Datasets:

ylkhayat

/

clerc-documents-beir-corpus

like 0

WASHINGTON, Circuit Justice. This case comes before the court upon a writ of error to the district court. It was an action of as-sumpsit brought in that court in the name of the United States against Jonas Preston and Nathan Bunker, voluntary assignees of the estate and effects of Joseph Lea, in which a declaration was filed containing three counts. The first is for money had and received by the defendants from the estate and effects of Lea, to the use of the United States. The second is upon insimul com-putassent. The third count is special. It states, that on the 10th of August. 1822. the said Lea was indebted to the United States in a certain sum for duties, for the payment whereof he had executed a bond to the United States; and on the same day, the said Lea, being insolvent, made a voluntary assignment of all his estate and effects to the defendants, who accepted the assignment, by means whereof they received enough of the estate and effects of the said Lea to pay his said duty bond to the United States; in consideration whereof, and of the preference, priority, and advantage of payment by act of congress in such case made and provided, the defendants undertook and promised the United States to pay them the said sum due by Lea, out of the estate and effects so assigned to them. The conclusion of the declaration is in the usual form. The plea of the general issue being filed, the district attorney, at a subsequent term, moved, in behalf of the United States, that this suit should be marked, to the use of John W. Perrit, the surety in the duty bond, and that it be proceeded in accordingly for his use, with the preference, priority, and advantage of the United States. This motion was overruled, and judgment was entered for the defendants; whereupon it was agreed by the counsel, that a writ of error should be sued out from the circuit court, and that the questions to be determined by that court should be, first, whether Perrit, the surety, might sue and recover in the district court, in the name of the United States, with the preference, priority, and advantage, by law secured to them? And, secondly, whether the defendants were entitled to make any equitable defence against tbe plaintiffs in this action, other than such as might be made against the United States? Intending to confine my opinion to the questions which the counsel have agreed to submit to the court, or rather, to the first, I shall notice the loose and irregular manner in which this* cause comes from the district court, with no other view but to condemn it. In the first place, it is to be remarked that, although the parties were at issue on the general plea, yet no trial appears to have been had, but judgment was entered (no doubt by the argument of counsel) for the defendants, upon a collateral motion, unconnected with the merits of the issue in the cause. In the nest place, the payment of the bond by the surety to the United States, although all important to entitle him to recover, is no where stated in the record, and it is only from the information given to the court by the counsel, on both sides, that I know that to be the fact. It is obvious, in short, that the case is brought up, with a view to obtain the opinion of this court upon what must appear to me to be abstract questions; although they would seem to be connected with the real merits of the cause, not from the record, but from the arguments and the admissions of the counsel. These observations axe intended to bring about more precision and strictness in the practice, for the purpose of preventing disappointments and injury to the parties; as I shaff feel it to be my duty, in future, to decide causes coming here from the district court, upon the record, and upon that alone. The first question propounded on this record, depends for its solution upon the true construction of the sixty-fifth section of the act of congress, commonly called the “Collection Law,” passed the 2d of March, 1799. It enacts that, in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debts due to the United States, on duty bonds, shall be first satisfied; and that any executor, administrator, or assignee, or other person, who shall pay any debt due by the person or estate from whom, or for which, they are acting, previous to the debt due to the United States, from such person, or estate, being first duly satisfied and paid, shall become answerable in their own persons and estate for the debt so due to the United States, or so much thereof as shall remain due and unpaid; and actions at law are directed to be commenced against them for the recovery of the same. After providing that, in all suits by the United States for the recovery of duties, or pecuniary penalties, special bail shall be required; the act proceeds to provide that, in the cases before mentioned, if any surety in such duty bond, his executors, administrators, or assignees, shall pay to the United States the money due upon such bond, he and they “shall have and enjoy the like advantage, priority, or preference, for the recovery and receipt of the said moneys, out of the estate and effects of such insolvent or deceased principal as are reserved and secured to the United States; and shall and may bring and maintain a suit or suits upon the said bond or bonds, in law or equity, in his, her. or their own name, or names, for the recovery of all moneys paid thereon.” As the surety, after he has discharged the bond, is to enjoy the like advantage for the recovery and receipt of the money so paid, out of the estate and effects of the insolvent as is secured'to the United States, it becomes material to inquire, what is the advantage secured to the United States? and 1 feel strongly inclined to the opinion, that the advantage spoken of is nothing more than the preference and priority reserved to the United States by the preceding part of the section. It was earnestly insisted upon by the counsel for the plaintiff, that, under this expression, the surety was entitled, in addition to the privilege of priority of payment, to call upon the collector forthwith to cause a prosecution to be commenced for the recovery of the money due to him; to proceed against the person and effects of executors and assignees, in cases where they have paid any debt of the insolvent, previous to that due to the surety being first satisfied; to require special bail in. such action; to demand judgment on motion at the return term of the writ, unless the defendant shall make oath that an error has been committed in the liquidation of the duties demanded upon the bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector, prior to the commencement ot the return term; to recover interest at the rate of six per cent, per an-num, from the time the bond became due, until payment thereof; and finally, to bring his suit in the federal court. I think there are many serious objections to this construction of the section. What, for instance, has the collector to do with the prosecution of a suit, the fruit of which is not to go into the public treasury, but into the pocket of a private individual? As a public officer, and on the score of duty, he is enjoined to cause suits to be instituted on certain bonds due to the United States, with the history of which he is well acquainted, having been the agent in taking them, and is therefore enabled to give the necessary instructions to the law officer of the government, in case objections to a recovery should be made by the obligors. But what knowledge can he ha ve of the transactions between the surety and his principal? and why should he be required to conduct a suit, which can be so much better managed by the person alone interested in the event of it? Again, what part of this section is it which grants to the surety the advantage reserved to the United States of proceeding against the person and effects of the executors or assignees, where they have paid any debt of the insolvent, previous to that due to the plaintiff being first satisfied? The recovery of the surety, spoken of in this section, is to be out of the estate and effects of such insolvent or deceased principal, and not out of the effects of his executors or assignees. It would seem as if congress intended to leave the surety to such remedy as a court of law or equity might afford him, as a privileged creditor, in case of an improper disposition of the estate of the insolvent, by those to whom the management of it was entrusted. As to the right of the surety to require special bail, and to recover legal interest upon the money paid for the principal, no provision, in favour of the surety, was necessary, as he would, of course, be entitled to the former in an action upon the bond, and to the latter, either in the name of interest, or of damages. The provision respecting special bail, where the United States were plaintiffs, was necessary from the circumstance that pecuniary penalties are embraced in the same sentence which speaks of duty bonds, in suits for the recovery of which special bail could not regularly have been demanded; and the provision respecting interest was probably made for the purpose of fixing a uniform rate of interest to be paid on duty bonds throughout the United States. The important advantages, after all, which are claimed for the plaintiff under this section, are (1) the right to demand judgment on motion, at the return term of the writ; and (2) to bring his suit in a federal court. As to the first, it is apparent that great injustice might be done to the defendant by extending this extraordinary privilege to the surety. As between the United States and the principal, it can seldom happen that the latter can have any other defence than to prove a mistake in the liquidation of the duties, and to prove payment of the bond. The legislature would seem to have contemplated no other than the first, by providing for a continuance only when the defendant shall make oath that such an error has been committed, of which he had notified the collector prior to the commencement of the return term. But the defences of the defendants to the suit of the surety may be various, requiring time to put in proper pleas, and to prepare for the trial. He may have paid the debt to the United States; the plaintiff may have reimbursed himself out of property pledged to him for his indemnification; he may have offsets to oppose to the claim; the value of the property assigned to the defendants, or of the assets in the hands of the executors, may fall short of the sum demanded, &c. It is correctly admitted by the counsel for the surety, that these defences may be made by the defendant; and if this be so, how can they be effectually made, if the plaintiff may ask for judgment at the return term of the writ? But what satisfies my mind entirely that this advantage was not intended to be granted to the surety is, the indulgence allowed to the defendant to put off the trial, upon his taking the prescribed oath, in order that he may have an opportunity of diminishing the amount of the bond by showing an overcharge of the duties for which the bond was taken. But could such a defence be made by the principal, or his representatives, against the surety, who, ignorant of a mistake, which it was the duty of the principal to get corrected, had paid the full amount of the bond? I very much doubt if it could be admitted. (2) As to the jurisdiction of the federal courts in suits by the surety, the question is not whether it ought to have been granted, as to which I entertain no doubt, but whether it is in fact granted by this section? The expressions, as to the United States, are, that the collector shall cause a prosecution to be commenced “in the proper court, having cognizance thereof.” This might be either a federal or a state court. But the jurisdiction of the federal court was not reserved to the United States by this section, but by the judiciary law of 1789. Had the expressions before quoted been repeated in relation to the suit of the surety, would it have conferred jurisdiction upon the district or circuit court? I think it would not. They are not intended, or used, for the purpose of conferring jurisdiction upon any court, but merely to direct that the suit shall be brought in the proper court which then had cognizance thereof. But the district court had not then cognizance of this suit, it being between citizens of the same state. In every instance where congress has conferred jurisdiction upon a federal court, in cases arising under a law of the United States, it has been by terms clearly pointing out the particular court which was to exercise it. I refer particularly to the patent act, the copyright act, and the act incorporating the Bank of the United States. My opinion, therefore, as to the construction of this section is, that the term “advantage” is used as synonymous with “preference and priority,” which, in reference to the subject of insolvency in the principal, are clearly synonymous. A preference of payment is nothing more or less than a right to be first paid, and a right of priority is a preference of payment before the other creditors of the insolvent; and such a preference or priority is an advantage enjoyed by the United States, and is by this section conferred on the surety. Had the legislature intended to bestow upon the surety all the advantages secured and reserved to the United States, it is not likely that such an intention would have been expressed by the terms “the like advantage, preference or priority.” But if I should be wrong in this interpretation of the section, I feel no hesitation in deciding that the present action cannot be main tained, either in a federal or state court. It is exposed to at least one fatal objection, which is, that it is an action by the United States to recover against the assignees of the principal in a bond, a debt which, it is admitted, had been paid by another obligor in the same bond. This would have been no objection to the suit of that other obligor upon the bond, because the sixty-fifth section of the above act authorizes him to maintain such a suit for the recovery and receipt of the money so paid to the United States, out of the estate and effects of the principal. Nor is the question altered by the motion which was made in the district court “to mark the suit to the use of the surety in the duty bond,” because I hold it to be perfectly clear, that where one obligor, though a surety. pays the bond, he cannot maintain an action upon the same bond in the name of the obligee against his co-obligor; nor can he maintain an action for money laid out and advanced for ■ his principal, to recover the money so paid, except in his own name; for to him alone the debt is due. To be sure, the assignee of a chose in action, not assignable at law. must bring his suit in the name of the assignor, because the debt, though in equity due to the assignee, is, in the view of the law, due to the assignor, and the as-signee, until the courts of law assumed an equitable jurisdiction over the case, for the purpose of protecting his interest, was obliged to resort to a court of equity. But bathe case now under consideration, the legal remedy, either on the bond or for money paid, laid out and expended for the insolvent, is in the surety, and the United States, the nominal plaintiffs, have no right, either legal or equitable, to maintain this suit. The second question stated for the opinion of the court, is not very intelligible to my mind, as I do not well understand what is meant by an equitable defence to a legal action, which this unquestionably is. If the particular defence which was intended to be set up had been stated, the solution of the question might have been attended with less difficulty. In its present shape it has too much the appearance of an abstract question to justify the court in attempting to answer it. At all events, an answer to it is rendered unnecessary by the decision upon the first point. The judgment of the district court must be affirmed with costs.

But THE COURT (THRUSTON, Circuit Judge, absent) said that he had no right to restrain her from speaking; and his language showed an intent to strike upon her violation of a condition which he had no right to impose. Suppose a stranger comes to my house armed, and raises his club over my head, within striking distance, and threatens to beat me unless I will go out of and abandon my house, surely that would be an assault. So if a highwayman puts a pistol to my breast, and threatens to shoot me unless I give him my money, this would be evidence of an assault, and would be charged as such in the indictment. Verdict, “Guilty.” Pined ten dollars.

CHOATE, District Judge. This is a suit brought to recover a tax alleged to have ac crued against the defendant, a railroad corporation, in the year 1864, under the act of June 30, 1864 (13 Stat. 275). The defendant pleads to the jurisdiction that the tax, if any is due, accrued in the district of Connecticut, and that the defendant is not a New York corporation, but incorporated under the laws of Connecticut, and not a resident of this district. To this plea the plaintiff demurs. The question raised is whether a suit for this tax can be brought in a district, other than that where the defendant resides or where the tax accrues, or whether it can also be brought in the district where the defendant shall be personally served. It is conceded by the learned counsel for the defendant that under the judiciary act of 1789, c. 20, § 11,—Rev. St. § 739 [1 Stat. 73],—which prohibits the bringing of a civil suit against an inhabitant of the United States “in any other district than that of which he is an inhabitant, or in which he is found at the time of serving the writ,” a corporation may be sued out of its domicile, if found in another district; and the defendant does not contend that this defendant was not “found” within this district within the meaning of that section. The claim of the defendant is that by Rev. St. § 733, the plaintiff is restricted to the district -where the tax accrues and the district where the defendant resides for the purpose of this action. That section is as follows: “Taxes accruing under any law providing internal revenue, may be sued for and recovered either in the district where the liability for such tax occurs, or in the district where the delinquent resides.” In the absence of any statute regulation as to the courts where such a suit is to be brought, no doubt the United States could sue in any district where the defendant could be found. And it is argued on behalf of the plaintiff that the language of section 733 is permissive, merely, and not restrictive, the words being “may be sued for,” etc., and that the section adds another district in which the suit may be brought, namely, that in which the tax accrues, to those in which under the general terms of section 739 it could otherwise alone be brought, namely, those in which the defendant resides or can be found. Section 733 is a re-enactment of part of the 41st section of the act of June 30. 1864 (13 Stat. 239), as amended by the 9th section of the act of July 13, 1806 (14 Stat. 111). The act of 1864 (chapter 173, § 41) provided as follows: "That it shall be the duty of the collectors aforesaid or their deputies, in their respective districts, and they are hereby authorized, to collect all the duties and taxes imposed by this act, however the same may be designated, and to prosecute for the recovery of any sum or sums which may be forfeited by virtue of this act, and ail fines, penalties and forfeitures which may be incurred or imposed by virtue of this act, shall be sued for and recovered in the name of the United States in any proper form of action, or I by any appropriate form of proceeding, qui tarn, or otherwise, before any circuit or district court of the United States, for the district within which said fine, penalty or forfeiture may have been incurred, or before any othercourtof competent jurisdiction.” It will be observed that under this statute no special provision was made as to the district in which suits for taxes should be brought; such suits were therefore liable to be brought and could be only brought in the district where the defendant resided or in the district where he was found, while suits for fines might be brought in the district where the fine was incurred, and also “in any other court of competent jurisdiction,” which included certainly a circuit or district court of the United States for the district where the offender might be found. Section 41 of the act of 1864 was amended by the act of 18GG so as to read as follows (page 111): “That it shall be the duty of the collectors aforesaid, or their deputies, in their respective districts, and they are hereby authorized to collect all the taxes imposed by law, however the same may be designated, and to prosecute for the recovery of any sum or sums which may be forfeited by law; and all fines, penalties and forfeitures which may be incurred or imposed by law shall be sued for and recovered in the name of the United States in any proper form of action or by any appropriate form of proceeding, qui tarn or otherwise, before any circuit or district court of the United States for the district within which said fine, penalty or forfeiture may have been incurred, or before any other court of competent jurisdiction. And taxes may be sued for and recovered in the name of the United States in any proper form of action before any circuit or district court of the United States for the district within which the liability to such tax may have been or shall be incurred, or where the party from whom such tax is due may reside at the time of the commencement of said action.” A provision as to suits for fines, penalties and forfeitures differing only in some unimportant respects was also made by the 179th section of the act of 1SG4 (13 Stat. 303), in connection with a provision imposing on collectors the duty of collecting such fines, etc. And this also was verbally amended by the act of I860 (14 Stat. 145), but not in any particular varying its terms in respect to the courts having jurisdiction of suits and proceedings therefor. A comparison of these two statutes shows, I think, that the purpose of amending me statute was to restrict the plaintiff in a suit for taxes to the two- districts, that in which the tax accrues and that in which the defendant resides. Some change in the mode of collecting fines or taxes was intended by this amendment. In the original act the collectors are required to collect taxes, but no court was specified to which they are to resort. In the amending act, fines are still to be sued for in the circuit or district court of the United States, for the district where the fine is incurred or in any other court of competent jurisdiction, the same as before. The change made is, by adding the provision as to taxes, that suits may be brought in the district where the liability for the tax is incurred or in the district where the defendant resides. Now if the purpose of this amendment had been merely to allow the United States to sue for a tax in the districtwhere the liability was incurred, that purpose would have been well expressed by simply providing that the suit may be brought in that district. The language being in form permissive only, the United States would seem not, by that language, to be restricted from suing in any other district in which, by the existing law, it could already sue, namely, the district where the defendant resides or the district where he may be found; and if it was the purpose of this language, as claimed on the part of the United States, to confer a new right as to the place of suit, the words “or where the party. etc., resides,” are wholly unnecessary and unmeaning. They are unnecessary because the right to sue thus conferred already existed; they are unmeaning because the existing alternative right to sue thus referred to, if it be supposed that it was intended to express by these words the existing alternative right, is only half expressed by the language used. The words are not apt nor broad enough to be supposed to have been used ex majore cautela to guard against the possible construction that the liberty to sue in the district where the tax accrues was intended to be exclusive, and the only place in which suit could be brought, and so that these added words were intended to save existing rights to sue. This is obviously not the intention, because the words used plainly express a distinct part and only a part of the existing right as to the place in which the suit may be brought, that right- as then existing embracing, besides the district where defendant resides, the district also where he may be found. But words thus introduced into a statute, particularly by way of amendment, must be held to have been deliberately used and to have some force and meaning; and the only construction that can be put on these words, as it seems to me, to give them any sensible meaning or application, is that they are restrictive, limiting the right to sue to the district where the defendant resides, and the district where the tax accrues,—that they were intended to regulate the whole matter of the place of such suits. It seems impossible to give the words any proper force or to account for their being introduced into the statute on any other theory. Further support is given to this view by the juxtaposition of the two provisions, one as to fines, the other as to taxes. In the one the language used in the alternative to the new right given, is “any other court of competent jurisdiction,” which includes the districtwhere the offender can be found. Immediately follows the provision as to taxes. And different language is used for a similar alternative provision. It must be assumed that this difference of language was intended, and that the purpose had in view in using the expression employed as to suits for taxes would not have been effected by using the same language adopted as to imes. Such marked differences in language used for a similar purpose in the same act and the same section, cannot be held to have been accidental. Moreover, it may well have been thought that the privilege- given to the government to sue for a tax in the district where the tax accrues, and in the district where the defendant resides, afforded ample and convenient means of collecting the tax, and that it was unnecessary to preserve the right to sue, also, in the district where the defendant may be found. There seems to be nothing unreasonable in this arrangement as to suits for taxes, while as to suits for fines, penalties and forfeitures it has been thought wise to preserve to the government all existing rights to sue, while specially granting the new right to sue where the fine, penalty or forfeiture was incurred. These provisions of the act of 1S66 were embodied in sections 732 and 733 of the Revised Statutes with a change of form, but hardly of substance, as to suits for fines. Section 732 provides that suits for fines, etc., may be brought in the district where they accrue or in the district where the offender is found. And by section 733, as above cited, suits for taxes may be brought in the district where the tax accrues, or in that where the defendant resides. Thus the revisers appear to have indicated their understanding that the distinction in the act of 1SG(! was an intended difference in the two cases, by preserving the same distinction of language in the revision. Certainly this re-enactment detracts nothing from the reasons in favor of holding that the words were used in a restrictive sense in the act of 186G. And the presumption is against any change being intended by the substantial re-enactment of these two clauses taken from that section of the act of 1SG6, in these two sections of the Revised Statutes. Demurrer overruled and judgment for defendant.

Opinion for the court filed by Chief Judge MAYER. Circuit Judge PLAGER concurs in the result. MAYER, Chief Judge. AG der Dillinger Huttenwerke (“Dillinger”) and the United States appeal the judgment of the Court of International Trade, Court No. 93-09-00568, British Steel plc v. United States, 936 F.Supp. 1053 (Ct. Int’l Trade 1996) (“British Steel IV”), affirming the final determination of the United States Department of Commerce (“Commerce”) in Certain Steel Products from Germany, 58 Fed.Reg. 37,-315 (Dep’t Comm. July 9, 1993) (“Final Steel Products ”), as modified on remand in Final Results of Redetermination Pursuant to Court Remand on Certain Factual Issues Regarding the Privatization in Germany (May 22, 1996) (“Redetermination II”) and Final Results of Redetermi-nation Pursuant to Court Remand on General Issues of Privatization (Jul. 17, 1995) (“Redetermination I”). They also appeal interim decisions, British Steel plc v. United States, 924 F.Supp. 139 (Ct. Int’l Trade 1996) (“British Steel II ”), and British Steel plc v. United States, 879 F.Supp. 1254 (Ct. Int’l Trade 1995) (“British Steel I”). We affirm in part, reverse in part, and remand. Background Between 1978 and 1985, Saarstahl Volk-lingen GmbH (“SVK”) received subsidies from the governments of Germany (“German/’) and Saarland (“Saarland”), all of which contained a repayment obligation, known as RZV, which arose if SVK turned a profit. During this period, Arbed Luxembourg owned SVK, but, in 1985, considered closing operations. As a result of SVK’s importance to the region, Saarland and Germany sought another owner and, in 1986, became majority owners to facilitate this end. See British Steel IV, 936 F.Supp. at 1059; Certain Hot Rolled Lead and Bismuth Carbon Steel Prods, from Germany, 58 Fed.Reg. 6233, 6234 (Dep’t Comm. Jan. 27, 1993) (final affirm, de-term.) (“Final Lead Bar ”). Usinor-Saci-lor, which owned Dillinger, expressed interest in acquiring SVK, but only if its debt burden were alleviated. In 1989, Saarland brokered a deal to privatize SVK in which it and Germany forgave the RZVs and several private banks forgave portions of their loans. The private banks conditioned their forgiveness on the governments’ abandonment of the RZVs and Saarland’s promise to assure the future liquidity of the new entity. See British Steel IV, 936 F.Supp. at 1059; Final Lead Bar, 58 Fed.Reg. at 6234-35. SVK became Dillinger Hutte Saarstahl AG (“DHS”), which could issue stock, and Usi-nor-Sacilor transferred Dillinger to DHS in return for an ownership interest. DHS then transferred the lead bar assets, except for SVK’s tax loss carryforward, to a newly formed subsidiary, Saarstahl AG (“Saarstahl”). Dillinger became a second subsidiary of DHS and retained its steel plate assets. See British Steel IV, 936 F.Supp. at 1059-60; Redetermination II at 5-8. In 1992, Commerce initiated separate countervailing duty investigations of Dillinger and Saarstahl. See Final Steel Products, 58 Fed.Reg. at 37,315 (Dillinger); Final Lead Bar, 58 Fed.Reg. at 6233 (Saarstahl). On July 9, 1993, Commerce published its methodology for measuring subsidies that survive a privatization transaction. See General Issues Appendix, 58 Fed.Reg. 37,225, 37,259-73 (Dep’t Comm. July 9, 1993). Commerce maintained that subsidies travel to a private or privatized company unless they are repaid, and announced methodologies for determining the amount of repayment. See id. Following these methodologies, Commerce determined that the governments’ RZV forgiveness was a subsidy benefiting SVK, which passed through to DHS during privatization to the extent the purchase price did not repay it. See Final Steel Products, 58 Fed.Reg. at 37,320; see also General Issues Appendix, 58 Fed.Reg. at 37,-271-72. Commerce treated the amount of the debt forgiveness as a non-recurring grant and calculated the benefit stream according to the grant methodologies of the General Issues Appendix, 58 Fed.Reg. at 37,226-31. See Final Lead Bar, 58 Fed.Reg. at 6234; see also Final Steel Products, 58 Fed.Reg. at 37,320. It valued this forgiveness at the amount of the outstanding debt, i.e., the RZVs’ “face-value,” instead of their economic value, which Dillinger maintained was zero. See Final Steel Products, 58 Fed.Reg. at 37,320; Final Lead Bar, 58 Fed.Reg. at 6234. In addition to this subsidy, Commerce determined that the debt forgiveness by private banks constituted a eountervailable subsidy because “it was required by the governments as part of a government-led debt reduction package, and because the two governments guaranteed the future liquidity of [the company].” Final Steel Products, 58 Fed.Reg. at 37,320; see also Final Lead Bar, 58 Fed.Reg. at 6235. Commerce assessed countervailing duties against Dillinger’s products to offset the subsidies attributable to DHS because Dillinger was a DHS subsidiary. See General Issues Appendix, 58 Fed.Reg. at 37,271-72. In June 1994, in connection with the appeal of the determination made in the Saarstahl investigation, the Court of International Trade held that Commerce’s privatization methodology was unlawful and developed a new one. See Saarstahl AG v. United States, 858 F.Supp. 187, 192-94 (Ct. Int’l Trade 1994) (“Saarstahl /”), rev’d, 78 F.3d 1539 (Fed.Cir.1996). The court then remanded the Dillinger case for Commerce to apply this new methodology. See British Steel I, 879 F.Supp. at 1287. On remand, Commerce found that none of the subsidies were repaid because DHS was for all intents and purposes the same entity as SVK. See Redetermination I at 20-24. Commerce did not revisit the other issues. Thereafter, we issued Saarstahl AG v. United States, 78 F.3d 1539 (Fed.Cir.1996) (“Saarstahl II ”). In response, the Court of International Trade again remanded the Dillinger case to Commerce, maintaining, based on British Steel II, 924 F.Supp. at 155-58, that our decision did not affect the viability of its new methodology. On remand, Commerce continued to find that the debt forgiveness by Germany, Saar-land, and the private banks constituted a eountervailable subsidy because it “was specific to an enterprise and bestowed a benefit.” Redetermination II at 9. It again found that DHS was for all intents and purposes the same entity as SVK and that none of the subsidies were repaid. See id. at 10-13. It also explained that because DHS was a holding company and the subsidies were not tied to any specific product, it could countervail the products of DHS’s subsidiaries. Therefore, Commerce imposed countervailing duties on Dillinger’s products. See id. at 14-18. The Court of International Trade sustained Commerce’s application of the court’s privatization methodology. See British Steel IV, 936 F.Supp. at 1067-68. The court also found that substantial evidence supports Commerce’s determination that the abandonment of the RZVs in 1989 was a eountervailable event in the form of debt forgiveness because the RZVs bore a repayment obligation, which is the hallmark of debt. See id. at 1069-70. The court sustained, as a reasonable interpretation of the proposed regulation, Commerce’s valuation of the subsidy bestowed by this debt forgiveness, noting that “the unencumbering of future profits was a benefit equal to the amount of the liability that was extinguished,” which is the RZVs’ face-value. Id. at 1070. Finally, the court sustained Commerce’s characterization of the private banks’ debt forgiveness as a subsidy bestowed through government action because it is “based upon a permissible construction of the statute.” Id. at 1071. The United States and Dillinger appeal. Discussion “In reviewing a decision by the Court of International Trade to affirm the agency’s final determination, we apply anew the court’s statutorily-mandated standard of review to the administrative review.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed.Cir.1998) (internal quotations omitted). Therefore, we must overturn Redetermination II if it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). “When Congress’ intent is unclear, courts must sustain an agency’s interpretation of a statute if it falls within the range of permissible construction. To sustain an agency’s application of a statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Inland Steel Bar Co. v. United States, 155 F.3d 1370, 1374 (Fed.Cir.1998) (internal quotations and citations omitted). “[Njeither the statute nor the legislative history offers guidance to Commerce in determining the amount of a prior subsidy, if any, that is repaid through the purchase price of a privatization.” British Steel PLC v. United States, 127 F.3d 1471, 1475 (Fed.Cir.1997) (“British Steel V”). We have thrice held, however, that “with respect to this issue, Commerce’s interpretation of the countervailing duty statute— namely, the repayment methodology in the General Issues Appendix, 58 Fed.Reg. at 37,259-73 — is reasonable.” Inland Steel, 155 F.3d at 1374; see also British Steel V, 127 F.3d at 1475; Saarstahl II, 78 F.3d at 1544. “In British Steel I, the Court of International Trade did not give proper deference to Commerce’s repayment methodology ... [and] imposed its own interpretation of the statute [on Commerce] by formulating an alternative test.” British Steel V, 127 F.3d at 1475. As a result, it erred in sustaining Commerce’s application of this alternative test in British Steel IV. Therefore, we must reverse the Court of International Trade’s judgment and remand the case so that the court may determine whether Commerce accurately applied its repayment methodology in Final Steel Products. Dillinger has raised other challenges to the Court of International Trade’s decision to sustain Commerce’s determination that (1) the private banks’ debt forgiveness bestowed a subsidy, (2) the RZVs were interest-free, contingent liability loans, the forgiveness of which bestowed a subsidy equaling their face-value, and (3) both these subsidies were untied. We have considered the arguments of all the parties and affirm on the basis of the Court of International Trade’s opinion. Conclusion Accordingly, the judgment of the Court of International Trade is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. PLAGER, Circuit Judge, concurs in the result.

MORRIS S. ARNOLD, Circuit Judge. Roosevelt Sims, III, was convicted and sentenced in 1993 on charges of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). He was sentenced to 324 months imprisonment. In 1998, in response to a motion under 28 U.S.C. § 2255, the district court dismissed Mr. Sims’s § 924(c) conviction in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed,2d 472 (1995), vacated Mr. Sims’s original sentence, and resentenced him to 292 months imprisonment. Mr. Sims appeals the resentencing, and we affirm the judgment of the district court. I. At the resentencing hearing, Mr. Sims asked the district court to consider a downward departure from the recommended sentencing range based on the extraordinary efforts at rehabilitation that he asserts he has made in prison since his original sentencing five years ago. The district court refused Mr. Sims’s request because it believed that it lacked the authority to consider post-sentencing rehabilitation as a basis for downward departure. On appeal, Mr. Sims contends that the district court erred in refusing his request. We have held that a defendant's post-offense rehabilitative conduct-that is, conduct from arrest up to the time of the sentencing-can, if sufficiently atypical, furnish an appropriate basis for downward departure. United States v. Kapitzke, 180 F.3d 820, 822-24 (8th Cir.1997). Mr. Sims now asks us to extend this holding to permit downward departures based on post-sentencing rehabilitative conduct, as well-that is, rehabilitation that takes place behind the prison walls during the period between the original sentencing and a resentencing. In support of his position, Mr. Sims directs our attention to cases from other circuits that hold that post-sentencing re-habffitation can indeed provide an appropriate basis for a downward departure at a resentencing. See United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir.1998) (per curiam); United States v. Rhodes, 145 F.3d 1375, 1377-82 (D.C.Cir.1998); and United States v. Core, 125 F.3d 74, 76-79 (2d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 735, 139 L.Ed.2d 672 (1998). See also United States v. Brock, 108 F.3d 31, 33-35 (4th Cir.1997). Relying on the Supreme Court’s decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), these cases reason that post-sentencing rehabilitation may support a departure because consideration of this factor is not specifically proscribed by the Sentencing Commission. We respectfully disagree with the other appellate courts that have examined this issue. We do not think that Koon is controlling here. While there is language in Koon that can be taken to support Mr. Sims’s argument, its context disqualifies it for application to the present situation. Cases cannot be read like statutes. Koon addressed the matters that a district court may properly consider in departing from the guidelines at an. original sentencing. The Court never addressed the question of whether post-sentencing events might support a departure at a resentencing because that matter was not before it. We therefore do not think that Koon should be read to require district courts to consider a defendant’s post-sentencing rehabilitative conduct as a basis for downward departure at resentencing. We believe, moreover, that a rule permitting a downward departure based on post-sentencing rehabilitation makes little legal sense. First, such a rule, in our opinion, contributes to the very disparity in sentencing that the Sentencing Reform Act of 1984 and its subsequent amendments, see 18 U.S.C. §§ 8551-3586, seek to prevent. It creates a situation in which a few lucky defendants, simply because of a legal error in their original sentencing, receive a windfall in the form of a reduced sentence for good behavior in prison. Other defendants, with identical, or even superior prison records, would be required to serve the entirety of their original sentence with only the limited good-time credits available under 18 U.S.C. § 3624. Permitting a downward departure based on post-sentencing rehabilitation thus seriously undermines the Sentencing Reform Act’s goal of “avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar’ criminal conduct,” see 28 U.S.C. § 991(b)(1)(B). Even if this were not the avowed purpose of the Sentencing Reform Act, we would be more than a little reluctant to embrace a rule that depended so heavily on a fortuity for its operation. In fact, it may well be that the Sentencing Reform Act precludes a sentencing court from considering post-conviction rehabilitation at resentencing. See United States v. Rhodes, 145 F.3d at 1384 (Silber-man, J., dissenting). In the Sentencing Reform Act, Congress abolished the parole system and granted statutory authority to the Bureau of Prisons to award limited good-time credits to prisoners who show “exemplary compliance with institutional disciplinary regulations.” See 18 U.S.C. § 3624(b)(1). In order to determine whether a defendant is eligible for a downward departure for exemplary conduct in prison, a district court must make the very same determination that Congress chose to place within the authority of the Bureau of Prisons. Permitting a downward departure at a resentencing based on post-sentencing rehabilitation thus may interfere with the Bureau of Prisons’s statutory power to award good-time credits to prisoners. See United States v. Rhodes, 145 F.3d at 1384 (Silberman, J., dissenting). Some of our prior decisions set forth what we believe is a sensible rule for determining on what matters a district court may rely in departing from the guidelines at a resentencing. "`Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resen-tencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.'" United States v. Behler, 100 F.3d 632, 635 (8th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 152, 139 L.Ed.2d 98 (1997), quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992). Therefore, a defendant’s rehabilitative efforts up to the time of the original sentencing can and should be considered by the district court at a resentencing. See United States v. Kapitzke, 130 F.3d at 823-24. Rehabilitation that takes place behind the prison walls after the original sentencing, however, is not relevant, since the sentencing court obviously could not have considered it at the time of the original sentencing. We conclude that because a defendant’s post-sentencing rehabilitative conduct cannot be an appropriate basis for a downward departure at a resentencing of that defendant, the district court did not err in refusing to consider Mr. Sims’s request for such a departure. II. Mr. Sims also appeals from the district court's refusal to grant a continuance so that his newly-retained counsel could prepare for and be involved in the resen-tencing hearing. After carefully reviewing the transcript of the resentencing hearing, we are satisfied that Mr. Sims was well represented by his appointed counsel, who raised all of the issues that his retained counsel raises on appeal. We conclude therefore that any error in refusing Mr. Sims's request was harmless. For the foregoing reasons, we affirm the judgment of the district court. . The Honorable Jean C. Hamilton, Chief United States District Judge for the Eastern District of Missouri.

PER CURIAM: This is an action brought by Janice Murray against Playmaker Services, LLC (Playmaker), Joel Joel “Brill” Maxwell, and Way Cool Playgrounds, Inc. (Way Cool) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) and Florida law. The district court.granted the defendants’ motion for summary judgment on September 25, 2007, and entered a final judgment pursuant to that order on October 28, 2007. On November 19, 2007, the defendants moved the court to impose sanctions against Murray, pursuant to Fla. Stat. § 448.08, and against her counsel, Cathleen Scott, P.A. and Cathleen Scott (collectively “Scott”), pursuant to 28 U.S.C. § 1927. In an order entered on April 23, 2008, the court denied the motion as it applied to Murray, but granted the motion as it applied to her counsel and ordered counsel to pay the defendants $23,375 in attorney’s fees. Scott now appeals the court’s imposition of the § 1927 sanctions; the defendants cross-appeal the court’s denial of sanctions against Murray. We consider first Scott’s appeal, then the defendants’ cross-appeal. Scotts argues that the court abused its discretion in imposing sanctions under § 1927 without holding an evidentiary hearing. In the district court, Scott did not object to the court’s failure to hold an evidentiary hearing; rather, she raises the issue for the first time on appeal. We do not consider on appeal issues not raised in the district court. See e.g., BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1140 (11th Cir.2007). The issue before us, then, is whether the district court abused its discretion in holding Scott amenable to sanction under § 1927. Schwartz v. Millon Air, Inc., 341 F.3d 1220 (11th Cir.2003). We find no abuse of discretion. The record fully supports the reasons the court articulated in its April 23, 2008 order as the bases for the action it took, and therefore affirm its decision. We likewise find no abuse of discretion in the court’s decision denying sanctions against Murray. Under § 448.08, “[t]he court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.” Fla. Stat. § 448.08. “Section 448.08 is clear and unambiguous on its face: there must be ‘an action for back wages’ to implicate the statutory entitle ment.” Dade County v. Pena, 664 So.2d 959 (Fla.1995) (citation omitted). Unpaid commissions are considered wages under § 448.08. Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 367 (Fla.Dist.Ct.App.1984). “[B]y virtue of [a] summary judgment [order] entered adverse to [an employee] on his claim for unpaid wages or salary, [the employer] is [the] prevailing party under [Fla. Stat. § 448.08], and is, therefore, entitled to attorney’s fees”. Sentinel Enters., Inc. v. Stankiewicz, 545 So.2d 288, 289 (Fla.Dist.Ct.App.1989). However, “[Fla. Stat. § ] 448.08 attorney’s fees do not apply to [claims brought as] independent contractors.” Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1102-03 (Fla.Dist.Ct.App.2006); see also Caldwell-Davis Constr. Corp. v. Hoover, 461 So.2d 973, 973 (Fla.Dist.Ct.App.1984) (holding that Fla. Stat. § 448.08 only applies to actions brought by an “employee” to recover “unpaid wages”). As the district court properly found, Murray was an independent contractor. AFFIRMED. . Section 1927 provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. . The court held that “plaintiff's counsel ... responsible for defendants’ attorney’s fees incurred after the conclusion of discovery, the point at which [counsel] should have been aware that the suit was meritless.” Order at 6.

DYK, Circuit Judge. Petitioner Eloy J. Hernandez (“Hernandez”) appeals from a final decision of the Merit Systems Protection Board (“MSPB” or “Board”).' The Board denied Hernandez’s petition for enforcement of a settlement agreement with the Department of Defense (“agency”), rejecting Hernandez’s claims that the agreement had been breached. Because we hold that the agency breached the settlement agreement, we reverse and remand. BACKGROUND Hernandez worked for the Defense Logistics Agency .as a Material Handling Equipment Operator in San Antonio, Texas. In February 2006, Hernandez was informed that he would be separated from the agency pursuant to a reduction-in-force (“RIF”) action, effective June 30, 2006. After his separation, Hernandez was not placed in the agency’s Priority Placement Program (“PPP”), a program that matches participants with agency job opportunities. Hernandez appealed his separation to the MSPB, and in February 2007 Hernandez and the agency entered into a settlement agreement. The settlement agreement focused on Hernandez’s enrollment in the agency’s PPP. The settlement agreement stated that Hernandez would be “re-eonsidered for placement in the PPP for a period of one year beginning 7 calendar days after the last signature on this Agreement.” Pet’r App. 57. The last signature date on the agreement was February 17, 2007. Pet’r App. 58. Seven days thereafter would be February 24, 2007. For convenience we refer to this date as the effective date of the agreement. The agency subsequently enrolled Hernandez in the PPP only from February 20, 2007, to July 2, 2007, a period of about four and one-half months, representing approximately the period between the effective date of the settlement agreement and the one-year anniversary of Hernandez’s separation. One June 28, 2007, Hernandez filed a petition for enforcement of the settlement agreement, asserting that the agency had not, as required, enrolled him in the PPP for a period of one year after the effective date of the agreement. The agency provided an affidavit from an agency human resources specialist stating that Hernandez “received all appropriate consideration for job placement for 12 months following his separation on June 30, 2006,” and that enrollment in the PPP beyond the twelvemonth period following separation on June 30, 2006, “was not possible.” Pet’r App. 70. The administrative judge denied Hernandez’s petition for enforcement, finding that the agreement did not require Hernandez’s enrollment for the one-year period after the effective date of the agreement, and finding that the agency had complied with the settlement agreement by “reviewing] relevant vacancies during the period from June 30, 2006, to February 20, 2007, to determine whether the appellant missed consideration for any of those vacancies,” and then by registering Hernandez in the PPP from February 20, 2007, to July 2, 2007. Hernandez v. Dep’t of Defense, No. DA-3443-06-0531-C-1, at 5 (M.S.P.B. Sept. 11, 2007). On April 11, 2008, the Board denied Hernandez’s petition for review of the administrative judge’s decision, and the initial decision became the final decision of the Board. Hernandez v. Dep’t of Defense, 108 M.S.P.R. 604 (2008). Hernandez timely petitioned our court for review, and we have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c); Lary v. U.S. Postal Serv., 472 F.3d 1363, 1366-67 (Fed.Cir.2006). A settlement agreement is a contract, Tiburzi v. Dep’t of Justice, 269 F.3d 1346, 1351 (Fed.Cir.2001), and we review the Board’s construction of a settlement agreement without deference, Fomby-Denson v. Dep’t of the Army, 247 F.3d 1366, 1371 (Fed.Cir.2001). Whether a breach of a contract is material is a mixed question of law and fact, but “[wjhere, as here, the facts are undisputed, the determination of whether there has been material non-compliance with the terms of a contract ... necessarily reduces to a question of law.” Lary, 472 F.3d at 1367 (quoting Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1072 (Fed. Cir.2003)). The sole issue is the right of Hernandez to an additional seven and one-half months in the PPP under the settlement agreement. The settlement agreement provided: The appellant will be re-considered for placement in the PPP for a period of one year beginning 7 calendar days after the last signature on this Agreement. One year is the regulatorily-prescribed term of enrollment per Para. SC1800.S.7 of DOD Instruction 1400.25-M. Pet’r App. 57. The regulation cited in this provision states that “[eligible employees ... are mandatory program registrants during the RIF notice period and for one year from separation.” Department of Defense Civilian Personnel Manual, DoD 1400.25-M, subchapter 1800.8.7 (Dec. 1996). The agency concedes that as part of the settlement agreement, the agency could provide enrollment in the PPP for a period beyond the initial twelve months following Hernandez’s separation. See Oral Arg. 25:50-26:32, available at http:// oralarguments.cafc.uscourts.gov/mp3/2008-3270.mp3. (“The [agency] instruction is not an absolute limitation ... generally a displaced employee is going to be eligible for enrollment for one year from separation and there are exceptions—there are procedures in there for exceptions to the policy.”). In other words, the agency concedes that the affidavit statement that enrollment in the PPP for the one-year period following the effective date of the agreement “was not possible” was inaccurate. The agency’s affidavit also does not make harmless any error in the timing of Hernandez’s PPP enrollment, because the affidavit stated that no suitable jobs were available during the period between Hernandez’s separation and the signing of the settlement agreement, and did not address the availability of PPP jobs during the one-year period after the effective date of the agreement (though it did state that Hernandez was registered in the PPP for four and one-half months of that period). The question is whether the settlement agreement required Hernandez’s enrollment for one year after the effective date of the settlement agreement. The agency contends that it agreed only that it would “reconsider” Hernandez’s enrollment in the PPP, in the sense that if the government decided not to include Hernandez in the PPP at all, Hernandez would have no right to PPP enrollment under the agreement. The word “reconsider” in the settlement agreement is ambiguous. To “reconsider” is “to think over, discuss, or debate (as a plan, decision) especially] with a view to changing or reversing.” Webster’s Third New International Dictionary 1897 (Merriam-Webster 2002); see also Webster’s Unabridged Dictionary 1612 (Random House 2d ed. 1998) (defining “reconsider” as “to consider again, esp[ecially] with a ■view to change of decision or action”). In the judicial context, reconsideration frequently means action that changes a result. Thus to “reconsider” a result could well mean either that the result would be reviewed, or that the result would be changed. The most natural meaning of “reconsider” here is that Hernandez’s enrollment in the PPP would be changed so that he would be enrolled for twelve months following the effective date of the settlement agreement. Construction of contracts follows the “general rule of contract interpretation that terms of a contract should not be interpreted so as to render them ineffective or superfluous.” Abraham v. Rockwell Int’l Corp., 326 F.3d 1242, 1254 (Fed. Cir.2003); see also Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1288 (Fed. Cir.2008); Restatement (Second) of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.”). It is plain from the face of the agreement that in exchange for dismissing his appeal, the agency agreed to allow Hernandez to be enrolled in the PPP for a one-year period after the effective date of the agreement. As part of the settlement agreement, the agency agreed (a) that it would remove a reprimand from Hernandez’s record, (b) that “[bjeeause of the removal of the Decision of Reprimand, the appellant is now eligible to be re-considered for registration” in the PPP under the agency’s regulations, and (c) that Hernandez would be “re-considered for placement in the PPP for a period of one year beginning 7 calendar days after the last signature on this Agreement.” Pet’r App. 57. Hernandez received no other consideration under the agreement. Construing the settlement agreement as giving the agency the option not to enroll Hernandez in the PPP would come close to rendering the settlement agreement illusory. Such a construction is disfavored. See 5 Margaret N. Kniffin, Corbin on Contracts § 24.22 at 234-35 (rev. ed. 1998) (“When the words of the contract indicate that a party has promised to perform, such words should not be interpreted so as to make the promise illusory, even if the context may show an intent to leave performance subject to the party’s broad discretion.” (footnote omitted)). We thus construe the settlement agreement as requiring the agency to enroll Hernandez in the PPP program for twelve months after the effective date of the settlement agreement. Because the agency enrolled Hernandez in the PPP for only four and one-half months and not twelve months after the settlement agreement, we hold that the agency breached the settlement agreement. On remand, the MSPB should consider an appropriate remedy for this breach. Accordingly, we reverse and remand. COSTS No costs. . See Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d 756, 769-70 (1982) (en banc) (A contract must "ensure[ ] that each party necessarily will end up performing in a way that reflects some binding obligation,” and a contract in which a party had the option of not performing would be invalid because such an option would not be "sufficient for consideration if it alone had been bargained for.”); Restatement (Second) of Contracts § 77 cmt. a (1981) ("Words of promise which by their terms make performance entirely optional with the 'promisor' do not constitute a promise.”).

MEMORANDUM Oregon state prisoner Brent Hampton appeals from the district court’s judgment denying his habeas petition under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. Hampton contends that his trial counsel was ineffective for improperly advising him on his sentencing exposure after trial, resulting in the rejection of a plea offer. Hampton has not demonstrated that his counsel’s performance was deficient because the record does not reflect that a plea offer was extended. We conclude that the state court’s decision rejecting Hampton’s claim of ineffective assistance of counsel was not contrary to, and did not involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and that it was not based upon an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We deny Hampton’s motion to expand the certificate of appealability. See 9th Cir. R. 22—1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999) (per curiam). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

RADER, Circuit Judge. Signtech USA, Ltd. (Signtech) sued Vu-tek, Inc. (Vutek) for infringement of its U.S. Patent No. 5,376,957 (the ’957 patent) involving inkjet printers for printing large signs. Vutek counterclaimed for infringement of its U.S. Patent No. 4,914,522 (the ’522 patent). These claims were tried by consent before a United States magistrate judge in the United States District Court for the Western District of Texas. The magistrate denied Signtech’s claims for infringement of the ’957 patent. On Vutek’s counterclaim, Signtech stipulated to infringement of the ’522 patent if valid. The magistrate found the ’522 patent valid and, in addition, found Signtech’s infringement of the ’522 patent willful. Signtech and Vutek stipulated to basic damages of $140,000 which the magistrate trebled for willful infringement under 35 U.S.C. § 284. The magistrate awarded $420,000 in enhanced damages plus $28,818 in prejudgment interest and attorney fees. The judgment, however, added the $420,000 enhanced damages to the stipulated $140,000 basic damages award. The magistrate also entered an injunction prohibiting Signtech from “any further infringement of the ’522 patent.” Signtech appeals the finding of non-infringement of the ’957 patent, the amount of damages awarded for infringement of the ’522 patent, and the vagueness of the injunction. Because the magistrate correctly found that Vutek did not infringe the ’957 patent, this court affirms. However, because 35 U.S.C. § 284 (1994) allows a maximum damage award of three times the amount of the basic damage award, the $420,000 enhanced damages award for infringement of the ’522 patent must include the $140,000 basic damages award. Finally, because, based on this record, the terms of the permanent injunction do not violate the specificity requirements of Fed.R.Civ.P. 65(d), this court affirms. I. The ’957 patent discloses an ink jet printer with an improved ink sprayhead design. The improved sprayhead prints an image and its mirror image on opposite sides of a substrate. This dual-sided mirror image technique facilitates the printing of backlit signs and billboards. With ink applied to both sides of a substrate, backlit signs do not appear washed out when illuminated. The claimed ink sprayhead design features one pressurized air source to control ink delivery onto the substrate and a second low-volume, high pressure air source to continuously clean the ink nozzle during printing. The prior art ink sprayheads, including those of the ’522 patent, contain only a single, pulse-width modulated air source for delivery of the ink to the substrate and lack a second, high pressure air source for cleaning the nozzles. According to the ’957 patent, the second air source facilitates continuous printing of large signs without color variations or clogging of the nozzles. The ’957 patent states that the prior art (specifically the ’522 patent) “is incapable of producing an enlarged image having the desired color scheme” because it lacks this second, high pressure air source. Col. 2,11. 33-36. See also, col. 2, 11. 10-22. Both the dual-sided mirror image printing technique and the dual air source ink sprayhead are novel features of the ’957 patent. Claim 1, the only, independent claim in the ’957 patent, claims: 1. An apparatus for reproducing an image on a first side of a substrate and a mirror image on a second side of said substrate, comprising: a frame; means for generating control signals representative of said image; ink delivery means positioned on opposite sides of said substrate, said ink delivery means fluidly communicating with an ink source; means mounted on said frame for supporting said ink delivery means; means mounted on said frame for driving said ink delivery means relative to said substrate; and means, responsive to said control signals, for controlling said ink delivery means to produce said image on said first side of said substrate and said mirror image on said second side of said substrate. (emphasis added). As required by statute, the magistrate interpreted these means-plus-function elements by referring to the structure described in the patent specification for performing the recited functions. See 35 U.S.C. § 112, ¶ 6 (1994). Specifically, the magistrate limited “ink delivery means” to an ink sprayhead containing a “second, high pressure air source.” The magistrate primarily based this limitation on the background and summary of the invention sections of the ’957 patent which distinguished the invention from the prior art, including the ’522 patent. The ’957 patent describes its improvement over the prior art by emphasizing its use of two air sources - one for applying the ink and one for removing excess ink from the nozzles. In particular, the ’957 patent states explicitly that the ink delivery system of the ’522 patent is “incapable of producing an enlarged image having the desired color scheme” because of its lack of a second air source for cleaning the nozzles. Col. 2, 11. 33-36. The magistrate therefore concluded: By consistently describing its invention — in the Abstract, Background of Invention, Summary of Invention, and Detailed Description sections of the specifications — as one that solves the ink accumulation problem inherent in the prior art, the ink delivery means cannot be interpreted apart from the essential, cleaning, high-pressure air source. Vutek’s allegedly infringing printers use ink sprayheads identical to those embodied in the ’522 patent and therefore contain only a single, pulse-width modulated air source. Consequently, based on the foregoing interpretation, the magistrate determined that Vutek’s device did not literally infringe the ’957 patent because it lacked the second, high-pressure air source required by the “ink delivery means” of claim 1. Having found one element of the claim missing from the accused device, the magistrate could have concluded the literal infringement analysis. However, the magistrate proceeded to address the “means for generating control signals” and “means for controlling the ink delivery means.” Because, as set forth below, this court agrees with the magistrate’s finding concerning the lack of “ink delivery means” in the accused device, as required by claim 1 of the ’957 patent, this court need not address the other means-plus-function claim limitations. On Vutek’s counterclaim against Sign-tech for infringement of its ’522 patent, Signtech stipulated to infringement of the ’522 patent, if valid. Signtech also stipulated to basic damages of $140,000 as part of the Pretrial Order. The magistrate determined that the ’522 patent was valid and also found that Signtech had willfully infringed. The magistrate therefore trebled the damage award to $420,000 and added pre-judgment interest as well as costs and attorney fees. Those findings are not before this court on appeal. In its judgment, however, the magistrate’s wording apparently awarded $420,000 enhanced damages in addition to the basic $140,000 damage award, stating that Vutek “is entitled to a basic damage award of $140,000 for infringement of the ’522 patent, prejudgment interest ... plus enhanced damages of $420,000 for [Signtech’s] willful infringement.” The parties have resolved this issue by agreeing that the $420,000 enhanced damages should include the $140,000 basic damage award, in accordance with the statutory requirements of 35 U.S.C. § 284 as interpreted by this court’s case law. The magistrate also entered a permanent injunction against Signtech “for any further infringement of the ’522 patent.” Signtech complains that the terms of this injunction violate Fed.R.Civ.P. 65(d) which provides specificity requirements for injunctions. II. This court reviews the magistrate’s construction of the patent claims without deference. See Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1454-56, 46 USPQ2d 1169, 1172-75 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc. 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Although the standard of review for the issuance and scope of an injunction is abuse of discretion, see Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 772, 28 USPQ2d 1378, 1380 (Fed.Cir.1993), whether the terms of the injunction fulfill the mandates of Fed. R.Civ.P. 65(d) is a question of law that this court reviews de novo. See Additive Controls & Measurement Sys. Inc. v. Flowdata Inc., 986 F.2d 476, 479-80, 25 USPQ2d 1798, 1801 (Fed.Cir.1993). The magistrate correctly interpreted the “ink delivery means” limitation of claim 1 of the ’957 patent. Title 35 of the United States Code, section 112, ¶ 6, states that [a]n element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. Typically, if the word “means” appears in a claim element in combination with a function, it is presumed to be a means-plus-function element to which § 112, ¶ 6 applies. See Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427, 44 USPQ2d 1103, 1109 (Fed.Cir.1997); Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583, 39 USPQ2d 1783, 1785 (Fed.Cir.1996). However, according to the language of the statute, § 112, ¶ 6 governs only claim elements that do not recite sufficient “structure, material, or acts in support [of the means or step-plus-function element].” 35 U.S.C. § 112, ¶ 6. See Sage, 126 F.3d at 1427. In this case, the claim element “ink delivery means” uses the term “means” in association with a function, namely “ink delivery.” Although the phrase “means for” is not used, the phrase “ink delivery means” is equivalent to the phrase “means for ink delivery,” because “ink delivery” is purely functional language. Furthermore, the claim does not recite disqualifying structure which would prevent application of § 112, ¶ 6. The magistrate therefore correctly applied § 112, ¶ 6 to the interpretation of this claim element. The “ink delivery means” of the preferred embodiment described in the specification expressly includes a second, high pressure air source. Although patentees are not necessarily limited to their preferred embodiment, see Serrano v. Telular Corp., 111 F.3d 1578, 1583, 42 USPQ2d 1538, 1542 (Fed.Cir.1997), interpretation of a means-plus-function element requires this court to consult the structure disclosed in the specification, which often, as in this case, describes little more than the preferred embodiment. Furthermore, although the magistrate looked to the structure of the preferred embodiment to help determine the scope of the “ink delivery means” element, the magistrate’s interpretation did not rely solely on that part of the specification. In particular, the magistrate also looked to the background and summary of the invention sections of the specification which describe the improvements of the ink delivery means of this invention over the prior art (including the accused ink delivery structure of Vu-tek’s ’522 patent). These sections of the specification, in addition to the disclosure of the preferred embodiment, led the magistrate to conclude that the “ink delivery means” of claim 1 was limited to an ink sprayhead having a second, high pressure air source. Specifically, the summary of the invention section of the ’957 patent states that the invention “is capable of producing a sectioned image on the substrate in one continuous print because its sprayhead design prevents ink jet clogging.” Col. 3, 11. 26-28. The specification attributes this unique capability to the invention’s use of two separate air sources — one pulse-width modulated air source for controlling delivery of the ink to the substrate and a second low-volume, high pressure air source for continuous cleaning of the ink jets. See Col. 3,11. 29-48. Additionally, in the background section, the specification of the ’957 patent explains that “the design of the ’522 patent is such that the ink accumulation is not prevented. The ’522 patent does not solve the ink accumulation problem because it'uses a single constant air pressure source.” Col. 2, 11. 12-15. The ’957 patent specification goes on to declare that “the system disclosed in the ’522 patent is incapable of producing an enlarged image having the desired color scheme.” - Col. 2, 11. 34-36. The accused ink delivery structure in Vutek’s printers is identical to the structure described in the ’522 patent — a structure explicitly distinguished by the ’957 patent. By choosing means-plus-function language to recite the “ink delivery means” claim element, the patentee necessarily restricted the scope of this element to the structure disclosed in the specification and its equivalents. Furthermore, by stating that the accused structure was “incapable” of achieving the desired results of the invention, the patentee expressly excluded it as an equivalent of the disclosed structure. Because § 112, ¶ 6 requires a court to interpret a means-plus-function claim according to the structure disclosed in the specification and its equivalents, the magistrate’s limitations on claim scope, with reference to the preferred embodiment and the explicit disavowal of prior art structure, correctly construed the invention. Hoping to rescue itself from this unfortunate predicament, Signtech points to a portion of the ’957 patent specification describing an alternative “ink delivery means” (shown in Fig. 8) which does not include the second, high pressure air source. See col. 10, 11. 30-47. This alternative embodiment is significantly different than Vutek’s accused device, however. Specifically, the ink sprayhead embodiment of Fig. 8 uses a single constant air flow and a pulse-width modulated ink flow to control delivery of the ink to the substrate. Vutek’s accused device, on the other hand, uses pulse-width modulated constant pressure air flow to control ink delivery. Signtech’s alternative structure is therefore so different from Vutek’s accused device that no reasonable jury could find it an equivalent structure. Thus, even if this court interpreted the “ink delivery means” element of claim 1 to include this alternative embodiment, it would not cover the accused structure. Signtech also points to the prosecution history in an effort to redeem its choice of claim language. Specifically, Signtech identifies a species restriction requirement in the parent application of the ’957 patent. During the prosecution of the application which became U.S. Patent No. 5,294,946 .(the ’946 patent) (parent application, to the ’957 patent), the patent examiner directed Signtech to select one set of claims from the following three possible inventions described in the application: A. A single side ink jet printer with two pressure flows to propel the ink and maintain cleanliness of the nozzles, claims 1-6, 27-32. B. A two side ink jet printer, claims 18-20. C. A two side ink jet printer with two pressure flows to propel the ink and maintain cleanliness of the nozzles, claims 7-17, 21-26. Signtech argues that the ’946 patent embodied the election of species C, while the ’957 patent was the result of a continuation application directed toward species B. Specifically, Signtech contends that it expressly included claim elements for the dual air sources in the ’946 patent application but intentionally removed them from the claims of the ’957 patent application. Therefore, Signtech argues, it is unfair to limit the claims of the ’957 patent to an invention elected for prosecution in an earlier application when the examiner explicitly required separation into separate applications. Although the prosecution history serves as a tool for claim interpretation, see In re Hayes Microcomputer Products, Inc. Patent Litigation, 982 F.2d 1527, 25 USPQ2d 1241 (Fed.Cir.1992), the statutory requirements of 35 U.S.C. § 112, ¶ 6 nonetheless apply to means-plus-function claims. The specification limits the meaning of means-plus-function claim elements; and in this case, the specification expressly limits the invention in the manner described previously. Thus, this decision, like many others emanating from this court, see Sage, 126 F.3d at 1425, emphasizes the importance of careful language choices in the specification and, particularly, in the claims. To avoid having its claims limited to exclude the embodiments disclaimed in the specification, the claim drafter for this patent might have chosen language to avoid application of 35 U.S.C. § 112, ¶ 6. Otherwise, assuming that no intervening statutory bars had arisen, Signtech could have filed a new application directed toward the species B invention without limitation in the specification or claims to the dual air sources. It did neither. Therefore, because of the statutory limitations governing the meaning of means-plus-function elements, courts must limit the scope of these claim elements to the corresponding structure disclosed in the specification and its equivalents. Signtech’s arguments are therefore unavailing and this court affirms the magistrate’s interpretation of the “ink delivery means.” Literal infringement of the ’957 patent requires that the accused device contain each of the claim elements and their recited limitations. See Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 793 F.2d 1279, 1282, 230 USPQ 45, 46 (Fed.Cir.1986). Because Vutek’s device lacks the required “ink delivery means” element, Signtech cannot show literal infringement of claim 1 of the ’957 patent. This court need not address, therefore, the magistrate’s interpretation of the “means for generating control signals” and “means for controlling the ink delivery means” elements. Signtech did not present any evidence regarding infringement under the doctrine of equivalents. This court therefore affirms the magistrate’s finding that Vutek did not infringe the ’957 patent. III. ' Title 35 of the United States Code, section 284 provides statutory authority for damage awards in patent cases: Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement. ... When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. After a finding of willful infringement, the district court enjoys discretion to choose whether to award enhanced damages to the claimant and in what amount. See Read Corp. v. Portec, Inc., 970 F.2d 816, 826, 23 USPQ2d 1426, 1434-35 (Fed.Cir.1992). This discretion, however, is limited to a trebling of the basic damage award. See Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 183, 30 USPQ2d 1462, 1466 (Fed.Cir.1994). The maximum amount of damages allowed by statute is therefore three times the amount of the basic damage award.. See American Med. Sys., Inc. v. Medical Eng’g Corp., 6 F.3d 1523, 1532, 28 USPQ2d 1321, 1326 (Fed.Cir.1993). Recognizing this court’s interpretation of the statute, Vutek and Signtech agree that the $420,000 enhanced damages award for Signtech’s willful infringement of the ’522 patent should include the stipulated $140,000 basic damage award. Therefore, this court merely clarifies that the $140,000 damage award is included within the $420,000 enhanced damage award. IV. Signtech argues that Fed. R.Civ.P. 65(d) requires revision of the injunction in this case. A permanent injunction requires “specific terms” and a description “in reasonable detail [of] the acts sought to be restrained.” Additive Controls, 986 F.2d at 479. In this case, the magistrate’s order establishes “a permanent injunction against [Signtech] for any further infringement of the ’522 patent.” Signtech argues that this language purports to permanently enjoin Signtech from producing any product which might infringe the ’522 patent and is not limited to the products found to infringe or colorable variations thereof. This court has explained that Fed.R.Civ.P. 65(d) requires specificity in injunctions to prevent unwarranted contempt actions and provide adequate notice of the conduct enjoined. See id., at 479-80. Here, any danger of unwarranted contempt actions is minimal, if not completely non-existent, because of the detailed record on which this injunction was entered. Therefore, this court finds no danger in allowing the permanent injunction to stand as written. This decision, of necessity, leaves open whether a later device produced by Signtech, which is more than trivially different from the devices found to infringe, is within the scope of the ’522 patent claims and therefore an infringing device. COSTS Each party shall bear its own costs. AFFIRMED-IN-PART and REVERSED-IN-PART.

