ruling in this case, given that “an independent statute in California, Plaintiff's state of residence, specifically bars him from possessing a firearm due to his felony conviction” (Defs.’ Mot. at 3). Additionally, the government argues that, “even if Plaintiff had standing to challenge the application of federal law to him, his claim fails as a matter of law[,]” because “the primary purpose and the elements of the federal tax evasion statute demonstrate[ ] that it is designed primarily to deter and punish loss of revenues to the United States Treasury, rather than to address competitive harm or economic harm to consumers[,]” and, therefore, Baisden's “conviction for tax evasion does not fall within the scope of the statutory business practices exception.” ( at 3–4.) *3 Baisden opposes the government's motion. His response brief contends that he has Article III standing because he “is living with his relatives in both California and Ohio” (Pl.’s Opp'n at 5), and, “last year, [he] realized that he live[d] in Ohio long enough to qualify under state law to exercise his gun rights” ( at 6), which means that, “but for his 0 Federal conviction, Baisden is being currently prevented from exercising his constitutionally-protected gun rights in Ohio where Baisden can use guns today” ( at 7). In support of constitutional standing, Baisden also argues that he would be permitted to own a firearm under the laws of at least twenty other states, and that he “will have gun rights in the future” in six additional states. ( at 8.) Moreover, on the merits, Baisden takes the position that his crime of conviction—aiding and abetting tax evasion—is designed primarily to address economic harm to consumers, and thus qualifies under the business practices exception. (See at 9–1.) The government filed its reply brief on February 10, 00 (see Defs.’ Reply, ECF No. 9), and Baisden filed an opposed motion for leave to file a surreply on February 0, 00 (see Pl.’s Mot. for Leave to File a Surreply (“Pl.’s Surreply”), ECF No. 10; see also Defs.’ Mem. in Opp'n to Pl.’s Surreply, ECF No. ; Pl.’s Reply to Pl.’s Surreply, ECF No. 1).3 These motions are now ripe for decision. II. LEGAL STANDARDS A. Rule 1(b)(1) Motions To Dismiss For Lack Of Jurisdiction The doctrines of standing, mootness, and ripeness are “[t]hree inter-related” doctrines of justiciability that determine the “constitutional boundaries” of a court's jurisdiction. “Under Rule 1(b)(1), it is to be presumed that a cause lies outside the federal courts’ limited jurisdiction, unless the plaintiff establishes by a preponderance of the evidence that the Court possesses jurisdiction,” and thus Rule 1(b)(1) imposes on the court an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority[,]” Abu When ruling on a Rule 1(b)(1) motion, the court must “treat the complaint's factual allegations as true” and must afford the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Delta Air Lines, However, those factual allegations receive “closer scrutiny” than they would in the Rule 1(b)(6) context, Grand Lodge of Fraternal Order of and the Court need not “accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations[,]” Moreover, unlike a Rule 1(b)(6) motion, a court may look to documents outside of the complaint in order to evaluate whether or not it has jurisdiction to entertain a claim. See Jerome Stevens Pharm., B. Article III Standing To Sue The doctrine of Article III standing addresses whether the plaintiff has demonstrated “such a personal stake in the outcome of the controversy as to warrant [the] invocation of federal-court jurisdiction.” New England Anti-Vivisection “It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.” And evaluating standing requires the court to assess whether a plaintiff has demonstrated the “irreducible constitutional minimum” necessary to implicate a federal court's subject-matter jurisdiction over a lawsuit, Spokeo, 6 S. Ct. 1540, which consists of three elements: injury in fact, causation, and redressability, see 666 F.3d 59, 6 These Article III requirements are “essential and unchanging[.]” *4 First, the plaintiff must have suffered an injury in fact—“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” 504 U.S. at “Allegations of possible future injury do not satisfy the requirements of Art. III[,]” for a “threatened injury must be certainly impending to constitute injury in fact.” Second, the plaintiff must allege “a causal connection between the injury and the conduct complained of[,]” 504 U.S. at ; in other words, “the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court[,]” Notably, “the mere possibility that causation is present is not enough; the presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied.” Mideast Sys. & China Civil Const. Saipan Joint Venture, 79 F.d 1, 18 Third, the complaint must state facts that make it “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Indeed, “the indirectness of the injury may make it substantially more difficult to establish that, in fact, prospective relief will remove the harm.” III. ANALYSIS In the instant case, the complaint recounts at length Baisden's so-called “tax mitigation work” over the course of many years (see, e.g., Compl. ¶¶ 4–38, 48–67), and its only allusion to any injury is one paragraph that “alleges that 9(g)(1), which prohibits firearm possession by certain felons, and 9(d)(1), which prohibits the sale and transfer of firearms to certain felons, together prevent [Baisden] from acquiring a firearm” ( ¶ 40). The complaint also clarifies that Baisden is seeking “a declaration that Section 9(g)(1) and Section 9(d)(1) do not apply to bar him to acquire and possess a firearm[,] and an entry of an order permanently enjoining [the Attorney General] and ATF from enforcing Section 9(g)(1) and Section 9(d)(1) against him.” ( ¶ 47.) A sworn statement that Baisden has submitted further states that he “will use a gun for any lawful purpose as allowed in other states, when this Federal firearms disability is removed.” (Baisden Decl., ECF No. 8-1, ¶ 16.) Consequently, in the abstract, Baisden's inability to possess a firearm lawfully might qualify as a cognizable injury in fact under Article III. See, e.g., (D.D.C. 0). But such a theoretical possibility is not a sufficient factual basis upon which to determine that Baisden has Article III standing to bring the claims at issue. This is because, a threshold matter, Baisden's complaint is completely silent with respect to any specific facts concerning whether he ever owned a firearm or possessed a permit, ever used a firearm or intended to use one, or ever wished or desired to possess one in the future. This deficiency is a fatal one, for purposes of Article III standing, because it is not enough merely to allege “an invasion of a legally protected interest which is [ ] concrete and particularized,” but that concrete injury must also be “actual or imminent, not conjectural or hypothetical[.]” 504 U.S. at –61 To be sure, the complaints filed by pro se plaintiffs, such as Baisden, are held “to less stringent standards than formal pleadings drafted by lawyers,” but the benefit afforded to a pro se litigant regarding construction of the complaint “is not a license to ignore the Federal Rules of Civil Procedure[,]” 658 F. Supp. d 5, 7 Thus, Baisden's complaint must contain allegations of fact that establish that he has an actual injury—as opposed to a purely hypothetical one—and his later filings, such as the sworn declaration that is attached to his brief in opposition to the government's motion to dismiss, cannot amend his complaint in this regard. See 908 F. Supp. d 6, 9 *5 Notably, even if this Court were to infer from Baisden's sworn declaration that he has been injured due to an unspecified, generalized wish to possess a firearm in some state, including Ohio (see Baisden Decl. ¶ 16), “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.” ; see also ; Baz v. Dep't of Homeland Sec., No. 18-cv-010, (holding that a plaintiff who challenged his inclusion in a no-fly list failed to allege an injury in fact because he “never allege[d] that he was prevented from boarding a particular flight that would merely transit the United States” or that “he plans in the relatively near future to board a flight that would transit U.S. airspace”). Baisden does suggest that possessing a firearm subjects him to criminal liability under federal law. (See Comp. ¶ 40.) But in the absence of some factual allegation that indicates that he has a plan or a particular intention to possess a firearm, that legal bar does not constitute a cognizable injury in fact, and this is so even though a plaintiff need not “expose himself to liability before bringing suit to challenge the basis for the threat[.]” MedImmune, 549 U.S. Indeed, “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Still, there must be some plausible allegation of an intention to engage in the proscribed conduct and, in this respect, courts look to “whether the plaintiffs have articulated a concrete plan to violate the law in question[.]” 0 F.3d 14, 19 ; see also Doe Run Res. Here, unfortunately, Baisden's filings are silent with respect to his plans or intentions to possess a firearm, and as a result, he has failed to allege a cognizable injury in fact for purposes of Article III standing. The two cases upon which Baisden primarily relies to support his standing argument (see, e.g., Compl. ¶ 4–44 (discussing 34 F. Supp. 3d at 145–46); Pl.’s Opp'n at 7 (discussing 79 F. Supp. 3d at )) do not compel a different conclusion. The plaintiff in alleged that he “intend[ed] to purchase and possess firearms for sport and self-defense within his own home[,]” Complaint, No. 16-cv-18, ECF No. 1, ¶ 5 and, even more specifically, that he had previously purchased land in Wyoming, possessed a Wyoming hunting license, and had hunted there using a replica of an antique firearm for many years, see ¶¶ 6–33. Similarly, in the plaintiff alleged that he “desire[d] to purchase and possess firearms for defense of both himself and his family, and for hunting[.]” Complaint, No. -cv-13, ECF No. 1, ¶ 10 (D.D.C. Aug. 14, 0). The complaint in the case also stated that, “in August 0, [] discussed his desire to purchase a handgun with two different firearms merchants[,]” and that, “[u]pon disclosing that he had been convicted of a white collar federal felony, he was informed by both merchants that federal law prohibits the sale of a firearm to felons and that if he checked the box on the background check form indicating that he has been convicted of a felony, the sale would be cancelled[.]” ¶ 3. The complaint further explained that the plaintiff thus had refrained from attempting to acquire a firearm “because, were he successful, he would be subject to arrest, prosecution, incarceration, and fine, at Defendants’ instigation and direction, for violating Section 9(g)(1).” See also 1 F.3d 499, 50 *6 Again, in the instant case, Baisden's complaint lacks any allegations of fact that demonstrate that he has “concrete plans” to possess a firearm, such that he can be deemed actually injured by the ban he seeks to challenge and/or by the government's potential application of that ban to him. Thus, the complaint in this case is plainly insufficient to survive the government's motion to dismiss for lack of subject-matter jurisdiction.

Barber v. District of Columbia Government

Plaintiff Claudia Barber served as an Administrative Law Judge (“ALJ”) for the District of Columbia Office of Administrative Hearings (“OAH”) for eleven years, from August of 2005 until August of 2016, when she was terminated from that position. (See, e.g., First Am. Compl. (“Barber I Compl.”), ECF No. 11, ¶ 8; Compl. (“Barber II Compl.”), No. 17-cv-1680, ECF No. 1-3, ¶ 7.)1 In two consolidated complaints, Barber brings eleven claims against five defendants related to her tenure and eventual termination.2 Generally speaking, Barber alleges that despite meeting or exceeding performance expectations throughout her service as an ALJ at OAH, she experienced discrimination based on her race and color, including repeated denials of promotions. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–18.) Barber also claims that her supervisors retaliated against her between November of 2014 and January of 2016, after she made both formal and informal complaints to management about racial discrimination *55 and other concerns. (See Barber I Compl. ¶¶ 60–62; Barber II Compl. ¶¶ 8–18, 38–39, 55–56.) Before this Court at present are two motions that Defendants have filed, which, collectively, seek to dismiss all of the counts in Barber's two consolidated complaints for various reasons. (See Dist. Defs.' Mot. to Dismiss Pl.'s Compl. with Prejudice (“Dist. Defs.' Mot.”), ECF No 25; Def. Jarashow's Mot. to Dismiss (“Jarashow's Mot.”), ECF No. 26.) As explained below, this Court concludes that the Defendants' motions must be GRANTED IN PART AND DENIED IN PART. In short, the Court will dismiss all of the counts that pertain to constitutional and tort claims, but will permit the counts that relate to employment discrimination and retaliation to proceed. I. The facts recited in this opinion are gleaned from Barber's consolidated complaints and must be accepted as true, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); notably, they need not be recounted in full for the purpose of the instant ruling. It suffices to say here that Barber alleges that despite meeting or exceeding performance expectations throughout her tenure as an ALJ at OAH, she experienced discrimination based on her race and color—including repeated denials of promotions—as well as retaliation when she made complaints about her supervisors' allegedly discriminatory practices. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–18.) Three examples illustrate some of the many alleged instances of discrimination and retaliation that are recounted in Barber's consolidated complaints. Barber alleges that in November of 2014, she complained to Wanda Tucker, the interim Chief ALJ, that “African American ALJs routinely received less complex and less serious cases than their Caucasian counterparts.” (Barber II Compl. ¶ 8.) Approximately three days after complaining to Tucker, Barber allegedly was not assigned to a Principal ALJ (“PALJ”) position to fill a vacancy, even though she had been routinely assigned to fill such vacancies over the previous nine years. (Id.) Several months later, when another PALJ position opened up, Tucker allegedly “instituted unreasonable selection criteria in an effort to disqualify and retaliate against [Barber]” and to “discourage and eliminate African American ALJs from applying for the open position[.]” (Id. ¶ 13.) Indeed, Barber alleges that when she expressed her interest in the position, Tucker required her to complete “the equivalent of a literacy test, which ... Barber found humiliating.” (Id.) And eventually Paul Handy, a Caucasian male, was selected for the PALJ position. (Id.) Thereafter, in January of 2016, OAH Chief ALJ Eugene Adams “announced a new plan for the fair selection of PALJs” whereby the OAH would “promote those ALJs who volunteer to be PALJs alphabetically[,]” and under this new system, Barber was allegedly the next ALJ slated to be promoted. (Id. ¶ 18.) However, Barber alleges that Adams promoted a Caucasian woman over her instead, ignoring the selection plan. (Id.) According to Barber's pleadings, this “was the third time a less qualified Caucasian ALJ was selected for a PALJ position over ... Barber.” (Id.) Due to Barber's concerns with her workplace environment and the limited opportunities for advancement as an ALJ, Barber began to consider running for a position as a judge on the Circuit Court for Anne Arundel, Maryland. (See id. ¶ 16.) She sought guidance from the District's Commission on Selection and Tenure *56 (“COST”) and the Board of Ethics and Government Accountability with respect to her ability to run for the Maryland judicial position without resigning from her position as an ALJ in the District of Columbia. (See Barber I Compl. ¶¶ 9–10.) After allegedly receiving mixed responses from some District employees and no responses from others, Barber filed a Certificate for Candidacy in Maryland on January 20, 2016, listing her party affiliation as “Judicial.” (See id. ¶¶ 9–13.) In February of 2016, Defendant Jarashow, a Maryland attorney and former Anne Arundel County Circuit Court judge “who was supporting other candidates for the vacant circuit judge positions[,]” informed Chief ALJ Adams of Barber's candidacy. (See id. ¶ 15.) Jarashow allegedly maintained that two provisions of the District's Code of Ethics for ALJs required Barber to resign from her ALJ position in DC upon becoming a judicial candidate elsewhere. (See id.) Defendant Chief ALJ Adams subsequently placed Barber on administrative leave with pay, and after a COST hearing in July of 2016, Barber's employment as an ALJ was terminated for an ethics violation on August 2, 2016. (See id. ¶¶ 21, 32–33.) Barber filed a complaint against all Defendants in this Court on April 6, 2017, which she amended on May 22, 2017 (“Barber I”). (See Compl., ECF No. 1; Barber I Compl.) The operative complaint in Barber I contains seven counts: two constitutional claims against the District alleging violations of procedural and substantive due process; a constitutional claim against the District pursuant to section 1983 of Title 42 of the United States Code (“Section 1983”); a civil conspiracy claim brought under section 1985 of Title 42 of the United States Code (“Section 1985”) against all Defendants; a claim under the D.C. Whistleblower Protection Act (DCWPA), D.C. Code §§ 1-615.51–1-615.59, against the District Defendants; and two common law tort claims against Jarashow. (See Barber I Compl. at 12–22.)3 On July 19, 2017, Barber filed a second and separate complaint against the District and Adams in the Superior Court of the District of Columbia (“Barber II”); Defendants removed this complaint to federal court on September 11, 2017. (See Not. of Removal, No. 17-cv-1860, ECF No. 1.) The complaint in Barber II includes four counts alleging workplace discrimination brought pursuant to the D.C. Human Rights Act (DCHRA), D.C. Code §§ 2–1401.01–2-1411.06, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. (See Barber II Compl. at 12–17.) This Court granted the District Defendants' motion to consolidate the two cases on October 17, 2017, and ordered all Defendants to file omnibus responses to both complaints. (See Order Granting Mot. to Consolidate, ECF No. 22, at 4–5.) On November 11, 2017, Defendants filed two motions to dismiss Barber's consolidated complaints. The Court held a lengthy motion hearing on May 9, 2019, after which it took the motions under advisement. (See May 9, 2019 Hr'g Tr. (“Hr'g Tr.”).) II. 1 2 3 4 As the Court explained to the parties during the motion hearing, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). *57 Therefore, “[t]o 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). The plaintiff is not required to provide “detailed factual allegations,” but rather must only plead enough facts to “raise a right to relief above the speculative level” and to “nudge[ ] their claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955 (internal quotation marks and citation omitted). At the motion-to-dismiss phase, a court must “construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged,” Browning, 292 F.3d at 242 (alterations, internal quotation marks, and citation omitted), but it need not “accept legal conclusions cast as factual allegations[,]” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012). The Court also explained that the eleven counts that Barber had brought between the two complaints could be logically grouped into three categories: employment claims (Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV); constitutional claims (Barber I Compl., Counts I, II, III, and IV); and tort claims (Barber I Compl., Counts VI and VII). (See Claims Handout, ECF No. 42.) The Court asked the parties to address these claim categories, in turn, during the motion hearing. III. Barber's complaints contain five counts alleging employment discrimination and retaliation under the DCHRA, the DCWPA, and Title VII of the Civil Rights Act. (See Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV; see also Claims Handout.) All of these claims survive Defendants' motion to dismiss, in at least some form, as explained below. A. 5 6 7 8 9 With respect to Barber's DCHRA and Title VII discrimination claims (Counts I and III of Barber II), Barber's complaint alleges that she was discriminated against based on her race and color. (See Barber II Compl. ¶¶ 30, 47.) Notably, “[c]ourts in this Circuit ‘have consistently recognized the ease with which a plaintiff claiming employment discrimination can survive ... a motion to dismiss[,]’ ” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting Fennell v. AARP, 770 F. Supp. 2d 118, 127 (D.D.C. 2011)). “In other words, the factual detail required to survive a motion to dismiss can be quite limited.” Id. at 86–87 (internal quotation marks and citation omitted). This is because a plaintiff need not prove a prima facie case at the motion-to-dismiss stage: instead, with respect to both Title VII and the DCHRA, “a plaintiff need only allege that she (1) suffered an adverse employment action (2) because of her membership in a protected category.” Id. at 86. Moreover, an “adverse employment action” is any event that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (citations omitted). Barber has successfully pleaded her discrimination claims, on the basis of at least the following alleged facts, which, viewed collectively, are sufficient to give rise to a plausible claim of race discrimination: (1) the PALJ position was qualitatively different from the ALJ position because of its *58 supervisory duties (see id. ¶ 9); (2) PALJs were paid more than ALJs (see id.); (3) less qualified Caucasian ALJs were repeatedly selected for the better-compensated PALJ position over Barber and other more senior African American ALJs (see id. ¶¶ 12, 18); and (4) on one occasion in February 2016, Barber's non-selection violated an established plan for ALJs to be promoted to PALJs alphabetically (see id. ¶ 18). Taken together, these facts are sufficient to support an inference that Barber suffered an adverse action when she was not promoted to the qualitatively different and higher-paying PALJ position (see id. ¶¶ 9, 12, 18, 30, 47), and that this non-promotion was motivated by her race (see id. ¶¶ 8–13, 18, 30, 47).4 The District Defendants argue that Barber's non-promotion to the PALJ position was not an “adverse action” because, among other things, Barber did not plead that PALJs were paid more at the time of her alleged non-promotions. (See Dist. Defs.' Mot. at 25.) But Barber's complaint alleges that PALJs were paid more than other ALJs for at least some period of time (see Barber II Compl. ¶ 9), and nothing in the complaint suggests that the pay differential changed. “[C]onstru[ing] the complaint liberally, [and] granting [Barber] the benefit of all inferences that can be derived from the facts alleged,” Browning, 292 F.3d at 242 (internal quotation marks and citation omitted)–as the Court must do at this stage of litigation–it is at least plausible that PALJs were paid more than ALJs throughout Barber's tenure. The District Defendants also dispute that the alleged facts demonstrate the requisite causation; specifically, they insist that Barber was not selected as a PALJ according to the alphabetical plan in February of 2016 because she was placed on administrative leave with pay on February 12, 2016. (See Dist. Defs.' Mot. at 26.) However, once again, this contention improperly ignores the Court's duty to accept the allegations of the complaint as true and to construe the complaint liberally at the motion-to-dismiss stage. See Browning, 292 F.3d at 242. Barber's complaint plainly alleges that “[i]n January 2016, Defendant Adams announced a new plan for the fair selection of PALJs” (i.e., the aforementioned plan “to promote those ALJs who volunteer to be PALJs alphabetically”) and also states that the timing was such that “Barber should be the next ALJ to be promoted to PALJ” under this new scheme. (Barber II Compl. ¶ 18.) However, according to the complaint, “[i]n February 2016, Defendant Adams instead promoted a Caucasian ALJ, Sharon Goodie, to PALJ and ignored the selection plan[.]” (Id.) Given this timing, it is at least plausible that the allegedly discriminatory non-selection of Barber in a manner that was inconsistent with the established plan occurred prior to February 12, 2016. Therefore, the District Defendants' motion to dismiss Barber's Title VII and DCHRA discrimination claims will be denied. B. 10 11 12 13 14 Turning to Barber's retaliation claims, Barber II alleges in Counts II and IV that the District Defendants retaliated against her in violation of the DCHRA and Title VII. (See id. ¶¶ 38–39, 55–56.) To state a claim for retaliation under Title VII or the DCHRA, a plaintiff “must establish three elements: [ (1) ] that she made a *59 charge or opposed a[n unlawful] practice ..., [ (2) ] that the employer took a materially adverse action against her, and [ (3) ] that the employer took the action because of her protected conduct.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (citation omitted). The relevant provisions of the DCHRA are generally interpreted consistent with Title VII, see, e.g., Craig v. District of Columbia, 74 F. Supp. 3d 349, 368–69 (D.D.C. 2014) (citations omitted); Elhusseini v. Compass Group USA, Inc., 578 F. Supp. 2d 6, 10 n.4 (D.D.C. 2008) (collecting cases), and it is well established that the scope of adverse actions for Title VII retaliation claims is broader than it is for discrimination claims because Title VII's “antiretaliation provision ... is not limited to discriminatory actions that affect the terms and conditions of employment[,]” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citation omitted); see also Siddique v. Macy's, 923 F. Supp. 2d 97, 107 n.10 (D.D.C. 2013) (explaining that federal courts in this district apply Burlington Northern to DCHRA retaliation claims). Instead, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation marks omitted) (citing Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Barber has successfully pleaded her retaliation claims, based on at least the following alleged facts: (1) on November 17, 2014, Barber made an internal complaint about racial discrimination in the assignment of complex cases (see id. ¶ 8); (2) approximately three days later, Barber was not assigned to a vacant PALJ position, even though she had routinely been assigned to similar positions in the past (see id.); and (3) one month later, on December 2, 2014, Barber was again denied promotion to the PALJ position (see id. ¶ 11). These events, which are temporally proximate to one another, along with other, similar facts alleged in the complaint, are sufficient to support an inference of unlawful retaliation. See Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (explaining that causation can be reasonably inferred when two events are “very close in time” (internal quotation marks and citation omitted)); Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003) (describing temporal proximity as “quite close” when allegedly retaliatory act occurred a month after protected activity).5 Furthermore, the Court rejects the District Defendants' argument that Barber's non-selection to the PALJ position was not a materially adverse action because PALJs “were not paid more than ALJs at the relevant time[.]” (See Dist. Defs.' Mot. at 30.) As explained in Section III(A), supra, Barber has alleged that PALJs were paid more than ALJs (see Barber II Compl. ¶ 9), and that she was denied the opportunity to serve as a PALJ after she complained to Tucker about discrimination (see id. ¶¶ 8, 11). These allegations are more than sufficient, given the capacious adverse-action framework that is applicable to retaliation claims. See Burlington, 548 U.S. at 64, 126 S.Ct. 2405. Thus, this Court will also deny the District Defendants' motion to dismiss with respect to Barber's Title VII and DCHRA retaliation claims. C. 15 16 17 Count V of Barber I alleges that the District, Adams, Natale, and Nolen *60 retaliated against Barber in violation of the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51–1-615.59. The purpose of the DCWPA is to “ ‘increase protection for District government employees who report waste, fraud, abuse of authority, violations of law, or threat[s] to public health or safety[.]’ ” Sharma v. District of Columbia, 791 F. Supp. 2d 207, 216 (D.D.C. 2011) (quoting Whistleblower Protection for Certain District Employees, 1998 D.C. Laws 12–160, Act 12–398). “In order to establish a prima facie case under the [DCWPA], [a] plaintiff must allege facts establishing that [ (1) ] she made a protected disclosure, [ (2) ] that her supervisor retaliated or took or threatened to take a prohibited personnel action against her, and [ (3) ] that her protected disclosure was a contributing factor to the retaliation or prohibited personnel action.” Tabb v. District of Columbia, 605 F. Supp. 2d 89, 98 (D.D.C. 2009). Barber alleges that she made two disclosures that the DCWPA protects: a complaint that she filed with the Office of the Inspector General in January of 2016, and a negative response that she made to an auditing survey in April of 2016. (See Barber I Compl. ¶ 60.) Barber's complaint also maintains that retaliation based on those disclosures “was a substantial or motivating factor” in the disciplinary proceedings that began in February of 2016 and resulted in her termination in August of 2016. (See id. ¶ 62.) This Court finds that Barber has sufficiently pleaded a DCWPA claim based on at least the following alleged facts: (1) she made a protected disclosure to the Office of the Inspector General in January of 2016, by complaining that “Adams ordered OAH ALJs to attend mandatory diversity training and later allowed a large number of Caucasian ALJs to not attend the training that was already paid for by taxpayers” (see id. ¶ 60); (2) Adams, her supervisor (see id. ¶ 5), knew about her disclosure by April of 2016 (see id. ¶ 60); and (3) her disclosure motivated Defendants—including Adams—with respect to various adverse employment actions they instituted against her, which started in February of 2016 and culminated when she was terminated in August of 2016 (see id. ¶ 62). Accepting these facts as true, the Court concludes that it is plausible that Barber made a protected disclosure that contributed to Adams's February 2016 decision to place her on administrative leave with pay in a manner that gives rise to an actionable DCWPA claim, even if Adams may have also been motivated by Barber's decision to run for judicial office. In their briefing, the District Defendants dispute whether Adams knew about Barber's January 2016 disclosure before he placed Barber on leave in February of 2016. (See Dist. Defs.' Mot. at 22.) They insist that the complaint's allegation that Adams knew “by April of 2016” does not mean that he knew of the disclosure “in February [of] 2016.” (Dist. Defs.' Reply, ECF No. 31, at 16 (second emphasis in original).) In addition, at the motion hearing, the District Defendants argued (for the first time) that Barber's January 2016 disclosure did not qualify as a protected activity, because Barber merely revealed a policy or management disagreement rather than making a statement that she “reasonably believe[d] evidence[d]” “[g]ross mismanagement”; “[g]ross misuse or waste of public resources or funds”; “[a]buse of authority in connection with the administration of a public program or the execution of a public contract”; [a] violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature”; or “[a] substantial and specific danger to the public health and safety[,]” as the DCWPA requires. *61 D.C. Code § 1-615.52(a)(6)(A–E). (See Hr'g Tr. at 41:10–43:17.) As this Court has explained repeatedly (both during the hearing and herein), arguments of this type raise factual disputes that are not appropriately considered at the motion-to-dismiss stage of a case. (See, e.g., id. at 26:24–27:16, 57:25–58:19.). See also, e.g., Brown v. District of Columbia, No. 15-cv-1380, 390 F.Supp.3d 114, 122–24, 125–28, 2019 WL 2437546, at *6, 8–9 (D.D.C. June 11, 2019). In the instant context, so long as it is at least plausible that Barber's January 2016 disclosure qualified as protected based on its alleged contents, and that Adams knew about the disclosure prior to placing Barber on administrative leave in February of 2016, Barber's DCWPA claim may proceed. See, e.g., Democracy Partners v. Project Veritas Action Fund, 285 F. Supp. 3d 109, 121 (D.D.C. 2018) (explaining that “[a]t [the motion-to-dismiss] stage of the proceedings, the factual allegations in the complaint must be taken as true”). This Court has a different view of Barber's DCWPA claims against individual defendants Natale and Nolen, as well as any DCWPA claim based on Barber's April 2016 response to an auditing survey. (See Barber I Compl. ¶¶ 58–63.) First of all, nothing in the complaint supports Barber's argument that this Court can make “[a] reasonable inference from the complaint ... that Defendant Adams disclosed Plaintiff Barber's complaint to other OAH employees, including Defendants Nolen and Natale.” (See Pl.'s Opp'n to Dist. Defs.' Mot. (“Pl.'s Dist. Defs. Opp'n”), ECF No. 29, at 39.) This is because the complaint alleges only that Adams knew about Barber's January 2016 disclosure (see Barber I Compl. ¶ 60), and there are no plausible allegations concerning Natale's or Nolen's knowledge of Barber's protected disclosures to OAH in January of 2016, nor does the complaint say anything about their knowledge of any other potentially protected disclosures. (See generally Barber I Compl.; Barber II Compl.) Thus, there are no facts from which to infer that these individual defendants could have retaliated against Barber in violation of the DCWPA. (See Dist. Defs.' Mot. at 22.) Second, Barber has failed to plead that anyone who took an allegedly retaliatory action against her knew about her April 2016 negative response to the DC Auditor survey. (See Barber I Compl. ¶ 61; see generally id.; Barber II Compl.) Therefore, again, there is no factual basis upon which to draw any inference that any defendant knew of Barber's survey response and retaliated against her for that known, protected conduct. 18 19 Consequently, Barber's DCWPA claim may proceed only against the District and Adams, and only to the extent that the claim relies on Barber's January 2016 disclosure to the Office of the Inspector General and on any retaliatory conduct by Adams.6 III. In addition to the employment discrimination and retaliation claims addressed in Section II above, Barber's complaint includes *62 four counts against the District and individual defendants Adams, Natale, Nolen, and Jarashow, alleging various constitutional violations. (See Barber I Compl. at 12–18 (Counts I, II, III, and IV).) Specifically, Barber claims that the District violated her constitutional rights to procedural due process and substantive due process (see id. at 12–15 (Counts I, II)); that the District has a “custom or policy” concerning judicial elections that violates the Fourteenth Amendment's Equal Protection Clause and Fifth Amendment's right to contract (see id. at 15–16 (Count III)); and that the District and the individual defendants “deprived [Barber] of equal protection of the laws and/or privileges under the laws by conspiring to violate her due process rights under the Fifth Amendment and ... the Equal Protection Clause of the Fourteenth Amendment” (id. ¶ 54; see also id. at 16–18 (Count IV)). In their current form, none of these claims survive Defendants' motions to dismiss. A. 20 In Count I of Barber I, Barber alleges, as a freestanding constitutional claim, that the District violated her procedural due process rights. (See id. ¶ 37.)7 Some of the factual allegations that are references in Barber's complaint relate to alleged due process violations in connection with Barber's termination, while others relate to alleged reputational harm that District employees caused after Barber was terminated. (See id. ¶¶ 38–39.) Thus, at the outset, it is unclear whether Barber's procedural due process claim is based upon purported deficiencies in her termination process, and thus turns upon the adequacy of the notice and any hearing she was afforded, see Propert v. District of Columbia, 948 F.2d 1327, 1332–33 (D.C. Cir. 1991), or whether her claim is based upon an alleged reputational injury, which is assessed based on the combination of an “adverse job action” and either “official defamation” or “a stigma or other disability that foreclosed [her] freedom to take advantage of other employment opportunities.” Hutchinson v. C.I.A., 393 F.3d 226, 230–31 (D.C. Cir. 2005) (internal quotation marks and citation omitted). Notably, these are different legal theories of a procedural due process violation, and these distinct theories rely on different factual allegations. Thus, it is clear to this Court that Barber's procedural due process claim does not provide adequate notice to the District under Federal Rule of Civil Procedure 8. See Jiggetts v. District of Columbia, 319 F.R.D. 408, 416–17 (D.D.C. 2017). Because of this, the Court will grant the District's motion to dismiss Count I of Barber I, but it will also grant the oral motion to amend the complaint that Barber's counsel made at the motion hearing as to this claim, consistent with the Order accompanying this Opinion. (See Hr'g Tr. at 82:23–83:5; see also id. at 52:19–54:4.) *63 B. 21 22 Barber further alleges, in Count II of Barber I, that the District violated her “substantive due process rights by demanding that she resign from her position as an ALJ ... and thereafter removing her ... based on an alleged violation of Section V(U)[.]” (Barber I Compl. ¶ 43.) A claim that the government has violated a plaintiff's substantive due process rights requires conduct “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Given the kinds of actions that courts have found sufficient to satisfy this standard, it is clear to the Court that the conduct Barber points to here—i.e., the District's alleged “demand” that she resign as an ALJ if she intended to run for judicial office elsewhere, and her eventual removal from her ALJ position—falls far short of the level of misconduct that is required to sustain a substantive due process claim. See id. (collecting cases illustrating “[c]onscience-shocking conduct”); see also, e.g., Lewis, 523 U.S. at 846, 118 S.Ct. 1708 (describing the forced pumping of a suspect's stomach as conduct that offends due process because it “shocks the conscience”). Thus, Barber has failed to state a substantive due process claim on these grounds. 23 To the extent that Barber's substantive due process claim is based on her belief that Section V(U) of the OAH Code of Ethics (“Section V(U)”) is an “unconstitutional, arbitrary and capricious policy” (see id. ¶ 43; see also id. ¶ 44), any such allegation is a conclusion of law that the court need not accept, see Hettinga, 677 F.3d at 476. Moreover, and in any event, Barber's beliefs in this regard are not well founded. Section V(U) provides that [a]n Administrative Law Judge shall resign from judicial office when the Administrative Law Judge becomes a candidate either in a party primary or in a partisan general election except that the Administrative Law Judge may continue to hold office, while being a candidate for election to or serving as a delegate in a jurisdiction's constitutional convention, if otherwise permitted by law to do so. (Id. ¶ 16.) This requirement is rationally related to legitimate government interests of “protecting the integrity of the judiciary” and “maintaining the public's confidence in an impartial judiciary.” Williams-Yulee v. Fla. Bar, ––– U.S. ––––, 135 S. Ct. 1656, 1666, 191 L.Ed.2d 570 (2015) (internal quotation marks and citation omitted); see also Morial v. Judiciary Comm'n of State of La., 565 F.2d 295, 302–03 (5th Cir. 1977) (upholding a similar rule requiring state judges in Louisiana to resign before running in partisan elections); cf. U.S. Civil Serv. Comm'n v. Nat'l Assoc. of Letter Carriers AFL-CIO, 413 U.S. 548, 580–81, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (rejecting constitutional challenge to Hatch Act's restrictions on government employees' partisan political activities). And this Court has no doubt that this ethics rule does not violate the substantive due process rights of the ALJs who are subject to it. If Barber's intent was, instead, to allege that District employees misapplied Section V(U), or acted in violation of the procedural protections Barber was entitled to, this Court is bound by D.C. Circuit precedent, which has flatly rejected similar substantive due process claims even under circumstances in which the government has taken action against a plaintiff based on mistaken beliefs and in violation of the law. See, e.g., Elkins v. District of Columbia, 690 F.3d 554, 561–62 (D.C. Cir. 2012); see also Steinberg, 901 F. Supp. 2d at 75. *64 Accordingly, Barber's complaint fails to state a substantive due process claim in any respect, and as a result, the District's motion to dismiss Barber's claim must be granted. C. 24 25 26 Count III of Barber I claims a violation of Section 1983, insofar as the District allegedly has a “custom or policy” concerning ALJs who seek to run for office that violates the Equal Protection Clause and the Fifth Amendment. (See Barber I Compl. ¶¶ 47–51.) To succeed in a claim for relief under Section 1983, “a plaintiff must prove both (1) a predicate constitutional violation and (2) that a custom or policy of the municipality caused the violation.” Smith v. District of Columbia, 306 F. Supp. 3d 223, 241 (D.D.C. 2018) (internal quotation marks and citation omitted). The “threshold inquiry” in a Section 1983 suit “requires courts to identify the specific constitutional right at issue.” Manuel v. City of Joliet, Ill., ––– U.S. ––––, 137 S. Ct 911, 920, 197 L.Ed.2d 312 (2017) (internal quotation marks and citation omitted). Here, Barber's complaint does not meet this threshold requirement. The relevant count of the complaint cites two constitutional provisions—the Equal Protection Clause of the Fourteenth Amendment and the right to contract that the Fifth Amendment protects. (See id. ¶ 48.) The pleading then describes the alleged impact of Section V(U), at least as Defendant Adams has interpreted it. (See id. ¶¶ 49–50 (“Defendant Adams'[s] interpretation ... bars ALJs who do not reside in the District of Columbia, such as Plaintiff Barber, from participating in judicial elections to become judges in states such as Maryland where trial judges are elected and requires ALJs who do run in elections such as the Maryland election for Circuit Court judges to resign from employment or be terminated.”).) Barber's complaint asserts that Adams's interpretation renders Section V(U) “unconstitutional on its face, arbitrary and ... [in]sufficiently justified by government interests” (id. ¶ 49), and, in her opposition to the District Defendants' motion to dismiss, Barber baldly alleges that her Section 1983 claim also pertains to a violation of the Privileges and Immunities Clause (see Pl.'s Dist. Defs. Opp'n at 27). But Barber has made no attempt to relate the allegations concerning Section V(U)'s alleged impact on ALJs to the elements of an equal protection or constitutional contract claim, and when questioned about this at the hearing, Barber's counsel simply stated that it was Barber's intent to allege that Section V(U) “was unconstitutional in the manner in which it was applied[.]” (Hr'g Tr. at 15:24–25.) 27 28 Given these myriad constitutional provisions and vague allegations, the Court agrees with Defendants that Barber's Section 1983 claim must be dismissed. “[Barber] provides no explanation of the alleged conflict between [Section] V(U), or any interpretation of it, and any constitutional provision” (Dist. Defs.' Mot. at 18), and it is well established that a complaint that contains legal claims that are divorced from the factual allegations necessary to satisfy the applicable legal standards is subject to dismissal, see Jiggetts, 319 F.R.D. at 416–17. Other courts in this district have likewise concluded that generalized statements alleging violations of multiple constitutional provisions without a description of how the facts alleged constitute the claimed violations “fail to provide the ‘requisite specificity’ needed to survive a motion to dismiss.” Voinche v. Obama, 744 F. Supp. 2d 165, 176 (D.D.C. 2010) (citation omitted). So it is here. By alleging only that Section V(U) prevents Barber from maintaining her position as an ALJ while running *65 for judicial office elsewhere, without any allegations of fact or citations to law that plausibly explain why such a circumstance constitutes a violation of Barber's constitutional rights, Barber's Section 1983 count fails both Rule 8's notice requirement and Rule 12(b)(6)'s mandate that a complaint state a claim upon which relief can be granted. Consequently, Barber's Section 1983 claim (Count III of Barber I) will be dismissed. D. 29 Finally, with respect to the category of constitutional claims, Count IV of Barber I alleges that the District and individual defendants Adams, Natale, Nolen, and Jarashow conspired to deprive Barber of “equal protection of the laws[.]” (See Barber I Compl. ¶ 54.) The thrust of Barber's allegation appears to be that Jarashow “falsely claim[ed] that [Barber] was running as a Democrat candidate” in the Maryland judicial election, and that the individual defendants conspired to produce a legal opinion that mischaracterized the Maryland election as “partisan” in order to influence District authorities concerning whether Barber's ALJ position should be terminated. (Id.) Thus, the factual basis for Barber's claim that these defendants violated Section 1985 of Title 42 of the United States Code, which prohibits conspiracies for the purpose of depriving individuals of equal protection, appears to be the alleged fact that Jarashow initiated the actions that led to Barber's termination because he (falsely) intimated she was running as a Democrat. 30 To state a claim under Section 1985, a plaintiff must allege: (1) a conspiracy (2) motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus’ (3) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (4) an act in furtherance of the conspiracy (5) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Kelley v. District of Columbia, 893 F. Supp. 2d 115, 120 (D.D.C. 2012) (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)). Barber's Section 1985 contention falters from the get-go—i.e., with respect to the first and second elements of such a claim—and it fails even if one sets aside the complicated question of whether or not one's status (or perceived status) as a member of a political party qualifies as a protected class for the purposes of a Section 1985 conspiracy. (See Pl.'s Dist. Defs. Opp'n at 40–43.) See also Scott, 463 U.S. at 835–37, 103 S.Ct. 3352 (withholding judgment as to whether Section 1985 extends to animus based on political party, views, or activities); Hobson v. Wilson, 737 F.2d 1, 21 (D.C. Cir. 1984) (collecting cases addressing Section 1985's applicability to political animus, but declining “to decide whether purely political ... activity without any racial overtones falls within [S]ection 1985(3)”). Specifically, Barber's Section 1985 claim is fatally flawed because her complaint is completely devoid of any allegations regarding any defendant's intent to oust her from her job or deny her future opportunities on the basis of a protected trait or characteristic, such that her pleading plausibly implicates the right to equal protection or equal privileges under the law. There are no facts in Barber's complaint that suggest that anyone other than Jarashow knew of or even assumed Barber's political party, much less that any other alleged member of the conspiracy could *66 have been motivated by legally actionable animus against that classification. (See generally Barber I Compl.) Nor has Barber alleged that the conspiracy was based on any other theory of discrimination that might qualify as a denial of equal protection. (See generally id.; see also Hr'g Tr. at 82:7-8 (“[W]e have not made the assertion in the complaint that there was a racial component[.]”).) Barber's complaint is also entirely silent when it comes to any allegations of fact regarding an actual agreement amongst the defendants, which is the essence of a conspiracy; that is, nothing in the complaint even hints at “the existence of any events, conversations, or documents indicating that there was ever an agreement or meeting of the minds” amongst the defendants to violate her rights based on her membership in a protected class. McManus v. District of Columbia, 530 F. Supp. 2d 46, 75 (D.D.C. 2007) (internal quotation marks and citation omitted). Barber's assertion of any agreement at all (see Barber I Compl. ¶¶ 54–55) is “conclusory at best[,]” and it is clear that “[c]onclusory allegations of an agreement will not suffice” to support a Section 1985 conspiracy claim at the motion-to-dismiss stage, Burnett v. Sharma, 511 F. Supp. 2d 136, 143 (D.D.C. 2007) (collecting cases). Therefore, Barber's Section 1985 claim (Count IV of Barber I) will also be dismissed. IV. The last category of claims that Barber brings in the two consolidated complaints consists of two state law tort claims against Jarashow. (See Barber I Compl. at 19–22 (Counts VI–VII).) Notably, Barber has brought only three claims against Jarashow overall: the now-dismissed Section 1985 conspiracy claim (see Sec. III.D, supra); a contract interference claim (see Barber I Compl. at 19–21 (Count VI)); and a defamation claim (see id. at 21–22 (Count VII)). Thus, the only claims that remain against Jarashow at this point in the Court's analysis are the two tort claims, which have been brought under state law and pertain to Jarashow's alleged conduct with respect to Barber's quest for a judicial position in Maryland. Barber concedes both that it is within this Court's discretion to “decline to exercise supplemental jurisdiction” over these state law tort claims (Pl.'s Opp'n to Def. Jarashow's Mot., ECF No. 28, at 30 (quoting 28 U.S.C. § 1367(c)(3)), and that, given the circumstances presented here, she would suffer no prejudice if the Court did so (see Hr'g Tr. at 24:6–25:13). Based on these concessions, and in light of the early stage of this litigation, this Court will “decline to exercise supplemental jurisdiction” over the tort claims against Jarashow, and as a result, it will grant Jarashow's motion to dismiss Counts VI and VII of Barber I. 28 U.S.C. § 1367(c); see also Jackson v. Bowser, No. 18-cv-1378, 2019 WL 1981041, at *11 (D.D.C. May 3, 2019).8 V. In sum, and as reflected in the accompanying Order, this Court has addressed Defendants' motions to dismiss with respect to the eleven claims that Barber has made across the consolidated complaints as follows: Barber's employment claims (Barber *67 I Count V; Barber II Counts I, II, III, and IV) will be allowed to proceed, except that Count V of Barber I will be dismissed as against Natale and Nolen; Barber's constitutional claims (Barber I Counts I, II, III, and IV) will be dismissed without prejudice; Barber's oral motion to amend the complaint will be granted as to her procedural due process claim (Barber I Count I); and Barber's tort claims against Jarashow (Barber I Counts VI and VII) will also be dismissed without prejudice. Accordingly, the District Defendants' motion to dismiss Counts I, II, III, and IV of Barber II is DENIED.9 The District Defendants' motion to dismiss Counts I, II, III, and IV of Barber I is GRANTED, and Jarashow's motion to dismiss Counts VI and VII of Barber II is also GRANTED. With respect to the remaining claim, Count V of Barber I, the District Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent that it seeks to dismiss Count V of Barber I against individual defendants Natale and Nolen, and denied to the extent that it seeks to dismiss Count V of Barber I against the District and Adams based on Barber's January 2016 allegedly protected disclosure and Adams's subsequent allegedly retaliatory conduct.