PER CURIAM: San Jose Water Conservation Corporation and Michael P. Schroll (collectively, “Appellants”) appeal a judgment in favor of AvalonBay Communities, Inc., in Aval-onBay’s action arising out of a fraudulent scheme executed by Schroll and San Jose. Appellants argue that the district court erred in denying their motion to stay the case during the criminal investigation of the case’s underlying facts and in not joining alleged co-tortfeasor James Willden as a defendant. We disagree for the reasons stated by the district court. See Avalon-Bay Comtys., Inc. v. San Jose Water Conservation Corp., 2007 WL 2481291 (E.D.Va.2007) (denial of motion to stay); J.A. 663-64 (denial of Schroll’s motion for reconsideration). Appellants also argue that the district court erred in drawing adverse inferences from Schroll’s invocation of his Fifth Amendment rights and in piercing San Jose’s corporate veil. However, as the district court explained, it took neither of those actions. We therefore affirm the district court’s judgment. We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: John Lee Collins, who was convicted of a crack cocaine offense, pro se appeals the denial of his motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706. The district court denied the motion because Collins’s base offense level was determined using the career offender guideline, U.S.S.G. § 4B1.1, rather that U.S.S.G. § 2D1.1. Collins argues that (1) his career offender status did not preclude him from receiving a reduction; (2) the district court should have re-sentenced him under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (3) the district court erred in calculating his career offender guideline imprisonment range. For the reasons set forth below, we affirm. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008). A district court may reduce the sentence “of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 706, which was made retroactive by Amendment 713, reduced the offense levels in § 2D 1.1 for crack cocaine offenses by two levels. See U.S.S.G.App. C, Amends. 706, 713 (2008). Any sentence reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statements provide that “a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy statement if ... [a retroactive amendment] is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10, comment. (n.l(A)). The district court did not err in denying Collins’s motion. See James, 548 F.3d at 984. First, Collins was sentenced as a career offender, and § 2D 1.1 played no ultimate role in his sentence. Thus, Amendment 706 did not effect the guideline imprisonment range used to sentence Collins, and he was not eligible for a reduction. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008), cert. denied, McFadden v. United States, — U.S. -, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009), and cert. denied, — U.S.-, 129 S.Ct. 1601, 173 L.Ed.2d 689 (2009) (“Where a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence”). Also, regarding Collins’s Booker arguments, Booker does not provide an independent basis for the district court to reduce a defendant’s sentence or give the district court authority to grant a reduction beyond the two levels authorized by Amendment 706. See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1657, 173 L.Ed.2d 1025 (2009) (holding that, where a defendant is not eligible for sentence reduction under the Amendment, Booker does not provide an independent basis for relief); United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.2009), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664) (holding that Booker and its progeny “do not prohibit the limitations on a judge’s discretion in reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement by the Sentencing Commission”). Furthermore, to the extent that Collins argues that his career offender guideline imprisonment range was calculated using the wrong base offense level, a § 3582(c)(2) motion is not the proper venue to pursue such a sentence-calculation challenge. See United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir.2000) (holding that, in substituting the amended base offense level for the originally applied base offense level, the district court must leave intact all other guideline application decisions made during the original sentencing); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2007) (holding that § 3582(c)(2) proceedings do not constitute a full, or de novo, re-sentencing of the defendant). Accordingly, because Collins has made no argument that merits relief, we affirm. AFFIRMED. . Upon Collins's appeal from the district court's denial of his motion, we ordered Collins's appeal stayed pending resolution of United States v. Moore. After deciding Moore, we directed the parties to advise whether any issues remained unresolved. Based on the parties' responses, we ordered that the matter be briefed.

ORDER AND JUDGMENT ROBERT H. HENRY, Chief Judge. After Jose Luis Leyva-Ortiz pleaded guilty to violating 8 U.S.C. § 1326(a) and (b) by re-entering the United States after having been deported, the district court sentenced him to a term of forty-six months’ imprisonment. Mr. Leyva-Ortiz now contends that the district court made two procedural errors in determining his sentence: (1) it improperly afforded a presumption of reasonableness to a within-Guidelines sentence; and (2) it failed to adequately explain the sentence that it imposed. He also argues that (3) the sentence was substantively unreasonable. We are not persuaded that the alleged procedural errors warrant resentencing. The district court did err in applying a presumption of reasonableness to a within-Guideline sentence (understandably, given the shifting sands of sentencing jurisprudence over the past few years). However, Mr. Leyva-Ortiz did not object to the presumption in the district court proceedings, and he has failed to establish that he is entitled to resentencing under the plain error doctrine. Moreover, the district court’s explanation of the reasons for the sentence, although brief, was sufficient under our precedent. Nevertheless, as to substantive reasonableness, we hold that in light of Supreme Court and Tenth Circuit decisions issued after the district court sentenced Mr. Ley-va-Ortiz on August 23, 2007, the district court may not have understood the scope of its discretion to vary from the Guidelines. For that reason, we remand for resentencing. I. BACKGROUND On April 3, 2007, United States Border Patrol agents arrested Mr. Leyva-Ortiz near the Columbus, New Mexico Port of Entry. Mr. Leyva-Ortiz admitted that he was a Mexican citizen. Immigration records established that he had been previously deported on March 1, 2007. Prior to his deportation, Mr. Leyva-Ortiz was convicted in a New Mexico state court of two counts of aggravated assault with a deadly weapon (a fourth-degree felony) and one count of battery with a deadly weapon (a third-degree felony). The state court sentenced him to six years’ incarceration with five years suspended. In May 2007, Mr. Leyva-Ortiz pleaded guilty to an information alleging that he had reentered the United States after having been convicted of a felony, in violation of 8 U.S.C. § 1326(a) and (b). Under the Guidelines, the district court calculated the offense level at twenty-one, applying a base offense level of eight, a sixteen-point enhancement under USSG § 2L1.2(b)(l)(A)(ii) (because Mr. Leyva-Ortiz had been convicted of “a felony that is ... a crime of violence”), and a three-point reduction for acceptance of responsibility. The court placed Mr. Leyva-Ortiz in criminal history category III, resulting in a Guideline range of 46 to 57 months. Mr. Leyva-Ortiz then filed a sentencing memorandum seeking a variance from the advisory guideline range. He first argued that the sixteen-level enhancement authorized by § 2L1.2(b)(l)(A)(ii) is unreasonable because it results in an offense level for unlawful reentry crimes that is equal to or greater than the offense level for many violent crimes. Second, he contended that this provision unreasonably “double counts prior convictions by including them in both [a defendant’s] criminal history category and offense level.” Rec. vol. I, doc. 17, at 4 (Sentencing Memorandum, filed Aug. 2, 2007). Mr. Leyva-Ortiz also argued that the sentencing factors set forth in 18 U.S.C. § 3553 supported a sentence considerably lower than the advisory Guideline range. In his view, the unlawful reentry offense was a nonviolent crime because the “offense conduct itself is akin to trespass.” Id. at 11. Moreover, his 2006 convictions were the result of a single incident. Because he had no other convictions, he maintained, an 18-to-24 month sentence would sufficiently protect the public, deter him from committing other crimes, and promote respect for the law. At the sentencing hearing, the district court heard arguments regarding the requested downward variance. Mr. Levya-Ortiz’s counsel contended that the case “cries out for a Booker type variance” and asked the court to impose a sentence of 18 months. Rec. vol. Ill, at 2 (Tr. of Sentencing Hr’g on Aug. 23, 2007). The district court rejected Mr. Leyva-Ortiz’s request: The Court has reviewed the presen-tence report factual findings and has considered the sentencing guideline applications and the factors set forth in 18 United States Code [§ ] 3558(a)(1) through (7). I’ve thoroughly considered defendant’s sentencing memorandum and find nothing in there to convince me that the presumptively reasonable guideline is anything other than an accurate reflection of the factors I am required to consider. The offense level is 21. The criminal history category is III. The guideline imprisonment range is 46 to 57 months. The Court notes the defendant reentered the United States after being removed subsequent to a conviction for an aggravated felony. Id. at 3-4 (emphasis added). Accordingly, the court imposed a sentence of 46 months’ imprisonment. II. DISCUSSION On appeal, Mr. Leyva-Ortiz raises two procedural challenges: (1) that the district court erred in affording a presumption of reasonableness to a within-Guideline sentence; and (2) that it failed to provide an adequate explanation for the 46-month sentence that it imposed. He then argues that the sentence is substantively unreasonable. In reviewing sentencing challenges, we generally apply a deferential abuse of discretion standard. United States v. Parker, 551 F.3d 1167, 1173 (10th Cir.2008). The review “consists of component parts, affording greater deference to findings of fact (clearly erroneous) than to conclusions of law (erroneous).” United States v. McComb, 519 F.3d 1049, 1054 n. 4 (10th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 1917, 170 L.Ed.2d 778 (2008). When a defendant fails to preserve an objection to the procedural reasonableness of his sentence, we generally review only for plain error. United States v. Mendoza, 543 F.3d 1186, 1190-91 (10th Cir.2008) (discussing plain error review). In such instances, resentencing is warranted only if (1) there was an error; (2) that was plain; (3) that affected substantial rights; and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1190. A. Because Mr. Leyva-Ortiz did not object to the district court’s application of a presumption of reasonableness to a within-Guideline sentence, he is not entitled to resentencing under the plain error doctrine. The district court stated at sentencing that it had “thoroughly considered defendant’s sentencing memorandum and [found] nothing in there to convince me that the presumptively reasonable guideline is anything other than an accurate reflection of the factors I am required to consider.” Rec. vol. Ill, at 3-4 (emphasis added). The government concedes, as it must, that this statement was erroneous: a district court may not afford a presumption of reasonableness to a within-Guideline sentence. See United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007) (“Rita [v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ] thus makes clear that the presumption of reasonableness applies only at the appellate level.”). However, during the district court proceedings, Mr. Leyva-Ortiz did not object to the application of this presumption. “Ordinarily, ---- [w]hen the party alleging error [in the district court’s sentencing procedure] has not objected in the court below, ... we review only for plain error.” Mendoza, 543 F.3d at 1190. Mr. Leyva-Ortiz does not contend that he has established the elements of plain error. Instead, he maintains that the plain error standard is inapplicable in light of the Supreme Court’s decision in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In his view, “[Gall ] set out the standards for review by the appellate courts.... [T]he Supreme Court held that there is a single standard for review of sentences on appeal: [a]buse of discretion.” Aplt’s Reply Br. at 2-3 (citing Gall, 128 S.Ct. at 597). According to Mr. Leyva-Ortiz, Gall holds that a defendant need no longer object to sentencing procedures in order to avoid the deferential plain error standard of review. We disagree with Mr. Leyva-Ortiz’s reading of Gall. The Supreme Court’s decision holds that “[rjegardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.” Gall, 128 S.Ct. at 597. However, Gall does not address the extent to which various objections to sentencing rulings and procedures must be preserved in order for the defendant to avoid plain error review. Moreover, contrary to Mr. Leyva-Ortiz’s argument, in post-Gali cases, this circuit has continued to apply the principle that objections to the procedures used in determining a sentence must be made before the district court and that, if no objections are made, our review is only for plain error. See, e.g., United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir.2008) (“As a general rule, when a defendant fails to preserve an objection to the procedural reasonableness of his sentence, we review only for plain error.” citing United States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir.), cert. denied, — U.S.-, 128 S.Ct. 319, 169 L.Ed.2d 225 (2007)); see also Mendoza, 543 F.3d at 1190 (same). Accordingly, we may review the district court’s application of a presumption of reasonableness of a within-Guideline sentence only for plain error. Under this standard, Mr. Leyva-Ortiz is not entitled to relief. He does not argue that he can establish the required elements, and, on this record, we see no indication that the district court’s statement that it afforded a presumption of reasonableness to a within-Guideline sentence affected either his substantial rights or the fairness, integrity, or public reputation of judicial proceedings. Mendoza, 543 F.3d at 1190-91. B. The district court did not commit procedural error in explaining the reasons for the 46-month sentence. Mr. Leyva-Ortiz also argues that the district court committed a second procedural error by failing to provide an adequate explanation for the 46-month sentence. Again, Mr. Levya-Ortiz did not raise this procedural objection in the district court, and we therefore review only for plain error. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.2007) (reviewing the district court’s alleged failure to provide specific reasons for a sentence for plain error). Mr. Leyva-Ortiz’s arguments do not persuade. In our view, in explaining the reasons for his sentence, the district court did not commit error at all, much less error that warrants relief under the plain error doctrine. That conclusion follows from the applicable statutes and our precedent. In particular, 18 U.S.C. § 3553(c)(1) provides that, when the district court imposes a within-Guidelines sentence, it must state “the reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 8553(c)(1). As a general rule, “ § 3553(c)(1) does not impose upon district courts a duty to engage in ... particularized analysis....” United States v. A.B., 529 F.3d 1275, 1289-90 (10th Cir.) (collecting cases), cert. denied, — U.S. -, 129 S.Ct. 440, 172 L.Ed.2d 317 (2008). Instead, the statute requires only a “general statement noting the appropriate guideline range and how it was calculated.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir.2007) (quoting Ruiz-Terrazas, 477 F.3d at 1202). We do not require “a ritualistic incantation” or any “magic words” to show us that the district court fulfilled its responsibility to consider the relevant sentencing factors. United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir.2006) (citation omitted). In contrast, sentences outside the Guideline range require a more specific explanation. In Ruiz-Terrazas, we observed that, under § 3553(c)(2), the sentencing court must state “the specific reason for the imposition of a sentence [outside the Guideline range] ... which reasons must also be stated with specificity in the written order of judgment and commitment.” Id. But, even when a non-Guideline sentence is requested, the district court’s explanation of the reasons for its decision need not be extensive. For example, in Ruiz-Terrazas, 477 F.3d at 1198, the defendant argued for a below-Guideline sentence for an unlawful reentry conviction under 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2) on the grounds that the applicable Guideline provision treated the offense as harshly as more serious crimes. The district court rejected that argument, explaining that it had “reviewed the presentence report[’s] factual findings[,] ... considered the guideline applications^] and the factors set forth in 18 United States Code [§ ] 3553(a)(1) through (7)” and noting that “the defendant reentered the United States subsequent to being convicted of an aggravated felony.” Id. at 1199. The court added that the sentence recommended by the Guidelines was reasonable. However, it did not address the. defendant’s specific arguments for a downward variance. In our view, that explanation was sufficient. The record in Ruiz-Terrazas established that the district court had entertained the defendant’s downward variance arguments at length, indicated on the record that it had considered the § 3553(a) factors, and “proceeded to explain its reliance on the range suggested by the Guidelines.” 477 F.3d at 1203. Here, as in Ruiz-Terrazas, the district court heard arguments at the sentencing hearing regarding Mr. Leyva-Ortiz’s request for a downward variance. The court explained that it had read his sentencing memorandum and that it found nothing in it to support a sentence below the Guideline range. The court adopted the presen-tence report’s calculation of Mr. Leyva-Ortiz’s offense level and criminal history and noted that he had reentered the United States after being removed subsequent to a conviction for an aggravated felony. “[N]o more is required by statute or our precedents.” Ruiz-Terrazas, 477 F.3d at 1203. C. Because the record does not establish that the district court understood its discretion to impose a non-Guidelines sentence, we remand the case for further proceedings. Finally, Mr. Leyva-Ortiz argues that his 46-month sentence is substantively unreasonable. He repeats the contentions he made to the district court: (1) that USSG § 2L1.2’s sixteen-level enhancement is unreasonable because it establishes an offense level for a nonviolent offense that is equal to or greater than the levels for many violent offenses and because it double counts prior convictions by including them in the calculation of defendants’ criminal histories and offense levels; and (2) that the § 3553(a) factors warrant a below-Guidelines sentence. Mr. Leyva-Ortiz was sentenced on August 23, 2007. At that time, the district court’s authority to impose a non-Guideline sentence based on a policy disagreement with Guidelines was quite limited: we had stated that “a sentencing court may not ignore the Guidelines calculation for the ordinary defendant and instead adopt its own sentencing philosophy.” United States v. Garcia-Lara, 499 F.3d 1133, 1141 (10th Cir.2007) (citing United States v. Hildreth, 485 F.3d 1120, 1129 (10th Cir.2007)), vacated, — U.S. -, 128 S.Ct. 2089, 170 L.Ed.2d 814 (2008). However, subsequent decisions have expanded the district court’s discretion. In light of those decisions, we conclude that the case should be remanded for further proceedings. In particular, in December 2007, the Supreme Court issued Gall and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In Gall, the Court reinstated a variance imposed by a district court, holding that the Eighth Circuit had failed to employ an abuse of discretion standard. In Kimbrough, it held that the district court had discretion to refuse to adopt the Guidelines’ 100:1 crack-to-powder-cocaine sentencing ratio. See 128 S.Ct. at 575. The Kimbrough Court explained that, in the ordinary case, the Guidelines’ sentencing range will “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Id. at 574 (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)). On the other hand, “[t]he sentencing judge ... has greater familiarity with ... the individual case and the individual defendant before him than the Commission or the appeals court.” Id. (quoting Rita, 127 S.Ct. at 2469). The sentencing judge is thus “ ‘in a superior position to find facts and judge their import under § [3553](a)’ in each particular case.” Id. (quoting Gall, 128 S.Ct. at 597) (other internal quotation marks omitted). Thus, “[i]n light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.’” Id. at 574-75 (quoting Rita, 127 S.Ct. at 2465). Nevertheless, “closer [appellate] review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case.” Id. (internal quotation marks omitted). In considering the crack cocaine Guidelines, the Kimbrough Court further observed that there was “no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role.” Id. Instead, in formulating those provisions, the Commission looked to the mandatory minimum sentences set forth in a 1986 statute and “‘did not take account of empirical data and national experience.’” Id. (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir.2007) (McConnell, J., concurring)). Additionally, the Sentencing Commission itself had unsuccessfully recommended revising the crack cocaine provisions of the Guidelines because they did not reflect the purposes of sentencing set forth in § 3553(a). Examining Gall and Kimbrough, we have concluded that those cases cannot be reconciled with prior circuit cases regarding non-Guideline sentences. See United States v. Smart, 518 F.3d 800, 806-08 (10th Cir.2008) (discussing the abrogation of Garcia-Lara, 499 F.3d at 1140-41). Now, “[w]e may not conclude that simply by diverging from the Guidelines, a district court has disregarded the policy considerations which led the Commission to create a particular Guideline.” Id. at 809 (emphasis added). The district courts are authorized to “contextually evaluate each § 3553(a) factor, including those factors that the relevant guideline(s) already purport to take into account, even if the facts of the case are less than extraordinary.” Id. at 808. A district court does not abuse its discretion merely by balancing the Guidelines with the § 3553(a) factors, striking a different balance than the Guidelines and imposing a variance. Id. at 809. Nevertheless, following the Supreme Court’s observation in Kimbrough, we have recognized that “in a mine-run case” a “closer review” may be warranted when the district court varies from the Guidelines solely because the Guidelines range fails properly to reflect § 3553(a) considerations. Id. at 808 n. 5 (quoting Kim-brough, 128 S.Ct. at 575). These developments have led this court, as well as others, to remand cases for reconsideration of a defendant’s request for a downward variance when (a) the defendant was sentenced before the Supreme Court issued Gall and Kimbrough; (b) a direct appeal of the sentence had not been finally resolved when those opinions were issued; and (c) the record indicated that the district court may not have fully comprehended its discretion to impose a non-Guidelines sentence, See, e.g., United States v. Trotter, 518 F.3d 773, 774 (10th Cir.2008) (remanding to the district court “to clarify why it rejected [the defendant’s] request for a variance based on the crack/powder disparity” and stating that, if the court “rejected this request based on a belief that it did not have discretion to specifically consider whether the disparity resulted in a disproportionately harsh sentence, [it] is to conduct resentencing in light of Kimbrough”); see also United States v. Vanvliet, 542 F.3d 259, 271 (1st Cir.2008) (observing that “the government correctly points out that [the defendant’s] sentence must be vacated in light of Kim-brough ” when the district court expressed disagreement with “the Guidelines policy to enhance a sentence for his use of a computer” but when the district court further stated that a disagreement with a Guidelines policy would not support a below-Guidelines sentence and adding that “[Kimbrough ] was not available to the district court when it made its sentencing decision”); United States v. Padilla, 520 F.3d 766, 774 (7th Cir.2008) (stating that “[b]eeause we cannot ascertain with any exacting degree of certainty whether the sentencing judge would have imposed the same term of incarceration in the wake of Kimbrough, and because we find that the issue was adequately preserved, a remand is appropriate”). Here, when it sentenced Mr. Leyva-Ortiz, the district court did not have the benefit of Gall, Kimbrough, or this circuit’s decision in Smart, which read those Supreme Court decisions to expand the discretion to impose a non-Guidelines sentence “even if the facts are less than extraordinary.” Smart, 518 F.3d at 808. Moreover, as we have noted, the district court appears to have improperly afforded a presumption of reasonableness to a within-Guidelines sentence. Thus, when Mr. Leyva-Ortiz argued in his sentencing memorandum that USSG § 2L1.2’s 16-lev- el enhancement was unreasonable, the district court may not have fully understood its discretion to grant a downward variance. III. CONCLUSION Accordingly, we conclude that a remand is warranted so that the district court may reconsider Mr. Leyva-Ortiz’s request for a downward variance in light of those recent decisions. On remand the district court should exercise its discretion to balance the § 3553(a) factors and the Guidelines. See Smart, 518 F.3d at 807-09. Following the decisions of our sister circuits, “[w]e signal no criticism of the able and conscientious district judge. Nor do we express any view as to what sentence [Mr. Leyva-Ortiz] should receive on remand or whether it should fall within or outside his Guidelines range.” United States v. Jones, 531 F.3d 163, 182 (2d Cir.2008); see United States v. Boardman, 528 F.3d 86, 88 (1st Cir.2008) (“Nothing in our decision is intended to suggest that a lesser sentence be imposed.... ”). On remand, the district court should choose an appropriate sentence and explain the reasons for it. We therefore REMAND this case to the district court with instructions to resen-tence Mr. Leyva-Ortiz after considering his request for a below Guideline sentence in a manner consistent with this order and judgment. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

OPINION SLOVITER, Circuit Judge. Appellant Christine C. Shubert, the trustee (“Trustee”) in appellee John S. Stewart, Jr.’s (“Debtor”) chapter 7 bankruptcy, appeals the decision of the Bankruptcy Court, affirmed by the District Court, that the Trustee could not sell pursuant to 11 U.S.C. § 363(h) certain real property for which the Debtor was a record owner because the Debtor held the property in a resulting trust for the benefit of his mother. We will affirm. I. At issue is whether the Trustee may sell for the benefit of the Debtor’s creditors property in Philadelphia, Pennsylvania, (“Property”) at which the Debtor’s mother, Caroline Stewart (“Stewart”), resides. According to the Trustee, the Debtor owns a one-half interest in that Property. Stewart obtained title to the Property in 1951 when she purchased it jointly with her husband, who died in 1990. On December 9, 2002, Stewart executed a deed to the Property to the Debtor for the sum of one dollar (“First Deed”). Stewart had the First Deed prepared in an attempt to minimize inheritance taxes on her estate. The Bankruptcy Court credited testimony by Stewart and the Debtor that both understood that the First Deed was conveyed for estate planning purposes and that Stewart, not the Debtor, would remain the owner of the Property until Stewart died. Stewart v. Shubert (In re Stewart), 368 B.R. 445, 448 & n. 4 (Bankr.E.D.Pa.2007). Several months later, Stewart realized that she had inadvertently omitted her daughter, Susan Harris (“Harris”), from her estate-planning effort. She therefore requested that the Debtor transfer half of his interest to Harris, and the Debtor did so by executing a deed on March 6, 2003, which purported to transfer the Property jointly to the Debtor and Harris for the sum of one dollar (“Second Deed”). Notwithstanding these conveyances, Stewart continues to reside at the Property and pay all of the bills and taxes associated with the Property out of her own funds. In September 2005, after the Debtor’s son had incurred substantial credit card debt for which the Debtor was liable, the Debtor voluntarily filed for bankruptcy under chapter 7. In his bankruptcy filings, the Debtor listed his ownership interest in the Property as Bare Legal Title of Caroline Stewart’s property.” App. II at 211. The Trustee subsequently filed a motion to sell the Debtor’s interest in the Property pursuant to 11 U.S.C. § 363(h). The Debtor contested that motion and filed an adversary complaint seeking to enjoin the Trustee from selling the Property. After holding a trial, the Bankruptcy Court held that the Trustee could not sell the Property. According to the Bankruptcy Court, under Pennsylvania law Stewart’s transfer of the Property to the Debt- or was subject to a resulting trust in favor of Stewart, who was therefore the equitable owner of the Property. Accordingly, the bankruptcy estate succeeded only to bare legal title in the Property and the Trustee’s proposed sale was not appropriate under § 363(h). Stewart, 368 B.R. at 457. Finally, the Trustee appealed to the District Court, which affirmed. II. Under section 368(h) of the Bankruptcy Code “the trustee may sell both the estate’s interest ... and the interest of any co-owner in property in which the debtor had, at the time of the commencement of the ease, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety” if certain conditions are satisfied. 11 U.S.C. § 363(h). The Debtor argues, and the Bankruptcy and District Courts held, that the Trustee’s proposed sale of the Property was inappropriate under § 363(h) because the Debtor held the Property in a resulting trust for the benefit of Stewart, who thus was the equitable owner. We agree. A bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). However, “[pjroperty in which the debtor holds ... only legal title and not an equitable interest ... becomes property of the estate under [§ 541(a)(1)] ... only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.” Id. Therefore, the “bankrupt estate ... obtains no greater ownership right ... than [the debtor] ... would have ... prior to the bankruptcy filing.” Universal Bonding Ins. Co. v. Gittens & Sprinkle Enters., Inc., 960 F.2d 366, 372 (3d Cir.1992). We look to the applicable state law, here Pennsylvania law, to determine what interests a debtor possesses. Id. at 369. Under Pennsylvania law, “[a] resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein.” Galford v. Burkhouse, 330 Pa.Super. 21, 478 A.2d 1328, 1334 (1984) (quotations omitted). As recognized by the Bankruptcy Coui’t, Galford is indistinguishable from the instant case. In Galford, the transfer- or wanted to ensure that certain real estate would be available to support his wife in the event that he died and therefore deeded the property to his son to avoid possible attachment of the property by certain creditors. Id. at 1330. Subsequently, the transferor decided that he wanted to convey the property to one of his daughters, but the son refused to do so. Id. The transferor brought an action to compel his son to convey the property to him or to the daughter. Id. at 1331. The Pennsylvania Superior Court held that the transferor could not impose an oral trust on his transfer of the property to his son in light of the Statute of Frauds, but concluded that “[wjhere an express trust fails, a resulting trust may be imposed by operation of law.” Id. at 1333. Further, because “[t]he Statute of Frauds specifically exempts such trusts ... from its operation,” parol evidence is “admissible to show the circumstances under which [the] resulting trust arose” as long as such evidence is “clear, explicit and unequivocal.” Id. (quotations and citations omitted). In Galford, “[t]he testimony of all parties ... was in agreement that [the transferor] intended to transfer only bare legal title to [the son] at the time he executed the deed,” and thus the “evidence was clearly sufficient to establish a resulting trust.” Id. at 1334 (emphasis in original). Similarly, in this case the Bankruptcy Court concluded that the Debtor held the Property in a resulting trust for Stewart because “Stewart intended to transfer the Property to the Debtor in trust” but “her intentions were ineffective due to the wording of the instrument [i.e., the First Deed] used to effect the transfer.” Stew art, 368 B.R. at 457. This conclusion is amply supported by the record. The Bankruptcy Court credited the testimony of Stewart and the Debtor that the First Deed “was motivated wholly by the estate planning advice [Stewart] received from friends” and that both understood that Stewart would own the Property until she died. Id. at 454 & n. 18. Further, after the execution of the First Deed, there was “no material change in the conduct of either Mrs. Stewart o[r] the Debtor.” Id. at 454. Stewart continued to live at the Property and pay all costs associated with it. The transaction culminating in the Second Deed also supports the conclusion that Stewart retained beneficial ownership of the Property because the Debtor executed the Second Deed on the instructions of Stewart in order to further her estate planning goals, “again suggesting that both parties considered the Property to be hers to control.” Id. at 455. The Trustee raises three arguments against the conclusion that Stewart was the equitable owner of the Property. None is convincing. First, the Trustee argues that we should not look beyond the four comers of the First Deed because it unambiguously conveyed Stewart’s entire interest in the Property to the Debtor by “granting]” the Property to the Debtor “in Fee.” App. II at 150. However, as noted above, the Pennsylvania Statute of Frauds exempts resulting trusts from its strictures so that parol evidence is “admissible to show the circumstances under which a resulting trust arose.” Galford, 478 A.2d at 1333 (citing Geyer v. Thomas, 364 Pa. 242, 72 A.2d 89, 90 (1950); Potoczny v. Dydek, 192 Pa.Super. 550, 162 A.2d 70, 76 (1960)); see also 33 Pa. Stat. Ann. § 2 (providing that trusts that “result by implication ... of law” are exempted from the Statute of Frauds). Further, the parol evidence here is “clear, explicit and unequivocal” that Stewart did not intend to convey to the Debtor her equitable ownership in the Property. Galford, 478 A.2d at 1333 (citation omitted). The Trastee next argues that Stewart must have intended to grant the Debtor her entire interest in the Property because, if Stewart retained an equitable interest in the Property, it would have been subject to inheritance taxes upon her death, in contradiction of her avowed estate planning purposes. See 72 Pa. Stat. Ann. § 9107(c)(5). At most, this argument shows that Stewart, who was an unsophisticated party with a high school education and no legal training, may have failed to minimize her estate taxes through the conveyances at issue. As the Bankruptcy Court concluded: “While there may have been a better way to achieve her estate planning goals, [Stewart] signed the First Deed, not for the purpose of transferring her beneficial interest in the property, but only to transfer a future interest in the Property—which is precisely why a resulting trust arises in this case.” Stewart, 368 B.R. at 457. Finally, the Trustee contends that, even if the Debtor held the Property in a resulting trust in favor of Stewart, she may avoid Stewart’s equitable interest in the Property pursuant to her strong-arm powers under 11 U.S.C. § 544(a)(3). However, under Pennsylvania law, Stewart’s clear and open possession of the Property put the Trustee on constructive notice of Stewart’s equitable interest therein, and therefore the Trustee may not avoid that interest under § 544(a)(3). See McCannon v. Marston, 679 F.2d 13, 16-17 (3d Cir.1982). III. For the above-stated reasons, we will affirm the judgment of the District Court affirming the judgment of the Bankruptcy Court. . The Bankruptcy Court had jurisdiction over this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2) and 1334. The District Court had jurisdiction under 28 U.S.C. § 158(a)(1) and we have jurisdiction under 28 U.S.C. § 158(d)(1). We exercise plenary review over the District Court's appellate review of the Bankruptcy Court’s decision and exercise the same standard of review as the District Court in reviewing the Bankruptcy Court’s determinations. Fellheimer, Eichen & Braverman, P.C. v. Charter Techs., Inc., 57 F.3d 1215, 1223 (3d Cir.1995). Thus, we review the Bankruptcy Court's findings for clear error and its legal conclusions de novo. Schlumberger Res. Mgmt. Servs., Inc. v. CellNet Data Sys., Inc. (In re CellNet Data Sys., Inc.), 327 F.3d 242, 244 (3d Cir.2003).

MEMORANDUM OPINION AND ORDER KRAM, District Judge. This is an employment discrimination action alleging violations of Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Presently before this Court is defendant’s motion to dismiss plaintiffs § 1981 claim pursuant to Fed.R.Civ.P. 12(b)(6). Background The plaintiff Lawrence Otubu, a black male, is a certified public accountant. The defendant Wakefern Food Corporation (“Wakefern”) is a food distribution company that employed the plaintiff in 1985. Plaintiff worked for Wakefern from January to September, 1985, initially as a temporary employee, and then on a full time basis. Plaintiff applied to Wakefern for the position of administrative clerk at its Wallkill facility in response to a November 1984 newspaper advertisement. According to the complaint, plaintiff was offered a full-time job during his interview at $15,236 per year, but was informed that he would be required to serve a short probationary period of between one to three months as a temporary employee. Based on this representation, plaintiff accepted and began working on January 2, 1985. At that time, plaintiff was the only black administrative clerk. Plaintiff made several inquiries about promotion to a permanent position but did not receive his promotion as expected during the first three months. During this period, several white temporary employees with qualifications allegedly inferior to plaintiff allegedly were appointed to permanent positions. On May 17, 1985, plaintiffs immediate supervisor, Robert Borzomati, gave plaintiff a two-week termination notice based on the company’s previously undisclosed policy that temporary employment was limited to no more than one-thousand hours. While it was standard to advise individuals hired for temporary positions of the one-thousand hour rule, plaintiff was not so advised. Furthermore, Borzomati told plaintiff that the company had no open permanent positions. Plaintiff complained to Patrick Garland, Administrative Manager at the Wallkill facility. Plaintiff had several meetings with Garland, at least one of which also included John Perini, Wakefern’s Personnel Manager. At one of these meetings, Garland and Perini told him that he had not earlier received a permanent position because his supervisor, Borzomati, had not recommended him for the position. After objecting and meeting with Garland several times, plaintiff was offered a permanent position as an auditor beginning June 2, 1985. Plaintiff alleges on information and belief that Eugene Dowd, an administrative supervisor at the Wallkill facility, instructed the receiving clerks to report all of plaintiff’s mistakes to him immediately. Plaintiff further states that it was not standard procedure for the receiving clerks to have such instructions, and that none of the white auditors were subject to such scrutiny. On September 10, 1985, John Perini advised plaintiff that he was terminated because of four accounting mistakes, apparently reported by the receiving clerks, in which he failed to follow company policy. Plaintiff charges that these mistakes were a pretext for his termination, which was motivated in fact by racial discrimination. Plaintiff filed a complaint with the New York State Division of Human Rights on March 7, 1986, charging defendant with discrimination in its employment practices, including plaintiff’s termination. The Equal Employment Opportunity Commission issued a right to sue letter on March 30, 1988. Discussion The parties agree that the Supreme Court’s recent decision of Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) precludes any claim under § 1981 for discriminatory termination or discriminatory harassment during employment. In Patterson, the Supreme Court limited the scope of § 1981 to prohibit discrimination only in the initial formation of an employee’s employment contract or his ability to enforce such employment contract. Id. 109 S.Ct. at 2370. At the outset, this Court must dismiss plaintiff’s claim for discriminatory termination. A plaintiff, however, may still assert a discriminatory failure to promote claim under § 1981 if “the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.” Id. at 2377. The parties also agree that the offending conduct with regard to the hiring and failing to promote Otubu falls outside the three-year limitations period applicable to these actions. See, e.g., Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir.1978) (three-year statute of limitations applies); Zangrillo v. Fashion Institute of Technology, 601 F.Supp. 1346, 1350 (S.D.N.Y.1985) (same), aff'd mem., 788 F.2d 2 (2d Cir.1985). Plaintiff began working no later than January 2, 1985 and assumed a permanent position on June 2, 1985. Any discrimination with regard to the initial hiring occurred on or before January 2, 1985, while any discriminatory denial of a permanent position must have taken place before he was finally promoted on June 2, 1985. This complaint was filed on June 23, 1988. Plaintiff argues the applicability of the doctrines of continuing violations and equitable tolling to save the portions of the § 1981 claim that survive Patterson. As the defendant argues, however, the doctrine of continuing violations cannot be applied here because all the potentially viable continuing violations were more than three years old when plaintiff commenced this action. See, e.g., United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (seniority system did not constitute a present or continuing violation despite continuing impact on pay and fringe benefits); Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981) (timely violations “still fresh” within the statutory period rescued otherwise stale claims from time bar under the continuous-policy principle), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). The Court also finds that the plaintiff has not demonstrated that the doctrine of equitable tolling would apply under these circumstances. In Baldwin County Welcome Center v. Brown, the Supreme Court outlined four circumstances that might justify equitable tolling. 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196. These circumstances include situations where (1) a claimant has received inadequate notice, or (2) where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, or (3) where the court has led the plaintiff to believe that plaintiff had done everything required, or (4) where the affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. Id. The Court refused to grant a tolling in that case because “[o]ne who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.” Id; see Nielsen v. Flower Hospital, 639 F.Supp. 738, 747 (S.D.N.Y.1986) (pro se plaintiffs reliance on admittedly defective complaint form issued by Pro Se Clerk required equitable estoppel either as a situation in which the claimant has received inadequate notice, or where the court has led the plaintiff to believe that he had done everything required of him). Equitable estoppel was found unwarranted in a discrimination action by a blind postal worker who had been denied a permanent promotion. Knowles v. Postmaster General, 656 F.Supp. 593, 599-600 (D.Conn.1987). The Knowles court explained that the plaintiff could invoke an equitable tolling only by first showing that he was affirmatively misled by the defendant or was unaware of the appropriate administrative procedures. Id. at 599. The Knowles court would not apply equitable estoppel because the defendant had not misled the plaintiff, even though the plaintiff was arguably misled by a union official who told him to “keep a low profile.” Id. at 600. In Mauro v.- Board of Higher Education, Judge Weinfeld refused to find an equitable tolling of either the 300-day period to file with the EEOC or the three year statute of limitations under § 1981. 658 F.Supp. 322, 324 (S.D.N.Y.1986) (former college instructor who was not reappointed filed discrimination claim that was dismissed as time barred), aff'd, 819 F.2d 1130 (2d Cir.), cert. denied, 484 U.S. 865, 108 S.Ct. 186, 98 L.Ed.2d 139 (1987). That holding was based on the absence of any factual support that the plaintiff was misled or otherwise prevented, from learning of the discrimination he alleged in his complaint. Id. The plaintiff in this case has not specifically argued that he was misled by the defendants with regard to the nature of his lawsuit. Moreover, the plaintiff has not explained why he waited until June 23, 1988 to file this action, even though the last possible date of alleged discrimination that is now potentially actionable under § 1981 took place prior to assuming a permanent position on June 2, 1985. Instead, plaintiff argues that he detrimentally relied on the availability of a continuous violations theory based' on the broader scope of § 1981 prior to Patterson. In support of this argument for an equitable tolling, plaintiff states that Wakefern had notice of his claims of discrimination by virtue of filing the Title VII- claim with the EEOC and the State Division of Human Rights. Plaintiff also contends that he filed this action within three years of his termination, even though the termination is not actionable under § 1981. Furthermore, plaintiff claims to have personally informed defendant Wakefern of his allegations of discrimination in his initial hiring, as a temporary worker, and the company’s failure to timely promote him. Finally, the plaintiff argues that he shall be prejudiced because his recovery is potentially greater under § 1981 than Title VII. The Court is not persuaded on these facts that Otubu is entitled to any equitable tolling based on his allegation of detrimental reliance. Even if a tolling might be justified in some circumstances for reliance on the earlier understanding of § 1981, it was unreasonable for this plaintiff to wait and rely on the chance that he could demonstrate a policy of continuous violations. This Court concludes that the plaintiff did not diligently pursue his § 1981 claims. The plaintiffs failure either to assert that he was misled or that he received inadequate notice undermines his argument that the statute of limitations should be equitably tolled. In the context of the 300-day limitations period for filing with the EEOC in Title VII actions, the Supreme Court stated that Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants .... ‘[i]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’ Baldwin, supra, 466 U.S. at 152, 104 S.Ct. at 1726. The limitations period applicable here also should not be so easily disregarded. This Court is not inclined to apply an equitable toll to this stale § 1981 claim where there are no factual allegations that this plaintiff was misled by the defendant or anyone else. Conclusion Defendant’s motion to dismiss the claims based on 42 U.S.C § 1981 is granted for the aforementioned reasons. SO ORDERED. . The Court also is not persuaded by plaintiff's claim that he is prejudiced by the unavailability of a jury or punitive damages under Title VII. This Court shall not rescue a stale § 1981 claim merely because it provides a greater remedy. This conclusion is supported by the Patterson Court's concern that unnecessary overlap between Title VII and § 1981 would "upset the delicate balance between employee and employer rights struck by Title VII_" 109 S.Ct. at 2375 n. 4.

SUMMARY ORDER Plaintiff-Appellant Tradin Organics USA, Inc. (“Tradin”) appeals from a judgment and order of the United States District Court for the Southern District of New York (Pauley, J.) denying its summary judgment motion and granting summary judgment to Defendant-Appellant Maryland Casualty Company (“Maryland”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. ‘We review de novo the district court’s grant of summary judgment, drawing all factual inferences in favor of the nonmoving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008). Exclusions like the “Your Product” exclusion here are “intended to exclude coverage for damage to the insured’s product, but not for damage caused by the insured’s product to persons or property other than the insured’s own product.” Lowville Producer’s Dairy Coop. v. Am. Motorists Ins. Co., 198 A.D.2d 851, 853, 604 N.Y.S.2d 421, 422 (4th Dep’t 1993); see also Hartog Rahal P’ship v. Am. Motorists Ins. Co., 359 F.Supp.2d 331, 333 (S.D.N.Y.2005). As such, “[t]he risk that [Tradin] would be required to make good on its warranty of quality was a contractual or commercial risk that [Maryland] did not intend to insure.” Lowville, 198 A.D.2d at 853, 604 N.Y.S.2d at 423. The policy provided by Maryland was “a liability policy, not a performance bond.” Id. Because Tradin’s claim was based on damage to Tradin’s product—a risk specifically excluded by the “Your Product” provision—Maryland properly denied coverage of the claim. “Exclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage since no one exclusion can be regarded as inconsistent with another.” Zandri Constr. Co. v. Firemen’s Ins. Co. of Newark, 81 A.D.2d 106, 109, 440 N.Y.S.2d 353, 356 (3d Dep’t 1981) (citation omitted). Since the ‘Your Product” exclusion clearly applied to bar coverage of Tradin’s claim, it is irrelevant whether the ‘Your Work” exclusion—and/or its exception— also applied. Coverage was already barred, the “Your Work” exclusion did not create an affirmative grant of coverage, and there was no ambiguity as to the contractual language. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

PER CURIAM: Pursuant to a written plea agreement, Stayka Doljeva pled guilty to conspiracy to commit marriage fraud, 18 U.S.C. § 371 (2006), and was sentenced to two months in prison. She now appeals. Her attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising two issues but concluding that there are no meritorious issues for appeal. Doljeva was advised of her right to file a pro se supplemental brief but did not file such a brief. After reviewing the transcript of Dolje-va’s Fed.R.Crim.P. 11 hearing, we conclude that the district court fully complied with the Rule. Further, we note that there is nothing in the record to suggest that the sentence of imprisonment, as opposed to a term of probation, resulted from collateral, impermissible influences on the district judge. We conclude that the sentence was reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Finally, after a thorough review of the record in accordance with An-ders, we find that there are no meritorious issues for appeal. Accordingly, we affirm. This court requires counsel to inform his client, in writing, of her right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy of the motion was served on the client. We dispense with oral argument because the facts and legal questions are adequately presented in the materials before the court and argument would not significantly aid the decisional process. AFFIRMED.

PER CURIAM: For the reasons stated in the district court’s dispositive order of January 8, 2009, we agree that appellant failed to state a claim for relief under the Fair Debt Collection Act. Further, we find no abuse of discretion in the district court’s decision not to exercise its supplemental jurisdiction and to dismiss appellant’s state law claims without prejudice. AFFIRMED.

PER CURIAM: Chet Kaufman, appointed counsel for Kenneth Dwayne Houston in this appeal from the district court’s denial of Houston’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no issues of arguable merit, counsel’s motion to -withdraw is GRANTED, and the district court’s denial of relief under § 3582(c)(2) is AFFIRMED.

MEMORANDUM David Durazo-Murrieta, a lawful permanent resident who was born in Mexico, petitions for review of a final order of removal from the Board of Immigration Appeals. Petitioner claims derivative citizenship through his father. We have jurisdiction pursuant to 8 U.S.C. § 1252(b)(5). Minasyan v. Gonzales, 401 F.3d 1069, 1074 (9th Cir.2005). The derivative citizenship statute in effect on March 3,1967, when petitioner was born, determines his nationality and citizenship. Chau v. INS, 247 F.3d 1026, 1028 n. 3 (9th Cir.2001); 8 U.S.C. § 1401(a)(7) (1967). We previously found that a genuine issue of material fact existed as to whether petitioner’s father was physically present in the United States for a period totaling ten years, with five of those years after age fourteen. We transferred this action to the district court for a de novo hearing and decision regarding nationality and held the petition for review in abeyance pending the district court’s decision. See 8 U.S.C. § 1252(b)(5)(B); Chau, 247 F.3d at 1029. After conducting a de novo evidentiary hearing, the district court held that petitioner had not established that his father was physically present in the United States for the requisite number of years. The parties agree that the district court’s decision resolves the only issue before this court and establishes that petitioner is not entitled to derivative citizenship. PETITION FOR REVIEW DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . Petitioner concedes that removal proceedings were instituted against him due to his committing two aggravated felonies.

ORDER ON REHEARING Present: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, and STAPLETON, Circuit Judges. A majority of the active judges having voted for rehearing en banc in the above appeal, it is ORDERED that the Clerk of this Court vacate the opinion and judgment filed April 27,1999 and list the above for rehearing en banc at the convenience of the Court.

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s order filed February 10, 2009, be affirmed. The district court properly dismissed the complaint for lack of subject matter jurisdiction because it is not a civil action arising under federal law, see 28 U.S.C. § 1331, or between citizens of different states with an amount in controversy of more than $75,000, see 28 U.S.C. § 1332. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.

MEMORANDUM Rotherham failed to present sufficient evidence to create a genuine issue of material fact as to her implied-in-fact contract claim. California law presumes at-will employment where contract terms do not specify otherwise. Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 335, 100 Cal. Rptr.2d 352, 8 P.3d 1089 (2000) (citing Cal. Lab.Code § 2922). The Chapter’s Policies and Practices Manual, promulgated under Rotherham’s direction, reinforced the understanding that all Chapter employees were at-will. The National Board of Governor’s Policy also confirmed Rotherham’s at-will status. Although Rotherham’s evidence regarding her length of service and positive annual reviews is relevant to her claim, “longevity, raises and promotions without specific words or conduct by the employer negating at-will employment, will not suffice to raise a triable issue of fact.” Moreau v. Air France, 356 F.3d 942, 953 (9th Cir.2004) (citing Guz). Even if Rotherham could establish an implied-in-fact contract, a reasonable jury could only conclude that defendants terminated her for cause. Defendants presented evidence that they terminated Rotherham because she had lost the trust and confidence of the San Diego community, which in turn impacted her ability to serve as an effective leader. See Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 330, 171 Cal.Rptr. 917 (1981) (stating that “where, as here, the employee occupies a sensitive managerial or confidential position, the employer must of necessity be allowed substantial scope for the exercise of subjective judgment”). Because Rotherham failed to establish an implied-in-fact contract limiting defendants’ ability to terminate her, her good faith and fair dealing claim also fails due to the lack of such terms to support the covenant. Starzynski v. Capital Pub. Radio, Inc., 88 Cal.App.4th 33, 39, 105 Cal. Rptr.2d 525 (2001). Rotherham’s fraud claim fails because she presented no evidence of a misrepresentation. She failed to show that she was ever told she was anything other than an at-will employee, and her supervisors’ statements about expectations and offers of job training, which were fulfilled, were not misrepresentations. The district court also properly granted summary judgment on Rotherham’s claim for indemnification under California Labor Code Section 2802. “Section 2802 ... requires an employer to indemnify an employee who is sued by third persons for conduct in the course and scope of his or her employment....” Cassady v. Morgan, Lewis & Bockius LLP, 145 Cal.App.4th 220, 230, 51 Cal.Rptr.3d 527 (2006). The claim for indemnification failed because the government investigations were directed solely against the Chapter. Moreover, although Rotherham claims she presented evidence that the California Attorney General was going to charge her and make her personally liable for excess compensation, her proffered evidence does not support this assertion. In light of summary judgment on all her claims, the district court also properly granted summary judgment on Rother-ham’s claim for declaratory relief. Finally, the district court did not abuse its discretion in denying the motion to alter or amend. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

PER CURIAM: Janice Brown, survivor of Bobby Brown, deceased, seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is ■without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Brown v. Performance Coal Co., No. 07-0978-BLA (B.R.B. Aug. 29, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED.

LEAVITT, District Judge (charging jury). This case, after a long and tedious investigation, is now to be committed to the jury for their action. It has been most strenuously contested by counsel, and you are entitled to the thanks of the court for the patient attention you hare given to it during its progress. It is the purpose of the court to state, -as briefly as possible, the legal points arising in -the case and the views of the court ■upon them, leaving it exclusively for the jury to pass upon the facts. The defendants are on trial for a criminal act, specially set forth in the indictment, in which there are three distinct counts. The first and third counts are substantially alike in their structure, and do not require a separate consideration. The ■first count alleges a conspiracy by the defendants, in concert with others, entered into in the county of Champaign, in the Southern district of Ohio, in November, 18G7, to defraud the United States of the legal tax or duty imposed upon a large quantity of distilled spirits. The overt act of the conspiracy charged is the unlawful removal of fifty barrels of spirits from the distillery of one A. C. Campbell, where it was manufactured, to the rectifying establishment of the defendants, not being a bonded warehouse, with a ■criminal intent. The third count varies the •charge by averring the unlawful conspiracy to have been entered into on March 15, 1868, in the county of Montgomery, in said district, and charges, as. the overt act, the removal of the spirits to the rectifying establishment' •owned by the defendants and other persons. The second count alleges a conspiracy for the fraudulent removal of fifty barrels of distilled spirits from the distillery to the rectifier by night—that is, after sunset and before daylight—in violation of the statute and with a criminal intent. The indictment is framed under section 30 of the act of congress of March 2, 1867, which provides that if two or more persons shall conspire to commit any offense against the United States, or to defraud the United States in any manner whatever, and one or more of said parties to the conspiracy shall do any act to effect the offense, such person shall be deemed •guilty, and shall ‘ be liable to punishment. The jury will observe that the statute is as broad and comprehensive as language can make it. It includes any conspiracy to violate a law of, or to defraud the United States, in any manner whatever. But to consummate the offense contemplated by the statute, there must be, what the law terms, an •overt act done, to effect the object of the unlawful conspiracy. Such an overt act, namely, the unlawful removal of the spirits, is averred in all the counts in this indictment. To justify a verdict of guilty under this indictment, there must be proof satisfactory to the jury, first, that there was a •conspiracy, to which the defendants were parties, substantially as alleged; and second, that the overt acts averred are proved by the evidence. And here it is proper to direct the minds of the jury to some legal propositions submitted by the counsel for the defendants. and state the views of the court ■upon them for the guidance of the jury in their action in the case. 1 regret that the infirm state of my health will not permit me to do this as fully, or perhaps as satisfactorily, as I could desire. It is insisted, in the first place, that under the first count of the indictment, in which it is alleged, inadvertently no doubt, that the unlawful conspiracy was entered into in Champaign county, whereas the proof shows the entire transaction took place in Montgomery county, there can be no conviction. The claim is, that in this particular the evidence does not sustain the first count, and that the jury must return a verdict of not guilty on it. In other words, that there is a fatal variance between the first count and the evidence offered to sustain it. I have not had the opportunity of investigating this point as fully as I could have desired. From the reflection I have bestowed upon It, I can not concur with the counsel for the defense on the point. The discrepancy between the averment as to the county in which the conspiracy was formed and the evidence is not material. This court has jurisdiction in crimes throughout the territory and counties included in the Southern district of Ohio. And the general averment in the indictment, that the offense charged was committed within the district, without designating any particular county, would have been sufficient to sustain the jurisdiction of the court And the United States, in this case, is not bound to prove that the offense was committed in the county alleged, and the allegation may be rejected as surplusage, as in that ease the averment would be that the offense charged was committed within the judicial district, and within the jurisdiction of the court. It is also strenuously urged by defendants’ counsel, that there is a fatal variance between the averments in the several counts and the proof in this, that the removal of the spirits is alleged in the indictment to have been from the distillery of A. C. Campbell, whereas the proof shows the removal was from the bonded warehouse connected with the distillery. This objection is exceedingly technical in its character, and if sustained, the court would be compelled to withdraw the case from the consideration of the jury, and instruct them, without regard to the merits of the case, that they must return a verdict of not guilty. I am reluctant to do this in any case, unless the law requires it as an imperative duty. In a case like this, which has been so fully presented to the jury on the facts, and which has occupied so much time in its investigation, I prefer submitting it to them for their action. And, in my view, the point submitted does not require me to withdraw the case from the jury. While it is true, the removal of the spirits was directly from the bonded warehouse, and not from the part of the building used as the distillery, I am quite clear that the bonded warehouse may be legally held to be a part of the distillery premises; and that the proof sustains substantially tbe averment that tbe removal was from tbe distillery. Tbe law in force at the time made it tbe duty of every distiller to provide a bonded warehouse in immediate connection with tbe distillery, in which the spirits, when manufactured, were to be deposited, and which may be held to be a part of the distillery. In point of fact, if T rightly remember the evidence, this place of deposit was under the roof of, and a part of the building in which the distillation was carried on. There is still another technical legal point urged as a ground for the acquittal of these defendants. It is insisted the evidence does not sustain the averment in the indictment as to the ownership of the rectifying distillery. The evidence as to the parties interested in the rectifying seems not to be satisfactory. I do not propose to refer specially to it, as it is doubtless in the memory of the jury. It may be well doubted whether this question of ownership is material in the ease. The criminal overt act charged is the removal of the spirits to a place other than a bonded warehouse, and the proof of such removal constitutes the gist of the offense. It was not necessary to allege in the indictment the ownership of the rectifying establishment; and such averment may be stricken out as not a necessary element of the offense charged. But, if I am correct in my understanding of the averments of the indictment, the objection on the ground of variance in proof and the allegations as to ownership does not lie. In the first count, the ownership of the rectifier is stated to be in these defendants alone, and in the third count, to be in them and other persons. So that whether they were the sole owners, or whether there were other persons interested with them, the evidence sustains one or the other of these counts. And a verdict may be returned on either, according to the effect to be given to the evidence by the jury. If it shall be necessary hereafter to consider these several legal points, and give to them a fuller examination, the opportunity will be afforded for that purpose. For the present the jury will receive the views stated by the court as the law upon these points. And in this aspect of the case, it will be the duty of the jury to consider it on its merits, with reference to the evidence before, them. The first inquiry for the jury will be, whether the conspiracy charged in the indictment is proved to their satisfaction. A conspiracy within the meaning of the statute is, where two or more persons combine, confederate, or agree to do any unlawful act, or to commit a fraud against the United States. And the proof of such conspiracy may be, first, by direct proof by witnesses having positive knowledge of its existence; or, second, it may be legally presumed from facts and circumstances leading with reasonable certainty to that conclusion. It will be obvious to the jury that it will rarely happen that a conspiracy can be established by direct and positive proof. Persons acting together for an unlawful end pursue their plans in secrecy, studiously avoiding all means by which their guilty purpose may be known to others. In the present case, there is no direct evidence that these defendants entered into a deliberate agreement between themselves, or others, to defraud the United States of the tax imposed on the spirits in' question; and the inquiry for the jury will be, whether from all the facts in evidence "they can fairly infer there was such a conspiracy. In other words, are the jury satisfied that the defendants between themselves, or in combination with others, were actuated by a fixed purpose of committing -a fraud upon the United States, and whether, in accomplishing that object, there was a oneness of purpose, and a unity of action, evidencing their guilty intent to effect their object. This is an inquiry exclusively for the jury, as it involves merely the force and effect to be given to the evidence. The claim of the counsel for the United States is, that the proof shows, not only that these defendants had knowledge of the fraud intended by the unlawful removal of the spirits specified in the indictment, but that they participated and aided in such removal. On the other hand, the defendants’ counsel most strenuously contend there is nothing in the evidence which in any way implicates them in the charge of a conspiracy to defraud the government, or in any overt act to effect the unlawful purpose of such a conspiracy, if one existed, in law or in fact. As remarked before, if the jury find the fact of the existence of the conspiracy charged, they will inquire whether these defendants were so connected with, or aiding and assisting in, the unlawful removal of the spirits, charged as the overt act of the conspiracy. There is certainly some conflict and contradiction in the testimony. But one fact is beyond controversy, and is not denied, namely, that frauds of the most deliberate and repulsive character were committed in numerous instances in reference to the spirits manufactured at the distillery of A. O. Campbell, now deceased. One of the methods by which these frauds were perpetrated was by the fraudulent removal of the spirits to the rectifying establishment of these defendants, situated near the distillery. Without payment of the tax, they passed through the process of rectification, and then were sent to market and sold as tax-paid spirits. And the fact in relation to these frauds, and which renders them all the more odious, is, that government officers, in gross violation of their oaths, were participants and aiders in their commission. It will be for the jury to say, whether from all the circumstances proved, these defendants are implicated in the frauds charged. And it may be proper to remark here, that though it is clearly proved that others were perhaps more flagrantly guilty of these frauds than these defendants, it is no justi- fieaüon for them if they too were guilty participants in them. The jury will doubtless hare noticed that the government in this case has introduced a witness—Huffman—whose testimony, if credible, most clearly implicates these defendants in the frauds charged. This witness, it is not denied, was a prominent actor in the frauds. He does,not deny his guilty agency in them. The defendants’ counsel insist that his position before the jury as an accomplice in the crime charged renders his testimony utterly worthless, and that it should be wholly rejected by the jury. Without discussing the law as to the credit due to an accomplice, I may briefly state that, on the soundest principles of reason, it does affect the credibility of a witness occupying that position. And, as a general rule, his testimony must be received with great caution, and unless sustained and corroborated, in the material facts stated by him, by credible witnesses, his testimony should be wholly rejected. It is also insisted that the veracity of this witness is seriously impeached by other witnesses, who positively contradict him as to material parts of his testimony. And there seems to be no doubt as to the fact that these contradictions do appear. But, without further notice of this witness, I will remark that it is the exclusive province of the jury to pass on the question of the credit due to witnesses, and to them in this case it is referred. In conclusion, I may report to the jury that they are to direct their inquiries (1) to the proof as to the existence of the conspiracy charged; and (2) to the question of the guilt of defendants in effecting the objects of the conspiracy, by the unlawful removal of the spirits charged as the overt act. As to the first of these inquiries—the existence of the conspiracy—the jury must be satisfied of the fact, having reference to the legal principles applicable to it, as before laid down by the court, to justify a verdict of guilty. And as to the other inquiry, the connection of the defendants with the overt acts, the jury must be satisfied that the averments of the indictment are substantially sustained by the evidence. As to dates and the quantity of spirits removed, the government is not bound to make the proof in exact correspondence with the statements in the indictment. The gist of the question is, whether spirits, in a larger or less quantity than is named in the indictment, were unlawfully removed, with the guilty participation and aid of the defendants in the act. And I may here remark, that whatever doubts the jury may entertain as to the criminal complicity of the defendants, they can have none as to other parties not now on trial. If they were before the jury to answer for the crime with which these defendants are charged, there could not be a shade of doubt as to the result. In my remarks I have made no special reference to the second count, charging a violation of the statute in the removal of the spirits after sunset and before sunrise. I do not suppose it is necessary for the jury to consider this count. If the defendants, in the judgment of the jury, are guilty under the first and third counts, it is not material to inquire as to the second. And if the jury find they are not guilty under the first and third counts, they would probably not be prepared to return a verdict of guilty under the second. The mere fact of a removal of the spirits at a time forbidden by the statute, in the absence of a fraudulent or criminal intent, would not, in a criminal prosecution, be regarded as a sufficient basis for a verdict of guilty. I am requested by counsel to remind the jury that the defendants have produced very satisfactory evidence of their previous good characters for integrity and good citizenship. Such proof they have undoubtedly given, and they are entitled to all the benefits the law secures to them from it But in its legal effect, it can not be held to negative or set aside clear proof of guilt Its chief value is in cases where a well-founded doubt may exist in the minds of a jury, from the evidence adduced, of the guilt of a .defendant charged with crime. In such a case, the law benignantly holds that good character may be taken into consideration by a jury as affording a presumption in favor of the innocence of the accused party. The jury returned a verdict of guilty against the defendants. They were sentenced to a short period of imprisonment and a fine of $2,000.

RICH, Circuit Judge. Glass Equipment Development, Inc. (GED) appeals from that portion of the June 27,1996 decision of the United States District Court for the Northern District of West Virginia granting a summary judgment that Besten, Inc. (Besten) is not ha-ble for inducing infringement of GED’s method patent No. 4,628,582 (the ’582 method patent) by Simonton Windows Company (Simonton) because Simonton had an implied license to use the method. Besten cross-appeals from that portion of the judgment dismissing its antitrust counterclaim with prejudice. We reverse the grant of summary judgment that Besten had no liability for inducement to infringe because Simonton had an implied license, since we hold that Simonton had no implied license under the patent in suit. We affirm the summary judgment dismissal of Besten’s antitrust counterclaim because, assuming that Besten’s relevant allegations are true, GED cannot have any antitrust liability, and we remand the case. BACKGROUND This case involves the fabrication of “spacer frames” that are used in the manufacture of thermally insulating glass windows. Spacer frames are generally composed of hollow aluminum bars that are joined at their ends with “corner keys” and both are coated with sealant/adhesive so that, when the spacer frame is sandwiched between two sheets of glass, an air- and moisture-tight seal is formed between the frame and the glass and an insulating space is formed between the glass sheets. GED is the assignee of U.S. Patent No. 4,580,195 (the 195 apparatus patent), which claims spacer frame assemblies. Hinged corner keys that lock in position when completely folded (folding, locking corner keys) are elements of the apparatus patent combination claims but are not claimed independently. GED licensed Allmetal, Inc. (Allmetal) under this patent to manufacture various spacer frame components, including folding, locking corner keys. GED is also the assignee of the ’582 method patent in suit, which claims methods for making spacer frame assemblies using a linear extruding machine (herein referred to as the claimed linear method). The method patent’s independent claim calls for, inter alia, linearly connecting four spacer frame segments together using folding, locking corner keys in the unfolded position, moving the aligned frame segments through a linear extruding machine which applies sealant/adhesive to the frame segments and corner keys, pivoting the coated frame segments about the axes of the corner key hinges so that the corner keys lock in place, and joining the free ends together to form a rectangular frame. See ’582 patent, col. 12, ll. 22-57. Simonton, a manufacturer of insulated glass windows, bought folding, locking corner keys from Allmetal for a period of time before 1988 and used the keys to make spacer frames by a method that did not infringe the ’582 method patent. In 1988, Simonton purchased a linear extruding machine from Besten and began using it to make spacer frames, still using folding, locking corner keys purchased from Allme-tal. GED is a competitor of Besten in the sale of linear extruding machines. In 1993, GED brought suit against Simonton, alleging infringement of several of the method patent claims, and against Besten for allegedly actively inducing Simonton to infringe. See 35 U.S.C. § 271(b). Simonton settled with GED in November 1994, admitting infringement of the ’582 method patent. Consequently, Si-monton is not a party to this appeal. Besten argued that GED was estopped from asserting that Simonton infringed the method patent and therefore Besten could not be liable for inducing Simonton to infringe. Besten’s estoppel argument was based on a theory that Simonton had an implied license to practice the claimed linear method. This theory was in turn based on Besten’s assertion that there were no uses of the corner keys Simonton bought from GED’s licensee Allmetal that did not infringe the method patent. Besten also counterclaimed that GED’s lawsuit was part of an attempt to monopolize the market for spacer frame linear extruding machines, as to which GED and Besten are competitors, in violation of section 2 of the Sherman Act and the corresponding West Virginia statute. Besten moved for summary judgment on its implied license defense. In response, GED introduced evidence of two nonin-fringing spacer frame manufacturing methods that can utilize folding, locking corner keys — the “handgun” and “cartwheel” methods (the “handgun” method involves manual spraying of sealant/adhesive on an assembled spacer frame and the “cartwheel” method involves passing an assembled spacer frame through a sealant/adhesive extruding machine so that one frame segment is coated, “cartwheeling” the frame so that another frame segment is coated on the next pass through the extruding machine, and repeating the process so that all frame segments are coated). In an unpublished opinion, the district court stated that the T95 apparatus and ’582 method patents ought to be “read together” to establish that the intended purpose of the corner keys produced by Allmetal under the ’195 apparatus patent license was to manufacture insulating windows via the claimed linear method. This was error. The court then stated that resolution of Besten’s summary judgment motion depended on whether there were “commercially viable” (ie., competitive) noninfringing uses for the folding, locking corner keys sold by Allmetal. In its later, published opinion, Glass Equipment Development, Inc. v. Simonton Windows Co., 929 F.Supp. 227, 229 (N.D.W.Va.1996) {GED I), the court found that the folding, locking corner keys sold by AIlmetaL had indeed been used to manufacture spacer frames via the noninfring-ing cartwheel method by Louisiana Pacific Company from 1981-83 and by Simonton until 1988, but that there was no nonin-fringing use of the corner keys as of September 1995. The district court also found that these companies had changed from the cartwheel method to the patented lin ear method because the latter was the most profitable manufacturing method. The court stated that the noninfringing methods of using the corner keys could not support the development and continuation of an ongoing business, because any business using a noninfringing method would be undersold by another business using the patented linear method. Based on these findings, the court held that (1) there were no current “commercially viable” noninfringing uses of the folding, locking corner keys sold by Allmetal; (2) Simonton therefore had an implied license through purchase and use of the comer keys from GED’s licensee AUmetal to use the patented linear method, and could not be held liable for infringement of that patent; and (3) because Simonton was not an infringer, Besten could not be held liable for inducing Simonton to infringe. Consequently, the court granted summary judgment in favor of Besten on its implied license defense. See GED I, 929 F.Supp. at 229-30. Based on its summary judgment in favor of Besten on the implied license defense, the court found that Besten had the right to sell linear extruding machines to companies that wished to purchase folding, locking corner keys from Allmetal and thereby obtain an implied license to practice the patented linear method. The court concluded that Besten had therefore suffered no antitrust damages and dismissed Bes-ten’s antitrust counterclaim with prejudice. GED appeals the district court’s grant of summary judgment in favor of Besten concerning its inducement of infringement allegation, and Besten appeals the. court’s dismissal of its antitrust counterclaim. ANALYSIS We review a district court’s grant of summary judgment de novo. See, e.g., Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 60 F.3d 770, 773, 34 USPQ2d 1822, 1824 (Fed.Cir.1995). Summary judgment is not appropriate unless there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where, as here, the parties do not contest the relevant underlying facts, our review of the court’s decision is plenary. Carborundum Co. v. Molten Metal Equip. Innovations, Inc., 72 F.3d 872, 877-78, 37 USPQ2d 1169, 1172 (Fed.Cir.1995) (citing Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765, 9 USPQ2d 1417, 1424 (Fed.Cir.1988)). We will now consider the implied license issue followed by the antitrust counterclaim. I, The Implied License Defense The existence of an implied license is a question of law which we review de novo. Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687, 231 USPQ 474, 476 (Fed.Cir.1986). Besten correctly asserts that if Simonton did have an implied license under the ’582 patent to assemble spacer frames by the methods claimed therein, GED would be estopped from maintaining a suit against Simonton for infringement and Besten could not be liable for inducing Simonton to infringe. See DeForest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, 241, 47 S.Ct. 366, 71 L.Ed. 625 (1927) (holding existence of license, even if implied, to be complete defense to action for infringement); see also Met-Coil, 803 F.2d at 687, 231 USPQ at 477 (stating that, absent any direct infringement because of implied license, there can be no inducement of infringement). When, as here, a party argues that the sale of a device carries with it an implied license to use that device in practicing a patented invention, that party has the burden to show that, inter alia, the purchased device has no noninfringing uses. See Carborundum, 72 F.3d at 878, 37 USPQ2d at 1172 (quoting Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 925, 223 USPQ 982, 998 (Fed.Cir.1984)). The district court concluded that Besten had shown that this test was satisfied, based on its finding that, as of September 1995 (the time of the final summary judgment hearing), there were no “commercially viable” methods of using the corner keys that did not infringe the ’582 method patent. Noninfringing Uses In Bandag, we reviewed the district court’s judgment, to determine whether any of the potential noninfringing uses of the patented method were reasonable. See Bandag, 750 F.2d at 925, 223 USPQ at 998 (reversing holding that infringement defendant had implied license to practice claimed invention). Here, two aspects of the district court’s noninfringing use analysis were in error and led to an incorrect conclusion that there were no noninfring-ing uses of the corner keys. First, the court improperly limited its analysis of the existence of noninfringing uses to the time of the final summary judgment hearing. Second, the court applied an overly restrictive profitability or “commercially viable” requirement to the noninfringing uses. We address each of these aspects. A. The Time Frame The district court concluded that GED’s failure to submit evidence showing a noninfringing use by at least one spacer frame manufacturer that was ongoing at the time of the last summary judgment hearing, viewed in light of Simonton’s and Louisiana Pacific’s earlier change from the noninfringing cartwheel method to the patented linear method, showed that there was no current noninfringing use of the corner keys. See GED 1, 929 F.Supp. at 230. The court’s time frame should not have been so limited, particularly where Besten had made no showing that changes in the insulated window business that were unrelated to commercial implementation of the patented linear method had caused the previously used noninfringing uses to become unreasonable for all insulated window manufacturers. B. The Commercial Viability Requirement The district court required that any potential noninfringing method be “commercially viable,” i.e., that it permit the user to sell the resulting device at a profit and “afford the development and continuation of an ongoing business.” GED I, 929 F.Supp. at 229 (citing Cyrix Corp. v. Intel Corp., 846 F.Supp. 522, 541 (E.D.Tex.1994), for definition of “commercially viable”). Applying this definition, the court held that only the most profitable method of using the corner keys would be acceptable. See id. at 230 (“If the linear extrusion method is more profitable than other methods of making insulated windows using folding, locking corner keys, then such methods cannot ‘afford the development and continuation of an ongoing business.’ ”). The court’s requirement that an acceptable noninfringing use be the most profitable alternative was incorrect. In Bandag, we held that a legally acceptable noninfringing use need not be as profitable as the patented method-it need only be reasonable. Given the undisputed facts of this case, we hold that Bestën did not meet its burden to show that there are no noninfringing uses of the folding, locking corner keys sold by Allme-tal under the apparatus patent license. Besten's failure to meet its burden with respect to this element of the applicable implied license test compels us to reverse the district court's grant of a summary judgment in favor of Beaten on the implied license issue. II. The Antitrust Counterclaim The district court dismissed Besten’s antitrust counterclaim with prejudice because the court concluded that Besten had suffered no antitrust damages. This conclusion was based on the court’s holdings that purchasers of folding, locking corner keys from Allmetal had an implied license to practice the patented linear method, and that Besten consequently was permitted to sell its linear extruder machines to those corner key purchasers for use in practicing that method. See GED I, 929 F.Supp. at 230. On appeal, both parties argue that the district court erred in dismissing this counterclaim because no discovery on that issue had been performed. We affirm the district court’s dismissal because, assuming that all of Besten’s relevant allegations are true, GED cannot have any antitrust liability. In its antitrust counterclaim, Bes-ten alleged that GED had elsewhere brought suit against Windsor Window Company, a window maker that was using Besten’s linear extrusion machines to manufacture spacer frame assemblies, and Besten, asserting infringement and inducement to infringe, respectively, of the ’582 method patent. Besten also alleged that GED had threatened analogous infringement suits against other companies that were using, or considering using, Besten’s linear extruding machines to manufacture spacer frames. Besten alleged that these actual and threatened patent infringement lawsuits by GED violated Section 2 of the Sherman Act and the corresponding West Virginia statute. A patent owner who brings a lawsuit to enforce the statutory right to exclude others from making, using or selling the claimed invention is exempt from the antitrust laws, even though such a suit may have an anticompetitive effect, unless the infringement defendant “proves (1) that the asserted patent was obtained through knowing and willful fraud within the meaning of Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), or (2) that the infringement suit was a mere sham to cover what is actually no more than an attempt to interfere directly with the business relationships of a competitor, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).” Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1068, 46 USPQ2d 1097, 1104 (Fed. Cir.1998) (internal quotation omitted). Here, Besten did not allege that GED obtained the ’582 method patent through knowing and willful fraud upon the Patent Office, or that GED’s actual or threatened infringement suits were sham litigations. Therefore, where Besten’s counterclaim was grounded only on GED’s attempts to enforce its right to exclude others from practicing the methods claimed in its ’582 patent, there is no reasonable possibility that the counterclaim could succeed. Consequently, we affirm the district court’s dismissal of this counterclaim with prejudice. CONCLUSION For the foregoing reasons, we reverse the district court’s grant of summary judgment on Besten’s implied license defense. We hold' that GED is entitled to a judgment as a matter of law that Simonton did not have an implied license to practice the invention claimed in the ’582 method patent. We affirm the dismissal of Besten’s antitrust counterclaim, and remand the case for further proceedings consistent with this opinion. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. . This case involves the question of whether the sale of an unpatented article grants an implied license to practice one or more methods claimed in a separate patent. This case does not involve the so-called “first sale” doctrine, as was argued to, and thus discussed by, the district court. The first sale doctrine stands for the proposition that, absent unusual circumstances, courts infer that a patent owner has given up the right to exclude concerning a patented article that the owner sells. Here, where the articles sold were corner keys, which are not themselves patented (they are merely embodiments of an unpatent-ed element of the '195 patent claims), and the license issue concerns GED's right to exclude concerning the method patent, not the apparatus patent, the first sale doctrine is inapplicable to the analysis of the facts. See Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 924, 223 USPQ 982, 997 (Fed.Cir.1984) (holding first sale doctrine inapplicable where equipment was sold and license/infringement issue concerned patent claiming method of using equipment). . A finding of no noninfringing uses does not necessarily compel a finding of an implied license to freely practice the patented invention. See Carborundum, 72 F.3d at 878, 37 USPQ2d at 1172 (holding that if implied license is found, scope of license must also be determined if in issue); see also Met-Coil, 803 F.2d at 686-87, 231 USPQ at 476 (noting that circumstance of sale may preclude finding implied license even if there are no nonin-fringing uses, with example thereof being original sale accompanied by express notice negating grant of implied license). . The issue in Bandag was whether a secondhand purchaser of tire retreading equipment that had been specifically designed to practice a patented retreading method had an implied license to practice the patented method. Bandag, the patent assignee, showed evidence of several potential noninfringing uses, including reselling the equipment (as a package or piecemeal); using the equipment to recap tires by a noninfringing method (which would have required modification of several machine components); using the equipment as replacement parts; and refraining from operating the equipment until the tire recapping patent expired (which would have required that the equipment .remain idle for some 18 months after it was ready for use). See Bandag, 750 F.2d at 923-25, 223 USPQ at 997-98. We reversed the district court, holding that the infringement defendant had failed to show that the alternatives to infringement were unavailable or unreasonable. See id. at 925-26, 750 F.2d 903, 223 USPQ at 998-99.

OPINION OF THE COURT STAPLETON, Circuit Judge: The University of Pennsylvania (“the University”) appeals from an order of the District Court denying its motion for summary judgment. The University premised its summary judgment motion on a claimed immunity from liability under the Noerr-Pennington doctrine. See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Before reaching the merits of the District Court’s decision, we must determine whether a denial of a summary judgment motion that is predicated on Noerr-Pennington immunity constitutes a final, collateral order appealable under 28 U.S.C. § 1291. Because we conclude that such an order is not appealable under the narrow collateral order doctrine, we will dismiss for lack of jurisdiction. I. The appellee, We, Inc., is the owner and operator of two adjacent establishments, a coin laundry and a pinball arcade, located near the appellant University of Pennsylvania’s dental school in West Philadelphia. This suit arises out of a Cease Operations Order that was issued to appellee by the City of Philadelphia after the University lodged numerous complaints with the City. The University alleges that, prior to the Order’s issuance, appellee’s businesses were a nuisance and a threat to public safety because they were the locus of a variety of disorderly and unlawful activities, including assaults, batteries, and curfew and truancy violations. Pursuant to this concern, the University repeatedly contacted the City of Philadelphia and urged action by the City to address what it perceived to be unlawful activity associated with the businesses. The University met with City representatives regarding its concern on several occasions and provided data gathered by the University Police to support its allegations. Without first providing notice or an opportunity for a hearing, the City issued a Cease Operations order to the businesses and posted it on the premises in the presence of University police officers. Following the order’s posting, We, Inc., filed suit against the City and the University under 42 U.S.C. §§ 1983 and 1985, alleging a deprivation of its property without due process. The City of Philadelphia settled the claims against them and the University moved for summary judgment, claiming immunity for at least some of its actions under the Noerr-Pennington doctrine. The District Court denied the University’s motion after finding that, by participating in the posting and execution of the Cease Operations Order, the University defendants’ conduct arguably went beyond the mere “petitioning” of government that the Noerr-Pennington doctrine is designed to protect. The University now appeals the District Court’s denial of summary judgment. II. A. Under 28 U.S.C. § 1291, appeals as of right are limited to “final decisions of the district courts.” The denial of a motion for summary judgment ordinarily is not afinal order and, accordingly, is not normally appealable. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992). Under the “collateral order” doctrine, however, a decision of a district court may be appealable as a “final decision” under 28 U.S.C. § 1291 if it (1) “conclusively determine[s]” the disputed question; (2) “resolve[s] an important issue completely separate” from the merits of the action; and (3) is “effectively unre-viewable” on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). If the order at issue fails to satisfy any one of these requirements, it is not an appealable collateral order. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); Christy v. Horn 115 F.3d 201, 204 (3d Cir.1997). Since Coopers & Lybrand, the Supreme Court has repeatedly referred to the collateral order doctrine as “narrow,” described the conditions for its applications as “stringent” and urged that it “should stay that way and never be allowed to swallow the general rule.” See e.g., Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Midland Asphalt Corp., v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). We have followed this admonition and consistently construed the collateral order exception narrowly “lest the exception swallow up the salutary general rule that only final orders be appealed.” Yakowicz v. Pennsylvania, 683 F.2d 778, 783 n. 10 (3d Cir.1982); see also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51 (3d Cir.1993). Moreover, strict construction of the collateral order doctrine is consistent with the longstanding congressional policy against piecemeal appeals that underlies the final judgment rule. See Lusardi v. Xerox Corp., 747 F.2d 174, 177 (3d Cir.1984). To guard against the temptation to expand the doctrine’s reach, the Supreme Court has instructed that “the issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs.” Desktop Direct Inc., 511 U.S. at 868, 114 S.Ct. 1992; Christy, 115 F.3d at 204. This approach reflects the Court’s insistence that the finality requirement of § 1291 must not be reduced to a case-by-case determination, see Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 439, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), and that courts consider appealability “without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted, by a prompt appellate court decision.” Desktop Direct, 511 U.S. at 868, 114 S.Ct. 1992 (citation omitted). Thus, in this case, we consider whether an order denying a claim of immunity under the Noerr-Pennington doctrine is an immediately appealable collateral order. B. The University contends that the denial of its claim of immunity under the Noerr-Pennington doctrine is immediately appealable under the collateral order doctrine. It likens Noerr-Pennington immunity to the absolute and qualified immunity enjoyed by public officials, the denial of which is immediately appealable under that doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). It is true, as the University stresses, that a denial of a motion for summary judgment based on Noerr-Pennington immunity, like the denial of a summary judgment based on official immunity, ordinarily will conclusively determine an important issue unrelated to the merits of the case. We therefore focus our attention on the third requirement of the collateral order doctrine—that the District Court’s decision be effectively unreviewable on appeal from the final judgment. In holding that an order denying qualified immunity to a public official is “effectively unreviewable on appeal from final judgment,” the Supreme Court reasoned in Mitchell v. Forsyth that an “essential attribute” of qualified immunity is “an entitlement not to stand trial under certain circumstances,” and thus qualified immunity entails “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526, 530, 105 S.Ct. 2806 (emphasis in original). As "with absolute immunity, this entitlement “is effectively lost if a case is erroneously permitted to go to trial.” Id. at 526, 105 S.Ct. 2806. Since Mitchell, denials of a state’s Eleventh Amendment immunity from suit in a federal court similarly have been held to be immediately appealable. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (“the very object and purpose of the 11th Amendment [are] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties”) (citation omitted). The Supreme Court has repeatedly urged courts to employ caution and restraint, however, in reviewing claims of a right not to stand trial. Not all defenses that warrant a pretrial dismissal entail a right not to stand trial. As the Supreme Court has explained, there is “a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.” United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). In Van Cauwenberghe v. Biard, 486 U.S. 517, 524-25, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), the Court noted that “[bjecause of the important interests furthered by the final-judgment rule and the ease with which certain pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should examine the nature of the right asserted with special- care to determine whether an essential aspect of the claim is the right to be free of the burdens of a trial.” In Desktop Direct, the Court was even more emphatic in insisting that efforts to obviate § 1291’s final judgment rule by claiming an immunity from suit should be critically assessed. “We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.... Thus, precisely because candor forces us to acknowledge that there is no single, ‘obviously correct way to characterize’ an asserted right, we have held that § 1291 requires courts of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye.” Desktop Direct, 511 U.S. at 873, 114 S.Ct. 1992. Thus, as the Supreme Court has framed it, “[t]he critical question, following Mitchell, is whether ‘the essence’ of the claimed right is a right not to stand trial.” Van Cauwenberghe, 486 U.S. at 524, 108 S.Ct. 1945. This Court has not yet addressed this critical question in the context of a claim to Noerr-Pennington immunity. We now proceed to do so, based on the nature and extent of protection afforded by Noerr-Pennington immunity and the Supreme Court’s general admonition that claims to immunity from suit be critically assessed. Because we conclude that the Noerr-Pennington doctrine does not provide an “immunity from suit” but rather only a defense against liability, we hold that a denial of a summary judgment motion predicated on Noerr-Pennington “immunity” is not effectively unreviewable on appeal from a final judgment. III. The Noerr-Pennington doctrine originated in the anti-trust context as the proposition that “joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.” See United Mine Workers v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The Supreme Court has predicated this antitrust “immunity” on two principles: first, the First Amendment right of citizens to petition the government and participate in the legitimate processes of government, and second, a statutory interpretation of the Sherman Act under which Congress is viewed as not intending the Act to reach the political process. As Noerr explained, “[t]o hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act. Secondly, and of at least equal significance, such a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.” Noerr, 365 U.S. at 137-38, 81 S.Ct. 523 (footnote omitted); see also City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (“The [Noerr-Pennington ] doctrine ... rests ultimately upon a recognition that the antitrust laws, ‘tailored as they are for the business world, are not at all appropriate for application in the political arena.’ ”) (quoting Noerr, 365 U.S. at 141, 81 S.Ct. 523). This court, along with other courts, has by analogy extended the Noerr-Penning-ton doctrine to offer protection to citizens’ petitioning activities in contexts outside the antitrust area as well. For example, in Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir.1988), we found that the Noerr-Pennington doctrine protected individuals from tort liability for their actions in petitioning the government to shut down a nursing home that was operating in violation of applicable regulations. Citing to the Noerr-Pen-nington doctrine in Brownsville, we affirmed an order granting summary judgment for the defendants, noting that: “The rule that liability cannot be imposed for damage caused by inducing legislative, administrative, or judicial action is applicable here. The conduct on which this suit is based is protected by the firmly rooted principle, endemic to a democratic government, that enactment of and adherence to law is the responsibility of all. The problem is not too much citizen involvement but too little. Thus, we hold that as a matter of law, defendants’ actions in calling Brownsville’s violations to the attention of state and federal authorities and eliciting public interest cannot serve as the basis of tort liability.” Id. at 160. Thus, the purpose of Noe'tr-Pennington as applied in areas outside the antitrust field is the protection of the right to petition. Immunity from liability is necessary so as not to chill the exercise of that right. The question presented by this ease is whether immunity from the burden of suit is also necessary to avoid an unconstitutional chill of the right to petition. It is helpful at the outset to note that the Petition Clause of the First Amendment neither enjoys “special First Amendment status” nor confers an “absolute immunity” for privilege. McDonald v. Smith, 472 U.S. 479, 484-85, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). As the Court held in McDonald, the Petition Clause is on a par with the freedoms to speak, publish, and assemble. It follows that the protection afforded by Noerr-Pennington is no more absolute or extensive than that provided by other First Amendment guarantees. We find this helpful because relevant jurisprudence concerning burdens of the right to freedom of speech is more fully developed than that concerning the right to petition. Citizens who exercise their First Amendment rights of free speech and free press enjoy significant protection from defamation liability in order to prevent undue chill on the exercise of those rights. See, e.g., New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (liability to public officials); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (liability to public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (liability to private individuals). The courts have never recognized, however, that an immunity from suit was necessary to prevent an unacceptable chill of those First Amendment rights. Indeed, the law appears to be to the contrary. In Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), respondent actress Shirley Jones claimed that she had been libeled in an article written by petitioners in Florida and published in a national magazine with a large circulation in California where she resided. Petitioners were served in Florida with process issued by a California court, and the issue was whether that court could exercise personal jurisdiction over petitioners. Although the intermediate appellate court in California concluded that petitioners’ contacts with California would ordinarily be sufficient, it held that jurisdiction could not be exercised “because of the potential ‘chilling effect’ on reporters and editors which would result from requiring them to appear in remote jurisdictions to answer for the content of articles upon which they worked.” Id. at 786, 104 S.Ct. 1482. The Supreme Court disagreed. While in no way disparaging petitioners’ First Amendment rights, the Court found that the burden of litigating in a distant forum was insufficient to constitute an unacceptable chill of the journalists’ exercise of such rights. As Chief Justice Rehnquist, writing for a unanimous court, put it: ... [t]he potential chill on protected First Amendment activity stemming from libel and defamation actions is already taken into account in the constitutional limitations in the substantive law governing such suits. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). To reintroduce those concerns at the jurisdictional stage would be a form of double counting. We have already declined in other contexts to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws. See, e.g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (no First Amendment privilege bars inquiry into editorial process). See also Hutchinson v. Proxmire, 443 U.S. 111, 120, n. 9, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (implying that no special rules apply for summary judgment). Id. at 790-91, 104 S.Ct. 1482. If safeguarding the First Amendment rights asserted in Calder did not also require protecting against the burden of litigating in a distant forum, it is unlikely the Supreme Court will find that the First Amendment protection Noerr-Pennington provides against liability for petitioning also includes an across-the-board immunity from suit. This court as well has rejected the notion that the burden of litigation poses an unacceptable threat to First Amendment values. At one point, the Fourth, Fifth, Eighth and D.C. Courts of Appeals took the position that summary judgment should enjoy a special status in defamation cases because “[t]he threat of being put to the defense of a lawsuit ... may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself.” Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966); see Anderson v. Cramlet, 789 F.2d 840, 843 (10th Cir.1986) (collecting cases). The Supreme Court “express[ed] some doubt” about such an approach in Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), however, and this court flatly rejected it in Lavin v. New York News, Inc., 757 F.2d 1416, 1419 (3d Cir.1985) (footnote omitted): In this case, the bench opinion of the district judge can reasonably be interpreted as expressing the view that, because of First Amendment concerns, summary judgment is more easily obtainable by a media defendant in a defamation case than by defendants in other cases. We reject that approach. A substantial dispute of material fact does not disappear merely because a media defendant is being sued, or because a public official is the plaintiff; and plaintiffs right to a jury trial is entitled to no less respect. Accord Clark v. American Broadcasting Cos., Inc., 684 F.2d 1208, 1212 (6th Cir.1982) (rejecting the argument that different considerations apply to summary judgment motions in the defamation context); Yiamouyiannis v. Consumers Union of United States, Inc., 619 F.2d 932, 939-40 (2d Cir.1980) (same); Anderson, 789 F.2d at 842-43 (declining to apply a preference either for or against summary judgment in defamation cases). If, as McDonald requires, the right to petition enjoys no special status among First Amendment rights, these authorities suggest that Noerr-Pennington immunity provides only a defense to liability, not an immunity from suit. Under the collateral order doctrine, therefore, the denial of a motion for summary judgment predicated on Noerr-Pennington is not a collateral order subject to immediate review. The only other court of appeals to have considered this issue reached a similar conclu sion. In Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir.1987), the defendants moved to dismiss a civil rights complaint on the ground that “their conduct enjoy[ed] an ‘absolute immunity’ by virtue of the guarantee in the First Amendment of the right to petition government for redress.” Id. at 345. The District Court denied the motion and the defendants appealed. The Court of Appeals acknowledged that “[w]here the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue of the collateral order doctrine.” Id. at 345. It nevertheless dismissed the appeal for want of jurisdiction, observing: It’s quite a leap, though, to say that anytime a motion to dismiss on First Amendment grounds is denied, the defendant can appeal the denial, on the theory that the failure to dismiss the suit at the earliest opportunity is itself an infringement of the defendant’s First Amendment rights. Id. The Segni court distinguished Noerr-Pennington immunity from “state action” doctrine under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), on the ground that the latter doctrine “had been intei’preted to create an immunity from suit and not just from judgment — to spare state officials the burdens and uncertainties of the litigation itself as well as the cost of an adverse judgment.” Id. at 346, 63 S.Ct. 307. The possibility that the “burdens of suit ... might deter [public officials] from vigorous execution of their office [was] a consideration missing in the case of the private defendant.” Id. We agree with the conclusion reached by the Segni court and with its explanation of the distinction between cases involving immunity for a public official and those involving immunity for a private defendant. Moreover, we have been unable to find any case holding that the burden of litigation on a private defendant justifies an immunity from suit as well as a defense to liability. In re Asbestos School Litigation, 46 F.3d 1284 (3d Cir.1994), a case heavily relied upon by the University, seems to us to support our conclusion. In that case, we considered a request for a writ of mandamus that would require the District Court to dismiss the claim against the petitioner, Pfizer, Inc. The underlying suit was a nationwide class action by 30,000 school districts against Pfizer and other former manufacturers of asbestos-containing building products. The plaintiffs claimed that Pfizer, by associating with a trade association, Safe Building Alliance (“SBA”), had joined an ongoing civil conspiracy and had thus become liable for all of the other defendants’ prior tortious conduct. After the District Court denied Pfizer’s motion for summary judgment, Pfizer petitioned this court, contending that the burden of further litigation in the District Court would chill its exercise of its First Amendment right of association. We first held that Pfizer had a “clear and indisputable” right to the issuance of the -writ because the District Court’s decision was “squarely inconsistent” with the Supreme Court’s holding in Claiborne Hardware that conspiracy liability cannot, consistent with the First Amendment, be imposed based upon mere association. Id. at 1289; NAACP v. Claiborne Hardware, 458 U.S. 886, 918-20, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). We then turned to the question of whether Pfizer had other adequate means to attain the desired relief, such as by waiting to appeal from the final judgment. We did not, as the University suggests, establish a rule that anyone with First Amendment protection from liability was entitled to an immediate appeal from the denial of a motion for summary judgment based on that protection. To the contrary, we issued the writ only after making a specific finding that waiting for an appeal from a final judg ment would cause Pfizer irreparable injury throughout the remainder of extensive proceedings before the trial court. We found that “[wjhile the district court’s ruling did not directly prohibit Pfizer from associating with the SBA during the remainder of the district court proceedings, there [could] be little question that in reality the district court ruling[would] powerfully inhibit Pfizer from doing so.” In re Asbestos, 46 F.3d at 1295. Pfizer had a need “to engage, by means of the SBA, in a ‘public dialogue on the important issue of safety of in-place asbestos containing building products,’ and Pfizer would suffer irreparable harm if it were deprived of the opportunity to engage in such constitutionally protected activity.” Id. at 1294-95 (footnote omitted). The fact that we found it necessary to find a specific and continuing chill on Pfizer supports the conclusion that the generalized chill of anticipated litigation on others who wish to petition is, alone, insufficient to overcome the strong policy against piecemeal appeals. Unlike Pfizer, the University has pointed to no specific continuing chill on anticipated petitioning, but rather only to the burden of defending the remainder of this litigation. In sum, the Noerr-Pennington doctrine provides immunity from liability for certain types of constitutionally protected activity. While of course “there is value — to all but the most unusual litigant — in triumphing before trial,” Van Cauwenberghe, 486 U.S. at 524, 108 S.Ct. 1945, the interest protected by Noerr-Pennington can be fully vindicated after trial. Without diminishing the importance of the First Amendment right to petition that is protected by the Noerr-Pennington doctrine, we hold that a right not to be burdened with a trial is simply not an aspect of this protection. Because we conclude that the Noerr-Pennington doctrine does not confer a right not to stand trial, but rather provides only a defense against liability for certain conduct, we find that an order denying Noerr-Pennington immunity is effectively reviewable on appeal from a final judgment, and thus is not an appealable collateral order. IV. We will dismiss the defendant’s appeal from the district court’s order denying summary judgment for lack of appellate jurisdiction. . 28 U.S.C. § 1291 provides: “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.... ” . This court's decision in San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.1994), is also consistent with the result that we reach. In San Filippo, this court held that a government employee is protected against retaliation under the Petition Clause for having filed suit against his employer on a matter of purely private concern. Although the employee would have had no First Amendment immunity against employer discipline if his expressive conduct had constituted speech, Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the court held that Con-nick 's "public concern" limit on the right of free speech did not apply to the plaintiff's exercise of his right to petition in this context. Id. at 443. The justification behind the "public concern” limitation on the Free Speech Clause protection of public employees was found inapplicable in the context of disciplinary action taken in retaliation for the employee's availing himself of a mechanism formally adopted by his government employer for the redress of grievances against the employer. Although the San Filippo court found that the Petition Clause provided broader protection than the right of free speech, both its holding and its reasoning were explicitly confined to the public employment/retaliatory discharge context. See id. at 438 ("the scope of the petition right depends upon the context in which the right is exercised”); id. at 438 n. 17 (rejecting as inapposite various cases arising outside the public employmenl/retaliatory discharge context); id. at 441-42 (finding that the government’s adoption of a formal redress process provides an "independent reason” for essentially "affording special treatment to speech found in a grievance” or similar petition). Thus, nothing in San Filippo contravenes our conclusion that, like other First Amendment rights, the right to petition protected by Noerr-Pennington immunity conveys an immunity from liability, but not from suit.

PER CURIAM: John W. Hearne seeks to appeal the magistrate judge’s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Hearne has not made the requisite showing. Accordingly, we deny his motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED. Both parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) (2006).