Jackson

majority

Plaintiff Claudia Barber served as an Administrative Law Judge (“ALJ”) for the District of Columbia Office of Administrative Hearings (“OAH”) for eleven years, from August of 2005 until August of 2016, when she was terminated from that position. (See, e.g., First Am. Compl. (“Barber I Compl.”), ECF No. 11, ; Compl. (“Barber II Compl.”), No. 17-cv-1680, ECF No. 1-3, ¶ 7.)1 In two consolidated complaints, Barber brings eleven claims against five defendants related to her tenure and eventual termination.2 Generally speaking, Barber alleges that despite meeting or exceeding performance expectations throughout her service as an ALJ at OAH, she experienced discrimination based on her race and color, including repeated denials of promotions. (See Barber I Compl. ; Barber II Compl. ¶¶ 7–18.) Barber also claims that her supervisors retaliated against her between November of 2014 and January of 2016, after she made both formal and informal complaints to management about racial discrimination *55 and other concerns. (See Barber I Compl. ¶–62; Barber II Compl. ¶–18, 38–, 55–56.) Before this Court at present are two motions that Defendants have filed, which, collectively, seek to dismiss all of the counts in Barber's two consolidated complaints for various reasons. (See Dist. Defs.' Mot. to Dismiss Pl.'s Compl. with Prejudice (“Dist. Defs.' Mot.”), ECF No 25; Def. Jarashow's Mot. to Dismiss (“Jarashow's Mot.”), ECF No. 26.) As explained below, this Court concludes that the Defendants' motions must be GRANTED IN PART AND DENIED IN PART. In short, the Court will dismiss all of the counts that pertain to constitutional and tort claims, but will permit the counts that relate to employment discrimination and retaliation to proceed. I. The facts recited in this opinion are gleaned from Barber's consolidated complaints and must be accepted as true, see Bell Atlantic ; notably, they need not be recounted in full for the purpose of the instant ruling. It suffices to say here that Barber alleges that despite meeting or exceeding performance expectations throughout her tenure as an ALJ at OAH, she experienced discrimination based on her race and color—including repeated denials of promotions—as well as retaliation when she made complaints about her supervisors' allegedly discriminatory practices. (See Barber I Compl. ; Barber II Compl. ¶¶ 7–18.) Three examples illustrate some of the many alleged instances of discrimination and retaliation that are recounted in Barber's consolidated complaints. Barber alleges that in November of 2014, she complained to Wanda Tucker, the interim Chief ALJ, that “African American ALJs routinely received less complex and less serious cases than their Caucasian counterparts.” (Barber II Compl.) Approximately three days after complaining to Tucker, Barber allegedly was not assigned to a Principal ALJ (“PALJ”) position to fill a vacancy, even though she had been routinely assigned to fill such vacancies over the previous nine years. () Several months later, when another PALJ position opened up, Tucker allegedly “instituted unreasonable selection criteria in an effort to disqualify and retaliate against [Barber]” and to “discourage and eliminate African American ALJs from applying for the open position[.]” ( ¶ 13.) Indeed, Barber alleges that when she expressed her interest in the position, Tucker required her to complete “the equivalent of a literacy test, which Barber found humiliating.” () And eventually Paul Handy, a Caucasian male, was selected for the PALJ position. () Thereafter, in January of 2016, OAH Chief ALJ Eugene Adams “announced a new plan for the fair selection of PALJs” whereby the OAH would “promote those ALJs who volunteer to be PALJs alphabetically[,]” and under this new system, Barber was allegedly the next ALJ slated to be promoted. () However, Barber alleges that Adams promoted a Caucasian woman over her instead, ignoring the selection plan. () According to Barber's pleadings, this “was the third time a less qualified Caucasian ALJ was selected for a PALJ position over Barber.” () Due to Barber's concerns with her workplace environment and the limited opportunities for advancement as an ALJ, Barber began to consider running for a position as a judge on the Circuit Court for Anne Arundel, Maryland. (See) She sought guidance from the District's Commission on Selection and Tenure *56 (“COST”) and the Board of Ethics and Government Accountability with respect to her ability to run for the Maryland judicial position without resigning from her position as an ALJ in the District of Columbia. (See Barber I Compl. ¶–10.) After allegedly receiving mixed responses from some District employees and no responses from others, Barber filed a Certificate for Candidacy in Maryland on January 20, 2016, listing her party affiliation as “Judicial.” (See ¶–13.) In February of 2016, Defendant Jarashow, a Maryland attorney and former Anne Arundel County Circuit Court judge “who was supporting other candidates for the vacant circuit judge positions[,]” informed Chief ALJ Adams of Barber's candidacy. (See) Jarashow allegedly maintained that two provisions of the District's Code of Ethics for ALJs required Barber to resign from her ALJ position in DC upon becoming a judicial candidate elsewhere. (See ) Defendant Chief ALJ Adams subsequently placed Barber on administrative leave with pay, and after a COST hearing in July of 2016, Barber's employment as an ALJ was terminated for an ethics violation on August 2, 2016. (See 32–33.) Barber filed a complaint against all Defendants in this Court on April 6, which she amended on May 22, (“Barber I”). (See Compl., ECF No. 1; Barber I Compl.) The operative complaint in Barber I contains seven counts: two constitutional claims against the District alleging violations of procedural and substantive due process; a constitutional claim against the District pursuant to section 13 of Title 42 of the United States Code (“Section 13”); a civil conspiracy claim brought under section 15 of Title 42 of the United States Code (“Section 15”) against all Defendants; a claim under the D.C. Whistleblower Protection Act (DCWPA), –1-615.59, against the District Defendants; and two common law tort claims against Jarashow. (See Barber I Compl. at 12–22.)3 On July 19, Barber filed a second and separate complaint against the District and Adams in the Superior Court of the District of Columbia (“Barber II”); Defendants removed this complaint to federal court on September 11, (See Not. of Removal, No. 17-cv-10, ECF No. 1.) The complaint in Barber II includes four counts alleging workplace discrimination brought pursuant to the D.C. Human Rights Act (DCHRA), –1401.01–2-1411.06, and Title VII of the Civil Rights Act of 19, 42 U.S.C. 2000e–2000e-17. (See Barber II Compl. at 12–17.) This Court granted the District Defendants' motion to consolidate the two cases on October 17, and ordered all Defendants to file omnibus responses to both complaints. (See Order Granting Mot. to Consolidate, ECF No. 22, at 4–5.) On November 11, Defendants filed two motions to dismiss Barber's consolidated complaints. The Court held a lengthy motion hearing on May 9, after which it took the motions under advisement. (See May 9, Hr'g Tr. (“Hr'g Tr.”).) II. 1 2 3 4 As the Court explained to the parties during the motion hearing, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” *57 Therefore, “[t]o 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.” The plaintiff is not required to provide “detailed factual allegations,” but rather must only plead enough facts to “raise a right to relief above the speculative level” and to “nudge[ ] their claims across the line from conceivable to plausible[.]” Twombly, 570, At the motion-to-dismiss phase, a court must “construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged,” 292 F.3d at but it need not “accept legal conclusions cast as factual allegations[,]” The Court also explained that the eleven counts that Barber had brought between the two complaints could be logically grouped into three categories: employment claims (Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV); constitutional claims (Barber I Compl., Counts I, II, III, and IV); and tort claims (Barber I Compl., Counts VI and VII). (See Claims Handout, ECF No. 42.) The Court asked the parties to address these claim categories, in turn, during the motion hearing. III. Barber's complaints contain five counts alleging employment discrimination and retaliation under the DCHRA, the DCWPA, and Title VII of the Civil Rights Act. (See Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV; see also Claims Handout.) All of these claims survive Defendants' motion to dismiss, in at least some form, as explained below. A. 5 6 7 8 9 With respect to Barber's DCHRA and Title VII discrimination claims (Counts I and III of Barber II), Barber's complaint alleges that she was discriminated against based on her race and color. (See Barber II Compl. ¶¶ 30, 47.) Notably, “[c]ourts in this Circuit ‘have consistently recognized the ease with which a plaintiff claiming employment discrimination can survive a motion to dismiss[,]’ ” “In other words, the factual detail required to survive a motion to dismiss can be quite limited.” at –87 This is because a plaintiff need not prove a prima facie case at the motion-to-dismiss stage: instead, with respect to both Title VII and the DCHRA, “a plaintiff need only allege that she (1) suffered an adverse employment action (2) because of her membership in a protected category.” at Moreover, an “adverse employment action” is any event that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Indus., Barber has successfully pleaded her discrimination claims, on the basis of at least the following alleged facts, which, viewed collectively, are sufficient to give rise to a plausible claim of race discrimination: (1) the PALJ position was qualitatively different from the ALJ position because of its *58 supervisory duties (see ); (2) PALJs were paid more than ALJs (see ); (3) less qualified Caucasian ALJs were repeatedly selected for the better-compensated PALJ position over Barber and other more senior African American ALJs (see ); and (4) on one occasion in February 2016, Barber's non-selection violated an established plan for ALJs to be promoted to PALJs alphabetically (see ). Taken together, these facts are sufficient to support an inference that Barber suffered an adverse action when she was not promoted to the qualitatively different and higher-paying PALJ position (see ¶, 12, 18, 30, 47), and that this non-promotion was motivated by her race (see ¶–13, 18, 30, 47).4 The District Defendants argue that Barber's non-promotion to the PALJ position was not an “adverse action” because, among other things, Barber did not plead that PALJs were paid more at the time of her alleged non-promotions. (See Dist. Defs.' Mot. at 25.) But Barber's complaint alleges that PALJs were paid more than other ALJs for at least some period of time (see Barber II Compl. ), and nothing in the complaint suggests that the pay differential changed. “[C]onstru[ing] the complaint liberally, [and] granting [Barber] the benefit of all inferences that can be derived from the facts alleged,” 292 F.3d at –as the Court must do at this stage of litigation–it is at least plausible that PALJs were paid more than ALJs throughout Barber's tenure. The District Defendants also dispute that the alleged facts demonstrate the requisite causation; specifically, they insist that Barber was not selected as a PALJ according to the alphabetical plan in February of 2016 because she was placed on administrative leave with pay on February 12, 2016. (See Dist. Defs.' Mot. at 26.) However, once again, this contention improperly ignores the Court's duty to accept the allegations of the complaint as true and to construe the complaint liberally at the motion-to-dismiss stage. See 292 F.3d at Barber's complaint plainly alleges that “[i]n January 2016, Defendant Adams announced a new plan for the fair selection of PALJs” (i.e., the aforementioned plan “to promote those ALJs who volunteer to be PALJs alphabetically”) and also states that the timing was such that “Barber should be the next ALJ to be promoted to PALJ” under this new scheme. (Barber II Compl.) However, according to the complaint, “[i]n February 2016, Defendant Adams instead promoted a Caucasian ALJ, Sharon Goodie, to PALJ and ignored the selection plan[.]” () Given this timing, it is at least plausible that the allegedly discriminatory non-selection of Barber in a manner that was inconsistent with the established plan occurred prior to February 12, 2016. Therefore, the District Defendants' motion to dismiss Barber's Title VII and DCHRA discrimination claims will be denied. B. 10 11 12 13 14 Turning to Barber's retaliation claims, Barber II alleges in Counts II and IV that the District Defendants retaliated against her in violation of the DCHRA and Title VII. (See ¶¶ 38–, 55–56.) To state a claim for retaliation under Title VII or the DCHRA, a plaintiff “must establish three elements: [ (1) ] that she made a *59 charge or opposed a[n unlawful] practice, [ (2) ] that the employer took a materially adverse action against her, and [ (3) ] that the employer took the action because of her protected conduct.” The relevant provisions of the DCHRA are generally interpreted consistent with Title VII, see, e.g., ; and it is well established that the scope of adverse actions for Title VII retaliation claims is broader than it is for discrimination claims because Title VII's “antiretaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment[,]” N. & Santa Fe Ry. ; see also Instead, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted) ). Barber has successfully pleaded her retaliation claims, based on at least the following alleged facts: (1) on November 17, 2014, Barber made an internal complaint about racial discrimination in the assignment of complex cases (see ); (2) approximately three days later, Barber was not assigned to a vacant PALJ position, even though she had routinely been assigned to similar positions in the past (see ); and (3) one month later, on December 2, 2014, Barber was again denied promotion to the PALJ position (see ). These events, which are temporally proximate to one another, along with other, similar facts alleged in the complaint, are sufficient to support an inference of unlawful retaliation. See (explaining that causation can be reasonably inferred when two events are “very close in time” );5 Furthermore, the Court rejects the District Defendants' argument that Barber's non-selection to the PALJ position was not a materially adverse action because PALJs “were not paid more than ALJs at the relevant time[.]” (See Dist. Defs.' Mot. at 30.) As explained in Section III(A), Barber has alleged that PALJs were paid more than ALJs (see Barber II Compl. ), and that she was denied the opportunity to serve as a PALJ after she complained to Tucker about discrimination (see ¶, 11). These allegations are more than sufficient, given the capacious adverse-action framework that is applicable to retaliation claims. See 548 U.S. at Thus, this Court will also deny the District Defendants' motion to dismiss with respect to Barber's Title VII and DCHRA retaliation claims. C. 15 16 17 Count V of Barber I alleges that the District, Adams, Natale, and Nolen *60 retaliated against Barber in violation of the District of Columbia Whistleblower Protection Act, –1-615.59. The purpose of the DCWPA is to “ ‘increase protection for District government employees who report waste, fraud, abuse of authority, violations of law, or threat[s] to public health or safety[.]’ ” (quoting Whistleblower Protection for Certain District Employees, D.C. Laws 12–160, Act 12–8). “In order to establish a prima facie case under the [DCWPA], [a] plaintiff must allege facts establishing that [ (1) ] she made a protected disclosure, [ (2) ] that her supervisor retaliated or took or threatened to take a prohibited personnel action against her, and [ (3) ] that her protected disclosure was a contributing factor to the retaliation or prohibited personnel action.” Barber alleges that she made two disclosures that the DCWPA protects: a complaint that she filed with the Office of the Inspector General in January of 2016, and a negative response that she made to an auditing survey in April of 2016. (See Barber I Compl.) Barber's complaint also maintains that retaliation based on those disclosures “was a substantial or motivating factor” in the disciplinary proceedings that began in February of 2016 and resulted in her termination in August of 2016. (See) This Court finds that Barber has sufficiently pleaded a DCWPA claim based on at least the following alleged facts: (1) she made a protected disclosure to the Office of the Inspector General in January of 2016, by complaining that “Adams ordered OAH ALJs to attend mandatory diversity training and later allowed a large number of Caucasian ALJs to not attend the training that was already paid for by taxpayers” (see ); (2) Adams, her supervisor (see ), knew about her disclosure by April of 2016 (see ); and (3) her disclosure motivated Defendants—including Adams—with respect to various adverse employment actions they instituted against her, which started in February of 2016 and culminated when she was terminated in August of 2016 (see ). Accepting these facts as true, the Court concludes that it is plausible that Barber made a protected disclosure that contributed to Adams's February 2016 decision to place her on administrative leave with pay in a manner that gives rise to an actionable DCWPA claim, even if Adams may have also been motivated by Barber's decision to run for judicial office. In their briefing, the District Defendants dispute whether Adams knew about Barber's January 2016 disclosure before he placed Barber on leave in February of 2016. (See Dist. Defs.' Mot. at 22.) They insist that the complaint's allegation that Adams knew “by April of 2016” does not mean that he knew of the disclosure “in February [of] 2016.” (Dist. Defs.' Reply, ECF No. 31, at 16 (second emphasis in original).) In addition, at the motion hearing, the District Defendants argued (for the first time) that Barber's January 2016 disclosure did not qualify as a protected activity, because Barber merely revealed a policy or management disagreement rather than making a statement that she “reasonably believe[d] evidence[d]” “[g]ross mismanagement”; “[g]ross misuse or waste of public resources or funds”; “[a]buse of authority in connection with the administration of a public program or the execution of a public contract”; [a] violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature”; or “[a] substantial and specific danger to the public health and safety[,]” as the DCWPA requires. *61 (a)(6). (See Hr'g Tr. at 41:10–43:17.) As this Court has explained repeatedly (both during the hearing and herein), arguments of this type raise factual disputes that are not appropriately considered at the motion-to-dismiss stage of a case. (See, e.g., at 26:24–27:16, 57:25–58:19.). See also, e.g., 0 F.Supp.3d 114, 122–24, 125–28, WL 24346, In the instant context, so long as it is at least plausible that Barber's January 2016 disclosure qualified as protected based on its alleged contents, and that Adams knew about the disclosure prior to placing Barber on administrative leave in February of 2016, Barber's DCWPA claim may proceed. See, e.g., Democracy This Court has a different view of Barber's DCWPA claims against individual defendants Natale and Nolen, as well as any DCWPA claim based on Barber's April 2016 response to an auditing survey. (See Barber I Compl. ¶8–63.) First of all, nothing in the complaint supports Barber's argument that this Court can make “[a] reasonable inference from the complaint that Defendant Adams disclosed Plaintiff Barber's complaint to other OAH employees, including Defendants Nolen and Natale.” (See Pl.'s Opp'n to Dist. Defs.' Mot. (“Pl.'s Dist. Defs. Opp'n”), ECF No. 29, at) This is because the complaint alleges only that Adams knew about Barber's January 2016 disclosure (see Barber I Compl. ), and there are no plausible allegations concerning Natale's or Nolen's knowledge of Barber's protected disclosures to OAH in January of 2016, nor does the complaint say anything about their knowledge of any other potentially protected disclosures. (See generally Barber I Compl.; Barber II Compl.) Thus, there are no facts from which to infer that these individual defendants could have retaliated against Barber in violation of the DCWPA. (See Dist. Defs.' Mot. at 22.) Second, Barber has failed to plead that anyone who took an allegedly retaliatory action against her knew about her April 2016 negative response to the DC Auditor survey. (See Barber I Compl. ¶ 61; see generally ; Barber II Compl.) Therefore, again, there is no factual basis upon which to draw any inference that any defendant knew of Barber's survey response and retaliated against her for that known, protected conduct. 18 19 Consequently, Barber's DCWPA claim may proceed only against the District and Adams, and only to the extent that the claim relies on Barber's January 2016 disclosure to the Office of the Inspector General and on any retaliatory conduct by Adams.6 III. In addition to the employment discrimination and retaliation claims addressed in Section II above, Barber's complaint includes *62 four counts against the District and individual defendants Adams, Natale, Nolen, and Jarashow, alleging various constitutional violations. (See Barber I Compl. at 12–18 (Counts I, II, III, and IV).) Specifically, Barber claims that the District violated her constitutional rights to procedural due process and substantive due process (see at 12–15 (Counts I, II)); that the District has a “custom or policy” concerning judicial elections that violates the Fourteenth Amendment's Equal Protection Clause and Fifth Amendment's right to contract (see at 15–16 (Count III)); and that the District and the individual defendants “deprived [Barber] of equal protection of the laws and/or privileges under the laws by conspiring to violate her due process rights under the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment” ( 4; see also at 16–18 (Count IV)). In their current form, none of these claims survive Defendants' motions to dismiss. A. 20 In Count I of Barber I, Barber alleges, as a freestanding constitutional claim, that the District violated her procedural due process rights. (See)7 Some of the factual allegations that are references in Barber's complaint relate to alleged due process violations in connection with Barber's termination, while others relate to alleged reputational harm that District employees caused after Barber was terminated. (See ¶¶ 38–.) Thus, at the outset, it is unclear whether Barber's procedural due process claim is based upon purported deficiencies in her termination process, and thus turns upon the adequacy of the notice and any hearing she was afforded, see or whether her claim is based upon an alleged reputational injury, which is assessed based on the combination of an “adverse job action” and either “official defamation” or “a stigma or other disability that foreclosed [her] freedom to take advantage of other employment opportunities.” 3 F.3d 226, Notably, these are different legal theories of a procedural due process violation, and these distinct theories rely on different factual allegations. Thus, it is clear to this Court that Barber's procedural due process claim does not provide adequate notice to the District under Federal Rule of Civil Procedure 8. See Because of this, the Court will grant the District's motion to dismiss Count I of Barber I, but it will also grant the oral motion to amend the complaint that Barber's counsel made at the motion hearing as to this claim, consistent with the Order accompanying this Opinion. (See Hr'g Tr. at 82:23–83:5; see also at 52:19–54:4.) *63 B. 22 Barber further alleges, in Count II of Barber I, that the District violated her “substantive due process rights by demanding that she resign from her position as an ALJ and thereafter removing her based on an alleged violation of Section V(U)[.]” (Barber I Compl.) A claim that the government has violated a plaintiff's substantive due process rights requires conduct “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Estate of 455 F.3d 7, ). Given the kinds of actions that courts have found sufficient to satisfy this standard, it is clear to the Court that the conduct Barber points to here—i.e., the District's alleged “demand” that she resign as an ALJ if she intended to run for judicial office elsewhere, and her eventual removal from her ALJ position—falls far short of the level of misconduct that is required to sustain a substantive due process claim. See ; see also, e.g., (describing the forced pumping of a suspect's stomach as conduct that offends due process because it “shocks the conscience”). Thus, Barber has failed to state a substantive due process claim on these grounds. 23 To the extent that Barber's substantive due process claim is based on her belief that Section V(U) of the OAH Code of Ethics (“Section V(U)”) is an “unconstitutional, arbitrary and capricious policy” (see ; see also ), any such allegation is a conclusion of law that the court need not accept, see 677 F.3d at Moreover, and in any event, Barber's beliefs in this regard are not well founded. Section V(U) provides that [a]n Administrative Law Judge shall resign from judicial office when the Administrative Law Judge becomes a candidate either in a party primary or in a partisan general election except that the Administrative Law Judge may continue to hold office, while being a candidate for election to or serving as a delegate in a jurisdiction's constitutional convention, if otherwise permitted by law to do so. () This requirement is rationally related to legitimate government interests of “protecting the integrity of the judiciary” and “maintaining the public's confidence in an impartial judiciary.” ; see also ; cf. U.S. Civil Serv. And this Court has no doubt that this ethics rule does not violate the substantive due process rights of the ALJs who are subject to it. If Barber's intent was, instead, to allege that District employees misapplied Section V(U), or acted in violation of the procedural protections Barber was entitled to, this Court is bound by D.C. Circuit precedent, which has flatly rejected similar substantive due process claims even under circumstances in which the government has taken action against a plaintiff based on mistaken beliefs and in violation of the law. See, e.g., ; see also * Accordingly, Barber's complaint fails to state a substantive due process claim in any respect, and as a result, the District's motion to dismiss Barber's claim must be granted. C. 24 25 26 Count III of Barber I claims a violation of Section 13, insofar as the District allegedly has a “custom or policy” concerning ALJs who seek to run for office that violates the Equal Protection Clause and the Fifth Amendment. (See Barber I Compl. ¶¶ 47–51.) To succeed in a claim for relief under Section 13, “a plaintiff must prove both (1) a predicate constitutional violation and (2) that a custom or policy of the municipality caused the violation.” The “threshold inquiry” in a Section 13 suit “requires courts to identify the specific constitutional right at issue.” Here, Barber's complaint does not meet this threshold requirement. The relevant count of the complaint cites two constitutional provisions—the Equal Protection Clause of the Fourteenth Amendment and the right to contract that the Fifth Amendment protects. (See) The pleading then describes the alleged impact of Section V(U), at least as Defendant Adams has interpreted it. (See ¶¶ 49–50 (“Defendant Adams'[s] interpretation bars ALJs who do not reside in the District of Columbia, such as Plaintiff Barber, from participating in judicial elections to become judges in states such as Maryland where trial judges are elected and requires ALJs who do run in elections such as the Maryland election for Circuit Court judges to resign from employment or be terminated.”).) Barber's complaint asserts that Adams's interpretation renders Section V(U) “unconstitutional on its face, arbitrary and [in]sufficiently justified by government interests” ( ¶ 49), and, in her opposition to the District Defendants' motion to dismiss, Barber baldly alleges that her Section 13 claim also pertains to a violation of the Privileges and Immunities Clause (see Pl.'s Dist. Defs. Opp'n at 27). But Barber has made no attempt to relate the allegations concerning Section V(U)'s alleged impact on ALJs to the elements of an equal protection or constitutional contract claim, and when questioned about this at the hearing, Barber's counsel simply stated that it was Barber's intent to allege that Section V(U) “was unconstitutional in the manner in which it was applied[.]” (Hr'g Tr. at 15:24–25.) 27 28 Given these myriad constitutional provisions and vague allegations, the Court agrees with Defendants that Barber's Section 13 claim must be dismissed. “[Barber] provides no explanation of the alleged conflict between [Section] V(U), or any interpretation of it, and any constitutional provision” (Dist. Defs.' Mot. at 18), and it is well established that a complaint that contains legal claims that are divorced from the factual allegations necessary to satisfy the applicable legal standards is subject to dismissal, see 319 F.R.D. at Other courts in this district have likewise concluded that generalized statements alleging violations of multiple constitutional provisions without a description of how the facts alleged constitute the claimed violations “fail to provide the ‘requisite specificity’ needed to survive a motion to dismiss.” So it is here. By alleging only that Section V(U) prevents Barber from maintaining her position as an ALJ while running *65 for judicial office elsewhere, without any allegations of fact or citations to law that plausibly explain why such a circumstance constitutes a violation of Barber's constitutional rights, Barber's Section 13 count fails both Rule 8's notice requirement and Rule 12(b)(6)'s mandate that a complaint state a claim upon which relief can be granted. Consequently, Barber's Section 13 claim (Count III of Barber I) will be dismissed. D. 29 Finally, with respect to the category of constitutional claims, Count IV of Barber I alleges that the District and individual defendants Adams, Natale, Nolen, and Jarashow conspired to deprive Barber of “equal protection of the laws[.]” (See Barber I Compl. 4.) The thrust of Barber's allegation appears to be that Jarashow “falsely claim[ed] that [Barber] was running as a Democrat candidate” in the Maryland judicial election, and that the individual defendants conspired to produce a legal opinion that mischaracterized the Maryland election as “partisan” in order to influence District authorities concerning whether Barber's ALJ position should be terminated. () Thus, the factual basis for Barber's claim that these defendants violated Section 15 of Title 42 of the United States Code, which prohibits conspiracies for the purpose of depriving individuals of equal protection, appears to be the alleged fact that Jarashow initiated the actions that led to Barber's termination because he (falsely) intimated she was running as a Democrat. 30 To state a claim under Section 15, a plaintiff must allege: (1) a conspiracy (2) motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus’ (3) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (4) an act in furtherance of the conspiracy (5) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. (quoting United Bhd. of Carpenters, Local (13)). Barber's Section 15 contention falters from the get-go—i.e., with respect to the first and second elements of such a claim—and it fails even if one sets aside the complicated question of whether or not one's status (or perceived status) as a member of a political party qualifies as a protected class for the purposes of a Section 15 conspiracy. (See Pl.'s Dist. Defs. Opp'n at 40–43.) See also –37, (withholding judgment as to whether Section 15 extends to animus based on political party, views, or activities); (D.C. Cir. 14) (collecting cases addressing Section 15's applicability to political animus, but declining “to decide whether purely political activity without any racial overtones falls within [S]ection 15(3)”). Specifically, Barber's Section 15 claim is fatally flawed because her complaint is completely devoid of any allegations regarding any defendant's intent to oust her from her job or deny her future opportunities on the basis of a protected trait or characteristic, such that her pleading plausibly implicates the right to equal protection or equal privileges under the law. There are no facts in Barber's complaint that suggest that anyone other than Jarashow knew of or even assumed Barber's political party, much less that any other alleged member of the conspiracy could *66 have been motivated by legally actionable animus against that classification. (See generally Barber I Compl.) Nor has Barber alleged that the conspiracy was based on any other theory of discrimination that might qualify as a denial of equal protection. (See generally ; see also Hr'g Tr. at 82:7-8 (“[W]e have not made the assertion in the complaint that there was a racial component[.]”).) Barber's complaint is also entirely silent when it comes to any allegations of fact regarding an actual agreement amongst the defendants, which is the essence of a conspiracy; that is, nothing in the complaint even hints at “the existence of any events, conversations, or documents indicating that there was ever an agreement or meeting of the minds” amongst the defendants to violate her rights based on her membership in a protected class. Barber's assertion of any agreement at all (see Barber I Compl. ¶4–55) is “conclusory at best[,]” and it is clear that “[c]onclusory allegations of an agreement will not suffice” to support a Section 15 conspiracy claim at the motion-to-dismiss stage, Therefore, Barber's Section 15 claim (Count IV of Barber I) will also be dismissed. IV. The last category of claims that Barber brings in the two consolidated complaints consists of two state law tort claims against Jarashow. (See Barber I Compl. at 19–22 (Counts VI–VII).) Notably, Barber has brought only three claims against Jarashow overall: the now-dismissed Section 15 conspiracy claim (see Sec. a contract interference claim (see Barber I Compl. at 19– (Count VI)); and a defamation claim (see at –22 (Count VII)). Thus, the only claims that remain against Jarashow at this point in the Court's analysis are the two tort claims, which have been brought under state law and pertain to Jarashow's alleged conduct with respect to Barber's quest for a judicial position in Maryland. Barber concedes both that it is within this Court's discretion to “decline to exercise supplemental jurisdiction” over these state law tort claims (Pl.'s Opp'n to Def. Jarashow's Mot., ECF No. 28, at 30 (quoting (c)(3)), and that, given the circumstances presented here, she would suffer no prejudice if the Court did so (see Hr'g Tr. at 24:6–25:13). Based on these concessions, and in light of the early stage of this litigation, this Court will “decline to exercise supplemental jurisdiction” over the tort claims against Jarashow, and as a result, it will grant Jarashow's motion to dismiss Counts VI and VII of Barber I. (c); see also WL 11041,8 V. In sum, and as reflected in the accompanying Order, this Court has addressed Defendants' motions to dismiss with respect to the eleven claims that Barber has made across the consolidated complaints as follows: Barber's employment claims (Barber *67 I Count V; Barber II Counts I, II, III, and IV) will be allowed to proceed, except that Count V of Barber I will be dismissed as against Natale and Nolen; Barber's constitutional claims (Barber I Counts I, II, III, and IV) will be dismissed without prejudice; Barber's oral motion to amend the complaint will be granted as to her procedural due process claim (Barber I Count I); and Barber's tort claims against Jarashow (Barber I Counts VI and VII) will also be dismissed without prejudice. Accordingly, the District Defendants' motion to dismiss Counts I, II, III, and IV of Barber II is DENIED.9 The District Defendants' motion to dismiss Counts I, II, III, and IV of Barber I is GRANTED, and Jarashow's motion to dismiss Counts VI and VII of Barber II is also GRANTED. With respect to the remaining claim, Count V of Barber I, the District Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent that it seeks to dismiss Count V of Barber I against individual defendants Natale and Nolen, and denied to the extent that it seeks to dismiss Count V of Barber I against the District and Adams based on Barber's January 2016 allegedly protected disclosure and Adams's subsequent allegedly retaliatory conduct.