MEMORANDUM OPINION JOHN H. PRATT, District Judge. Plaintiff Alma M. Turner brings this action seeking review of a final decision of the defendant, Secretary of Health and Human Services, denying plaintiffs request for reconsideration of a determination of overpayment of disability benefits under Title II of the Social Security Act, 42 U.S.C. 401 et seq. or, in the alternative, plaintiffs request for a waiver of recovery of the alleged overpayment. Before the Court are plaintiffs motion for judgment of reversal and defendant’s motion for judgment of affirmance of the Secretary’s decision. For the reasons stated below, we find that the Secretary’s determination of an overpayment of benefits to plaintiff is correct and that the Secretary's failure to find that plaintiff was without fault in causing the overpayment and subsequent denial of waiver of recovery of the overpayment on that basis, is supported by substantial evidence. We therefore deny plaintiff’s motion for judgment of reversal and grant defendant’s motion for judgment of affirmance of the Secretary’s decision. I. Procedural History Plaintiff was first determined to be eligible for Disability Insurance Benefits (“disability benefits”) pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., as of May 15, 1978. Defendant does not dispute this determination of plaintiff’s eligibility for disability benefits. At the time of the filing of this action, plaintiff was 65 years old. She has a tenth grade éducation and has worked primarily as a food server and waitress. Beginning in February 1979, and continuing through March 1984, plaintiff worked part-time at Group Counseling Service, Inc., (“GCS”), an alcohol rehabilitation center, preparing and serving food for three hours a day on weekends. Plaintiff did not report this work activity to the Social Security Administration (“SSA”), erroneously interpreting her employer as stating that she could work part-time without jeopardizing her disability benefits. This advice was contrary to the statement on plaintiff’s original application form which she completed and signed in July 1978 that she “MUST NOTIFY THE SOCIAL SECURITY ADMINISTRATION PROMPTLY IF YOU GO TO WORK whether as an employee or a self-employed person.” On April 6, 1984, five years after beginning her work as a waitress, plaintiff was notified by SSA that, because of her employment, her entitlement to disability benefits ceased in November 1979. Plaintiff did not submit any evidence to the SSA and her disability benefits were suspended. Shortly thereafter, plaintiff ceased working and on April 17, 1984, filed a new application for disability benefits. On July 13, 1984, plaintiff also applied for Supplemental Security Income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (“SSI benefits”). Both applications were originally denied. On October 18, 1985, following a hearing, an Administrative Law Judge (“AU”), found that plaintiff was disabled and again entitled to disability benefits as of April 14, 1984, and SSI benefits as of July 13, 1984. This finding of entitlement to disability benefits is not challenged. On January 13, 1986, the SSA made a final determination that plaintiff had been able to perform substantial and gainful work in the time period 1979-1984. The SSA sent plaintiff an award certificate implementing the decision to award renewed disability and SSI benefits but notifying her of a determination of overpayment for the period between 1980 and 1984. However, the SSA omitted from the award certificate the reason and the amount of the alleged overpayment. A revised notice was sent to plaintiff on March 17, 1986, notifying her that she had been overpaid $16,000 for the period between March 1980 and March 1984, and that the benefits due her through December 1985, as a result of the reinstatement of benefits, were being adjusted or “netted” to reduce the amount of her overpayment, as provided in 20 C.F.R. § 404.502. On February 27, 1986, plaintiff requested a waiver of recovery of the overpayment, documenting the financial difficulties caused by the termination of her disability benefits in 1984. On April 21, 1986, plaintiff requested reconsideration of the determination of overpayment. On May 26, 1987, following a hearing, the AU found that plaintiff was not entitled to disability benefits during the disputed period and that she had been overpaid. However, the AU found that plaintiff was without fault in causing the overpayment. In addition, the AU found that the partial recovery of plaintiffs overpayment which had already occurred was proper and plaintiff was not entitled to the recovery of the “approximately $6,000” underpayment of her benefits, deducted by the SSA from plaintiffs second award of disability and SSI benefit payments. The AU did determine that plaintiff was entitled to a waiver of future recovery of the remainder of the overpayment since plaintiff was without fault in causing the overpayment and recovery would cause a hardship for her. (R. at 23-24). See Act 204(b); 42 U.S.C. § 404(b) (1982 Ed.). On February 17, 1988, the Appeals Council granted plaintiffs request for review of the AU’s decision. The Appeals Council reviewed the entire case pursuant to 20 C.F.R. § 404.976. Plaintiff had sought review by the Appeals Council of the AU’s decision that plaintiff was not entitled to recovery of the amount already “netted” or withheld. Instead, in a final decision issued May 2, 1988, the Appeals Council found that the AU had made an error of law, reversed the AU’s finding that plaintiff had been without fault for causing the overpayment and denied plaintiff a waiver of its recovery in its entirety. Plaintiff, having exhausted her administrative remedies, filed the present suit, seeking a reversal of the final agency decision of overpayment, the finding of fault, and the denial of waiver of recovery of the overpayment. II. Discussion A. Contentions of the Parties As an initial matter, the parties differ as to the exact nature of the issues before the Court for review. Plaintiff would have this Court 1) reverse the SSA’s determination of overpayment of benefits to plaintiff for the time period in dispute; if we decline to do so, then 2) declare unlawful the netting of underpayments to plaintiff with the claimed overpayments; 3) hold that the Appeals Council abused its scope of review when it reversed the AU’s finding that plaintiff was without fault in causing the overpayment; and finally, 4) find that the Appeals Council’s finding of fault and denial of waiver of overpayment is not supported by substantial evidence. In contrast, the defendant asserts that plaintiff waived the right to reconsideration of the determination of overpayment by her failure to make a timely request for administrative review. Consequently, defendant argues that only the final decision of the Secretary is subject to judicial review under 42 U.S.C. § 405(g). Since the Secretary has clearly delegated the duty of making final decisions to the Appeals Council, defendant contends that we must review only the decision of the Appeals Council, not that of the ALJ, to determine whether substantial evidence supports the Secretary’s decision. Thus, defendant argues, the only issue before the Court for review is whether the Appeals Council decision, as the final decision of the Secretary, that the ALJ had made an error of law in finding plaintiff without fault and granting a partial waiver of recovery of the overpayment, is supported by substantial evidence. We will deal with each of these questions in turn. B. Scope of Review It is not disputed that the Secretary delegated his power of review to the Appeals Council, whose decision, not that of the Administrative Law Judge, is subject to judicial review. Much of plaintiff’s argument ignores this distinction. In reviewing an agency’s action, in this case, that of the Secretary speaking through the Appeals Council, “deference is to be afforded the administrative decision and it is not for the trial court to review de novo the Secretary’s final decision as to findings of fact and the reasonable inferences to be drawn therefrom.” Reyes v. Secretary of Health, Education and Welfare, 476 F.2d 910, 914 (D.C.Cir.1973). The Court’s inquiry is limited to whether the Secretary’s final decision is supported by substantial evidence and untainted by an error of law. Smith v. Bowen, 826 F.2d 1120, 1121 (D.C.Cir.1987) (citing Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir.1986)). It is not our function to substitute our judgment for that of the agency. If substantial evidence exists, then the Secretary’s fact finding is conclusive and his decision must be affirmed. 42 U.S.C. §§ 405(g) and 1383(c)(3); Richardson ¶. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence is considered to be “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Beasley v. Bowen, 693 F.Supp. 1216, 1219 (D.D.C.1988). The evidence provided clearly must be “more than a mere scintilla.” Richardson, 402 U.S. at 401, 91 S.Ct. at 1427, but not “a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). The Court is not, however, to merely act as a “rubberstamp” to the administrative decision. Davis v. Heckler, 566 F.Supp. 1193 (D.D.C.1983). Rather, this standard of review “calls for careful scrutiny of the entire record,” Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C.Cir.1989) (quoting Brown, 794 F.2d at 705). The Court must determine whether the Secretary, acting through the Appeals Council and AU, has “analyzed all the evidence and has sufficiently explained the weight he has given to obviously probative exhibits,” Simms, 877 F.2d at 1050 (quoting Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3rd Cir.1983)). With these standards in mind, we proceed. C. Statutory Framework Disability benefits may be terminated because of a return to employment under 42 U.S.C. § 422(c)(4), if a claimant has engaged in Substantial Gainful Activity. Un der the SSA regulations, a claimant is entitled to a nine month trial work period before benefits are terminated. Id. If a person previously found to be disabled earns between $190 and $300 a month, the SSA looks to the amount of the earnings, the type of activity, the individual performance and the medical evidence relating to the impairment to determine if the employment is Substantial Gainful Activity. 20 C.F.R. § 404.1574(b)(2) (1987). Section 204 of the Social Security Act, 42 U.S.C. § 404, authorizes the Secretary to recover any overpayment of disability benefits granted under Title II of the Act. Whenever the Secretary finds that more or less than the correct amount of benefits has been paid with respect to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary. 42 U.S.C. § 404(a). It cannot be seriously questioned that plaintiffs employment was Substantial Gainful Activity. 1. Finding of Fault and Waiver of Overpayment The Secretary’s authority to waive recovery is not unlimited. The Social Se-cúrity Act permits the waiver of recovery of overpayment under certain circumstances. There is a two part test which must be met for such a waiver: 1) the claimant must be without fault, and 2) recovery must either be against the purpose of the Act or against equity and good conscience. 42 U.S.C. § 404(b); 20 C.F.R. § 404.506. Peterson v. U.S. Railroad Retirement Bd., 780 F.2d 1361 at 1363 (8th Cir.1985); Davis v. Bowen, 840 F.2d 822, 824 (11th Cir.1988). The Appeals Council found that the ALJ made an error of law in finding plaintiff without fault in causing the overpayment, and that therefore recovery could not be waived. (R. 8) An individual who receives an overpayment is “at fault” for this purpose if the overpayment results from: (a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or (b) Failure to furnish information which he knew or should have known to be material; or (c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect. 20 C.F.R. § 404.507(b). In determining whether an individual is at fault, the SSA is required to consider “all pertinent circumstances, including his age, intelligence, education, and physical and mental condition.” 20 C.F.R. § 404.507. Defendant asserts that plaintiff was at fault for failing to report her work activity during 1979-1984, information which she “knew or should have known to be material,” and the ALJ made an error of law in finding the plaintiff without fault. Plaintiff contends that the Appeals Council improperly reviewed the AU’s decision and urges this Court to review the AU’s finding that plaintiff was without fault pursuant to the above standard of review. It is the defendant’s position that only the Appeals Council decision is the final decision of the Secretary and thus subject to our review, without reference to the ALJ hearing decision. See 20 C.F.R. §§ 404.967 and 404.979 (Appeals Council may grant plaintiff’s request for review and issue its own decision modifying or reversing hearing decision.) We agree. As stated previously, the Social Security Act provides that federal courts may only review the Secretary’s “final decision,” and that judicial review of the Secretary’s findings of fact is limited to determining whether these findings are supported by substantial evidence. 42 U.S.C. § 405(g). Pursuant to his rulemaking authority under 42 U.S.C. § 405(a), the Secretary has delegated the duty of making “final decisions” to the Appeals Council. See 20 C.F.R. § 404.900. Therefore, defendant argues that we are confined to a review of the findings of the Appeals Council. We note that “[cjourts do not normally review the interim actions of AUs and lower agency officials. Rather they review final agency decisions.” Morris v. Sullivan, 897 F.2d 553, 559 (D.C.Cir.1990); see, e.g., Fierro v. Bowen, 798 F.2d 1351 (10th Cir.1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 789 (1987); Deters v. Secretary of Health, Education and Welfare, 789 F.2d 1181 (5th Cir.1986); Kellough v. Heckler, 785 F.2d 1147 (4th Cir.1986). In examining whether the Appeals Council’s determination that plaintiff was at fault and therefore not entitled to a waiver of overpayments, we are aware that that decision reversed the AU’s determination that plaintiff had been without fault for causing the overpayment and his resulting waiver of the uncollected portion of the overpayment. Nevertheless, it is the decision of the Appeals Council which is subject to judicial review. Based on such review, we are satisfied that the decision of the Appeals Council is supported by substantial evidence. 2. Netting of Overpayment and Underpayment The only remaining issue of substance concerns the netting of over-payments and underpayments. Plaintiff asserts that the SSA unlawfully netted underpayments of plaintiffs renewed benefits with the alleged overpayment. In a recent decision, Sullivan v. Everhart, — U.S. -, 110 S.Ct. 960, 108 L.Ed.2d 72 (1990), the Supreme Court addressed most of these issues when it considered the validity of the “netting” regulations promulgated by the Secretary pursuant to his authority. Under these regulations, the Secretary, as in this case, calculates the difference between past underpayment and past overpayment to an individual, then “nets” or sets off one against the other. The challenged regulation provides: The amount of an underpayment or overpayment is the difference between the amount paid to a recipient and the amount of payment actually due such recipient for a given period. An overpayment or underpayment period begins with the first month for which there is a difference between the amount paid and the amount actually due for that month. The period ends with the month the initial determination of overpayment or underpayment is made. 20 C.F.R. § 416.538 (1989). However, the Act further provides: In any case in which more than the correct amount of payment has been made, there shall be no adjustments of payment to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. Act 204(b); 42 U.S.C. § 404(b) (1982 Ed.). First, plaintiff argues that the Secretary’s netting of her alleged overpayment and underpayment was a violation of the latter regulation. Similarly, the challenge to the Secretary’s interpretation of the regulations in Everhart asserted that the netting of payments by the Secretary constituted an “adjustment” or “recovery”, thus triggering the requirement of compliance with the restrictions imposed by § 204(b). Id. 110 S.Ct. at 965; See Califano v. Yamasaki, 442 U.S. 682, 697, 99 S.Ct. 2545, 2555, 61 L.Ed.2d 176 (1979) (the limitation on adjustment or recovery of overpayment in § 204(b) gives recipients the right to an oral hearing on waiver of recoupment.) The Secretary defines the terms more narrowly, contending that when the agency nets an underpayment against an overpayment, it is not engaged in “adjustment or recovery,” but only “in the calculation of whether ‘more or less than the correct amount of payment has been made.’ ” Everhart, 110 S.Ct. at 966. Only after making the calculation of the proper amount of payment by netting does the Secretary take what is considered the “ad ditional step of rectifying any error by ‘adjustment’ (increasing or decreasing future payments) or ‘recovery’ (obtaining a refund from the beneficiary), id., triggering the requirements of § 204(b). The Supreme Court held that the Secretary’s reading of the regulation, while not an “inevitable interpretation of the statute; ... is assuredly a permissible one.” Id. According to Everhart, the Act “reasonably bears the Secretary’s interpretation that netting is permitted.” Id. Second, plaintiff argues that the netting of her alleged overpayment with underpayment of her renewed benefits was in violation of the regulations because the underpayment and overpayment occurred in two distinct periods. In Everhart, a similar challenge was raised. Upon consideration of the Secretary’s method of defining the period during which netting may occur, the Court “found no basis for holding the regulations arbitrary' and capricious.” Id. at 967. Overpayments are netted with underpayments up to the “month [of] the initial determination” of error. 20 CFR § 416.538 (1989). According to Everhart, the “initial determination” is a “term of art meaning the Secretary’s formal determination that an error was committed.” Id. at 966; see 20 CFR §§ 404.902, 416.1402 (1989). The Court dismissed the allegation that the Secretary might deliberately delay the formal initial determination date in order to net in additional underpayments, thus reducing the amount of overpayment subject to the recovery-waiver procedures, recognizing that “delay [of the initial determination] is inevitable.” Id. Plaintiff argues that the netting period applied to underpayment of her renewed benefits was improper. In support, plaintiff asserts that the claimed overpayment period began in February, 1980, the date the SSA determined plaintiff’s benefits should have been terminated, and ended on April 6, 1984, the alleged date when the SSA made its initial determination that plaintiff had been overpaid. Plaintiff's Motion for Judgment at 14. Since the underpayment period began on April 14, 1984 with respect to the disability benefits and on July 13, 1984 for the SSI benefits, as a result of the renewed finding of eligibility, plaintiff contends that the overpayment and underpayment took place in two different periods, resulting in an improper netting. Plaintiff is mistaken. The Appeals Council accurately noted that plaintiff’s overpayment period ended not in April 1984 but in January 1986, the month the initial determination of overpayment was made. (R. at 438). The April 1984 notice referred to by plaintiff was not a final determination by the Secretary, but only notified plaintiff that the Secretary was preparing to make a final determination and gave her an opportunity to submit evidence before a determination was made. Therefore, the overpayment period was between March 1980 and the date of the initial determination, January 1986. (R. at 344-348). Thus, the disability benefit payments due plaintiff as a result of the October 1985 decision awarding her renewed benefits between April 1984 and January 1986, were properly netted against the previous overpayment, in accordance with the relevant regulations and Everhart. 3. The Appeals Council’s Rejection of the ALJ’s Conflicting Findings Respecting Plaintiffs Entitlement to Overpayments The AU properly found that plaintiff was not entitled to disability benefits for the time period between 1980 and 1984 and thus had been overpaid. (R. at 24). In addition, the AU held that plaintiff was not entitled to the recovery of the “approximately $6000” underpayment of her benefits, id., previously deducted through the SSA’s netting of the claimed overpayment amounts from the renewed disability and SSI benefits awarded plaintiff in 1984. However, he also found that plaintiff was not at fault in causing the overpayment and waived future recovery of the remainder, finding that further repayment would cause a hardship for her. (R. at 24-25). Although reference is made to the AU’s apparently conflicting findings of the financial hardship caused by past and future recovery of the overpayment, after reviewing the financial documentation, he determined that plaintiffs financial condition warranted waiver of future recovery of the remaining overpayment amount. Plaintiff had sought review by the Appeals Council of the ALJ’s decision that plaintiff was not entitled to recovery of the amount already withheld. The Appeals Council reviewed the entire case pursuant to 20 C.F.R. § 404.976, reversed the ALJ’s finding of no fault and denied plaintiff any waiver of recovery. Plaintiff argues that the review by the Appeals Council was improper. The Appeals Council may only review a decision of an ALJ if it finds that one of the four specified conditions exist. 20 C.F.R. § 404.970(a). In the instant case, the Appeals Council relied on 20 C.F.R. § 404.970(a)(2) to reverse the ALJ’s decision that plaintiff was without fault. Under section 404.970(a)(2) the Appeals Council will review an ALJ’s decision if there is an error of law. The Appeals Council held that the ALJ made an error of law when he concluded that a notice plaintiff received in 1984 concerning the trial work period was misleading, thus confusing plaintiff and leading her to believe that she could continue to receive benefits while working part-time. (R. at 110). The Appeals Council pointed out that the 1984 notice was received by the plaintiff after the period when she should have been reporting her income. According to the Appeals Council, the- ALJ’s reliance on evidence which was not relevant to plaintiff’s understanding of her reporting duties during the period she was working was legal error. The Appeals Council apparently based its reversal of the ALJ’s finding that plaintiff was without fault on the existence of the language in the application apprising plaintiff of her responsibility to report work activity contained in plaintiff’s application for benefits and a form letter sent to her in December 1980. The Appeals Council dismissed plaintiff’s contention that her employer had informed her of her continued right to benefits despite her work activity, asserting that plaintiff “should have resolved any doubt in favor of contacting the Social Security Administration.” Defendant’s Motion at 7. Every application contains the same language. The AU undertook a comprehensive examination of plaintiff’s credibility and the special circumstances testified to by plaintiff when rendering his decision. (R. at 24). The ALJ’s decision not to waive the past recovery was apparently based on his con-clusory determination that such recovery would not defeat the purpose of Title II. Id. His decision to waive future recovery was based in part on evidence that plaintiff’s monthly expenses are approximately $950, while her monthly income, including all benefits, totals approximately $1,000. (R. at 23, 24). However, it is not our role to weigh the evidence presented, Beasley v. Bowen, 693 F.Supp. 1216, 1221 (D.D.C.1988) before the AU, nor may we replace the Secretary’s judgment concerning the weight and validity of the evidence with our own. Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983); Di Benedetto v. Secretary of the Department of Health and Human Services, 518 F.Supp. 786, 787 (D.D.C.1981). We therefore find that the Appeals Council’s decision that the AU had made an error of law is supported by substantial evidence. Accordingly, we hold that the Secretary’s determination that plaintiff received an overpayment for the period between 1980 and 1986 is supported by substantial evidence and further find that the Secretary’s netting of plaintiff’s overpayments and underpayments was entirely proper and within the netting period as defined in Ever-hart. In addition, we hold that the Appeals Council did not abuse its authority when it reviewed the entire case pursuant to 20 C.F.R. § 404.976. Finally, we find that the Secretary’s decision that plaintiff was at fault in causing the overpayment is supported by substantial evidence. Consequently, we deny plaintiff’s motion for judgment of reversal and grant defendant’s motion for judgment of affirmance. An order consistent with the foregoing has been entered this day. CHRONOLOGY July 13, 1978 Plaintiff applies for disability insurance benefits (Tr. 100-103). September 28, 1978 Plaintiff’s claim for benefits was granted. The onset of her disability is January 31, 1977. May 10, 1979 The onset date is later revised to May 15, 1978 (Tr. 104-106). February 1979 Plaintiff begins working at Group Counseling Service, Inc. She will continue to work there in every month through March 1984 (Tr. 134-139). She will not report this work activity to the Social Security Administration (“SSA”). Her trial work period of nine months begins in February 1979 and ends October 1980 (Tr. 110). December 19, 1980 Notice to plaintiff reminding her to report her return to work or any other change in her work status (Tr. 109). April 6, 1984 SSA notifies plaintiff that it appears that she regained the ability to perform substantial gainful activity in November 1979, and that as a result, her benefits should have been terminated in February 1980. This is not a formal determination; the notice gives plaintiff the opportunity to submit evidence before a formal initial determination is made (Tr. 110). April 17, 1984 Plaintiff files another application for disability insurance benefits (Tr. 97, 111-114). July 13, 1984 Plaintiff files an application for supplemental security income. This application was not available for inclusion in the record. October 18, 1985 An Administrative Law Judge finds that plaintiff is disabled based on her April and July 1984 benefits applications (Tr. 309-316). The onset of her disability is April 14, 1984. The Administrative Law Judge notes that no formal determination of whether plaintiff regained the ability to do substantial gainful activity in November 1979 has yet issued (Tr. 309-316, see especially Tr. 312, 315). January 13, 1986 SSA sends plaintiff an “award certificate” (Tr. 344-348). Plaintiff was notified of the decision that she had been overpaid and was further informed of her rights with respect to the overpayment and its recovery. March 17, 1986 Revised notice sent to plaintiff informing her of the amount of benefits she will receive by reason of her being found disabled by the October 1985 Administrative Law Judge decision. It informs her that she was overpaid between March 1980 and March 1984. Finally, it informs her that benefits due her through December 1985 by reason of the October 1985 Administrative Law Judge’s decision have been applied to reduce the amount of her overpayment. This notice is the formal initial determination regarding the fact and amount of plaintiff's overpayment and the amount of benefits she is to receive based on her 1984 claims for benefits. It apprises her that if she disagrees in any way with the determination, she may request reconsideration (Tr. 364). March 19, 1986 Rather than requesting reconsideration of the determination that she was overpaid and the amount of benefits due her, plaintiff requests that recovery of the'overpayment be waived by SSA (Tr. 365-368). February 17, 1987 Appeals Council grants plaintiffs request for review of the Administrative Law Judge’s decision. Appeals Council noted that overpayment be: gan in March 1980 and ended in January 1986 (Tr. 438). May 2, 1988 In the final reviewable decision of the Secretary in this matter, the Appeals Council determines that recovery of plaintiffs overpayment cannot be waived because plaintiff was at fault in causing that overpayment (Tr. 5-8). A useful chronology of much of the facts has been helpfully supplied by government counsel and is attached hereto. Government's Reply, Attachment. . Plaintiffs earnings per month averaged $306.82 in 1979, $362.50 in 1980, $402.17 in 1981, $290.72 in 1982, $320.92 in 1983 and $240.72 for the first three months of 1984. . Plaintiff claims to have been confused by this notice concerning a trial work period, thinking that it permitted her to work part-time while receiving disability benefits. . The overpayment period in this case is March, 1980 through March, 1984, the period of plaintiff’s employment with Group Counseling Service, Inc., following the completion of her trial work period. A trial work period allows a recipient of disability benefits to test her ability to work. Work performed during this time will not be considered as showing that disability has ended until the recipient performs services for nine months. 20 C.F.R. § 404.1592. Although plaintiff began work in February, 1979, the start of her trial work period was considered by SSA to be March, 1979. Plaintiff’s impairments were thus considered no longer disabling in December, 1979, the first month of work after the end of the trial period, and her benefits were terminated as of March, 1980, the third month following the month in which her impairments were no longer disabling.' 20 C.F.R. §§ 404.316(b) and 404.325. .20 C.F.R. § 404.502(a)(1) states, in pertinent part, that: If the individual to whom an overpayment was made is at the time of a determination of such overpayment entitled to a monthly benefit or a lump sum under Title II of the Act, or at any time thereafter becomes so entitled, no benefit for any month and no lump sum is payable to such individual, except as provided in paragraphs (c) and (d) of this section, until an amount equal to the amount of the overpayment has been withheld or refunded. . Defendant argues that plaintiff waived her right to challenge the determination of overpayment by her failure to seek timely review. . Plaintiff claims that the actual amount of the underpayment was $8,856.70. This figure is the total of unpaid benefit amounts for 1984 ($2,873.70), 1985 ($4,459.00) and 1986 ($1,526.00). (R. at 322.) . The regulations concerning SSI benefits authorize the Secretary to determine whether "more or less than the correct amount of benefits has been paid.” '42 U.S.C. § 1383(b)(1)(A) (1982 Ed., Supp. IV). The Secretary is authorized to "make rules and regulations and establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions.” Act § 205(a), 42 U.S.C. § 405(a) (1982 Ed.); see also Act § 1631(d)(1), 42 U.S.C. § 1383(d)(1) (1982 Ed., Supp. IV). . The actual amount of underpayment, according to plaintiff, is $8,856.70. . We note that, as a result of the netting of underpayments and overpayments by the SSA, plaintiff did not receive any of the renewed benefit payments to which she would be entitled from April 1984 to January 1986. (R. at 321— 23). . Plaintiff documented her financial condition as a result of the termination of her disability benefits in 1984. This documentation showed that plaintiff was past due on payment of her rent (R. at 355, 359), her gas bill (R. at 357), electric bill (R. at 358), and medical bills (R. at 356, 362). . Recovery would “defeat the purpose of Title II" if it "would deprive a person of income required for ordinary and necessary living expenses.” 20 C.F.R. § 404.508(a). Specifically, 20 C.F.R. §§ 404.508(a)(1) and (2) provide that the purposes of Title II are defeated if recovery of an overpayment would prevent an individual from meeting "[f]ixed living expenses, such as ... rent ... utilities [and] [m]edical, hospitalization, and other similar expenses.” .20 C.F.R. § 404.970(a) provides: The Appeals Council will review a case if— (1) There appears to be an abuse of discretion by the administrative law judge; (2) There is an error of law; (3) The action,, findings or conclusions of the administrative law judge are not supported by substantial evidence; or (4) There is a broad policy or procedural issue that may affect the general public interest.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT QUACKENBUSH, Chief Judge. BEFORE THE COURT are the plaintiff’s Motion for Summary Judgment (Ct.Rec. 9) and the defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 19), heard with telephonic oral argument on May 18, 1990. Richard B. Price appeared on behalf of the plaintiff. Richard J. Birmingham represented the defendants. Having reviewed the record and heard from counsel, IT IS HEREBY ORDERED that plaintiff’s Motion for Summary Judgment is DENIED; the defendants’ Cross-Motion for Summary Judgment is GRANTED. Background The plaintiff, Mr. George Poole, initially filed suit in this court on July 24, 1987, seeking recovery of short-term and long-term disability benefits pursuant to Seaf-irst Corporation’s Long-Term Disability Plan (“Plan”). See Poole v. Seattle First Nat’l Bank, C-87-455-JLQ. By order dated July 28, 1988, see id., Ct.Rec. 40, the court denied the defendant’s summary judgment motion and remanded the case back to the defendant’s Employee Benefit Committee (“Committee”). The Committee was ordered to reevaluate the plaintiff’s claim, taking into account various specified factors that might not have been considered previously. On April 17, 1989, the Committee issued its written decision again denying the plaintiff any disability benefits under the Plan. See Ct.Rec. 22, Exhibit A. The plaintiff then filed the present action seeking judicial review of the Committee’s ruling. The plaintiff is a 64-year-old retired branch manager with Seafirst Bank who suffers from a relatively rare form of eye disease called recurrent central serous reti-nopathy. He has the condition in both eyes, although the condition has always been more prominent in the right eye. The disease is of unknown etiology, but it primarily occurs in males between the ages of 25 and 45. Symptoms include distortion of vision due to periods of swelling or fluid accumulation under the retina in the macu-lar portion of the eye causing impairment of vision in varying degrees. In some people it causes no permanent deterioration of central vision. It tends to be recurrent, possibly occurring up to several times a year. With each recurrence there is usually some permanent retinal damage and with each recurrence there is apt to be further visual deterioration that may be permanent. In 80 to 90 percent of the patients with this condition, any vision impairment clears up spontaneously and the vision returns to normal or near normal. Patients usually have the recurrences in only one eye; however, 5 to 10 percent of the patients have recurrences in both eyes. Also, among only 5 to 10 percent of the cases, vision eventually deteriorates to worse than 20/40. The plaintiff first experienced symptoms of the disease in 1961. He continued working for Seafirst despite suffering recurrences of the disease in both eyes over the next twenty plus years. The plaintiff’s medical history shows that, during this period, he experienced a higher than normal frequency of recurrences; he suffered symptoms through age 58 which is some 13 years beyond the time when it is expected that such episodes would subside; and his vision deteriorated beyond the range of damage experienced by the vast majority of patients with this condition. During the flare-up episodes, the plaintiff would either take sick leave or go to work and delegate certain of his job functions to other bank personnel until the symptoms passed. In 1982, the plaintiff suffered a final recurrence of central serous retinopathy. At that time, the plaintiff’s treating physician, Dr. James Thorn, made statements that led the plaintiff to believe that his problem was related to stress on the job. The plaintiff’s superiors, Mr. John Moen and Mr. Robert Hague, also became increasingly concerned about Mr. Poole’s failing eyesight and urged him to take an early retirement. The plaintiff ultimately made the decision to retire in March 1982, with the understanding that his decision would not preclude future disability benefits should he qualify under the Plan. It appears that Mr. Poole has had no recurrence of the disease since his retirement in 1982. After his retirement, the plaintiff discussed submitting a formal disability claim with Dr. Thorn and company personnel. The formal application did not fit this particular condition and Mr. Poole was encouraged to seek an informal revue of his situation. The defendant agreed to determine whether the plaintiff, in fact, was disabled on an informal basis, giving the plaintiff the opportunity to submit anything he could to establish his claim. In April 1985, after receiving letters from several physicians, including Dr. Thorn, the defendant sent the plaintiff a letter stating that the Committee had determined that under the terms of the Plan he was not disabled at the time of his retirement. It was at this point that the plaintiff filed his original action in state court — the case ultimately being removed to federal court and thereafter remanded back to the Committee. On remand, the Committee again denied Mr. Poole's claim for disability benefits, but only after considering numerous factors and a voluminous amount of evidence, including the matters set forth in the previous order of the court, and making written findings setting forth the reasons for its decision. See Ct.Rec. 22, Exhibit A. The gist of the Committee’s determination is summed up in the following paragraph: The Committee found that at the time of your retirement from Seattle-First National Bank (the “Bank”) in 1982 you had sufficient visual acuity to perform the essential duties of your occupation. Therefore, the Committee has found that you were not disabled when you retired from the Bank in 1982. You also argued that although you had sufficient visual acuity in 1982 to perform your job, it was likely that your vision would rapidly deteriorate (to the point of blindness) if you remained on the job. The Committee has found no concrete scientific evidence that supports this position. In the absence of such evidence, the Committee will continue to interpret the Disability Plan as it has done in the past. To obtain disability payments under the Plan, an employee, at the time of an illness of [sic] injury, must demonstrate the complete inability to perform the essential duties of his occupation. The Committee will not award disability payments based on speculation, conjecture or a “guess” as to what may happen in the future. For these reasons, your claim for disability payments has been denied. Because the Committee found that you were not disabled at the time you left the active employment of the Bank, the Committee need not reach the issue of whether you are now permanently disabled, although it is Dr. Millay’s opinion that you are not currently disabled. Id. at 1-2. In arriving at this conclusion, the Committee considered evidence that was partially conflicting, thus forcing the Committee to weigh the various statements and opinions. It is necessary, therefore, to set out the evidence in some detail. The Committee first considered the plaintiff’s testimony with regard to the effects of the disease, the reasons for his decision to retire, including the fear of permanent and total blindness, the suggestions of his superiors that he take an early retirement, and the reasons why he waited until 1982 to cease working. The Committee found, however, that the plaintiff had sufficient visual acuity to preclude disability in 1982 and that the plaintiff’s decision to retire was wholly voluntary. The Committee also considered the statements of Mr. Richard Price, the plaintiff’s attorney, in which he pointed out that the risk of staying on the job and becoming blind was unreasonable, and that retirement was the only reasonable method by which the plaintiff could deal with the situation. Mr. Price also noted, and the Committee accepted as fact, that all the physicians that had examined the plaintiff indicated that (1) his visual acuity was somewhat worse than normal for people with the disease, (2) the plaintiff had higher frequencies of attacks than normal, (3) he was not in an unusual age class for the disease when it first occurred, (4) it was unusual to have the disease in both eyes, and (5) the deterioration of the plaintiffs right eye vision was worse than normal. Nonetheless, citing the conclusions of the various medical doctors (set out below), the Committee found that the plaintiff was not disabled at the time of retirement and that there was no scientific evidence to support Mr. Price’s hypothesis that the plaintiff would have become blind had he remained on the job at Seafirst. By far the most relied upon evidence came in the form of statements, deposition testimony, and correspondence from three separate physicians: Dr. Thorn, Dr. Steven Guzak, and Dr. Robert Millay. Dr. Thorn, the plaintiffs treating physician throughout the relevant period, is an ophthalmologist but not a retinal specialist. In his statement, Dr. Thorn offered the opinion that the plaintiff was and is totally disabled. The Committee, however, discounted this statement as being limited to those periods when the disease was exhibiting active symptoms, at which times the plaintiff was being paid sick leave from the Bank. Dr. Thorn’s response to a specific question in the statement is the basis for the Committee’s finding. As indicated, on any given day Mr. Poole could probably perform whatever duties might be required of him. Again, as stated previously, during the exacer-bations of his disease process, when his vision is affected, he probably could not perform his duties, but at other times could easily do so. Ct. Rec. 22, Exhibit F. Dr. Thorn further stated, however, that [because his] records indicate that Mr. Poole has not experienced any exacerbation of his retinopathy since leaving the bank in April, 1982[, there is support for the] belief, with what little information is available to the medical community regarding this disease process, that stress in certain individuals can be a factor in recurrence. Id. But, in his deposition, Dr. Thorn admitted that there is no medical evidence that would support his conclusion. Id., Exhibit K, at 16. In 1982, Dr. Thorn referred the plaintiff to Dr. Guzak, a retinal specialist. Dr. Gu-zak examined the plaintiff only once, in October 1982, and offered his opinion that the plaintiff was not disabled. He stated: At the time of his examination, Oct. 5th 1982 the patient’s vision was sufficient to perform the essential duties as a banker. He probably had periods of time when his eye disease was active when he could not see well enough to perform those duties but I do not have information to determine how often or how long or how many these periods were. Id., Exhibit E. With regard to the element of stress, Dr. Guzak stated as follows in a subsequent letter: Although it certainly is true that the episodes of central serous seem, on occasion, to be associated with stress, I am not certain that one can implicate stress as the etiologic factor on the basis of our present knowledge. Id., Exhibit H. Finally, in a letter dated March 7, 1989, Dr. Guzak stated: “As removal of stress has not been shown to affect the course of this disease, I would not recommend retirement as a form of treatment or to prevent recurrent activation of the process.” Id., Exhibit A. Dr. Millay is a retinal specialist retained by the defendant to offer his medical opinion in this matter. Dr. Millay performed a study on the plaintiff in November 1988. In his statement, Dr. Millay opines that, based on the Snellen Acuity Test, the plaintiff was not disabled prior to his retirement in 1982. He states that the plaintiff’s “vision in March 1982 OD 20/50 and OS 20/20 should have been adequate for office tasks.” Id., Exhibit G. He states further that “[e]ven at the present time it might be possible for Mr. Poole to perform some of the tasks of office work especially with low vision aids.” Id. With regard to the stress element, Dr. Millay commented: Emotional upset and more recently type A behavior personality have been implicated as possible causative factors in central serous retinopathy. The most com- píete article on this particular aspect of central serous retinopathy has observed the following “of no significance is factor J which measures a patient’s employment setting,” implying at least in his study that the work setting had no definable association with central serous reti-nopathy. He further goes on to say that “the mechanism and the degree of the behavioral influence on central serous re-tinopathy must undoubtedly remain open to question until further evidence supports the concept that an intense and/or sustained behavioral pattern can influence or evoke through physiologic means the development of pathologic disturbance of the eye.” Id., Exhibit H. Finally, the Committee considered certain correspondence from the plaintiffs superiors, Mr. Moen and Mr. Hague. See id., Exhibit M. From this, the Committee found that both individuals were extremely concerned about the plaintiffs health and urged the plaintiff to retire, but that the decision to retire was wholly voluntary with the plaintiff. The Defendant’s Plan Several provisions of the defendant’s Long-Term Disability Plan are of particular importance to the analysis that follows. First, the term “disability” is defined as the “complete inability of an employee, due to sickness or injury, to perform the essential duties pertaining to his occupation.” Ct. Rec. 22, Exhibit 0, at 2. After 24 months of receiving disability payments, the employee must establish “total disability,” which is defined as the “complete inability of the employee, due to sickness or injury, to perform the duties of any reasonable occupation for which he is or could become qualified by training, education or experience.” Id. Second, the Plan sets forth the duties, obligations, and level of discretion of the Committee in carrying out its intended purpose. The existence of disability shall be determined by the Employee Benefit Committee in its sole discretion. The Committee will require medical evidence both initially and thereafter during any period of alleged disability. Such evidence shall be in such amounts and in such form as the Committee in its discretion may require. Id. at 3. If a disability is found to exist, “[a] covered employee shall qualify for benefits hereunder in the event of his disability arising from a nonoccupational injury or sickness.” Id. The rights and duties of the Committee are defined in relevant part as follows: The Committee shall be the administrator and named fiduciary of the Plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended. The Committee, on behalf of the participants and their beneficiaries, shall have the authority to control and manage the operation and administration of the Plan and shall have all powers necessary to accomplish the purposes of the Plan. The responsibility and authority of the committee shall include but shall not be limited to the following: ■ (5) Interpretation of the provisions of the Plan and publication of such rules for the regulation of the Plan as are deemed necessary and are not inconsistent with the terms hereof. Id. at 8-9. Finally, with regard to the plaintiff’s claim that there exists an inherent conflict of interest, the following provisions are relevant: The Committee shall be appointed by the board of directors of the Company. Each member of the Committee shall be an active officer of the Company.... All members of the Committee shall serve at the pleasure of the board of directors and may be removed from the Committee at any time with or without cause. Id. at 7. The Plan is self-insured, and benefits are payable solely from the assets of the Company. Id. at 9. The Committee shall discharge its duties with respect to the Plan solely in the interest of the participants and (1) for the exclusive purpose of providing benefits to the participants and deferring reasonable expenses of the Plan; (2) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aim; and (3) in accordance with the Plan’s provisions. Id. at 9-10. Discussion The plaintiff has moved for summary judgment on his claim that the Committee wrongfully denied him disability benefits under the Plan. He argues that recent Supreme Court precedent dictates a de novo review by the court of the Committee’s decision and that, in light of the evidence presented, the court should find that he was disabled as a matter of law. The plaintiff contends that de novo review is proper either by virtue of the limited discretion granted the Committee under the Plan or by reason of the Committee’s inherent conflict of interest in balancing the claims of the Plan participants against the Company’s economic interests. In the alternative, the plaintiff argues that the evidence so clearly establishes his disability that the Committee abused its discretion under an arbitrary and capricious standard. The defendant counters with a cross-motion for summary judgment. Although its argument proceeds on the initial premise that an arbitrary and capricious standard applies in this case, the defendant contends that, as a matter of law, the plaintiff has not established that the Committee was in error under any standard of review. The defendant also makes a short, passing argument that the plaintiff’s claims are barred by the applicable statute of limitations, and ultimately asks the court to award a reasonable attorneys’ fee as provided by statute. A. Statute of Limitations The defendant maintains that the applicable statute of limitations in this case is RCW 4.16.040, which calls for a time limit of 6 years in actions involving a written contract. The defendant cites Nolan v. Aetna Life Ins. Co, 588 F.Supp. 1375 (S.D.Mich.1984), for the proposition that the statute of limitations under ERISA for a disability claim is the analogous state statute of limitations for breach of contract. Seafirst argues that, because the plaintiff retired in 1982 and did not bring the present action until 1989, the time has run and the claims are barred. The plaintiff’s claim is brought under 29 U.S.C. § 1132 as a suit by a plan participant to recover benefits under the terms of the plan. In a separate section of ERISA, one finds a provision entitled “Limitation of actions”: No action may be commenced under this title with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of— (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation. Id. § 1113. In Nolan, cited by the defendant, the court held that § 1113 did not apply to actions under § 1132, because the latter section was not within the “part” referenced in § 1113. Nolan, 588 F.Supp. at 1378. Thus, the court turned to the most analogous state statute. The state of the law in the Ninth Circuit is not entirely clear. In Pierce County Hotel Employees and Restaurant Employees Health Trust v. Elks Lodge, B.P. O.E., No 1450, 827 F.2d 1324 (9th Cir.1987), the court held that “29 U.S.C. § 1132, does not contain a statute of limitations. We therefore must choose the limitations peri od from a statute governing analogous claims.” Id. at 1328. The court went on to hold that, in a trusts’ collection action under ERISA against an employer, RCW 4.16.040 is applicable. Id. In a more recent case, however, in which a plan participant challenged the denial of certain benefits under § 1132, the court simply cited § 1113 and assumed that it was the applicable statute of limitations. See Meagher v. IAM Pension Plan, 856 F.2d 1418, 1422 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1943, 104 L.Ed.2d 414 (1989). The court was entirely silent on the issue whether the statute should apply. In the present case, the court need not decide which statute applies because the plaintiff’s complaint is timely in either instance. The solution lies in determining the point at which the limitations period began to run. The defendant obviously contends that the clock started on the day the plaintiff retired. The court disagrees. “A cause of action accrues, and the statute of limitations begins to run, when a plaintiff knows or has reason to know of the injury that is the basis of the action.” Pierce County, 827 F.2d at 1328. In making this determination, the court must isolate and define the underlying violation upon which the claim is based. Meagher, 856 F.2d at 1422. In this case, the violation occurred, if at all, on April 17, 1989, when the Committee denied the plaintiff’s application for disability benefits under the Plan. Only at that point did the plaintiff know that he might have been harmed and that he would have to seek judicial review. The plaintiff filed his complaint on July 21, 1989, some 3 months after his claim was rejected by the Committee. Based on the analysis above, the defendant’s argument is without merit. The court finds that the plaintiff's complaint was filed timely even under the most restrictive limitations period available. B. Standard of Review Last year, in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court settled a long-standing conflict among the federal circuits as to the appropriate standard of judicial review of decisions made by plan fiduciaries. The Court stated: Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Id. 109 S.Ct. at 954. Thus, in the present case, the court must review the Committee’s decision in de novo fashion unless the requisite discretionary authority is apparent from the provisions of the Plan. See International Bhd. of Elec. Workers, Local 47 v. Southern Cal. Edison Co., 880 F.2d 104, 108 (9th Cir.1989); Johnson v. Trustees of Western Conf. of Teamsters Pension Trust Fund, 879 F.2d 651, 654 (9th Cir.1989). Because Firestone is a bellwether case that substantially altered the state of the law under ERISA, the court will use and cite only cases decided after Firestone in applying the above test to divine the appropriate standard of review in this case. “There are obviously no magic words required to trigger the application of one or another standard of judicial review.” De Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989). To invoke the Firestone exception to de novo review, it need only appear on the face of the plan documents that the administrator is given the power to interpret the provisions of the plan or to resolve disputes over benefit eligibility. Id. Thus, in a case in which the plan document stated that the administrator had the authority to “determine all questions of interpretation, policy or administration ... of the plans of [participating] employers,” the court applied the arbitrary and capricious standard. See St. Mary Med. Center v. Cristiano, 724 F.Supp. 732, 741 (C.D.Cal.1989); see also De Nobel, 885 F.2d at 1186 (committee possessed power to “determine all benefits and resolve all questions pertaining to the administration, interpretation and application of Plan provisions”); Bali v. Blue Cross and Blue Shield Ass’n, 873 F.2d 1043, 1047 (7th Cir.1989) (discretionary authority found where term “disabled” defined as a determination “on the basis of medical evidence satisfactory to the Committee”); Jett v. Blue Cross and Blue Shield of Ala., 890 F.2d 1137, 1139 (11th Cir.1989) (plan administrator granted “exclusive right to interpret the provisions of the Plan, so its decision is conclusive and binding”). The Ninth Circuit, however, has declined to preclude de novo review based on a plan provision that contained the following language: “charges deemed unreasonable by the [administrator].” See Southern Cal. Edison, 880 F.2d at 108. In this case, we are faced with plan provisions that seemingly satisfy both prongs of the Firestone exception. The Committee, in its sole discretion, is to determine the existence of a disability and the amount of evidence required to establish a claim. See Ct. Rec. 22, Exhibit O, at 3. Furthermore, the Committee has the responsibility and authority to interpret the provisions of the Plan. See id. at 8-9. Thus, the discretion granted the Committee appears to be relatively complete. At oral argument, counsel for the plaintiff argued that the needed discretion was lacking because the plan does not expressly provide that the decision of the Committee will be binding — an element counsel claims was dispositive for the court in Exbom v. Central States, Southeast and Southwest Areas Health and Welfare Fund, 900 F.2d 1138 (7th Cir.1990). Whether or not the Plan uses the word “binding,” however, is unimportant because, as stated above, the determination of the proper standard of review is not one of semantics. Obviously, a decision made by one authorized to do so in his sole discretion must be considered binding on all those affected thereby. To hold otherwise would necessitate a total disregard for the clear import and meaning of the term “sole discretion.” Thus, the argument does not carry the day. Indeed, given that it is the discretion of the fiduciary upon which the standard of review determination is made, under a semantics argument the use of the word “discretion” at least twice at critical points in the Plan would cut in favor of the defendant. Thus, to this point the court can find no basis for dispensing with the abuse of discretion standard in favor of de novo review. The plaintiff argues that the plan in question has such a built-in bias or conflict of interest that a more stringent standard of review is required than that of arbitrary and capricious. Although the court does not necessarily agree with the plaintiffs characterization of the relevant law, if a conflict does exist the court must take that fact into account in applying the arbitrary and capricious standard. In Firestone, the Court stated: “Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘faetor[ ] in determining whether there is an abuse of discretion.’ ” Firestone, 109 S.Ct. at 956 (quoting Restatement (Second) of Trusts § 187, comment d (1959)). The defendant argues that there is no conflict of interest because the plan directs the Committee to “discharge its duties solely in the interests of the Participants.” See Ct. Rec. 22, Exhibit O, at 9. Thus, despite the fact that the members of the Committee are active officers of the Company, serve at the pleasure of the board of directors, and administer a self-insured plan in which benefits are paid out of the assets of the Company, the defendant maintains that the court should not consider the likelihood of bias. In support of this proposition, the defendant quotes the following language from the Fourth Circuit’s opinion in De Nobel: In [these] circumstances, we obviously cannot attribute “presumptive bias” to the administrators — notwithstanding that they serve dual roles as company employees and pension plan fiduciaries.... ... Adverse benefits determinations may well have saved considerable sums, but that may simply reflect that the trustees, bearing in mind the interests of all participants and beneficiaries ... made a considered decision to preserve the corpus of the trust, rather than grant a doubtful claim. De Nobel, 885 F.2d at 1191. What the defendant conveniently fails to quote for the court is the portion of the opinion immediately preceding the above language in which the Fourth Circuit defined what it meant by “these circumstances.” Before stating its holding, the court explained in vivid detail that the benefits trust in that case was fully funded and that, although the defendant made contributions to the fund, any benefits decision had an immediate impact only on the fund itself; thus, the defendant incurred no direct, immediate expense by reason of a determination favorable to a plan participant. Id. The present case offers a far different factual scenario. The defendant’s Plan is self-insured and benefits are paid directly out of the assets of the Company. The impact of the Committee’s decisions on the Company, therefore, is both immediate and direct. Such an arrangement must cause this court considerable pause as it reviews the impartiality of a decision made by Committee members who, as required by the Plan, are active officers of the Company and can be removed by the Company without any cause whatsoever. Of additional concern to the court in this regard are the admissions of defense counsel that he provides legal advice to the Committee, and even reduced to written form the Committee’s denial of benefits to the plaintiff, despite the fact that his fees are paid by the defendant bank. Counsel, of course, points out that any attorney hired by the Committee must look to the Company for payment of legal fees. The court, however, only considers this to be further evidence of the inherent conflict of interest that exists under the Plan. The court also is not persuaded by the defendant’s argument that the Plan somehow extinguishes any element of bias by mandating that the Committee act solely in the interests of the participants. The effect of such a provision, in light of the realities of the Committee’s role in the Plan, is to conjure up images of the proverbial fox who, while standing guard at the hen house door, proclaims his unending and undivided loyalty to the profit-minded farmer. This court cannot blindly subscribe to the fiction that the Committee members, given the clear temptations built into the Plan to do otherwise, will always and at all times act only in the interests of a claimant simply because the Plan says that they will. Common sense suggests a contrary, more practical conclusion. In short, after considering all the factors above, the court finds that a conflict of interest does exist in this case and that it must be taken into account in conducting the necessary review. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 694 (6th Cir.1989) (“The fact that the Retirement Committee that administers the plan is composed of management-level employees of KFC is significant only to the extent that any possible conflict of interest should be taken into account as a factor in determining whether the Committee’s decision was arbitrary and capricious.”), cert. denied, — U.S. -, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990). The difficulty at this point, however, is deciding what role the element of bias must play in the court’s review. In a very recent case from the Eleventh Circuit, the court had before it a benefits plan that, in terms of structure and the potential for bias, was substantially similar to the defendant’s Plan. See Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556 (11th Cir.1990). In Brown, an employee sued under ERISA to recover hospitalization benefits that were denied by the defendant who was acting as the fiduciary under a group health plan. The contract between the employer and Blue Cross, an insurance company, conferred discretion on Blue Cross as to the matter of benefits determinations. Thus, the arbitrary and capricious standard was applicable. Id. The court went on to note, however, that the defendant’s fiduciary role was in perpetual conflict with its profit-making role as a business because an insurance company pays beneficiaries from its own assets rather than the assets of a trust. Id. Thus, the “inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate.” Id. With that said, however, the Brown court refused to conduct a de novo review of the defendant’s decision and steadfastly maintained that it would apply an arbitrary and capricious standard, but with a slight twist. The court stated: We therefore hold that the abuse of discretion, or arbitrary and capricious, standard applies to cases such as this one, but the application of the standard is shaped by the circumstances of the inherent conflict of interest. Id. Thus, “the area of discretion to which deference is paid must be confined narrowly to decisions for which a conflicted fiduciary can demonstrate that it is operating exclusively in the interests of the plan participants and beneficiaries.” Id. The court finds the reasoning in Brown to be persuasive and that a similar standard should apply in the present case. Although arguments could be made that the conflict of interest in Brown was more egregious than that facing the court here, the court is unable to find any meaningful distinction between the two plans. In each case there exists a direct conflict between the interests of the participants and the interests of the business. Thus, the analysis in Brown applies; the court will review the Committee’s decision for an abuse of discretion, but take particular note of the obvious potential for bias that is present and afford the decision little, if any, deference. C. Analysis The plaintiff undoubtedly has the laboring oar in a case such as this. The burden is on him to prove that the ruling was arbitrary and capricious. Cristiano, 724 F.Supp. at 742. Under a pure arbitrary and capricious standard, the “trustees abuse their discretion if they render decisions without any explanation, or construe provisions of the plan in a way that clearly conflicts with the plain language of the plan.” Johnson, 879 F.2d at 654. But the trustee’s decision “will not be disturbed if reasonable.” Firestone, 109 S.Ct. at 954. As set forth above, however, the conflict that presents itself in this case demands that the court employ a higher level of scrutiny in searching for an abuse of discretion. Thus, before granting a motion for summary judgment in this case, the court must be satisfied that there exists no genuine issue of material fact surrounding two crucial inquiries: (1) whether, under traditional “abuse of discretion” analysis, the Committee’s decision denying benefits was arbitrary and capricious, Davis, 887 F.2d at 694, and (2) whether the Committee’s conflict has tainted its judgment, Brown, 898 F.2d at 1556. Summary judgment is proper only if both elements are resolved in a manner favorable to the defendants. Of course, in making this determination, the court must bear in mind that the plaintiff has the ultimate burden of persuasion with regard to the first element, while the defendant shoulders the burden on the second. The defendant asserts that the Committee carefully reviewed all the medical data submitted by the plaintiff, consulted its own medical experts, and arrived at a rational conclusion that was fully explained to Mr. Poole in a written decision. Moreover, the defendant notes that all of the examining physicians agree that, at the time of his retirement, the plaintiff had sufficient vision capability to perform the duties of his occupation, at least during those times when the symptoms were not active. The defendant argues further that there was no evidence to support the plaintiff’s contention that his vision would continue to deteriorate if he continued his employment with the Bank. The plaintiff, on the other hand, counters that the decision was arbitrary in that it required “concrete scientific evidence” that continued deterioration of his vision was inevitable due to job-related stress. The plaintiff maintains that, in light of the un certain state of medical technology with respect to this particular condition, such a standard is impossible to meet. The remainder of the plaintiffs brief largely amounts to arguments aimed at bolstering the opinion of Dr. Thorn, the plaintiff’s treating physician, and seeking to discredit the opinions of the other medical experts. He apparently contends that the Committee arbitrarily and capriciously weighed the evidence before it. The court has trouble with several of the plaintiffs contentions, not the least of which is the manner in which he frames the issue. Under this court’s reading of the Plan provisions, the issue is simply whether, at the time of his retirement, the plaintiff’s vision was adequate to perform the duties of his occupation. Thus, the issue of job-related stress, and whether the plaintiff’s vision would have deteriorated to the point of “disability,” is irrelevant. He was either disabled or he was not. The plaintiff would have this court interpret the term “disability” to include those illnesses that can cause a person to become disabled if he continues in his employment. This the court cannot do. Not only does the Plan confer authority on the Committee to interpret its provisions, thus suggesting to the court that a certain amount of deference is in order, but the Committee’s interpretation in this instance appears to be wholly rational and reasonable. The term “disability” is defined as the “complete inability” to perform the essential duties of the occupation. Even under a loose reading of the term “complete,” an employee who is able to perform the essential duties of his job for all but 10 or 15 weeks out of the year could not be considered disabled under the Plan. Thus, it appears that it is the plaintiff’s reading of the relevant Plan provision that is accomplished only by stretching the meaning of the express language. At the very least, the Committee’s interpretation of this language as precluding benefits to one who may become completely unable to perform in the future cannot be deemed unreasonable. With the issue properly framed, the court now turns to the task of deciding whether there exists a genuine issue of material fact as to whether the Committee’s determination — that at the time of his retirement the plaintiff was not disabled— was arbitrary and capricious or was tainted by the conflict found to exist in this case. Unfortunately, while the court feels strongly that Mr. Poole was not treated with adequate consideration by an employer to which he was loyal for over 40 years, the court finds that the Committee’s decision should not be disturbed as a matter of law. The overwhelming evidence, perhaps all the evidence, before the Committee suggested that, at least during those periods when the symptoms were not active, the plaintiff was not disabled as that term is defined in the Plan. Even the plaintiff’s treating physician, Dr. Thorn, who continues to be a most ardent proponent for a finding of disability, stated that Mr. Poole was only unable to perform his duties during those periods when the disease was active. The other medical experts, while appearing to concur in this assessment, opined that the plaintiff cannot be considered to have been disabled. The plaintiff argues that the Committee acted arbitrarily in considering the statements made by the plaintiff’s superiors who encouraged him to retire early. He appears to suggest that a proper appreciation for these statements indicates that those supervisors were of the opinion that Mr. Poole was incapable of performing his employment duties at the time he retired. The court notes, however, that Mr. Robert Hague, the plaintiff’s immediate supervisor, candidly stated that the plaintiff’s work performance was not a factor in his decision to encourage early retirement. He states: This had nothing to do with his work because George was at least an average manager, although somewhat paternalistic in his handling of his people and his customers. As a loan supervisor, I knew his loss ratio was well below the average and that I did not worry much about the conditions of the credits in his branch because George looked after them quite well. Ct. Rec. 22, Exhibit M. Thus, the Committee’s impression that the supervisors simply were motivated by their concern for the plaintiffs health cannot be deemed unreasonable. To the contrary, the supervisors offered their opinions that the plaintiff could perform his duties in an adequate fashion. From the above record, the court is unable to conclude, even under the heightened “bias” standard of review, that the Committee’s decision was arbitrary and capricious. The Committee’s interpretation of the Plan provisions and its weighing of all the available evidence appears to be reasonable, and the plaintiff was provided with a written explanation of the Committee’s decision. Furthermore, the court is satisfied that the known conflict of interest was not a discernable factor in this case. As stated above, the Committee’s interpretation of the term “disability” appears to be correct, or at least reasonably correct, and its decision does not appear to favor the Company at the expense of the interests of the Plan beneficiaries as a whole. Indeed, were this court to engage in a de novo review of the decision to deny benefits to the plaintiff, there is a substantial likelihood that the court would reach the same conclusion as the Committee. Accordingly, finding that there exists no issues of material fact and that the defendant is entitled to judgment as a matter of law, the defendant’s Cross-Motion for Summary Judgment is HEREBY GRANTED; the plaintiff’s Motion for Summary Judgment must be, and is, DENIED. D. Attorneys' Fees In light of the court’s ruling, it becomes necessary to address the defendant's motion for an award of costs and attorney’s fees pursuant to 29 U.S.C. § 1132(g). That section states that “[i]n any action under this title ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” Id. The Ninth Circuit has developed guidelines to be used by trial courts in exercising their discretion under the statute: “They should consider these factors among others: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions.” Hope v. International Brotherhood of Electrical Workers, Ninth District, 785 F.2d 826, 831 (9th Cir.1986) (quoting Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980)). In light of the above factors, the court finds that an award of fees clearly is not warranted here. There is absolutely no evidence that the plaintiff brought this action in bad faith. It appears from the record that the plaintiff is not presently in an entirely healthy economic state and that an award of fees would amount to a serious hardship. Moreover, the plaintiff’s claims fall far short of being labeled un-meritorious, as he has set forth several arguments of substantial merit that have caused this court to expend much time and study in arriving at its decision. Finally, individuals finding themselves in the plaintiff’s position should be encouraged to seek judicial review to police decisions made by plan fiduciaries, especially where, as here, a conflict of interest is found to exist. An award of fees in this instance could very well have a chilling effect on future claimants. Accordingly, the defendant’s motion for fees is HEREBY DENIED. IT IS HEREBY ORDERED: 1. The plaintiff’s Motion for Summary Judgment (Ct. Rec. 9) is HEREBY DENIED. 2. The defendant’s Cross-Motion for Summary Judgment (Ct. Rec. 19) is HEREBY GRANTED. The complaint and all claims therein shall be DISMISSED WITH PREJUDICE. 3. The defendant’s Motion for Attorney’s Fees (Ct. Rec. 19) is HEREBY DENIED. 4. The Clerk is directed to enter final judgment against the plaintiff George Poole and in favor of Seattle-First National Bank and Seafirst Corporation. IT IS SO ORDERED.

ORDER MYRON L. GORDON, Senior District Judge. The plaintiff, Mary Ellen Byrne, is a former school teacher; she alleges that the defendant, the school district, violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and 42 U.S.C. § 1983 when the school district dismissed her on August 3, 1987. The defendant has filed a motion for summary judgment on the § 504 claim asserting that while the plaintiff is an individual with a handicap, she is not “otherwise qualified” to teach because she is totally disabled and cannot be accommodated. The defendant has also moved to amend its answer to assert a defense of the statute of limitations. In addition, the defendant has filed a motion to compel the production of an analysis prepared by the staff attorney for the teachers’ union to which the plaintiff belonged. Each of the defendant’s motions will be denied, and sanctions will be imposed. SUMMARY JUDGMENT Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56, Federal Rules of Civil Procedure. In School Board of Nassau County v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 1130, 94 L.Ed.2d 307 (1987), the United States Supreme Court stated that, in most cases, the determination whether one is “otherwise qualified” within the meaning of the Rehabilitation Act will require the district court “to conduct an individualized inquiry and make appropriate findings of fact.” Notwithstanding the general rule, the defendant urges that summary judgment is appropriate here. In order, to prevail, the defendant must satisfy the court that the undisputed facts require the conclusion either that the plaintiff was totally unable to work as a teacher because of her physical condition or that the district afforded the plaintiff all reasonable accommodation, and yet she still could not perform as a teacher. Neither conclusion is compelled by the record before the court. “ ‘Otherwise qualified’ means, in the employment context, that the handicapped individual can perform the essential functions of the job.” Carter v. Casa Central, 849 F.2d 1048, 1053 (7th Cir.1988), citing Arline, supra, at n. 17 and Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). If the individual is unable to perform the essential functions of the job, then the employer must try to accommodate the individual to enable her to perform the job requisites. Arline, supra, n. 17. The employer is required to offer reasonable accommodations. Id. at n. 19. Accommodations which are unduly burden some financially or administratively or are “a fundamental alteration in the nature of [the] program” are not reasonable. Id. From my review of the extensive filings in this case, I am satisfied that the defendant is not entitled to summary judgment on either ground advanced. There is sufficient documentation by both Drs. Levy and Fink that Ms. Byrne could return to work if appropriate reductions of the offending fungus were made in her work environment and if she was closely monitored. Plaintiffs Attachment F. This was also the suggestion made by the union staff attorney shortly before Ms. Byrne’s termination hearing. Deposition Exh. 10. The defendant school district itself was uncertain of the plaintiffs capabilities right up until the time of her termination; in recommending the dismissal of the plaintiff to the school board, the superintendent of schools charged Ms. Byrne with either (1) being able to work and absent without justification or (2) being unable to work because of her physical condition. Def.’s Appendix, Exh. K. The court is satisfied that the issue whether Ms. Byrne is totally disabled is a fact to be resolved at trial. The defendant also maintains that it is entitled to summary judgment because it could do nothing to accommodate Ms. Byrne. Again, the requested relief is inappropriate since the record is full of suggested accommodations but is barren of facts establishing that the accommodations would result in an undue financial or administrative burden upon the defendant. MOTION TO AMEND Ms. Byrne also complains that the defendant violated her rights under 42 U.S.C. § 1983 when it terminated her on the basis of her handicap. The defendant now seeks to amend its answer to include the defense that Ms. Byrne’s § 1983 claim is barred by the applicable statute of limitations. The defendant’s motion will be denied, and Rule 11 sanctions will be imposed. On June 26, 1989,1 issued a decision and order in the case at bar which held that the applicable statute of limitations for § 1983 cases is three years. At the time I made my ruling, the issue was an open question in this circuit. Subsequently, on September 22, 1989, the court of appeals for the seventh circuit decided that the applicable statute of limitations for § 1983 actions in Wisconsin is six years. Gray v. Lacke, 885 F.2d 399, 407-09 (7th Cir.1989). The defendant asserts that my decision and order dated June 26, 1989, became the “law of the case” and remains so until I subsequently change it. Notwithstanding the clear and unequivocal seventh circuit holding to the contrary, the defendant steadfastly argues that the plaintiff’s action is barred by a three-year statute of limitations; the defendant simplistically invokes the doctrine of the law of the case. The doctrine of the law of the case does provide that once “a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” Redfield v. Continental Casualty Co., 818 F.2d 596, 605 (7th Cir.1987). That doctrine, however, is not a limitation on the power of the district court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Further, the doctrine will not be applied where it is clearly erroneous to do so. Redfield, 818 F.2d at 605. In this case, subsequent controlling authority has been issued by the circuit court of appeals, which is a recognized exception to the doctrine of the law of the case. See Hamer v. County of Lake, 871 F.2d 58, 60 (7th Cir.1989). The defendant has cited absolutely no authority, other than its frivolous “law of the case” argument, for its remarkable proposition that a ruling in a case by a district court remains binding as to that case despite a squarely contrary subsequent holding by the court of appeals. The motion to amend the complaint must be denied. The plaintiff has requested that the court impose a monetary sanction upon the defendant relative to the motion to amend the answer. The imposition of sanctions, pursuant to Rule 11, Federal Rules of Civil Procedure, is warranted in this instance. Rule 11 provides, in pertinent part: Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated.... The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or its own initiative shall impose upon the person who signed it, a represented party or both an appropriate sanction. ... Rule 11 should not be applied to discourage vigorous or even innovative legal arguments. In acknowledging that the court of appeals for this circuit has specifically ruled that six years is the applicable limitations period in § 1983 claims in Wisconsin, the defendant itself cites not only Gray but a more recent decision: Kuemmerlein v. Madison Metropolitan School District, 894 F.2d 257, 259 (7th Cir.1990). Nevertheless, the defendant then refers to my prior ruling in the case at bar and another contrary district court ruling (dated 1986); the defendant also relies on a Wisconsin appeals court decision in 1985. The defendant thereupon draws the wholly unacceptable conclusion that the holdings of the circuit court of appeals are “at odds with the view” of this court and are not “well-settled authority.” Defendant’s Reply Brief p. 3. The defendant’s contention is not only thin and unconvincing, but also it is preposterous and wacky. I find it necessary to conclude that the school district’s statute of limitations contentions are unwarranted under existing law and are devoid of a “good faith argument.” Magnus Electronics v. Masco Corp. of Indiana, 871 F.2d 626, 629 (7th Cir.1989). Accordingly, the counsel for the defendant and the defendant party will be ordered jointly to pay $500.00 within 10 days of the date of this decision and order to the plaintiff as part of her attorney’s fee; I have set this amount based on my familiarity with the billing rates of attorneys in this community and the amount of time that should have been reasonably expended by the plaintiff’s counsel in opposing the defendant’s unwarranted motion. Id. at 634. MOTION TO COMPEL DISCOVERY The defendant seeks to obtain a copy of an analysis prepared by Stephen Pieroni, a staff attorney employed by the Wisconsin Education Association Council. Ms. Byrne belongs to a union which is a part of the Wisconsin Education Association Council. Prior to her termination, Ms. Byrne asked for and received legal representation from the Wisconsin Education Association Council; Mr. Pieroni was assigned the task. The defendant claims entitlement to Mr. Pieroni’s analysis under several theories. The court will address only the work-product privilege, as it is dispositive of the issue. By means of Rule 26(a)(3), Federal Rules of Civil Procedure, a conditional privilege is extended to the documents and the tangible things “prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative.” Such materials may be discovered only upon a showing that the party seeking them has substantial need for the documents and that it is unable to obtain the material without substantial hardship. However, if the materials sought are comprised of the “mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party,” such materials are absolutely protected from disclosure. United States v. Capitol Service Inc., 89 F.R.D. 578, 585 (E.D.Wis.1981). From the affidavit filed by Attorney Pieroni, I am satisfied that the analysis sought by the defendant consists primarily of the type of work that enjoys an absolute privilege. The fact that the report was not prepared in anticipation of this litigation is of no moment. Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26, n. 9, 103 S.Ct. 2209, 2214, n. 9, 76 L.Ed.2d 387 (1983), citing with approval, United States v. Capitol Service Inc., 89 F.R.D. at 585, wherein Chief Judge Robert W. Warren adopted the modern view that “the work product privilege extends to documents prepared in anticipation of any litigation, not just the instant litigation.” Therefore, IT IS ORDERED that the defendant’s motion for summary judgment be and hereby is denied. IT IS ALSO ORDERED that the defendant’s motion to amend its answer be and hereby is denied. IT IS FURTHER ORDERED that pursuant to Rule 11, Federal Rules of Civil Procedure, the counsel for the defendant and the defendant be and hereby are directed to pay jointly to the plaintiff $500.00 as attorney’s fees within 10 days from the date of this decision and order. IT IS FURTHER ORDERED that the defendant’s motion to compel discovery be and hereby is denied.

MEMORANDUM AND ORDER GLASSER, District Judge: Plaintiffs in this action moved for summary judgment, and defendants have cross-moved. Since there are no material factual issues in dispute, this court must now render judgment as a matter of law. I. Facts Heterochemical manufactures swine and poultry feed ingredients called Vitamin K Active Substances (“VKAS”). They market two kinds of VKAS, menadione dimeth-yl primidinol bisulfite (“MPB”), and mena-dione sodium bisulfite complex (“MSBC”). MPB may be used in swine, chicken, and turkey feed at levels specified by a food additive regulation, 21 C.F.R. § 573.620. MSBC is “prior sanctioned” for use in poultry feed at levels of 2 to 4 grams per ton. In 1974, Heterochemical petitioned the FDA to determine the legal status under the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301, et seq., of certain VKAS products its competitors were marketing either in forms chemically distinct from that made by Heterochemical, or for use other than in poultry feed (and thus not prior sanctioned). Under the FDCA, if a food is not prior sanctioned it is considered a “food additive,” unless it is shown to be generally recognized as safe (“GRAS”). 21 U.S.C. § 321(s). Food addi tives are in turn deemed “unsafe,” and therefore barred from sale in interstate commerce, unless they are used in conformance with an FDA regulation. Id., §§ 331(a), 342, 348(a). The procedure for determining the food additive status of a food is contained in 21 C.F.R. Part 570. On August 11, 1976, the FDA published a notice in the Federal Register (the “ ’76 Notice”). This notice stated that, in response to a petition from Heterochemical, the Commissioner was “considering whether to propose under the provisions of [current 21 C.F.R. § 570.38] to determine that [various VKAS] are not GRAS and are food additives subject to ... 21 U.S.C. 348.” The notice further stated that the Commissioner would receive, for 60 days, comments concerning VKAS. After discussing the history of VKAS, the notice concluded as follows: The Commissioner will evaluate all comments received. If it is concluded that there is convincing evidence that the [VKAS] are GRAS, a regulation will be published affirming the substances as GRAS. If there is a lack of convincing evidence that the substances are GRAS, a notice will be published that such substances are food additives as defined in [21 U.S.C. § 321(s) ]. If he determines that the substances are food additives, the Commissioner may: (1) Promulgate a food additive regulation governing use of the additive; or (2) promulgate an interim food additive regulation governing use of the additive; or (3) require discontinuation of the additive; or (4) adopt any combination of the above approaches. 41 Fed.Reg. 35009 (August 18, 1976). Over the course of the next seven years, the FDA considered Heterochemical’s petition and the 47 public submissions received in response to the ’76 Notice. The administrative record compiled as a result comprised six volumes, and details information, in the form of scientific studies and other documents, received from manufacturers, nutritionists, and the U.S. Department of the Interior. On April 19, 1983, the FDA published another notice (the “ ’83 Notice”) which reported the results of its study. The notice reported, inter alia, that the evidence studied was not sufficient to allow the FDA to classify VKAS as GRAS. The notice also stated, however, that “VKAS have been added to animal food for more than 30 years, without apparent animal or human safety problems,” and that therefore “[t]he Agency does not plan to propose the issuance of food additive or GRAS affirmation regulations for VKAS at the present time” and “denies Heterochemical’s petition.” 48 Fed.Reg. 16748 (April 19, 1983). Heterochemical brought suit to compel the FDA to take further steps, as the FDA is authorized to do under 21 C.F.R. § 570.38. FDA’s motion to dismiss this action on the grounds that its decision not to act was unreviewable was denied, 644 F.Supp. 271 (E.D.N.Y.1986). The parties thereafter moved and cross-moved for summary judgment. II. Standard of Review The FDA renews its argument that its decision not to take any action beyond the publication of the ’83 Notice is completely unreviewable. In support of this proposition, it cites Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and Community Nutrition Institute v. Young, 818 F.2d 943 (D.C.Cir.1987). Both of these cases clearly hold that a decision by the FDA not to initiate “enforcement proceedings” as provided by the FDCA is completely within its discretion, and is not subject to judicial review. Both of these decisions, however, rely on the fact that the “enforcement proceedings” sought by the plaintiffs were those that the FDCA merely authorizes or allows , but does not require. See, Chaney, 470 U.S. at 835, 105 S.Ct. at 1657, Community Nutrition, 818 F.2d at 949-50. These cases, therefore, stand only for the proposition that a decision by the FDA not to initiate a discretionary enforcement proceeding is unreviewable. They do not hold that the FDA may refuse to take any mandatory enforcement steps prescribed by statute or regulation. As the Supreme Court said in Chaney, “agencies [are not] free to disregard legislative direction in the statutory scheme that the agency administers.” 470 U.S. at 833, 105 S.Ct. at 1656. In fact, the FDA does not dispute that agencies are obliged to follow their own regulations. See, Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). The only issue before the court, then, is whether the actions Heterochemical seeks to compel are mandated by statute or regulation.' All Heterochemical currently seeks from the FDA is that it, by notice published in the Federal Register, either 1) promulgate a food additive regulation governing use of the VKAS studied, 2) promulgate an interim food additive regulation governing their use, 3) require discontinuation of their use, or 4) adopt any combination of these approaches for different uses or levels of use of the VKAS studied. Heterochemical claims that this action is mandated by 21 C.F.R. § 570.38. If this contention is correct, this court may order the FDA to comply with such mandate. See, American Public Health Assoc. v. Veneman, 349 F.Supp. 1311 (D.D.C.1972); Hoffmann-LaRoche, Inc. v. Weinberger, 425 F.Supp. 890 (D.D.C.1975). The discussion below is therefore concerned only with the question of whether 21 C.F.R. § 570.38 requires the FDA to take the steps requested by Heterochemical. III. Discussion 21 C.F.R. § 570.38(b)(1) provides, in relevant part, that The Commissioner, ... on the petition of any interested person, ... may issue a notice in the Federal Register proposing to determine that a substance is not GRAS and is a food additive subject to [21 U.S.C. § 348].” The word “may” in this regulation clearly indicates that the decision whether to issue such a notice is discretionary. Subsection (2) of this regulation provides that, if such a notice is published, it will allow 60 days for public comment. Subsection (3) provides, in relevant part, as follows: The Commissioner will evaluate all comments received. If he concludes that there is a lack of convincing evidence that the substance is GRAS or is otherwise exempt from the definition of a food additive in [21 U.S.C. § 321(s)], he will publish a notice thereof in the Federal Register. The word “will” in this subsection clearly indicates that if the Commissioner chooses to commence the procedure described in (b)(1), he must publish the notice described above upon a finding that sufficient evidence has not been produced to determine that the substance studied is GRAS or otherwise exempt from 21 U.S.C. § 321(s). 21 C.F.R. § 570.38(c) provides that: A Federal Register notice determining that a substance is a food additive shall provide for the use of the additive in food or food-contact surfaces as follows: (1) It may promulgate a food additive regulation governing use of the additive. (2) It may promulgate an interim food additive regulation governing use of the additive. (3) It may require discontinuation of the use of the additive. (4) It may adopt any combination of the above three approaches for different uses or levels of use of the additive. The word “shall” in this subsection clearly indicates that if the Commissioner publishes such a notice, it must provide for one of the four listed alternatives. The word “may” in (l)-(4) would thereby merely indicate that the Commissioner retained discretion as to which of the four approaches to pursue. Read together, the above subsections provide the Commissioner with discretion to initiate the (b)(1) procedure, but require certain actions if such procedure is com menced. These actions are precisely those sought by Heterochemical. Therefore, the crucial question is whether the (b)(1) procedure was ever initiated. This, in turn, depends upon whether the ’76 notice was a (b)(1) notice. Heterochemical asserts that it was, and the FDA argues that it was not. In the final analysis, this is the only dispute between the parties. The starting point for any consideration of this question must be the Notice itself. Unfortunately, the language of the Notice is contradictory. The first paragraph says that the Commissioner is merely “considering whether to propose to determine” (emphasis added) the food additive status of the YKAS; (b)(1) requires an actual proposal to determine. On the other hand, the penultimate and antepenultimate paragraphs (quoted supra) trace the language of 21 C.F.R. § 570.38(b)(3) and (c) practically word for word, suggesting that the Notice was an actual proposal. The only material difference between the language of those paragraphs and the Regulation is the substitution of the phrase “[i]f he determines that the substances are food additives the Commissioner may” for the phrase “[a] Federal Register notice determining that a substance is a food additive shall provide ... as follows” before the list of four alternatives. It is unclear, however, that the use of the word “may” in the Notice was not intended merely to allow its slightly different wording to read smoothly. The Regulation prefaces each of the alternatives with the word “may,” the Notice places that word before the list of alternatives. In both cases, the most reasonable construction is that the word “may” refers merely to the Commissioner’s discretion to select among the alternatives, not to his discretion to implement none of them. Any doubt as to the soundness of this reading is completely eliminated by the fact that, were this not a (b)(1) notice, the Commissioner would not have had even discretionary authority to implement any of the four alternatives. The FDA itself argues that the actions sought by Heterochemical cannot lawfully be taken unless the subdivision (b) procedure has been commenced and carried through. Def Mem. at 29-30. The Agency here attempts to argue, however, that the ’76 Notice was not a (b)(1) notice, and yet gave the Commissioner discretionary authority to implement one of the four alternatives in subsection (c). The Agency cannot have it both ways. The only possible reading of the language of the Notice, therefore, is that the Commissioner intended the notice to be a (b)(1) notice, which would bind him to implement one of the four alternatives if the VKAS were not shown to be GRAS. Even if this was not the Commissioner’s actual intent, it is the only logical reading of the Notice made public by the FDA. .This conclusion is further supported by the actions of the FDA when considered as a whole. The FDA 1) published a notice in the Federal Register, by which it 2) solicited comments for 60 days, 3) evaluated the comments, and 4) concluded that the substances studied were not proven GRAS or prior-sanctioned. This is precisely the procedure for determination of food additive status under 21 C.F.R. § 570.38. In essence, the FDA asks this court to ignore all of its actions and words in determining whether it initiated the (b)(1) procedure, based upon the two words considering whether” in the ’76 Notice. These words are too frail to shoulder such a great burden. Two additional arguments of the FDA must be considered. First, the FDA claims that it will require a great expenditure of Agency resources to comply with Hetero-chemical’s petition, since.it would require soliciting and evaluating comments all over again. Second, the Agency contends that, even were it empowered to act on the current record, it should not rely upon evidence as outdated as that in the administrative record of this case, which is now 13 years old. The first argument is specious. All the FDA will be required to do pursuant to this order is publish a notice in the Federal Register that complies with 21 C.F.R. § 570.38(b). It will not be necessary, as the Agency suggests, to initiate and carry through the (b)(1) procedure, since this court today holds that this has already been done. The FDA admits that “[f]rom [its] findings, it would be fair to conclude that it would constitute a violation of the FDC Act to market in interstate commerce any VKAS other than” in the manner and for the uses which Heterochemical has already asserted to be prior-sanctioned or regulated. Def. Mem. at 6. It is not too much to ask the Agency to tell this to the public, and regulate or discontinue sale of these substances, as required by 21 C.F.R. § 570.38. The second argument is disingenuous. If the evidence in this case is stale, it can only be attributed to the Agency’s actions. In any event, this argument misconstrues the relative burdens that the FDCA places on those who would market food substances. Under the Act, a party wishing to market a food substance has the burden of establishing that the substance is safe. 21 U.S.C. §§ 301, 321(s), 331, 342, 348(a). If the evidence in the administrative record “lacks the quantity and quality of data” (48 Fed.Reg. at 16750) necessary to establish the substances as safe, the fact that this evidence is stale does not change the fact that this burden has not been met. If evidence developed recently demonstrates that the YKAS in question are safe, those who wish to market them may petition the FDA to have them declared GRAS. For the reasons stated above, Hetero-chemical’s motion for summary judgment is granted, to the extent that it requires the FDA to publish a proper notice under 21 C.F.R. § 570.38. Such notice must, as required by that regulation, provide for use of the YKAS in question in accordance with one of the four alternatives in § 570.38(c). SO ORDERED. . Under 21 U.S.C. § 321(s), a substance is not considered a food additive, and therefore not presumed unsafe, if it was sanctioned for use prior to January 1, 1958. . The Chaney court cited 21 U.S.C. §§ 332, 335, 334 & 372. 470 U.S. at 835, 105 S.Ct. at 1657. The Community Nutrition court cited 21 U.S.C. § 336. 818 F.2d at 950. . The FDA also argues that even if the '76 notice was a (b)(1) notice, it is not required to take any of the steps prescribed by subsection (c). Since this flies in the face of the clear language of the regulation, this argument must be rejected. . The FDA suggests in its brief that the confusion engendered by these paragraphs was resolved when the FDA told certain representatives of Abbott Laboratories "that it was our intention to issue a proposal after the comments had been received and evaluated.” Def. Mem. at 25 n. 20; R. 1420. Putting aside the discrepancy between that statement and the Agency’s actions, it would be absurd to allow the language of a public notice to be modified by statements made in private meetings, and not made public until eleven years later (in fact, Heterochemical has submitted an affidavit to the effect that the minutes of this meeting have never been placed on the public docket maintained by the FDA, see, Lapointe Affidavit). Indeed, this meeting merely reinforces the court’s reading of the '76 Notice, since it indicates that Abott Laboratories, upon reading the Notice, thought it was a (b)(1) notice.