Bird v. Barr

The plaintiffs in this case are current and former female employees of the Federal Bureau of Investigation (“FBI”) who allege that they suffered sex-based discrimination when they were enrolled in the FBI Academy's Basic Field Training Course. (See 3d Am. Compl, ECF No. 49, ¶ 1.) Before this Court at present is a motion for a preliminary injunction that Plaintiffs filed four months after initiating this lawsuit, seeking to enjoin the FBI from retaliating against them, or any potential witnesses, due to their participation in this action. (See Pls.’ Mot. for a Prelim. Inj. for Protection from Retaliation (“Pls.’ PI Mot.”), ECF No. 24.) Plaintiffs’ primary allegations center on Erika Wesley, a current FBI employee and a plaintiff in this action, who maintains that her supervisors in the FBI's Phoenix, Arizona Division (where Wesley works) have retaliated against her by, among other things, threatening to terminate her, failing to give her meaningful assignments, and denying requests for reasonable accommodations for her disability. (See Mem. in Supp. of Pls.’ PI Mot. (“Pls.’ PI Mem.”), ECF No. 24-1, at 11.)1 Plaintiffs also point to the experiences of another FBI employee in the Phoenix Division, Mary Martinez, who is not a plaintiff in this matter but submitted a declaration in support of Plaintiffs’ earlier motion for leave to proceed under pseudonym. (See id. at 20–22.) Plaintiffs’ PI motion alleges that, as a result of Martinez's help with this litigation, Martinez was required to submit excessive documentation to support a request for FMLA leave, and was allegedly placed on AWOL status when the requested leave was initially denied (the FBI ultimately approved Martinez's leave request and the AWOL citation was eventually removed from her record). (See id. at 28.) Plaintiffs assert that preliminary injunctive relief is necessary “to protect [Wesley] from irreparable harm to her job and her health” (id. at 7), and “to protect the judicial process from the chilling impact of Defendant's retaliation bordering on constructive discharge against a named plaintiff, which would deter anyone else from coming forward to join this putative class action or from offering truthful testimony in this matter” (id.). As such, they request an order preliminarily enjoining the FBI “from engaging in any retaliation against any plaintiff or witness in this action[.]” (Proposed Order, ECF No. 24-14, at 1.) They also seek specific relief with respect to Wesley and Martinez aimed at the retaliation that they allege has occurred. (See id. at 1–2.) For the reasons explained below, it is clear to this Court that Plaintiffs misapprehend the purpose and function of a preliminary injunction, and in fact, this Court lacks jurisdiction to order the FBI to refrain from generally retaliating against Plaintiffs and witnesses in the manner that Plaintiffs request. Plaintiffs’ PI motion also fails with respect to the specific retaliation claim that has now been brought concerning Wesley (see 3d Am. Compl. ¶¶ 129–34), because Plaintiffs have not established that they have a likelihood of success on the merits of that legal claim, nor have they demonstrated that Wesley is at imminent risk of irreparable harm. Accordingly, Plaintiffs’ motion for a preliminary injunction is DENIED. I. *2 Plaintiffs’ PI motion is, for the most part, premised on a fundamental misunderstanding of how preliminary injunctions function in a civil action filed in federal court. No less an authority than the Supreme Court of the United States has explained that “[a] preliminary injunction is [ ] appropriate to grant intermediate relief of the same character as that which may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (emphasis added). Accordingly, in the De Beers case, the Supreme Court held that, where the requested injunctive relief could not be granted as final relief, it also could not be granted as intermediate relief. And although the De Beers Court dealt with a federal court's authority to enter a preliminary injunction under a predecessor of the All Writs Act, the Supreme Court indicated clearly that the proper scope of a federal court's authority to issue injunctive relief as envisioned by Congress is determined based on “the usages and principles of law[,]” and before issuing any injunctive relief, a court must ask “what is the usage, and what are the principles of equity applicable in such a case.” Id. at 219. Thus, a proper motion for a preliminary injunction seeks to enjoin the action that the complaint alleges is unlawful prior to the completion of the litigation, and without such a connection between the claim and requested injunction, there is simply no jurisdictional basis for the Court to grant preliminary relief. See, e.g., Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (noting that a court lacks authority to issue a preliminary injunction absent a “sufficiently strong” connection “between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint[,]” and that such a connection exists where “the preliminary injunction would grant relief of the same character as that which may be granted finally” (internal quotation marks and citation omitted)); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (explaining that “[t]he purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed or further harmed in the manner in which the movant contends it was or will be harmed through the illegality alleged in the complaint”); Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1, 24 (D.D.C. 2019) (explaining that “a federal court that invokes its authority to enjoin an agency's conduct preliminarily pending the court's final order in the matter is thereby effectively accelerating provision of the relief that the plaintiff seeks, prior to the conclusion of the litigation”), rev'd and remanded sub nom. on other grounds, Make The Rd. New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); see also 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2015) (explaining that preliminary injunction entitles the movant to relief before a ruling on the merits precisely because “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”). Moreover, and significantly for present purposes, it is important to understand what a preliminary injunction is not: it is not a generic means by which a plaintiff can obtain auxiliary forms of relief that may be helpful to them while they litigate unrelated claims. To the contrary, this Court only possesses the power to afford preliminary injunctive relief that is related to the claims at issue in the litigation, as previously explained, and to get such extraordinary relief, a plaintiff has to satisfy well-established criteria, including demonstrating that they are likely to succeed on the merits of the underlying legal claims, and showing that they will suffer irreparable injury in the absence of a preliminary injunction. See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (explaining that a party seeking a preliminary injunction “must establish that [she] is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest”). II. *3 With respect to the PI motion at issue here, the disconnect between the underlying claims in the lawsuit and the alleged basis for preliminary relief could not be more evident. This is because, in their complaint, Plaintiffs allege that the FBI authorized, or engaged in, sex-discrimination while Plaintiffs were in the FBI training academy and seek, inter alia, to enjoin such conduct (see 3d Am. Compl., Prayer for Relief, ¶¶ 4–5), but in the PI motion, Plaintiffs request an injunction “to protect all of the name plaintiffs” from potential reprisals for participating in this legal action as a general matter. (Pls.’ PI Mem. at 7.) The requested preliminary injunctive relief bears no resemblance to the relief that the Plaintiffs request in the underlying action. (See 3d Am. Compl., Prayer for Relief, ¶¶ 1–10.) And Plaintiffs are wrong to tout the existence of the All Writs Act—which permits this Court to “issue all writs necessary or appropriate in aid of [its] respective jurisdiction[,]” 28 U.S.C. § 1651(a)—as the basis for an argument that the Court has general jurisdiction “ ‘to preserve its process and to prevent and rectify punishment of those who appeared before it.’ ” (Pls.’ PI Reply at 30 (quoting EEOC v. Locals 14 & 15, Int'l Union of Operating Engineers, 438 F. Supp. 876, 879 (S.D.N.Y. 1977)).) It is now well established that “the express terms of the [All Writs] Act confine the power of the [Court] to issuing process ‘in aid of’ its existing statutory jurisdiction; the Act does not enlarge that jurisdiction[.]” Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999) (emphasis added). Thus, the Court is authorized to issue an injunction concerning acts of the defendant that are not alleged in the complaint under the All Writs Act only when those acts are “closely related to the facts in the complaint[.]” Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002). As this Court has already explained, no such close a connection exists in this case, despite Plaintiffs’ arguments to the contrary. (See Pls.’ PI Reply at 7.) Instead, just as in Adair, the only connection between the complaint and Plaintiffs’ request for injunctive relief to protect them from reprisals is that there is a lawsuit pending and Plaintiffs assert that the FBI has (or may) retaliate against them and potential witnesses. See Adair, 193 F. Supp. 2d at 201 (citations omitted). The Adair court recognized that such a connection is insufficient to allow this Court to invoke the All Writs Act to award the general injunctive relief that Plaintiffs seek, see id., and this Court does the same. The authorities that Plaintiffs cite and rely upon are not to the contrary. (See Pls.’ Reply at 9.) For instance, Plaintiffs cite to Holly Sugar Corp. v. Johanns, No. 03-cv-1739, 2006 WL 8451547, at *4 (D.D.C. Aug. 1, 2006), for the proposition that courts can issue preliminary injunctions to protect witnesses based on allegations not contained in the complaint. But that statement is nothing more than dicta, and the court in Holly Sugar actually found that it did not have jurisdiction to issue the requested injunction because “the issues raised by the plaintiffs in their request for a preliminary injunction are ... clearly unrelated to the issues alleged in the Complaint.” Id. Similarly, in Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir. 1981), the Second Circuit merely held that a court had jurisdiction to issue preliminary injunctive relief with respect to retaliation claims that were asserted in a pending complaint, but for which the plaintiff was still awaiting a right to sue letter from the EEOC. See id. at 885–86. Finally, the factual circumstances in EEOC v. Locals 14 & 15, International Union of Operating Engineers, 438 F. Supp. 876 (S.D.N.Y. 1977), are entirely inapposite, as the court there issued a preliminary injunction with respect to retaliation that had occurred after the trial in the underlying matter and while the case was on appeal, based on a determination that the “retaliation charges are ancillary to the main issues in a case and should, partially because of the possibilities of a remand, be heard by the district court even while the main issues were pending appeal.” Id. at 880.2 *4 Thus, Plaintiffs’ motion fails at the threshold—due to a lack of jurisdiction—even prior to the Court's consideration of the well-worn PI factors. Nevertheless, this Court is confident that Plaintiffs’ motion falls short with respect to that examination, too, since Plaintiffs have not provided any factual basis whatsoever for concluding that every named Plaintiff is actually entitled to preliminary injunctive relief, either because each has a likelihood of succeeding on the merits of the complaint's sex-discrimination claim (or, perhaps, some not-yet-pleaded retaliation claim), or because each is imminently likely to be the object of any retaliatory act by the FBI, much less that they would all suffer irreparable harm due to any such retaliation in the absence of a preliminary injunction. Instead, Plaintiffs appear to request injunctive relief by association: their request for a generic FBI-wide anti-retaliation order is based on the alleged actions of a handful of supervisors who are located in the Phoenix Division and who have allegedly taken steps to retaliate against one Plaintiff (Wesley) and one witness (Martinez). (See Pls.’ PI Mot. at 10–19; 20–22.) There are no allegations in the complaint, or the PI motion, that the FBI has engaged in a pattern or practice of retaliatory conduct on a nationwide scale. Yet, Plaintiffs argue that broad injunctive relief is needed to, essentially, send a message that Plaintiffs and witnesses are protected in order to preserve future participants’ willingness to participate in this litigation. (See Pls.’ PI Reply at 25–26 (observing that “the FBI is a relatively small community,” and that “what happens in connection with this litigation—including resolution of this motion—will be seen by class members and witnesses throughout the FBI”).) In the absence of any evidentiary support for the speculative suggestion that the FBI will target Plaintiffs and witnesses going forward, this Court cannot find that Plaintiffs have established any of the traditional PI factors. Nor is this Court aware of any authority that supports Plaintiffs’ implicit suggestion that a preliminary injunction can properly issue to address potential conduct of a defendant that is neither established nor imminent, whether to ensure the participation of parties and witnesses or otherwise. To be clear: if these Plaintiffs have allegations and evidence that the FBI is engaged in a wide-spread practice of retaliating against them (or their potential witnesses) for filing this lawsuit or participating in the instant action, then they will be granted leave to make those legal claims as part of the instant action, and if Plaintiffs can also demonstrate that they have a likelihood of success on the merits of such retaliation claims and that they will face irreparable injury unless the FBI is enjoined from engaging in this unlawful behavior while the retaliation claims are being litigated, then this Court would have both subject-matter jurisdiction and ample justification to issue a preliminary injunction. What Plaintiffs cannot do is file a legal action alleging only that the FBI has previously engaged in unlawful sex-based discrimination, and then parlay that claim into a request for a preliminary injunction that prevents potential (but not actually alleged) retaliatory acts by Defendant, where those acts do not relate to the same conduct that gave rise to Plaintiffs’ underlying claims, and when Plaintiffs have not yet demonstrated either that they have a likelihood of success with respect to any of their claims or that they will suffer irreparable injury in the absence of the requested injunctive relief. III. To the extent that Plaintiffs have now made specific allegations in the complaint concerning alleged retaliatory conduct by supervisors in the FBI's Phoenix Division against Wesley (see, e.g., 3d Am. Compl. ¶¶ 129–34), they have cleared the jurisdictional bar to this Court's consideration of Plaintiffs’ motion for a preliminary injunction with respect to that particular claim. However, in order to be entitled to preliminary injunctive relief, Plaintiffs must also show, inter alia, that Wesley is substantially likely to succeed on the merits of her retaliation claim, and that she will suffer irreparable injury in the absence of preliminary relief. See, e.g., Food & Water Watch, Inc. v. Vilsack, 79 F. Supp. 3d 174, 185 (D.D.C.), aff'd, 808 F.3d 905 (D.C. Cir. 2015); see also Sampson v. Murray, 415 U.S. 61, 88 (1974) (explaining that “the basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies”). Upon consideration of the parties’ arguments and evidence, the Court finds that Wesley has not satisfied her burden on either of these fronts for at least three reasons. *5 First of all, Wesley has not provided sufficient evidence in connection with the motion (such as live witness testimony) to enable this Court to make credibility determinations as is necessary to resolve the myriad disputes of fact that abound with respect to her retaliation claim. (Compare Decl. of Mary Martinez, Ex. 3 to Pls.’ PI Mem., ECF No. 24-5, ¶ 5 (stating that an FBI supervisor, Andrew Braun, told Martinez that Wesley “needs to go” because she has engaged in EEO activity) with Decl. of Andrew J. Braun, Ex. 2 to Def.’s PI Opp'n, ECF No. 27-3, ¶ 8 (denying that he made any such statement).) To demonstrate a substantial likelihood of success on the merits of one's claim in support of preliminary injunction, evidence that is sufficient to permit resolution of material disputes of fact is required. Cf. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (explaining that a movant seeking a preliminary injunction must provide “substantial proof” that clearly shows her entitlement to relief); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2015) (“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.”) (collecting cases). And the reverse is also true—“the Court cannot conclude that the plaintiff has demonstrated a substantial likelihood of success on the merits” where there are unresolved “disputes regarding the inferences that must be drawn from the facts in the record[.]” Davis v. Billington, 76 F. Supp. 3d 59, 64 (D.D.C. 2014) (internal alterations, quotation marks, and citation omitted); see also Navistar, Inc. v. EPA, No. 11-cv-449, 2011 WL 3743732 at *3 (D.D.C. Aug. 25, 2011) (explaining that, without “a substantial indication of likely success on the merits, there [is] no justification for the court's intrusion into the ordinary processes of administration and judicial review” (internal quotation marks and citation omitted)). Second, Wesley has not established that she is at risk of imminent, irreparable injury in the absence of injunctive relief. “It is well-settled that preliminary injunctive relief is not usually available in employment cases” because “it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.’ ” Moore v. Summers, 113 F. Supp. 2d 5, 24 (D.D.C. 2000) (quoting Sampson, 415 U.S. at 90). Thus, Plaintiffs need to explain why Wesley would not have all of the traditional remedies for unlawful adverse action in the employment context—including back pay, damages, reinstatement—available to her if she ultimately succeeds on her retaliation claim. See, e.g., Sataki v. Broad. Bd. of Governors, 733 F. Supp. 2d 22, 47 (D.D.C. 2010) (explaining that “ ‘given the court's equitable powers to remedy loss in employment through, for example, back pay and time in service credit, cases are legion holding that loss of employment does not constitute irreparable injury’ ” (quoting Farris v. Rice, 453 F. Supp. 2d 76, 79 (D.D.C. 2006) (alteration omitted))); Nichols v. Agency for Int'l Dev., 18 F. Supp. 2d 1, 5 (D.D.C. 1998) (finding that a Title VII plaintiff had not established irreparable injury from the imminent loss of his job because, if successful in his suit, he would “be able to recover fully his backpay and [a] full complement of compensatory relief”). This Court does acknowledge what other courts have recognized; that, in certain limited circumstances, the loss of a unique position can satisfy the irreparable harm requirement. See, e.g., Saunders v. George Washington Univ., 768 F. Supp. 843, 845 (D.D.C. 1991). But, again, Plaintiffs would have to make a persuasive argument that Wesley's circumstances fall within this narrow exception, which they simply have not done. Indeed, the specific injunctive relief that Wesley seeks relates to her working conditions, rather than the imminent loss of her unique or specialized job. See Katz v. Georgetown Univ., No. 00-cv-2412, 2000 WL 33539394 at *5–6 (D.D.C. Nov. 6, 2000), aff'd, 246 F.3d 685 (D.C. Cir. 2001).3 Moreover, Plaintiffs have not presented any evidence to support Wesley's speculative contention that, if she leaves her position based on the FBI's alleged failure to accommodate her disability, she would be precluded from using her intelligence analyst skills elsewhere, such as at a different federal agency. (See Decl. of Erika Wesley, Ex. 1 to Pls.’ PI Mot., ECF No. 24-3, ¶ 74.) *6 Third, and finally, the Court is persuaded by the FBI's argument that, in any event, the relief that Wesley requests cannot be ordered at this moment in time, because Wesley “is currently on suspended employment status” due to the present suspension of her security clearance, which is a prerequisite to working at the FBI. (See Def.’s Status Report, ECF No. 36, at 1.) To this Court's knowledge, the agency's investigation into Wesley's clearance status is still ongoing, and the law in this Circuit is clear that judicial review of the merits of clearance decisions is absolutely barred. See Rattigan v. Holder, 689 F.3d 764, 768 (D.C. Cir. 2012).4 Therefore, at least for now—as Plaintiffs appear to have conceded (see Hr'g Tr. at 73:10–15)—this Court cannot order the FBI to reinstate Wesley's clearance and award her the interim relief that she seeks regarding her working conditions. IV. In conclusion, it is clear to this Court that it lacks jurisdiction to enter an order preliminarily enjoining the FBI from generally retaliating against the Plaintiffs and witnesses in this case, and the Court further finds that Wesley has not established that she is entitled to preliminary injunctive relief with respect to the retaliation claim that appears in the Plaintiffs’ amended pleadings. Therefore, as set forth in the separate Order that accompanies this Memorandum Opinion, Plaintiffs’ [24] Motion for Preliminary Injunction for Protection from Retaliation is DENIED.

Jackson

majority

The plaintiffs in this case are current and former female employees of the Federal Bureau of Investigation (“FBI”) who allege that they suffered sex-based discrimination when they were enrolled in the FBI Academy's Basic Field Training Course. (See 3d Am. Compl, ECF No. 49, ¶ 1.) Before this Court at present is a motion for a preliminary injunction that Plaintiffs filed four months after initiating this lawsuit, seeking to enjoin the FBI from retaliating against them, or any potential witnesses, due to their participation in this action. (See Pls.’ Mot. for a Prelim. Inj. for Protection from Retaliation (“Pls.’ PI Mot.”), ECF No.) Plaintiffs’ primary allegations center on Erika Wesley, a current FBI employee and a plaintiff in this action, who maintains that her supervisors in the FBI's Phoenix, Arizona Division (where Wesley works) have retaliated against her by, among other things, threatening to terminate her, failing to give her meaningful assignments, and denying requests for reasonable accommodations for her disability. (See Mem. in Supp. of Pls.’ PI Mot. (“Pls.’ PI Mem.”), ECF No. -1, at 11.)1 Plaintiffs also point to the experiences of another FBI employee in the Phoenix Division, Mary Martinez, who is not a plaintiff in this matter but submitted a declaration in support of Plaintiffs’ earlier motion for leave to proceed under pseudonym. (See at –22.) Plaintiffs’ PI motion alleges that, as a result of Martinez's help with this litigation, Martinez was required to submit excessive documentation to support a request for FMLA leave, and was allegedly placed on AWOL status when the requested leave was initially denied (the FBI ultimately approved Martinez's leave request and the AWOL citation was eventually removed from her record). (See) Plaintiffs assert that preliminary injunctive relief is necessary “to protect [Wesley] from irreparable harm to her job and her health” ( at 7), and “to protect the judicial process from the chilling impact of Defendant's retaliation bordering on constructive discharge against a named plaintiff, which would deter anyone else from coming forward to join this putative class action or from offering truthful testimony in this matter” (). As such, they request an order preliminarily enjoining the FBI “from engaging in any retaliation against any plaintiff or witness in this action[.]” (Proposed Order, ECF No. -14, at 1.) They also seek specific relief with respect to Wesley and Martinez aimed at the retaliation that they allege has occurred. (See at 1–2.) For the reasons explained below, it is clear to this Court that Plaintiffs misapprehend the purpose and function of a preliminary injunction, and in fact, this Court lacks jurisdiction to order the FBI to refrain from generally retaliating against Plaintiffs and witnesses in the manner that Plaintiffs request. Plaintiffs’ PI motion also fails with respect to the specific retaliation claim that has now been brought concerning Wesley (see 3d Am. Compl. ¶¶ 129–34), because Plaintiffs have not established that they have a likelihood of success on the merits of that legal claim, nor have they demonstrated that Wesley is at imminent risk of irreparable harm. Accordingly, Plaintiffs’ motion for a preliminary injunction is DENIED. I. *2 Plaintiffs’ PI motion is, for the most part, premised on a fundamental misunderstanding of how preliminary injunctions function in a civil action filed in federal court. No less an authority than the Supreme Court of the United States has explained that “[a] preliminary injunction is [ ] appropriate to grant intermediate relief of the same character as that which may be granted finally.” De Beers Consol. Accordingly, in the De Beers case, the Supreme Court held that, where the requested injunctive relief could not be granted as final relief, it also could not be granted as intermediate relief. And although the De Beers Court dealt with a federal court's authority to enter a preliminary injunction under a predecessor of the All Writs Act, the Supreme Court indicated clearly that the proper scope of a federal court's authority to issue injunctive relief as envisioned by Congress is determined based on “the usages and principles of law[,]” and before issuing any injunctive relief, a court must ask “what is the usage, and what are the principles of equity applicable in such a case.” Thus, a proper motion for a preliminary injunction seeks to enjoin the action that the complaint alleges is unlawful prior to the completion of the litigation, and without such a connection between the claim and requested injunction, there is simply no jurisdictional basis for the Court to grant preliminary relief. See, e.g., Pac. Radiation Oncology, (noting that a court lacks authority to issue a preliminary injunction absent a “sufficiently strong” connection “between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint[,]” and that such a connection exists where “the preliminary injunction would grant relief of the same character as that which may be granted finally” (internal quotation marks and citation omitted)); Omega World Travel, ; Make the Rd. New rev'd and remanded sub nom. on other grounds, Make The Rd. New ; see also 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2948.1 (explaining that preliminary injunction entitles the movant to relief before a ruling on the merits precisely because “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”). Moreover, and significantly for present purposes, it is important to understand what a preliminary injunction is not: it is not a generic means by which a plaintiff can obtain auxiliary forms of relief that may be helpful to them while they litigate unrelated claims. To the contrary, this Court only possesses the power to afford preliminary injunctive relief that is related to the claims at issue in the litigation, as previously explained, and to get such extraordinary relief, a plaintiff has to satisfy well-established criteria, including demonstrating that they are likely to succeed on the merits of the underlying legal claims, and showing that they will suffer irreparable injury in the absence of a preliminary injunction. See, e.g., (explaining that a party seeking a preliminary injunction “must establish that [she] is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest”). II. *3 With respect to the PI motion at issue here, the disconnect between the underlying claims in the lawsuit and the alleged basis for preliminary relief could not be more evident. This is because, in their complaint, Plaintiffs allege that the FBI authorized, or engaged in, sex-discrimination while Plaintiffs were in the FBI training academy and seek, inter alia, to enjoin such conduct (see 3d Am. Compl., Prayer for Relief, ¶¶ 4–), but in the PI motion, Plaintiffs request an injunction “to protect all of the name plaintiffs” from potential reprisals for participating in this legal action as a general matter. (Pls.’ PI Mem. at 7.) The requested preliminary injunctive relief bears no resemblance to the relief that the Plaintiffs request in the underlying action. (See 3d Am. Compl., Prayer for Relief, ¶¶ 1–10.) And Plaintiffs are wrong to tout the existence of the All Writs Act—which permits this Court to “issue all writs necessary or appropriate in aid of [its] respective jurisdiction[,]” 28 U.S.C. 1(a)—as the basis for an argument that the Court has general jurisdiction “ ‘to preserve its process and to prevent and rectify punishment of those who appeared before it.’ ” ).) It is now well established that “the express terms of the [All Writs] Act confine the power of the [Court] to issuing process ‘in aid of’ its existing statutory jurisdiction; the Act does not enlarge that jurisdiction[.]” Thus, the Court is authorized to issue an injunction concerning acts of the defendant that are not alleged in the complaint under the All Writs Act only when those acts are “closely related to the facts in the complaint[.]” 0 (D.D.C. 02). As this Court has already explained, no such close a connection exists in this case, despite Plaintiffs’ arguments to the contrary. (See Pls.’ PI Reply at 7.) Instead, just as in the only connection between the complaint and Plaintiffs’ request for injunctive relief to protect them from reprisals is that there is a lawsuit pending and Plaintiffs assert that the FBI has (or may) retaliate against them and potential witnesses. See 193 F. Supp. 2d at 1 The court recognized that such a connection is insufficient to allow this Court to invoke the All Writs Act to award the general injunctive relief that Plaintiffs seek, see and this Court does the same. The authorities that Plaintiffs cite and rely upon are not to the contrary. (See Pls.’ Reply at 9.) For instance, Plaintiffs cite to Holly Sugar 06 WL 841, (D.D.C. Aug. 1, 06), for the proposition that courts can issue preliminary injunctions to protect witnesses based on allegations not contained in the complaint. But that statement is nothing more than dicta, and the court in Holly Sugar actually found that it did not have jurisdiction to issue the requested injunction because “the issues raised by the plaintiffs in their request for a preliminary injunction are clearly unrelated to the issues alleged in the Complaint.” Similarly, in the Second Circuit merely held that a court had jurisdiction to issue preliminary injunctive relief with respect to retaliation claims that were asserted in a pending complaint, but for which the plaintiff was still awaiting a right to sue letter from the EEOC. See at –86. Finally, the factual circumstances in are entirely inapposite, as the court there issued a preliminary injunction with respect to retaliation that had occurred after the trial in the underlying matter and while the case was on appeal, based on a determination that the “retaliation charges are ancillary to the main issues in a case and should, partially because of the possibilities of a remand, be heard by the district court even while the main issues were pending appeal.”2 *4 Thus, Plaintiffs’ motion fails at the threshold—due to a lack of jurisdiction—even prior to the Court's consideration of the well-worn PI factors. Nevertheless, this Court is confident that Plaintiffs’ motion falls short with respect to that examination, too, since Plaintiffs have not provided any factual basis whatsoever for concluding that every named Plaintiff is actually entitled to preliminary injunctive relief, either because each has a likelihood of succeeding on the merits of the complaint's sex-discrimination claim (or, perhaps, some not-yet-pleaded retaliation claim), or because each is imminently likely to be the object of any retaliatory act by the FBI, much less that they would all suffer irreparable harm due to any such retaliation in the absence of a preliminary injunction. Instead, Plaintiffs appear to request injunctive relief by association: their request for a generic FBI-wide anti-retaliation order is based on the alleged actions of a handful of supervisors who are located in the Phoenix Division and who have allegedly taken steps to retaliate against one Plaintiff (Wesley) and one witness (Martinez). (See Pls.’ PI Mot. at 10–19; –22.) There are no allegations in the complaint, or the PI motion, that the FBI has engaged in a pattern or practice of retaliatory conduct on a nationwide scale. Yet, Plaintiffs argue that broad injunctive relief is needed to, essentially, send a message that Plaintiffs and witnesses are protected in order to preserve future participants’ willingness to participate in this litigation. (See Pls.’ PI Reply at 2–26 (observing that “the FBI is a relatively small community,” and that “what happens in connection with this litigation—including resolution of this motion—will be seen by class members and witnesses throughout the FBI”).) In the absence of any evidentiary support for the speculative suggestion that the FBI will target Plaintiffs and witnesses going forward, this Court cannot find that Plaintiffs have established any of the traditional PI factors. Nor is this Court aware of any authority that supports Plaintiffs’ implicit suggestion that a preliminary injunction can properly issue to address potential conduct of a defendant that is neither established nor imminent, whether to ensure the participation of parties and witnesses or otherwise. To be clear: if these Plaintiffs have allegations and evidence that the FBI is engaged in a wide-spread practice of retaliating against them (or their potential witnesses) for filing this lawsuit or participating in the instant action, then they will be granted leave to make those legal claims as part of the instant action, and if Plaintiffs can also demonstrate that they have a likelihood of success on the merits of such retaliation claims and that they will face irreparable injury unless the FBI is enjoined from engaging in this unlawful behavior while the retaliation claims are being litigated, then this Court would have both subject-matter jurisdiction and ample justification to issue a preliminary injunction. What Plaintiffs cannot do is file a legal action alleging only that the FBI has previously engaged in unlawful sex-based discrimination, and then parlay that claim into a request for a preliminary injunction that prevents potential (but not actually alleged) retaliatory acts by Defendant, where those acts do not relate to the same conduct that gave rise to Plaintiffs’ underlying claims, and when Plaintiffs have not yet demonstrated either that they have a likelihood of success with respect to any of their claims or that they will suffer irreparable injury in the absence of the requested injunctive relief. III. To the extent that Plaintiffs have now made specific allegations in the complaint concerning alleged retaliatory conduct by supervisors in the FBI's Phoenix Division against Wesley (see, e.g., 3d Am. Compl. ¶¶ 129–34), they have cleared the jurisdictional bar to this Court's consideration of Plaintiffs’ motion for a preliminary injunction with respect to that particular claim. However, in order to be entitled to preliminary injunctive relief, Plaintiffs must also show, inter alia, that Wesley is substantially likely to succeed on the merits of her retaliation claim, and that she will suffer irreparable injury in the absence of preliminary relief. See, e.g., Food & Water Watch, (D.D.C.), aff'd, ; see also Upon consideration of the parties’ arguments and evidence, the Court finds that Wesley has not satisfied her burden on either of these fronts for at least three reasons. * First of all, Wesley has not provided sufficient evidence in connection with the motion (such as live witness testimony) to enable this Court to make credibility determinations as is necessary to resolve the myriad disputes of fact that abound with respect to her retaliation claim. (Compare Decl. of Mary Martinez, Ex. 3 to Pls.’ PI Mem., ECF No. -, ¶ (stating that an FBI supervisor, Andrew Braun, told Martinez that Wesley “needs to go” because she has engaged in EEO activity) with Decl. of Andrew J. Braun, Ex. 2 to Def.’s PI Opp'n, ECF No. 27-3, ¶ 8 (denying that he made any such statement).) To demonstrate a substantial likelihood of success on the merits of one's claim in support of preliminary injunction, evidence that is sufficient to permit resolution of material disputes of fact is required. Cf. U.S. 968, ; 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2948.1 (“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.”) (collecting cases). And the reverse is also true—“the Court cannot conclude that the plaintiff has demonstrated a substantial likelihood of success on the merits” where there are unresolved “disputes regarding the inferences that must be drawn from the facts in the record[.]” (D.D.C. 14) ; see also Navistar, 11 WL 3743732 (D.D.C. Aug. 2, 11) Second, Wesley has not established that she is at risk of imminent, irreparable injury in the absence of injunctive relief. “It is well-settled that preliminary injunctive relief is not usually available in employment cases” because “it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.’ ” (D.D.C. 00) Thus, Plaintiffs need to explain why Wesley would not have all of the traditional remedies for unlawful adverse action in the employment context—including back pay, damages, reinstatement—available to her if she ultimately succeeds on her retaliation claim. See, e.g., (D.D.C. 10) (explaining that “ ‘given the court's equitable powers to remedy loss in employment through, for example, back pay and time in service credit, cases are legion holding that loss of employment does not constitute irreparable injury’ ” (quoting (D.D.C. 06) )); This Court does acknowledge what other courts have recognized; that, in certain limited circumstances, the loss of a unique position can satisfy the irreparable harm requirement. See, e.g., 84 But, again, Plaintiffs would have to make a persuasive argument that Wesley's circumstances fall within this narrow exception, which they simply have not done. Indeed, the specific injunctive relief that Wesley seeks relates to her working conditions, rather than the imminent loss of her unique or specialized job. See Katz v. Georgetown Univ., No. 00-cv-12, 00 WL 3339394 at *–6 (D.D.C. Nov. 6, 00), aff'd, 6 F.3d 68 (D.C. Cir. 01).3 Moreover, Plaintiffs have not presented any evidence to support Wesley's speculative contention that, if she leaves her position based on the FBI's alleged failure to accommodate her disability, she would be precluded from using her intelligence analyst skills elsewhere, such as at a different federal agency. (See Decl. of Erika Wesley, Ex. 1 to Pls.’ PI Mot., ECF No. -3, ¶ 74.) *6 Third, and finally, the Court is persuaded by the FBI's argument that, in any event, the relief that Wesley requests cannot be ordered at this moment in time, because Wesley “is currently on suspended employment status” due to the present suspension of her security clearance, which is a prerequisite to working at the FBI. (See Def.’s Status Report, ECF No. 36, at 1.) To this Court's knowledge, the agency's investigation into Wesley's clearance status is still ongoing, and the law in this Circuit is clear that judicial review of the merits of clearance decisions is absolutely barred. See 689 F.3d 7, (D.C. Cir. 12).4 Therefore, at least for now—as Plaintiffs appear to have conceded (see Hr'g Tr. at 73:10–1)—this Court cannot order the FBI to reinstate Wesley's clearance and award her the interim relief that she seeks regarding her working conditions. IV. In conclusion, it is clear to this Court that it lacks jurisdiction to enter an order preliminarily enjoining the FBI from generally retaliating against the Plaintiffs and witnesses in this case, and the Court further finds that Wesley has not established that she is entitled to preliminary injunctive relief with respect to the retaliation claim that appears in the Plaintiffs’ amended pleadings. Therefore, as set forth in the separate Order that accompanies this Memorandum Opinion, Plaintiffs’ [] Motion for Preliminary Injunction for Protection from Retaliation is DENIED.

Brightwell Dispensers Limited v. Dongguan ISCE Sanitary Ware Industrial Co. Ltd.

Plaintiff Brightwell Dispensers Limited (“Plaintiff” or “Brightwell”), a product manufacturer with a principal place of business in the United Kingdom, brings this action against Defendant Dongguan ISCE Sanitary Ware Industrial Co., Ltd. (“Defendant” or “Dongguan”), a product manufacturer with a principal place of business in China, alleging patent and trademark infringement. (See Compl., ECF No. 1.) After Dongguan failed to respond to Brightwell's complaint, on May 24, 2018, Brightwell filed a Motion for Default Judgment; that same day, this Court referred this matter to a magistrate judge for full case management. (See Pl.’s Mot. for Default J, ECF No. 7; Min. Order of May 24, 2018.) On February 12, 2019, the assigned Magistrate Judge, Robin M. Meriweather, ordered Brightwell to show cause why its case should not be dismissed for lack of personal jurisdiction. (See Order to Show Cause, ECF No. 10, at 4.) Brightwell filed its response to the order to show cause on March 8, 2019. It asserts that the Court maintains both specific and general personal jurisdiction over Dongguan for several reasons. (See generally Pl.’s Resp. to Order to Show Cause, ECF No. 11.) Brightwell first argues that the Court has specific jurisdiction over Dongguan under the District of Columbia's long-arm statute, which grants jurisdiction over entities “ ‘transacting any business’ in the District of Columbia[,]” because Dongguan's fully interactive website is accessible to residents of the District of Columbia (“D.C.”). (Id. at 2.) Brightwell also argues that the Court has general jurisdiction because Dongguan's fully interactive website satisfies the due process requirement that a party have continuous and systematic contacts with the forum state. (See id.) Before this Court at present is the Report and Recommendation that Magistrate Judge Meriweather has filed regarding the Court's jurisdiction over this matter. (See R. & R., ECF No. 12.)1 The Report and Recommendation reflects Magistrate Judge Meriweather's opinion that Brightwell has failed to demonstrate personal jurisdiction in this District. (See id. at 1.) Specifically, Magistrate Judge Meriweather finds that the Court lacks general jurisdiction because Brightwell, relying solely on the accessibility of Dongguan's website to D.C. residents, has not shown that Dongguan is “essentially at home” in D.C., as the Supreme Court's current jurisprudence requires. (See id. at 6–8 (citing Daimler AG v. Bauman, 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014)).) Magistrate Judge Meriweather further explains that even under the D.C. Circuit cases on which Brightwell relies, which predate Daimler, Brightwell cannot establish general jurisdiction because the mere existence of an interactive website that could be accessed by D.C. residents, without proof of online transactions made by D.C. residents, is insufficient under the D.C. Circuit's jurisprudence. (See id. at 7.) *2 Magistrate Judge Meriweather also finds that the Court lacks specific jurisdiction under D.C.’s long-arm statute, because Brightwell has not shown that Dongguan has actually transacted any business with D.C. residents. (See id. at 9.) Magistrate Judge Meriweather notes that Brightwell was able to allege such transactions with respect to other forums (namely, an infringing product sold in California); thus, omissions of similar facts with respect to D.C. are “particularly glaring.” (Id. at 12.) In addition to articulating these conclusions, Magistrate Judge Meriweather's Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (Id. at 16–17.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id. at 17.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. LCvR 72.3(b). The due date for objections to be filed in the instant case has passed, and none have been filed. This Court has reviewed Magistrate Judge Meriweather's report and agrees with her thorough analysis and conclusions. Thus, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, Plaintiff's Motion for Default Judgment will be DENIED, and this case will be DISMISSED, for want of jurisdiction. A separate Order accompanies this Memorandum Opinion. REPORT AND RECOMMENDATION ROBIN M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE Plaintiff Brightwell Dispensers Limited (“Brightwell”) has moved for default judgment against Defendant Dongguan ISCE Sanitary Ware Industrial Co., Ltd. (“Defendant” or “Dongguan”), and that motion is currently pending before the Court. See Pl.’s Mot. for Entry of Default J., ECF No. 7. On February 12, 2019, the Court issued an order which noted that courts must confirm personal jurisdiction before entering default judgment and directed Brightwell to show cause why the case should not be dismissed for lack of personal jurisdiction. See Show Cause Order, ECF No. 10. In response to the Court's Show Cause Order, Brightwell filed a brief asserting that the Court has personal jurisdiction over Dongguan. See Pl.’s Resp., ECF No. 11. Having reviewed Brightwell's legal arguments, the pertinent pleadings, and the applicable law, the undersigned recommends that Judge Ketanji B. Jackson find that Brightwell has failed to demonstrate personal jurisdiction in this District. Accordingly, the undersigned recommends that Judge Jackson DENY the Motion for Default Judgment without prejudice and DISMISS this matter without prejudice. BACKGROUND Brightwell, a United-Kingdom based company, raises patent and trademark infringement claims against Dongguan, a Chinese company, and ten unnamed defendants (“Does 1–10”). See Compl. ¶¶ 3–6, ECF No. 1. Dongguan manufactures and sells wall-mounted dispensers through a website accessible by customers in the United States. See id. ¶17. Brightwell alleges that at an October 2016 trade show in Chicago, Illinois, Dongguan sold wall-mounted dispensers that infringed on patents owned by Brightwell. Id. ¶ 23. Brightwell also contends that these dispensers used a tear-drop trademark that is unique to Brightwell's products. Id. Does 1–5 are individuals directly involved with the allegedly infringing products, and Does 6–10 are business entities allegedly involved as associates, collaborators, and suppliers to Dongguan. See id. ¶¶ 5–6. *3 On May 24, 2018, after Dongguan failed to file or respond to any pleadings, Brightwell filed a motion for default judgment against Dongguan. See Mot. for Default J., ECF No. 7. The same day, Judge Ketanji B. Jackson referred this matter to the undersigned for full case management. The Court subsequently issued an order directing Brightwell to show cause why this case should not be dismissed for lack of personal jurisdiction. See Show Cause Order, ECF No. 10. Brightwell responded to that Order, and both the default judgment motion and the jurisdictional issue are ripe for resolution. See Pl.’s Resp. LEGAL STANDARD A court “should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” Mwani v. Bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005); Delta Sigma Theta Sorority, Inc. v. LaMITH Designs, Inc., 275 F.R.D. 20, 28 (D.D.C. 2011). When personal jurisdiction is challenged without an evidentiary hearing, a plaintiff must make a prima facie showing that the court has personal jurisdiction. See Mwani, 417 F.3d at 7. This burden cannot be satisfied by “conclusory statements.” Livnat v. Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017) (citing Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004)). Instead, a plaintiff must allege “specific facts” on which to base personal jurisdiction. Blumenthal v. Drudge, 992 F. Supp. 44, 53 (D.D.C. 1998). The court resolves factual disputes or discrepancies in favor of the plaintiff, and may “receive and weigh affidavits and other relevant matters to assist in determining the jurisdictional facts.” Bigelow v Garrett, 299 F. Supp. 3d 34, 41 (D.D.C. 2018). When evaluating personal jurisdiction in the default judgment context, “the absence of the defendants counsels greater flexibility toward the plaintiffs because it impedes their ability to obtain jurisdictional discovery.” Mwani, 417 F.3d at 7. Courts may exercise two types of jurisdiction over non-resident defendants: general jurisdiction or specific jurisdiction. General jurisdiction exists only if the non-resident corporation's “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlap Tires Ops., S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)). General jurisdiction may be “based on a forum connection unrelated to the underlying suit.” Livnat, 851 F.3d at 56 (quoting Walden v. Fiore, 571 U.S. 277, 283 n.6, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)). Specific jurisdiction, in contrast, “requires a nexus between a foreign corporation's particular contact with the forum state and the claim that the plaintiff asserts.” Alkanani v. Aegis Defense Servs., LLC, 976 F. Supp. 2d 13, 21 (D.D.C. 2014); see also Walden, 571 U.S. at 291, 134 S.Ct. 1115 (noting that specific jurisdiction requires a relationship between “the defendant, the forum, and the litigation”) (quoting Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Typically, the jurisdictional reach of a federal court is the same as that of a state court in the state where the federal court sits. See Fed. R. Civ. P. 4(k)(1)(A). To determine whether general or specific jurisdiction exists, “courts ordinarily decide whether statutory jurisdiction exists under the [forum state's] long-arm statute and, if it does, then ... whether an exercise of jurisdiction would comport with constitutional limitations.” Ofisi v. Al Shamal Islamic Bank, 2019 WL 1255096, *3, 2019 U.S. Dist. LEXIS 44996, *8 (D.D.C. March 19, 2019) (quoting Forras v. Rauf, 812 F.3d 1102, 1105 (D.C. Cir. 2016) (internal quotations omitted)); see also Vasquez v. Whole Foods Mkt., Inc., 302 F. Supp. 3d 36, 46 (D.D.C. 2018); Alkanani, 956 F. Supp. 2d at 21. *4 The Due Process Clause of the Constitution requires that “the defendant has sufficient contacts with the forum such that exercising [personal] jurisdiction over the defendant would comport with ‘traditional notions of fair play and substantial justice.’ ” Alkanani, 976 F. Supp. 2d at 21 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Thus, the Constitution permits courts to exercise general personal jurisdiction “based on ‘only a limited set of affiliations with a forum, all analogous to an individual's domicile.’ ” Livnat, 851 F.3d at 56 (D.C. Cir. 2017) (citing Daimler, 571 U.S. at 137, 134 S.Ct. 746). The Constitution limits the exercise of specific personal jurisdiction to situations where “the defendant's suit -related conduct ... create[s] a substantial connection with the forum state.” Walden, 571 U.S. at 284, 134 S.Ct. 1115. DISCUSSION Brightwell asserts that the Court may exercise general and specific personal jurisdiction over Dongguan based on Dongguan's contacts and business transactions in the District of Columbia (“D.C.”). See Pl.’s Resp. at 2. Specifically, Brightwell contends that Dongguan's online presence and maintenance of an interactive website accessible by D.C. residents establish both general and specific jurisdiction in this Court. Id. at 1–2. To resolve that issue, the Court will evaluate whether Brightwell has alleged facts that demonstrate that Dongguan had sufficient contacts with the District of Columbia to satisfy the requirements of the D.C. long-arm statute and constitutional due process. I. General Jurisdiction “If a corporate defendant is neither incorporated in nor has its principal place of business in the District of Columbia, the court may exercise general jurisdiction, pursuant to Section 13-334(a) of the D.C. Code, if the corporate defendant is ‘doing business in the District.’ ” Bey v. Deutsche Bank Nat'l Trust Co., No. 18-cv-02515 (TSC), 2019 WL 2327748, *2, 2019 U.S. Dist. LEXIS 91367, *6-*7 (D.D.C. May 31, 2019). The reach of “doing business” jurisdiction under the statute is coextensive with the reach of constitutional due process. See Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27, 31 (D.D.C. 2004) (citing Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510 (D.C. Cir. 2002)); Miller v. Toyota Motor Corp., 620 F. Supp. 2d 109, 114 (D.D.C. 2009) (citing FC Inv. Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1092 (D.C. Cir. 2008)). Thus, the question here is whether Dongguan's business contacts with D.C. are sufficiently “continuous and systematic” that Dongguan is “essentially at home” in D.C. Daimler, 571 U.S. at 139, 134 S.Ct. 746. Brightwell asserts that Dongguan is “doing business” in D.C. by operating a website that functions as a storefront in D.C., and that Dongguan's maintenance of its interactive website constitutes the “continuous and systematic” business contacts required to satisfy due process. See Pl.’s Resp. at 2. Brightwell supports this contention by attaching screenshots of the Dongguan website to demonstrate that customers may exchange two-way communications with Dongguan, search among Dongguan products, purchase those products, and create an individualized shipping quote on the website. See Pl.’s Resp., Ex. 3, Screenshots of Brightwell Website, ECF No. 11-4. In addition, Matthew Dwelly, a Brightwell General Manager, submitted a statement noting that Dongguan's physical presence in the United States is limited to trade shows and that Dongguan sold an infringing device to a company in California. Id., Dwelly Decl. 2, ECF No. 11-2. Brightwell's arguments rest on the premise that operating and maintaining an interactive website qualifies as “doing business” systematically and continuously in any state where customers can access the website. To support its position, Brightwell principally cites two D.C. Circuit cases that predate Goodyear and Daimler — FC Inv. Group LC v. IFX Markets, Ltd., 529 F.3d 1087 (D.C. Cir. 2008), and Gorman, 293 F.3d 506. In FC Investment Group, the Court noted that “[u]nder certain circumstances, a foreign corporation's maintenance of a website that is accessible in the District can satisfy general jurisdiction requirements,” provided that the website is “interactive” and “District residents ... use the website in a ‘continuous and systematic’ way.” 529 F.3d at 1092. Similarly, in Gorman, the Court held that “transactions accomplished through the use of e-mail or interactive websites” could provide a basis for general personal jurisdiction if the defendant's “contacts with the District [were] ‘continuous and systematic.’ ” 293 F.3d at 512. *5 Brightwell's reliance on FC Investment Group and Gorman is misplaced for two reasons. First, Goodyear and Daimler impose an additional requirement that a defendant's contacts must be so extensive that the defendant is “essentially at home” in the forum state, thereby “abrogat[ing] the reasoning” on which Gorman and FC Investment Group were based. Erwin-Simpson v. AirAsia Berhad, 375 F. Supp. 3d 8, 9 (D.D.C. 2019); see also Freedman v. Suntrust Banks, Inc., 139 F.Supp.3d 271, 280 (D.D.C. 2015) (noting that Goodyear and Daimler established a more stringent “essentially at home” test than Gorman’s “continuous and systematic” contacts test); see also Daimler, 571 U.S. at 154, 134 S.Ct. 746 (Sotomayor, J., concurring) (noting Court's departure from prior precedent by “announc[ing] the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only possess continuous and systematic contacts with a form State, but those contacts must also surpass some unspecified level when viewed in comparison to the company's ‘nationwide and worldwide’ activities”) (internal citations omitted). Second, Brightwell has not alleged facts that meet the lower standard that the D.C. Circuit applied in Gorman and FC Investment Group. In FC Investment Group, the court concluded that a foreign corporation's interactive website did not establish general personal jurisdiction in D.C. because the plaintiff did not demonstrate that a significant number of D.C. resident customers had ongoing interactions with the company through the website. See 529 F.3d at 149–50. In Gorman, the court noted that the frequency and volume of the defendant corporation's online transactions with D.C. residents would determine whether general personal jurisdiction existed. See Gorman, 293 F.3d at 513. Here, Brightwell has alleged that D.C. residents could order products on Dongguan's website but not that any D.C. residents actually did so. See Pl.’s Resp. at 2, ECF No. 11. “[T]he mere accessibility of a defendant's website does not establish the necessary minimum contacts required for general jurisdiction.” FC Inv. Group, 529 F.3d at 1092. Thus Brightwell's allegations demonstrate that Dongguan's interactive website was accessible by D.C. residents, but do not establish general jurisdiction. Turning to the Daimler and Goodyear standard, Brightwell's allegations fall far short of demonstrating that D.C. residents continuously and systematically interact with Dongguan's website to such an extent that Dongguan is “essentially at home” in D.C. This case is analogous to Erwin-Simpson, where this Court concluded that a foreign airline's maintenance of an interactive website that D.C. residents could access to purchase airfare tickets did not establish general personal jurisdiction in this Court. See Erwin-Simpson, 375 F. Supp. 3d at 20 (finding no personal jurisdiction to review claims raised by plaintiffs injured on an AirAsia flight to Cambodia). There, as here, the plaintiffs failed to allege or plead facts demonstrating that D.C. residents had accessed or purchased products on the commercial website. Id. at 21; Pl.’s Resp. at 2. Given that the AirAsia website was accessible worldwide, the court found “no basis to infer, based on the mere accessibility of the website, [that] AirAsia is more ‘at home’ in the District of Columbia than anywhere else in the United States.” Id.; see also Nuevos Destinos, LLC v. Peck, No. 15-cv-1846 (EGS), 2019 WL 78780, at *11, 2019 U.S. Dist. LEXIS 322, at *41 (D.D.C. Jan. 2, 2019) (holding that a defendant who maintained a website that D.C. residents could access to buy products that would likely end up in D.C. did not have continuous and systematic contacts to render the defendant essentially at home). The same is true here. Consequently, the undersigned recommends that the Court conclude that it lacks general personal jurisdiction to review Brightwell's claims against Dongguan. II. Specific Jurisdiction Brightwell also alleges that the court may exercise specific jurisdiction over Dongguan because Dongguan is transacting business in D.C. and the trademark infringement claims arise from those transactions. See Pl.’s Resp. at 2, ECF No. 11. Brightwell invokes the D.C. long-arm statute, D.C. Code § 13-423(a)(1), which allows courts to exercise specific jurisdiction over a party for claims that arise from a party “transacting any business” in D.C. D.C. Code § 13–423(a)(1); Bey, 2019 WL 2327748, at *2, 2019 U.S. Dist. LEXIS 91367 at *10. To establish specific personal jurisdiction under the “transacting business” prong of the long-arm statute, Brightwell must prove: “First, that the defendant transacted business in the District of Columbia; second, that the claim arose from the business transacted in D.C.; and third, that the defendant had minimum contacts with the District of Columbia such that the Court's exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice.” *6 Alkanani, 976 F. Supp. 2d at 24 (citing Brunson v. Kalil & Co., 404 F.Supp.2d 221, 227 (D.D.C. 2005)). Section 13-423(a)(1) “provide[s] jurisdiction to the full extent allowed by the Due Process Clause.” Thompson Hine, LLP v. Taieb, 734 F.3d 1187, 1189 (D.C. Cir. 2013); see also United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); Helmer, 393 F.3d at 205; Alkanani, 976 F. Supp. 2d at 21–22. Consequently, the Court “need only engage in a single analysis of the defendant's contacts with the District under the standards established in the long-arm and service statutes because sufficient contacts under the D.C. Code and proper service is all that Due Process requires.” Id. (citing Gorman, 293 F.3d at 513); Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 329–30 (D.C. 2000); see also Ferrara, 54 F.3d at 828 (noting that “the statutory and constitutional questions, which are usually distinct, merge into a single query here”); Thompson Hine, 734 F.3d at 1189 (noting that analysis under the Due Process Clause and Section 13-423 “merge into a single inquiry”). A. Brightwell Has Not Demonstrated that Dongguan Has Transacted Business in D.C. As noted, determining whether there is an adequate nexus between a defendant's business transactions and the forum to satisfy Section 13-423 requires an analysis of whether the defendant has “minimum contacts” with the forum. Physical presence in the forum is not necessary, but “[r]andom,” “fortuitous,” or “attenuated” contacts are not enough. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). Instead, “it is essential ... that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum ... thus invoking the benefits and protections of its laws.” Hayes v. FM Broad. Station WETT, 930 F. Supp. 2d 145, 151 (D.D.C. 2013) (holding that plaintiff failed to allege that defendants purposefully availed themselves of the District of Columbia any more than they availed themselves of every other jurisdiction in which their website was accessible) (internal citations omitted); see also Thompson Hine, 734 F.3d at 1189. Although the Supreme Court has written extensively on minimum contacts, it left “questions about virtual contacts for another day.” Walden, 571 U.S. at 290 n.9, 134 S.Ct. 1115. In that silence, courts have used different approaches to evaluate whether website activity provides the requisite minimum contacts with a forum. Zippo Manufacturing Co. v. Zippo Dot Com established a sliding scale to assess whether a company's online commercial activities confer personal jurisdiction; that scale ranges from situations where a defendant “clearly does business over the internet” to situations where the defendant merely uses a passive website to post information accessible to users in the jurisdiction. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). For many years, multiple courts across circuits have used Zippo’s spectrum of website interactivity to assess a defendant's virtual contacts with a forum. See Soma Med. Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999) (citing the Zippo standard for “passive” websites to find a corporation's website an insufficient basis for an exercise of personal jurisdiction); see also ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 713–715 (4th Cir. 2002) (finding no jurisdiction in Maryland because a defendant did not transmit materials on the internet with the intent of engaging in business transactions with Maryland residents); see generally Gorman, F.3d at 513 (citing Zippo when explaining the additional facts that may demonstrate that personal jurisdiction exists). However, this Court took a different approach in Triple Up, holding that website interactivity is not a “jurisprudential heuristic” for personal jurisdiction and is only relevant to the extent that it illustrates that “the website allows its operator to engage in real-time transactions with District of Columbia residents.” Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 28 (D.D.C. 2017), aff'd No. 17-7033 2018 WL 4440459 (D.C. Cir. 2018) (internal citations omitted). Thus, rather than focusing exclusively on the interactivity of a website, courts must assess whether the website functions as the defendant's “storefront” in the forum and whether the defendant's conduct is aimed at or has an effect in the forum state. See id. at 24. *7 Brightwell's allegations establish that Dongguan's website is interactive, but do not demonstrate that D.C. residents transacted business on Dongguan's site in a manner sufficient to confer personal jurisdiction. The website functions in a way that allows D.C. residents to exchange two-way communications with Dongguan, click buttons to receive additional information about products, receive shipping quotes, and purchase goods. See Pl.’s Resp. at 4–5; see generally id., Ex. 3, Screenshots of Dongguan Website, ECF No. 11-4; Compl. ¶ 1. Thus, it can fairly be described as Dongguan's virtual storefront. See Triple Up, 235 F. Supp. 3d at 28. However, Brightwell presents no evidence that D.C. residents visited the website or “actually engage[d] in any business transactions with the defendant” as required to establish personal jurisdiction. Triple Up, 2018 WL 4440459, at *2. Consequently, Brightwell has failed to “allege specific facts connecting the defendant with the forum ... [because] personal jurisdiction surely cannot be based solely on the ability of District residents to access the defendant[’s] websites” Hayes, 930 F. Supp. 2d at 151–52 (quoting GTE, 199 F.3d at 1350); see also Triple Up, 2018 WL 4440459, at *2 (noting that website accessibility alone does not demonstrate a defendant's persistent course of conduct in a forum to satisfy personal jurisdiction requirements); Doe v. Israel, 400 F. Supp. 2d 86, 121 (D.D.C. 2005) (“A website accessible by computers in the District of Columbia, or by District of Columbia residents, is not purposeful availment; rather it is merely an unavoidable side-effect of modern internet technology.”). The fact that Brightwell has alleged specific contacts with different forums — such as Dongguan's alleged sale of an infringing device, “SunnyCare®,” to a distributor in California (Agio Group Inc.,) — makes its omission of similar facts regarding D.C. transactions particularly glaring. See Dwelly Decl. ¶ 5 (discussing Dongguan's alleged transactions). This case is similar to Hayes, where the court found that it lacked personal jurisdiction over a defendant whose website was accessible in D.C. because the plaintiff “alleged only that District residents can access the website, not that they actually do.” Hayes, 930 F. Supp. 2d at 151 (emphasis in original). In Hayes, the defendant operated a website that allowed users to communicate with the defendant's staff, win prizes, and purchase discount tickets. Id. at 147. The plaintiff's failure to provide evidence that a significant number of D.C. residents accessed and conducted transactions on the defendant's website proved fatal to its efforts to establish personal jurisdiction over the defendant in D.C. See id. at 151–52. Here, too, Brightwell has alleged only that D.C. residents can access and interact with Dongguan's website, which is insufficient to confer personal jurisdiction under D.C. Code § 13-423(a)(1); see id.; see also Triple Up, 2018 WL 4440459, at *2; Doe, 400 F. Supp. 2d at 121. The “effects test” articulated in Calder v. Jones provides an alternate means of establishing specific personal jurisdiction by assessing whether “the defendant's conduct is aimed at or has an effect in the forum state.” Triple Up, 235 F. Supp. 3d at 24 (citing Calder, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 and GTE, 199 F.3d at 1349) (internal citations omitted). In Calder, the Supreme Court observed that “the Defendants’ allegedly tortious actions were ‘expressly aimed’ at California; that [defendants] knew that the article ‘would have a potentially devastating impact’ on its subject in California, and that under those circumstances, they should have anticipated being haled into court’ in that State.” Ferrara, 54 F.3d at 828 (citations omitted). Consequently, the Court held that “the brunt” of the Defendants’ conduct was directed towards California and that California courts had personal jurisdiction over the defendant. See Calder, 465 U.S. at 789, 104 S.Ct. 1482. Brightwell has not demonstrated that Dongguan directed its conduct at D.C. or that the alleged infringing conduct had a sufficient effect in D.C. to establish personal jurisdiction under the Calder effects test. Brightwell points to evidence that “North America is listed as one of [Dongguan's] three top markets” according to its website. Pl.’s Resp. at 5; Screenshots of Dongguan Website; Pl.’s Resp., Grandinetti Decl. ¶ 6, ECF No. 11-5; Dwelly Decl. ¶ 10. The fact that Dongguan conducts sales on the vast continent of North America does not prove that sales were directed to or have an effect in D.C. See Calder, 465 U.S. at 785, 789, 104 S.Ct. 1482 (“The mere fact that [a defendant] can foresee that [a national product] will be circulated and have an effect in [a forum] is not sufficient for an assertion of jurisdiction.”) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)); see also Kline v. Williams, No. 05-01102 (HHK), 2006 WL 758459, at *3 (D.D.C. March 6, 2006) (finding that although D.C. residents could access defamatory online posts, “nationwide jurisdiction” in D.C. was inappropriate because, without evidence of directed harm to D.C., “the injury felt in D.C. was indistinguishable from that felt anywhere [in the nation].”) (citing Mallinckrodt Medical, Inc. v. Sonus Pharm., Inc., 989 F.Supp. 265, 273 (D.D.C. 1998)). Similarly, the fact that Dongguan allegedly attended a Chicago trade show does not establish personal jurisdiction in D.C., even if some products sold as a result of the trade show might ultimately be delivered to or used in D.C. See Pl.’s Resp. at 3, ECF No. 11; J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 875, 886, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (concluding that a U.K.-based manufacturer that attended trade shows in various parts of the United States was not subject to personal jurisdiction in a forum state solely because it sold a machine that ended up in the forum and injured someone).1 Finally, although Brightwell argues that Dongguan's website “permits” deliveries throughout the United States, including D.C., Brightwell neither proves nor alleges that Dongguan made any deliveries to D.C. Therefore, Brightwell's allegations do not satisfy Calder. B. Brightwell Has Not Demonstrated that Jurisdictional Discovery is Warranted. *8 Although Brightwell has not demonstrated that Dongguan had sufficient ties to D.C. to establish personal jurisdiction in this Court, jurisdictional discovery might have yielded facts sufficient to meet that burden. If a plaintiff “demonstrates that it can supplement its jurisdictional allegations through discovery, jurisdictional discovery is justified” and should be afforded with the court's discretion. GTE, 199 F.3d at 1351; Livnat, 851 F. 3d at 57. However, a plaintiff must “have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.” Fasolyak v. The Cradle Soc'y, Inc., No. 06-cv-1126 (TFH), 2007 WL 20171644, at *10 (D.D.C. July 19, 2007) (citing Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). Further, “it is inappropriate to subject a defendant to jurisdictional discovery if the plaintiff does not make a detailed showing of how jurisdictional discovery would lead to new, relevant information.” Shaheen v. Smith, 994 F. Supp. 2d 77, 89 (D.D.C. 2013). Given that Brightwell has not requested jurisdictional discovery, there is no basis to authorize such discovery. Brightwell could have asked the Court to permit discovery into Dongguan's contacts with D.C., notwithstanding Dongguan's lack of participation in the case. See generally Shaheen, 994 F. Supp. 2d at 81, 89 (considering and rejecting plaintiff's request for jurisdictional discovery in case where defendant had failed to answer the complaint). Yet, Brightwell failed to do so. Therefore, the undersigned recommends that the Court decline to authorize jurisdictional discovery. See Shaheen, 994 F. Supp. 2d at 89 (declining to authorize jurisdictional discovery where plaintiff failed to demonstrate that it would be fruitful). C. The Court Need Not Assess the Nexus Between Dongguan's Alleged Contacts with D.C. and the Claims at Issue in This Litigation. Once a court establishes that a defendant has contacts with D.C., the Court must next determine whether the plaintiff's claims “aris[e] out of or relat[e] to the defendant's contacts with the forum.” Daimler, 571 U.S. at 127, 134 S.Ct. 746, (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); see also Pilkin v. Sony Interactive Entm't, LLC, No. 17-2501 (RDM), 2019 WL 224145, at *3, 2019 LEXIS 7697, at *7 (D.D.C. Jan. 16, 2019) (holding that when plaintiff merely alleged that defendant does business in the District of Columbia and did not allege that his claim arose from the business transacted in the District, he failed to allege facts sufficient to establish specific jurisdiction under § 13-423(a)(1)). Brightwell's failure to demonstrate that Dongguan had sufficient contacts with D.C. makes it unnecessary to analyze the nexus between those contacts and Brightwell's claims. In sum, the undersigned recommends that the Court find that Brightwell has not provided sufficient facts to show that this Court may exercise specific personal jurisdiction over Dongguan, and that the Court dismiss this action without prejudice.2 III. Jurisdiction Under Federal Rule of Civil Procedure 4(k)(2). *9 As noted in the Show Cause Order, Federal Rule of Civil Procedure 4(k)(2) allows courts to exercise personal jurisdiction over foreign defendants who are not subject to the jurisdiction of any court, for claims arising under federal law, if the foreign defendant has been served with a summons, “provided that the exercise of federal jurisdiction is consistent with the Constitution.” See Show Cause Order at 4; Mwani, 417 F.3d at 10; Citadel Inv. Group, LLC v Citadel Cap. Co., 699 F. Supp. 2d 303, 314. The Court need not analyze the application of Rule 4(k)(2) because Brightwell did not raise jurisdictional arguments under that rule. See Livnat v. Palestinian Auth., 82 F. Supp. 3d 19, 24 n. 9 (D.D.C. 2015), aff'd Livnat, 851 F.3d at 47 (upholding district court's ruling that a plaintiff forfeited a statutory basis for personal jurisdiction by not raising it). RECOMMENDATION For the reasons set forth above, the undersigned recommends that Judge Ketanji B. Jackson find that this Court lacks personal jurisdiction over Dongguan, DENY the motion for default judgment without prejudice, and DISMISS the matter for want of jurisdiction, without prejudice. REVIEW BY THE DISTRICT COURT The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to this Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