PER CURIAM: The Federal Public Defender appointed to represent Felipe Cervantes-Espino (Cervantes) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cervantes has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

POOLER, Circuit Judge: This appeal requires us to decide whether a Medicaid benefits recipient must satisfy a Medicaid lien before he establishes a supplemental needs trust for his own benefit. Brian Sullivan appeals from the decision of the United States District Court for the Eastern District of New York (Sey-bert, J.) ordering that he use the proceeds of his tort settlement to satisfy a $200,000 Suffolk County Department of Social Services (“DSS”) hen before he established a supplemental needs trust. Sullivan argues that he may transfer all of the settlement proceeds to a trust because DSS will be reimbursed upon his death. For the reasons that follow, we affirm the decision of the district court. BACKGROUND In 1995, plaintiff Brian Sullivan filed an action pursuant to 42 U.S.C. § 1983 against Suffolk County, Suffolk County Police Department, Police Officer John Ca-hill, and Police Officer Renee Buschor. Sullivan suffered cataclysmic injuries when Officer Cahill shot him in the back as he fled, unarmed, from police officers. Sullivan is permanently disabled. Because he requires extensive medical care, Sullivan sought Medicaid benefits through the Suffolk County DSS. As a condition of Medicaid eligibility, Sullivan assigned to DSS payments from a third party that was liable for his injuries. Pursuant to New York Social Services Law § 104-b, DSS filed a Medicaid lien against Sullivan’s tort action and any resulting proceeds. In January 1997 the parties agreed to settle the lawsuit and notify DSS that Sullivan intended to fund a supplemental needs trust with the settlement proceeds. A supplemental needs trust is a “discretionary trust established for the benefit of a person with a severe and chronic or persistent disability” and is intended to provide for expenses that assistance programs such as Medicaid do not cover. N.Y. Est. Powers & Trusts Law § 7-1.12(a)(5) (McKinney 1998); see Cricchio v. Pennisi, 90 N.Y.2d 296, 303, 660 N.Y.S.2d 679, 683 N.E.2d 301 (1997) (citing Bill Jacket, L.1993, ch. 433). On March 11, 1997, plaintiff proposed a settlement order and supplemental needs trust, which deferred payment of DSS’s Medicaid lien until Sullivan’s death. However, on March 25, 1997, the New York Court of Appeals held that a settlement recipient must satisfy a valid Medicaid hen filed pursuant to New York Social Services Law § 104-b before establishing a supplemental needs trust. Cricchio, 90 N.Y.2d at 309, 660 N.Y.S.2d 679, 683 N.E.2d 301. In light of Cncchio, the parties agreed to reduce the Medicaid lien to $200,000 and place it in an interest bearing escrow account until the district court decided when Sullivan had to satisfy the lien. If the district court ruled in favor of DSS, the $200,000 in escrow would be paid to satisfy the Medicaid lien. Otherwise, the money would be transferred to Sullivan’s supplemental needs trust. On April 30, 1998, the district court ruled that Sullivan must pay the DSS Medicaid lien before using the settlement proceeds to establish his supplemental needs trust. See Sullivan v. County of Suffolk, 1 F.Supp.2d 186, 191 (E.D.N.Y.1998). Judge Seybert rejected plaintiffs argument that federal law permits a trust beneficiary to defer until his death reimbursement for the “total” Medicaid services provided during his lifetime. See 42 U.S.C. § 1396p(d)(4). The district court found that the statute upon which plaintiff relied pertains to eligibility for Medicaid and does not affect the priority of a Medicaid hen held pursuant to New York Social Services Law § 104-b. See Sullivan, 1 F.Supp.2d at 189-190. The district court concluded that “although both federal and state law bar the imposition of a Medicaid lien on the recipient’s property before his death, the federal and state laws do not suggest that settlement proceeds become the property of the recipient before they are placed in trust.” Id. at 190. Because Sullivan assigned to DSS his right to settlement proceeds to the extent of medical assistance provided, the district court released the $200,000 in escrow for immediate satisfaction of the Medicaid lien. Sullivan now appeals. DISCUSSION Sullivan argues that the plain language of Section 1396p(d) authorizes him to defer reimbursement of DSS until his death, when the state will be reimbursed for the total amount of medical assistance it provided him throughout his lifetime. We review de novo the district court’s interpretation of a statute. This court will “look first to the plain language of a statute and interpret it by its ordinary, common meaning.” Luyando v. Grinker, 8 F.3d 948, 950 (2d Cir.1998). “If the statutory terms are unambiguous, our review generally ends and the statute is construed according to the plain meaning of its words.” Greenery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226, 231 (2d Cir.1998). Medicaid is a jointly funded state and federal assistance program designed to pay the medical expenses of individuals whose income and resources are insufficient. See 42 U.S.C. § 1396 et seq.; N.Y. Soc. Serv. Law § 363 et seq. Because Congress intended Medicaid to be the “payor of last resort”, the state agency that administers Medicaid must seek reimbursement from any third party responsible for the patient’s medical expenses. See Cricchio, 90 N.Y.2d at 305, 660 N.Y.S.2d 679, 683 N.E.2d 301. (citing S.Rep. No. 146, 99th Cong., 2d Sess. 1, 312, reprinted in 1986 U.S.Code Cong. & Admin. News 42, 279). Pursuant to federal law, Medicaid recipients must assign to the state their rights to seek and collect payment for medical care from a responsible third party. See 42 U.S.C. § 1396k. As part of its recoupment power, the DSS as the agency administering Medicaid may place a lien on the Medicaid recipient’s personal injury claims against a tortfeasor in order to recover the agency’s medical expenditures. See N.Y. Soc. Serv. Law § 104-b(l). Section 104-b liens enjoy a specific exemption from the general rule that the state may not encumber a Medicaid recipient’s property prior to death. N.Y. Soc. Serv. Law § 369(2). In concluding that Sullivan must immediately satisfy the $200,000 Medicaid lien, the district court relied on a recent New York Court of Appeals decision that examined this state and federal assignment scheme. The New York Court of Appeals concluded that the state is entitled to satisfaction of a Section 104-b lien prior to the establishment of a supplemental needs trust. See Cricchio v. Pennisi, 90 N.Y.2d 296, 660 N.Y.S.2d 679, 683 N.E.2d 301 (1997). The United States Court of Appeals for the Eighth Circuit (although not considering all the arguments raised here) reached the same conclusion in Norwest Bank of North Dakota v. Doth, 159 F.3d 328, 333 (8th Cir.1998) (interpreting federal law in conjunction with Minnesota’s assignment provisions which are similar in pertinent part to New York’s assignment provisions). Sullivan claims that using his tort settlement proceeds to establish a supplemental needs trust merely delays the satisfaction of the Medicaid lien until his death and does not abrogate DSS’s recoupment right. Sullivan argues that federal Medicaid eligibility law is dispositive and that Section 1396p(d) requires that the state be reimbursed for the “total medical assistance paid” at the time a trust beneficiary dies. Sullivan claims that if the words “total medical assistance paid” in the statute referred only to Medicaid provided after the establishment of the trust, then “total” would be superfluous. According to the statute, trust assets do not affect the beneficiary’s medicaid eligibility as long the trust contains a “payback” provision allowing trust assets remaining upon the recipient’s death to be used to reimburse the state for the total medical assistance it provided to the trust beneficiary. See 42 U.S.C. § 1396p(d)(l), (4). We reject appellant’s arguments for essentially the same reasons that the district court and the New York Court of Appeals set forth. Section 1396p(d) concerns the Medicaid eligibility of a supplemental needs trust beneficiary. The statute does not alter the assignment and subrogation scheme, and it therefore does not affect the state’s right to satisfy its lien. In short, the state’s right to recover the cost of medical care when the trust beneficiary dies has no bearing on the priority of the DSS lien. Because the federal Medicaid eligibility rules do not govern the issue of Medicaid lien priority, the state and federal assignment and subrogation laws control. As a Medicaid recipient, Sullivan assigned his right to recover from a third party to DSS, up to the amount of medical assistance provided. See 42 U.S.C. § 1396k. DSS was entitled to any rights that Sullivan had to third party reimbursement. See N.Y. Soc. Serv. Law § 367-a(2)(b). DSS pursued its right to recover from a responsible third party by placing a lien on Sullivan’s lawsuit against the county. Because the Section 104-b lien attached directly to the tort settlement proceeds, the tortfeasor owes that money to DSS. Sullivan had no right to the $200,000 and could not use it to establish a trust. We reject Sullivan’s argument that deferral of reimbursement in no way alters the state’s right to pursue its subrogation rights. Here, we agree with the district court that “timing is everything” in the realm of reimbursement for Medicaid expenses from a third party. Sullivan, 1 F.Supp.2d at 190. The Medicaid recipient cannot defer payment of settlement proceeds to which he has no right. Moreover, Medicaid recipients may not use supplemental needs trusts for the unintended purpose of sheltering judgment and settlement proceeds from Medicaid lienors. See Norwest, 159 F.3d at 333. Therefore, we conclude that the federal Medicaid eligibility laws do not permit Sullivan to transfer tort settlement proceeds to a supplemental needs trust before he pays the DSS lien. Finally, we reject appellant’s request for an allocation hearing to determine what portion of the settlement proceeds is payable to DSS because the district court properly relied on the stipulated settlement amount of $200,000. CONCLUSION We have considered Sullivan’s remaining contentions and find them to be without merit. For the foregoing reasons we affirm the decision of the district court ordering that the $200,000 currently in escrow be paid to Suffolk County DSS in immediate satisfaction of its Medicaid lien. . At the time of the tort settlement, DSS held a Medicaid lien in the amount of $555,959.26. Subsequently, the parties and DSS stipulated to reduce the lien to $200,000. . Section 1396p(d) provides in relevant part: (1) For purposes of determining an individual's eligibility for, or amount of, benefits under a State plan ... subject to paragraph (4), the rules specified in paragraph (3) shall apply to a trust established by such individual. # # :¡t sjs if. ifs (4) This subsection shall not apply to any of the following trusts: (A) A trust containing the assets of an individual under age 65 who is disabled ... and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter. 42 U.S.C. § 1396p(d). . The statute provides in relevant part that a State plan for medical assistance shall “provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required to assign the State any rights, of the individual ... to payment for medical care from any third party.’’ 42 U.S.C. 1396k(a)(l)(A). . Title 42 U.S.C. § 1396k provides: (a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall (1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required (A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance ... to support ... and to payment for medical care from any third party. . Even if the parties had not stipulated the amount of the lien, an allocation hearing would not be necessary. The New York Court of Appeals recently held in Calvanese v. Calvanese, 93 N.Y.2d 111, 688 N.Y.S.2d 479, 484, 710 N.E.2d 1079 (1999) that the agency is entitled to full recovery once sufficient funds are made available by a responsible third party, regardless of what portion of the settlement is allocated to past medical expenses.

MEMORANDUM Alejandro Gabriel Aceves-Lopez appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326. Aceves-Lopez contends that: the district court erred in not adjusting his sentence for time he served in state custody; and his sentencing violated his Sixth Amendment right to have a jury find all factors used to enhance his sentence. As part of his written plea, Aceves-Lopez waived his right to appeal his conviction and sentence. The district court’s plea colloquy confirms that Aceves-Lopez knowingly and voluntarily waived the right to appeal. Accordingly, we enforce the appeal waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007). In addition, we reject Aceves-Lopez’s contention that the appellate waiver was not valid because he received an illegal, or unlawful, sentence where the “sentence was authorized by the judgment of conviction, and did not impose on [the defendant] a sentence in excess of the statutory penalty.” United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