Jackson

majority

Plaintiff Brightwell Dispensers Limited (“Plaintiff” or “Brightwell”), a product manufacturer with a principal place of business in the United Kingdom, brings this action against Defendant Dongguan ISCE Sanitary Ware Industrial Co., Ltd. (“Defendant” or “Dongguan”), a product manufacturer with a principal place of business in China, alleging patent and trademark infringement. (See Compl., ECF No. 1.) After Dongguan failed to respond to Brightwell's complaint, on May 24, 2018, Brightwell filed a Motion for Default Judgment; that same day, this Court referred this matter to a magistrate judge for full case management. (See Pl.’s Mot. for Default J, ECF No. 7; Min. Order of May 24, 2018.) On February 12, the assigned Magistrate Judge, Robin M. Meriweather, ordered Brightwell to show cause why its case should not be dismissed for lack of personal jurisdiction. (See Order to Show Cause, ECF No. 10, at 4.) Brightwell filed its response to the order to show cause on March 8, It asserts that the Court maintains both specific and general personal jurisdiction over Dongguan for several reasons. (See generally Pl.’s Resp. to Order to Show Cause, ECF No. 11.) Brightwell first argues that the Court has specific jurisdiction over Dongguan under the District of Columbia's long-arm statute, which grants jurisdiction over entities “ ‘transacting any business’ in the District of Columbia[,]” because Dongguan's fully interactive website is accessible to residents of the District of Columbia (“D.C.”). ( at 2.) Brightwell also argues that the Court has general jurisdiction because Dongguan's fully interactive website satisfies the due process requirement that a party have continuous and systematic contacts with the forum state. (See ) Before this Court at present is the Report and Recommendation that Magistrate Judge Meriweather has filed regarding the Court's jurisdiction over this matter. (See R. & R., ECF No. 12.)1 The Report and Recommendation reflects Magistrate Judge Meriweather's opinion that Brightwell has failed to demonstrate personal jurisdiction in this District. (See) Specifically, Magistrate Judge Meriweather finds that the Court lacks general jurisdiction because Brightwell, relying solely on the accessibility of Dongguan's website to D.C. residents, has not shown that Dongguan is “essentially at home” in D.C., as the Supreme Court's current jurisprudence requires. ).) Magistrate Judge Meriweather further explains that even under the D.C. Circuit cases on which Brightwell relies, which predate Brightwell cannot establish general jurisdiction because the mere existence of an interactive website that could be accessed by D.C. residents, without proof of online transactions made by D.C. residents, is insufficient under the D.C. Circuit's jurisprudence. (See) Magistrate Judge Meriweather also finds that the Court lacks specific jurisdiction under D.C.’s long-arm statute, because Brightwell has not shown that Dongguan has actually transacted any business with D.C. residents. (See) Magistrate Judge Meriweather notes that Brightwell was able to allege such transactions with respect to other forums (namely, an infringing product sold in California); thus, omissions of similar facts with respect to D.C. are “particularly glaring.” ( 2.) In addition to articulating these conclusions, Magistrate Judge Meriweather's Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. ( –17.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. ( 7.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. LCvR 72.3(b). The due date for objections to be filed in the instant case has passed, and none have been filed. This Court has reviewed Magistrate Judge Meriweather's report and agrees with her thorough analysis and conclusions. Thus, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, Plaintiff's Motion for Default Judgment will be DENIED, and this case will be DISMISSED, for want of jurisdiction. A separate Order accompanies this Memorandum Opinion. REPORT AND RECOMMENDATION ROBIN M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE Plaintiff Brightwell Dispensers Limited (“Brightwell”) has moved for default judgment against Defendant Dongguan ISCE Sanitary Ware Industrial Co., Ltd. (“Defendant” or “Dongguan”), and that motion is currently pending before the Court. See Pl.’s Mot. for Entry of Default J., ECF No. 7. On February 12, the Court issued an order which noted that courts must confirm personal jurisdiction before entering default judgment and directed Brightwell to show cause why the case should not be dismissed for lack of personal jurisdiction. See Show Cause Order, ECF No. 10. In response to the Court's Show Cause Order, Brightwell filed a brief asserting that the Court has personal jurisdiction over Dongguan. See Pl.’s Resp., ECF No. 11. Having reviewed Brightwell's legal arguments, the pertinent pleadings, and the applicable law, the undersigned recommends that Judge Ketanji B. Jackson find that Brightwell has failed to demonstrate personal jurisdiction in this District. Accordingly, the undersigned recommends that Judge Jackson DENY the Motion for Default Judgment without prejudice and DISMISS this matter without prejudice. BACKGROUND Brightwell, a United-Kingdom based company, raises patent and trademark infringement claims against Dongguan, a Chinese company, and ten unnamed defendants (“s 1–10”). See Compl. ¶¶ 3–, ECF No. 1. Dongguan manufactures and sells wall-mounted dispensers through a website accessible by customers in the United States. See Brightwell alleges that at an October 201 trade show in Chicago, Illinois, Dongguan sold wall-mounted dispensers that infringed on patents owned by Brightwell. Brightwell also contends that these dispensers used a tear-drop trademark that is unique to Brightwell's products. s 1–5 are individuals directly involved with the allegedly infringing products, and s –10 are business entities allegedly involved as associates, collaborators, and suppliers to Dongguan. See ¶¶ 5–. On May 24, 2018, after Dongguan failed to file or respond to any pleadings, Brightwell filed a motion for default judgment against Dongguan. See Mot. for Default J., ECF No. 7. The same day, Judge Ketanji B. Jackson referred this matter to the undersigned for full case management. The Court subsequently issued an order directing Brightwell to show cause why this case should not be dismissed for lack of personal jurisdiction. See Show Cause Order, ECF No. 10. Brightwell responded to that Order, and both the default judgment motion and the jurisdictional issue are ripe for resolution. See Pl.’s Resp. LEGAL STANDARD A court “should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” ; Delta Sigma Theta Sorority, When personal jurisdiction is challenged without an evidentiary hearing, a plaintiff must make a prima facie showing that the court has personal jurisdiction. See 7 F.3d This burden cannot be satisfied by “conclusory statements.” Instead, a plaintiff must allege “specific facts” on which to base personal jurisdiction. The court resolves factual disputes or discrepancies in favor of the plaintiff, and may “receive and weigh affidavits and other relevant matters to assist in determining the jurisdictional facts.” Bigelow v Garrett, When evaluating personal jurisdiction in the default judgment context, “the absence of the defendants counsels greater flexibility toward the plaintiffs because it impedes their ability to obtain jurisdictional discovery.” 7 F.3d Courts may exercise two types of jurisdiction over non-resident defendants: general jurisdiction or specific jurisdiction. General jurisdiction exists only if the non-resident corporation's “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” ). General jurisdiction may be “based on a forum connection unrelated to the underlying suit.” 851 F.3d at 5 ). Specific jurisdiction, in contrast, “requires a nexus between a foreign corporation's particular contact with the forum state and the claim that the plaintiff asserts.” 7 F. Supp. 2d 13, ; see also 1 U.S. (noting that specific jurisdiction requires a relationship between “the defendant, the forum, and the litigation”) ). Typically, the jurisdictional reach of a federal court is the same as that of a state court in the state where the federal court sits. See Fed. R. Civ. P. 4(k)(1)(A). To determine whether general or specific jurisdiction exists, “courts ordinarily decide whether statutory jurisdiction exists under the [forum state's] long-arm statute and, if it does, then whether an exercise of jurisdiction would comport with constitutional limitations.” WL 12550, U.S. Dist. LEXIS 44, (quoting (D.C. Cir. 201) ); see also 302 F. Supp. 3d 3, 4 ; 5 F. Supp. 2d at *4 The Due Process Clause of the Constitution requires that “the defendant has sufficient contacts with the forum such that exercising [personal] jurisdiction over the defendant would comport with ‘traditional notions of fair play and substantial justice.’ ” 7 F. Supp. 2d at ). Thus, the Constitution permits courts to exercise general personal jurisdiction “based on ‘only a limited set of affiliations with a forum, all analogous to an individual's domicile.’ ” 851 F.3d at 5 (citing 1 U.S. 37, ). The Constitution limits the exercise of specific personal jurisdiction to situations where “the defendant's suit -related conduct create[s] a substantial connection with the forum state.” 1 U.S. at 4, DISCUSSION Brightwell asserts that the Court may exercise general and specific personal jurisdiction over Dongguan based on Dongguan's contacts and business transactions in the District of Columbia (“D.C.”). See Pl.’s Resp. at 2. Specifically, Brightwell contends that Dongguan's online presence and maintenance of an interactive website accessible by D.C. residents establish both general and specific jurisdiction in this Court. –2. To resolve that issue, the Court will evaluate whether Brightwell has alleged facts that demonstrate that Dongguan had sufficient contacts with the District of Columbia to satisfy the requirements of the D.C. long-arm statute and constitutional due process. I. General Jurisdiction “If a corporate defendant is neither incorporated in nor has its principal place of business in the District of Columbia, the court may exercise general jurisdiction, pursuant to Section 13-334(a) of the D.C. Code, if the corporate defendant is ‘doing business in the District.’ ” WL 2327748, U.S. Dist. LEXIS 137, *-*7 The reach of “doing business” jurisdiction under the statute is coextensive with the reach of constitutional due process. See Arista Records, ); 20 F. Supp. 2d 10, Thus, the question here is whether Dongguan's business contacts with D.C. are sufficiently “continuous and systematic” that Dongguan is “essentially at home” in D.C. 1 U.S. 3, Brightwell asserts that Dongguan is “doing business” in D.C. by operating a website that functions as a storefront in D.C., and that Dongguan's maintenance of its interactive website constitutes the “continuous and systematic” business contacts required to satisfy due process. See Pl.’s Resp. at 2. Brightwell supports this contention by attaching screenshots of the Dongguan website to demonstrate that customers may exchange two-way communications with Dongguan, search among Dongguan products, purchase those products, and create an individualized shipping quote on the website. See Pl.’s Resp., Ex. 3, Screenshots of Brightwell Website, ECF No. 11-4. In addition, Matthew Dwelly, a Brightwell General Manager, submitted a statement noting that Dongguan's physical presence in the United States is limited to trade shows and that Dongguan sold an infringing device to a company in California. Dwelly Decl. 2, ECF No. 11-2. Brightwell's arguments rest on the premise that operating and maintaining an interactive website qualifies as “doing business” systematically and continuously in any state where customers can access the website. To support its position, Brightwell principally cites two D.C. Circuit cases that predate Goodyear and — FC Inv. and 23 F.3d 50. In FC Investment the Court noted that “[u]nder certain circumstances, a foreign corporation's maintenance of a website that is accessible in the District can satisfy general jurisdiction requirements,” provided that the website is “interactive” and “District residents use the website in a ‘continuous and systematic’ way.” 52 F.3d 02. Similarly, in the Court held that “transactions accomplished through the use of e-mail or interactive websites” could provide a basis for general personal jurisdiction if the defendant's “contacts with the District [were] ‘continuous and systematic.’ ” *5 Brightwell's reliance on FC Investment and is misplaced for two reasons. First, Goodyear and impose an additional requirement that a defendant's contacts must be so extensive that the defendant is “essentially at home” in the forum state, thereby “abrogat[ing] the reasoning” on which and FC Investment were based. ; see also F.Supp.3d 271, 0 (noting that Goodyear and established a more stringent “essentially at home” test than ’s “continuous and systematic” contacts test); see also 1 U.S. 54, (Sotomayor, J., concurring) (noting Court's departure from prior precedent by “announc[ing] the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only possess continuous and systematic contacts with a form State, but those contacts must also surpass some unspecified level when viewed in comparison to the company's ‘nationwide and worldwide’ activities”) Second, Brightwell has not alleged facts that meet the lower standard that the D.C. Circuit applied in and FC Investment In FC Investment the court concluded that a foreign corporation's interactive website did not establish general personal jurisdiction in D.C. because the plaintiff did not demonstrate that a significant number of D.C. resident customers had ongoing interactions with the company through the website. See 52 F.3d 4–50. In the court noted that the frequency and volume of the defendant corporation's online transactions with D.C. residents would determine whether general personal jurisdiction existed. See 23 F.3d at 513. Here, Brightwell has alleged that D.C. residents could order products on Dongguan's website but not that any D.C. residents actually did so. See Pl.’s Resp. at 2, ECF No. 11. “[T]he mere accessibility of a defendant's website does not establish the necessary minimum contacts required for general jurisdiction.” FC Inv. 52 F.3d 02. Thus Brightwell's allegations demonstrate that Dongguan's interactive website was accessible by D.C. residents, but do not establish general jurisdiction. Turning to the and Goodyear standard, Brightwell's allegations fall far short of demonstrating that D.C. residents continuously and systematically interact with Dongguan's website to such an extent that Dongguan is “essentially at home” in D.C. This case is analogous to where this Court concluded that a foreign airline's maintenance of an interactive website that D.C. residents could access to purchase airfare tickets did not establish general personal jurisdiction in this Court. See There, as here, the plaintiffs failed to allege or plead facts demonstrating that D.C. residents had accessed or purchased products on the commercial website. at ; Pl.’s Resp. at 2. Given that the AirAsia website was accessible worldwide, the court found “no basis to infer, based on the mere accessibility of the website, [that] AirAsia is more ‘at home’ in the District of Columbia than anywhere else in the United States.” ; see also Nuevos Destinos, LLC v. Peck, No. 15-cv-184 (EGS), WL 78780, U.S. Dist. LEXIS 322, at * The same is true here. Consequently, the undersigned recommends that the Court conclude that it lacks general personal jurisdiction to review Brightwell's claims against Dongguan. II. Specific Jurisdiction Brightwell also alleges that the court may exercise specific jurisdiction over Dongguan because Dongguan is transacting business in D.C. and the trademark infringement claims arise from those transactions. See Pl.’s Resp. at 2, ECF No. 11. Brightwell invokes the D.C. long-arm statute, (a)(1), which allows courts to exercise specific jurisdiction over a party for claims that arise from a party “transacting any business” in D.C. –423(a)(1); Bey, WL 2327748, at U.S. Dist. LEXIS 137 To establish specific personal jurisdiction under the “transacting business” prong of the long-arm statute, Brightwell must prove: “First, that the defendant transacted business in the District of Columbia; second, that the claim arose from the business transacted in D.C.; and third, that the defendant had minimum contacts with the District of Columbia such that the Court's exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice.” * 7 F. Supp. 2d ). Section 13-423(a)(1) “provide[s] jurisdiction to the full extent allowed by the Due Process Clause.” Thompson 118 ; see also United 8 (D.C. Cir. 15); 33 F.3d at 205; 7 F. Supp. 2d at –22. Consequently, the Court “need only engage in a single analysis of the defendant's contacts with the District under the standards established in the long-arm and service statutes because sufficient contacts under the D.C. Code and proper service is all that Due Process requires.” (citing 23 F.3d at 513); Shoppers Food 74 A.2d 320, 32–30 ; see also 54 F.3d at 8 ; Thompson 734 F.3d 18 A. Brightwell Has Not Demonstrated that Dongguan Has Transacted Business in D.C. As noted, determining whether there is an adequate nexus between a defendant's business transactions and the forum to satisfy Section 13-423 requires an analysis of whether the defendant has “minimum contacts” with the forum. Physical presence in the forum is not necessary, but “[r]andom,” “fortuitous,” or “attenuated” contacts are not enough. Burger King 471 U.S. 42, 475–7, 105 S.Ct. 74, 85 L.Ed.2d 5 (185) Instead, “it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum thus invoking the benefits and protections of its laws.” 30 F. Supp. 2d 145, ; see also Thompson 734 F.3d 18. Although the Supreme Court has written extensively on minimum contacts, it left “questions about virtual contacts for another day.” 1 U.S. at 20 n., In that silence, courts have used different approaches to evaluate whether website activity provides the requisite minimum contacts with a forum. Zippo Manufacturing Co. v. Zippo Dot Com established a sliding scale to assess whether a company's online commercial activities confer personal jurisdiction; that scale ranges from situations where a defendant “clearly does business over the internet” to situations where the defendant merely uses a passive website to post information accessible to users in the jurisdiction. Zippo Mfg. 52 F. Supp. 111, (W.D. Pa. 17). For many years, multiple courts across circuits have used Zippo’s spectrum of website interactivity to assess a defendant's virtual contacts with a forum. See Soma Med. 1 F.3d 122, 127 (10th Cir. 1) ; see also ALS Scan, 23 F.3d 707, ; see generally F.3d at 513 (citing Zippo when explaining the additional facts that may demonstrate that personal jurisdiction exists). However, this Court took a different approach in Triple holding that website interactivity is not a “jurisprudential heuristic” for personal jurisdiction and is only relevant to the extent that it illustrates that “the website allows its operator to engage in real-time transactions with District of Columbia residents.” Triple aff'd No. 17-7033 2018 WL 444045 Thus, rather than focusing exclusively on the interactivity of a website, courts must assess whether the website functions as the defendant's “storefront” in the forum and whether the defendant's conduct is aimed at or has an effect in the forum state. See *7 Brightwell's allegations establish that Dongguan's website is interactive, but do not demonstrate that D.C. residents transacted business on Dongguan's site in a manner sufficient to confer personal jurisdiction. The website functions in a way that allows D.C. residents to exchange two-way communications with Dongguan, click buttons to receive additional information about products, receive shipping quotes, and purchase goods. See Pl.’s Resp. at 4–5; see generally Ex. 3, Screenshots of Dongguan Website, ECF No. 11-4; Compl. ¶ 1. Thus, it can fairly be described as Dongguan's virtual storefront. See Triple 235 F. Supp. 3d at However, Brightwell presents no evidence that D.C. residents visited the website or “actually engage[d] in any business transactions with the defendant” as required to establish personal jurisdiction. Triple 2018 WL 444045, at Consequently, Brightwell has failed to “allege specific facts connecting the defendant with the forum [because] personal jurisdiction surely cannot be based solely on the ability of District residents to access the defendant[’s] websites” 30 F. Supp. 2d 51–52 (quoting 1 F.3d 350); see also Triple 2018 WL 444045, at (noting that website accessibility alone does not demonstrate a defendant's persistent course of conduct in a forum to satisfy personal jurisdiction requirements); 400 F. Supp. 2d 8, 1 The fact that Brightwell has alleged specific contacts with different forums — such as Dongguan's alleged sale of an infringing device, “SunnyCare®,” to a distributor in California (Agio Inc.,) — makes its omission of similar facts regarding D.C. transactions particularly glaring. See Dwelly Decl. ¶ 5 (discussing Dongguan's alleged transactions). This case is similar to where the court found that it lacked personal jurisdiction over a defendant whose website was accessible in D.C. because the plaintiff “alleged only that District residents can access the website, not that they actually do.” 30 F. Supp. 2d 51 In the defendant operated a website that allowed users to communicate with the defendant's staff, win prizes, and purchase discount tickets. 47. The plaintiff's failure to provide evidence that a significant number of D.C. residents accessed and conducted transactions on the defendant's website proved fatal to its efforts to establish personal jurisdiction over the defendant in D.C. See 51–52. Here, too, Brightwell has alleged only that D.C. residents can access and interact with Dongguan's website, which is insufficient to confer personal jurisdiction under (a)(1); see ; see also Triple 2018 WL 444045, at ; 400 F. Supp. 2d The “effects test” articulated in provides an alternate means of establishing specific personal jurisdiction by assessing whether “the defendant's conduct is aimed at or has an effect in the forum state.” Triple 235 F. Supp. 3d (citing 45 U.S. 783, and 1 F.3d 34) In the Supreme Court observed that “the Defendants’ allegedly tortious actions were ‘expressly aimed’ at California; that [defendants] knew that the article ‘would have a potentially devastating impact’ on its subject in California, and that under those circumstances, they should have anticipated being haled into court’ in that State.” 54 F.3d at 8 Consequently, the Court held that “the brunt” of the Defendants’ conduct was directed towards California and that California courts had personal jurisdiction over the defendant. See 45 U.S. 8, Brightwell has not demonstrated that Dongguan directed its conduct at D.C. or that the alleged infringing conduct had a sufficient effect in D.C. to establish personal jurisdiction under the effects test. Brightwell points to evidence that “North America is listed as one of [Dongguan's] three top markets” according to its website. Pl.’s Resp. at 5; Screenshots of Dongguan Website; Pl.’s Resp., Grandinetti Decl. ¶ ECF No. 11-5; Dwelly Decl. ¶ 10. The fact that Dongguan conducts sales on the vast continent of North America does not prove that sales were directed to or have an effect in D.C. See 45 U.S. 85, 78, (“The mere fact that [a defendant] can foresee that [a national product] will be circulated and have an effect in [a forum] is not sufficient for an assertion of jurisdiction.”) (citing World-Wide Volkswagen 444 U.S. 25, 100 S.Ct. 55, 2 L.Ed.2d 40 (180)); see also 200 WL 75845, at (D.D.C. March 200) ). Similarly, the fact that Dongguan allegedly attended a Chicago trade show does not establish personal jurisdiction in D.C., even if some products sold as a result of the trade show might ultimately be delivered to or used in D.C. See Pl.’s Resp. at 3, ECF No. 11; J. McIntyre Machinery, 54 U.S. 873, 875, 88, 1 S.Ct. 2780, 180 L.Ed.2d 751 Finally, although Brightwell argues that Dongguan's website “permits” deliveries throughout the United States, including D.C., Brightwell neither proves nor alleges that Dongguan made any deliveries to D.C. Therefore, Brightwell's allegations do not satisfy B. Brightwell Has Not Demonstrated that Jurisdictional Discovery is Warranted. Although Brightwell has not demonstrated that Dongguan had sufficient ties to D.C. to establish personal jurisdiction in this Court, jurisdictional discovery might have yielded facts sufficient to meet that burden. If a plaintiff “demonstrates that it can supplement its jurisdictional allegations through discovery, jurisdictional discovery is justified” and should be afforded with the court's discretion. 1 F.3d 351; 851 F. 3d at However, a plaintiff must “have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.” Fasolyak v. The Cradle Soc'y, Inc., No. 0-cv-112 (TFH), WL 2017144, ). Further, “it is inappropriate to subject a defendant to jurisdictional discovery if the plaintiff does not make a detailed showing of how jurisdictional discovery would lead to new, relevant information.” 4 F. Supp. 2d 77, 8 Given that Brightwell has not requested jurisdictional discovery, there is no basis to authorize such discovery. Brightwell could have asked the Court to permit discovery into Dongguan's contacts with D.C., notwithstanding Dongguan's lack of participation in the case. See generally 4 F. Supp. 2d at 81, 8 Yet, Brightwell failed to do so. Therefore, the undersigned recommends that the Court decline to authorize jurisdictional discovery. See 4 F. Supp. 2d at 8 C. The Court Need Not Assess the Nexus Between Dongguan's Alleged Contacts with D.C. and the Claims at Issue in This Litigation. Once a court establishes that a defendant has contacts with D.C., the Court must next determine whether the plaintiff's claims “aris[e] out of or relat[e] to the defendant's contacts with the forum.” 1 U.S. 27, ); see also WL 2245, at LEXIS 77, (holding that when plaintiff merely alleged that defendant does business in the District of Columbia and did not allege that his claim arose from the business transacted in the District, he failed to allege facts sufficient to establish specific jurisdiction under 13-423(a)(1)). Brightwell's failure to demonstrate that Dongguan had sufficient contacts with D.C. makes it unnecessary to analyze the nexus between those contacts and Brightwell's claims. In sum, the undersigned recommends that the Court find that Brightwell has not provided sufficient facts to show that this Court may exercise specific personal jurisdiction over Dongguan, and that the Court dismiss this action without prejudice.2 III. Jurisdiction Under Federal Rule of Civil Procedure 4(k)(2). * As noted in the Show Cause Order, Federal Rule of Civil Procedure 4(k)(2) allows courts to exercise personal jurisdiction over foreign defendants who are not subject to the jurisdiction of any court, for claims arising under federal law, if the foreign defendant has been served with a summons, “provided that the exercise of federal jurisdiction is consistent with the Constitution.” See Show Cause Order at 4; 7 F.3d 0; Citadel Inv. LLC v Citadel Cap. Co., F. Supp. 2d 303, 4. The Court need not analyze the application of Rule 4(k)(2) because Brightwell did not raise jurisdictional arguments under that rule. See 82 F. Supp. 3d 1, 24 n. aff'd RECOMMENDATION For the reasons set forth above, the undersigned recommends that Judge Ketanji B. Jackson find that this Court lacks personal jurisdiction over Dongguan, DENY the motion for default judgment without prejudice, and DISMISS the matter for want of jurisdiction, without prejudice. REVIEW BY THE DISTRICT COURT The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to this Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See 10 S.Ct. 4, (185).

Buchanan v. Sony Music Entertainment

Pro se plaintiff Moreh J. Buchanan has filed the instant lawsuit against four record companies and one movie studio under the Copyright Act, 17 U.S.C. § 501. (See Compl., ECF No. 1, at 14–17.)1 Buchanan alleges that he distributed four original songs to Defendants Sony Music Entertainment, Warner Music Group Corp., UMG Recordings, Inc., and Sony/ATV Music Publishing LLC (collectively, “the Record Companies”) between 1992 and 1997, in an effort to persuade them to produce his music (see id. at 4–5), and that these companies then unlawfully appropriated his music and lyrics, using them to create scores of hit songs that were released between 1993 and 2018 (see id. at 10–14). Buchanan specifically alleges that the Record Companies engaged in 56 individual acts of copyright infringement, and he further contends that Defendant Universal Pictures derived the “plot, theme, story line, characters, cast, scenes, etc. etc.” of the Fast and Furious film franchise from a copyrighted song that he sent to that company. (Pl.’s Opp'n to Defs.’ Mots. to Dismiss (“Pl.’s Opp'n to All Defs.”), ECF No. 22, at 6.) Buchanan also alleges that the Record Companies were negligent, and strictly liable, for failing to monitor their “writers, producers[,] and artist[s]” and for not protecting Buchanan “from harm of copyright infringement.” (Compl. at 14–15.) Before this Court at present are two motions to dismiss Buchanan's complaint that the Record Companies and Universal Pictures have filed. (See Defs. Record Cos.’ Mot. to Dismiss, ECF No. 19; Def. Universal Pictures's Mot. to Dismiss (“Def. UP's Mot.”), ECF No. 18.) The Record Companies contend that Buchanan's complaint fails to plead his claims of copyright infringement sufficiently under Federal Rule of Civil Procedure 12(b)(6); that the Copyright Act's statute of limitations bars some of the infringement claims; and that the Copyright Act preempts the complaint's negligence and strict liability tort claim. (See Defs. Record Cos.’ Mem. in Support of Mot. to Dismiss (“Defs. Record Cos.’ Mem.”), ECF No. 19-1, at 6–7.) Universal Pictures similarly argues that Buchanan has failed to plead facts that establish a plausible claim of copyright infringement under Rule 12(b)(6). (See Def. UP's Mot. at 1.) In response, Buchanan generally maintains that the allegations in his complaint are sufficient to support his copyright infringement claims. (See Pl.’s Opp'n to All Defs. at 2.) For the reasons explained below, this Court concludes that Buchanan has failed to state a claim for copyright infringement, because not all of the songs that he claims were infringed have been registered with the U.S. Copyright Office, and he has not sufficiently alleged that Defendants had access to his registered works or that there are substantial similarities between protectable aspects of his registered works and most of the infringing songs in his complaint. The Court further finds that the tort claim in Buchanan's complaint must be dismissed as preempted by the Copyright Act. Accordingly, both Defendants’ motions will be GRANTED. A separate Order consistent with this Memorandum Opinion will follow. I. BACKGROUND A. Alleged Facts2 *2 Plaintiff Moreh J. Buchanan is a “songwriter, music publisher, singer/rapper, artist ... and composer[.]” (Compl. ¶ 3.) In the 1990s, Buchanan allegedly wrote, produced, and recorded several original demonstration songs—colloquially referred to as “demos”—that he distributed to music-industry professionals in hopes of landing a record deal. (Pl.’s Opp'n to All Defs. at 12.) According to the complaint, Buchanan first traveled to Atlanta in 1994 and 1995 (see Compl. ¶¶ 40, 43) to present the demos to certain relatives of his who worked in the music industry (see Pl.’s Opp'n to All Defs. at 5; see also Compl. ¶¶ 20–23). Buchanan's family members apparently consistently rebuffed his repeated attempts to pitch the demos in this fashion (see Compl. ¶¶ 24, 40–45), so Buchanan physically relocated to Atlanta (see id. ¶ 46), to “search for a record deal by sharing his music” (id. ¶ 50). Once there, Buchanan allegedly not only passed demo tapes to producers and music executives personally (see id. ¶ 52–53), he also worked with a lawyer, E. Earle Burke, who, in 1997, “shopped” Buchanan's demo tapes to “Motown, Columbia, Sony, and MCA/Universal Records” (Compl. ¶ 59; see also Pl.’s Opp'n to All Defs. at 5). Burke allegedly told Buchanan that the record companies he approached were “very excited about [Buchanan's] looks, sound, and demo tape[,]” (Compl. ¶ 60), and further suggested that MCA or Motown was interested in contracting with Buchanan (see id. ¶ 61). Around that same time, Buchanan purportedly came to believe that the rapper Will Smith had copied one of the demo songs in order to create the popular song “Gettin’ Jiggy Wit It.” (See id. ¶¶ 64–71.) Buchanan sought counsel from Burke, and Burke agreed to pursue the matter. (See id. ¶¶ 67, 82–83.) Ultimately, Burke failed to take legal action because, according to Buchanan, Burke “was bribed by Will Smith[.]” (Id. ¶ 101.)3 In late 2012, Buchanan began to notice other popular songs—songs “dating back as far as 1993”—that he believed “infringed on his ... songs and music copyright.” (Id. at 17.) The allegedly infringing works are songs that were marketed between 1993 to 2018 and include popular hits like “Single Ladies” by Beyoncé, “Shape of You” by Ed Sheeran, and “No Scrubs” by TLC. (See id. at 9–15.) In total, Buchanan's complaint identifies 56 songs that allegedly infringe on his copyrights. (See id.)4 In addition to the listed popular songs, Buchanan's complaint further alleges that the Fast and Furious film franchise lifted its “plot, theme, story line, characters, cast, scenes, etc. etc.” from his song entitled “I Gos Ta Roll.” (Pl.’s Opp'n to All Defs. at 6.) Notably, Buchanan officially registered “I Gos Ta Roll” with the U.S. Copyright Office in April of 1998. (See Exh. 2 to Pl.’s Compl., ECF No. 1-1, at 2; Pl.’s Opp'n to All Defs., at 13; see also Defs. Record Cos.’ Mem., at 12; Exh. A to Defs. Record Cos.’ Mem., ECF No. 19-5, at 2.) However, none of the other demo songs that Buchanan points to as having been subsequently pilfered by the Record Companies—including “Krazy Bad,” “Gangsta Bass,” and “Zombie Beat”—were registered with the Copyright Office prior to the initiation of the instant lawsuit. (See Pl.’s Exh. 10 in Supp. of Second Aff. (“Pl.’s Registration Appl.”), ECF No. 27, at 4.) B. Procedural History On December 17, 2018, Buchanan filed a pro se complaint in this Court, alleging “copyright infringement of his original demo song[s][.]” (Compl. ¶ 101.) Buchanan's complaint is not a model of clarity, but it appears to assail certain specified acts as copyright violations, each of which this Court construes as a separate infringement claim for the purpose of evaluating Defendants’ motions to dismiss.5 Buchanan's complaint also appears to allege that the Record Companies have committed negligence, and are strictly liable, for “failing to protect Plaintiff from harm of copyright infringement.” (Compl. at 14.) As relief, Buchanan seeks damages totaling “$1 Quadrillion.” (Compl. at 17.) *3 On May 6, 2019, the Record Companies moved to dismiss Buchanan's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Defs. Record Cos.’ Mem. at 10.) The Record Companies point out that Buchanan does not have a valid copyright for three of the four demo songs (see id. at 10–12), and they further insist that his complaint has “not plausibly pled” that the Record Companies had access to Buchanan's works in order to copy them (id. at 13). The Record Companies also argue that Buchanan's pleading fails to state a claim upon which relief can be granted, because he does not identify similarities between most of his works and the allegedly infringing songs, and the few similarities that he does identify are insufficient to support his claims (id. at 15–22). Finally, the Record Companies point to the Copyright Act's statute of limitations, which they maintain bars many of Buchanan's infringement claims, and they assert further that the Copyright Act preempts his negligence/strict liability claim. (See id. at 22–25.) Universal Pictures filed its Rule 12(b)(6) motion to dismiss on May 2, 2019. (See Mem. of P. & A. in Supp. of Def. Universal Pictures's Mot. to Dismiss (“Def. UP's Mem.”), ECF No. 18-1.) The primary thrust of Universal Pictures's argument is that Buchanan has not “plausibly explain[ed] how Universal Pictures gained access” to “I Gos Ta Roll” or any of his other demo songs, nor has he “set forth what copyrightable elements of his works” Universal Pictures allegedly copied. (Id. at 5.) Buchanan filed a consolidated opposition to both Defendants’ motions to dismiss on June 7, 2019 (see Pl.’s Opp'n to All Defs., ECF No. 22), and flurry of responsive briefing followed. Specifically, the Record Companies filed a reply brief on June 17, 2019 (see Defs. Record Cos.’ Reply in Supp. of Mot. to Dismiss, ECF No. 23), and Universal Pictures filed its reply brief on that same day (see Reply Mem. in Supp. of Def. Universal Pictures's Mot. to Dismiss, ECF No. 24). Buchanan then filed several additional documents in opposition to the Defendants’ motions to dismiss (see Pl.’s Opp'n to Def. UP's Mot., ECF No. 25; Pl.’s Exh. 11 in Supp. of 2nd Aff., ECF No. 26; Pl.’s Registration Appl., ECF No. 27), and the Record Companies filed a surreply on August 7, 2019 (see Defs. Record Cos.’ Surreply, ECF No. 34). Finally, Buchanan filed an initial surreply on August 14, 2019 (see Pl.’s Reply in Supp. of Opp'n to Not Dismiss (“Pl.’s Surreply”), ECF No. 30), which was followed by a final surreply on August 23, 2019 (see Pl.’s Opp'n to Defs.’ Surreply, ECF No. 33). II. MOTIONS TO DISMISS UNDER RULE 12(b)(6) Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint against it on the grounds that it “fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint, Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017), and it is well established that, to withstand a Rule 12(b)(6) motion, the plaintiff must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). When evaluating a motion's allegation that the complaint must be dismissed for failure to state a cognizable claim, the court must “accept the plaintiff's factual allegations as true and construe the complaint liberally, granting plaintiff the benefit of inferences that can reasonably be derived from the facts alleged.” Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018) (internal quotation marks, alterations, and citation omitted). It is also clear that, as a general matter, pleadings that are submitted by pro se plaintiffs should be “held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also id. (“A document filed pro se is to be liberally construed[.]” (internal quotation marks and citation omitted)). However, “[t]his benefit is not ... a license to ignore the Federal Rules of Civil Procedure[.]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009). Thus, the court need not “accept legal conclusions cast as factual allegations[,]” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012), and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” do not pass muster under Rule 12(b)(6), Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks, alterations, and citation omitted). III. ANALYSIS *4 As previously mentioned, Defendants seek dismissal of the bulk of Buchanan's complaint on the grounds that Buchanan has failed to plead his copyright infringement claims sufficiently, and the Record Companies further maintain that some of Buchanan's claims are either barred by the applicable statute of limitations or preempted by the Copyright Act. (See Defs. Record Cos.’ Mem. at 10–24; Def. UP's Mem. at 11–15.) As explained below, this Court largely agrees with Defendants’ contentions. That is, to the extent that some of Buchanan's claims pertain to certain demo songs that he did not register with the Copyright Office, no claim pertaining to infringement of those works can be sustained as a matter of law. And Buchanan has also failed to identify a chain of events that supports a plausible inference that Defendants actually had access to the one demo song he registered, nor has he otherwise sufficiently identified protectible and infringed elements of that registered work. Thus, none of Buchanan's copyright claims can proceed. Furthermore, because the Copyright Act preempts a tort liability claim that pertains to an alleged failure of the defendant to shield registered creative works from alleged unlawful appropriation, Buchanan's negligence and strict liability claim must also be dismissed. A. Buchanan's Complaint Fails To State Any Valid Copyright Infringement Claims 1. Federal Copyright Law Conveys Enforceable Rights To Owners Of Creative Works, But Only Under Certain Specified Circumstances Under Title 17 of the United States Code, the owner of a creative work that is subject to copyright protection generally has several exclusive rights with respect to his creation, including the right to “reproduce the copyrighted work[,]” to “prepare derivative works[,]” to “distribute copies[,]” to “perform the copyrighted work publicly[,]” and to “display the copyrighted work publicly[.]” 17 U.S.C. § 106. Moreover, and significantly for present purposes, if the owner of a work has sought and received “preregistration or registration of the copyright claim ... in accordance with [Title 17][,]” 17 U.S.C. § 411, then he also has “an exclusive right ... to institute an action for any infringement” of his copyright, 17 U.S.C. § 501. According to the D.C. Circuit, to state a claim for copyright infringement, a plaintiff must allege facts that, if true, would “prove both [1] ownership of a valid copyright and [2] that the defendant copied original or ‘protectable’ aspects of the copyrighted work.” Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 361 (1991)). The initial author of a protectible work typically qualifies as the “owner” of the copyright, see 17 U.S.C. § 201, and such author “gains ‘exclusive rights’ in her work immediately upon the work's creation.” Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019) (citation omitted); see also 17 U.S.C § 408 (“[R]egistration is not a condition of copyright protection.”). In order for an author to seek to enforce copyright protection of a work in court, however, the work must ordinarily be registered with the Copyright Office; indeed, section 411(a) of Title 17 specifically states that “no civil action for infringement of the copyright ... shall be instituted until preregistration or registration of the copyright claim has been made[.]” 17 U.S.C. § 411(a); see also Fourth Estate, 139 S. Ct. at 887 (noting that the requirement that a song be registered “is akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights”); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157–58 (2010) (explaining that copyright registration is “a condition ... that plaintiffs ordinarily must satisfy before filing [a copyright] infringement claim”). It is also clear beyond cavil that a timely certificate of registration serves as prima facie evidence of a valid copyright. See 17 U.S.C. § 410(c); see also Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96, 99 (D.C. Cir. 1998) (explaining that “certificates of registration ... constitute prima facie evidence of the validity of the copyright”). With respect to the copying element of a copyright infringement claim, in the absence of direct evidence of copying, a plaintiff must allege “(1) that defendants had access to the copyrighted work, and (2) the substantial similarity between the protectible material in plaintiff's and defendants’ works.” Prunte v. Universal Music Grp., 484 F. Supp. 2d 32, 40–41 (D.D.C. 2007). Access generally means that an infringer had a “reasonable opportunity to hear the plaintiff's work” and, thus, had “the opportunity to copy”; however, “access may not be inferred through mere speculation or conjecture.” Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009) (internal quotation marks and citations omitted). Moreover, the second element—the substantial similarity inquiry—proceeds in two distinct steps. See Sturdza, 281 F.3d at 1295. “The first step requires identifying which aspects of the artist's work, if any, are protectible by copyright[,]” id., while the second step requires comparing the works to determine “whether the infringing work is ‘substantially similar’ to protectable elements of the artist's work[,]” id. at 1296 (citation omitted). Protectible aspects of an artist's work are those “that display the stamp of the author's originality”; thus, facts, ideas, and “incidents, characters, and setting which are ... standard[ ] in the treatment of a given topic” are all considered unprotectible. Id. at 1295–96 (internal quotation marks and citations omitted). *5 Applied here, these legal standards require that, in order to state a valid claim for copyright infringement, Buchanan has to allege that Defendants had access to one or more of his registered (validly copyrighted) demo songs, and that Defendants’ works are substantially similar to protectible material in Buchanan's copyrighted works. Buchanan's complaint falls far short of making sufficient allegations with respect to these critical elements of a valid copyright claim, for the reasons explained below. 2. Some Of The Copyright Infringement Claims In Buchanan's Complaint Are Based On Unregistered Recordings Buchanan's various filings make clear that only one of the four demo songs upon which his copyright infringement claims are based was registered with the U.S. Copyright Office at the relevant time. Buchanan alleges that he registered the song “I Gos Ta Roll” prior to the initiation of the instant lawsuit (see Compl. ¶ 100; Pl.’s Opp'n to All Defs. at 13 ¶ 85), and at least for the purpose of their motion to dismiss, Defendants appear to accept that Buchanan registered that song and thus had ownership of a valid copyright in “I Gos Ta Roll” at the time Buchanan filed his complaint (see Defs. Record Cos.’ Mem. at 13; Exh. A to Defs. Record Cos.’ Mem. at 2). Buchanan proceeds to allege that 46 songs that the Record Companies produced infringe on his copyright for “I Gos Ta Roll,” including “No Scrubs” by TLC, “Shape of You” by Ed Sheeran, and “I Want It That Way” by The Backstreet Boys. (See Compl. at 9–14.) Buchanan further alleges that the Fast and Furious film franchise infringes on “I Gos Ta Roll.” (See id. at 15.) The remaining nine songs that the complaint assails as infringing works—“Born to Roll” by Masta Ace, “Single Ladies” by Beyoncé, “Rap God” by Eminem, “6 Foot 7 Foot” by Lil Wayne, “Rockstar” by Post Malone, “Started From the Bottom” by Drake, “Yes Yes Y'all” by Will Smith, “Country Grammar” by Nelly, “Hell Yeah” by Ginuane, and “Roving Gangster” by Kid Rock—purportedly infringe upon three other demo songs that Buchanan recorded: “Krazy Bad,” “Gangsta Bass,” and “Zombie Beat.” (See id. at 9–14.) But Buchanan does not allege that he submitted any registration application with respect to these three works prior to the initiation of this lawsuit, and the fact that he sought registration for them after Defendants filed their motions to dismiss strongly suggests that these songs were not previously registered. (See Pl.’s Registration Appl. at 4 (explaining that the registration application fee for the three songs was submitted on July 3, 2019 and that the songs were not previously registered “because [Buchanan] did not think [the songs] would be infringed”).) The lack of any allegation regarding pre-suit registration with respect to those three songs compels the conclusion that the nine infringement claims that relate to Buchanan's unregistered works must be dismissed for failure to state a claim on which relief can be granted. In other words, Buchanan did not register the three allegedly copied works before pursuing a copyright infringement lawsuit based on those songs, and as a result, he cannot maintain copyright infringement claims with respect to any new songs that allegedly infringe his ownership rights related to those unregistered works. See Fourth Estate, 139 S. Ct. at 887; see also, e.g., Newborn v. Yahoo!, Inc., 391 F. Supp. 2d 181, 188 (D.D.C. 2005) (finding that where “there [is] no current copyright for this document, it cannot form the basis for a copyright infringement claim”). 3. Buchanan's Complaint Does Not Contain Sufficient Facts To Give Rise To A Reasonable Possibility That Defendants Had Access To His Registered Work *6 The copyright claims that pertain to the one registered demo song that appears in Buchanan's complaint (“I Gos Ta Roll”) fail because, notwithstanding the copyright registration, Buchanan has not plausibly alleged that Defendants had access to this song. To establish that a defendant had access to a plaintiff's work for the purpose of stating a cognizable copyright claim under federal law, the plaintiff must allege, and ultimately prove, circumstances that suggest “a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (internal quotation marks and citation omitted); see also Cottrill v. Spears, 87 F. App'x 803, 806 (3d Cir. 2004), as amended on reh'g (June 2, 2004); Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992). A plaintiff can make this showing in one of two ways: “(1) a particular chain of events is established between the plaintiff's work and the defendant's access to that work ... or (2) the plaintiff's work has been widely disseminated.” Olson v. Tenney, 466 F. Supp. 2d 1230, 1235 (D. Or. 2006) (quoting Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000)). Here, Buchanan says only that his lawyer, E. Earle Burke, distributed “cassette tapes” with his songs to “Motown, Columbia, Sony, and MCA/Universal” (Compl. ¶¶ 58–59), and that these tapes “included 4 new songs that [Buchanan] wrote and recorded in summer 1997” (id. ¶ 58 (emphasis added)). Buchanan does not state that this distribution included “I Gos Ta Roll[,]” and such is unlikely, given Buchanan's allegation that he had recorded that particular song more than three years prior, in April of 1994. (See id. ¶ 40.) Moreover, and importantly, while Buchanan generally alleges that he mailed “copies of ‘I Gos Ta Roll’ to many record labels[,]” he does not allege that he mailed the song to any of the named Defendants specifically. (Pl.’s Opp'n to All Defs. at 11 ¶ 43).6 Buchanan has also failed to allege that “I Gos Ta Roll” was “so widely disseminated that the defendant can be presumed to have ... heard it.” Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1100 (7th Cir. 2017). “[W]idespread dissemination centers on the degree of a work's commercial success and on its distribution through radio, television, and other relevant mediums.” Loomis, 836 F.3d at 997. And far from alleging that “I Gos Ta Roll” was widely disseminated prior to Defendants’ alleged acts of infringement, Buchanan asserts that he published the song for the first time when he released it digitally on October 26, 2009. (See Compl. ¶ 100.) Buchanan's pleading also lacks any allegations with respect to the scope of that song's dissemination after it was published online; that is, Buchanan does not allege that a mass of people either purchased “I Gos Ta Roll” or listened to it. Yet, widespread dissemination of the type that gives rise to an inference of access in support of a copyright infringement claim generally requires a significant showing of ubiquity. See, e.g., Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1144 (9th Cir. 2009) (holding that the sale of 2,000 t-shirts per year was not sufficient to show wide dissemination); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (holding that sale of 17,000 video copies over a thirteen-year period could not be considered widely disseminated); Jason v. Fonda, 526 F. Supp. 774, 776 (C.D. Cal. 1981), aff'd 698 F.2d 966 (9th Cir. 1982) (holding book sales of approximately 2,000 copies did not create more than a bare possibility of access). Indeed, it is quite well established that “the mere fact that [Buchanan's] work was posted on the internet ... is insufficient by itself to demonstrate wide dissemination.” O'Keefe v. Ogilvy & Mather Worldwide, Inc., 590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008); see also Meynart-Hanzel v. Turner Broad. Sys., No. 17 C 6308, 2018 WL 4467147, at *6 (N.D. Ill. Sept. 18, 2018) (explaining that sufficiently pleading wide dissemination requires “facts concerning the alleged breadth of that distribution (e.g., the number of views, subscribers, traffic, etc.)”). *7 With respect to Buchanan's allegation that Burke provided a demo of “I Gos Ta Roll” to UMG Recordings (“UMG”), and that Universal Pictures got access to the song through that distribution (see Compl. at 15), Buchanan has suggested a particular mode of transmission of this work to those Defendants, but his access allegations are insufficient nonetheless because there must be a “reasonable possibility” that allegedly infringing actors within UMG and Universal Pictures had the opportunity to copy his song, Moore, 972 F.2d at 942, and there is nothing in Buchanan's pleadings upon which to base any such inference. For instance, where a plaintiff has alleged access through a third-party intermediary, “[a] court may infer that the alleged infringer had a reasonable possibility of access if the author sent the copyrighted work to a third party intermediary who has a close relationship with the infringer.” Towler v. Sayles, 76 F.3d 579, 583 (4th Cir. 1996) (emphasis added); see also id. (explaining that a close relationship can be shown where the intermediary “supervises or works in the same department as the infringer or contributes creative ideas to him”). But Buchanan has not made any factual allegations with respect to Burke's relationship with any of the Defendants, much less to whom Burke provided the demo tape at UMG and/or how the song was then transferred to the allegedly infringing writers and producers within UMG or at Universal Pictures. See Schkeiban v. Cameron, No. CV 12-0636-R (MANX), 2012 WL 12895721, at *2 (C.D. Cal. July 20, 2012) (explaining that plaintiff has not pleaded “facts showing a chain of events from [intermediary] to [alleged infringer]” or shown that “their relationship is sufficiently strong to raise a reasonable possibility of access”); cf. Peters v. West, 692 F.3d 629, 634 (7th Cir. 2012) (finding access sufficiently pled where plaintiff provided song to intermediary who was alleged to have had a close relationship with creator of infringing work). Nor has Buchanan identified any of the writers and music producers who created the allegedly infringing works, or alleged that any of these infringers was employed by, or otherwise had a relationship with, UMG or Universal Pictures such that they could possibly have received a copy of “I Gos Ta Roll” after Burke purportedly provided it to UMG. See Griffin v. Peele, No. EDCV 17-01153 JGB, 2018 WL 5117555, at *5 (C.D. Cal. Jan. 18, 2018) (finding plaintiff's chain of events “too speculative” where plaintiff did not allege that the infringing work was actually provided to alleged infringer). Buchanan identifies the recording artists associated with each allegedly infringing work, but he does not allege that these artists were responsible for writing or producing the infringing works, nor does he allege any facts from which the Court could infer that the recording artists had access to his work. See Lyles v. Capital-EMI Music Inc., No. 2:12-CV-00751, 2013 WL 6000991, at *4 (S.D. Ohio Nov. 12, 2013) (finding access insufficiently pled where “there are no facts alleged that would allow any reasonable inference that the record companies to which Plaintiff sent his songs had any relationship with [alleged infringing artist]”). And the similarly bald contention that “I Gos Ta Roll” was “passed on” to Universal Pictures from UMG (Compl. at 15) is likewise not enough. Cf. Marcus v. ABC Signature Studios, Inc., 279 F. Supp. 3d 1056, 1064 (C.D. Cal. 2017) (finding access sufficiently pled where plaintiff alleged that she submitted a script to a script-writing contest, the contest's director had a close relationship with the creator of the infringing work, and creator of infringing work received the script from the contest director). In short, Buchanan's allegations do not allege facts that make the allegedly infringing producers’ access to “I Gos Ta Roll” a “reasonable possibility”; therefore, Buchanan has failed to provide the plausible allegation of access that copyright law requires. See Towler, 76 F.3d at 583 (“The ‘tortious chain of hypothetical transmittals’ that [plaintiff] attempts to forge is insufficient to infer access.” (quoting Meta-Film Associates, Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355 (C.D. Cal. 1984))). 4. Buchanan's Complaint Fails To Allege Facts That Support A Plausible Inference Of Substantial Similarity Finally, it is clear to this Court that, even if Buchanan has adequately pled that Defendants had access to his registered song “I Gos Ta Roll,” Buchanan has not identified protectible elements of that song, and has failed to allege a substantial similarity between those protectible elements and the allegedly infringing works. Instead, to support the vast majority of his copyright infringement claims, Buchanan merely asserts that the infringing work “steals from” his song. Courts have consistently held that the bare assertion that a work “steals from” a plaintiff's work is insufficient to state a claim of copyright infringement. See, e.g., Evans v. McCoy-Harris, No. CV 178-345-DMG, 2019 WL 4284504, at *3 (C.D. Cal. May 9, 2019) (granting the defendant's motion to dismiss where the “[p]laintiff does not address the substantial similarities, if any, between [one of her works] and [the defendant's work]”); Ritani, LLC v. Aghjayan, 880 F. Supp. 2d 425, 442 (S.D.N.Y. 2012) (noting that “failure to plead facts regarding how the [works] are ‘substantially similar,’ including identifying the protectable elements of the works as part of its claim, will result in the dismissal of the copyright claim”); Zendel v. ABC Video Prods., No. CV 10-2889-VBF(EX), 2010 WL 11549713, at *1 (C.D. Cal. Nov. 22, 2010) (granting motion to dismiss where plaintiff “fail[ed] to identify or describe any of the alleged similarities with reasonable particularity”); Phillips v. Murdock, 543 F. Supp. 2d 1219, 1226 (D. Haw. 2008) (granting dismissal where “[t]he Complaint does not identify any specific text in [plaintiff's] work that is copied in [defendant's] publications”). Forty-three of Buchanan's infringement claims simply maintain that the listed song “steals from” “I Gos Ta Roll,” with nothing more, and therefore, must be dismissed for failure to state a claim upon which relief can be granted. (See Compl. at 9–14.) *8 With respect to Buchanan's claim that Universal Pictures infringed on his song “I Gos Ta Roll” in order to create the “plot, theme, story line, characters, cast, scenes, etc. etc.” of the Fast and Furious films (Pl.’s Opp'n to All Defs. at 6), Buchanan only identifies one element of “I Gos Ta Roll” that the motion picture company allegedly copied—he alleges that “I Gos Ta Roll” includes the lyric “I'm on the freeway zooming fast[,]” (Pl.’s Opp'n to Def. UP's Mot. at 3) and maintains that there are “scenes within the movie that depict the actors ... zooming fast and furious on the freeway and other road scenes” (id.). Even assuming arguendo that the creator of the film franchise listened to Buchanan's song, the notion of fast freeway movement that that one lyric embodies is not a protectable element of the song, because “no author may copyright facts or ideas.” Feist Publ'ns, 499 U.S. at 350 (internal quotation marks and citation omitted). Only “those aspects of the work—termed ‘expression’—that display the stamp of the author's originality” receive copyright protection. Id. (internal quotation marks and citation omitted). Therefore, just as the idea “of a police car chase in an action movie is not copyrightable[,]” the mere idea of cars speeding down a highway is not copyrightable. Prunte v. Universal Music Grp., Inc., 699 F. Supp. 2d 15, 23 (D.D.C. 2010), aff'd, 425 F. App'x 1 (D.C. Cir. 2011). And because Buchanan has “failed to identify any [ ] protected elements of [“I Gos Ta Roll”] upon which [Universal Pictures] infringed, [Buchanan] has failed to state a claim” for copyright infringement against Universal Pictures. Gaines v. D.C., 961 F. Supp. 2d 218, 222 (D.D.C. 2013) (emphasis added); cf. Nichols v. Club for Growth Action, 235 F. Supp. 3d 289, 296 (D.D.C. 2017) (finding that plaintiffs had “adequately alleged copying of original elements with respect to the musical composition” where plaintiffs alleged that the defendant “copied a 30-second portion of the musical composition and made no alterations to the melody or tone of portion of the musical composition”). Buchanan has managed to identify certain other protectible elements of “I Gos Ta Roll” that he claims are substantially similar to three allegedly infringing songs of the Record Companies—“This is How We Roll” and “Cruise,” both by the band Florida Georgia Line, and “Shake Ya Tailfeather” by the rapper Nelly. (See Exh. 10 to Compl., ECF No. 1-1, at 22–23.) However, neither “I Gos Ta Roll” nor any of these songs is in the record, and all of the circuit courts that have addressed substantial similarity at the motion to dismiss stage agree that a district court may only decide whether works are substantially similar this early in the litigation if (1) both the copyrighted and allegedly infringing works are in the record and (2) “no trier of fact could rationally determine the [works] to be substantially similar.” Tanksley v. Daniels, 902 F.3d 165, 172 (3d Cir. 2018), cert. denied, 139 S. Ct. 1175 (2019)(internal quotation and citation omitted); see 3 William F. Patry, Patry on Copyright § 9:86.50 (2020) (citing published opinions from the Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits finding same). Ordinarily, then, this Court would permit those claims to proceed on the ground that it is not in a position to evaluate Defendants’ dismissal argument with respect to those three alleged acts of infringement. But given the lack of sufficient allegations concerning access or any allegation that the works are so strikingly similar so as to “preclude the possibility of independent creation[,]” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d Cir. 2003), Defendants have already established that these claims, too, must be dismissed. (See supra Part III.A.3.) B. The Copyright Act Preempts Buchanan's Negligence And Strict Liability Claim In addition to asserting that Defendants infringed his rights under the Copyright Act, Buchanan also maintains that the Record Companies are negligent and strictly liable because they “failed to perform” their duty to “protect [him] from harm of copyright infringement.” (Compl. at 14–15.) But section 301 of the Copyright Act is crystal clear that the federal statute is the sole vehicle for recovery of damages due to an alleged theft of a plaintiff's creative work: it plainly provides that “all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title[,]” and thus, “no person is entitled to any such right or equivalent right ... under the common law or statutes of any State.” 17 U.S.C. § 301(a) (emphasis added). The D.C. Circuit has further explained that this broad state-law preemption provision was intended to “ ‘enhanc[e] predictability and certainty of copyright ownership,’ by establishing a ‘uniform method for protecting and enforcing certain rights in intellectual property[.]’ ” Sturdza, 281 F.3d at 1303 (first quoting Cmty. For Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989); then quoting Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir. 1995)). Thus, no common law claims concerning infringement can be maintained where (1) “the copyrighted work [is] the type of work protected by copyright law”; and (2) “the state law right [is] equivalent to a right protected by the Copyright Act.” Id. at 1304 (citation omitted). As relevant here, “musical works” are explicitly protected in the Copyright Act, 17 U.S.C. § 102, so the first preemption prong is satisfied in the instant case. Thus, the only remaining question is whether the tort claim that Buchanan brings here is “equivalent to a right protected by the Copyright Act.” Sturdza, 281 F.3d at 1304. *9 A right arising under state law is equivalent to one of the “ ‘exclusive rights within the general scope of copyright’ where the ‘state law may be abridged by an act which, in and of itself, would infringe one of [the Copyright Act's] exclusive rights.’ ” Id. at 1304 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir. 1983), rev'd on other grounds, 471 U.S. 539 (1985)). Thus, this Court must determine whether there is an “extra element” of the state law claim that “changes the nature of the action so that it is qualitatively different from a copyright infringement claim[,]” and in order to do so, it looks to “both the elements of the state law cause of action and the way the plaintiff has actually pled that cause of action.” Id. (quoting Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 456 (6th Cir. 2001)). Under the laws of the District of Columbia, the elements of a claim of negligence are “(1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach.” Poola v. Howard Univ., 147 A.3d 267, 289 (D.C. 2016) (internal quotation marks and citation omitted). And in his complaint, Buchanan alleges that the Record Companies are negligent and strictly liable because they “failed to monitor their several numerous writers, producers and artist[s]” and thereby “failed to protect [Buchanan] from the harm of copyright infringement[,] ... failed to maintain and uphold a social and fiduciary responsibility[,] ... [and] failed to perform these duties in a safe and effective manner leading to the injuries sustained by [Buchanan].” (Compl. at 14–15.) Buchanan's negligence and strict liability claim thus suggests that the Record Companies owed him a duty to prevent their employees from creating infringing works, and that they breached the duty by creating infringing works, thereby injuring him. This Court finds that such a claim is not “qualitatively different” from a claim of infringement under the Copyright Act, because the alleged breach of duty “rest[s] on [defendant's] unauthorized copying—an act which in and of itself would infringe on one of th[e] exclusive rights protected by the Copyright Act.” Sturdza, 281 F.3d at 1305 (internal quotation marks and citation omitted); see also id. (finding that a state-law claim for interference with a contract is not preempted where the alleged infringer caused cancellation of a contract by conduct other than the infringing conduct). Moreover, copyright infringement is a strict liability tort, see 6 Patry on Copyright § 21:38, and there is no “extra element” in a claim characterized as a strict liability negligence claim rather than a copyright infringement claim, see Dielsi v. Falk, 916 F. Supp. 985, 992 (C.D. Cal. 1996) (“[R]echaracterization of the claim as one of ‘negligence’ does not add a legally cognizable additional element because a general claim for copyright infringement is fundamentally one founded on strict liability.”). Consequently, the common law negligence and strict liability claim that Buchanan asserts in his complaint is the functional equivalent of the no-infringement right that the Copyright Act protects such that Buchanan's tort claim is preempted and must be dismissed. IV. CONCLUSION For the reasons explained herein, this Court finds both that Buchanan has not stated any claims for copyright infringement against any of the Defendants, and that Buchanan's common-law tort claims cannot proceed because they are preempted. Therefore, as set forth in a forthcoming order, Defendants’ motions to dismiss are GRANTED.