HATCHETT, Chief Judge: Appellants, students of various grade levels in the Duval County, Florida school system, challenge the Duval County school system’s policy of permitting graduating students to vote on whether to have unrestricted student-led messages at the beginning and closing of graduation ceremonies as facially and as-applied violative of the Establishment Clause. We hold that this policy facially violates the Establishment Clause, reverse the district court’s denial of appellants’ motion for preliminary injunction and dismissal on the merits and remand for further proceedings consistent with this opinion. I. BACKGROUND Prior to 1993, public schools in Duval County, Florida, permitted religious officials to conduct formal prayers during graduation exercises. The Supreme Court, however, ruled in 1992 that school-sponsored prayer at public school graduation ceremonies violated the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Following Lee, Duval County Public School Superintendent Larry Zenke, at the direction of Vicky Reynolds (the school system’s Liaison for Legal Affairs), issued a memorandum instructing all school officials in the Duval County school system to end the practice of having prayer at graduation ceremonies. Soon after issuing this memorandum, the school system began receiving input from students and members of the community regarding ways to continue prayer at graduation ceremonies despite the Lee decision. Reynolds and Superintendent Zenke met to decide whether they could change the school system’s policy of no prayer at graduation ceremonies because of this input and the Fifth Circuit’s decision in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). Thereafter, Reynolds, under the supervision of Superintendent Zenke, circulated the •following memorandum dated May 5, 1993, referenced “Graduation Prayers,” to all high school principals in the Duval County school system: You will recall that after the 1992 Supreme Court case of Lee v. Wiseman, [sic] you received a memorandum from me instructing that because of the decision, we would no longer be able to have prayers at graduation ceremonies. Most of you have recently been bombarded with information, as have I, regarding whether or not student initiated and led prayers are acceptable based upon a recent Fifth Circuit opinion. The purpose of this memorandum is to give you some guidelines on this issue if the graduating students at your school desire to have some type of brief opening and/or closing message by a student. This area of the law is far from clear at this time, and we have been threatened by lawsuits from both sides on the issue depending on what action we take. The key to the Lee v. Wiseman [sic] decision was that the prayer given at that graduation ceremony was directed and initiated by the school system, which made it unconstitutional, rather than by permissive student choice and initiative. With that premise in mind, the following guidelines may be of some assistance: 1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school graduation exercises shall rest within the discretion of the graduating senior class; 2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole; 3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by Duval County School Board, its officers or employees; The purpose of these guidelines is to allow the students to direct their own graduation message without monitoring or review by school officials. After issuance of this memorandum, the Duval County School Board met to decide whether they could adopt a policy allowing a “moment of silence” at graduation ceremonies. In their discussion of the “moment of silence” policy, the School Board members also discussed the guidelines set forth in the Reynolds memorandum, and the permissibility of prayer at graduation ceremonies. The School Board voted the “moment of silence” policy down, in part to allow the guidelines in the Reynolds memorandum to stand, and in part based upon their understanding of Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). The School Board never voted specifically on the guidelines set forth in the Reynolds memorandum; “that memorandum was left in force with the acquiescence or tacit approval of the Board as its official policy governing the 1993 commencement exercises.” Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 449 (M.D.Fla.1994) {Adler I). High school principals in Duval County thereafter began implementing the guidelines in the Reynolds memorandum through delegating decision-making authority to graduating senior students at each school to determine: (1) whether they should allow student messages at the opening and/or closing of the graduation ceremony; and (2) who should give these messages. See Adler I, 851 F.Supp. at 449 n. 4 (describing how each individual school delegated this decision-making authority). With regard to the 1993 graduation ceremonies, seniors at 10 of the 17 Duval county high schools opted for messages that constituted various forms of religious prayer. The seniors at the remaining 7 schools opted either for no message or for messages that were entirely secular. As the parties have not had the opportunity to develop the record fully for graduation ceremonies following 1993, it is unclear how subsequent graduating classes conducted the message portions of their grad uation ceremonies. II. PROCEDURAL HISTORY In June 1993, various Duval County-public school students sued the Duval County school system, alleging that the policy embodied in the Reynolds memorandum constituted an establishment of religion and infringed on their free exercise of religion. These students sought equitable relief through a judgment that declared the policy unconstitutional and enjoined the Duval County School Board from permitting prayers at high school graduation ceremonies, and additionally sought money damages. The students also sought to certify their action as a class action. The district court denied the motion to certify the class and granted summary judgment in favor of the Duval County school system, holding that its policy was constitutional. See Adler I, 851 F.Supp. at 451-56. The students appealed, and a panel of this court found that because the students had all graduated, their claims for declaratory and injunctive relief were moot. See Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477-78 (11th Cir.1997) (Adler II). The Adler II court also held that the students waived their damages claim on appeal. See Adler II, 112 F.3d at 1480-81. Appellants brought the instant action in May 1998 against the Duval County school system, again alleging that the policy embodied in the Reynolds memorandum constituted an establishment of religion and infringed on their free exercise of religion. Appellants sought preliminary and permanent injunctive relief against the Duval County School Board from permitting, conducting or sponsoring any religious exercises, prayer and instruction within the Duval County Public School’District, including School Board-sponsored graduation ceremonies. Appellants also sought monetary damages and class certification. The district court, at the hearing on appellants’ motion for a preliminary injunction, advanced the case on the merits because the action “presents precisely the same claims predicated upon the same constitutional theories or contentions [as Adler I]; and ... counsel stipulated that the operative facts remain unchanged.” Adler v. Duval County Sch. Bd., No. 98-460-CIV-J-10C (M.D.Fla. May 27, 1998). The district court denied appellants’ motion for preliminary injunction and entered final judgment in favor of the Duval County School Board, holding that the law had not evolved in appellants’ favor and that high school graduation ceremonies were designated, limited public fora. III. ISSUE The issue we discuss is whether the Duval County school system’s policy of permitting graduating students to vote to have unrestricted student-led messages at the beginning and closing of graduation ceremonies is facially violative of the Establishment Clause. IV. DISCUSSION A. Framework of Analysis The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion.... ” . U.S. Const. Amend. I. The first problem that we must confront is the framework of analysis to use in determining whether a policy that permits students to vote on whether to have uncensored student-led messages at public school graduations violates the Establishment Clause. The long-established three-prong test for analyzing Establishment Clause challenges enunciated in Lemon v. Kurtzman provides that to survive an alleged violation of the Establishment Clause, the challenged statute or policy must: (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not foster excessive entanglement with religion. See 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lee v. Weisman, the Court declined to apply the Lemon test in holding that a policy of school-sponsored prayer at public school graduation violated the Establishment Clause, and instead found that the following “dominant facts” controlled their decision: (1) state officials directed the performance of a formal religious exercise at graduation ceremonies; and (2) even for those students who objected to the religious exercise, their attendance and participation in the state-sponsored religious activity “are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.” See Lee, 505 U.S. at 586, 112 S.Ct. 2649. Members of the Court and other commentators have questioned the continued vitality of the Lemon test. In Lamb’s Chapel v. Center Moriches Sch. Dist., the Court stated that it had not overruled Lemon. 508 U.S. 384, 395 n. 7, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (“we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled.”). Additionally, the en banc court in Chabad-Lubavitch of Georgia v. Miller held that “although [Lemon] has been criticized severely, it still controls our Establishment Clause inquiry.” 5 F.3d 1383, 1388 (11th Cir.1993) (en banc); see also Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468-74 (11th Cir.1997) (applying Lemon). Thus, we will conduct our Establishment Clause inquiry of the Duval County school system’s policy under both Lee and Lemon. As the district court’s final order for our review concludes that Adler I, granting summary judgment in favor of Duval County, remained the proper decision, we review this case de novo. See Taylor v. Food World, Inc., 138 F.3d 1419, 1422 (11th Cir.1998). We also take note of the Court’s warning that “the constitutional rights of children ... can neither be nullified openly and directly by [the] state ... nor nullified indirectly by [it] through evasive schemes ... whether attempted ‘ingeniously or ingenuously.’ ” Gilmore v. City of Montgomery, 417 U.S. 556, 568, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974) (quoting Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958)). B. Lee v. Weisman In Lee v. Weisman, the Court analyzed the policy of the public school system in Providence, Rhode Island, that permitted school principals to invite members of the clergy to offer invocation and benediction prayers at formal graduation ceremonies for middle and high schools. See Lee, 505 U.S. at 580, 112 S.Ct. 2649. In particular, the principal at Nathan Bishop Middle School invited a rabbi to offer the invocation and benediction at the school’s graduation ceremony in 1989. The principal provided the rabbi with a pamphlet entitled “Guidelines for Civic Occasions” that the National Conference of Christians and Jews had prepared and advised the rabbi that the prayer should be nonsectarian. See Lee, 505 U.S. at 581, 112 S.Ct. 2649. The Court found that the school held the graduation on its premises, the students “enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families,” and that the students “stood for the Pledge of Mlegiance and remained standing during the rabbi’s prayers.” Lee, 505 U.S. at 583, 112 S.Ct. 2649. The Court ruled that this policy of permitting prayer at public school graduation ceremonies was unconstitutional under the Establishment Clause, stating: These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. Lee, 505 U.S. at 586, 112 S.Ct. 2649. The high school principal’s involvement in composing and directing a formal prayer exercise led the Court to hold the prayer “bore the imprint of the state” and to conclude that the state’s involvement in the prayer created a “state-sponsored and state-directed religious exercise in a public school.” Lee, 505 U.S. at 587, 590, 112 S.Ct. 2649. Thus, for purposes of our analysis under Lee, we shall examine: (1) the state’s control of the graduation ceremonies; and (2) the student’s coerced participation in the graduation ceremonies. 1. State Control The overriding issue in this case is whether the Duval County school system’s policy, which allows graduating students to vote on the decision whether to have unrestricted opening and closing messages that students deliver at graduation ceremonies, effectively dissociates any prayer that may occur at the graduation ceremonies from the state’s control. Although this case is distinguishable from Lee, where high school principals chose a member of the clergy to deliver a prayer, the fact that the entanglement is less obvious or intrusive does not save the school system’s policy from a facial violation of the Establishment Clause. Our review of Lee and cases from other circuits leads us to the conclusion that the delegation of the decision regarding a “prayer” or “message” to the vote of graduating students does not erase the imprint of the state from graduation prayer. Further, the Duval County school system developed this policy as an attempt to circumvent Lee and continue the practice of prayer, and to permit sectarian and proselytizing prayer, at graduation ceremonies. The Duval County school system exerted tremendous control over the graduation ceremonies, in that the individual schools and the School Board: rented the facilities for the graduation; told the graduating students what they should wear; decided when the graduating students and audience could sit and stand; decided the sequence of events at the graduation; and designed and printed the program for the ceremonies. As the Lee Court observed, “[a]t a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students.” Lee, 505 U.S. at 597, 112 S.Ct. 2649. The individual schools’ decisions not to censor the messages that the elected students gave at the beginning and' closing of the graduation ceremonies fails to erase the overwhelming control that the schools exerted over the remainder of the graduation ceremony. In fact, students decided whether to have a message at graduation and who to deliver that message “only because school officials agreed to let them decide that one question.” American Civil Liberties Union of New Jersey v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1479 (3d Cir.1996) (en banc). The Ninth Circuit in Doe v. Madison Sch. Dist. No. 321 analyzed a school district’s policy that permitted a school to invite four students, according to their academic class standing, to speak at their graduation ceremony, with the school administration barred from editing or censoring the students’ remarks. See 147 F.3d 832, 834 (9th Cir.1998). The Doe court held that the policy was distinguishable from Lee: First, students — not clergy — deliver the presentations. Second, these student-speakers are selected by academic performance, a purely neutral and secular criterion. Third, once chosen, these individual students have autonomy over content; the school does not require the recitation of a prayer, but rather leaves it up to the student whether to deliver “an address, poem, reading, song, musical presentation, prayer, or any other pronouncement.” Doe, 147 F.3d at 835. The Doe court took note of Justice Souter’s concurring opinion in Lee, that two other Justices had joined, which stated: If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver religious message, it would have been harder to attribute an endorsement of religion to the State. Doe, 147 F.3d at 835 (quoting Lee, 505 U.S. at 630 n. 8, 112 S.Ct. 2649 (Souter, J„ concurring)). The court held that this policy survived Lee, for “when a state uses a secular criteria for selecting graduating speakers and then permits the speaker to decide for herself what to say, the speech does not bear the imprimatur of the State.” Doe, 147 F.3d at 836. We find Doe to be distinguishable on two points. The Doe court relied on the neutral selection of student speakers on the basis of their academic standing and the school’s policy to permit those speakers to make a private choice about what to say. See Doe, 147 F.3d at 835 n. 5 (emphasizing the private character of any decision to pray or speak on religious topics through the graduation program’s printed disclaimer). This reasoning merely recognizes what the Court has made clear: “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion). What the Doe court did not decide, however, is the following question: Can school boards allow students to decide by majority vote to have religious exercises at graduation? Such practice, as one commentator explained, creates a “danger that a majority will bring intimidating pressures to bear in favor of a particular religion,” a danger that is not present when a school chooses a speaker through a neutral method and allows her to speak freely. Doe, 147 F.3d at 836 n. 7 (quoting Recent Case, 110 Harv. L.Rev. 781, 783 (1997)) (internal citations omitted). The Duval County policy permits graduating students to decide through majority/plurality vote whether a student volunteer shall give a message. Another distinguishing point is that the Duval County school system’s policy restricts these messages to no longer than two minutes at the beginning and closing of the graduation ceremony. The Doe policy does not reveal the sequence in which the four speakers spoke, but indicates that each of the four speakers spoke under the same circumstances. See Doe v. Madison Sch. Dist. No. 321, 7 F.Supp.2d 1110, 1112 (D.Idaho 1997), aff'd, 147 F.3d 832 (9th Cir.1998). The Duval County school system’s policy thus exerts more control over the student speakers. The Third Circuit en banc in Black Horse Pike considered a policy that permitted students to vote on the direct question of whether to have prayer at their graduation ceremonies, and held that such a policy violated the Establishment Clause. 84 F.3d at 1477-88. The Black Horse Pike court took particular offense to the requirement “to have us recognize a right in that plurality to [permit verbal prayer at graduation ceremonies], and ignore the right of others to worship in a different manner, or in no manner at all.” Black Horse Pike, 84 F.3d at 1477. Instead, the Black Horse Pike court held that “[a]n impermissible practice can not be transformed into a constitutionally acceptable one by putting a democratic process to an improper use.” Black Horse Pike, 84 F.3d at 1477; see also Board of Educ. of Kiryas Joel, 512 U.S. at 698-700, 114 S.Ct. 2481 (holding that the state cannot transform a practice that tends to establish religion into a secular one through delegating some aspect of the practice to non-governmental actors); Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447, 455 (9th Cir.1994)' (“elected officials cannot absolve themselves of a constitutional duty by delegating their responsibilities to a nongovernmental entity.”), vacated as moot, 515 U.S. 1155, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995). As the Lee court stated, “[w]hile in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us.” Lee, 505 U.S. at 596, 112 S.Ct. 2649. Although the policy that the Black Horse Pike court analyzed is distinguishable because the students voted on the direct question of prayer, its analysis of the policy’s attempt to dissociate prayer from the state’s imprint is persuasive. When we analyze the Duval County school system’s policy, we find evidence of the policy’s intent to permit prayer: (1) Reynolds and Superintendent Zenke originally instructed all schools to stop directing prayer at graduation ceremonies under Lee, and devised the current policy after pressure to develop a way to circumvent Lee’s prohibition of school-sponsored prayer at graduation ceremonies; (2) they entitled the memorandum embodying the policy “Graduation Prayers”; (3) the School Board voted down a moment of silence to permit these guidelines to remain in place; and (4) unlike a valedictory address, a two-minute “message” at the beginning or end of a graduation ceremony is more likely to result in prayer. Thus, we find that the school system believed it could give a “wink and a nod” to controlling Establishment Clause jurisprudence through attempting to delegate to the majority/plurality vote of students what it could not do on its own — permit and sponsor sectarian and proselytizing prayer at graduation ceremonies. The Establishment Clause simply does not allow this. As the Court stated in West Virginia State Board of Educ. v. Barnette, The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s ... fundamental rights may not be submitted to vote; they depend on the outcome of no election. 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). We also consider these students state actors for Establishment Clause purposes. In Evans v. Newton, the Court held that the line between private and state action “is not always easy to determine” and that “[c]onduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed on state action.” 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). The Evans Court also explained that when the state permits private groups or individuals to exercise governmental functions, the group or individual then must be subject to constitutional limits. See Evans, 382 U.S. at 299, 86 S.Ct. 486; see also Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding that when the state is a joint participant in the activity, the activity “cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment”); Harris, 41 F.3d at 455 (“[w]hen the senior class is given plenary power over a state-sponsored, state-controlled event such as a high school graduation, it is just as constrained by the Constitution as the state would be.”). Accordingly, even the elected student speaker’s independent choice of a topic is a choice fairly attributable to the state and, just as a publically-elected school board president could not make a “private decision” to lead the public schools in a recitation of a prayer every morning, neither may the senior class’s elected representative make a private decision to do the same thing from the graduation podium. See, e.g., Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1167 (7th Cir.) (“[ijmagine that the Gideons came to ... schools ... every morning to lead students in prayer. Is there any doubt that such morning prayers would be impermissible ... no matter that the prayers were led by non-school employees?”) (internal citations omitted), cert. denied, 508 U.S. 911, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993). We also find the reliance of the district court and the Duval County school system upon the Fifth Circuit’s reasoning in Jones v. Clear Creek Indep. School Dist. to be unpersuasive. See Adler I, 851 F.Supp. at 456. The policy in Jones is similar to the one at bar, with the primary difference being that the Jones guidelines instructed that the invocation and benediction “shall be nonsectarian and nonproselytizing.” See Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 417 (5th Cir.1991), vacated, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). The Jones court held that the policy “does not unconstitutionally endorse religion if it submits the decision of graduation invocation content, if any, to the majority vote of the senior class.” Jones, 977 F.2d at 969. The court premised its holding on the idea that “a graduating high school senior who participates in the decision as to whether her graduation will include an invocation by a fellow student volunteer will understand that any religious references are the result of student, not government, choice.” Jones, 977 F.2d at 969. The district court in Adler I followed this reasoning, stating that “the participants clearly understand that the student messages are just that — student messages that are divorced entirely from any governmental or institutional sponsorship.” Adler I, 851 F.Supp. at 456. We disagree. Based on our analysis above, the state cannot erase its control over or endorsement of prayer at a public school graduation through delegation of one portion of the graduation ceremony to the majority/plurality vote of students. Further, we believe (as we shall discuss further in the “coerced participation” factor) that a reasonable student will not realize that student-elected sectarian and proselytizing prayerful messages at graduation ceremonies are divorced from state sponsorship and instead, realizing the views to be that of the majority, will feel coerced to participate in them. Additionally, the Fifth Circuit clarified its Establishment Clause jurisprudence in Doe v. Santa Fe Indep. Sch. Dist., in which it held that a Jones graduation policy that did not contain the limitation that invocations and benedictions be nonsectarian and nonproselytizing violated the Establishment Clause. See Santa Fe, 168 F.3d 806, 816-17 (5th Cir.1999). The court held that Jones “did not hold that a policy is insulated from constitutional scrutiny under the Establishment Clause merely because it permits, rather than requires, religious speech when selected and given by students,” and that the content restrictions were “central” to Jones’s holding. Santa Fe, 168 F.3d at 816-17. Although the Santa Fe court bypassed a formal Lee analysis, it held that when the school “permits” sectarian and proselytizing prayers — which, by definition, are designed to reflect, and even convert others to, a particular religious viewpoint and which ... do not serve (and even run counter to) the permissible secular purpose of solemnizing an event — such “permission” undoubtedly conveys a message not only that the government endorses religion, but that it endorses a particular form of religion. Santa Fe, 168 F.3d at 817-18. As the Duval County school system’s policy in fact “permits” sectarian and proselytizing prayers, it is therefore distinguishable from Jones and fits within Santa Fe’s holding. Further, Santa Fe holds that a school’s delegation to students the decision whether to have some type of “message” at a graduation ceremony does not insulate the school from constitutional scrutiny. We hold that the state’s control over nearly all aspects of the graduation ceremony, and the choices of a student-elected representative, subjects the ceremony to the limits of the Constitution. We further hold that this policy does not dissociate student-initiated sectarian and proselytizing prayer at a school-controlled graduation ceremony from the imprint of the state under Lee, and that the state’s endorsement of the prayer subjects it to a facial violation of the Establishment Clause. Accordingly, we hold that the control that the Duval County school system exercised is sufficient to satisfy the state control “dominant fact” under Lee. 2. Coerced Participation The second “dominant fact” under Lee is an easier issue. “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.... ” Lee, 505 U.S. at 587, 112 S.Ct. 2649. The Lee Court discussed coerced participation at a graduation ceremony as follows: The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion.... But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is not less real. Lee, 505 U.S. at 593, 112 S.Ct. 2649. Because a student’s attendance at his or her graduation ceremony is “in a fair and real sense obligatory,” the Lee court held that students “had no real alternative which would have allowed [them] to avoid the fact or appearance of participation [in prayer].” Lee, 505 U.S. at 586, 588, 112 S.Ct. 2649. Additionally, “[t]he prayer exercises ... are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.” Lee, 505 U.S. at 598, 112 S.Ct. 2649. The Duval County school system’s graduation policy, and the school’s control over the graduation ceremony, require students to remain silent and perhaps even stand for the duration of the message. Thus, because the school system devised this system so that prayer could occur at graduation ceremonies, this coerced participation violates the Establishment Clause. The Court stated in Engel that “[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel, 370 U.S. at 431, 82 S.Ct. 1261. Further, because the graduation speaker under the Duval County school system’s policy won an elective contest to speak, the audience is much more aware that the views expressed are those of the majority and, according to Lee, the audience faces even greater compulsion to participate. See, e.g., Black Horse Pike, 84 F.3d at 1481 (“[the First Amendment] is not a sword that can be used to compel others to join in a religious observance at a state sponsored event.”). The Lee Court emphasized the importance of graduation as a “onee-in-a-lifetime” event and that “[t]he Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation.” Lee, 505 U.S. at 596, 112 S.Ct. 2649. Thus, we hold that the Duval County school system’s policy coerces objecting students to participate in prayer, thereby satisfying Lee’s coerced participation “dominant fact.” C. Lemon v. Kurtzman We next analyze the Duval County school system’s policy under the three-prong Lemon test. Under Lemon, we must ask whether: (1) the Duval County school system had a secular purpose for adopting the policy; (2) the policy’s primary effect is one that neither advances nor inhibits religion; and (B) the policy does not result in an excessive entanglement of government with religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. The Duval County school system’s policy violates the Establishment Clause if it fails to meet any of these criteria. See Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). 1. Secular Purpose The first prong of the Lemon test requires us to determine whether the challenged policy has a “clearly secular purpose.” Wallace, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). We must ask “whether [the] government’s actual purpose is to endorse or disapprove of religion.” Wallace, 472 U.S. at 56, 105 S.Ct. 2479 (internal quotations omitted); see also Lynch v. Donnelly, 465 U.S. 668, 690-91, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (“[secular purpose] is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes.”); Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993) (“no legislative recitation of a supposed secular purpose can blind us to an enactment’s preeminent purpose.”) (internal quotations and citations omitted), cert. denied, 513 U.S. 807, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994). Although the policy’s purpose need not be exclusively secular, it must be sincere and not a sham. Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573. The appellants presented the following evidence to show that the Duval County school system’s policy did not have a clearly secular purpose: (1) the Duval County school system drafted this policy in response to community support for prayer at graduation ceremonies and as an attempt to “fish” for ways around Lee; (2) Reynolds entitled the memorandum that enunciated this policy “Graduation Prayer”; and (3) the comments of the School Board members evidence their intent that instead of a moment of silence, the individual schools should adopt the policy to permit graduating students to engage in prayer. In Jager v. Douglas County Sch. Dist., this court held that a policy that permits religious invocations at public high school football games “by definition servefs] religious purposes” and therefore does not have a secular purpose. See 862 F.2d 824, 829-30 (11th Cir.), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989). The Jager decision dictates that when a public school policy’s actual purpose is religious — even intrinsically religious — the policy violates the secular purpose requirement under Lemon. See Jager, 862 F.2d at 830 (discussing cases that conclude that “an intrinsically religious practice cannot meet the secular purpose prong of the Lemon test”). The district court erred in failing to follow Jager. See Adler I, 851 F.Supp. at 452 n. 8 (questioning the value of Jager). We hold that the policy, both on its face and based upon the history surrounding its inception, has an actual purpose to permit prayer — including sectarian and proselytizing prayer- — at graduation ceremonies. See Santa Fe, 168 F.3d at 817 (holding that a policy that permits sectarian and proselytizing prayers has “a purpose which is the antithesis of secular.”). In fact, prayers were the direct consequence of this policy, as the Duval County school system’s 1992 policy — that directly outlawed prayer — would have banned them. See Black Horse Pike, 84 F.3d at 1479-80 (“[t]he text of [the policy] was adopted in response to Lee. The Board’s avowed purpose in reexamining its policy was to provide an option that might allow the ‘longstanding tradition’ of graduation prayer to survive the prohibitions of that Supreme Court decision.”). Thus, the policy violates the secular purpose requirement under Lemon. See Jaffree v. Wallace, 705 F.2d 1526, 1534 (11th Cir.1983) (“[r]ecognizing that prayer is the quintessential religious practice implies that no secular purpose can be satisfied.”), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). We also take exception with the district court’s conclusion that graduation ceremonies are “designated, limited public fora.” Adler I, 851 F.Supp. at 454. The district court held that [traditionally, the ceremonies are held at the coliseum, away from the school campuses, and virtually the entire program is given over to public speech making by the valedictorian and other leaders of the graduating class, and by community leaders who are invited to give the principal commencement address. Adler I, 851 F.Supp. at 454. We agree with the Black Horse Pike court that “[h]igh school graduation ceremonies have not been regarded, either by law or tradition, as public fora where a multiplicity of views on any given topic, secular or religious, can be expressed and exchanged.” Black Horse Pike, 84 F.3d at 1478; see also Doe, 147 F.3d at 838 (“the graduation ceremony is not a public forum”). The individual schools exert great control over the graduation ceremonies and the policy did not broaden the right of students to speak at the graduation ceremonies. Instead, only students that the majority selected could give a brief opening and closing message. “No matter what message a minority of students may wish to convey, the graduation forum is closed to them.” Harris, 41 F.3d at 457. Because the graduation ceremony is not a public forum, we hold that the district court’s reliance on public forum cases — and their corresponding requirement of strict scrutiny review— is incorrect. 2. Primary Effect Even if we assume that the Duval County school system’s policy survives the first Lemon prong, we also hold that the policy is facially unconstitutional because it fails the primary effect prong. The primary effect prong requires us to ask “whether, irrespective of [the] government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion].” Wallace, 472 U.S. at 56 n. 42, 105 S.Ct. 2479 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. 1355). We must use the viewpoint of the “reasonable observer” to determine if the principal or primary effect of the policy is one “that neither advances nor inhibits religion.” Lemon, 403 U.S. at 612, 91 S.Ct. 2105. In undertaking this analysis, we must also be mindful that this consideration is especially important in the context of public schoolchildren. See Edwards, 482 U.S. at 583-84, 107 S.Ct. 2573. The primary effect of the Duval County school system policy is to permit prayer at graduation ceremonies. Before 1992, schools in Duval County coordinated prayer at graduation ceremonies. After Lee, Superintendent Zenke and Reynolds instructed schools no longer to permit prayer at their graduation ceremonies. After pressure from the community and the Fifth Circuit’s Jones decision, Superintendent Zenke and Reynolds released a memorandum entitled “Graduation Prayer” that permitted students to decide through majority/plurality vote whether to have student-led “messages” at the beginning and closing of graduation ceremonies. In 1992, 10 of the 17 graduation ceremonies had student prayer. A reasonable observer at a graduation ceremony would believe that the “Graduation Prayer” policy conveys an endorsement of prayer — as the schools in the Duval County school system did openly prior to 1992 — which advances religion. See Jaffree, 705 F.2d at 1534-35 (“[t]he primary effect of prayer is the advancement of one’s religious beliefs.”); Santa Fe, 168 F.3d at 818-19 (holding that school’s permitting sectarian and proselytizing prayers “undoubtedly conveys a message not only that the government endorses religion, but that it endorses a particular form of religion.”). Further, the policy can place those attending graduation ceremonies “in the position of participating in a group prayer,” which also violates the primary effect prong of Lemon. See Jager, 862 F.2d at 831. 8. Entanglement Because the policy clearly fails the first two prongs of Lemon, we need not engage in an analysis of Lemon’s third “entanglement” prong. V. CONCLUSION Based on the foregoing, we hold that the Duval County school system’s policy of permitting graduating students to decide, through majority/plurality vote, whether to have student representatives give unrestricted messages at the beginning and closing of graduation ceremonies facially violates the Establishment Clause under Lee and Lemon. Therefore, we reverse the district court’s judgment in favor of appellees, and we remand this case so that: (1) appellants can pursue discovery on the events at graduations after 1993 for their as-applied challenge and damages; (2) the district court may consider the motions of intervenors; and (3) the district court may undertake further proceedings consistent with this opinion. REVERSED and REMANDED. . The memorandum (dated July 22, 1992) read, "This memorandum is to remind you that due to the recent Supreme Court Ruling in Lee v. Weisman, there should be no prayer, benediction, or invocation at any graduation ceremonies.” . For example, Calvin Carr, the High School Director for First Baptist Church in Jacksonville, wrote the following letter (dated March 3, 1993) to Reynolds: Thank you for being patient with me as I continue to "fish” for ways to incorporate prayer in our graduation ceremonies. I want you to know that I see it as a tragedy to allow one year to go by without having prayers — something that's been done in our country for over one hundred years. I am enclosing a copy of a bulletin that has been published from the Center for American Law and Justice. In that publication they allege that the Lee vs. Weisman case only stops school officials from inviting clergy to give prayers. Evidently Justice Kennedy made it clear for the majority that the court's decision was limited to the particular facts before the court (id. at 2655). Thus, any change from the factual situation presented in Lee might alter the resulting opinion of the court. Also, it points out that one Federal Appeals Court has already ruled that a majority of students can do what the state acting on its own cannot do to incorporate prayer in public school graduation ceremonies. Vicky, I’m not trying to be a ''stick-in-the-mud.” I just want to find a legal way our young people can have prayer at their graduations. It is going to be a sad day when we wipe them out of Duval County. Please help me to understand these rulings in this bulletin and I greatly appreciate your concern and help. Other evidence of this community pressure includes a memorandum that Reynolds circulated entitled "Legal Opinion-Graduation Prayer” to Duval County School Board Members that stated: For about a month my office has been receiving calls from principals asking for guidance as to the status of prayers at graduation. Students and parents had been informing them that there had been a change in the status due to a recent Court case and that student-led and initiated prayer was now acceptable. . At the June 1, 1993 meeting in which the School Board considered the "moment of silence” policy, the School Board members voted the policy down 4-3. The comments of those School Board members that opposed the moment of silence, however, show that their intention in denying a moment of silence was to permit the individual schools to utilize the guidelines from the Reynolds memorandum. Parker: But in good conscience I cannot vote to allow our '93 graduating class to have a few minutes of silent meditation when we all know that in the past some one has prayed out loud to thank the Lord for the 12 great and successful years in school during this period of time. And now we want silence.... I think that our school principals should be allowed to work out a non-sectarian message with our student chaplains, or a guest minister, rabbi or whatever that would be acceptable to all at this very important time in our young people's lives. Buckley: If we leave it [the Reynolds memorandum] as it is we have not told anybody to do anything or prevented them from doing anything. And that’s what I feel we should do. If we pass this motion as it is on the floor we are putting ourselves into it and saying you shall not pray. You shall have a moment of silent meditation and therefore we are injecting ourselves into what is happening at graduation. And I think the only way we can keep ourselves clear on this thing is to keep ourselves out of what happens in this area of the graduation ceremony. Corwin: God is not going away. Neither is our godly heritage for which American patriots sacrificed their lives and fortune from the time of the American revolution through Desert Storm. Americans who believe this have rights, too. The free public education system in America is based on the principles of good citizenship. I truly believe that this Board is dedicated to the premise that acceptable standards of conduct be formed in our students including self respect and respect for others regardless of race or religion. I also believe that the democratic process in which seniors were given the ability to choose which form of inspirational message, if any, they wanted at their commencement was an appropriate one and I’m going to stand by it. Jordan: In 1962, the Bible went out of the school and in 1992-93 the bullets come in. You don't have to be a brain surgeon to figure out that where we're going in America, black and white, rich and poor, Hispanics, Asians, what have you, our security is threatened. There is an old saying if you like what you’re getting, keep doing what you’re doing. And how long is it going to be before someone challenges that the class of '93 is unconstitutional because the class of '93 is named after the year of our Lord, 1993? Now how absurd are we going to take these special interest groups that are fanning their particular agenda at the expense of the best interest of this country? Mr. Chairman, I plan to vote for the administration plan and against the proposal that’s on the table. . Appellants have submitted the programs from Duval County High School graduations for years subsequent to 1993. Some of these programs indicate that student "leaders” or "chaplains” gave "messages,” "invocations” and "benedictions” at these ceremonies. . These "original” plaintiffs consisted of the following students: Emily Adler, Laura Jaffa and Robin Zion. Robin Rand later joined the action. . Appellants in the instant action include: Emily Adler, a June 1998 graduate of Mandarin High School; Seth Finck, a June 1998 graduate of Stanton College Preparatory School; Stella Finck, as mother of Rachel Finck, planning to graduate from Stanton College Preparatory School in 1999, Aai'on Finck, planning to graduate from Stanton College Preparatory School in 2000 and Du-val County Public School student Benjamin Finck; Roberta Nord, mother of Duval County Public School Students Lucy Nord, age 9 and Tyler Hurley, age 12; and Jonathon Rand, a June 1998 graduate of Stanton College Preparatory School. . Appellants also allege that the district court abused its discretion in consolidating the merits of their claim with the hearing on their motion for preliminary injunction. As appellants consented to this consolidation, we find no abuse of discretion. . The Establishment Clause applies to the states through the Fourteenth Amendment. See Everson v. Board of Educ. of Ewing, 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). As long as state action is present, a lack of statutory authorization does not limit the reach of the Establishment Clause. See Jager v. Douglas County Sch. Dist., 862 F.2d 824, 828 n. 7 (11th Cir.), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989). . See, e.g., Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 721, 114 S.Ct. 2481, 129 L.Ed.2d 546(1994) (O’Connor, J., concurring) ("the slide away from Lemon’s unitary approach is well under way.”); Lee, 505 U.S. at 587, 112 S.Ct. 2649 ("[w]e can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus, we do not accept the invitation ... to reconsider our decision in Lemon v. Kurtzman.”); Allegheny v. American Civil Liberties Union, 492 U.S. 573, 655-56, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and dissenting in part) (questioning the Court’s continued adherence to the Lemon test); Wallace v. Jaffree, 472 U.S. 38, 112, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) (stating that the Lemon test "has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results.”); Kent Greenwald, Quo Vadis: The Status and Prospects of “Tests" Under the Religion Clauses, 1995 Sup.Ct. Rev. 323, 361 (1996) ("now that Lemon lacks any defenders on the Court, other judges would perform a shallow exercise were they to continue to apply its terms. They should recognize that the Supreme Court has definitely abandoned Lemon."). . In Engel v. Vitale, the Court spoke of less direct state control for Establishment Clause purposes: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonob-serving individuals or not. 370 U.S. 421, 430, 82 S.Ct. 1261 (1962). . The policy, in pertinent part, allowed for prayer under the following conditions: 1. The Board of Education, administration and staff of the schools shall not endorse, organize or in any way promote prayers at school functions. 2. In the spirit of protected speech, the pupils in attendance must choose to have prayer conducted. Such prayer must be performed by a student volunteer and may not be conducted by a member of the clergy or staff. Black Horse Pike, 84 F.3d at 1475. . The Adler I court realized that messages at the opening and closing of a graduation ceremony would likely lead to prayer when it stated that "[(Invocations and benedictions have been traditional and are therefore familiar if not expected at high school graduation ceremonies." Adler I, 851 F.Supp. at 453 n. 9. . The other major differences between the two policies are that: (1) the Jones policy referred to "invocations” and "benedictions,” while the Duval County policy referred to "opening and closing messages”; and (2) the senior class principal in Jones had the power to advise and counsel the senior class. Jones, 930 F.2d at 417. . The Santa Fe court also held that a policy of prayer at high school football games also violated the Establishment Clause. See Santa Fe, 168 F.3d at 811-12. The graduation ceremony policy that the court reviewed is as follows: The board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or des-ignee, to elect by secret ballot to choose whether an invocation and. benediction shall be a part of the graduation exercise. If so chosen, the class shall elect by secret ballot, from a list of student volunteers, students to deliver invocations and benedictions for the purpose of solemnizing their graduation ceremonies. See Santa Fe, 168 F.3d at 811-12. The policy also had a "fallback,” which provided that if a court enjoins the school district from enforcing the policy, then it would utilize the nonsectarian and nonproseltyzing limitation. See Santa Fe, 168 F.3d at 812. . The Adler I court relied upon Chabad-Lubavitch, a case in which the en banc court reversed the denial of a group's request to erect a menorah in the Rotunda of Georgia’s Capitol Building. See Chabad-Lubavitch, 5 F.3d at 1385-86. The court specifically found that "[o]ver the past decade, Georgia has opened the Rotunda to Georgia's citizenry for their expressive activities both secular and religious in nature.” Chabad-Lubavitch, 5 F.3d at 1386. The Chabad-Lubavitch court was careful to distinguish itself from Jager, because "Jager involved state-sponsored religious speech in a non-public forum; quite different from the private religious speech in a public forum in the instant case." Chabad-Lubavitch, 5 F.3d at 1393 n. 16. A high school graduation ceremony is not “open” to its participants for expressive activity, and the policy's permitting two elected student representatives to give a message does not transform the graduation ceremony into a designated public forum. See also Arkansas Educ. Television Comm. v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1642, 140 L.Ed.2d 875 (1998) (“[a] designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.”). We also hold that a public school graduation ceremony is not a “limited public forum,” because limited public forums "are those areas that the government has created for use by the public as places for expressive activity.” Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1548 (11th Cir.1997) (citing Perry Educ. Ass’n. v. Peiry Ixtcal Educators’ Ass’n., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)); see also Santa Fe, 168 F.3d at 821 ("even though the government may designate a forum only for particular speakers or for the discussion of particular topics ... [the school district's] restrictions so shrink the pool of potential speakers and topics that the graduation ceremony cannot possibly be characterized as a public forum — limited or otherwise — at least not with fingers crossed or tongue in cheek.”). The Duval County school system did not establish its graduation ceremonies for public use; instead, it chose all of the speakers except the elected student(s). . For purposes of the appellants' as-applied challenge on remand, we direct the district court to consider, along with newly-discovered evidence, the record evidence of school-directed prayer at graduation ceremonies. The limited record shows that many of the programs from school graduations indicate that “chaplains" gave "invocations” and "benedictions” during which the graduation programs directed the audience to stand. Additional record evidence shows that speakers at some of the graduation exercises were not selected using wholly secular criteria and students voted directly on the question of whether to have prayer at graduation ceremonies. In some instance, a faculty member delivered a prayer. Evidence of this sort clearly violates Lee. KRAVITCH, Senior Circuit Judge, Specially Concurring: I concur in both the reasoning and result of the majority opinion; on its face, the policy of the Duval County School Board violates the Establishment Clause of the First Amendment as the Supreme Court has interpreted it in both Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Contrary to the dis sent’s characterizations, the grounds of the majority opinion are quite narrow, and I write separately only to emphasize the particular points that I believe dictate the outcome of today’s decision. I. Lee v. Weisman As the majority opinion succinctly observes, the Supreme Court rested its decision in Lee on two “dominant facts”: (1) “[s]tate officials direet[ed] the performance of a formal religious exercise” and (2) even for objecting students “attendance and participation in the state-sponsored religious activity [were] in a fair and real sense obligatory....” Lee, 505 U.S. at 586, 112 S.Ct. at 2655. In Lee, a high school principal decided to include a prayer at graduation, selected a local rabbi to deliver the prayer, and instructed the rabbi that the prayer be nonsectarian, giving him a copy of “Guidelines for Civic Occasions” to assist him in choosing appropriate material. Id. at 581, 112 S.Ct. at 2652. It was this unabashed state involvement in composing and directing a formal prayer exercise that led the Court to find that the prayer “bore the imprint of the State,” id. at 590, 112 S.Ct. at 2657, and to conclude that the principal’s practice created a “state-sponsored and state-directed religious exercise in a public school,” id. at 581, 112 S.Ct. at 2655. As the Lee Court held that the prayer, delivered from the podium during the graduation ceremony, constituted a formal religious exercise, the difficult question in the present case is whether a student speaker’s decision to pray under similar circumstances is attributable to the state. Under most circumstances, the Establishment Clause presents no obstacle to a student’s decision to pray on school premises or during a school event. Contrary to popular belief, the courts never have interpreted the Establishment Clause to prohibit any individual student from praying, for example, before a meal or before a test. The dissent suggests that the majority comes “perilously close” to adopting such a course of action in the context of public high school graduations, Dissent at 1256, but this case presents no occasion to rewrite settled Establishment Clause jurisprudence, and today’s decision neither aspires to nor achieves that result. The majority opinion acknowledges that, under some circumstances, a student’s individual decision to pray from the podium at a high school graduation may be constitutional. Cf. Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir.1998) (upholding a policy that permitted the top four students to speak on any topic of their choosing without state approval), vacated as moot, 177 F.3d 789 (9th Cir.1999). As the parties to this case have emphasized, the Establishment Clause applies only to the federal and state governments and has no effect on prayer that genuinely is private in character. The majority opinion recounts — m convincing detail — why the Du-val County School Board’s policy produces speech of a public rather than private character, and I will not repeat that analysis here. I acknowledge that the Fifth Circuit’s decision in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), which holds that “a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies,” is at odds with the reasoning of our opinion today. Id. at 972. In my view, the Jones decision to uphold a student vote to include prayer at a high school graduation, and in particular the specific language quoted above, strains the boundaries of Lee and conflicts with the Supreme Court’s decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943) (explaining that the protections of the Bill of Rights are not subject to waiver on the basis of a majority vote). Moreover, to the extent Lee requires us to evaluate considerations of psychological coercion, it seems to me that a prayer from the lips of a popularly elected student representative is far more likely to coerce audience participation than one from a member of the clergy selected by the school principal. II. The Continuing Relevance of Lemon v. Kurtzman Although the Supreme Court’s Lemon decision has been the target of much academic and judicial criticism, Lemon remains the law of the land and of this circuit. See Maj. Op. at 1243 (citing Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n. 7, 113 5.Ct. 2141, 2148 n. 7, 124 L.Ed.2d 352 (1993); Chabad-Lubavitch v. Miller, 5 F.3d 1383, 1388 & n. 8 (11th Cir.1993)). Notwithstanding Lemon’s continued vitality as part of our general Establishment Clause jurisprudence, it is not immediately obvious that we still should apply Lemon’s analysis, in addition to the more specifically applicable analysis in Lee, in cases that involve prayer at high school graduations. Upon examination, however, I am convinced that Lemon remains binding law even in this particular area. Beginning with the Supreme Court’s four opinions in Lee, I note that the only opinion that declares the Lemon test irrelevant to the issues at hand is that of the dissent. See Lee, 505 U.S. at 644, 112 S.Ct. at 2685 (Scalia, J., dissenting). Although Justice Kennedy’s majority opinion recounts the analysis of the district and circuit courts, both of which declared the policy in question unconstitutional under the Lemon test, the opinion pointedly sidesteps Lemon. Rather than accepting the invitation of both the petitioning school principal and the Solicitor General to overrule or modify Lemon, the majority declared that it need not address the case because the state involvement in the prayer and coercion present in Lee made it an easy case that the Court could “decide without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured.” Lee, 505 U.S. at 587, 112 S.Ct. at 2655. By suggesting that the Establishment Clause problems implicated in the practice at issue in Lee were so obvious as to compel the-result, the majority opinion seems to require (or at least permit) courts to apply the general Lemon framework in more difficult cases in which the state’s involvement and coercion are not as plain. Indeed, every court that has addressed the issue of prayer at graduation since Lee has assumed this conclusion and has applied both the Lee and Lemon analyses. In Jones v. Clear Creek Indep. Sch. Dist., a case the Supreme Court remanded in light of Lee, for example, the Fifth Circuit decided that a full reconsideration of the case required the court to apply the three-pronged test of Lemon in addition to considering the implications of Lee. See 977 F.2d 963, 966 & n. 8 (5th Cir.1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984) for the proposition that the Court is “ ‘unwilling to be confined to any single test or criterion in this sensitive area’ ”) (internal punctuation omitted). The Third Circuit, writing en banc, took a more forceful view of the question and specifically stated that because Lemon was still good law the court was bound to apply it despite its conspicuous absence from the Lee analysis. See ACLU v. Black Horse Pike Reg. Bd. of Educ., 84 F.3d 1471, 1484 (3d Cir.1996) (en banc). Even the Black Horse Pike dissenters agreed that deference to precedent required the court to apply Lemon in addition to Lee. Id. at 1493 (Mansmann, J., dissenting). The Ninth and Seventh Circuits also have assumed, without discussion, that the Lemon test continues to apply to graduation prayer cases and have applied Lemon in addition to Lee. See Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 836-38 (9th Cir.1998), vacated as moot, 177 F.3d 789 (9th Cir.1999); Harris v. Joint Sch. Dist. No. 211, 41 F.3d 447, 457-58 (9th Cir.), vacated as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995); id. at 460 n. 4 (Wright, J., dissenting) (disagreeing with the result but noting the applicability of the Lemon test); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir.1997) (applying Lemon in addition to Lee in a challenge to prayer at a university graduation). Similarly, the district court in this case applied both Lemon and Lee. See Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 450-51 (M.D.Fla.1994) (“Adler I ”). In short, although some courts and individual judges have disagreed over what manner of prayer the Supreme Court’s precedents might permit at a public graduation, to our knowledge no count nor single judge has published an opinion that even suggests that Lemon is no longer applicable to cases involving graduation prayer or that Lee presents the only acceptable or relevant analysis. Finally, even were we to accept arguen-do the dissent’s suggestion that the Lemon test is inapplicable to cases involving prayer at high school graduation and “unnecessary” to evaluate Duval County’s policy, Dissent at 1259, no authority suggests that we may ignore the underlying principles of Lemon, developed in cases both before and after the Supreme Court decided that case. In 1947, almost 25 years before Lemon, the Supreme Court explained that the Establishment Clause “means at least” that the state can neither “force nor influence” its citizens to attend or refrain from attending any church. Everson v. Board of EduC., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). Indeed, the Supreme Court’s holding in Lee easily could be read as nothing more than a reaffirmation of that narrow principle: the state may not coerce (or, more controversially, encourage) its citizens to participate in formal religious exercises. Similarly, in a case decided three years before Lemon, the Supreme Court relied on the state’s religious purpose in enacting a statute to strike down a state law that criminalized the teaching of evolution in public schools. See Epperson v. Arkansas, 393 U.S. 97, 107-09 & n. 16, 89 S.Ct. 266, 272-73 & n. 16, 21 L.Ed.2d 228 (1968) (quoting a campaign advertisement that supported the statute). Although the state’s motivation, “to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man,” id. at 109, 89 S.Ct. at 273, was more extreme than the school board’s purpose here, the difference is one only of degree; both practices violate the broader principle that the state may not act with the primary purpose of advancing religion. The Supreme Court repeatedly has reaffirmed this principle in the years since Lemon by applying it in the context of that framework. In Stone v. Graham, for example, the Court rejected the Kentucky state legislature’s “avowed” secular purpose for posting the Ten Commandments in public schools and declared the practice unconstitutional because it found that the state’s purpose was “plainly religious in nature.” 449 U.S. 39, 41, 101 S.Ct. 192, 194, 66 L.Ed.2d 199 (1980) (per curiam). Similarly, in Wallace v. Jaffree, the Court twice struck down Alabama laws requiring a moment of silence in public schools because the legislature passed them solely for religious purposes. See 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). Finally, in Edivards v. Aguillard, the Court relied on its own reading of a statute that constrained the teaching of evolution in public schools and the statements of the state legislator who sponsored the law to declare the state’s alleged secular purpose a sham. See 482 U.S. 578, 585-95 & n. 15, 107 S.Ct. 2573, 2578-83 & n. 15, 96 L.Ed.2d 510 (1987). The Court struck the law down because its primary purpose was to advance religion and it therefore had no “clear secular purpose.” Id. at 585, 107 S.Ct. at 2573. See also Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829-30 (11th Cir.1989) (dismissing the state’s asserted secular purpose and striking the state’s practice of permitting prayer over a public address system at high school football games as unconstitutional because its actual primary purpose was to advance religion). This case forces us to decide whether the school board violated the Establishment Clause by attempting to make an end-run around Lee when the board’s policy has the clearly evidenced, primary purpose and effect of advancing prayer (and thus religion) at public graduations. The Supreme Court’s cases, both before and after Lemon, suggest that such a policy cannot survive constitutional muster, and even Justice Kennedy’s majority opinion in Lee contains some (albeit admittedly scant) support for the proposition that the object of the state’s exercise may not be to advance religion. On the record available to us in this case, the evidence convincingly demonstrates that the school board acted with the purpose of permitting a student speaker to lead the audience in prayer at high school graduations. In addition to the historical backdrop and the contemporaneous statements of policy makers, the plain terms of the policy indicate the school board’s primary purpose to permit prayer. The policy allows a two minute message at the beginning and/or end of the ceremony; one need not be clairvoyant to predict that prayer is the most natural “message” this format is likely to produce. Indeed, one only need be a historian; during the only year for which we have evidence in the record, the policy produced student-led prayer from the podiums of ten out of seventeen graduation ceremonies. Under such circumstances, I believe that the principles crafted in the cases discussed above require us to hold the policy unconstitutional, without regard to Lee or even specific citation to Lemon. Having concluded that Lemon v. Kurtzman has survived as a matter of general Establishment Clause jurisprudence and that the case’s three-pronged analysis — or at least the principles underlying that analysis — remains relevant on the more particular question of prayer at public high school graduations, it remains only to say that I agree with the majority’s application of the Lemon framework to the facts of this case. In my view, the religious purpose and effect of the school board’s policy are plain in the record and on the face of the policy; the policy, therefore, cannot stand. . See generally Daniel N. McPherson, Student-Initiated Religious Expression in the Public Schools: The Need for a Wider Opening in the Schoolhouse Gate, 30 Creighton L. Rev. 393 (1997) (discussing "flagpole prayer” where students spontaneously congregate to pray). . In particular, I object to the dissent's contention that the majority opinion would outlaw all private religious expression at a graduation, see Dissent at 1256, and the suggestion that our decision prevents a speaker from discussing religious themes or thoughts, id. at 9, 31-32 & n. 8. Our decision today, as the Supreme Court’s decision in Lee, concerns prayer — a formal religious exercise — delivered at the state's direction from the podium at a high school graduation. See Lee, 505 U.S. at 586 & 589, 112 S.Ct. at 2655 & 2656 (describing prayer as a formal religious exercise); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 830 (11th Cir.1989) (explaining that prayer is the quintessential religious practice). I find nothing in the majority opinion that supports the dissent’s concerns regarding such extreme further implications or consequences. . We need not decide today whether the now-vacated Madison panel decision was correct or even persuasive. Nor must we conjure up a host of hypothetical circumstances under which the Madison panel's reasoning would be more or less convincing. Today’s opinion properly limits the scope of our decision of the policy and circumstances presently under review. . Although the policy sets forth secular criteria for selecting speakers, even the limited record presently available includes disturbing allegations and evidence that the speakers who addressed the audience at graduation ceremonies pursuant to the policy were not selected according to wholly secular criteria and, in at least one case, was not a student but a member of the faculty. As the majority opinion observes, conduct of that nature plainly falls within the Supreme Court’s proscriptions in Lee. . The Supreme Court has continued to apply Lemon by name and did so as recently as two terms ago. See Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Following the Court’s lead, we also have continued to apply the Lemon test in Establishment Clause cases. See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468 (11th Cir.1997). . As the majority explains, to survive scrutiny under the Lemon test, the challenged policy must: (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not foster excessive government entanglement with religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. . Two of these same dissenters (Justices Sca-lia and Thomas), as well as Justice Kennedy, expressed concern about the Court's opinion in Lamb’s Chapel, joined by two of the Lee dissenters (Justices Rehnquist and White), which "resurrected” Lemon. See Lamb’s Chapel, 508 U.S. at 395 & n. 7, 113 S.Ct. at 2148 & n. 7 (applying Lemon and adding that the Court has not overruled the case); id. at 397, 113 S.Ct. at 2149 (Kennedy, J., concurring in judgment) (calling the majority’s citation of Lemon "unsettling and unnecessary”); id. at 398, 113 S.Ct. at 2149 (Scalia, J., dissenting) (likening Lemon to a "ghoul in a late-night horror movie that repeatedly sits up in its grave ... after being repeatedly killed and buried”). More significantly, Justice Scalia subsequently has conceded error in his eulogy for Lemon and has observed (albeit with considerable dismay) that, despite the Court's recent fondness for deciding Establishment Clause cases without reference to Lemon, the lower courts are not free to ignore the case because they may not discard Supreme Court precedent at will. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 750-51, 114 S.Ct. 2481, 2515, 129 L.Ed.2d 546 (1994) (Scalia, J., dissenting). . Justice Blackmun's concurring opinion traces the evolution of the Court's Establishment Clause case law, including the development of the Lemon test, and declares that nothing in the majority opinion conflicts with the established jurisprudence. See Lee, 505 U.S. at 600-04, 112 S.Ct. at 2662-64 (Black-mun, J., concurring). Justice Souter's concurrence also cites Lemon with approval but does not address the continued viability of the test. Id. at 627, 112 S.Ct. at 2676 (Souter, J., concurring). Justices Stevens and O’Connor joined both concurrences. . The Fifth Circuit reaffirmed the continued applicability and relevance of the Lemon test in school prayer cases, in addition to the analysis in Lee, in Ingebretsen v. Jackson Public Sch. Dist., 88 F.3d 274, 278-79 (5th Cir.1996), in Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir.1995), and again in Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir.1999). . See, e.g., Kent Greenawalt, Quo Vadis: The Status and Prospects of “Tests” Under the Religion Clauses, 1995 Sup.Ct. Rev. 323, 361 ("What courts and lawyers should do instead [of applying Lemon ] is focus on narrower principles relevant for particular circumstances, drawing these principles partly from the very Supreme Court cases decided under the Lemon test.”). . The relevant passage provides: The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend. See Lee, 505 U.S. at 588-89, 112 S.Ct. at 2656 (emphasis added). . Neither the Supreme Court nor our own court has felt compelled to ignore record evidence regarding historical realities or the contemporary statements of policymakers in evaluating the religious purpose of a particular policy under Lemon. See Aguillard, 482 U.S. at 585-95 & n. 15, 107 S.Ct. at 2578-83 & n. 15; Jaffree, 472 U.S. at 56-59, 105 S.Ct. at 2489-91; Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1527, 1530-34 (11th Cir.1993); Jager, 862 F.2d at 829-30. As the majority notes, the district court committed error when it acknowledged that our decision in Jager relied upon such evidence but ignored the case on this point in part because the Jager panel was not unanimous. See Adler I, 851 F.Supp. at 452 n. 8. Just as split decisions from the Supreme Court bind all lower courts, district courts are not free to disregard circuit precedent on the ground that a particular panel did not speak with one voice. MARCUS, Circuit Judge, dissenting: The court today holds that the Duval County school system’s policy of permitting graduating students to vote on whether to select a student to deliver an unrestricted message at the opening or closing of a high school graduation ceremony violates the Establishment Clause of the First Amendment. The majority finds Duval County’s policy facially unconstitutional simply because the school sponsors the ceremony and provides the platform and opportunity for a student to deliver a message that may or may not have any religious content. In the process, the majority opinion has come perilously close to pronouncing an absolute rule that would excise all private religious expression from a public graduation ceremony, no matter how neutral the process of selecting the speaker may have been, nor how autonomous the speaker was in crafting his message. By somehow transforming a private speaker into a state actor and a student’s message into the state establishment of religion, the majority has, I believe, misapprehended the Supreme Court’s Establishment Clause jurisprudence, and has ignored the “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Educ. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion). I, therefore, respectfully dissent. I. The central issue presented in this case is whether the Establishment Clause dictates that every form of religious expression be eliminated from graduation ceremonies, no matter who may express it. The majority recognizes, as it must, that the Supreme Court has never levied a per se ban on all religious expression at high school graduation ceremonies, and it appears to accept, at least in a general way, that in the public school context, Establishment Clause jurisprudence is of “necessity one of line-drawing,” Lee v. Weisman, 505 U.S. 577, 598, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), “sometimes quite fine, based on the particular facts of each case,” Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (O’Connor, J., concurring). Indeed, the majority opinion begins its discussion, as it must, with an examination of Lee v. Weisman, where the Court had occasion to visit for the first time the question of school prayer at a high school graduation ceremony. In Lee, Justice Kennedy, writing for the majority, took special care “to recognize that, at graduation time and throughout the course of the education process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the - public schools and their students.” Lee, 505 U.S. at 598-99, 112 S.Ct. 2649 (citing Board of Educ. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990)); see also id. at 630 n. 8, 112 S.Ct. 2649 (Souter, J., concurring) (citing Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986)). Instead of purging graduation ceremonies of all prayer, Lee calls for the difficult task of separating a student’s private message, which may be religious in character, from the school board’s religious speech, protecting the former and prohibiting the latter. Close attention to the Duval County policy leads me to the conclusion that the policy is facially constitutional. A. The facts needed to measure the facial constitutionality of the School Board’s policy are straightforward, uncontroverted, and laid out fully by the district court in Adler v. Duval County School District, 851 F.Supp. 446 (M.D.Fla.1994) (“Adler I”), vacated as moot, 112 F.3d 1475 (11th Cir.1997) (“Adler II ”). Invocations, benedic tions, and other religious prayers or messages were traditionally offered by clergy and others at public high school commencement ceremonies in the Duval County School District. In 1992, following the decision in Lee v. Weisman (holding that a Providence, Rhode Island school principal, acting in accord with school board policy, violated the Establishment Clause by inviting a local clergyman to deliver a nonsectarian prayer at graduation), the Duval County Superintendent, Larry Zenke, instructed Vicki R. Reynolds, the school district’s legal affairs officer, to research the issue further. Reynolds advised Superintendent Zenke that it would be permissible for principals to allow student-initiated and student-led prayer during graduation ceremonies if the school authorities were not involved in the decision-making process. See Adler I, 851 F.Supp. at 448. On May 5, 1993, she issued a memorandum (“The Reynolds Memorandum”) to all high school principals, which remains the operative policy for student messages at graduation ceremonies in the Duval County School District. The Reynolds Memorandum provides in part: You will recall that after the 1992 Supreme court case of Lee v. Wiseman [sic], you received a memorandum from me instructing that because of the decision, we would no longer be able to have prayers at graduation ceremonies. Most of you have recently been bombarded with information, as have I, regarding whether or not student initiated and led prayers are acceptable based upon a recent Fifth Circuit opinion. The purpose of this memorandum is to give you some guidelines on this issue if the graduating students at your school desire to have some type of brief opening and/or closing message by a student. This area of the law is far from clear at this time, and we have been threatened by lawsuits from both sides on the issue depending on what action we take. The key to the Lee v. Wiseman [sic] decision was that the prayer given at that graduation ceremony was directed and initiated by the school system, which made it unconstitutional, rather than by permissive student choice and initiative. With that premise in mind, the following guidelines may be of some assistance: 1. The use of a brief opening and/or closing message, not to exceed two inm-utes, at high school graduation exercises shall rest within the discretion of the graduating senior class; 2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole; 3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by Duval County School Board [sic], its officers or employees; The purpose of these guidelines is to allow the students to direct their own graduation message without monitoring or review by school officials. Id. at 449. In 1993, under this policy, ten of seventeen high school graduation ceremonies had some form of student delivered religious message. At the other seven graduations, there were no student messages at all or the messages were entirely secular in character. See id. at 449-50. There is no tabulation in the record of comparable statistics for subsequent graduations. B. Lee v. Weisman presents the analytical framework against which to measure the Duval County policy, and resort to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), may be unnecessary. But whether measured against the Lee framework or Lemon, to my thinking, the policy passes facial constitutional muster. In Lee, Justice Kennedy wrote that “the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the City of Providence is an unconstitutional one. We can decide the case without reconsidering the general framework by which public schools’ efforts to accommodate religion are measured.” 505 U.S. at 586-87, 112 S.Ct. 2649. The conclusion that we should measure the policy at issue by comparing it to the Lee analysis is bolstered by the concurring opinions of Justices Blackmun and Souter and the dissent of Justice Scalia. Notably, none of the Justices employed the Lemon test in Lee. Justice Blackmun, concurring in an opinion joined by Justices Stevens and O’Con-nor, formulated the applicable test in these terms: “[njearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution.” Id. at 599, 112 S.Ct. 2649 (Blackmun, J., concurring). Justice Souter, also concurring in an opinion joined by Justices Stevens and O’Connor, likewise did not apply Lemon’s three-part test. For him the “principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen’s standing in the political community.” Id. at 627, 91 S.Ct. 2105 (Souter, J., concurring). Finally, dissenting, Justice Scalia, writing for himself, Chief Justice Rehnquist, and Justices White and Thomas, observed that the Court’s opinion had demonstrated the “irrelevance of Lemon by essentially ignoring it ... and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision.” Id. at 644, 91 S.Ct. 2105 (Scalia, J., dissenting). In Lee, the Supreme Court pointed at two “dominant facts” as marking the boundaries of its decision: first, the Providence school officials ordained and directed the performance of a religious exercise by deciding to include prayer in the graduation ceremony, by selecting a clergyman to deliver the prayer, and by providing the clergyman with guidelines informing the content of the prayer; second, pressure was exerted on students to attend graduation and conform with their peers. See id. at 586-88, 112 S.Ct. 2649. What the Supreme Court found troubling about Lee was that the government clearly directed a formal religious exercise' — -albeit in the form of a nonsectarian prayer — under such circumstances as to oblige the participation of many who objected. As Justice Kennedy wrote: These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require at tendance as a condition for receipt of the diploma. Id. at 586, 112 S.Ct. 2649. There can be little doubt, then, that in Lee, the Providence, Rhode Island school system ordained and established a religious exercise at a graduation ceremony. The graduation prayer delivered by a rabbi was in every sense the state’s prayer. In striking contrast, under the Duval County policy, however, neither the School Board nor its principals may ordain, establish or direct that a prayer or a message of any kind shall be delivered at graduation. Indeed, the Duval County policy explicitly divorces school officials from the decision-making process as to whether any message — religious or not — may be delivered at graduation. Moreover, under the policy, the School Board and its agents have no control over who will draft the message, if there be any message at all, or what its content may be. According to Duval County policy, school officials merely allow the graduating class to decide whether or not to have a speaker deliver a message at graduation, and, if so, it’s left to the student body to select that speaker. Indeed, the special concurrence concedes that the policy “sets forth secular criteria for se-Tecting speakers.” Special Concurrence at 1253 n. 4. The School Board does not suggest in any way, let alone require the graduating class to consider religious criteria or any other criteria in deciding whether or not to have a student speaker or in selecting the speaker. And most notably for me, if the graduating class chooses to have a message, the content of the message shall be prepared by the student speaker alone and no one else. The Duval County School Board is prohibited by the very terms of its policy from monitoring or otherwise reviewing the message in any way. On the face of the policy, the students unambiguously understand that any student message is utterly divorced from School Board sponsorship. In short, I cannot conceive of how a message delivered by a student under these circumstances can be characterized as the state’s message or how a policy allowing the delivery of an autonomous message can be seen as the state direction of prayer. The Supreme Court struck down the policy in Lee precisely because Providence school officials directed the performance of a “formal religious exercise.” 505 U.S. at 586, 112 S.Ct. 2649. The Court did not suggest that school sponsorship of the graduation event, standing alone, was sufficient to find the Providence policy unconstitutional, or it would have banned all religious expression at graduation. The majority here contends that the control exerted by the school district over the graduation ceremonies affixes the imprimatur of the state on any religious message delivered by any student. While the majority opinion acknowledges that Lee is distinguishable from this case, it nevertheless concludes that the Duval County School Board policy fails to erase the imprint of the state from student messages at graduation ceremonies. Lee does not support this rationale for finding the School Board policy unconstitutional. The majority’s holding which, in essence, requires schools to banish religion from all events in which there is school control, is far-reaching and goes further than the Establishment Clause requires. Following the majority’s reasoning, the religious content of any speech at a graduation ceremony is likely attributable to the school merely because the school sponsors the event. As a result, schools would have to prevent any speaker, including speakers as diverse as athletes, politicians, academics, entertainers, maybe even judges, from discussing a religious topic or invoking the Lord’s name, to ensure that no audience member perceives that the school is endorsing the speaker’s religious message. By that logic, those speakers would bear the imprimatur of the state simply because they were selected by the school to speak at an event over which the school has great control. But a graduation free of all religious expression is not required by the Establishment Clause. The Supreme Court has repeatedly held that neutrality, not hostility, toward religious expression is required by the Establishment Clause. Indeed in Lee the Court recognized that “[t]he First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” 505 U.S. at 589, 112 S.Ct. 2649; see also Agostini v. Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (observing that there is no advancement of religion where “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis”); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”); Board of Educ. v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (“‘A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of “neutrality” toward religion.’ ” (quoting Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973))); Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (“[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”). What the Establishment Clause bars is state sponsorship of religion or prayer in the context of public school graduation ceremonies. How then, does the majority opinion, or the special concurrence, propose to convert a private speaker who is selected through a wholly neutral process, and who is given complete autonomy over the content of her speech, into a public, state sponsored speaker? Two basic arguments are offered. First, the majority contends that by providing the platform and opportunity, the state has created a sufficient link to the student speaker to convert the student’s private speech into public, state sponsored speech. Second, both the majority and the special concurrence suggest that the process of selecting the speaker shrouds the otherwise private speech with the imprint of the state. The first argument — that by providing the platform, the speech becomes public- — goes too far. The second — that the speaker somehow garners state authority by virtue of the plebiscite — has no logical rationale. Even if we accept that the Duval County School Board exerted “overwhelming control” over the graduation ceremony, it is clear that it did not have control over the elements which are most crucial in this calculus: the selection of the messenger, the content of the message, or most basically, the decision whether or not there would be a message in the first place. On the face of the policy, the students alone decide both whether there will be a message, and, if so, who the messenger will be. By suggesting that the state has “directed” prayer, the special concurrence has misapprehended the School Board policy. Special Concurrence at 1252 n. 2. In essence, this case is indistinguishable from Doe v. Madison School District No. 321, 147 F.3d 832 (9th Cir.1998), withdrawn & reh’g en banc granted, 165 F.3d 1265 (9th Cir.1999), where the Ninth Circuit held that graduation speech does not bear the imprimatur of the state when the speaker is a student, not a cleric; the student speaker is selected on neutral and secular criteria; and the student has complete autonomy over content. See id. at 835-37. The majority insists that the delegation of responsibilities to nongovernmental actors does not altogether absolve the state of its constitutional duty. Stated at so high an order of abstraction, I can readily accept that premise. But the Duval County School Board in no way delegated any state authority to the students by providing them the opportunity to decide if they wanted a student message, and to select a student speaker if they so chose. The majority has in no way proven that the students’ private conduct has become so “entwined with government policies” and so “impregnated with governmental character” as to become subject to the constitutional limitations placed on state action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). In fact, the state’s only involvement in the message is to provide students with the opportunity to vote, and to impose a time limit of two minutes. Neither of these facts establishes that the state has so insinuated itself into the decision that it can transform private speech into an utterance of the state. Nevertheless, the majority opinion goes so far as to suggest that the student’s topical choice, which everyone concedes is made in a purely autonomous manner, is still attributable to the state, and says that this control cannot be erased through delegation of one portion of the ceremony. The majority opinion assumes what it cannot prove — that utterances made on a state platform are automatically transformed from private into public speech. It is beyond my imagination to say that everyone on the platform at a high school graduation ceremony, including a local politician or celebrity, is a state speaker merely because the state has provided the platform, onto which private individuals may be invited to share their privately held views. Such private speech does not become the state’s merely by being uttered at a state event on a state platform. The Duval County policy permits graduating students to decide through majority/plurality vote whether a student’ volunteer shall deliver a message. It does not direct what the message will be. The state here coerces nothing — it merely offers to students the opportunity to vote for or against a message, but does not compel the answer. The majority opinion takes a neutral process and an autonomous speaker and recasts it as an arm of state coercion, even though there is no preordained religious result. Nevertheless, the majority and the special concurrence would proscribe a policy that on its face plainly allows a student to select her own message, fearful that on occasion that message may be a prayerful one. It is worth repeating, however, that while the state cannot advance religion, similarly, it cannot act in a hostile manner in the face of private religious speech pub-lieally uttered. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). If a per se rule is erected, that all speech on a platform is state speech, this rule would ran afoul of the Free Exercise and Free Speech clauses. If the senior class were asked to vote whether to have a student deliver a poem, or perhaps sing a song, at a graduation exercise, that act is still the selection of a private speaker through neutral criteria. The Duval County policy creates the mechanism whereby the students could elect to have a message and select the speaker and nothing more. The majority and the special concurrence reason that the policy’s delegation to students of the power to vote for a graduation speaker renders that speaker — by virtue of the vote — -a state actor. It is this leap of logic, taking the selected student representative and, without explanation, turning her into a state actor, which cannot be sustained. In his concurrence in Lee v. Weisman, Justice Souter said that: If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of these speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State. 505 U.S. 577, 631, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Souter, J., concurring). In Adler, where the state has not even chosen the private speaker, we have even less than this. See also Doe v. Madison Sch. Dist. No. 321, 147 F.3d at 836 (“[W]hen a state uses a secular criterion for selecting graduation speakers and then permits the speaker to decide for herself what to say, the speech does not bear the imprimatur of the State.”) The argument is now that the student messenger is a state actor because the democratic process of voting by public school students somehow converts the selected speaker into a public official. But this student is, at most, a representative of the student body, not an official of the state. She is in no way analogous, as the majority opinion suggests, to the School Board president who is, unlike the student, a publically-elected official. She has no power or authority or official capacity to inform, carry out, or guide state policy. It remains unconvincing to argue that the student becomes a state actor because she was chosen by her peers, unless each high school student individually is considered to be a state actor, or somehow the students, acting in concert, come to be vested with the power of the state. I offer two examples. First, consider the case of the selection of a Homecoming Queen. While she may be selected by a vote, or plebiscite of the entire senior class, the Homecoming Queen cannot be characterized as a state actor, or a representative of the state, merely because she holds a “public” position and sits atop the Homecoming float. Imagine, second, the example of replacing the traditional valedictory address with the practice of affording the students of the graduating class the opportunity to select the graduation student speaker through a vote by the entire class. In this hypothetical, the student speaker is selected, not by the School Board on the basis of grades, but by the students on the basis of student choice — be it popularity, ability to entertain, achievement in athletics, or for some other reason. It strains reason to suggest that, by virtue of her selection by the majority of the senior high school class, the student speaker becomes a mouthpiece of the state. Both examples suggest that the senior class’ act of voting does not, in any way, turn the senior class vote into state action, nor turn the chosen student into a state actor. Because Duval County policy utilizes this same methodology, affording the students of the senior class, in a wholly secular way, the opportunity to vote whether or not to have a message and to select a student speaker, this vote is no more vested with the imprimatur of the state than are the votes for graduation class speaker or Homecoming Queen. It is hard to understand how the principal, school board, or state has sponsored or directed the student speaker’s actions when all of the central decisions — who speaks, whether there will be a speaker, and what the content of the speech is — are uncontrolled by the state. Delegation of decision-making to pick a private speaker alone does not place the state’s imprint on graduation prayer. The delegation provided to the students — whether or not to have a student message — can in no way be seen as the delegation to a non-governmental actor of some aspect of a practice which tends to establish religion. Where the student is chosen in a neutral and secular way and where the student is allowed complete autonomy over the message, the majority’s position is untenable. C. The other dominant fact of Lee, whether Duval County students are coerced “to support or participate in religion or its exercise,” 505 U.S. at 587, 112 S.Ct. 2649, by the School Board policy, is largely determined by the measure of state control over the message at a graduation ceremony, rather than state control over the ceremony itself. I do not quarrel with the observations made in Lee, that students feel compelled to attend graduation, see id. at 595, 112 S.Ct. 2649, and that schools “retain a high degree of control” over graduation ceremonies, id. at 597, 112 S.Ct. 2649. But these conclusions do not suffice to decide the issue of coercion. The focus must be on whether the state has endorsed the message in an appreciable manner, which, when combined with the inherent nature of the graduation ceremony, induces students to participate in a religious exercise. Schools may make private religious speech their own by endorsing it, but schools do not endorse all speech that they do not censor. See Board of Educ. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion). We need not assume, as the majority does, that Duval County seniors will interpret the school’s failure to censor a student message for religious content as an endorsement of that message. As we have noted, the students clearly understand, by the very terms of the Duval County policy, that any student message is utterly divorced from any School Board sponsorship. While there may still be pressures on students to attend graduation and conform with their peers, the state’s control over a religious exercise, essential to Lee’s holding, see 505 U.S. at 590, 112 S.Ct. 2649 (“The degree of school involvement here made it clear that the graduation prayers bore the imprint of the state .... ”); id. at 597, 112 S.Ct. 2649 (“[T]he state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise .... ”), is absent here. II. While the majority opinion seems to acknowledge that the Duval County School Board policy should be measured against the framework of Lee — a view I wholly share — it also undertakes a brief analysis of the policy under Lemon v. Kurtman. Even if we assume that Lemon provides the appropriate analytical vehicle against which to measure the Duval County School Board policy, the policy still withstands facial constitutional challenge. Under the Lemon test, the policy must have a secular purpose, it may not have a primary effect that either advances or inhibits religion, and it must not foster an excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105 (1971). I believe that the School Board policy, on its face, has a secular purpose and violates neither of Lemon’s proscriptions. A. The majority and the special concurrence can discern no secular purpose in the Duval County School Board policy, brushing aside without comment the purpose, explicitly stated in the policy, “to allow the students to direct their own graduation message without monitoring or review by school officials.” Likewise, it ignores the two secular purposes recognized by the district court: “to solemnize the occasion and to observe and protect the right of free speech” of the student speaker. Adler I, 851 F.Supp. at 453. Since Lemon provides that a statute must have “a secular legislative purpose,” 403 U.S. at 612, 91 S.Ct. 2105 (emphasis added), a statute will only violate the Establishment Clause if it is “entirely motivated by a purpose to advance religion,” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); see also Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (a court “may invalidate a statute only if it is motivated wholly by an impermissible purpose”); Lynch v. Donnelly, 465 U.S. 668, 680, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (“The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations.”). A statute may satisfy Lemon’s first prong even if it is “motivated in part by a religious purpose.” Wallace, 472 U.S. at 56, 105 S.Ct. 2479. Moreover, the Supreme Court has instructed us to be “deferential to a State’s articulation of a secular purpose,” Edwards v. Aguillard, 482 U.S. 578, 586, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), particularly where “a legislature expresses a plausible secular purpose” for a policy or action, Wallace, 472 U.S. at 74-75, 105 S.Ct. 2479 (O’Connor, J., concurring in the judgment). We respect that purpose unless it is insincere or a “sham,” Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573; Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468 (11th Cir.1997), or where the statute at issue has a “preeminent purpose” which is “plainly religious in nature,” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam); see also Edwards, 482 U.S. at 591, 107 S.Ct. 2573; Wallace, 472 U.S. at 56-60, 105 S.Ct. 2479. But the Supreme Court has been reluctant to attribute an unconstitutional motive where a “plausible” secular purpose may be discerned from the statute. Mueller v. Allen, 463 U.S. 388, 394-95 & n. 4, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983). Additionally, “inquiry into legislative purpose begins with interpreting the law itself.” Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993). For the most part, statutes which the Supreme Court has invalidated for lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face. See, e.g., Edwards, 482 U.S. at 593, 107 S.Ct. 2573 (invalidating a Louisiana law that required creationism to be discussed with evolution in public schools); Wallace, 472 U.S. at 57-58, 105 S.Ct. 2479 (overturning an Alabama statute that authorized a moment of silence because the state made no attempt to justify the statute in terms of any secular purpose); Stone, 449 U.S. at 41, 101 S.Ct. 192 (striking down a Kentucky statute requiring the posting of the Ten Commandments in public classrooms); Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (holding unconstitutional a New York law authorizing state-directed daily classroom prayer in public schools). Three secular purposes are plainly encompassed by this policy. First, the Duval County policy, on its face, affords graduating students an opportunity to direct their own graduation ceremony by selecting a student speaker to express a message. I do not understand how this purpose of allowing students to share in the decision-making process concerning the shape of their own graduation is denuded of a legitimate secular purpose, simply because an autonomous student speaker chosen by neutral criteria may express a prayerful message. The majority presumably would admit a legitimate secular purpose if the School Board had decided to allow students of the graduating class to select the student graduation speaker through class vote rather than by class rank. Doing so allows the graduating high school seniors to share civic responsibility in shaping their ceremony. The Duval County School Board has done no more here. Moreover, the School Board policy evinces another legitimate secular purpose in allowing students to solemnize the event as a seminal educational experience. See Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir.1997); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir.1997); Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 966-67 (5th Cir.1992); cf. Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). This purpose is not vitiated of its secular character merely because the policy invites consideration of meaning and values in the context of a graduation ceremony. And it would be very damaging to public education if the Establishment Clause were to be seen as inhibiting any reflection by a student of transcendent meaning and value in life, whether grounded in religion or not. Finally, the School Board’s policy also evinces an important and long accepted secular interest in permitting student freedom of expression, whether the content of the expression takes a secular or religious form. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (“Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.”); Board of Educ. v. Mergens, 496 U.S. 226, 249, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion) (“[P]revent[ing] discrimination against religious and other types of speech” has an “undeniably secular” purpose.); Americans United For Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th Cir.1992) (en banc) (“[A] policy of treating religious speech the same as all other speech certainly serves a secular purpose.”). Nevertheless, the majority opinion and special concurrence suggest that the policy has no “clear” or “legitimate” secular purpose, and posit three pieces of evidence to show that any avowed secular purpose is actually a “sham.” First, the majority says that the School Board promulgated the policy as a means to evade the strictures of Lee; second, the policy’s solely sectarian purpose is said to be established by examining the title of the Reynolds Memorandum, “Graduation Prayer”; and finally, the majority suggests that comments made by some members of the School Board, notably after the policy had been promulgated and distributed in Duval County, likewise evinces a wholly sectarian purpose. In the process of erecting this argument, the majority opinion, without any authority, ignores the text of the policy and its explicitly stated secular purpose, as if there were none. The majority would divine a wholly sectarian purpose merely by looking at the antecedent history, the title, and the post-enactment debate. It would be an especially dangerous practice if a court could somehow discern legislative purpose, not from the text of the policy, nor from its explicitly stated purpose, nor even from a decision-making body that has offered no debate from which to find purpose, but, rather, simply from the controversy surrounding the subject and the heartfelt and often conflicting views expressed by many members of the community. A review of the pertinent history, however, yields only the observations that Duval County had a long tradition of clergymen offering prayers at commencement ceremonies, that in the wake of Lee in 1992 the School Board terminated the practice, and that thereafter many members of the community expressed strong views about the policy one way or the other. “[Wjhile it is possible to discern the objective ‘purpose’ of a statute (i.e., the public good at which its provisions appear to be directed), or even the formal motivation for a statute where that is explicitly set forth, ... discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed finite.” Edwards v. Aguillard, 482 U.S. 578, 636-37, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting). In this case we have no record from which to fairly infer the motivation of those who promulgated or distributed the policy. In so far as we attempt to divine purpose from the decision-makers, “to the extent that the School Board was the institutional policy maker (rather than Superintendent Zenke and/or Ms. Reynolds),” the district court found that the “purposes or intentions of the members of the Board are unknown. No debate was had and no vote was taken on the Reynolds Memorandum of May 5.” Adler I, 851 F.Supp. at 451. To the extent that we focus on the motives of Mr. Zenke or Ms. Reynolds, the district court found mixed motives or purposes — to permit students to solemnize the event, to afford the student body the opportunity to select a messenger, who, in turn would, with complete autonomy, choose a secular or sectarian message, and to afford the students the option of having no message at all. See id. at 452. The majority opinion offers no reason to disturb the district court’s findings which are grounded in the facially neutral language of the Reynolds Memorandum. The majority opinion also suggests that the title of the Reynolds Memorandum, “Graduation Prayer,” supports the conclusion that the School Board policy was driven solely by sectarian concerns. The title, however, merely introduces the topic of debate within Duval County in the aftermath of Lee, rather than suggesting, let alone compelling, the outcome of that debate. The title affixed to -the Reynolds Memorandum does no more than alert the reader to the general subject matter of the text; but it remains the language and substance of the policy, rather than its title that is controlling. It is altogether unnecessary to requisition the title to cast doubt on the clear and unambiguous purpose of the policy. The crucial term “message” is fully defined by the text of the policy, which provides that the decision whether to have a message is left to the students, that the student body shall choose the student speaker, that the message is limited to two minutes in length, that the message shall take place at the beginning and/or closing of the graduation ceremony, and, finally, that the content of the message shall be prepared by the student speaker without monitoring or review by the School Board. The title cannot take the place of a detailed review of the policy’s facial provisions, let alone create a wholly sectarian purpose out of a textually neutral pronouncement. Besides being unnecessary, use of the title to inform the plain meaning of the policy’s language is improper. Indeed even if we were examining the title of a statute or legislative codification — and we are doing far less than that here — the Supreme Court has warned that “the title of a statute and the heading of a section cannot limit the plain meaning of the text. For interpretive purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain.” Brotherhood of R.R. Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). The Eleventh Circuit and its predecessor court have repeatedly employed this principle of statutory construction when interpreting the statutory text. See, e.g., North Ala. Express, Inc. v. Interstate Commerce Comm’n, 971 F.2d 661, 664 (11th Cir.1992) (“Section and chapter titles cannot alter the plain meaning of a statute; they can only assist in clarifying ambiguity.”); Scarborough v. Office of Personnel Management, 723 F.2d 801, 817 (11th Cir.1984) (“[Rjeliance upon heading to determine the meaning of a statute is not a favored method of statutory construction.”); Rich v. Commissioner of Internal Revenue Serv., 250 F.2d 170, 175 (5th Cir.1957) (“[T]he plain and unambiguous meaning of the text of the section cannot be extended by its title or heading.”). Finally, the majority opinion points to post-enactment comments of some members of the School Board made at a June 1, 1993 meeting as evidence of the School Board’s wholly sectarian purpose to “permit” graduating students to pray. However, the district court observed that “[t]he motivation or intent of the Board relative to the Reynolds Memorandum of May 5 is essentially unknown.” Adler I, 851 F.Supp. at 452. No debate was had and as far as the record reflects, no vote was taken on the Reynolds Memorandum. The June 1st comments were made almost a month after the policy was promulgated and distributed, in the context of a proposal to replace student-initiated messages with a moment of silence. The motion failed, and the policy was left in force. The most one could say is that the statement of one Board member at the June 1st meeting could be characterized as advocating direct school involvement with religion at graduation ceremonies. Simply put, the post-enactment comments are not sufficient to transform the policy’s express secular purpose into a preeminently religious purpose. More importantly, regardless of how these 'post hoc statements are interpreted, they cannot be construed to override the policy’s language articulating a clear secular purpose. See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1472 (11th Cir.1997). Indeed in Bown, this Circuit had occasion to find that the legislative history of a Georgia statute (mandating a period for quiet reflection in public schools), which contained some expressions of religious motives for voting for the Act, could not “override the express statutory language articulating a clear secular purpose.” Id. In sum, whether standing alone or in concert, the three pieces of evidence cited by the majority cannot strip the policy of a secular purpose. No matter what an individual board member may have hoped— and they said nothing on the record about codifying this policy — Duval County’s policy is facially neutral and undeniably evinces a secular purpose. That is enough to pass constitutional muster under Lemon. B. As for whether the policy has the primary effect of advancing religion, I do not see how a policy that on its face strips the School Board of any authority over the central decisions — who speaks, whether there will be a speaker, or what the content of the speech may be — can have the primary effect of advancing religion in any way. See Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 835 (9th Cir.1998), withdrawn & reh’g en banc granted, 165 F.3d 1265 (9th Cir.1999). As the district court found, the implementation of the policy may result in no prayer at all. Adler I, 851 F.Supp. at 454. Indeed, in order to ensure that no one perceives any student’s religious utterance as being the state’s prayer, the policy explicitly divorces any student message from School Board sponsorship. The Duval County School Board policy does not guarantee that a prayer will be uttered or that religion will be aided; any such result is wholly dependent on a private actor making an autonomous decision to deliver a prayerful message. The Supreme Court has repeatedly upheld facially neutral programs that may permit an individual to support religion. See, e.g., Agostini v. Felton, 521 U.S. 203, 223-232, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (upholding New York program of sending public school teachers into parochial schools to provide remedial education where aid was made available to religious and secular beneficiaries on a nondiscriminatory basis); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8-12, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (sustaining section of Individual with Disabilities Act providing disabled children with aid regardless of whether a child attends a sectarian institution); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 487-89, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (holding that Establishment Clause not violated when the state paid a blind student’s tuition at a Christian college through a generally-applicable aid program, and observing that aid reach a religious institutions “only as a result of the genuinely independent and private choices of aid recipients”); Mueller v. Allen, 463 U.S. 388, 397-99, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (upholding a state tax deduction for specified educational expenses, and characterizing any such aid to religion as being “only as a result of numerous private choices of individual parents of school-age children”). C. For many of the same reasons, I would find that the School Board’s policy does not excessively entangle the Board with religion in violation of the third part of the Lemon test. The policy remains facially neutral with respect to religion, requiring only that graduation messages be voted on by students, and composed and directed by a student speaker. By its very terms, the policy explicitly prohibits any review of the student message at all. Undoubtedly, the School Board would find itself far more entangled with religion if it attempted to eradicate all religious content from student messages than if it maintained a meaningful policy of studied neutrality. See Board of Educ. v. Mergens, 496 U.S. 226, 253, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion); Widmar v. Vincent, 454 U.S. 263, 272 n. 11, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Chabad-Lubavitch v. Miller, 5 F.3d 1383, 1389 (11th Cir.1993) (en banc); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 831 (11th Cir.1989). While the majority today holds only that the Duval County School Board’s policy is facially unconstitutional, implicit in its rationale is the need for school censorship if schools are to allow students the opportunity to speak at graduation at all. At the core of the court’s holding is “the state’s control over nearly all aspects of the graduation ceremony.” But the degree of control that schools generally exert over high school graduation ceremonies is unlikely to dimmish because graduation ceremonies are, by their nature, highly choreographed. The majority opinion therefore leaves school officials with only two choices: either eliminate student speech altogether or retain student speech, subject to censorship by school authorities. If school officials choose the latter course, they will be left "with the unenviable task of identifying the religious content in student speeches for excision; if, however, they choose the former, they will have deprived the graduation class of any role in shaping its high school graduation and they will have banned all private student expression. For me, the Establishment Clause requires no such Hobson’s choice. What it does require is a recognition of the critical difference between a private statement of religious values and a religious utterance endorsed by the state. The Duval County School Board’s policy has done no more than that. I would, therefore, affirm the judgment of the district court. Before: ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, HULL and MARCUS, Circuit Judges. . My views are based on Duval County's policy as written, not as applied. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Whether there are serious constitutional questions regarding the application of the policy at certain graduation programs remains to be seen, but I do not think we are in the best position to resolve these issues now. As I understand the procedural history of the case, the district court's consolidation of the action on the merits with the hearing on appellants’ motion for preliminary injunction prevented appellants from fully developing the record for graduation ceremonies after 1993. On May 28, 1998, when it consolidated the action, the district court took judicial notice of its opinion in Adler I, 851 F.Supp. 446 (M.D.Fla.1994). Because the consolidation truncated discovery, the record consists almost entirely of material derived from Adler I. This record is of little aid to the appellants claiming money damages for injuries sustained at graduation ceremonies in 1995 (Joshua Weihnacht), 1997 (Monica Juodvalk-is), or 1998 (Emily Adler, Seth Finck, Jonathan Rand, and Bonnie Bear), because the manner in which the policy was applied in 1993 and 1994 has no relevance to the appellants' claims for money damages. In Adler II, 112 F.3d 1475 (11th Cir.1997), we stated that ''[w]helher [the students] are entitled to damages depends entirely on the circumstances under which the prayer was delivered at their graduation ceremony.” Id. at 1479-80. Thus, in order to recover monetary damages, an appellant needs to demonstrate that the prayer given at his or her graduation ceremony was delivered in an unconstitutional fashion, regardless of whether the policy itself is unconstitutional. See id. at 1479. I don’t believe this analysis can be made as the record now stands. Therefore, I agree with the majority opinion that whether the policy passes facial constitutional muster or not, the case should be remanded to allow appellants to pursue discovery on events occurring after 1993, and to permit the district court to conduct a factually based as-applied analysis. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 591, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). . The other cases that have considered student-initiated prayer at graduation are of limited assistance; none, except for Doe v. Madison School District No. 321, examine a policy which mirrors Duval County’s in its neutrality. Notably, all of the other cases allow for students to vote directly on whether or not to have prayer at graduation. These cases either uphold or strike down such policies. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir.1992), is the only case which has permitted students to vote directly on whether to have prayer at graduation. In Jones, the Fifth Circuit upheld the Clear Creek, Texas school district's policy allowing students to decide if they wanted volunteers to deliver '‘nonsectarian and nonproselytiz-ing” invocations at graduation. See id. at 965. The court found that the Clear Creek policy reserved to the students the decision whether to have an invocation, precluded anyone but a student volunteer from delivering an invocation, and placed less psychological coercion on students than the prayers had on graduates in Lee because students were aware that any prayers given represented the will of their peers. See id. at 970-71. The Fifth Circuit recently revisited the issue of student-initiated prayer in Doe v. Santa Fe Independent School District, 168 F.3d 806 (5th Cir.1999). There the Fifth Circuit examined what it considered to be the holding of Jones — "that student-selected, student-given, nonsectarian, nonproselytizing invocations and benedictions at high school graduation ceremonies” are constitutional — and concluded that the constitutionality of a Clear Creek-type prayer policy depends on its "nonsectarian and nonproselytizing” features. Santa Fe, 168 F.3d at 811. The majority opinion relies on Santa Fe for the proposition that a policy which "permits” sectarian and proselytizing prayers is a priori unconstitutional. This argument proves too much and is offensive to the Constitution. The Duval County policy, of course, permits sectarian and proselytizing prayers because it places no limitations, either secular or sectarian, on the content of a graduation message. A policy of free expression is far more consonant with the commands of the First Amendment than is a policy of censorship. See, e.g., Board of Educ. v. Mergens, 496 U.S. 226, 253, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion) ("[A] denial of equal access to religious speech might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur.”); Santa Fe, 168 F.3d at 824-28 (Jolly, J., dissenting). In ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3d Cir.1996) (en banc), the Third Circuit, sitting en banc, held unconstitutional a school board’s policy that permitted the senior class to vote on whether to include a prayer at high school graduation ceremonies. See id. at 1477-88. The policy in Black Horse Pike allowed senior class officers to conduct a poll of the graduating class to determine, by plurality vote, whether seniors wanted "prayer, a moment of reflection, or nothing at all” to be included in their graduation ceremony. Id. at 1475. Finally, in Harris v. Joint School District No. 241, 41 F.3d 447 (9th Cir.1994), vacated as moot, 515 U.S. 1155, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995), the high school students voted by written ballot on whether or not to have prayer, and, if the students voted for prayer, on whether a minister or a student would say the prayer. See id. at 452-53. The Harris court found that the state involvement in the case was pervasive enough to offend Establishment Clause concerns. The court noted that "[t]he message of the speakers is ... chosen by the majority; the relevant speakers are instructed to pray.” Id. at 456-57. In contrast to each of these policies, Duval County students vote on whether to have a message of unspecified content delivered by a student. This is the critical distinction. . Simply providing a platform on a neutral basis is not enough to convert private action into state action. In a series of cases granting religious groups access to generally available facilities or benefits, i.e., "open forum" cases, the Supreme Court has suggested that the mere location or platform of religious speech is insufficient to transform private speech into the state’s speech. The Court has, on numerous occasions, rejected the argument that the Establishment Clause allows restrictions on access by religious organizations to government programs or premises, otherwise open to all groups. By providing students who hold religious views with the same opportunity to enjoy generally available facilities and benefits, schools act neutrally. See Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 832, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that the University of Virginia violated the Free Speech Clause when it refused to pay for a religious student organization’s publication costs under a program that funded other student organization publications); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (striking down as violative of the Free Speech Clause a school district regulation authorizing use of school property for political, social, civic, or recreational uses but denying religious groups the same access); Board of Educ. v. Mergens, 496 U.S. 226, 235, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (upholding Equal Access Act prohibiting public secondary schools which have a "limited open forum” from denying access to students who wish to meet in that forum "on the basis of the religious, political, philosophical, or other content of the speech at such meetings”); Widmar v. Vincent, 454 U.S. 263, 273-74, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that a university regulation denying religious groups access to school facilities violated the Free Speech Clause; any benefits to religion by providing "equal access” to facilities would be "incidental”). . Duval County students possess Free Speech rights, even in a nonpublic forum such as a graduation ceremony. The Supreme Court has held that in nonpublic fora the government may not engage in viewpoint discrimination. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ("Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (A "state may reserve [nonpublic] forum for its intended purposes ... as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.”). The Court has stated that religion provides “a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510. . The majority opinion offers four post-enactment statements of School Board members to show that the School Board intended to permit graduating students to engage in prayer. In fact, the statements to which the majority refers generally buttress the conclusion that the School Board's policy was not a sham. Of those four statements, only the statement of Board member Bill Parker can be characterized as advocating direct school involvement with religion at graduation ceremonies. See Tr. of Duval County Sch. Bd. Meeting at 2 ("I think that our school principals should be allowed to work out a non-sectarian message with our student chaplains, or a guest minister, rabbi or whatever that would be acceptable to all at this very important time in our young people's lives.”). The statements of Don Buckley and Nancy Corwin, while generally supportive of religion, acknowledge that an intended effect of the policy is to insulate the content of messages from school influence. See id. at 5 (Buckley) (“I think the only way we can keep ourselves clear on this thing is to keep ourselves out of what happens in this area of the graduation ceremony.”); (Corwin) ("I also believe that the democratic process in which seniors were given the ability to choose which form of inspirational message, if any, they wanted at their commencement was an appropriate one and I'm going to stand by it.”). Rather than betraying an illegitimate intent to ensure that prayer take place at graduation ceremonies, these statements indicate that Buckley and Corwin perceived the School Board policy as disassociating the school hierarchy from student messages. The fourth statement referenced by the court, that of Board member Stan Jordan, was also supportive of the policy. See id. at 8 ("I plan to vote for the administration plan and against the proposal that’s on the table.”). Taken as a whole these utterances by School Board members constitute recognition that the old regime of state-directed school prayer in Duval County had passed and been replaced by a new regime over which they had far less control. . The majority opinion’s reliance on Jager v. Douglas County School District, 862 F.2d 824 (11th Cir.1989), as controlling, or at least informing the secular purpose inquiry in this case is misplaced. It cites Jager for the proposition that when a policy's “actual purpose" is religious, or “intrinsically religious,” id. at 830, it cannot meet the secular purpose prong of Lemon. But Jager does no more than state the obvious, that in order to meet Lemon’s first prong, a government policy must have a genuine secular purpose and not be a sham. See Edwards v. Aguillard, 482 U.S. 578, 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). If a policy's "actual purpose” is wholly religious then Lemon's secular purpose requirement is not satisfied. In Jager, we held that a school district's practice of having representatives of student organizations deliver invocations pri- or to football games had as its “preeminent purpose” the endorsement of Protestant Christianity. 862 F.2d at 830. The only discretion left to the students was the selection of who would pray. . There is no easy or precise guideline for school officials to follow when excising student speech of religious content. The constitutional definition of religion is expansive; it encompasses "all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinated or upon which all else is ultimately dependent” and “which occupies in the life of its possessor a place parallel to that filled by [ ] God." United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Moreover, the belief “need not be acceptable, logical, consistent, or comprehensible to others.” Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Indeed, if the School Board's censorship is not "rigorous” enough and thereby allows religion to creep into graduation ceremonies, a policy of allowing monitored student speech may still be subject to constitutional attack. ORDER ON REHEARING June 3, 1999 By the Court: A member of this court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in this court in active service having voted in favor of granting a rehearing en banc, IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel’s opinion is hereby VACATED.