Jackson

majority

Pro se plaintiff Moreh J. Buchanan has filed the instant lawsuit against four record companies and one movie studio under the Copyright Act, ( Compl., ECF No. 1, at 14–17.)1 Buchanan alleges that he distributed four original songs to Defendants Sony Music Entertainment, Warner Music Group Corp., UMG Recordings, Inc., and Sony/ATV Music Publishing LLC (collectively, “the Record Companies”) between 12 and 17, in an effort to persuade them to produce his music (see at 4–5), and that these companies then unlawfully appropriated his music and lyrics, using them to create scores of hit songs that were released between 13 and (see at 10–14). Buchanan specifically alleges that the Record Companies engaged in individual acts of copyright infringement, and he further contends that Defendant Universal Pictures derived the “plot, theme, story line, characters, cast, scenes, etc. etc.” of the Fast and Furious film franchise from a copyrighted song that he sent to that company. (Pl.’s Opp'n to Defs.’ Mots. to Dismiss (“Pl.’s Opp'n to All Defs.”), ECF No. 22, at 6.) Buchanan also alleges that the Record Companies were negligent, and strictly liable, for failing to monitor their “writers, producers[,] and artist[s]” and for not protecting Buchanan “from harm of copyright infringement.” (Compl. at 14–15.) Before this Court at present are two motions to dismiss Buchanan's complaint that the Record Companies and Universal Pictures have filed. ( Defs. Record Cos.’ Mot. to Dismiss, ECF No. 19; Def. Universal Pictures's Mot. to Dismiss (“Def. UP's Mot.”), ECF No. 18.) The Record Companies contend that Buchanan's complaint fails to plead his claims of copyright infringement sufficiently under Federal Rule of Civil Procedure 12(b)(6); that the Copyright Act's statute of limitations bars some of the infringement claims; and that the Copyright Act preempts the complaint's negligence and strict liability tort claim. ( Defs. Record Cos.’ Mem. in Support of Mot. to Dismiss (“Defs. Record Cos.’ Mem.”), ECF No. 19-1, at 6–7.) Universal Pictures similarly argues that Buchanan has failed to plead facts that establish a plausible claim of copyright infringement under Rule 12(b)(6). ( Def. UP's Mot. at 1.) In response, Buchanan generally maintains that the allegations in his complaint are sufficient to support his copyright infringement claims. ( Pl.’s Opp'n to All Defs. at 2.) For the reasons explained below, this Court concludes that Buchanan has failed to state a claim for copyright infringement, because not all of the songs that he claims were infringed have been registered with the U.S. Copyright Office, and he has not sufficiently alleged that Defendants had access to his registered works or that there are substantial similarities between protectable aspects of his registered works and most of the infringing songs in his complaint. The Court further finds that the tort claim in Buchanan's complaint must be dismissed as preempted by the Copyright Act. Accordingly, both Defendants’ motions will be GRANTED. A separate Order consistent with this Memorandum Opinion will follow. I. BACKGROUND A. Alleged Facts2 *2 Plaintiff Moreh J. Buchanan is a “songwriter, music publisher, singer/rapper, artist and composer[.]” (Compl. ¶ 3.) In the 10s, Buchanan allegedly wrote, produced, and recorded several original demonstration songs—colloquially referred to as “demos”—that he distributed to music-industry professionals in hopes of landing a record deal. (Pl.’s Opp'n to All Defs. at 12.) According to the complaint, Buchanan first traveled to Atlanta in 19 and 15 (see Compl. ¶, 43) to present the demos to certain relatives of his who worked in the music industry (see Pl.’s Opp'n to All Defs. at 5; see also Compl. ¶¶ 20–). Buchanan's family members apparently consistently rebuffed his repeated attempts to pitch the demos in this fashion (see Compl. ¶¶ 24, 40–45), so Buchanan physically relocated to Atlanta (see ), to “search for a record deal by sharing his music” ( ¶ 50). Once there, Buchanan allegedly not only passed demo tapes to producers and music executives personally (see ¶ 52–53), he also worked with a lawyer, E. Earle Burke, who, in 17, “shopped” Buchanan's demo tapes to “Motown, Columbia, Sony, and MCA/Universal Records” (Compl. ¶ 59; see also Pl.’s Opp'n to All Defs. at 5). Burke allegedly told Buchanan that the record companies he approached were “very excited about [Buchanan's] looks, sound, and demo tape[,]” (Compl. ¶ 60), and further suggested that MCA or Motown was interested in contracting with Buchanan (see ). Around that same time, Buchanan purportedly came to believe that the rapper Will Smith had copied one of the demo songs in order to create the popular song “Gettin’ Jiggy Wit It.” ( ¶¶ 64–71.) Buchanan sought counsel from Burke, and Burke agreed to pursue the matter. ( 82–83.) Ultimately, Burke failed to take legal action because, according to Buchanan, Burke “was bribed by Will Smith[.]” ( ¶ 101.)3 In late Buchanan began to notice other popular songs—songs “dating back as far as 13”—that he believed “infringed on his songs and music copyright.” ( at 17.) The allegedly infringing works are songs that were marketed between 13 to and include popular hits like “Single Ladies” by Beyoncé, “Shape of You” by Ed Sheeran, and “No Scrubs” by TLC. ( at 9–15.) In total, Buchanan's complaint identifies songs that allegedly infringe on his copyrights. ( )4 In addition to the listed popular songs, Buchanan's complaint further alleges that the Fast and Furious film franchise lifted its “plot, theme, story line, characters, cast, scenes, etc. etc.” from his song entitled “I Gos Ta Roll.” (Pl.’s Opp'n to All Defs. at 6.) Notably, Buchanan officially registered “I Gos Ta Roll” with the U.S. Copyright Office in April of 18. ( Exh. 2 to Pl.’s Compl., ECF No. 1-1, at 2; Pl.’s Opp'n to All Defs., at 13; see also Defs. Record Cos.’ Mem., at 12; Exh. A to Defs. Record Cos.’ Mem., ECF No. 19-5, at 2.) However, none of the other demo songs that Buchanan points to as having been subsequently pilfered by the Record Companies—including “Krazy Bad,” “Gangsta Bass,” and “Zombie Beat”—were registered with the Copyright Office prior to the initiation of the instant lawsuit. ( Pl.’s Exh. 10 in Supp. of Second Aff. (“Pl.’s Registration Appl.”), ECF No. 27, at 4.) B. Procedural History On December 17, Buchanan filed a pro se complaint in this Court, alleging “copyright infringement of his original demo song[s][.]” (Compl. ¶ 101.) Buchanan's complaint is not a model of clarity, but it appears to assail certain specified acts as copyright violations, each of which this Court construes as a separate infringement claim for the purpose of evaluating Defendants’ motions to dismiss.5 Buchanan's complaint also appears to allege that the Record Companies have committed negligence, and are strictly liable, for “failing to protect Plaintiff from harm of copyright infringement.” (Compl. at 14.) As relief, Buchanan seeks damages totaling “$1 Quadrillion.” (Compl. at 17.) *3 On May 6, the Record Companies moved to dismiss Buchanan's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ( Defs. Record Cos.’ Mem. at 10.) The Record Companies point out that Buchanan does not have a valid copyright for three of the four demo songs (see at 10–12), and they further insist that his complaint has “not plausibly pled” that the Record Companies had access to Buchanan's works in order to copy them ( at 13). The Record Companies also argue that Buchanan's pleading fails to state a claim upon which relief can be granted, because he does not identify similarities between most of his works and the allegedly infringing songs, and the few similarities that he does identify are insufficient to support his claims ( –22). Finally, the Record Companies point to the Copyright Act's statute of limitations, which they maintain bars many of Buchanan's infringement claims, and they assert further that the Copyright Act preempts his negligence/strict liability claim. ( at 22–25.) Universal Pictures filed its Rule 12(b)(6) motion to dismiss on May 2, ( Mem. of P. & A. in Supp. of Def. Universal Pictures's Mot. to Dismiss (“Def. UP's Mem.”), ECF No. 18-1.) The primary thrust of Universal Pictures's argument is that Buchanan has not “plausibly explain[ed] how Universal Pictures gained access” to “I Gos Ta Roll” or any of his other demo songs, nor has he “set forth what copyrightable elements of his works” Universal Pictures allegedly copied. ( at 5.) Buchanan filed a consolidated opposition to both Defendants’ motions to dismiss on June 7, (see Pl.’s Opp'n to All Defs., ECF No. 22), and flurry of responsive briefing followed. Specifically, the Record Companies filed a reply brief on June 17, (see Defs. Record Cos.’ Reply in Supp. of Mot. to Dismiss, ECF No. ), and Universal Pictures filed its reply brief on that same day (see Reply Mem. in Supp. of Def. Universal Pictures's Mot. to Dismiss, ECF No. 24). Buchanan then filed several additional documents in opposition to the Defendants’ motions to dismiss (see Pl.’s Opp'n to Def. UP's Mot., ECF No. 25; Pl.’s Exh. 11 in Supp. of 2nd Aff., ECF No. 26; Pl.’s Registration Appl., ECF No. 27), and the Record Companies filed a surreply on August 7, (see Defs. Record Cos.’ Surreply, ECF No. 34). Finally, Buchanan filed an initial surreply on August 14, (see Pl.’s Reply in Supp. of Opp'n to Not Dismiss (“Pl.’s Surreply”), ECF No. 30), which was followed by a final surreply on August (see Pl.’s Opp'n to Defs.’ Surreply, ECF No. 33). II. MOTIONS TO DISMISS UNDER RULE 12(b)(6) Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint against it on the grounds that it “fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint, and it is well established that, to withstand a Rule 12(b)(6) motion, the plaintiff must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]” When evaluating a motion's allegation that the complaint must be dismissed for failure to state a cognizable claim, the court must “accept the plaintiff's factual allegations as true and construe the complaint liberally, granting plaintiff the benefit of inferences that can reasonably be derived from the facts alleged.” It is also clear that, as a general matter, pleadings that are submitted by pro se plaintiffs should be “held to less stringent standards than formal pleadings drafted by lawyers[.]” ; see also (“A document filed pro se is to be liberally construed[.]” ). However, “[t]his benefit is not a license to ignore the Federal Rules of Civil Procedure[.]” Thus, the court need not “accept legal conclusions cast as factual allegations[,]” and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” do not pass muster under Rule 12(b)(6), III. ANALYSIS *4 As previously mentioned, Defendants seek dismissal of the bulk of Buchanan's complaint on the grounds that Buchanan has failed to plead his copyright infringement claims sufficiently, and the Record Companies further maintain that some of Buchanan's claims are either barred by the applicable statute of limitations or preempted by the Copyright Act. ( Defs. Record Cos.’ Mem. at 10–24; Def. UP's Mem. at 11–15.) As explained below, this Court largely agrees with Defendants’ contentions. That is, to the extent that some of Buchanan's claims pertain to certain demo songs that he did not register with the Copyright Office, no claim pertaining to infringement of those works can be sustained as a matter of law. And Buchanan has also failed to identify a chain of events that supports a plausible inference that Defendants actually had access to the one demo song he registered, nor has he otherwise sufficiently identified protectible and infringed elements of that registered work. Thus, none of Buchanan's copyright claims can proceed. Furthermore, because the Copyright Act preempts a tort liability claim that pertains to an alleged failure of the defendant to shield registered creative works from alleged unlawful appropriation, Buchanan's negligence and strict liability claim must also be dismissed. A. Buchanan's Complaint Fails To State Any Valid Copyright Infringement Claims 1. Federal Copyright Law Conveys Enforceable Rights To Owners Of Creative Works, But Only Under Certain Specified Circumstances Under Title 17 of the United States Code, the owner of a creative work that is subject to copyright protection generally has several exclusive rights with respect to his creation, including the right to “reproduce the copyrighted work[,]” to “prepare derivative works[,]” to “distribute copies[,]” to “perform the copyrighted work publicly[,]” and to “display the copyrighted work publicly[.]” Moreover, and significantly for present purposes, if the owner of a work has sought and received “preregistration or registration of the copyright claim in accordance with [Title 17][,]” then he also has “an exclusive right to institute an action for any infringement” of his copyright, According to the D.C. Circuit, to state a claim for copyright infringement, a plaintiff must allege facts that, if true, would “prove both [1] ownership of a valid copyright and [2] that the defendant copied original or ‘protectable’ aspects of the copyrighted work.” The initial author of a protectible work typically qualifies as the “owner” of the copyright, see and such author “gains ‘exclusive rights’ in her work immediately upon the work's creation.” Fourth Pub. Benefit ; see also 17 U.S.C 408 (“[R]egistration is not a condition of copyright protection.”). In order for an author to seek to enforce copyright protection of a work in court, however, the work must ordinarily be registered with the Copyright Office; indeed, section 411(a) of Title 17 specifically states that “no civil action for infringement of the copyright shall be instituted until preregistration or registration of the copyright claim has been made[.]” (a); see also Fourth 139 S. Ct. at ; Reed Elsevier, It is also clear beyond cavil that a timely certificate of registration serves as prima facie evidence of a valid copyright. 17 U.S.C. 410(c); see also Stenograph With respect to the copying element of a copyright infringement claim, in the absence of direct evidence of copying, a plaintiff must allege “(1) that defendants had access to the copyrighted work, and (2) the substantial similarity between the protectible material in plaintiff's and defendants’ works.” Access generally means that an infringer had a “reasonable opportunity to hear the plaintiff's work” and, thus, had “the opportunity to copy”; however, “access may not be inferred through mere speculation or conjecture.” Moreover, the second element—the substantial similarity inquiry—proceeds in two distinct steps. 281 F.3d at “The first step requires identifying which aspects of the artist's work, if any, are protectible by copyright[,]” while the second step requires comparing the works to determine “whether the infringing work is ‘substantially similar’ to protectable elements of the artist's work[,]” Protectible aspects of an artist's work are those “that display the stamp of the author's originality”; thus, facts, ideas, and “incidents, characters, and setting which are standard[ ] in the treatment of a given topic” are all considered unprotectible. at –96 *5 Applied here, these legal standards require that, in order to state a valid claim for copyright infringement, Buchanan has to allege that Defendants had access to one or more of his registered (validly copyrighted) demo songs, and that Defendants’ works are substantially similar to protectible material in Buchanan's copyrighted works. Buchanan's complaint falls far short of making sufficient allegations with respect to these critical elements of a valid copyright claim, for the reasons explained below. 2. Some Of The Copyright Infringement Claims In Buchanan's Complaint Are Based On Unregistered Recordings Buchanan's various filings make clear that only one of the four demo songs upon which his copyright infringement claims are based was registered with the U.S. Copyright Office at the relevant time. Buchanan alleges that he registered the song “I Gos Ta Roll” prior to the initiation of the instant lawsuit (see Compl. ¶ 100; Pl.’s Opp'n to All Defs. at 13 ¶ 85), and at least for the purpose of their motion to dismiss, Defendants appear to accept that Buchanan registered that song and thus had ownership of a valid copyright in “I Gos Ta Roll” at the time Buchanan filed his complaint (see Defs. Record Cos.’ Mem. at 13; Exh. A to Defs. Record Cos.’ Mem. at 2). Buchanan proceeds to allege that 46 songs that the Record Companies produced infringe on his copyright for “I Gos Ta Roll,” including “No Scrubs” by TLC, “Shape of You” by Ed Sheeran, and “I Want It That Way” by The Backstreet Boys. ( Compl. at 9–14.) Buchanan further alleges that the Fast and Furious film franchise infringes on “I Gos Ta Roll.” () The remaining nine songs that the complaint assails as infringing works—“Born to Roll” by Masta Ace, “Single Ladies” by Beyoncé, “Rap God” by Eminem, “6 Foot 7 Foot” by Lil Wayne, “Rockstar” by Post Malone, “Started From the Bottom” by Drake, “Yes Yes Y'all” by Will Smith, “Country Grammar” by Nelly, “Hell Yeah” by Ginuane, and “Roving Gangster” by Kid Rock—purportedly infringe upon three other demo songs that Buchanan recorded: “Krazy Bad,” “Gangsta Bass,” and “Zombie Beat.” ( at 9–14.) But Buchanan does not allege that he submitted any registration application with respect to these three works prior to the initiation of this lawsuit, and the fact that he sought registration for them after Defendants filed their motions to dismiss strongly suggests that these songs were not previously registered. ( Pl.’s Registration Appl. at 4 (explaining that the registration application fee for the three songs was submitted on July 3, and that the songs were not previously registered “because [Buchanan] did not think [the songs] would be infringed”).) The lack of any allegation regarding pre-suit registration with respect to those three songs compels the conclusion that the nine infringement claims that relate to Buchanan's unregistered works must be dismissed for failure to state a claim on which relief can be granted. In other words, Buchanan did not register the three allegedly copied works before pursuing a copyright infringement lawsuit based on those songs, and as a result, he cannot maintain copyright infringement claims with respect to any new songs that allegedly infringe his ownership rights related to those unregistered works. Fourth 139 S. Ct. at ; see also, e.g., 3. Buchanan's Complaint Does Not Contain Sufficient Facts To Give Rise To A Reasonable Possibility That Defendants Had Access To His Registered Work *6 The copyright claims that pertain to the one registered demo song that appears in Buchanan's complaint (“I Gos Ta Roll”) fail because, notwithstanding the copyright registration, Buchanan has not plausibly alleged that Defendants had access to this song. To establish that a defendant had access to a plaintiff's work for the purpose of stating a cognizable copyright claim under federal law, the plaintiff must allege, and ultimately prove, circumstances that suggest “a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” 836 F.3d 1, 5 ; see also as amended on reh'g ; (4th Cir. 16); 2 (8th Cir. 12). A plaintiff can make this showing in one of two ways: “(1) a particular chain of events is established between the plaintiff's work and the defendant's access to that work or (2) the plaintiff's work has been widely disseminated.” Here, Buchanan says only that his lawyer, E. Earle Burke, distributed “cassette tapes” with his songs to “Motown, Columbia, Sony, and MCA/Universal” (Compl. ¶¶ 58–59), and that these tapes “included 4 new songs that [Buchanan] wrote and recorded in summer 17” ( ¶ 58 ). Buchanan does not state that this distribution included “I Gos Ta Roll[,]” and such is unlikely, given Buchanan's allegation that he had recorded that particular song more than three years prior, in April of 19. () Moreover, and importantly, while Buchanan generally alleges that he mailed “copies of ‘I Gos Ta Roll’ to many record labels[,]” he does not allege that he mailed the song to any of the named Defendants specifically. (Pl.’s Opp'n to All Defs. at 11 ¶ 43).6 Buchanan has also failed to allege that “I Gos Ta Roll” was “so widely disseminated that the defendant can be presumed to have heard it.” Design Basics, “[W]idespread dissemination centers on the degree of a work's commercial success and on its distribution through radio, television, and other relevant mediums.” 836 F.3d at 7. And far from alleging that “I Gos Ta Roll” was widely disseminated prior to Defendants’ alleged acts of infringement, Buchanan asserts that he published the song for the first time when he released it digitally on October 26, 9. ( Compl. ¶ 100.) Buchanan's pleading also lacks any allegations with respect to the scope of that song's dissemination after it was published online; that is, Buchanan does not allege that a mass of people either purchased “I Gos Ta Roll” or listened to it. Yet, widespread dissemination of the type that gives rise to an inference of access in support of a copyright infringement claim generally requires a significant showing of ubiquity. e.g., Art Attacks Ink, ; ; aff'd Indeed, it is quite well established that “the mere fact that [Buchanan's] work was posted on the internet is insufficient by itself to demonstrate wide dissemination.” ; see also *7 With respect to Buchanan's allegation that Burke provided a demo of “I Gos Ta Roll” to UMG Recordings (“UMG”), and that Universal Pictures got access to the song through that distribution (see Compl. ), Buchanan has suggested a particular mode of transmission of this work to those Defendants, but his access allegations are insufficient nonetheless because there must be a “reasonable possibility” that allegedly infringing actors within UMG and Universal Pictures had the opportunity to copy his song, 972 F.2d at 2, and there is nothing in Buchanan's pleadings upon which to base any such inference. For instance, where a plaintiff has alleged access through a third-party intermediary, “[a] court may infer that the alleged infringer had a reasonable possibility of access if the author sent the copyrighted work to a third party intermediary who has a close relationship with the infringer.” (4th Cir. 16) ; see also But Buchanan has not made any factual allegations with respect to Burke's relationship with any of the Defendants, much less to whom Burke provided the demo tape at UMG and/or how the song was then transferred to the allegedly infringing writers and producers within UMG or at Universal Pictures. ; cf. Nor has Buchanan identified any of the writers and music producers who created the allegedly infringing works, or alleged that any of these infringers was employed by, or otherwise had a relationship with, UMG or Universal Pictures such that they could possibly have received a copy of “I Gos Ta Roll” after Burke purportedly provided it to UMG. WL 5117555, Buchanan identifies the recording artists associated with each allegedly infringing work, but he does not allege that these artists were responsible for writing or producing the infringing works, nor does he allege any facts from which the Court could infer that the recording artists had access to his work. WL 60001, And the similarly bald contention that “I Gos Ta Roll” was “passed on” to Universal Pictures from UMG (Compl. ) is likewise not enough. Cf. (finding access sufficiently pled where plaintiff alleged that she submitted a script to a script-writing contest, the contest's director had a close relationship with the creator of the infringing work, and creator of infringing work received the script from the contest director). In short, Buchanan's allegations do not allege facts that make the allegedly infringing producers’ access to “I Gos Ta Roll” a “reasonable possibility”; therefore, Buchanan has failed to provide the plausible allegation of access that copyright law requires. 76 F.3d at )). 4. Buchanan's Complaint Fails To Allege Facts That Support A Plausible Inference Of Substantial Similarity Finally, it is clear to this Court that, even if Buchanan has adequately pled that Defendants had access to his registered song “I Gos Ta Roll,” Buchanan has not identified protectible elements of that song, and has failed to allege a substantial similarity between those protectible elements and the allegedly infringing works. Instead, to support the vast majority of his copyright infringement claims, Buchanan merely asserts that the infringing work “steals from” his song. Courts have consistently held that the bare assertion that a work “steals from” a plaintiff's work is insufficient to state a claim of copyright infringement. e.g., Evans v. McCoy-Harris, No. CV 178--DMG, ; Ritani, ; ; Forty-three of Buchanan's infringement claims simply maintain that the listed song “steals from” “I Gos Ta Roll,” with nothing more, and therefore, must be dismissed for failure to state a claim upon which relief can be granted. ( Compl. at 9–14.) *8 With respect to Buchanan's claim that Universal Pictures infringed on his song “I Gos Ta Roll” in order to create the “plot, theme, story line, characters, cast, scenes, etc. etc.” of the Fast and Furious films (Pl.’s Opp'n to All Defs. at 6), Buchanan only identifies one element of “I Gos Ta Roll” that the motion picture company allegedly copied—he alleges that “I Gos Ta Roll” includes the lyric “I'm on the freeway zooming fast[,]” (Pl.’s Opp'n to Def. UP's Mot. at 3) and maintains that there are “scenes within the movie that depict the actors zooming fast and furious on the freeway and other road scenes” (). Even assuming arguendo that the creator of the film franchise listened to Buchanan's song, the notion of fast freeway movement that that one lyric embodies is not a protectable element of the song, because “no author may copyright facts or ideas.” Feist Publ'ns, 4 U.S. at 350 Only “those aspects of the work—termed ‘expression’—that display the stamp of the author's originality” receive copyright protection. Therefore, just as the idea “of a police car chase in an action movie is not copyrightable[,]” the mere idea of cars speeding down a highway is not copyrightable. Inc., 6 F. Supp. 2d 15, aff'd, And because Buchanan has “failed to identify any [ ] protected elements of [“I Gos Ta Roll”] upon which [Universal Pictures] infringed, [Buchanan] has failed to state a claim” for copyright infringement against Universal Pictures. ; cf. 5 F. Supp. 3d (finding that plaintiffs had “adequately alleged copying of original elements with respect to the musical composition” where plaintiffs alleged that the defendant “copied a 30-second portion of the musical composition and made no alterations to the melody or tone of portion of the musical composition”). Buchanan has managed to identify certain other protectible elements of “I Gos Ta Roll” that he claims are substantially similar to three allegedly infringing songs of the Record Companies—“This is How We Roll” and “Cruise,” both by the band Florida Georgia Line, and “Shake Ya Tailfeather” by the rapper Nelly. ( Exh. 10 to Compl., ECF No. 1-1, at 22–.) However, neither “I Gos Ta Roll” nor any of these songs is in the record, and all of the circuit courts that have addressed substantial similarity at the motion to dismiss stage agree that a district court may only decide whether works are substantially similar this early in the litigation if (1) both the copyrighted and allegedly infringing works are in the record and (2) “no trier of fact could rationally determine the [works] to be substantially similar.” cert. denied, 139 S. Ct. 1175 (internal quotation and citation omitted); see 3 William F. Patry, Patry on Copyright 9:86.50 (2020) (citing published opinions from the Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits finding same). Ordinarily, then, this Court would permit those claims to proceed on the ground that it is not in a position to evaluate Defendants’ dismissal argument with respect to those three alleged acts of infringement. But given the lack of sufficient allegations concerning access or any allegation that the works are so strikingly similar so as to “preclude the possibility of independent creation[,]” Defendants have already established that these claims, too, must be dismissed. ( Part III.A.3.) B. The Copyright Act Preempts Buchanan's Negligence And Strict Liability Claim In addition to asserting that Defendants infringed his rights under the Copyright Act, Buchanan also maintains that the Record Companies are negligent and strictly liable because they “failed to perform” their duty to “protect [him] from harm of copyright infringement.” (Compl. at 14–15.) But section 301 of the Copyright Act is crystal clear that the federal statute is the sole vehicle for recovery of damages due to an alleged theft of a plaintiff's creative work: it plainly provides that “all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright are governed exclusively by this title[,]” and thus, “no person is entitled to any such right or equivalent right under the common law or statutes of any State.” 17 U.S.C. 301(a) The D.C. Circuit has further explained that this broad state-law preemption provision was intended to “ ‘enhanc[e] predictability and certainty of copyright ownership,’ by establishing a ‘uniform method for protecting and enforcing certain rights in intellectual property[.]’ ” ; then quoting (5th Cir. 15)). Thus, no common law claims concerning infringement can be maintained where (1) “the copyrighted work [is] the type of work protected by copyright law”; and (2) “the state law right [is] equivalent to a right protected by the Copyright Act.” As relevant here, “musical works” are explicitly protected in the Copyright Act, 17 U.S.C. 102, so the first preemption prong is satisfied in the instant case. Thus, the only remaining question is whether the tort claim that Buchanan brings here is “equivalent to a right protected by the Copyright Act.” 281 F.3d *9 A right arising under state law is equivalent to one of the “ ‘exclusive rights within the general scope of copyright’ where the ‘state law may be abridged by an act which, in and of itself, would infringe one of [the Copyright Act's] exclusive rights.’ ” rev'd on other grounds, ). Thus, this Court must determine whether there is an “extra element” of the state law claim that “changes the nature of the action so that it is qualitatively different from a copyright infringement claim[,]” and in order to do so, it looks to “both the elements of the state law cause of action and the way the plaintiff has actually pled that cause of action.” (quoting Wrench 2 F.3d 446, 4 (6th Cir. 1)). Under the laws of the District of Columbia, the elements of a claim of negligence are “(1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach.” And in his complaint, Buchanan alleges that the Record Companies are negligent and strictly liable because they “failed to monitor their several numerous writers, producers and artist[s]” and thereby “failed to protect [Buchanan] from the harm of copyright infringement[,] failed to maintain and uphold a social and fiduciary responsibility[,] [and] failed to perform these duties in a safe and effective manner leading to the injuries sustained by [Buchanan].” (Compl. at 14–15.) Buchanan's negligence and strict liability claim thus suggests that the Record Companies owed him a duty to prevent their employees from creating infringing works, and that they breached the duty by creating infringing works, thereby injuring him. This Court finds that such a claim is not “qualitatively different” from a claim of infringement under the Copyright Act, because the alleged breach of duty “rest[s] on [defendant's] unauthorized copying—an act which in and of itself would infringe on one of th[e] exclusive rights protected by the Copyright Act.” ; see also Moreover, copyright infringement is a strict liability tort, see 6 Patry on Copyright 21:38, and there is no “extra element” in a claim characterized as a strict liability negligence claim rather than a copyright infringement claim, see 2 (C.D. Cal. 16) Consequently, the common law negligence and strict liability claim that Buchanan asserts in his complaint is the functional equivalent of the no-infringement right that the Copyright Act protects such that Buchanan's tort claim is preempted and must be dismissed. IV. CONCLUSION For the reasons explained herein, this Court finds both that Buchanan has not stated any claims for copyright infringement against any of the Defendants, and that Buchanan's common-law tort claims cannot proceed because they are preempted. Therefore, as set forth in a forthcoming order, Defendants’ motions to dismiss are GRANTED.

CEF Energia, B.V. v. Italian Republic

Petitioners CEF Energia, B.V. (“CEF Energia”), Greentech Energy Systems A/S (now known as Athena Investments A/S) (“Greentech”), NovEnergia General Partner S.A. (acting as liquidator of NovEnergia II Energy & Environment (SCA) SICAR) (“NEE”), and NovEnergia II Italian Portfolio (“NIP”) (collectively, “Petitioners”) are seeking to enforce two arbitral awards against the Italian Republic (“Italy” or “Respondent”). (See Pet. to Confirm Foreign Arbitral Award (“CEF Pet.”), Case No. 19-cv-3443, ECF No. 1-1, at 1; Pet. to Confirm Foreign Arbitral Award (“Greentech Pet.”), Case No. 19-cv-3444, ECF No. 1-1, at 2.)1 Petitioners are companies that are incorporated in various European countries, and they engaged in two arbitrations with Italy under the Rules of Arbitration of the Arbitration Institute of the Stockholm Chamber of Commerce (“Stockholm Rules”). (Id.) After Petitioners prevailed, Italy sought to set aside, or annul, the awards in the Svea Court of Appeal in Sweden (the “Svea Court”), and the Svea Court issued orders that prohibit the enforcement of the awards pending resolution of the challenge. (See Pet'rs’ Response to Mot. to Dismiss (“Pet'rs’ Response”), ECF No. 35, at 15–16.) Before this Court at present are Italy's motions to dismiss the Petitioners’ bid to have this Court enforce the arbitration awards. (See Resp't's Mem. in Support of Mot. to Dismiss CEF Pet. (“Resp't's Mem. to Dismiss CEF”), Case No. 19-cv-3443, ECF No. 26-1; Resp't's Mem. in Support of Mot. to Dismiss Greentech Pet. (“Resp't's Mem. to Dismiss Greentech”), Case No. 19-cv-3444, ECF No. 35-1.) Italy argues that this Court lacks jurisdiction over these petitions and that the awards are not enforceable, or, in the alternative, Italy requests a stay of these proceedings pending the outcome of Italy's appeals in the Svea Court. (See Resp't's Mem. to Dismiss CEF at 9–10; Resp't's Mem. to Dismiss Greentech at 8–9.) As discussed herein, this Court is persuaded that a temporary stay is in the interests of judicial economy and international comity, especially given the significant legal issues that underlie the parties’ dispute, which arise from, and relate to, European Union law. Therefore, Italy's motion to stay the instant action will be GRANTED, and this case will be STAYED pending further Order of this Court. A separate Order consistent with this Memorandum Opinion will follow. I. BACKGROUND In order to encourage the development of renewable energy sources, in the early 2000s, Italy established a number of incentive schemes to attract investment in the renewable energy sector. (See CEF Pet. ¶ 21; Greentech Pet. ¶ 24.) As relevant here, the country “enact[ed] incentive schemes for photovoltaic [energy] plants known as Conto Energia Decrees.” (CEF Pet. ¶ 21; see also Greentech Pet. ¶ 24.) Between January of 2010 and March of 2012, Petitioner CEF Energia (a company incorporated under the laws of the Kingdom of the Netherlands (see CEF Pet. ¶ 2)) invested in three photovoltaic projects, each of which “was granted a specific incentive tariff based on the Conto Energia decree in force at the time the plant began operating” (id. ¶ 23). Similarly, Petitioners NIP and NEE, which are incorporated under the laws of the Grand Duchy of Luxembourg (see Greentech Pet. ¶¶ 3, 4), invested in 52 photovoltaic projects in Italy between 2010 and 2013 (see id. ¶ 27), and Petitioner Greentech, a company incorporated under the laws of the Kingdom of Denmark (see id. ¶ 2), acquired a portfolio consisting of 75 photovoltaic projects in 2011, which grew to 82 projects by 2015 (see id. ¶ 28). As early as 2012, however, Italy allegedly began simultaneously “enacting a number of decrees and administrative fees that reduced the value of the incentive tariffs[.]” (CEF Pet. ¶ 24; see also Greentech Pet. ¶ 29.) According to Petitioners, “[t]he net effect of these new regulations drastically reduced the profitability and value of Petitioner[s’] investments.” (CEF Pet. ¶ 25; Greentech Pet. ¶ 30.) *2 As a result of Italy's actions, Petitioners initiated arbitrations with Italy pursuant to Article 26 of the Energy Charter Treaty (“ECT”). (CEF Pet. ¶¶ 16, 26; Greentech Pet. ¶¶ 19, 31.) The ECT is a multilateral investment treaty with 54 signatories, the purpose of which is “to promote cross-border cooperation in the energy industry[.]” (Pet'rs’ Response at 10.) Article 26 of the ECT specifically provides that an investor may submit “[d]isputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former” to arbitration under the Stockholm Rules. (Resp't's Mem. to Dismiss CEF at 15 (quoting ECT Art. 26(4)); see also generally CEF Pet. ¶ 16; Greentech Pet. ¶ 19.) Each of Petitioners’ countries of incorporation and Italy were parties to the ECT at all relevant times. (See CEF Pet. ¶¶ 8, 11; Greentech Pet. ¶¶ 10, 13, 14.)2 The respective arbitrations commenced in 2015 in Stockholm, Sweden under the Stockholm Rules; Greentech, NEE, and NIP in one arbitration, and CEF Energia in another. (See CEF Pet. ¶¶ 16, 17; Greentech Pet. ¶¶ 19, 20.) In 2018, while the arbitrations were ongoing, the Court of Justice of the European Union (“CJEU”) issued a decision in Slovak Republic v. Achmea B.V., Case C-284/16, 2018, in which the court found, inter alia, that intra-EU treaty arbitration provisions are invalid to the extent that they prohibit judicial review of EU law by EU courts. (See Pet'rs’ Response at 12–13.) Italy then argued in the context of the arbitrations that the arbitration tribunals lacked jurisdiction (see CEF Pet. ¶ 27; Greentech Pet. ¶ 31; Pet'rs’ Response at 13), but both tribunals ultimately rejected Italy's jurisdictional arguments and found that Italy had violated its obligations under the ECT (see CEF Pet. ¶¶ 28–31; Greentech Pet. ¶ 32). The tribunal that considered the CEF Energia dispute awarded the company €9.6 million (see CEF Pet. ¶ 20), and the other tribunal awarded Greentech €7.6 million and both NEE and NIP €4.5 million (see Greentech Pet. ¶ 33). All of the Petitioners were also awarded interest on their awards. (See CEF Pet. ¶ 20; Greentech Pet. ¶ 33.) Thereafter, with respect to both arbitrations, Italy “commenced proceedings before the Svea Court [ ] in Sweden seeking to vacate the awards.” (Pet'rs’ Response at 15.)3 In the ensuing “set-aside” proceedings in the Svea Court—which remain pending—Italy is again pressing its argument that the arbitration tribunals lacked jurisdiction because the ECT's arbitration provision is invalid under EU law. (See id. at 50.) The Svea Court also specifically ruled that the arbitration awards cannot be enforced in Sweden in any event (see id. at 15),4 after which Petitioners filed petitions to enforce the arbitral awards in state court in New York under the New York Convention (see generally CEF Pet. at 1 (filing made in Supreme Court of the State of New York, New York County); Greentech Pet. at 1 (same)). Italy removed those cases to the U.S. District Court for the Southern District of New York (“SDNY”) pursuant to the federal removal statute, 28 U.S.C. § 1441(d), given that SDNY was the federal district court “for the district and division embracing the place where [the state court] action[s] [were] pending[,]” id. at § 1441(d). However, that federal court determined that venue was improper there because, under the federal venue statute, civil actions against foreign states, where no party is a citizen or resident of the United States and none of the events giving rise to the claim occurred in a judicial district in the United States, must be brought in the U.S. District Court for the District of Columbia. (See Order, Case No. 19-cv-3443, ECF No. 13 (citing 28 U.S.C. § 1391(f)(4)); Order, Case No. 19-cv-3444, ECF No. 23 (same).) *3 Upon transfer to this Court, Italy filed a motion to dismiss CEF Energia's petition on December 7, 2019, and a motion to dismiss Greentech, NEE, and NIP's petition on December 11, 2019. (See Resp't's Mot. to Dismiss CEF Pet., Case No. 19-cv-3443, ECF No. 26; Resp't's Mot. to Dismiss Greentech Pet., Case No. 19-cv-3444, ECF No. 35.) This Court determined that both cases involve common questions of law and consolidated them, instructing the parties to file their remaining briefs in civil case number 19-cv-3443. (See Minute Orders of Dec. 13, 2019, and Jan. 8, 2020.) Petitioners filed a consolidated response to Italy's motions to dismiss on February 6, 2020 (see Pet'rs’ Response, ECF No. 35), and Italy filed a consolidated reply on March 4, 2020 (see Resp't's Reply, ECF No. 38). In the meantime, the European Commission, on behalf of the European Union, filed an amicus brief on January 22, 2020 (see EU Amicus Brief, ECF No. 34), and Petitioners filed a response thereto on February 6, 2020 (see Pet'rs’ Response to EU, ECF No. 36). II. LEGAL STANDARD In the United States, judicial enforcement of “arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” occurs pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 201–208, which, as relevant here, codifies the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as “the New York Convention”). Belize Soc. Dev. Ltd. v. Gov't of Belize, 668 F.3d 724, 727 (D.C. Cir. 2012) (quoting N.Y. Convention Art. I, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3). Under the New York Convention, a federal district court must recognize and enforce a foreign arbitral award “unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.” 9 U.S.C. § 207. “Consistent with the ‘emphatic federal policy in favor of arbitral dispute resolution’ ... the FAA affords the district court little discretion in refusing or deferring enforcement of foreign arbitral awards[.]” Belize Soc. Dev., 668 F.3d at 727 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985)). However, “the Convention is ‘clear’ that a court ‘may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention.’ ” Id. (quoting TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C. Cir. 2007)). Applicable grounds for refusal to enforce an award under the Convention include that the agreement to arbitrate “is not valid ... under the law of the country where the award was made[,]” N.Y. Convention Art. V(1)(a); that the “award ... has been set aside or suspended by a competent authority of the country in which ... that award was made[,]” id. at Art. V(1)(e); and/or that “recognition or enforcement of the award would be contrary to the public policy of that country[,]” id. at Art. V(2)(b). III. DISCUSSION In its motions to dismiss, Italy argues that this Court should refuse to enforce Petitioners’ arbitral awards on myriad grounds. For example, Italy contends that this Court lacks subject-matter jurisdiction over the petitions (see Resp't's Mem. to Dismiss CEF at 10; Resp't's Mem. to Dismiss Greentech at 8–9), and with respect to CEF Energia, Italy argues that this Court also lacks personal jurisdiction because service of process was improper under the Hague Convention (see Resp't's Mem. to Dismiss CEF at 11). Italy also maintains that the awards are not enforceable under the New York Convention because they have been suspended by Sweden; because the ECT arbitration agreement is not valid under Swedish or EU law; and because enforcement of the awards would be contrary to public policy. (See Resp't's Mem. to Dismiss CEF at 11–12; Resp't's Mem. to Dismiss Greentech at 9.) In the alternative, Italy argues that this Court should stay this case in light of the ongoing proceedings in the Svea Court. (See Resp't's Mem. to Dismiss CEF at 12; Resp't's Mem. to Dismiss Greentech at 10.) Petitioners respond that this Court has jurisdiction (see Pet'rs’ Response at 16); that service was properly effectuated (see id. at 22); and that there are no grounds for non-recognition of the awards under the New York Convention (see id. at 26). Petitioners also contend that a stay is unwarranted. (See id. at 45.) *4 This Court finds that it has the authority to stay this matter notwithstanding the outstanding jurisdictional issues, and it further concludes that a stay is warranted, as explained below. Therefore, the Court will stay this matter pending the Svea Court's ruling, as Italy requests. A. This Court Can Address Italy's Motion To Stay This Proceeding Courts ordinarily must assure themselves of jurisdiction before reaching the merits of a case. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–95 (1998). However, “certain non-merits, nonjurisdictional issues may be addressed preliminarily, because ‘[j]urisdiction is vital only if the court proposes to issue a judgment on the merits.’ ” Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1348 (D.C. Cir. 2007) (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Co., 549 U.S. 422, 431 (2007)). Thus, a court may “bypass[ ] questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant.” Sinochem, 549 U.S. at 432 (2007). Several judges in this district have considered the issue of whether a motion to stay can be addressed prior to resolving jurisdictional issues, and they have consistently held that, in the context of a dispute over the enforcement of a foreign arbitral award, a stay motion is the type of threshold, non-merits, nonjurisdictional question that can be determined initially. See Novenergia II - Energy & Env't (SCA) v. Kingdom of Spain, No. 18-CV-01148 (TSC), 2020 WL 417794, at *2 (D.D.C. Jan. 27, 2020); Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, 397 F. Supp. 3d 34, 38 (D.D.C. 2019); Gretton Ltd. v. Republic of Uzbekistan, No. 18-CV-1755 (JEB), 2019 WL 464793, at *2 (D.D.C. Feb. 6, 2019); Hulley Enters. Ltd. v. Russian Fed'n, 211 F. Supp. 3d 269, 278 (D.D.C. 2016). This Court agrees with that conclusion. Thus, where, as here, the jurisdictional and merits arguments largely depend on the validity of the ECT's arbitration provision, which is being challenged both in the federal court and in a foreign proceeding, the question of whether or not the matter can be stayed can be addressed before the Court proceeds to evaluate any other complex threshold or jurisdictional issues. See Hulley Enters., 211 F. Supp. 3d at 279–80 (finding that “[a] stay of proceedings in this [arbitral award enforcement] case is exactly the type of nonmerits action” that the “court may, for the sake of efficiency,” address first). B. A Stay Is Appropriate Here, Given The Ongoing Proceedings In Sweden Italy argues that under Article VI of the New York Convention, a court may “stay a recognition decision where an annulment (or vacatur) application has been made to a court ... of the country in which, or under the law of which, that award was made.” (Resp't's Mot. re: CEF Pet. at 45.) This Court is considering Italy's motion to stay “under its inherent powers[,]” rather than Article VI of the Convention, because the Court's own jurisdiction has yet to be established. Novenergia II, 2020 WL 417794, at *2 (citing Hulley Enters., 211 F. Supp. 3d at 286); see also Masdar Solar, 397 F. Supp. 3d at 39. And there are well-established factors that a court must ponder when it exercises its inherent authority to stay any case, as explained below. The six factors for determining whether to stay a matter under Article VI of the New York Convention—as the Second Circuit articulated them in Europcar Italia S.P.A. v. Maiellano Tours, 156 F.3d 310 (2d Cir. 1998)—are also instructive, because the issue presented here is “whether to issue a stay when a foreign proceeding is ongoing in a foreign arbitral award matter.” Novenergia II, 2020 WL 417794, at *2; see also Gretton Ltd., 2019 WL 464793, at *3; Hulley Enters., 211 F. Supp. 3d at 286–87. 1. The Interests Of Judicial Economy Weigh In Favor Of This Court Exercising Its Inherent Powers To Stay This Case *5 With respect to the Court's considerations when it determines whether or not to invoke its inherent powers to stay a case, the Supreme Court has explained that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). A court must “ ‘weigh competing interests and maintain an even balance’ between the court's interests in judicial economy and any possible hardship to the parties.” Belize Soc. Dev., 668 F.3d at 732–33 (quoting Landis, 299 U.S. at 254–55). In this regard, the party seeking a stay “must make out a clear case of hardship or inequity in being required to go forward” if there is “even a fair possibility” that the stay would adversely affect the other party. Landis, 299 U.S. at 255. Moreover, an indefinite stay, such as the one requested here, “must be supported by ‘a balanced finding that such need overrides the injury to the party being stayed.’ ” Belize Soc. Dev., 668 F.3d at 732 (quoting Dellinger v. Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971)). Be that as it may, district courts “have broad discretion” to stay a proceeding “pending the resolution of independent legal proceedings.” Nat'l Indus. for Blind v. Dep't of Veterans Affairs, 296 F. Supp. 3d 131, 137 (D.D.C. 2017) (citing Landis, 299 U.S. at 254). This Court has no doubt that judicial economy favors a stay in this case. See Novenergia II, 2020 WL 417794, at *3; Masdar Solar, 397 F. Supp. 3d at 39. “Litigating essentially the same issues in two separate forums is not in the interest of judicial economy or in the parties’ best interests.” Novenergia II, 2020 WL 417794, at *3 (quoting Naegele v. Albers, 355 F. Supp. 2d 129, 141 (D.D.C. 2005)). Such interests are “especially strong where a [foreign] parallel proceeding is ongoing” and when “there is a possibility that the [arbitral] award will be set aside[,] since a court may be acting improvidently by enforcing the award prior to the completion of the foreign proceedings.” Masdar Solar, 397 F. Supp. 3d at 40 (internal quotation marks and citation omitted). Furthermore, “[a]lthough a stay would immediate[ly] delay the resolution of the parties’ dispute, it would still likely be shorter than the possible delay that would occur if this Court were to confirm the award and the [Svea Court] were to then set it aside.” Id. at 39 (quoting Matter of Arbitration of Certain Controversies Between Getma Int'l & Republic of Guinea (Getma Int'l), 142 F. Supp. 3d 110, 114 (D.D.C. 2015)). If that scenario occurred, it would result in “more expensive litigation involving more complex issues” which is “precisely the opposite of what arbitration attempts to promote: the swift and (relatively) simple disposition of litigation.” Id. at 39–40. This Court is also mindful of the fact that, under the circumstances presented here, “the outcome of the judicial proceedings in [the Svea Court] may affect this Court's determinations[.]” Hulley Enters., 211 F. Supp. 3d at 284. Indeed, the underlying dispute in both the Svea Court and this Court involves the interplay of EU common law, its application to multilateral treaties such as the ECT, and the supremacy of EU law over Swedish law with respect to treaty arbitration provisions. This set of circumstances makes the Svea Court's decision directly relevant, “at a minimum, by virtue of the persuasive value of the reasoning in the [Swedish] decisions.” Id. It is also noteworthy that the issue of the viability of the ECT's arbitration provision arose relatively recently (in the wake of the CJEU's 2018 Achmea decision) and thus, the issue remains largely unsettled at this time. As such, the parties before the Court in this matter are not the only parties that are raising these arguments in the Svea Court. See, e.g., Novenergia II, 2020 WL 417794, at *4 (staying case where Spain commenced set-aside proceedings in the Svea Court); Foresight Luxembourg Solar 1 S.A.R.L. v. Kingdom of Spain, No. 19 CIV. 3171 (ER), 2020 WL 1503192, at *2 (S.D.N.Y. Mar. 30, 2020) (transferring case to this district in which Spain has commenced set-aside proceedings in the Svea Court). Thus, given the ongoing and multifaceted nature of the various proceedings in Sweden, as well as the “persuasive value” of the Svea Court's reasoning, there is a significant interest in both judicial efficiency and international comity that warrants staying the instant case. *6 To the extent that Petitioners express any hardship due to a stay of the instant proceedings, they make only generalized comments about the potential impact of the additional delay in an enforcement decision from this Court. (See Pet'rs’ Response at 46 (“A stay at this point would prejudice Petitioners by further delaying their ability to obtain the compensation to which they are entitled.”).) This Court fully understands that Petitioners have been pursuing recompense from Italy since 2015 and that the resolution in the Svea Court may take one to two more years. (Id. at 46–47.) But it is not at all clear that proceeding with the instant litigation will necessarily lead to a faster resolution of the complex issues that must be determined prior to enforcing the awards, and the cost of litigating the central issues in two forums concurrently plainly outweighs such hardship, especially in light of the potential burden to Italy of “ultimately having to recover assets seized during this action should the [set-aside] proceeding[s] go its way.” Masdar Solar, 397 F. Supp. 3d at 40. 2. The Europcar Factors, Too, Weigh In Favor Of Staying This Case In briefing the motion to stay, the parties have primarily relied on arguments that pertain to the six Europcar factors, which technically apply only to a stay issued pursuant to the New York Convention, as mentioned, but are helpful in “weigh[ing] competing interests and maintain[ing] an even balance” between judicial economy and hardship, as the D.C. Circuit requires this Court to do when it exercises its inherent authority to stay a case. Belize Soc. Dev., 668 F.3d at 732–33. Europcar instructs the Court to consider six factors in considering a stay pursuant to Article VI the New York Convention: (1) the general objectives of arbitration—the expeditious resolution of disputes and the avoidance of protracted and expensive litigation; (2) the status of the foreign proceedings and the estimated time for those proceedings to be resolved; (3) whether the award sought to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential standard of review; (4) the characteristics of the foreign proceedings ...; (5) a balance of the possible hardships to the parties ...; and (6) any other circumstances that could tend to shift the balance in favor of or against adjournment. Europcar, 156 F.3d at 317–18. In essence, “[t]hese factors ‘balance the Convention's policy favoring confirmation of arbitral awards against the principle of international comity embraced by the Convention.’ ” Novenergia II, 2020 WL 417794, at *4 (quoting Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1172 (11th Cir. 2004)). The first two Europcar factors can be read together to pertain to the timing of foreign proceedings in relation to the general objective of arbitration, which is to resolve disputes expeditiously. As this Court suggested above, the timing factor might appear to favor not staying the instant matter, given that the Svea Court proceedings could extend for one to two more years, but if this Court issued a ruling to enforce the arbitral awards and the Svea Court later found that the awards are invalid, “protracted and extensive litigation” would almost certainly then occur. Europcar, 156 F.3d at 317. This Court also finds that set-aside proceedings (such as those that are occurring in the Svea Court) constitute an “integral” part of an arbitration, such that entering a stay in this enforcement action would “allow the arbitration process ... to run its course.” Getma Int'l, 142 F. Supp. 3d at 114. Thus, these two factors both weigh slightly in favor of a stay. The third Europcar factor “concerns the standard of review in the foreign proceedings.” Novenergia II, 2020 WL 417794, at *5. The parties agree that the Svea Court will apply Swedish law in considering whether to set aside the arbitral awards, but Petitioners argue that that standard is “substantially similar” to the New York Convention, which applies in the instant proceedings (see Pet'rs’ Response at 49), while Italy contends that “the award[s] will receive more scrutiny” in the Svea Court (see Resp't's Reply at 26). The parties’ arguments appear to echo their jurisdictional and merits disputes regarding the scope of the applicable Swedish law, and it is unnecessary for the Court to determine the scope of the Svea Court's review in order to evaluate this stay factor. Regardless—i.e., even where it is unclear whether greater scrutiny will apply in the case that is pending in the foreign court—“the [mere] possibility that the [reviewing court] will set aside the award, ‘weighs mildly in favor of [granting a] stay.” Getma Int'l, 142 F. Supp. 3d at 116; see also Novenergia II, 2020 WL 417794, at *5.5 *7 The fourth Europcar factor requires an evaluation of the characteristics of the foreign proceedings—including whether the respondent is seeking to enforce or set aside an award, whether the foreign proceedings were initiated before the underlying proceeding, whether the party now seeking enforcement initiated the foreign proceedings, and whether the foreign proceedings were “initiated under circumstances indicating an intent to hinder or delay resolution of the dispute[.]” Europcar, 156 F.3d at 318. Italy has asked the Svea Court to set aside the arbitral awards and is not seeking to enforce the awards in this Court, so Europcar instructs that these considerations weigh in Petitioners’ favor and, thus, against staying the case. See id. However, Italy initiated the set-aside proceedings in the Svea Court before Petitioners sought to enforce the awards here, which raises significant concerns of international comity. See Getma Int'l, 142 F. Supp. 3d at 116–17 (collecting cases). Italy also does not appear to be motivated by an intent to delay—that is, Italy has consistently represented that it believes the arbitration tribunals lacked jurisdiction based on the CJEU's Achmea decision, and its efforts to pursue the challenge in set-aside proceedings is consistent with that belief, despite Petitioners’ arguments to the contrary. (See Pet'rs’ Response at 50.) “Thus, while some aspects of the status and characteristics of the foreign proceedings weigh against a stay, in totality, they weigh in favor of a stay.” Novenergia II, 2020 WL 417794, at *5. Finally, the fifth and sixth Europcar factors require this Court to balance the parties’ relative hardships if the stay issues and if it does not, and the Court must determine whether any other factors shift the balance one way or another in favor of a stay. As this Court explained above, the balance of hardships weighs decidedly in favor of a stay. And the additional interest in international comity, particularly with respect to the importance of the issues at stake here to the European Union (see EU Amicus Brief at 7–8), also weighs in favor of a stay. Indeed, another court in this district recently considered the propriety of a stay on nearly identical facts and reached the unassailable conclusion that, on balance, the interests of international comity warrant a stay, because “the Swedish proceedings were initiated before this action, the Swedish court has already acted to prohibit enforcement of the arbitral award, and the issue is of importance to the EU and better suited for initial review in their courts.” Novenergia II, 2020 WL 417794, at *4. Thus, this Court finds that Italy has demonstrated a “pressing need” for a stay of the instant proceedings, and that both the general interests of judicial economy that arise when the Court relies upon its own inherent authority to manage its docket and the Europa factors weigh in favor of staying this case. C. This Court Will Not Require Italy To Post Security Petitioners argue that if this Court does grant a stay, it should “condition the stay on Italy's posting of security” pursuant to Article VI of the New York Convention. (Pet'rs’ Response at 52.) But this Court has not yet determined whether it has jurisdiction; therefore, it is not clear that it has the authority to order the posting of security pursuant to the Convention. Moreover, “courts in this Circuit generally have not required foreign sovereigns to post security because they are ‘presumably ... solvent and will comply with legitimate orders issued by courts in this country or in [their home jurisdiction.]’ ” Novenergia II, 2020 WL 417794, at *6 (quoting DRC, Inc. v. Republic of Honduras, 774 F. Supp. 2d 66, 76 (D.D.C. 2011)). Nevertheless, consistent with the D.C. Circuit's clear direction that any stay of litigation that district courts authorize should be reasonable, and should be limited accordingly, see Belize Soc. Dev., 668 F.3d at 732, this Court will order regular status updates from the parties regarding the ongoing proceedings in the Svea Court, so as to permit the Court to evaluate whether and to what extent the instant proceedings should resume, see, e.g., id. (suggesting that a stay is reasonable where “the stay order includes [a] provision for status updates or further review”). IV. CONCLUSION Given the ongoing set-aside proceedings that are taking place in Sweden (the primary jurisdiction of the parties’ arbitrations) and the significant interests in judicial economy and international comity that weigh in favor of staying this case, Respondent's motion to stay the instant case will be GRANTED, and the instant case will be STAYED until further order of the Court. As set forth in the Order that accompanies this Memorandum Opinion, throughout the pendency of the stay, the parties shall provide the Court with periodic updates regarding the status of the set-aside matter that is working its way through the Svea Court, and they shall notify the Court of the Svea Court's ruling within three business days of its issuance.

Jackson

majority

Petitioners CEF Energia, B.V. (“CEF Energia”), Greentech Energy Systems A/S (now known as Athena Investments A/S) (“Greentech”), NovEnergia Genera Partner S.A. (acting as iquidator of NovEnergia II Energy & Environment (SCA) SICAR) (“NEE”), and NovEnergia II Itaian Portfoio (“NIP”) (coectivey, “Petitioners”) are seeking to enforce two arbitra awards against the Itaian Repubic (“Itay” or “Respondent”). (See Pet. to Confirm Foreign Arbitra Award (“CEF Pet.”), Case No. 19-cv-3443, ECF No. 1-1, at 1; Pet. to Confirm Foreign Arbitra Award (“Greentech Pet.”), Case No. 19-cv-3444, ECF No. 1-1, at 2.)1 Petitioners are companies that are incorporated in various European countries, and they engaged in two arbitrations with Itay under the Rues of Arbitration of the Arbitration Institute of the Stockhom Chamber of Commerce (“Stockhom Rues”). () After Petitioners prevaied, Itay sought to set aside, or annu, the awards in the Svea Court of Appea in Sweden (the “Svea Court”), and the Svea Court issued orders that prohibit the enforcement of the awards pending resoution of the chaenge. (See Pet'rs’ Response to Mot. to Dismiss (“Pet'rs’ Response”), ECF No. 35, –16.) Before this Court at present are Itay's motions to dismiss the Petitioners’ bid to have this Court enforce the arbitration awards. (See Resp't's Mem. in Support of Mot. to Dismiss CEF Pet. (“Resp't's Mem. to Dismiss CEF”), Case No. 19-cv-3443, ECF No. 26-1; Resp't's Mem. in Support of Mot. to Dismiss Greentech Pet. (“Resp't's Mem. to Dismiss Greentech”), Case No. 19-cv-3444, ECF No. 35-1.) Itay argues that this Court acks jurisdiction over these petitions and that the awards are not enforceabe, or, in the aternative, Itay requests a stay of these proceedings pending the outcome of Itay's appeas in the Svea Court. (See Resp't's Mem. to Dismiss CEF at 9–10; Resp't's Mem. to Dismiss Greentech at 8–9.) As discussed herein, this Court is persuaded that a temporary stay is in the interests of judicia economy and internationa comity, especiay given the significant ega issues that underie the parties’ dispute, which arise from, and reate to, European Union aw. Therefore, Itay's motion to stay the instant action wi be GRANTED, and this case wi be STAYED pending further Order of this Court. A separate Order consistent with this Memorandum Opinion wi foow. I. BACKGROUND In order to encourage the deveopment of renewabe energy sources, in the eary 2000s, Itay estabished a number of incentive schemes to attract investment in the renewabe energy sector. (See CEF Pet. 1; Greentech Pet. 4.) As reevant here, the country “enact[ed] incentive schemes for photovotaic [energy] pants known as Conto Energia Decrees.” (CEF Pet. 1; see aso Greentech Pet. 4.) Between January of 2010 and March of 2012, Petitioner CEF Energia (a company incorporated under the aws of the Kingdom of the Netherands (see CEF Pet. )) invested in three photovotaic projects, each of which “was granted a specific incentive tariff based on the Conto Energia decree in force at the time the pant began operating” ( 3). Simiary, Petitioners NIP and NEE, which are incorporated under the aws of the Grand Duchy of Luxembourg (see Greentech Pet. ¶¶ 3, 4), invested in 52 photovotaic projects in Itay between 2010 and 2013 (see ), and Petitioner Greentech, a company incorporated under the aws of the Kingdom of Denmark (see ), acquired a portfoio consisting of 75 photovotaic projects in which grew to 82 projects by 2015 (see 8). As eary as 2012, however, Itay aegedy began simutaneousy “enacting a number of decrees and administrative fees that reduced the vaue of the incentive tariffs[.]” (CEF Pet. 4; see aso Greentech Pet. 9.) According to Petitioners, “[t]he net effect of these new reguations drasticay reduced the profitabiity and vaue of Petitioner[s’] investments.” (CEF Pet. 5; Greentech Pet. ¶ 30.) *2 As a resut of Itay's actions, Petitioners initiated arbitrations with Itay pursuant to Artice 26 of the Energy Charter Treaty (“ECT”). (CEF Pet. ¶¶ 16, 26; Greentech Pet. ¶¶ 19, 31.) The ECT is a mutiatera investment treaty with 54 signatories, the purpose of which is “to promote cross-border cooperation in the energy industry[.]” (Pet'rs’ Response at 10.) Artice 26 of the ECT specificay provides that an investor may submit “[d]isputes between a Contracting Party and an Investor of another Contracting Party reating to an Investment of the atter in the Area of the former” to arbitration under the Stockhom Rues. (Resp't's Mem. to Dismiss CEF (quoting ECT Art. 26(4)); see aso generay CEF Pet. ¶ 16; Greentech Pet. ¶ 19.) Each of Petitioners’ countries of incorporation and Itay were parties to the ECT at a reevant times. (See CEF Pet. ¶¶ 8, 11; Greentech Pet. ¶¶ 10, 13, 14.)2 The respective arbitrations commenced in 2015 in Stockhom, Sweden under the Stockhom Rues; Greentech, NEE, and NIP in one arbitration, and CEF Energia in another. (See CEF Pet. ¶¶ 16, 17; Greentech Pet. ¶¶ 19, 20.) In 2018, whie the arbitrations were ongoing, the Court of Justice of the European Union (“CJEU”) issued a decision in Sovak Repubic v. Achmea B.V., Case C-284/16, 2018, in which the court found, inter aia, that intra-EU treaty arbitration provisions are invaid to the extent that they prohibit judicia review of EU aw by EU courts. (See Pet'rs’ Response at 12–13.) Itay then argued in the context of the arbitrations that the arbitration tribunas acked jurisdiction (see CEF Pet. ; Greentech Pet. ¶ 31; Pet'rs’ Response at 13), but both tribunas utimatey rejected Itay's jurisdictiona arguments and found that Itay had vioated its obigations under the ECT (see CEF Pet. ¶8–31; Greentech Pet. ¶ 32). The tribuna that considered the CEF Energia dispute awarded the company €9.6 miion (see CEF Pet. 0), and the other tribuna awarded Greentech €7.6 miion and both NEE and NIP €4.5 miion (see Greentech Pet. ¶ 33). A of the Petitioners were aso awarded interest on their awards. (See CEF Pet. 0; Greentech Pet. ¶ 33.) Thereafter, with respect to both arbitrations, Itay “commenced proceedings before the Svea Court [ ] in Sweden seeking to vacate the awards.” (Pet'rs’ Response)3 In the ensuing “set-aside” proceedings in the Svea Court—which remain pending—Itay is again pressing its argument that the arbitration tribunas acked jurisdiction because the ECT's arbitration provision is invaid under EU aw. (See) The Svea Court aso specificay rued that the arbitration awards cannot be enforced in Sweden in any event (see ),4 after which Petitioners fied petitions to enforce the arbitra awards in state court in New York under the New York Convention (see generay CEF Pet. at 1 (fiing made in Supreme Court of the State of New York, New York County); Greentech Pet. at 1 (same)). Itay removed those cases to the U.S. District Court for the Southern District of New York (“SDNY”) pursuant to the federa remova statute, (d), given that SDNY was the federa district court “for the district and division embracing the pace where [the state court] action[s] [were] pending[,]” at 1441(d). However, that federa court determined that venue was improper there because, under the federa venue statute, civi actions against foreign states, where no party is a citizen or resident of the United States and none of the events giving rise to the caim occurred in a judicia district in the United States, must be brought in the U.S. District Court for the District of Coumbia. (See Order, Case No. 19-cv-3443, ECF No. 13 (citing 28 U.S.C. 1391(f)(4)); Order, Case No. 19-cv-3444, ECF No. 23 (same).) *3 Upon transfer to this Court, Itay fied a motion to dismiss CEF Energia's petition on December 7, and a motion to dismiss Greentech, NEE, and NIP's petition on December 11, (See Resp't's Mot. to Dismiss CEF Pet., Case No. 19-cv-3443, ECF No. 26; Resp't's Mot. to Dismiss Greentech Pet., Case No. 19-cv-3444, ECF No. 35.) This Court determined that both cases invove common questions of aw and consoidated them, instructing the parties to fie their remaining briefs in civi case number 19-cv-3443. (See Minute Orders of Dec. 13, and Jan. 8,) Petitioners fied a consoidated response to Itay's motions to dismiss on February 6, (see Pet'rs’ Response, ECF No. 35), and Itay fied a consoidated repy on March 4, (see Resp't's Repy, ECF No. ). In the meantime, the European Commission, on behaf of the European Union, fied an amicus brief on January 22, (see EU Amicus Brief, ECF No. 34), and Petitioners fied a response thereto on February 6, (see Pet'rs’ Response to EU, ECF No. 36). II. LEGAL STANDARD In the United States, judicia enforcement of “arbitra awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” occurs pursuant to the Federa Arbitration Act, 9 U.S.C. 201–208, which, as reevant here, codifies the Convention on the Recognition and Enforcement of Foreign Arbitra Awards (aso known as “the New York Convention”). Beize Soc. Under the New York Convention, a federa district court must recognize and enforce a foreign arbitra award “uness it finds one of the grounds for refusa or deferra of recognition or enforcement of the award specified in the said Convention.” 9 U.S.C. 207. “Consistent with the ‘emphatic federa poicy in favor of arbitra dispute resoution’ the FAA affords the district court itte discretion in refusing or deferring enforcement of foreign arbitra awards[.]” Beize Soc. 668 F.3d at ). However, “the Convention is ‘cear’ that a court ‘may refuse to enforce the award ony on the grounds expicity set forth in Artice V of the Convention.’ ” ). Appicabe grounds for refusa to enforce an award under the Convention incude that the agreement to arbitrate “is not vaid under the aw of the country where the award was made[,]” N.Y. Convention Art. V(1)(a); that the “award has been set aside or suspended by a competent authority of the country in which that award was made[,]” at Art. V(1)(e); and/or that “recognition or enforcement of the award woud be contrary to the pubic poicy of that country[,]” at Art. V(2)(b). III. DISCUSSION In its motions to dismiss, Itay argues that this Court shoud refuse to enforce Petitioners’ arbitra awards on myriad grounds. For exampe, Itay contends that this Court acks subject-matter jurisdiction over the petitions (see Resp't's Mem. to Dismiss CEF at 10; Resp't's Mem. to Dismiss Greentech at 8–9), and with respect to CEF Energia, Itay argues that this Court aso acks persona jurisdiction because service of process was improper under the Hague Convention (see Resp't's Mem. to Dismiss CEF at 11). Itay aso maintains that the awards are not enforceabe under the New York Convention because they have been suspended by Sweden; because the ECT arbitration agreement is not vaid under Swedish or EU aw; and because enforcement of the awards woud be contrary to pubic poicy. (See Resp't's Mem. to Dismiss CEF at 11–12; Resp't's Mem. to Dismiss Greentech at 9.) In the aternative, Itay argues that this Court shoud stay this case in ight of the ongoing proceedings in the Svea Court. (See Resp't's Mem. to Dismiss CEF at 12; Resp't's Mem. to Dismiss Greentech at 10.) Petitioners respond that this Court has jurisdiction (see Pet'rs’ Response at 16); that service was propery effectuated (see ); and that there are no grounds for non-recognition of the awards under the New York Convention (see ). Petitioners aso contend that a stay is unwarranted. (See) *4 This Court finds that it has the authority to stay this matter notwithstanding the outstanding jurisdictiona issues, and it further concudes that a stay is warranted, as expained beow. Therefore, the Court wi stay this matter pending the Svea Court's ruing, as Itay requests. A. This Court Can Address Itay's Motion To Stay This Proceeding Courts ordinariy must assure themseves of jurisdiction before reaching the merits of a case. See Stee However, “certain non-merits, nonjurisdictiona issues may be addressed preiminariy, because ‘[j]urisdiction is vita ony if the court proposes to issue a judgment on the merits.’ ” Pub. ). Thus, a court may “bypass[ ] questions of subject-matter and persona jurisdiction, when considerations of convenience, fairness, and judicia economy so warrant.” Severa judges in this district have considered the issue of whether a motion to stay can be addressed prior to resoving jurisdictiona issues, and they have consistenty hed that, in the context of a dispute over the enforcement of a foreign arbitra award, a stay motion is the type of threshod, non-merits, nonjurisdictiona question that can be determined initiay. See Novenergia II - Energy & Env't ; Masdar & Wind Cooperatief ; Gretton ; Huey This Court agrees with that concusion. Thus, where, as here, the jurisdictiona and merits arguments argey depend on the vaidity of the ECT's arbitration provision, which is being chaenged both in the federa court and in a foreign proceeding, the question of whether or not the matter can be stayed can be addressed before the Court proceeds to evauate any other compex threshod or jurisdictiona issues. See Huey –80 (finding that “[a] stay of proceedings in this [arbitra award enforcement] case is exacty the type of nonmerits action” that the “court may, for the sake of efficiency,” address first). B. A Stay Is Appropriate Here, Given The Ongoing Proceedings In Sweden Itay argues that under Artice VI of the New York Convention, a court may “stay a recognition decision where an annument (or vacatur) appication has been made to a court of the country in which, or under the aw of which, that award was made.” (Resp't's Mot. re: CEF Pet.) This Court is considering Itay's motion to stay “under its inherent powers[,]” rather than Artice VI of the Convention, because the Court's own jurisdiction has yet to be estabished. Novenergia II, (citing Huey ); see aso Masdar And there are we-estabished factors that a court must ponder when it exercises its inherent authority to stay any case, as expained beow. The six factors for determining whether to stay a matter under Artice VI of the New York Convention—as the Second Circuit articuated them in Itaia —are aso instructive, because the issue presented here is “whether to issue a stay when a foreign proceeding is ongoing in a foreign arbitra award matter.” Novenergia II, ; see aso Gretton Ltd., ; Huey –87. 1. The Interests Of Judicia Economy Weigh In Favor Of This Court Exercising Its Inherent Powers To Stay This Case *5 With respect to the Court's considerations when it determines whether or not to invoke its inherent powers to stay a case, the Supreme Court has expained that “the power to stay proceedings is incidenta to the power inherent in every court to contro the disposition of the causes on its docket with economy of time and effort for itsef, for counse, and for itigants.” A court must “ ‘weigh competing interests and maintain an even baance’ between the court's interests in judicia economy and any possibe hardship to the parties.” Beize Soc. –33 (quoting 299 U.S. at –55). In this regard, the party seeking a stay “must make out a cear case of hardship or inequity in being required to go forward” if there is “even a fair possibiity” that the stay woud adversey affect the other party. Moreover, an indefinite stay, such as the one requested here, “must be supported by ‘a baanced finding that such need overrides the injury to the party being stayed.’ ” Beize Soc. ). Be that as it may, district courts “have broad discretion” to stay a proceeding “pending the resoution of independent ega proceedings.” Nat' Indus. for (citing 299 U.S. at ). This Court has no doubt that judicia economy favors a stay in this case. See Novenergia II, ; Masdar “Litigating essentiay the same issues in two separate forums is not in the interest of judicia economy or in the parties’ best interests.” Novenergia II, ). Such interests are “especiay strong where a [foreign] parae proceeding is ongoing” and when “there is a possibiity that the [arbitra] award wi be set aside[,] since a court may be acting improvidenty by enforcing the award prior to the competion of the foreign proceedings.” Masdar Furthermore, “[a]though a stay woud immediate[y] deay the resoution of the parties’ dispute, it woud sti ikey be shorter than the possibe deay that woud occur if this Court were to confirm the award and the [Svea Court] were to then set it aside.” ). If that scenario occurred, it woud resut in “more expensive itigation invoving more compex issues” which is “precisey the opposite of what arbitration attempts to promote: the swift and (reativey) simpe disposition of itigation.” –40. This Court is aso mindfu of the fact that, under the circumstances presented here, “the outcome of the judicia proceedings in [the Svea Court] may affect this Court's determinations[.]” Huey Indeed, the underying dispute in both the Svea Court and this Court invoves the interpay of EU common aw, its appication to mutiatera treaties such as the ECT, and the supremacy of EU aw over Swedish aw with respect to treaty arbitration provisions. This set of circumstances makes the Svea Court's decision directy reevant, “at a minimum, by virtue of the persuasive vaue of the reasoning in the [Swedish] decisions.” It is aso noteworthy that the issue of the viabiity of the ECT's arbitration provision arose reativey recenty (in the wake of the CJEU's 2018 Achmea decision) and thus, the issue remains argey unsetted at this time. As such, the parties before the Court in this matter are not the ony parties that are raising these arguments in the Svea Court. See, e.g., Novenergia II, (staying case where Spain commenced set-aside proceedings in the Svea Court); Foresight Luxembourg 1 WL 1503192, Thus, given the ongoing and mutifaceted nature of the various proceedings in Sweden, as we as the “persuasive vaue” of the Svea Court's reasoning, there is a significant interest in both judicia efficiency and internationa comity that warrants staying the instant case. *6 To the extent that Petitioners express any hardship due to a stay of the instant proceedings, they make ony generaized comments about the potentia impact of the additiona deay in an enforcement decision from this Court. (See Pet'rs’ Response at 46 (“A stay at this point woud prejudice Petitioners by further deaying their abiity to obtain the compensation to which they are entited.”).) This Court fuy understands that Petitioners have been pursuing recompense from Itay since 2015 and that the resoution in the Svea Court may take one to two more years. ( at 46–47.) But it is not at a cear that proceeding with the instant itigation wi necessariy ead to a faster resoution of the compex issues that must be determined prior to enforcing the awards, and the cost of itigating the centra issues in two forums concurrenty painy outweighs such hardship, especiay in ight of the potentia burden to Itay of “utimatey having to recover assets seized during this action shoud the [set-aside] proceeding[s] go its way.” Masdar 2. The Factors, Too, Weigh In Favor Of Staying This Case In briefing the motion to stay, the parties have primariy reied on arguments that pertain to the six factors, which technicay appy ony to a stay issued pursuant to the New York Convention, as mentioned, but are hepfu in “weigh[ing] competing interests and maintain[ing] an even baance” between judicia economy and hardship, as the D.C. Circuit requires this Court to do when it exercises its inherent authority to stay a case. Beize Soc. –33. instructs the Court to consider six factors in considering a stay pursuant to Artice VI the New York Convention: (1) the genera objectives of arbitration—the expeditious resoution of disputes and the avoidance of protracted and expensive itigation; (2) the status of the foreign proceedings and the estimated time for those proceedings to be resoved; (3) whether the award sought to be enforced wi receive greater scrutiny in the foreign proceedings under a ess deferentia standard of review; (4) the characteristics of the foreign proceedings; (5) a baance of the possibe hardships to the parties; and (6) any other circumstances that coud tend to shift the baance in favor of or against adjournment. –18. In essence, “[t]hese factors ‘baance the Convention's poicy favoring confirmation of arbitra awards against the principe of internationa comity embraced by the Convention.’ ” Novenergia II, ). The first two factors can be read together to pertain to the timing of foreign proceedings in reation to the genera objective of arbitration, which is to resove disputes expeditiousy. As this Court suggested above, the timing factor might appear to favor not staying the instant matter, given that the Svea Court proceedings coud extend for one to two more years, but if this Court issued a ruing to enforce the arbitra awards and the Svea Court ater found that the awards are invaid, “protracted and extensive itigation” woud amost certainy then occur. This Court aso finds that set-aside proceedings (such as those that are occurring in the Svea Court) constitute an “integra” part of an arbitration, such that entering a stay in this enforcement action woud “aow the arbitration process to run its course.” Getma Int', 142 F. Supp. 3d at Thus, these two factors both weigh sighty in favor of a stay. The third factor “concerns the standard of review in the foreign proceedings.” Novenergia II, The parties agree that the Svea Court wi appy Swedish aw in considering whether to set aside the arbitra awards, but Petitioners argue that that standard is “substantiay simiar” to the New York Convention, which appies in the instant proceedings (see Pet'rs’ Response at 49), whie Itay contends that “the award[s] wi receive more scrutiny” in the Svea Court (see Resp't's Repy ). The parties’ arguments appear to echo their jurisdictiona and merits disputes regarding the scope of the appicabe Swedish aw, and it is unnecessary for the Court to determine the scope of the Svea Court's review in order to evauate this stay factor. Regardess—i.e., even where it is uncear whether greater scrutiny wi appy in the case that is pending in the foreign court—“the [mere] possibiity that the [reviewing court] wi set aside the award, ‘weighs midy in favor of [granting a] stay.” Getma Int', ; see aso Novenergia II,5 *7 The fourth factor requires an evauation of the characteristics of the foreign proceedings—incuding whether the respondent is seeking to enforce or set aside an award, whether the foreign proceedings were initiated before the underying proceeding, whether the party now seeking enforcement initiated the foreign proceedings, and whether the foreign proceedings were “initiated under circumstances indicating an intent to hinder or deay resoution of the dispute[.]” Itay has asked the Svea Court to set aside the arbitra awards and is not seeking to enforce the awards in this Court, so instructs that these considerations weigh in Petitioners’ favor and, thus, against staying the case. See However, Itay initiated the set-aside proceedings in the Svea Court before Petitioners sought to enforce the awards here, which raises significant concerns of internationa comity. See Getma Int', –17 (coecting cases). Itay aso does not appear to be motivated by an intent to deay—that is, Itay has consistenty represented that it beieves the arbitration tribunas acked jurisdiction based on the CJEU's Achmea decision, and its efforts to pursue the chaenge in set-aside proceedings is consistent with that beief, despite Petitioners’ arguments to the contrary. (See Pet'rs’ Response) “Thus, whie some aspects of the status and characteristics of the foreign proceedings weigh against a stay, in totaity, they weigh in favor of a stay.” Novenergia II, Finay, the fifth and sixth factors require this Court to baance the parties’ reative hardships if the stay issues and if it does not, and the Court must determine whether any other factors shift the baance one way or another in favor of a stay. As this Court expained above, the baance of hardships weighs decidedy in favor of a stay. And the additiona interest in internationa comity, particuary with respect to the importance of the issues at stake here to the European Union (see EU Amicus Brief at 7–8), aso weighs in favor of a stay. Indeed, another court in this district recenty considered the propriety of a stay on neary identica facts and reached the unassaiabe concusion that, on baance, the interests of internationa comity warrant a stay, because “the Swedish proceedings were initiated before this action, the Swedish court has aready acted to prohibit enforcement of the arbitra award, and the issue is of importance to the EU and better suited for initia review in their courts.” Novenergia II, Thus, this Court finds that Itay has demonstrated a “pressing need” for a stay of the instant proceedings, and that both the genera interests of judicia economy that arise when the Court reies upon its own inherent authority to manage its docket and the Europa factors weigh in favor of staying this case. C. This Court Wi Not Require Itay To Post Security Petitioners argue that if this Court does grant a stay, it shoud “condition the stay on Itay's posting of security” pursuant to Artice VI of the New York Convention. (Pet'rs’ Response at 52.) But this Court has not yet determined whether it has jurisdiction; therefore, it is not cear that it has the authority to order the posting of security pursuant to the Convention. Moreover, “courts in this Circuit generay have not required foreign sovereigns to post security because they are ‘presumaby sovent and wi compy with egitimate orders issued by courts in this country or in [their home jurisdiction.]’ ” Novenergia II, ). Nevertheess, consistent with the D.C. Circuit's cear direction that any stay of itigation that district courts authorize shoud be reasonabe, and shoud be imited accordingy, see Beize Soc. this Court wi order reguar status updates from the parties regarding the ongoing proceedings in the Svea Court, so as to permit the Court to evauate whether and to what extent the instant proceedings shoud resume, see, e.g., (suggesting that a stay is reasonabe where “the stay order incudes [a] provision for status updates or further review”). IV. CONCLUSION Given the ongoing set-aside proceedings that are taking pace in Sweden (the primary jurisdiction of the parties’ arbitrations) and the significant interests in judicia economy and internationa comity that weigh in favor of staying this case, Respondent's motion to stay the instant case wi be GRANTED, and the instant case wi be STAYED unti further order of the Court. As set forth in the Order that accompanies this Memorandum Opinion, throughout the pendency of the stay, the parties sha provide the Court with periodic updates regarding the status of the set-aside matter that is working its way through the Svea Court, and they sha notify the Court of the Svea Court's ruing within three business days of its issuance.