OPINION AND ORDER ORRICK, District Judge. Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants alleging that the manner in which remedial educational services are provided to students attending sectarian schools in the San Francisco Unified School District, pursuant to Chapters 1 and 2 of the Education Consolidation and Improvement Act of 1981 (“ECIA”), 20 U.S.C. §§ 3801 et seq., violates the Establishment Clause of the First Amendment to the Constitution of the United States. The parties filed two sets of cross-motions for summary judgment. The first set of cross-motions addresses the question of whether the San Francisco Unified School District’s involvement in and use of Chapter 1 negligent and delinquent funds, as well as California General Education Funds, at Simpático School, violates the Establishment Clause of the Constitution of the United States as well as the prohibition in the Constitution of the State of California against the use of state funds to aid any religious group or institution. The second set of cross-motions addresses the question of whether Chapter 2 is unconstitutional on its face, or as implemented in the San Francisco Unified School District. After consideration of the briefs, the numerous declarations, and documentary evidence filed by the parties, and hearing oral argument, for the reasons set forth herein, the Court grants defendants’ motion for summary judgment with respect to Simpá-tico School, grants defendants’ motion for summary judgment with respect to Chapter 2. and denies plaintiffs’ motions with respect to Simpático School and Chapter 2. The Court discusses the claims and arguments of the parties with respect to each motion separately, beginning with Simpáti-co School. I. A. 1. Simpático School (“School) occupies the second floor of a building located at 100 Masonic Street in San Francisco that serves as a residential home for pregnant teenage girls. The residential home is one of three “group homes” run by defendant Mount St. Elizabeth-St. Josephs (“Mount”), a nonprofit charitable corporation organized under California law. The Mount is affiliated with the Daughters of Charity of St. Vincent de Paul, a religious organization. The Mount provides residential care and psychological counseling to girls who are pregnant, or have emotional and educational disabilities, or both. Some of the girls are committed to the Mount’s care by the Department of Social Services and by Probation Departments of counties throughout Northern California. Others are referred by public and private agencies and voluntarily choose to reside at the Mount. The Mount also provides infant care for children of resident girls. The girls who attend the School do so because of emotional and psychological handicaps that make it impossible for them to leave the closed-campus environment of the School to attend classes at a San Francisco Unified District (“District") school. Many of the girls were placed in the Mount program because of problems they experienced at their previous open-campus schools. Others, being pregnant and unmarried, are at the Mount to obtain support needed to cope with their pregnancies in an environment where their conditions are not stigmatizing. 2. The School program is conducted Monday through Friday, from 8:45 a.m. to 2:45 p.m. There are presently eight staff members. Five of the employees, who include the Director of Education (“Director”) and four teachers, are paid by the Mount. One teacher is paid by the District with General Education Funds for Special Service Centers. One paraprofessional is paid from Chapter 1 negligent and delinquent funds. 20 U.S.C. § 2801. One clerk typist, who works three hours per day, is paid for one hour with Chapter 1 funds, 20 U.S.C. § 2801, and for two hours by the Mount. The curriculum mirrors that of the District and is entirely secular. The School does not offer instruction in theology of any faith, either before or after school hours, and it does not require obedience of the girls to doctrines of a particular faith. Teaching religious values is not a part of the curriculum. Only secular books are used. The teachers teach according to objective, secular academic standards. The School sponsors no religious activities, and does not require the girls to attend religious activities. There are no prayers during classes and no prayers during graduation ceremonies. The classrooms are free of sectarian symbols. There are no religious restrictions on the admission of girls and religious criteria play no role in determining who is employed at the School. None of the teachers are members of a religious order. The girls have-diverse religious preferences, if they have them at all. The percentage of girls who expressly declared an affiliation with the Roman Catholic Church averaged thirty-three percent during the 1985-88 period. During that same period forty percent of the students expressed no religious preference. Other faiths represented in significant numbers include Baptists and Methodists. The School receives no funding from the Daughters of Charity, the Catholic Church, defendant Archdiocese of San Francisco, or from any other religious organization. All funds come from the state, community fund raising, grants, and foundations. The School is not controlled by any religious group, nor does it have as one of its objectives the inculcation of any religion. 3. The District controls all essential operations of the School, and determines the curriculum, academic schedule, number of class hours, and holidays. It ensures that the instruction is consistent with its curriculum requirements by regularly forwarding Weekly Administrator’s Directives (“WADs”) and Curriculum Guides to the School. The WADs and Curriculum Guides set forth in great detail descriptions of the classes that must be offered and the requirements students must satisfy to graduate. The District makes the assignment of District teachers to the School, and evaluates their performance, in cooperation with the Director of the School. As part of the teachers’ training, they learn that they are not to advance the religious beliefs of any particular religion. District rules that apply to the School direct that no sectarian or denominational doctrine be taught. The School orders its textbooks from a list of state-approved textbooks provided by the District. Educational materials purchased with District funds are purchased directly from the District. Teachers at the School are free to use the District’s Teachers Professional Library, to borrow District instructional materials, and to consult with District teachers on work-related issues. The School subscribes to high school graduation requirements set by the District, which provide that students are to complete a set number of credits before graduating. The students graduating at the high school level receive diplomas identical to those received by District students. The Director of the School performs a role similar to that of a principal at District schools. She is charged with ensuring that the District’s curriculum requirements, as set forth in the WADs and Curriculum Guides, are followed. She assists in the District’s evaluation of the teachers assigned to the School, just as District principals do. The standards used by the Director in evaluating teachers are found in the Handbook for Performance Appraisal System provided by California’s Civil Service Commission. The Director’s salary is paid by the Mount, and she reports to both the District and the Mount. 4. As noted above, the central purpose of the Mount is secular, namely, to make available residential care and psychological counseling to girls who are pregnant, or who have emotional and educational disabilities, or both. The legal character of the Mount is purely secular. Its articles of incorporation set forth no religious purposes. They provide, in part, that the “specific and primary and exclusive purposes for which [the Mount] is formed and organized are for charitable purposes.” Supporting Exhibits of Defendant Mount St. Joseph-St. Elizabeth, Vol. I, Articles of Incorporation, Article II, filed Nov. 18, 1989. All funding for the Mount comes from the state, community fund raising, grants, and foundations. It receives no funding from any religious organization, including the Daughters of Charity, the Roman Catholic Church, or the Archdiocese of San Francisco. Religious activities that go on at the Mount are optional and the girls rarely attend. These activities have been made available pursuant to Title XXII, California Code of Regulations § 80072(5), which provides that children residing at institutions like the Mount are free to attend religious services and to have visits from a spiritual advisor of their choice. There are several religious symbols at the Mount but, with the exception of a statue in the garden, they are confined to the administration wing and the corridor connecting this wing to the building housing the School. The girls do not pass these symbols in order to get from their rooms to the School. The directors and corporate members of the Mount are members of the Daughters of Charity. The Executive Director of the Mount is appointed by the corporate members. The Executive Director need not be a member of any religious order or of any religion. 5. The Daughters of Charity are a separate legal entity from the Mount and have no involvement in the operation of the School. Pursuant to an agreement with the Mount, the Daughters of Charity live in a residential facility attached to a building in which the School is located. This facility is strictly off limits to the girls who reside at the Mount. The Mount has an agreement with the Daughters of Charity whereby it has agreed to hire qualified Daughters of Charity sisters to work at the Mount at prevailing rates. At the present time, the only sisters employed by the Mount provide nursing care for the girls, the girl’s babies, and the cocaine-addicted babies placed at the Mount, or work in the Mount’s administration. B. 1. In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court considered a constitutional challenge to a state statute authorizing expenditures of public funds at a nonpublic, church-affiliated school. The Court stated that: Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 [88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster “an excessive government entanglement with religion. Walz [v. Tax Commission, 397 U.S. 664], 674 [90 S.Ct. 1409, 1414, 25 L.Ed.2d 697].” Id. at 612-13, 91 S.Ct. at 2111. The three tests identified by the Supreme Court in Lemon for evaluating the constitutionality of governmental actions under the Establishment Clause have come to be known as the three-prong Lemon test. In the present case, there is no dispute that the government involvement in the School has a secular legislative purpose. Only the second and third prongs of the Lemon test are in dispute. 2. Analysis of the second and third prongs of the Lemon test generally begins with the question of whether the benefiting institution can be characterized as “pervasively sectarian.” If an institution is deemed to be “pervasively sectarian,” then it will almost always be determined that the primary effect of the aid will be to advance religion. But when the benefiting institution is found not to be “pervasively sectarian,” when considering the “primary effect” of the government aid, it is presumed that the aid will be used in compliance with the Constitution. Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 760, 96 S.Ct. 2337, 2351, 49 L.Ed.2d 179 (1976); Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). An institution is pervasively sectarian if it is an institution “in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission ...,” Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973), or if it is an institution “ ‘so permeated with religion that the secular side cannot be separated from the sectarian.’ ” Roemer, 426 U.S. at 759, 96 S.Ct. at 2351, citing Roemer v. Board of Public Works of Maryland, 387 F.Supp. 1282 at 1293 (D.Md.1974). In Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), the Supreme Court relied on a profile adopted by the district court of pervasively sectarian institutions. According to this profile, such an institution is one that (1) imposes religious restrictions on admissions, (2) requires attendance of pupils at religious activities, (3) requires obedience by students to the doctrines of a particular faith, (4) requires pupils to attend instruction in the theology of a particular faith, (5) is an integral part of the religious mission of a sponsoring church, (6) has as an integral substantial purpose the inculcation of religious values, (7) imposes religious restrictions on faculty appointments, and (8) imposes religious restrictions on what or how the faculty may teach. Id. at 767-68, 93 S.Ct. at 2962-63. The School does not have any of these characteristics. As noted above, and repeated for emphasis, the School imposes no religious restriction on admissions, does not require attendance at religious activities, does not require obedience of students to the doctrine of a particular faith, does not provide theological instruction, does not inculcate religious values, and imposes no religious restrictions on faculty appointments or on what or how the faculty may teach. The School is best characterized as a nonsectarian school that receives both pri vate and public funds. Given the nonsectarian nature of the School, the Establishment Clause is not even implicated by the use of public funds or the District’s involvement at the School. Legal analysis on these motions could stop here. Plaintiffs, however, have argued that the focus of the Court should be on the Mount as a whole rather than on the School alone. The public funds and District involvement are directed solely at the School. The School is the benefiting institution in this case. Therefore, the Court’s focus is correctly on the School itself. Even if the Court viewed the Mount as the benefiting institution, however, considering the nature of the Mount as a whole, it could not be characterized as a “pervasively sectarian” institution. The Mount’s purposes are primarily charitable, not religious. It does not have as an integral part of its mission the inculcation of religious values. It imposes no religious restrictions on the admission of the girls who live or the persons who work at the Mount. Plaintiff’s allegations of Establishment Clause violation rest solely on the fact that the School is affiliated with the Mount and that the Mount is affiliated with the Daughters of Charity. No one disputes the fact that the Daughters of Charity are a religious organization. The issue before the Court, however, is whether the benefiting institution is pervasively sectarian. The Supreme Court has observed that “it is not enough to show that the recipient of a challenged grant is affiliated with a religious institution or that it is ‘religiously inspired’ ” in order to find a First Amendment violation. Kendrick, 108 S.Ct. at 2580. In fact, in Kendrick, the Court noted that “this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs.” Id. at 2574. The Court went on to discuss with approval a case decided in 1899, Bradfield v. Robert, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 in which the Court upheld an agreement between the Commissioner of the District of Columbia and a religiously-affiliated hospital whereby the federal government would pay for the construction of a new building on the grounds of the hospital. The Kendrick Court recounted that in Bradfield: [T]he Court refused to hold that the mere fact that the hospital was “conducted under the auspices of the Roman Catholic Church” was sufficient to alter the purely secular legal character of the corporation, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter. Kendrick, 108 S.Ct. at 2575 (citation omitted), quoting Bradfield, 175 U.S. at 298, 20 S.Ct. at 123. The School is the benefiting institution in this case. It is nonsectarian. The District is in no way involved with the Daughters of Charity. The Daughters of Charity are not involved in the operation of the School. The educational process at the School is purely secular. Even if the Court were to view the Mount as the benefiting institution, the mere fact that the School is located at the Mount and it is affiliated with the Daughters of Charity is not enough to make government funding of an otherwise secular school program unconstitutional. 3. Once it is established that a given institution is not pervasively sectarian, the only issue under the second prong of the Lemon test is whether the aid "funds a specifically religious activity in an otherwise substantially secular setting,” Hunt, 413 U.S. at 743, 93 S.Ct. at 2874, or is “extended only to 'the secular side.’ ” Roemer, 426 U.S. at 759, 96 S.Ct. at 2351. There is no question of material fact that the funds supplied to the School are used for secular purposes. Given the nonsectarian nature of the School, there is no doubt that the primary effect of public aid to the school is to advance a secular purpose. The District’s involvement in the School satisfies the second prong of the Lemon test. Plaintiffs’ reliance on School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1984), to support its view that the primary effect of the District’s involvement in the School is to advance religion is misplaced. In Grand Rapids, the Court noted that forty of the forty-one schools that had received the government funds at issue were sectarian in character: The schools of course vary from one another, but substantial evidence suggests that they share deep religious purposes. For instance, the Parents Handbook of one Catholic school states the goals of Catholic educations as “[a] God oriented environment which permeates the total educational program,” “a Christian atmosphere which guides and encourages participation in the church’s commitment to social justice,” and “a continuous development of knowledge of Catholic faith, its traditions, teachings and theology.” Id. at 379, 105 S.Ct. at 3217. This is the type of religious inculcation that is conspicuously absent at the School. Plaintiffs’ discussion of Americans United for Separation of Church & State v. Porter, 485 F.Supp. 432 (W.D.Mich.1980), is irrelevant for the same reason. Plaintiffs own recitation of the facts in Porter indicate that the school involved there was “parochial.” The significant point with respect to this case is that the School is not a parochial school. It is a religiously neutral institution located on the premises of a charitable and religiously-affiliated organization. 4. As with the second prong or “primary effect” aspect of the Lemon test, the third prong or “excessive entanglement” aspect requires the Court to give primary consideration to the question of whether the benefiting institution is pervasively sectarian. As discussed above, neither the School nor the Mount are pervasively sectarian. In Roemer, the Supreme Court observed that when an institution is pervasively sectarian, it is impossible for the state to identify and subsidize separate secular functions without monitoring the use of that aid. 426 U.S. at 765, 96 S.Ct. at 2353. On the other hand, the Court has also noted that when an institution is not pervasively sectarian, the need for the state to monitor the aid is “substantially reduced.” Id. at 762, 96 S.Ct. at 2352. In this case, the District controls the School’s operations by regularly forwarding WAD’s and Curriculum Guides to the School. The WADs set forth District policies, school calendars, District-sponsored educational programs, and teacher training classes. The Curriculum Guides include course materials and reference sources. There is no indication that public funds have been used for any nonsecular purpose. Because neither the School nor the Mount are pervasively sectarian, the involvement of the District in the School does not lead to excessive entanglement between church and state. Defendants have satisfied the third prong of the Lemon test. As part of their argument with respect to excessive entanglement, plaintiffs argue that the District has unlawfully delegated its powers to the Mount. In an attempt to make out an argument of improper delegation of government authority, plaintiffs cite Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), a case in which the Court found that Massachusetts had unlawfully vested authority in churches by creating a statute prohibiting alcoholic beverage licensing to premises in the proximity of a church, if the church objects. Plaintiffs cite Larkin for the proposition that: [T]he core rationale underlying the Establishment Clause is preventing “a fusion of governmental and religious functions” .... The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions. Id. at 126-27, 103 S.Ct. at 511-12. The facts in this case are in no way analogous to those in Larkin. The state has not delegated a discretionary authority to a religious institution. The state has provided public funds to a nonsectarian school located on property owned by a charitable and religious organization. The District has maintained control over all essential aspects of the curriculum and policy. Plaintiffs argue that the fact that the Director of the School helps to determine the work assignments of District employees and selects textbooks amounts to an unlawful delegation of authority. The Director carries out her duties in accordance with the specific instruction of the District with respect to curriculum, teaching, and school policies. Plaintiffs’ argument on delegation of state authority is far off the mark. Additionally, plaintiffs argue that the Court should employ an alternative test in analyzing the facts of this ease, namely, the “endorsement test.” The endorsement test generally has been applied by the Supreme Court to cases involving government use or endorsement of a religious symbol. As the Court stated in County of Allegheny v. American Civil Liberties Union, — U.S. -, 109 S.Ct. 3086, 3102, 106 L.Ed.2d 472 (1989), the endorsement test “provides a sound analytical framework for evaluating government use of religious symbols.” More specifically, the endorsement test articulated in Justice O’Connor’s concurrence in Allegheny, “articulates a method for determining whether the government’s use of an object with religious meaning has the effect of endorsing religion.” Id. Again, in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), Justice O’Connor applied the endorsement mode of analysis to resolve a challenge to a city’s creche display. Finally, the endorsement test was discussed in a concurring opinion in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), a case involving the constitutionality of a statute providing for a moment of silence for voluntary prayer in a public school. The Lemon test has been the primary test used by the Supreme Court in analyzing legislation and aid programs to sectarian schools. The endorsement test has not replaced the Lemon test in this type of case, but could be viewed as an aspect of the primary effect prong. As stated earlier, however, because the School in this case is nonsectarian, district involvement and use of public funds at the School does not have the effect of “endorsing” religion. C. Plaintiffs also allege that the use of public funds at the School violates Article IX, Section 8 of the Constitution of the State of California. Article IX, Section 8, reads as follows: No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State. As discussed above, the School is not sectarian or denominational, and the provisions in Section 8 with respect to sectarian or denominational doctrine are not applicable to the School. With respect to the exclusive control provision, the Court has noted that the School is under the direct control of the District, follows District curriculum and policy, and mirrors all educational aspects of the public schools. One California court construing the “exclusive control” language in Section 8, looked back at the legislative history of the provision and found that it was included as an expression of concern about funding “any opposition system of schools against the common schools of the state....” Board of Trustees of the Leland Stanford Junior University v. Kenneth Cory, 79 Cal.App.3d 661, 662, 145 Cal.Rptr. 136 (1978), citing 3 Debates and Proceedings of the Constitutional Convention of the State of California (1881) at 1261. The School could by no stretch of the imagination be viewed as an opposition school, or even an alternative school. Although not funded entirely by public funds, the School is modeled after and controlled by the public school system. With respect to education and instruction, the School is under the exclusive control of the public school system. Plaintiffs have argued that the Mount, rather than the School, is the beneficiary of public funds in this case, and the Mount is clearly not under the exclusive control of the state. Even this broader view of what constitutes the benefiting institution will not lead to the conclusion that provision of public funds violates Article IX, Section 8, of the Constitution of the State of California. In a case dating back to 1887, Aid Society v. Reis, 71 Cal. 627, 632, 12 P. 796 (1887), cited in Board of Trustees v. Cory, 79 Cal.App.3d at 663, 145 Cal.Rptr. 136, it was held that the provision of funds by the City and County of San Francisco to help support privately-run societies for maintenance and care of delinquent children did not violate the constitutional provision in question because the societies were not organized for the sole purpose of disseminating knowledge and imparting scholastic instruction. If the Mount were deemed to be the benefiting institution in this case, the Court would be required to define its purposes more broadly than for “disseminating knowledge and imparting scholastic instruction.” According to Reis, provision of public funds under such circumstances would not violate Section 8 of the California Constitution. II. A. 1. Chapter 2, entitled “Federal, State, and Local Partnership for Educational Improvement,” 20 U.S.C. § 2911 et seq., provides financial assistance to state educational agencies (“SEAs”) and local educational agencies (“LEAs”) to implement various educational programs. In keeping with its goal to improve educational opportunities for all school children, Chapter 2 requires SEAs and LEAs to provide for the equitable participation of children enrolled in private, nonprofit elementary and secondary schools in the LEA. 20 U.S.C. § 2972(a). Funds expended under Chapter 2 for the benefit of private school children must, “consistent with the number of children to be served,” be equal to funds expended for the benefit of public school students, “taking into account the needs of the individual children and other factors which relate to such expendi-tures_” 20 U.S.C. § 2972(b). To guard against the unlawful advancement of religion, however, the “services, materials, and equipment” provided under Chapter 2 for the benefit of such private school students must be “secular, neutral, and nonideological.” 20 U.S.C. § 2972(a)(1). Chapter 2 funds must supplement, and in no case supplant, the level of funds that, in the absence of Chapter 2 funds, would be made available for school programs from nonfed-eral sources. 20 U.S.C. § 2971(b). Chapter 2 also requires that the control of all Chapter 2 funds “and title to materials, equipment, and property ... shall be in a public agency ... and a public agency shall administer such funds and property.” 20 U.S.C. § 2972(c)(1). In addition, any services provided for the benefit of private school students must be provided by a public agency or by a contractor “who ... is independent of such private school and of any religious organizations_” 20 U.S.C. § 2972(c)(2). Chapter 2 empowers the Secretary of the United States Department of Education to withhold or recover funds from an SEA if there has been a failure to comply substantially with the provisions of Chapter 2. 2. Defendant State Board of Education (“State Board”) is the designated SEA in California. To carry out its obligation under Chapter 2 to assure compliance with the statute, the SEA has developed a set of forms that require all LEAs to provide sufficient information to it to allow the State Board to meet its obligations to monitor and evaluate Chapter 2 programs and activities. The SEA distributes Chapter 2 guidelines to all LEAs in the state and conducts periodic on-site monitoring visits to each LEA. Unless it deems more frequent visits necessary, the SEA monitors each LEA once every three years. 3. The District makes the final decision as to what Chapter 2 benefits will be provided to private schools with students participating in Chapter 2 by having the schools submit “needs assessment” forms describing the needs of the students and the specific information on how those needs can be met through the Chapter 2 program. The Chapter 2 Administrator of the District personally reviews the information submitted on behalf of the private school students to ensure that the benefits suggested by private school officials are appropriate and meet all statutory and regulatory requirements. The District also receives signed assurances from the school officials that all materials and equipment will be used for secular purposes, will supplement and not supplant the level of services that would be provided without Chapter 2 benefits, and will otherwise be used in compliance with Chapter 2. Additionally, District staff make one monitoring visit each year to each private school to make sure that Chapter 2 benefits are being used in accordance with all regulatory and statutory requirements. The vast majority of students who benefit from the Chapter 2 program in the District are public school students. In the 1988-89 school year, approximately seventy-four percent of the students participating in the Chapter 2 program were public school students and twenty-six percent were private school students. Although no specific figure was provided by the parties, a substantial number of the nonpublic school students receiving Chapter 2 funds attend secular private schools. Thirty-two of the eighty-seven nonpublic schools in which students receive Chapter 2 funds are secular. For the 1989-90 school year, the only Chapter 2 benefits provided to children in religious schools in the District are pre-screened library books, prescreened instructional and reference materials, and “locked” computer hardware and software that cannot be diverted to religious use. The books and book substitutes for use by nonpublic students are ordered directly by the District. The Program Administrator of Textbooks, Media and Library Services reviews all books and book substitutes provided for the benefit of nonpublic school students to insure that they are secular in nature. B. There are three major questions presented in these cross-motions for summary judgment: 1. Are the challenged provisions of Chapter 2, 20 U.S.C. § 2911, et seq., facially unconstitutional? 2. Do plaintiffs have standing to challenge the provisions of Chapter 2 as implemented by the District? 3. If plaintiffs have standing, are the challenged provisions of Chapter 2 unconstitutional as implemented by the District? 1. Plaintiffs argue that the Chapter 2 legislation is unconstitutional on its face. They have, however, suggested a narrow interpretation of the legislation that they argue would allow the legislation to pass the “non-establishment test of the First Amendment.” Plaintiffs’ Opposition to Defendants’ Motion for Partial Summary Judgment and Memorandum in Reply to Defendants’ Opposition (Chapter 2 Claims) (hereinafter cited as “Plaintiffs’ Opposition”) at 7-8. Defendants argue that plaintiffs’ concession that Chapter 2 funds can be constitutionally spent to purchase textbooks for students enrolled in private religious schools and/or be used to provide Chapter 2 benefits for private school students off the premises of these schools amounts to a concession that the statute cannot be deemed unconstitutional on its face. Defendants rely on the test established by the Supreme Court for facial constitutional challenges to congressional statutes in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1986). In Salerno, the Supreme Court considered a facial challenge to the constitutionality of the Bail Reform Act of 1984. The Court noted that “[a] facial challenge to a legisla tive Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Id. at 745, 107 S.Ct. at 2100. Because plaintiffs have suggested a specific alternative method for implementing Chapter 2 funding programs that they agree would not be unconstitutional, defendants argue that plaintiffs have provided proof that, under the Salerno test, the statute at issue is not facially unconstitutional. Plaintiffs argue that although the Salerno test is applicable in all other areas of law, it is not applicable in the Establishment Clause area. As support for this proposition, plaintiffs cite a footnote in Justice Blackmun’s dissent in Kendrick, 108 S.Ct. at 2583-84 n. 1. There, although Justice Blackmun disagreed with the majority on the primary issue before the Court, he went on to discuss an issue that was not directly mentioned by the majority opinion, but that he believed must have been part of their reasoning: A related point on which I do agree with the majority is worth acknowledging explicitly. In its appeal to this Court, the Government vigorously criticized the District Court’s analysis of the [statute] on its face, asserting that it “cannot be squared with this Court’s explanation in United States v. Salerno, that mounting a facial challenge to a legislative Act, ‘the challenger must establish that no set of circumstances exists under which the act would be valid.’ ” The Court, however, rejects the application of such rigid analysis in Establishment Clause cases, explaining: “As in previous cases involving facial challenges on Establishment Clause grounds, ... we access the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman.” Indeed the Government’s proposed test is wholly incongruous with analysis of an Establishment Clause challenge under Lemon, which requires our examination of the purpose of the legislative enactment, as well as its primary effect or potential for fostering excessive entanglement. Although I may differ with the majority in the application of the Lemon analysis to the [statute], I join it in rejecting the Government’s approach which would render review under the Establishment Clause a nullity. Even in a statute like [this one], with its solicitude for, and specific averment to, the participation of religious organizations, one could hypothesize some “set of circumstances ... under which the Act would be valid,” as, for example, might be the case if no religious organization ever actually applied for or participated under [a grant under this statute.] The Establishment Clause cannot be eviscerated by such artifice.” Id. at 2583-84 n. 1 (citations omitted). Defendants point out that the majority opinion did not speak directly to this issue. For that reason, they argue that this Court should disregard the discussion in the dictum of Justice Blackmun’s dissent in Kendrick, and follow the traditional rule for facial challenges set out in Salerno. This Court will not follow defendants’ suggestion on this point. Although the majority opinion in Kendrick does not speak explicitly on the use of the Salerno test in Establishment Clause cases, a review of the majority’s approach to the facial challenge of the statute at issue there indicates that, rather than merely applying the Salerno test of whether the statute could ever be applied in a constitutional fashion, it applied the three-part Lemon test. This Court will use the same approach. Following the Lemon test, however, leads this Court to the same result that defendants originally suggested — a finding that the statute at issue is not facially unconstitutional. 2. None of the parties actually performed the analysis under the Lemon test in the context of the facial challenge. Defendants did not because they argued that the Court should stop at the Salerno test and ask only whether there was any possible way to implement the statute constitutionally. Although plaintiffs went to great lengths to argue that the Court should not stop at the Salerno question, but should go on and determine the facial constitutionality of the statute in accordance with the Lemon test, they failed to provide any such analysis themselves. Instead, all of plaintiffs’ Lemon analysis focused on how the Chapter 2 program is implemented in the District. The Court will come to these issues later when it reaches the issue of whether the statute is constitutional as applied, but it needs first to do a complete analysis of whether the statute is constitutional on its face. Under the Lemon test, as discussed in Section I.B. above, a court may invalidate a statute if (1) the statute is motivated by a wholly impermissible purpose, (2) its primary effect is the advancement of religion, and (3) it results in excessive entanglement between church and state. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. (a). The purpose of Chapter 2 was stated clearly in the statute itself: 1. to provide the initial funding to enable State and local educational agencies to implement promising educational programs that can be supported by State and local sources of funding after such programs are demonstrated to be effective; 2. to provide a continuing source of innovation, educational improvement, and support for library and instructional materials; 3. to meet the special educational needs of at risk and high cost students, as described in section 2941(b) of this title; 4. to enhance the quality of teaching and learning through initiating and expanding effective schools programs; and 5. to allow State and local educational agencies to meet their educational needs and priorities for targeted assistance described in section 2941 of this title. 20 U.S.C. § 2911(b). There is no question that the purpose of the statute is secular and that it was not inspired by any impermissible objective. (b). In addressing the second prong of the Lemon test as to whether the primary effect of the challenged legislation is either to advance or inhibit religion, it is useful to review what the legislation sets out to do, namely, to provide instructional materials and more effective school programs and to meet the needs of at-risk and high-cost students. As was the case in Kendrick, there is no requirement in Chapter 2 “that the grantees be affiliated with any religious denomination, although [it] clearly does not rule out grants to religious organizations.” 108 S.Ct. at 2572. The services to be provided are not religious in character. Nothing on the face of the statute suggests that Chapter 2 is anything but neutral with respect to the grantees’ status as either sectarian or purely secular institutions. In this regard, Chapter 2 “is similar to other statutes that [the Supreme] Court has upheld against Establishment Clause challenges in the past.” Id. 108 S.Ct. at 2573, citing Roemer, 426 U.S. 736, 96 S.Ct. at 2339. The primary effect of Chapter 2 is neither to endorse or advance religion. There is no question that on its face the primary effect of the legislation is not unconstitutional. (c). Under the third prong of the Lemon test, the Court needs to address whether the statute leads to “excessive government entanglement with religion.” The focus under this prong of the Lemon test is on the type and degree of monitoring that is necessary to ensure that the secular purposes of Chapter 2 are fulfilled. Chapter 2 requires that any state that desires to receive grants submit to the Secretary of the United States Department of Education (“Secretary”) an application that sets forth the allocation of such funds required to implement the program and “provides for an annual submission of data on the use of funds, the types of services furnished, and the students served....” 20 U.S.C. § 2932(a)(6)(A). Section 2973(a) requires local agencies that receive funds to report annually to the SEA. The SEA evaluates the effectiveness of the state and local programs. Under § 2973(c), the Secretary, in consultation with state and local educational agencies, “shall develop a model system which state educational agencies may use for data collection and reporting....” As was the case in Kendrick, there is “no reason to fear that the less intensive monitoring involved here will cause the government to intrude unduly in the day-today operation of the religiously affiliated ... grantees.” 108 S.Ct. at 2578. On its face, it is not apparent that Chapter 2 will result in excessive entanglement of church and state. Application of the Lemon test leads to the conclusion that Chapter 2 is not facially unconstitutional. 3. Before proceeding to determine whether Chapter 2 as implemented by the District is unconstitutional, it is appropriate to determine whether plaintiffs have standing to raise such a constitutional challenge. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), was the case that gave rise to the Establishment Clause exception to the general rule that persons do not have standing as taxpayers to challenge government action. Flast involved a challenge to Titles I and II of the ESEA, legislation that was amended to become the presently challenged Chapter 2. Under Flast, “Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements. The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionally only of exercises of congressional power under the taxing and spending clause of Art. I, § 8 of the Constitution.... Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.” Id. at 102-103, 88 S.Ct. at 1953-1954. That plaintiffs in this case have satisfied the first nexus is clear. They are taxpayers challenging an aspect of a statute enacted under the Taxing and Spending Clause. Defendants suggested that Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), might defeat plaintiffs’ first nexus. Valley Forge involved a challenge to an executive action taken pursuant to legislation enacted. under the Property Clause. There, the plaintiff failed the first nexus test. Here, the legislation was enacted under the Taxing and Spending Clause and the first nexus is established. The real dispute between the parties with respect to standing is whether plaintiffs have been able to establish the second nexus outlined in Flast. Defendants argue that Flast only authorized taxpayer challenges to congressional action, but that here plaintiffs’ attack is directed to the executive administration of the congressional action and not to the congressional action itself. Defendants are incorrect. In Flast, plaintiffs made two arguments: first, that either the executive implementation of the legislation went beyond what Congress had authorized, in a manner that made the implementation unconstitutional, or second, that if the executive implementa tion was actually authorized by the statute, then the statute itself was unconstitutional. The Supreme Court found that the plaintiffs had standing because one of the theories upon which they attacked the legislation was that the congressional action itself was unconstitutional. In this case, defendants point out that plaintiffs’ focus has been on the manner in which Chapter 2 is implemented. They argue that this focus indicates that plaintiffs have not attacked the congressional action but have only attacked the executive implementation of the statute. As was the case in Flast, however, plaintiffs here argue that to the extent the executive implementation of the statute was authorized by Congress, it is the congressional action itself that is challenged. Next, defendants note that plaintiffs have named the District as a defendant, and argue that this fact proves that what is being challenged is the executive implementation of the legislation rather than the legislation itself. As plaintiffs point out, in both Flast and Kendrick, the named defendants were executive branch actors, yet standing was established. Defendants try to distinguish both Flast and Kendrick, by arguing that in those cases the executive action was mandated by Congress and the executive actor did not exercise any discretion in implementing the statute in an unconstitutional manner. Defendants are correct that this case is different from Kendrick because in Kendrick Congress had mandated the grant of Adolescent Family Life Act funds under the statute to religious organizations. Defendants, however, cannot distinguish this case from Flast. They argue that the plaintiffs in Flast challenged “the mandatory statutory directive that private school children be included in the program.” Plaintiffs’ Reply Memorandum in Support of Cross Motion for Partial Summary Judgment, filed Jan. 26, 1990, at 4. This is incorrect. Plaintiffs in Flast did not challenge the mandatory directive of funds to private schools, but the actual direction of some of those funds to sectarian schools. Although it was an executive branch deeision to actually direct the funds to the sectarian schools, because the executive decision to do so was authorized by the legislation itself, the Court found that the plaintiffs had standing. It is important to note that the congressional authorization in Flast merely gave the executive branch the permission to direct the funds to sectarian schools, it was not a mandatory congressional directive. The posture of this case is exactly the same as that in Flast. Plaintiffs are challenging the executive branch implementation of the legislation. In particular, they are challenging the direction of specific types of materials for use by students who attend sectarian schools. The executive branch decision to grant some of these materials to these students is not mandated by Congress but is permitted or authorized by the legislation. To the extent that the executive branch action of granting some of these materials to the students who attend secular schools is authorized by the legislation, plaintiffs argue that the legislation is unconstitutional. Defendants also rely heavily on In re United States Catholic Conference v. Baker, 885 F.2d 1020 (2d Cir.1989), a case decided after Kendrick in which the Second Circuit found that the plaintiffs did not have standing because the challenged action was solely an executive branch action and not a congressional action. In In re United States Catholic Conference, the plaintiff challenged the executive branch decision to grant tax exempt status to the Roman Catholic Church in accordance with § 501(c)(3) of the Internal Revenue Code. The plaintiffs did not challenge the congressional decision to allow the grant of tax exempt status to any religious organizations. They only challenged the decision by the executive branch to grant that status to the Roman Catholic Church because, according to plaintiffs, the Roman Catholic Church did not meet the criteria for tax exemption set out in the statute. The distinction emphasized by defendants between congressional and executive branch action is important. Yet defendants are incorrect that in this case plain tiffs’ challenge is directed solely to executive branch action. Plaintiffs have established both the first and the second nexuses outlined in Flast. They have standing to raise the issues before this Court. Finally, defendants suggested that plaintiffs have not suffered any harm that can be redressed and that, as a result, they lack standing. As plaintiffs correctly point out, what was true in Flast is true here: The taxpayer’s allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress .... 392 U.S. at 106, 88 S.Ct. at 1955. Preventing the expenditure of tax dollars to advance or endorse religion or further government entanglement with the church would redress plaintiffs’ injury if it were shown that expenditure of their tax dollars did in fact cause those injuries. 4. The Court now turns to the question of whether the challenged provisions of Chapter 2 are unconstitutional as implemented by the District. Here again, the Court must apply the three-part test established in Lemon. (a). There is no serious dispute over whether the primary purpose of Chapter 2 is permissible. In fact, plaintiffs raise the issue of the primary purpose only superficially by stating that “[tjhere is a disputed issue as to Chapter 2’s Secular Purpose.” Plaintiffs’ Opposition at 24. Plaintiffs provide no evidence to support the allegation that “Chapter 2 is designed and written with the intent and purpose of aiding private schools, including those pervasively sectarian.” Plaintiff’s Opposition at 24. As was discussed earlier, there is absolutely nothing in the written statute to indicate that the purpose of the legislation was to aid sectarian schools. Congress’ intent in enacting the statute was to provide “the initial funding to enable State and local educational agencies to implement promising educational programs ...,” and to “provide a continuing source of innovation, educational improvement, and support for library and instructional materials.” 20 U.S.C. § 2911(b)(l)(2). Plaintiffs have provided no evidence that these secular goals were a pretext for assisting the pervasively sectarian schools in particular. The Supreme Court has never struck down a neutral educational aid statute on the ground that its purpose was religious. See, e.g., Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Lemon, 403 U.S. at 613, 91 S.Ct. at 2111; Tilton v. Richardson, 403 U.S. 672, 679, 91 S.Ct. 2091, 2096, 29 L.Ed.2d 790 (1971). In each of these cases, the Supreme Court “accorded appropriate deference” to the legislature’s statement of secular intent. Lemon, 403 U.S. at 613, 91 S.Ct. at 2111. This Court will do the same and finds that Chapter 2 meets the first prong of the Lemon test. (b). The main argument provided by defendants under the second prong of the Lemon test is that “[t]he Supreme Court has repeatedly held that a program that assists a broad class of beneficiaries without regard to their religion does not unlawfully advance religion merely because some of its beneficiaries happen to attend religious schools.” Defendants’ Reply Memorandum in Support of Cross Motion for Partial Summary Judgment, filed Jan. 26, 1990, at 10. Defendants are correct. For example, in Mueller v. Allen, 463 U.S. 388, 398-99, 103 S.Ct. 3062, 3068-69, 77 L.Ed.2d 721 (1983), the Supreme Court stated that “a program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.” Similarly, in Everson v. Board of Education of the Township of Ewing, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), the Court stated that “we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all citizens without regard to their religious belief.” Again in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), the program at issue was upheld because it was “ ‘made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institutions benefited.’ ” Id. at 487-88, 106 S.Ct. at 751-52, citing Nyquist, 413 U.S. at 782-83 n. 38, 93 S.Ct. at 2970 n. 38. As noted by defendants, all of the cases relied upon by plaintiffs to argue that the primary effect of Chapter 2 would be to endorse religion involved state programs directed exclusively at students in private schools, the vast majority of which were religious. Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Wolman, supra; Public Funds for Public Schools of New Jersey v. Marburger, 358 F.Supp. 29 (D.N.J.1973), aff'd, 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134 (1974); Grand Rapids, supra. Plaintiffs point out that the state statute in Meek contained a preamble that stated that the legislature wanted to provide benefits to children in private schools equal to benefits provided to children in public schools. The program enacted, however, only applied to and benefited private school children. For that reason it was found not to be neutral and was struck down. In contrast, Chapter 2 is actually directed to all students regardless of what school they attend, public or private, sectarian or nonsectarian. The vast majority of students receiving Chapter 2 funds in the District attend public schools. Under Mueller, Witters, and Everson, Chapter 2 is constitutional and does not have the primary effect of endorsing or inhibiting religion. As was stated by Justice Powell in his concurrence in Witters: [Sjtate programs that are wholly neutral in offering educational assistance to a class defined without reference to religion does not violate the second part of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of individual beneficiaries. 474 U.S. at 490-91, 106 S.Ct. at 753-54 (footnote omitted). Chapter 2 is wholly neutral and makes no reference to religion. Under the second prong of the Lemon test, the primary effect of Chapter 2 is not unconstitutional. Besides the issue of to whom the statute directs the aid, interspersed within plaintiffs’ second prong analysis are a number of subissues. First, plaintiffs argue that the nature of the aid itself and whether it is “divertible” is significant. Plaintiffs have argued that provision of instructional material other than screened textbooks (such as videotape machines), might result in state support of religious purposes if they were “diverted” to religious uses. The only materials currently provided to sectarian school students in the District under Chapter 2 are prescreened textbooks, prescreened instructional materials, and “locked” computer hardware and software that cannot be diverted to religious use. Next, plaintiffs suggest that the statutory provisions of Chapter 2 do not ensure that it benefits students rather than schools. The two cases cited by plaintiffs in connection with this issue both involved statutes in which the state aid was directed solely to students at nonpublic schools. As was discussed previously, the Supreme Court has been particularly concerned about Establishment Clause implications when the statutes involved provide aid to a particular group of children. In Wolman, the Court found that the equipment would unavoidably aid the religious role of the parochial school because none of the aid was directed to public schools. In Grand Rapids, a case in which forty of the forty-one schools involved were found to be pervasively sectarian, the Court was concerned that the sectarian schools would be the real beneficiaries, and expressed its view that the idea that the children were the ones who really benefited was a fiction. Neither of these cases bear any similarity to the facts here, where seventy-four percent of the Chapter 2 funds at issue go to public school students and a substantial portion of the funding that goes to nonpublic school students goes to students at secular private schools. Next, plaintiffs cite Tilton as an example of a Supreme Court decision invalidating a neutral program designed to benefit both public and private schools. The statute in Tilton, provided construction grants directly to colleges and universities, including religiously-affiliated schools. That statute was upheld (not invalidated as suggested by plaintiffs), except for one small portion of the law that lifted restrictions on religious use after twenty years. Under Chapter 2, the materials provided may never be used for religious purposes. Tilton supports defendants’ rather than plaintiffs’ argument. Plaintiffs also repeatedly cite Kendrick and suggest that it “unequivocally exterminates defendants’ assertions that Chapter 2 is constitutional.” Plaintiffs’ Opposition at 32. Kendrick involved a challenge to con-gressionally-authorized grants of money to organizations, some of which were religiously affiliated, to help provide health care and counseling related to premarital adolescent sexual relations and pregnancy. Kendrick does not support plaintiffs’ position. First, the potential for First Amendment conflicts obviously is much greater where Congress authorizes direct funds for counseling on the subject of adolescent pregnancy from the perspective of a particular religion than, as here, where all aid is in the form of prescreened secular instructional materials. Second, the Supreme Court did not hold in Kendrick that all aid to pervasively sectarian institutions was unconstitutional. In fact, the Court cited with approval Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), where the Court had approved the provision of textbooks to children in such institutions. The Kendrick Court held that the statute was not unconstitutional on its face and that the district court had erred in invalidating the statute and enjoining funding of religious organizations, given the absence of findings as to the nature of the institutions receiving grants, and whether their secular purposes and religious missions were “inextricably intertwined.” Kendrick, 108 S.Ct. at 2580, n. 16. Finally, in their discussion of the primary effect of Chapter 2, plaintiffs cite Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), in an attempt to undercut defendants’ assertion that the Supreme Court has never evaluated a neutral aid program and found it unconstitutional. In Aguilar, the aid program involved publicly-funded teachers instructing students in religious schools. The Court invalidated the program on the basis of excessive entanglement, the third prong of the Lemon test, and not on the basis of the primary effect of the aid. As will be discussed in the next section, Chapter 2 does not involve teachers instructing students in private school classrooms, and does not result in excessive entanglement of church and state. The fact that Chapter 2 is directed to all children equally, as opposed to nonpublic school children in particular, is the important factor that makes this case different from those where the Supreme Court has found that the primary effect of government aid was to endorse religion. Seventy-four percent of the students who receive Chapter 2 funds in the District attend public schools. The primary effect of Chapter 2 is neither to endorse nor inhibit religion, and it passes the second prong of the Lemon test. (c). Plaintiffs argue that the implementation of Chapter 2 in the District results in “excessive entanglement” between church and state and does not pass the third prong of the Lemon test. To meet their burden of proof on this issue, plaintiffs must demonstrate that Chapter 2 requires “comprehensive, discriminating, and continuing state surveillance” over religious authorities. Lemon, 403 U.S. at 619, 91 S.Ct. at 2114. Plaintiffs have failed to meet their burden. The only materials currently purchased for use by children in religious schools in the District are books and book substitutes, such as filmstrips and videocassettes, and the only equipment purchases are nondiver-tible computer hardware. The books and instructional materials are prescreened by the District staff to make sure that they are secular in nature and the computer equipment is “locked” so that it can only use certain prescreened secular software. The items provided are self-monitoring and do not require “comprehensive, discriminating, and continuing state surveillance,” to make sure that they are not used for unlawful purposes. The Supreme Court has never invalidated an educational aid program that provides secular materials and equipment to children in religious schools on excessive entanglement grounds. As discussed above, in Aguilar, the Court was concerned exclusively with instruction by publicly-funded teachers in religious school buildings. Plaintiffs’ suggestion that Aguilar also invalidated the use of equipment on religious school premises is incorrect. The one other case cited by plaintiffs to counter defendants’ argument that the Supreme Court has never found excessive entanglement in educational aid unless the challenged program involved teachers, as opposed to neutral textbooks and equipment, is Marburger. In Marburger the district court invalidated the state statute because the program was directed exclusively at students in private schools. The Supreme Court’s summary affirmance of that decision does not reveal the grounds upon which the Court upheld the district court’s decision but, given the views expressed by the Court in other cases involving funds directed solely at nonpublic schools, it is likely that the Court was affirming the decision on primary effect grounds. Moreover, the materials provided under the Marburger statute were not limited to items that by their nature were incapable of diversion to religious use. Even if Marburger was upheld on excessive entanglement grounds, the two features of the program that led to that decision — that the aid was directed solely to nonpublic schools and that the material was capable of diversion to religious use — are not present in this case. Plaintiffs also argue that because the parochial school teacher gives meaning to the secular materials being provided, it will take a strong monitoring system to ensure that the teachers do not inculcate religious values while using the materials provided. This argument ignores the Supreme Court cases that have repeatedly upheld the loan of textbooks to students in religious schools without requiring a government employee to sit in the classroom to make sure that the teachers are not using the secular materials for religious purposes. See e.g., Wolman, 433 U.S. 236-38, 97 S.Ct. at 2599-2600; Allen, supra. The secular filmstrips, videocassette and computer software that are purchased for loan to students under Chapter 2 require no more monitoring to insure that they are only used for secular purposes than the textbooks discussed in the cases cited above. Aside from the current implementation of Chapter 2 in the District, plaintiffs argue that Chapter 2 materials dispersed in past years included equipment such as videocassette recorders, film projectors, and computers, that were not “locked” or made nondivertible. Plaintiffs argue that these materials must now be returned to the District. They have provided no evidence, however, that any of these materials were ever put to nonsecular purposes. The State Board has developed forms that require all LEAs to provide sufficient information to allow it to meet its obligations to monitor and evaluate Chapter 2 programs. The District requires nonpublic school officials to provide signed assurances that all materials and equipment are being used only for secular purposes. District staff make one monitoring visit each year to each private religious school to make sure that Chapter 2 benefits are being used in accordance with all regulatory and statutory requirements. In light of the restrictions on religious use contained in the Chapter 2 statute and regulations, and the fact that plaintiffs have provided no evidence of any misuse of these materials for religious purposes, there is no reason to provide a retroactive remedy for the implementation of Chapter 2 in the District in past years. The District made the prospective determination to limit provision of Chapter 2 materials to completely nondivertible items. Plaintiffs have not shown that the self-monitoring instructional materials provided under Chapter 2 to nonpublic schools require “comprehensive, discriminating, and continuing state surveillance.” There is no risk that the provision of Chapter 2 aid to nonpublic schools in the District will result in excessive entanglement of church and state. Under the three-part Lemon test, the provision of Chapter 2 aid in the District is constitutional as applied. 5. Finally, plaintiffs argue that Chapter 2 violates the Equal Protection Clause of the Fourteenth Amendment. The Fourteenth Amendment applies only to state, not federal, laws. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1953). The Fifth Amendment Due Process Clause embodies equal protection guarantees similar to those contained in the Fourteenth Amendment. Plaintiffs, however, have no standing as federal taxpayers to assert Fifth Amendment claims in connection with Chapter 2. As discussed earlier in Flast, the Supreme Court discussed the two nexuses that must be established by plaintiffs before standing will be found. The second nexus could be established if the taxpayer demonstrated a connection: “between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.” 392 U.S. at 102-103, 88 S.Ct. at 1953-54. Plaintiffs have not and cannot establish this nexus. An allegation of a due process violation does not relate to a specific limitation of the congressional taxing and spending power. “The exception to [the general rule that taxpayers do not have standing] is only available when the taxpayer can establish that the challenged expenditure exceeds specific constitutional limits other than general grounds of due process imposed upon the taxing and spending power.” Clark v. United States, 609 F.Supp. 1249, 1250 (D.Md.1984). Plaintiffs do not have standing as taxpayers to assert due process violations in connection with Chapter 2. III. For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Defendants’ motion for summary judgment with respect to Simpático School is granted, and plaintiffs’ motion is denied. 2. Defendants’ motion for summary judgment with respect to Chapter 2 is granted, and plaintiffs’ motion is denied. .Defendants San Francisco Unified School District, Board of Education of the San Francisco Unified School District, Ramon Cortines, Superintendent of Schools, San Francisco Unified School District, William Honig, California Superintendent of Public Instruction, California Department of Education, and California State Board of Education are the state and local educational agencies and titular authorities responsible for implementing Chapters 1 and 2 of the Education Consolidation and Improvement Act of 1981 ("ECIA”) in San Francisco. Lauro F. Cavazos, Secretary of the United States Department of Education, is titular authority of the federal educational agency responsible for implementing ECIA. Defendant John R. Quinn, Archbishop of the Archdiocese of San Francisco, is titular authority of the Archdiocese of San Francisco, some of whose sectarian school students are recipients of ECIA funds. Mount St. Joseph-St. Elizabeth is a nonprofit charitable organization that runs a residential home for pregnant teenage girls known as Simpático School, which operates under the guidance of the San Francisco Unified School District and with the assistance of public funds. Intervenor-defendants, Deborah Martin, Jacob Perea, and Barbara Perea, are parents of children attending private sectarian school in the District. . Chapter 1 of the ECIA superseded Title I of the Elementary and Secondary Education Act of 1965 ("ESEA”). 20 U.S.C. § 2701 et seq. Chapter 2 of the ECIA consolidated a number of federal educational programs into a single "block grant” to the various states eligible for funds. 20 U.S.C. § 3811(a). Effective April 28, 1988, Chapters 1 and 2 were superseded by Title I of the Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub.L. 100-297, 102 Stat. 140 (1988), 20 U.S.C.A. § 2701 et seq., which reauthorized Chapters 1 and 2. Because all of the prior pleadings in this case and the evidence in the record identify the programs as "Chapter 1” and "Chapter 2,” those designations were used in the motions. . Amendment I of the Constitution of. the United States provides in pertinent part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... . California General Education Code § 2551.3 covers pregnant minors programs operated by county superintendents of schools.

ORDER DIMMICK, District Judge. This is a forfeiture action brought by the United States against one 1985 Mercedes-Benz owned by the claimant Sadrudin Ka-bani. Claimant Kabani has moved for summary judgment to dismiss the forfeiture claim and to restore the vehicle to him. After hearing oral argument and considering counsel’s memoranda, this Court denies claimant’s motion. The defendant vehicle was seized by the United States after Kabani drove it across the United States border with over $1 million in unreported United States currency in the trunk. As part of a plea bargain, Kabani pled guilty to violation of 18 U.S.C. § 1001 for making false statements to the United States Customs. Subsequently, the Government filed this action for forfeiture of the vehicle under 22 U.S.C. § 401. Under section 401, vehicles used in exporting “arms or munitions of war or other articles in violation of the law” may be seized and are subject to forfeiture. The Government argues that the vehicle is subject to forfeiture under section 401 because it was used to export currency in violation of 31 U.S.C. § 5316. Section 5316 requires that anyone leaving the United States taking currency in excess of $10,000 must file a report declaring the amount. While section 5316 provides for forfeiture of the currency it is silent as to forfeiture of vehicles. Therefore, the question before the Court is whether the exportation of currency without compliance with the reporting requirements of section 5316 is an exportation of “articles in violation of the law” subjecting the vehicle used in exportation to forfeiture pursuant to section 401. Kabani argues that the exportation of currency is not of itself illegal. It is the failure to file a report that violates section 5316. United States v. Warren, 612 F.2d 887, 891 (5th Cir.1980), citing United States v. San Juan, 545 F.2d 314, 319 (2d Cir.1976) (“[I]t must be emphasized that [section 5316] only punish[es] the wilful failure to file a report and not the transportation of money”). Therefore, the exportation of more than $10,000, even without filing a report, is not an “article [exported] in violation of the law.” Kabani further argues that section 401 could be extended to unjust extremes if it is extended in this case. Without a clear directive in legislation, there is the possibility of unevenness of enforcement. Although neither side could find reported cases in which a violation of section 5316 resulted in vehicle forfeiture under section 401, it is clear that section 401 has been broadly applied. See, e.g., United States v. One 1980 Mercedes-Benz 500 SE, 772 F.2d 602 (9th Cir.1985); United States v. Ajloung, 629 F.2d 830, 835 (2d Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1081); United States v. Marti, 321 F.Supp. 59, 63 (E.D.N.Y.1970): While section 401 was primarily directed to limiting the export of war materials in protection of American neutrality and foreign policy, it has been consistently applied to other classes of goods. See Waisbord v. United States, 183 F.2d 34 (5th Cir.1950) (jewelry); United States v. Chabot, 193 F.2d 287, 290-291 (2d Cir.1951 (gold); United States v. 251 Ladies Dresses, 53 F.Supp. 772, 774 (S.D.Texas 1943). Although, application of the vehicle forfeiture provision of section 401 may seem harsh in some instances, this Court has no option but to follow the statute. On the narrow issue before it, this Court concludes that the exportation of more than $10,000 in violation of the reporting requirements of section 5316 is covered by the provisions of section 401. THEREFORE, claimant Kabani’s motion for summary judgment is DENIED.

McKAY, Circuit Judge. The National Labor Relations Board [NLRB or. Board] petitions ■ this court for enforcement of its order against Robert B. Gordon, I.W.G., Inc. [I.W.G.], Con-Bru, Inc. [Con-Bru], and Arlene, Inc. [Arlene]. Respondent, Mr. Gordon, cross-petitions this court for review of the Board’s decision. The case came before the Board on a complaint issued by the General Counsel, following an investigation of charges filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO [the Union]. After an administrative law judge [AL J] conducted a hearing on the charges set forth in the Board’s complaint, the Board adopted the ALJ’s decision with a slight modification. The Board essentially decided that Respondent “abandoned and subsequently created” several corporations, namely, I.W.G., Con-Bru, and Arlene, “primarily to avoid paying his employees pursuant to an extant collective-bargaining agreement and to evade a statutory obligation to bargain with the Union over the terms and conditions of employment.” I.W.G., Inc., 322 N.L.R.B. No. 12, 1997-98 NLRB Dec. (CCH) ¶ 16,108, at 33,441, 1996 WL 506089 (Aug. 27, 1996). We assume jurisdiction pursuant to 29 U.S.C. § 160(f). Respondent claims that there is a procedural impediment to the Board’s conclusion that Arlene was an alter ego of I.W.G. and Con-Bru. He contends that because the unfair labor practice complaint filed September 2, 1993, did not allege that Arlene was an alter ego, he was not given notice sufficient to adequately prepare and present a defense to a charge that Arlene was an alter ego of I.W.G. and Con-Bru, and that Respondent was personally liable for Arlene’s unfair labor practices. The Board urges us to hold that, regardless of whether the Arlene alter ego issue was specifically pled, it was properly decided by the Board because it was fully and fairly litigated. See NLRB Br. at 26-28; Facet Enters., Inc. v. NLRB, 907 F.2d 963, 972 (10th Cir.1990); NLRB v. Tricor Prods., Inc., 636 F.2d 266, 271 (10th Cir.1980); NLRB v. Thompson Transp. Co., 421 F.2d 154, 155 (10th Cir.1970). As we explained in Facet Enterprises, “variation between an unfair labor practice charged in the complaint and one found by the Board does not deprive a respondent of due process where it is clear that the respondent ‘understood the issue and was afforded full opportunity to justify [its actions].”’ Facet Enters., 907 F.2d at 972 (quoting NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381 (1938)). After reviewing the record and the Board’s contentions, we hold that Respondent was not accorded his due process rights as to the Arlene alter ego claim. In its Decision and Order, the NLRB found that the Arlene alter ego claim had a sufficient connection to the complaint for Respondent to anticipate the Arlene alter ego issue. See I.W.G., Inc., 1997-98 NLRB Dec. (CCH) at 33,443. The Board articulated two reasons for its decision: (1) Arlene was named as a respondent in the proceeding along with I.W.G., ConBru, and Respondent Mr. Gordon; and (2) “the gravamen of the General Counsel’s complaint is that Gordon created and abandoned corporate entities in order to evade I.W.G.’s contractual and statutory obligations to its employees and the Union.” Id. The Board’s summary of the complaint is inaccurate; nowhere does the complaint allege Respondent “created and abandoned” Arlene. Id. We agree with the Board’s dissenting opinion that the General Counsel’s complaint drew a clear distinction between (1) I.W.G. and ConBru and (2) Arlene. Id. at 33,448 (Member Cohen, dissenting). The complaint alleged that Con-Bru, I.W.G., and Respondent were a single employer or alter egos. See Peti tioner’s App., Vol. I at 165 (Order Revoking Settlement Agreement and Amended Consolidated Complaint and Notice of Hearing at 2(d)). Arlene was only alleged to be a successor to I.W.G./Con-Bru with notice of their potential liability to remedy unfair labor practices, i.e., a Golden State successor. See id. at 2(e)-(g); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). Our review of the record leads us to conclude that Respondent read the complaint to mean what it said; the complaint did not give Respondent notice of an implied and unalleged theory of creating and abandoning multiple corporate entities. The Board’s second articulated basis for concluding Respondent had notice was the naming of Arlene in the complaint. The fact that Arlene was named in the complaint does not by itself provide a sufficiently close connection to the alter ego claim to warrant adequate notice of that unalleged claim against Arlene. Our review of the facts of this case convinces us that Respondent was unaware that the Arlene alter ego claim was raised in the proceeding. Even during the course of the evidentiary hearing, Respondent received no notice of the claim that Arlene was an alter ego. Although the General Counsel amended the complaint to dismiss Connie Gordon as a party, see Petitioner’s App., Vol. I at 196, he intentionally did not amend the complaint to add the Arlene alter ego claim. See Petitioner’s App., Vol. II at 687; NLRB v. Tamper, Inc., 522 F.2d 781, 788 n. 9 (4th Cir.1975). The ALJ never advised the parties that he would consider an alter ego claim against Arlene. As in NLRB v. Pepsi-Cola Bottling Co. of Topeka, Inc., 613 F.2d 267, 274 (10th Cir.1980), the “case was complex and confusing' ... [with] not only a number' of charges but [ ] change[s] of ownership.” Like the respondent in Pepsi Respondent tried to resolve the confusion about the General Counsel’s litigation theories. See id. at 273. Respondent’s counsel specifically asked “if in the brief we have to address an alter ego claim between I.W.G., Con-Bru, and Arlene, or just a successorship claim against Arlene.” Petitioner’s App., Vol. II at 689. The ALJ responded, “[T]he Board eases are clear-—you look to the pleadings.” Id. Because Respondent never received notice of the Arlene alter ego claim through the pleadings, the first time Respondent was informed that an alter ego claim was alleged against Arlene was in the Union’s posthearing brief • filed prior to the ALJ’s decision. Cf. Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324, 1331 (7th Cir.1983) (identical conduct held to be a “clear violation of [Respondent’s] due process rights”). Although the ALJ indicated that he would only address the claims in the pleadings, he recommended liability against Respondent on a claim'unalleged in the complaint. Clearly, the Arlene alter ego theory was not fully and fairly litigated. The NLRB asserted in its order that the Arlene claim was fully and fairly litigated because “considerable evidence” relevant to the Arlene alter ego claim was presented and challenged at the hearing. I.W.G., Inc., 1997-98 NLRB Dec. (CCH) at 33,443. “But the simple presentation of evidence important to an alternative claim does not satisfy the requirement that any claim at variance from the complaint be ‘fully and fairly litigated’ in order for the Board to decide the issue without transgressing [Respondent’s] due process rights.” NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542, 547 (7th Cir.1987) (quoting Pepsi-Cola Bottling Co., 613 F.2d at 274); see Conair Corp. v. NLRB, 721 F.2d 1355, 1372 (D.C.Cir.1983) (“ ‘[T]he introduction of evidence relevant to an issue already in the case .may not be used to show consent to trial of a new issue absent a clear indication that the party who introduced the evidence was attempting to raise a new issue.’ ”) (quoting Cioffe v. Morris, 676 F.2d 539, 542 (11th Cir.1982)), cert. denied sub nom. Local 222, Int’l Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 819 (1984); Montgomery Ward & Co. v. NLRB, 385 F.2d 760, 763 (8th Cir.1967) (“ ‘Evidence without a supporting allegation cannot serve as the basis of a determination of an unfair labor practice.’ ”) (quoting Engineers & Fabricators, Inc. v. NLRB, 376 F.2d 482, 485 (5th Cir.1967)). This court has stated, “Failure to clearly define the issues and advise an employer charged with a violation of the law of the specific complaint he must meet and provide a full hearing upon the issue presented is, of course, to "deny procedural due process of law.” J.C. Penney Co. v. NLRB, 384 F.2d 479, 483 (10th Cir.1967). From the facts of this case, we think it is clear the Board made a finding which was neither charged in the complaint nor litigated at the hearing. The' Board contends that even if Respondent was denied due process, the remedy of another hearing is unnecessary because Respondent has not identified specific, unconsidered evidence that contravenes the Arlene alter ego theory. See NLRB Br. at 32. We disagree. In his brief, Respondent articulates unconsidered evidence, with sufficient specificity to merit a hearing that adequately comports with procedural due process. See Robert B. Gordon’s Opening Br. at 30-31. Under the facts of this ease, we agree with our sister circuits that “[s]peculation by reviewing courts regarding whether additional evidence might exist is a chancy endeavor at best, and it is one we refuse to undertake where the complete lack of notice entirely disabled [Respondent’s] counsel from taking any steps at the evidentiary hearing to defend against the unannounced claim.” Quality C.A.T.V., Inc., 824 F.2d at 548; accord Drug Package, Inc. v. NLRB, 570 F.2d 1340, 1345 (8th Cir.1978) (due process violation merits new hearing if company “might have litigated the matter differently”) (emphasis added); Rodale Press, Inc. v. F.T.C., 407 F.2d 1252, 1257 (D.C.Cir.1968) (“The evil ... is not remedied by observing that the outcome would perhaps or even likely have been the same. It is the opportunity to present argument under the new theory of violation, which must be supplied.”) (emphasis added). But see NLRB v. Jordan Bus Co., 380 F.2d 219, 223-24 (10th Cir.1967). The Board pierced the corporate veils of each of the three corporate respondents to find Respondent Mr. Gordon personally liable. Whether a corporate veil ought to be pierced is a question of law, and we give “great weight” to the Board’s determination that the situation justified piercing and uphold that determination if it is within “reasonable bounds.”- NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1051 (10th Cir.1993) (internal quotations omitted). The factual findings of the Board are conclusive “if supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). It is impossible for us to accurately review the Board’s veil-piercing analysis because it is based in substantial part on the unlitigated conclusion that Arlene is a single employer/alter ego of I.W.G. and Con-Bru. The two-prong analysis provided by Greater Kansas City Roofing for veil piercing was not applied to each corporate respondent individually; rather, evidence of the operations of I.W.G., Con-Bru, and Arlene was combined to support the Board’s conclusion that the situation justified piercing. See I.W.G., Inc., 1997-98 NLRB Dec. (CCH) at 33,446. We therefore remand the .issue of Respondent’s personal liability to the Board to be analyzed in light of this opinion. In his petition for review, Respondent Mr. Gordon complains that there was no specific allegation in the complaint addressing the failure of Con-Bru and Arlene to apply the union contract terms to their non-union employees. In his Decision, the ALJ acknowledged that this issue was not specifically alleged by the Board. Attach, to Robert B. Gordon’s Opening Br. (I.W.G., Inc., 322 NLRB No. 12, at 23-24). However, since none of the respondents, including Respondent Mr. Gordon, filed exceptions with the Board asserting a due process violation, see R., Vol. VI, Doc. 10, at 40-45, we will not review Respondent Mr. Gordon’s due process contentions on appeal. See Micheli v. Director, Office of Workers’ Compensation Programs, 846 F.2d 632, 635 (10th Cir.1988). Additionally, because neither Con-Bru nor Arlene filed exceptions with the Board or filed an answer to the Board’s application for an enforcement order, we will not review the Board’s reasoning for applying the “make whole” remedy to the Con-Bru and Arlene employees. We deny Respondent’s Motion to Strike the Union-Intervenor’s Brief. We also deny Respondent’s Motion to Supplement the Record with his Post-Hearing Brief to the ALJ because that brief was unnecessary to our determination of this case. We hold that, based on the record on appeal, the notice to Respondent and Arlene with respect to the Arlene alter ego claim was insufficient to satisfy due process standards and that this issue was not fairly and fully litigated. The Board’s order is enforced in part and denied in part, in accordance with the views expressed in this opinion. We remand for proceedings consistent with this opinion. . I.W.G., Con-Bru, and Arlene all failed to file exceptions with the Board to the ALJ's recommended decision and order against them. None of them filed an answer to the Board’s application for enforcement of its order. Since the Arlene alter ego issue was never pled, we will not enter a default judgment on that issue. In all other respects, we grant the Board’s Motion for Entiy of Default Judgment against those corporate respondents. See Fed. R.App. P. 15(b); NLRB v. Bell Co., 561 F.2d 1264, 1266 n. 2 (7th Cir.1977). . We recognize that NLRB v. Jordan Bus Co., 380 F.2d 219, 223-24 (10th Cir.1967), appears to stand for a contrary view. However, we note that the issue of whether due process was accorded is heavily dependent upon the circumstances of each case. See Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 136 (2d Cir.1990) ("[WJhether a charge has been fully and fairly litigated is so peculiarly fact-bound as to make every case unique; a determination of whether there has been full and fair litigation must therefore be made on the record in each case.”). In Jordan Bus Co., we concluded that the respondent had received a meaningful opportunity to prepare and present its case. See Jordan Bus Co., 380 F.2d at 224. In that case, unlike this one, the respondent was afforded actual notice in time to present evidence on the issue at the evidentiary hearing. See id. at 223. Because the respondent had actual notice prior to the evidentiary hearing, we proceeded to determine whether the evidentiary record was complete with regard to the challenged issue and whether any prejudice to the respondent resulted. In the case at bar, however. Respondent never had any chance to present evidence because he never received notice of the unalleged claim until after the close of the evidentiary - hearing. . We are not persuaded by, and do not discuss at length, Respondent’s argument that the Board engaged in misconduct justifying an equity court in refusing relief because of bad faith or unclean hands. See Robert B. Gordon’s-Reply Br: at 19.

BLACK, Circuit Judge: Danny M. Bennett and Danny L. Reid appeal from orders of the district court granting judgment as a matter of law to Dennis Lee Hendrix, David W. Waters, and Earl A. Singletary following jury verdicts in favor of Bennett on First Amendment retaliation claims under 42 U.S.C. § 1983 brought against Hendrix and Sin-gletary and in favor of both Bennett and Reid on state law libel claims brought against Hendrix. On appeal, Bennett and Reid contend (1) the district court erred in granting qualified immunity to the defendants on Bennett and Reid’s § 1983 First Amendment retaliation claims, (2) the district court erred in granting qualified immunity to the defendants on Bennett and Reid’s § 1983 conspiracy claims, and (3) the district court erred in concluding the alleged defamatory statements were protected under the First Amendment. Bennett and Reid also challenge a number of pretrial and evidentiary rulings. After review, we affirm in part and reverse and remand in part for the reasons that follow. I. BACKGROUND This controversy stems from a 1998 referendum and a 2000 election for sheriff in Forsyth County, Georgia. In 1998, For- syth County voters considered a referendum that would have established a countywide police force and diminished the power of the Forsyth County sheriffs department. Most of the department’s power would have been transferred to the county police, which would have been under the supervision of county officials. Hendrix, the sheriff at the time, opposed the referendum. Bennett and Reid, however, supported the referendum, forming a committee in support of it. The referendum was defeated at the polls, but Bennett and Reid allege Hendrix (along with Singletary and Waters, members of Hendrix’s department at the time) engaged in a campaign of retaliation and intimidation against the plaintiffs because of their support of the referendum. This campaign intensified as the 2000 election for sheriff approached. Hendrix was challenged by Ted Paxton; Bennett and Reid both supported Paxton and made contributions to his campaign. During the summer of 2000, Hendrix’s campaign created three fliers to distribute to voters. On August 2-4, 2000, Hendrix mailed approximately 36,000 copies of the fliers to voters of Forsyth County. The fliers bore photographs of Bennett and Reid, among others, and announced “real criminals,” “convicted criminals,” and “criminal cash” were supporting Paxton. The fliers also stated Bennett and Reid had been arrested in Forsyth County and were funding Paxton’s campaign. The fliers encouraged voters not to support a man whose campaign was backed by the “same type of criminals that terrorize For-syth County.” On September 28, 2000, Bennett and Reid, along with Tammy Bennett (Bennett’s wife), filed suit against Hendrix, Sin-gletary, and Waters, as well as seven other named defendants and various John Does. The complaint included seventeen claims for relief and alleged violations of the First, Fourth, and Fourteenth Amendments, as well as a conspiracy to violate civil rights. It also presented a number of state law tort claims, including libel claims based upon the campaign fliers. A. Preliminary Rulings by the District Court In a June 21, 2001, order, the district court dismissed almost all of the federal law claims against the named defendants. It held, however, the plaintiffs’ allegations were sufficient to withstand motions to dismiss and motions for judgment on the pleadings as to the First Amendment retaliation claims, the § 1983 conspiracy claims, and the equal protection claims against Hendrix, Singletary, Waters, Deputy John Lockhart, and Forsyth County. The court also declined to rule on the defendants’ qualified immunity defense based upon the pleadings. In the June order, the district court stated it would maintain jurisdiction over all the state law claims asserted in the case, but it later jettisoned the state law claims as to those defendants who had succeeded in having all the federal law claims against them dismissed. Following these rulings by the district court, Hendrix, Singletary, Waters, Lockhart, and Forsyth County were the sole remaining named defendants. On February 1, 2002, the district court granted summary judgment to the defendants on Tammy Bennett’s remaining federal law claims, effectively dismissing her as a plaintiff. It also granted summary judgment to Forsyth County and Lockhart on the federal law claims and declined to exercise supplemental jurisdiction over the state law claims against Lockhart, effectively dismissing those defendants from the suit. With respect to Hendrix, Single-tary, and Waters, the district court dismissed all remaining federal law claims except for the § 1983 First Amendment retaliation claims and the § 1983 conspiracy claims. It did rule, however, Bennett and Reid’s § 1983 retaliation claims premised on the campaign fliers failed as a matter of law and “the campaign fliers should be considered separately” from the other alleged acts of retaliation. Finally, the court deferred a ruling on the defendants’ qualified immunity defense until after presentation of evidence at trial. Hendrix, Singletary, and Waters appealed the district court’s denial of qualified immunity to this Court. B. The Qualified Immunity Issue on Appeal In July 2003, we vacated that part of the district court’s February 2002 order addressing qualified immunity. In an unpublished opinion, we decided the facts in the record were sufficient to determine if the defendants had met their initial burden of proving they were acting within the scope of their discretionary authority; we then remanded for the district court to rule on qualified immunity. Upon remand, the district court issued an order on April 13, 2004, concluding Hendrix, Singletary, and Waters were not entitled to qualified immunity and denying their motions for summary judgment. The defendants appealed, and this litigation made its second journey to this Court. In September 2005, this Court affirmed the district court’s denial of qualified immunity to Hendrix, Singletary, and Waters. Bennett v. Hendrix, 423 F.3d 1247, 1256 (11th Cir.2005). Addressing an issue of first impression, we adopted the “ordinary firmness” test in determining whether a defendant’s retaliatory conduct adversely affected a plaintiffs protected speech. Id. at 1254. Applying the test to the evidence presented on summary judgment, this Court held Bennett and Reid had presented evidence of a First Amendment violation. Id. at 1255. Specifically, we concluded “the acts alleged here, if true, are sufficiently adverse that a jury could find they would chill a person of ordinary firmness from exercising his or her First Amendment rights.” Id. Turning to the second prong of the qualified immunity inquiry, we held the law was clearly established so as to put the defendants on notice, stating “it is ‘settled law* that the government may not retaliate against citizens for the exercise of First Amendment rights.” Id. at 1256. In concluding Bennett and Reid had demonstrated a constitutional violation, this Court explicitly noted a record “replete” with instances in which the defendants allegedly engaged the following retaliatory conduct: taking down license tag numbers of cars at a forum in support of the referendum; setting up roadblocks near the plaintiffs’ homes; stopping the plaintiffs’ cars without reason and issuing false traffic citations; accessing government databases to obtain confidential information on the plaintiffs; attempting to obtain arrest warrants against the plaintiffs on trumped-up environmental charges; and mailing fliers to homes in Forsyth County depicting the plaintiffs as criminals terrorizing the county. Id. at 1249,1254-55. C. The Jury Trial Following this Court’s decision affirming the district court’s denial of qualified immunity, the case proceeded to a jury trial on April 17, 2007. By that time, only the following claims remained: (1) the § 1983 First Amendment retaliation claims against Hendrix, Singletary, and Waters; (2) the § 1983 conspiracy claims against Hendrix, Singletary, and Waters; and (3) the state law libel claims against Hendrix. 1. Evidence relating to the § 1983 claims against Hendrix, Singletary, and Waters At trial, Bennett and Reid attempted to establish Hendrix had formed a “strike force” to harass and intimidate his political opponents, including Bennett and Reid, following the 1998 referendum. They offered the testimony of former members of the Forsyth County sheriffs department to support their allegations of a retaliatory “strike force.” For instance, William Miller, a lieutenant in the criminal investigation division, testified Singletary informed him during a February 1999 command staff meeting he was being transferred to internal affairs to investigate 50 to 75 of Hendrix’s political opponents. Several other sheriffs deputies testified they were asked to conduct surveillance on county commissioners, certain supporters of the 1998 referendum, and a publisher of a local newspaper. None of the deputies, however, testified Hendrix, Singletary, or Waters asked them to perform surveillance on Bennett or Reid. As evidence of the alleged retaliatory acts taken against them, Bennett and Reid presented evidence of a 2000 investigation by Deputy Lockhart, a former defendant in the suit. Lockhart, who was the environmental code enforcement officer in Hendrix’s department, investigated one of Bennett and Reid’s work sites for violations of a solid waste ordinance. Lockhart informed the county attorney he planned to arrest Bennett and Reid during the summer of 2000, but he never arrested either man. He did, however, advise a general contractor not to hire Reid. He also filed a complaint with the Georgia Environmental Protection Division, which ultimately issued a notice of violation for debris located on the property. Bennett also testified he was stopped by unnamed sheriffs deputies at a roadblock near his home in April 2000. Although other cars were also stopped at the roadblock, Bennett contended the roadblock was intended to harass him. He testified he was the only driver to have to exit his vehicle and his car was the only one examined by drug-sniffing dogs. Bennett and Reid both testified sheriffs deputies were patrolling their neighborhoods and work sites during this time period. Bennett stated he saw two to three deputy cars come by his house within an hour, a marked increase. Reid also testified he saw a patrol car sitting in his subdivision and across from his job. Finally, Bennett presented evidence regarding the alleged harassment and intimidation of his wife, Tammy Bennett, by sheriffs deputies. Tammy Bennett received a citation for speeding from Deputy Sheriff B.A. Finley on July 28, 2000, and a citation for running a stop sign from Deputy Sheriff David Witkowski on July 29, 2000. These citations were issued 14 hours apart at the same spot, less than a quarter of a mile from her home. Bennett also testified a deputy tailgated Tammy Bennett for eight or nine miles to her home and flashed his blue lights as she pulled into the driveway. 2. Evidence relating to the libel claims against Hendrix - a. Plaintiffs’ Exhibits 1, 2, and 3 Bennett and Reid introduced the three alleged defamatory campaign fliers as Plaintiffs’ Exhibits 1, 2, and 3 at trial. Plaintiffs’ Exhibit 1 features a front page with text stating, ‘You know your Sheriff is doing a good job when ...” The top of the second page completes the sentence with “... criminals are supporting his opponents [sic] campaign.” Underneath this text is a box with photographs of six men, including Bennett and Reid, and a caption to the left that reads, “The Ted Paxton Chain Gang.” The text under Bennett’s photograph reads, “Arrested and housed in the Forsyth Jail, Bennett gave Paxton hundreds for his smear campaign on two occasions.” Under Reid’s photograph, the flier states, “Developer was arrested for refusing to obey order to stop construction. He is now giving substantial amounts of cash to Paxton.” The other men featured in the box are Paxton; a former county commissioner who, according to the flier, received money from a man arrested for bribery; a man who was allegedly arrested for assault and making “terroristic threats”; and another former county commissioner who, according to the flier, pled guilty to kidnapping. Text in paragraph form appears below the box stating, among other things, ‘You know our Sheriff is doing a good job when real criminals and their associates are supporting his opponents [sic] campaign,” and “Ted Paxton has been running a malicious smear campaign against Sheriff Denny Hendrix with support he’s received from criminals.” It concludes, “On August 8th, let’s vote to keep Forsyth safe from criminals and convicted felons.” The front of Plaintiffs’ Exhibit 2 contains a mug shot of Bennett taken after his 1995 arrest accompanied by text stating, “Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?” Bennett’s photograph is the only one appearing on the flier’s front page. Under his mug shot, the text states, “This man, arrested and housed in the Forsyth County Jail, gave hundreds in cash to Paxton’s campaign on two different occasions.” The second page of the flier answers the question from the front of the flier with text stating, “Ted Paxton thinks so.” The left side of the page features a box with photographs of the same men from the first flier, minus Reid. The text accompanying Bennett’s photograph states, “Arrested and housed in the Forsyth Jail, this man gave hundreds to Paxton’s smear campaign on two different occasions.” The right side of the page contains text in paragraph form. A portion of the text reads, “It’s a scary thought isn’t it? A candidate for Sheriff taking money from convicted criminals and their associates. The same type of criminals who terrorize Forsyth County.” Like the first flier, it concludes, “On August 8th, let’s vote to keep Forsyth safe from criminals and convicted felons.” The last flier, introduced as Plaintiffs’ Exhibit 3, consists of three pages. The front page contains a photograph of a local newspaper publisher with text stating, “What do you think?” The next page features a box at the top of the page. The question “Should this Gang run your Sheriffs Office?” appears at the top of the box. To the left, the text reads, “The Ted Pax-ton Chain Gang.” The box contains photographs of the same six men featured on the first flier. The text accompanying Bennett’s photograph reads, “Arrested and housed in the Forsyth Jail, Bennett gave Paxton hundreds to help finance Paxton’s smear campaign.” Under Reid’s photograph, the text states, “Developer was arrested for refusing to obey order to stop construction. He is now giving substantial amounts of cash to Paxton.” Additional text in paragraph form appears under the box on the left side of the page. This text makes two references to “criminal cash.” The right side of the page features another box with numerous slogans. Here too the flier references “cash from criminals” and “criminal cash.” The last page of the flier contains endorsements from various individuals. b. Testimony regarding the fliers At trial, evidence regarding the production of the campaign fliers consisted mostly of testimony from Gerard Petrotto, Hendrix’s public information officer, and Jason Williams, Hendrix’s campaign consultant, as well as Hendrix himself. The process of creating the fliers began at a meeting attended by Hendrix, Hendrix’s wife, Singletary, Petrotto, and Williams in July 2000. At that meeting, Hendrix produced 60 to 70 manila flies containing arrest information and mug shots of certain individuals. One of the mug shots was of Bennett, whom Hendrix called “wild-haired boy.” Hendrix obtained this arrest information from sheriffs department records. He testified he had heard some of Paxton’s financial contributors had “some skirmishes with the law.” Acting upon this information, Hendrix asked the voter registrar for a list of Paxton’s contributors. He took the names to Waters and told Waters to have someone run the names through the sheriffs department computer system to see if any of Paxton’s contributors had records. Per Hendrix’s orders, two individuals in the sheriffs department, Marilyn Dressier Smith and Jamie Brum-below, searched the department’s records for information on Bennett and Reid. The searches on Bennett and Reid turned up records of arrests for both men in 1995 for refusing to obey a stop work order and for obstruction; those charges were ultimately dismissed as to both men. Sometime after the July meeting, Williams suggested using the mug shots in campaign fliers. Hendrix, Petrotto, and Williams all testified Williams chose the wording and generated ideas for the fliers. According to Hendrix, “[E]verything on the fliers [Williams] developed and placed on there. It was his idea, his creation.” At the same time, however, Hendrix played an “active part” in creating the fliers and came up with his own ideas. Petrotto testified Williams would create drafts of the fliers, email them to Petrotto, and Petrotto would print them for Hendrix’s review. Hendrix approved all the fliers through Petrotto. Hendrix testified he saw the final proofs of the fliers before they were mailed and made the decisions whether to change them and whether to mail them. Ultimately, Hendrix claimed full responsibility for his campaign and the fliers. On the stand, Hendrix also testified he did not believe Bennett and Reid were convicted criminals: Q: You knew by your definition, the way you defined criminal, as of August of 2000, you never thought that Mr. Reid or Mr. Bennett were criminals? A: I believe that to be correct. He stated he knew the fliers would likely hurt their reputations. Hendrix added he believed it was “very possible” someone could look at the front of Plaintiffs’ Exhibit 2, which features a mug shot of Bennett and the text of “Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?” and think Bennett was a convicted criminal. He admitted he thought the fliers were harsh and he might get sued. Other members of Hendrix’s campaign staff had concerns regarding the fliers. Petrotto testified he was particularly troubled by the front of Plaintiffs’ Exhibit 2. Petrotto sent Williams an email on July 24, 2000, suggesting a change in the text to “Should a candidate for Sheriff finance his campaign from convicted criminals or those arrested for violating Georgia Criminal Code?” According to Petrotto, Hendrix wanted to make the change, but, for some reason, it was not made. Williams, however, testified he had a conversation with Hendrix’s campaign about omitting the extra language, and the campaign agreed to leave it out. Williams did not remember whether Hendrix personally agreed or not. Petrotto thought the fliers might result in a lawsuit and suggested Hendrix have an attorney review the fliers. Similarly, Williams told Petrotto that Hendrix would be sued over the fliers. Mark Hoffman, who was a major in the sheriffs department under Hendrix, testified there was concern at sheriffs department command staff meetings the fliers might result in lawsuits. The fliers were mailed on August 2, 3, and 4, 2000. Afterward, Bennett and Reid testified they became the subject of a number of jokes. A shareholder of a bank on whose board Bennett and Reid served also notified the Georgia Department of Banking and Finance regarding the allegations in the fliers. In response to the shareholder’s letter, the Georgia Department of Banking and Finance contacted the president and CEO of the bank, requesting the bank provide the department with information regarding the validity of the allegations. The bank informed the department the charges against Bennett and Reid to which the fliers referred were dismissed and maintained Bennett and Reid “were victims of malicious political mailings.” Its response was apparently the end of the matter, and both men continued to serve as directors of the bank. 3. The jury verdict After nine days of testimony, the district court finally gave the case to the jury on April 27, 2007. In its charge, the court articulated the elements needed to prove a First Amendment retaliation claim and also instructed the jury regarding conspiracy liability under § 1983. With respect to the state law libel claims against Hendrix, the district court informed the jury the plaintiffs were private figures and thus an ordinary standard of care applied in determining liability. Consistent with its February 2002 order, the court further instructed the jury that “publication of the campaign fliers was not action under color of state law and may not be considered by you as acts of retaliation for the Plaintiffs’ First Amendment retaliation claims.” The district court judge gave the jury a general verdict form, which listed the § 1983 First Amendment retaliation claims against Hendrix, Singletary, and Waters, and the state law libel claims against Hendrix. On May 4, 2007, the jury returned its verdicts. With respect to Bennett’s § 1983 First Amendment retaliation claims, the jury found Hendrix liable for $930,000 in compensatory damages and $1,030,000 in punitive damages. Single-tary was found liable for $400,000 in compensatory damages and $455,000 in punitive damages. The jury found in favor of Waters on Bennett’s § 1983 First Amendment retaliation claim. Meanwhile, the jury was hung as to Reid’s § 1983 First Amendment retaliation claims against all three defendants. Regarding the state law libel claims, the jury returned a verdict in favor of both Bennett and Reid against Hendrix, awarding Bennett $3,600,000 in damages and Reid $3,100,000 in damages. k. The district court’s judgment as a matter of law in'favor of the defendants At the conclusion of the plaintiffs’ case, the defendants moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The district court deemed the motion timely but recommended postponing argument. The defendants agreed and made their arguments for judgment as a matter of law at the close of evidence, at which time the district court denied the motion as to the state law libel claims against Hendrix and took under advisement the motion as to the § 1983 First Amendment retaliation claims, allowing the case to proceed to the jury. After the jury verdict, however, the district court granted Hendrix, Singletary, and Waters judgment as a matter of law on the § 1983 First Amendment retaliation claims, basing its decision on qualified immunity. Ruling from the bench, the court went through each of the alleged acts of retaliation this Court considered in its 2005 decision and noted “a complete failure to produce evidence” of participation by Hendrix, Singletary, or Waters in the acts: There was a lot of evidence, of hearsay, of gossip, of rumor, of innuendo, of reckless talk. But in terms of actual proof of something being done to these Plaintiffs by these Defendants, there was nothing. And for those reasons, I don’t believe that the Plaintiffs have shown a violation of their constitutional rights; and I think the Defendants are entitled to qualified immunity. On May 17, 2007, Hendrix renewed his motion for judgment as a matter of law under Rule 50(b) to challenge the judgment against him on the libel claims. On November 9, 2007, the district court granted Hendrix’s motion, finding the campaign fliers were “loaded with innuendo, half truths, and rhetorical hyperbole” and protected by the First Amendment. After reciting numerous examples of inflammatory campaign speech from our nation’s history, the court concluded the fliers “were political speech of the highest order and deserving of the highest protection.” Bennett and Reid appealed to this Court. II. STANDARD OF REVIEW We review de novo a district court’s grant of a Rule 50 motion for judgment as a matter of law, applying the same standards as the district court. Campbell v. Rainbow City, 434 F.3d 1306, 1312 (11th Cir.2006). In doing so, we examine the evidence in the light most favorable to the nonmoving party. Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir.2003). The nonmovant, however, “must put forth more than a mere scintilla of evidence suggesting that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.” Id. (internal quotation marks omitted). “If the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof, then the entry of judgment as a matter of law is appropriate.” . Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308 (11th Cir.1998) (internal quotation marks omitted). III. DISCUSSION On this appeal, Bennett and Reid contend the district court erred in granting the defendants judgment as a matter of law on the § 1983 First Amendment retaliation claims, the § 1983 conspiracy claims, and the state law libel claims. For the reasons stated below, we conclude Bennett and Reid failed to show a constitutional violation by Hendrix, Singletary, and Waters, and thus the district court correctly entered judgment as a matter of law in favor of the defendants on the § 1983 claims. We hold, however, the front of one of the campaign fliers displayed a statement that was not protected by the First Amendment and thus reverse the district court’s grant of judgment as matter of law in favor of Hendrix on Bennett’s libel claim. A. The § 1983 First Amendment Retaliation Claims At the close of evidence, Hendrix, Sin-gletary, and Waters moved for judgment as a matter of law on Bennett and Reid’s § 1983 claims, asserting the defense of qualified immunity. The district court took the motion under advisement and allowed the case to proceed to the jury. After the jury returned verdicts in favor of Bennett against Hendrix and Singletary on the § 1983 claims, the district court granted the defendants’ motion for judgment as a matter of law, concluding there was “a complete failure” to produce evidence of a constitutional violation and Hendrix, Sin-gletary, and Waters were thus entitled to qualified immunity. Bennett and Reid argue the district court erred in granting judgment as a matter of law in favor of the defendants because its decision conflicts with this Court’s 2005 opinion affirming the district court’s denial of the defense of qualified immunity on summary judgment, which, according to Bennett and Reid, established the law of the case with respect to the qualified immunity issue. Bennett and Reid also contend they presented ample evidence of a constitutional violation and the district court improperly substituted its view of the evidence for the jury’s determinations by concluding Bennett and Reid had failed to establish a constitutional violation. 1. The law of the case When a district court denies a qualified immunity defense on summary judgment, a defendant may raise the defense again in a Rule 50 motion. Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir. 1996). “That type of motion will sometimes be denied because the same evidence that led to the denial of the summary judgment motion usually will be included in the evidence presented during the plaintiffs case.... ” Johnson v. Breeden, 280 F.3d 1308, 1317-18 (11th Cir.2002). When the evidence produced at trial mirrors the evidence presented on summary judgment, “the same evidentiary dispute that got the plaintiff past a summary judgment motion asserting the qualified immunity defense will usually get that plaintiff past a Rule 50(a) motion asserting the defense, although the district court is free to change its mind.” Id. at 1318. A district court may not change its mind, however, if a prior opinion of this Court has established the law of the case. “Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case.” Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir.2000). The law of the case doctrine pertains to “those legal issues that were actually, or by necessary implication, decided in the former proceeding.” Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544, 1549 n. 3 (11th Cir.1990). “Exceptions to this doctrine apply when substantially different evidence is produced, when there has been a change in controlling authority, or when the prior decision was clearly erroneous and would result in manifest injustice.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir.2005). Bennett and Reid contend this Court’s 2005 opinion in Bennett v. Hendrix, 423 F.3d 1247 (11th Cir.2005), decided the qualified immunity issue and the evidence presented at trial was not different than the evidence presented at the summary judgment stage. We disagree. Although the 2005 appeal involved the same issue as this appeal—the qualified immunity defense—this Court’s opinion relied on a number of alleged facts that Bennett and Reid failed to demonstrate at trial or that the district court ruled could not be considered for purposes of the § 1983 First Amendment retaliation claim. See id. at 1249, 1254-55. Because “substantially different” evidence was produced at trial, our 2005 opinion does not constitute the law of the case. See Jackson, 405 F.3d at 1283. Accordingly, the district court was “free to change its mind” with respect to the defense of qualified immunity. See Johnson, 280 F.3d at 1318. 2. The finding of no constitutional violation To prevail on a First Amendment retaliation claim and prove a constitutional violation, a plaintiff must establish (1) his or her speech was protected by the First Amendment, (2) the defendant’s retaliatory acts would likely deter a person of ordinary firmness from exercising his or her First Amendment rights, and (3) a causal connection exists between the retaliatory actions and the adverse effect on the protected speech. Bennett, 423 F.3d at 1250, 1254. If a plaintiff fails to make a showing on any of the three elements, judgment as a matter of law under Rule 50 is appropriate. See Johnson Enters, of Jacksonville, 162 F.3d at 1308. The district court concluded Bennett and Reid failed to produce evidence of any participation by Hendrix, Singletary, or Waters in retaliatory acts against Bennet and Reid, and, consequently, Bennett and Reid had not demonstrated a constitutional violation. After a thorough review of the record, we likewise found no evidence of any participation by the defendants in retaliatory acts against Bennett and Reid. Because Bennett and Reid were unable to satisfy the second element of the First Amendment retaliation analysis, judgment as a matter of law was appropriate in this case. See Johnson Enters, of Jacksonville, 162 F.3d at 1308. B. The § 1983 Conspiracy Claims Bennett and Reid also argue the district court erred in granting judgment as a matter of law on the § 1983 conspiracy claims, raising the same arguments they presented in connection with the individual First Amendment retaliation claims. Specifically, they contend the district court’s ruling conflicts with our 2005 opinion affirming the district court’s denial of the defense of qualified immunity on summary judgment and the district court improperly substituted its view of the evidence for the jury’s determinations. “[T]o sustain a conspiracy action under § 1983, as distinguished from § 1985, a plaintiff must show an underlying actual denial of its constitutional rights.” GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir.1998). In other words, “[t]he conspiratorial acts must impinge upon the federal right; the plaintiff must prove an actionable wrong to support the conspiracy.” Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990). A conspiracy claim is simply “the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act.” Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir.1963). Bennett and Reid failed to show an underlying denial of their constitutional rights, as we discussed in Part III.A. Therefore, Bennett and Reid cannot sustain a conspiracy action under § 1983. See GJR Invs., Inc., 132 F.3d at 1370. The district court thus did not err in granting judgment as a matter of law in favor of Hendrix, Singletary, and Waters on the conspiracy claims. C. The State Law Libel Claims The district court denied Hendrix’s motion for judgment as a matter of law on Bennett and Reid’s libel claims following the presentation of evidence at trial. Hendrix, however, filed a renewed motion for judgment as a matter of law on May 17, 2007, which the district court granted on November 9, 2007. Analogizing to some examples of offensive political speech from our nation’s history, the district court found the fliers were “loaded with innuendo, half truths, and rhetorical hyperbole” and concluded “[t]he campaign fliers—however offensive—were political speech of the highest order and deserving of the highest protection.” Accordingly, the court held “the First Amendment trumps the Plaintiffs’ right to recover damages for defamation.” Bennett and Reid contend the district court erred in granting judgment as a matter of law in favor of Hendrix on the libel claims because the statements on the fliers do not constitute rhetorical hyperbole or nonliteral assertions of fact. Specifically, they argue the fliers contain “straightforward factual assertions” identifying Bennett and Reid as “convicted criminals” and thus are not protected by the First Amendment. Under Georgia law, “libel is a false and malicious defamation of another ... tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A. § 51-5-1. To maintain an action for libel, the communication must be both false and malicious. Speedway Grading Corp. v. Gardner, 206 Ga.App. 439, 425 S.E.2d 676, 678 (1992). “In determining whether a statement is false, ‘[djefamation law overlooks minor inaccuracies and concentrates upon substantial truth.... [A] statement is not considered false unless it would have a different effect on the mind of the viewer from that which the pleaded truth would have produced.’ ” Jaillett v. Ga. Television Co., 238 Ga.App. 885, 520 S.E.2d 721, 724 (1999) (quoting Brewer v. Rogers, 211 Ga. App. 343, 439 S.E.2d 77, 81 (1993)). The First Amendment, however, places constitutional limits on the application of the state law of defamation, including the type of speech that may be the subject of state defamation actions. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 110 S.Ct. 2695, 2704, 111 L.Ed.2d 1 (1990). “[Bjoth the Supreme Court and this Court of Appeals have long recognized that a defamation claim may not be actionable when the alleged defamatory statement is based on non-literal assertions of ‘fact.’ ” Horsley v. Rivera, 292 F.3d 695, 701 (11th Cir.2002). “This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706. Consistent with this principle, the Supreme Court has held use of the word “blackmail” to describe a real estate developer’s negotiating position was not slander when spoken at public meetings or libel when reported in a local newspaper because, within that specific context, “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole,” and “[n]o reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging [the developer] with the commission of a criminal offense.” Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13-14, 90 S.Ct. 1537, 1541-42, 26 L.Ed.2d 6 (1970). Likewise, we have found a television commentator’s statements that a guest on his show, an anti-abortion activist, was an accomplice to a doctor’s murder were protected under the First Amendment as rhetorical hyperbole when “no reasonable viewer would have concluded that [the commentator] was literally concluding that [the show’s guest] could be charged with a felony in connection with [the doctor’s] murder.” Horsley, 292 F.3d at 702. The dispositive question is thus whether a reasonable factfinder could conclude the challenged statements imply an assertion that “is sufficiently factual to be susceptible of being proved true or false.” Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707; see also Eidson v. Berry, 202 Ga.App. 587, 415 S.E.2d 16, 17 (1992) (“The pivotal questions are whether [the challenged] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.”). In undertaking this inquiry, we must consider the circumstances in which the statements were expressed. Horsley, 292 F.3d at 702. If we conclude the statements consist of “the sort of loose, figurative language that no reasonable person would believe presented facts,” the First Amendment provides protection, and a plaintiff may not recover damages for libel. Id.; see also Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707 (finding a newspaper column was not protected by the First Amendment because the challenged statements were not “the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury”). Turning to the facts of this case, we conclude two of the fliers, Plaintiffs’ Exhibits 1 and 3, cannot sustain a damages award for libel under Georgia law because they do not contain false statements. The second page of both these fliers features a photograph of a man who, according to the fliers, pled guilty to kidnapping. Text on these pages insinuates “convicted criminals,” “real criminals,” and “criminal cash” support Paxton’s campaign. A person who pleads guilty to kidnapping is a convicted criminal. See Black’s Law Dictionary 358, 402 (8th ed.2004) (defining “convict” as “[t]o find (a person) guilty of a criminal offense upon a criminal trial, a plea of guilty, or a plea of nolo contendere (no contest)” and “criminal” as “[o]ne who has committed a criminal offense” and “[o]ne who has been convicted of a crime”). Because the man who pled guilty to kidnapping is a “convicted criminal,” the statements on Plaintiffs’ Exhibits 1 and 3 asserting “criminals,” “real criminals,” “convicted felons,” and “criminal cash” support Paxton’s campaign are not false. Furthermore, the text specifically referring to Bennett and Reid on Plaintiffs’ Exhibits 1 and 3 does not contain false statements. On Plaintiffs’ Exhibit 1, Bennett’s mug shot appears with the text, “Arrested and housed in the Forsyth County Jail, Bennett gave Paxton hundreds for his smear campaign on two occasions.” On Plaintiffs’ Exhibit 3, the text accompanying Bennett’s photograph reads, “Arrested and housed in the Forsyth County Jail, Bennett gave Paxton hundreds to help finance Paxton’s smear campaign.” Both these statements are true. On both Plaintiffs’ Exhibits 1 and 3, Reid’s mug shot appears with the text, “Developer was arrested for refusing to obey order to stop construction. He is now giving substantial amounts of cash to Paxton.” Like the statements accompanying Bennett’s photograph on the fliers, the statements referring to Reid are true. Accordingly, because both the statements asserting “criminals” support Pax-ton’s campaign and the text accompanying Bennett and Reid’s photographs are true, Plaintiffs’ Exhibits 1 and 3 are not defamatory and cannot form the basis for a libel claim under Georgia law. See O.C.G.A. § 51-5-1; see also O.C.G.A. § 51-5-6. (stating truth may be proved as a justification for an alleged libel). The same reasoning applies to the statements on the second page of Plaintiffs’ Exhibit 2, which also contains a photograph of the man who pled guilty to kidnapping and similar language accompanying Bennett’s mug shot as appears on Plaintiffs’ Exhibits 1 and 3. We conclude Bennett and Reid cannot recover on their libel claims with respect to these particular statements. The front page of Plaintiffs’ Exhibit 2, however, is a different matter. The front of this flier contains a mug shot of Bennett accompanied with the text, “Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?” Bennett is the only person featured on the front of this flier. Although he has a record of an arrest from 1995, Bennett is not a “convicted criminal” under any definition. Indeed, Hendrix, as a law enforcement officer, understood the definition of “convicted criminals,” and he testified at trial he knew Bennett was not one when the fliers were published in August 2000. The implication of a mug shot and the sentence, “Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?”, is that the photo is of a convicted felon, and it is defamatory of Bennett, satisfying the definition of libel under Georgia law. See O.C.G.A. § 51-5-1. The question remains, though, whether the challenged language on the front on Plaintiffs’ Exhibit 2 is protected by the First Amendment. Finding it constituted “rhetorical hyperbole,” the district court held the speech was “deserving of the highest protection” and could not be the subject of a defamation action. We disagree. The language on the front of the flier is not “the sort of loose, figurative language that no reasonable person would believe present[s] facts.” See Horsley, 292 F.3d at 702. A reasonable factfinder could conclude that, with the photo, the sentence, “Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?”, is an assertion regarding Bennett—the only person featured on the page—that “is sufficiently factual to be susceptible of being proved true or false.” See Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. Specifically, the challenged language asserts Bennett is a convicted criminal. Whether that assertion is false is verifiable from Bennett’s criminal records. Accordingly, the front page of Plaintiffs’ Exhibit 2 is not protected by the First Amendment. The context in which the language on the front of the flier was expressed supports our conclusion that the First Amendment does not provide protection. The flier was published by the chief law enforcement officer of Forsyth County. The only person who appears on its front page is Bennett. The photograph of Bennett is a mug shot taken shortly after his 1995 arrest. In the photograph, Bennett has a disheveled appearance, and his hair is not groomed. The intended message is clear—Bennett is a convicted criminal— and a reasonable reader could conclude Hendrix, the sheriff of Forsyth County, was stating Bennett had been convicted of a criminal offense. Indeed, Hendrix acknowledged during his trial testimony it was “very possible” a recipient of the flier could read the flier and think Bennett was a convicted criminal. In this context, “convicted criminals” is “not the sort of loose, figurative, or hyperbolic language which would negate the impression that [Hendrix] was serious maintaining” Bennett was a convicted criminal. See Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. We recognize “debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), and “language of the political arena ... is often vituperative, abusive, and inexact,” Waits v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664 (1969). As one of our sister circuit courts has noted, “[P]olitieal statements are inherently prone to exaggeration and hyperbole. If political discourse is to rally public opinion and challenge conventional thinking, it cannot be subdued. Nor may we saddle political speakers with implications their words do not literally convey____” Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 244 F.3d 1007, 1019 (9th Cir.2001) (internal citation omitted). We are sensitive to the fact this flier was published during a heated political campaign, but this fact does not alter our analysis. The language on the front page of Plaintiffs’ Exhibit 2 is exact, and the words literally convey the assertion that Bennett is a convicted criminal. False factual assertions are not protected under the First Amendment, even if expressed within the context of political debate. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (“[T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” (quoting New York Times Co., 376 U.S. at 270, 84 S.Ct. at 721)). We also recognize the tone of the speech and its medium of expression can often signal opinion or nonliteral assertions of fact, especially within the political arena. See Milkovich, 497 U.S. at 6, 110 S.Ct. at 2707 (noting “the general tenor of an article” may negate a literal assertion); see also Secrist v. Harkin, 874 F.2d 1244, 1249 (8th Cir.1989) (noting a campaign press release “is at least as likely to signal political opinion as a newspaper editorial or political cartoon”). That said, the front page of Plaintiffs’ Exhibit 2 is not styled as a cartoon, parody, or editorial, and its tone is not satirical or exaggerated. Rather, it involves an assertion by an law enforcement officer regarding the criminal history of one of his opponent’s supporters, accompanied by a mug shot of that supporter. The tone of the flier supports our conclusion that it is not protected by the First Amendment. The type of speech protected by the First Amendment is a context-driven inquiry, and we thus emphasize the unique circumstances of this case. If the challenged language on the front page of Plaintiffs’ Exhibit 2 had been “criminals” instead of the more exact and literal phrase “convicted criminals,” this might be a different case. If a photograph of a convicted criminal had appeared alongside Bennett’s mug shot on the front page of the flier, this might be a different case. If Bennett’s mug shot had been omitted from the page, this might be a different case. Here, however, the use of only Bennett’s mug shot and the precise language of “convicted criminals” leads to one conclusion— the speech constitutes a false factual assertion and is not protected by the First Amendment. Finally, in reaching our conclusion, we note, within the context of campaigns for law enforcement offices, the particular relevance of information regarding criminal and arrest records of candidates and their supporters. This information is crucial for the public to determine which individuals to entrust the responsibility of maintaining and executing the laws of this land. Such information, however, must be truthful. Candidates for law enforcement offices cannot misrepresent the criminal histories of their opponents and their opponents’ supporters with false factual assertions. In this case, the challenged language on the front of Plaintiffs’ Exhibit 2 misrepresents Bennett’s criminal history with false factual assertions and crosses the line from healthy political debate and pertinent public information to defamation. Accordingly, we reverse the district court’s judgment as a matter of law in favor of Hendrix on Bennett’s state law libel claim. IV. CONCLUSION For the foregoing reasons, we affirm the orders of the district court granting the defendants’ motions for judgment as a matter of law as to Bennett and Reid’s § 1983 First Amendment retaliation claims and conspiracy claims and Reid’s state law libel claim. We reverse the district court’s grant of judgment as a matter of law in favor of Hendrix on Bennett’s state law libel claim. We remand the case to the district court with instructions to consider the issues it did not address from Hendrix’s motion for judgment as a matter of law. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. . Ultimately, among the state law claims, only the libel claims against Hendrix survived to trial. . A footnote call of “1” appears after this text. The flier, however, contains no corresponding reference to this footnote call. . Bennett and Reid also challenge a number of the district court's other rulings. With respect to these issues, we conclude their arguments are without merit. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. . For these same reasons, we reject Bennett and Reid’s argument that the district court erred in failing to separately list the conspiracy claims on the jury verdict form. . Additionally, Reid testified at trial that he pled guilty to driving under the influence in the early 1980s. . In reaching this conclusion, we need not decide whether the challenged language involved a public figure or a private figure on a matter of public concern because the district court concluded the speech was protected under the First Amendment as rhetorical hyperbole. The First Amendment can provide protection against state law defamation claims on two bases: (1) the type of speech involved and (2) the person whom the speech concerns and the culpability of the speaker. See Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706-07. The inquiry associated with each has developed under two separate lines of Supreme Court cases. See id. We analyze only the type of speech involved here, as the district court’s decision did not rest on the person whom the speech concerned. . For these same reasons, we reject Hendrix's argument that the speech is pure opinion protected under the First Amendment. Because the factual premises of the challenged language are revealed in the fliers, Hendrix argues the speech, in addition to constituting rhetorical hyperbole, amounts to pure opinion and is not actionable. The state of Georgia has immunized "not only statements of rhetorical hyperbole ... but also statements clearly recognizable as pure opinion because their factual premises are revealed.” Jaillett, 520 S.E.2d at 726. "If an opinion is based upon facts already disclosed in the communication, the expression of the opinion implies nothing other than the speaker’s subjective interpretation of the facts.” Id. Although the front page of Plaintiffs' Exhibit 2 does state Bennett was "arrested and housed in the Forsyth County Jail,” the question "Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?” is not Hendrix's subjective interpretation of these facts. Hendrix’s own testimony undermines his argument, as he admitted at trial that being arrested did not make an individual a "convicted criminal." The challenged language is not protected under the First Amendment as pure opinion. . The First Amendment, however, may still provide protection to false factual assertions depending on the person whom the speech concerns and the culpability of the speaker. See Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706-07. Again, in this case, we only determine the type of speech involved and whether the First Amendment provides protection for it. . Hendrix has raised a number of alternative arguments on appeal. Specifically, he contends (1) he is entitled to judgment as a matter of law because the fliers did not constitute libel per se and Bennett and Reid offered no proof of special damages; (2) he is entitled to judgment as a matter of law because Bennett and Reid failed to prove actual injury; and (3) he is entitled to a new trial or remittitur because the verdict was excessive, the district court erred in refusing to allow evidence of a clarification and in refusing to charge presumed damages are a rebuttal presumption, and there was confusion of issues for the jury. We need not address these issues because the district court did not consider them in granting Hendrix judgment as a matter of law on the ground the fliers were protected by the First Amendment. Hendrix preserved all his arguments challenging the jury verdict in his Motion for Judgment as a Matter of Law, or Alternatively, a New Trial, or Alternatively, to Amend Judgment, and thus we remand for the district court to consider these issues in the first instance. PRYOR, Circuit Judge, concurring in part and dissenting in part: I would affirm the judgment as a matter of law entered against Reid and Bennett. I do not see a critical difference between flyer 2 and the other flyers. Flyer 2 uses the term “convicted criminals” on the front alongside a photograph of Danny Bennett, but the other flyers use the terms “convicted felons” and “convicted criminals” on the same page that has a photograph Bennett. What protects the other flyers is the explanation beneath the photograph of Bennett (“Arrested and housed in the For-syth Jail, Bennett gave Paxton hundreds for his smear campaign on two occasions.”), but a nearly identical explanation (“This man, arrested and housed in the Forsyth County Jail, gave hundreds in cash to Paxton’s campaign on two different occasions.”) appears below the photograph of Bennett on the front of flyer 2. That explanation is important to all the flyers because all the flyers also display a photograph of at least one convicted felon. We should not read the front of flyer 2 in isolation. The flyer has two pages, front and back. The two sides should be read together for the same reason that we read the statements and photographs on each side of each flyer together. The front of flyer 2 uses the term “convicted criminals,” and the back of the flyer has a photograph of a convicted criminal. The front of the flyer has a truthful assertion immediately below the photograph of Bennett (“This man, arrested and housed in the Forsyth County Jail, gave hundreds in cash to Paxton’s campaign on two different occasions.”). The reference to “convicted criminals” on the front of the flyer does not name or identify anyone. The reference to convicted criminals is included in a general question (“Should a Candidate for Sheriff finance his campaign using cash from convicted criminals?”) that is answered on the back of the flyer (“Ted Paxton thinks so.”). The answer on the back appears on the same page with the photograph of Julien Bowen and a caption that identifies him as a convicted criminal (“Defeated Commissioner plead guilty to kidnapping his wife at gunpoint. His contributors are now giving thousands to Pax-ton.”). The answer on the back also appears above the general question, “It’s scary isn’t it?”, followed by the statement, “A candidate for Sheriff taking money from convicted criminals and their associates.” The question on the front of flyer 2 is a common ploy in political propaganda that invites the reader to turn over the flyer and read the back. All three flyers use this ploy. The front of flyer 1 uses the beginning of a statement (“You know your Sheriff is doing a good job when ...”) that is finished on the back of the flyer (“... criminals are supporting his opponents [sic] campaign.”). The front of flyer 3 uses a question (“What do you think?”) that is followed by a more specific question on the back (“Should this Gang run your Sheriffs Office?”). An average reader would consider that the nature of the medium, a campaign flyer, presents rhetorical hyperbole, and that reader would assume that Sheriff Dennis Hendrix placed the most damning assertion possible below the photograph of each person depicted. The reader would see the reference to convicted criminals in the general question on the front of flyer 2, but would also see that the most damning assertion about Bennett is that he had been arrested and housed in the jail. The reader also would read the answer on the back of the flyer alongside a photograph of a person identified as a convicted criminal. I admit that this question is a close one, and I fully concur in the other aspects of the majority opinion. Perhaps the district court will be able to resolve this controversy on one of the alternative grounds for a judgment as a matter of law. A new trial of the claim of defamation as it relates only to flyer 2 several years after the election in which Hendrix was defeated would appear to be a colossal waste of resources. I respectfully dissent from that part of the majority opinion that reverses the judgment as a matter of law against Bennett’s complaint of defamation.

PER CURIAM: Lyle Kevin Bridgewater, Texas prisoner # 1398768, appeals from the dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915A(b)(l). He moves this court for the appointment of counsel and to have his case remanded for a jury trial before a different judge in the district court. The district court is directed to dismiss a complaint filed by a prisoner if the complaint is frivolous or fails to state a claim upon which relief may be granted. See id. § 1915A(b)(l). Because Bridgewater’s claims were dismissed pursuant to Section 1915A, this court’s review is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005). A complaint is frivolous “if it lacks an arguable basis in fact or law.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir.1999) (internal quotation marks omitted). This appeal involves Bridgewater’s claims that prison officials were deliberately indifferent to his claims that his life was endangered following a fight with a gang-affiliated fellow inmate, and that this deliberate indifference resulted in physical harm to him. Contrary to Bridgewater’s assertions that prison officials totally ignored the danger to his life, prison officials moved Bridgewater to a new housing pod where the inmate with whom Bridgewater fought was not housed. There is no evidence in the record that the prison officials who changed Bridgewater’s housing assignment actually inferred from the facts stated by Bridgewater that Bridgewater faced a substantial risk of harm from other gang members as a result of the fight. Absent evidence of such an inference and in light of prison officials’ attempt to protect Bridgewater by changing his housing assignment, Bridgewater’s deliberate indifference claims were correctly dismissed as frivolous. See Farmer v. Brennan, 511 U.S. 825, 882-34, 837, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir.1996) (en banc); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.1990). The dismissal of Bridgewater’s complaint is affirmed, and his outstanding motions are denied. For purposes of the three-strikes provision of Section 1915(g), the district court’s dismissal under Section 1915A counts as a strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Accordingly, Bridgewater is warned that if he accumulates three strikes he may not thereafter proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). AFFIRMED; ALL OUTSTANDING MOTIONS DENIED; SANCTION WARNING ISSUED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Johnnie Lee Allen appeals the denial of his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Allen, who was sentenced as career offender, based his motion on Amendment 706 to the sentencing guidelines, which reduced the base offense levels applicable to crack cocaine offenses. Allen contends that the district court should have realized when it evaluated his eligibility for a sentence reduction that his original sentence exceeded the statutory maximum permissible for the charged offense both because the indictment failed to allege a specific drug amount and because the government failed to file a notice of enhancement pursuant to 21 U.S.C. § 851. He argues that the district court should have lowered his sentence for this reason. Because § 3582(c)(2) proceedings are not de novo resentencings, Allen’s arguments about alleged flaws in his original sentencing determinations do not permit a sentence reduction. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir.2000). Nor is Allen eligible for a sentence reduction under Amendment 706. His sentence was based on the career-offender provisions in U.S.S.G. § 4B1.1 instead of the drug quantity table in U.S.S.G. § 2D1.1, so Amendment 706 did not have the effect of lowering his guideline range. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008), cert. denied, McFadden v. United States, — U.S.-, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009). Thus the district court properly denied Allen’s § 3582(c)(2) motion. AFFIRMED.

PER CURIAM: Travis Le-Ron Carrington appeals the district court’s order denying his motion for sentence reduction pursuant to Amendment 706. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Carrington, No. 3:00-cr-00388-JRS-2 (E.D. Va. Jan 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

MEMORANDUM Marlon R. Lee appeals from the district court’s denial of his motion to reduce his 120-month sentence pursuant to 18 U.S.C. § 3582(c)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Lee’s counsel has filed a brief stating there are no arguable grounds for relief, along with a motion to withdraw as counsel of record. Appellant filed a pro se supplemental brief, and the government did not file an answering brief. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Counsel’s motion to withdraw is GRANTED, and the district court’s order is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Anthony Diggs, through counsel, appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. Diggs’s motion was based on Amendment 706 to the sentencing guidelines, which reduced the base offense levels applicable to crack cocaine offenses. Diggs now concedes that he is ineligible for a sentence reduction under Amendment 706 because he was sentenced as a career offender under United States Sentencing Guidelines § 4B1.1, but he seeks to preserve his claim that the district court erred for further review. As Diggs concedes, the district court did not err in denying his motion for sentence reduction because he was sentenced as a career offender, and thus the crack cocaine offense level played no ultimate role in his sentence. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008) (“Where a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence. Here, although Amendment 706 would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under § 4B1.L”), cert, denied, McFadden v. United States, — U.S.-, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009). AFFIRMED.

MEMORANDUM Mohammed Edy Safil, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review. The record does not compel the conclusion that Safil has established extraordinary circumstances that excuse the untimely filing of his asylum application. See 8 C.F.R. § 208.4(a)(5); see also Husyev v. Mukasey, 528 F.3d 1172, 1181-82 (9th Cir.2008). Accordingly, his asylum claim fails. Substantial evidence supports the agency’s adverse credibility determination because the discrepancy between Safil’s testimony and his psychologist’s evaluation regarding whether he had been exiled to a small village and abused daily, is a material inconsistency that goes to the heart of his claim. See Pal v. INS, 204 F.3d 935, 940 (9th Cir.2000); Li, 378 F.3d at 962 (adverse credibility determination is supported where at least one of the identified grounds is supported by substantial evidence and goes to the heart of the claim). In the absence of credible testimony, Safil has failed to establish that he is eligible for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Because Safil’s CAT claim is based on the testimony the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if returned to Indonesia, his CAT claim fails. See id. at 1156-57. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Luis Napoleon Zavala Perla, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo whether a particular conviction constitutes an aggravated felony, Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002), and we review for substantial evidence the factual determinations underlying a denial of CAT relief, Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.2008). We deny the petition for review. The agency did not err in finding Zavala Perla removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because his conviction under 18 U.S.C. § 1708 categorically constitutes a theft offense and Zavala Perla was sentenced to a term of imprisonment of at least one year for his crime. See 8 U.S.C. § 1101(a)(43)(G); Randhawa, 298 F.3d at 1153-54. A reasonable factfinder would not be compelled to reverse the agency’s denial of CAT relief because Zavala Perla has not shown that it is more likely than not that he would be tortured if returned to El Salvador. See Lemus-Galvan, 518 F.3d at 1084. We need not reach Zavala Perla’s remaining contentions because he does not challenge the agency’s determination that he is ineligible for asylum and withholding of removal due to his criminal convictions. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

OPINION ELLIS, Senior District Judge. Anthony Corbin appeals his 50-month sentence for making a threatening commu nication in violation of 18 U.S.C. § 875(c), arguing that: (i) the District Court erred in imposing Corbin’s sentence based on, inter alia, Corbin’s lack of personal values, immaturity, and poor attitude towards personal relationships; (ii) the District Court erred by imposing a longer term of incarceration based on Corbin’s need for mental health treatment; (iii) the District Court erred by improperly considering acquitted conduct as a basis for Corbin’s sentence; and (iv) Corbin’s 50-month sentence, which was above the advisory Sentencing Guidelines range of 10 to 16 months, was substantively unreasonable. For the reasons stated here, we affirm. I. Because we write solely for the benefit of the parties, we only briefly summarize the essential facts and procedural history. On December 14, 2006, a grand jury returned a two-count indictment against Corbin, charging him with (i) a July 9, 2004, bank robbery of a Commerce Bank in Point Pleasant, New Jersey, in violation of 18 U.S.C. §§ 2113(a) and 2 (“Count One”); and (ii) making a threatening communication to his ex-girlfriend on November 11, 2006, in violation of 18 U.S.C. § 875(c) (“Count Two”). Corbin pled not guilty to both counts. The case proceeded to trial, and on May 9, 2007, a jury acquitted Corbin on Count One and convicted him on Count Two. During the course of the trial, Corbin testified in his own defense and acknowledged, inter alia, (i) that during a November 11, 2006, phone conversation with his ex-girlfriend, who is also the mother of his son, Corbin threatened to kill her and her family; and (ii) that during a November 18, 2006, phone conversation with the same ex-girlfriend, he referred to “stolen bank money” he obtained when he had previously “robbed the banks.” Appellant’s App. (App.) 190-192, 364. With respect to the threat to kill his ex-girlfriend and her family, Corbin testified that he never intended to follow through; rather, he claimed that the death threat was an overly emotional reaction to the former couple’s ongoing dispute regarding the care, custody, and visitation of their son. With respect to the bank robbery references, Corbin testified that he had never robbed any banks; rather, he claimed that he used the word “bank” as slang for a narcotics “stash house” and that he had robbed such stash houses on multiple previous occasions. Id. at 191. Following the jury’s guilty verdict on Count Two, a presentence investigation report (PSR) was prepared. The PSR calculated Corbin’s total offense level for the count of conviction as 12 and his criminal history category as I, resulting in an advisory Guidelines range of 10 to 16 months. On January 8, 2008, Corbin appeared for sentencing, at which point the government urged the District Court to impose a variant sentence above the advisory Guidelines range. Specifically, the government argued that a variant sentence closer to the 60-month statutory maximum was justified by a proper weighing of the 18 U.S.C. § 3553(a) factors because, inter alia, (i) “the venom, the hatred, [and] the animosity” of the threatening communication in this case warranted increased punishment; and (ii) the District Court should consider the acquitted conduct charged in Count One, which the government argued had been proven by a preponderance of the evidence, in evaluating Corbin’s history and personal characteristics. Id. at 309. Corbin objected to the government’s request, both on the basis that the government had not provided prior notice of its intention to seek a variant sentence and on the basis that proper weighing of the § 3553(a) sentencing factors did not justify a variant sentence in this case. Corbin, by counsel, argued that the District Court should consider various mitigating factors, including Corbin’s mental health problems and physical abuse he suffered as a child. After hearing from both parties, the District Court observed that the advisory Guidelines range appeared “inadequate for punishment for this defendant” and that it was necessary to “consider how close to the [five-year] maximum this sentence should be.” Id. at 311-12. In light of those views, the District Court continued the sentencing and afforded both parties an opportunity to submit written memo-randa on the questions presented by the government’s request for a variant sentence. The parties complied, and approximately five weeks later, on February 13, 2008, Corbin reappeared for sentencing. The government again urged imposition of a variant sentence above the advisory Guidelines range and near the five-year statutory maximum, arguing, inter alia, (i) that the seriousness of this particular offense— a death threat—justified increased punishment; (ii) that the acquitted conduct charged in Count One, which was proven by a preponderance of the evidence at trial, warranted a longer term of incarceration; and (iii) that Corbin’s history and characteristics—including his claim when testifying in his own defense that he had robbed drug stash houses on multiple occasions—suggested that an increased term of imprisonment was necessary to protect the public. Corbin responded, by counsel, arguing that a variant sentence was not justified, inter alia, because: (i) consideration of acquitted conduct would violate his Sixth Amendment jury trial rights; (ii) the convicted offense conduct was a result of “extreme frustration based on the fact that [the ex-girlfriend] was unwilling to let Mr. Corbin see their child”; (iii) Corbin never intended to carry out the threat; (iv) Corbin turned himself in to authorities upon learning of the warrant issued for his arrest; (v) Corbin was depressed in November 2006 as a result of his mother’s March 2006 passing; and (vi) Corbin suffered both from childhood physical • abuse and from severe emotional problems. Id. at 328. In addition, during the course of allocution, Corbin discussed that during his incarceration pending trial and sentencing, he had sought out counseling, been put on psychotropic medications, and received treatment for his emotional and mental problems. The District Court questioned Corbin -with respect to whether he provided financial support to his son, and Corbin acknowledged that although he occasionally provided some support, his ex-girlfriend was his son’s primary provider. Following allocution, the District Court imposed a 50-month term of incarceration. In discussing the basis for the sentence imposed, the District Court first observed that § 3553 requires a sentence that, looking to the seriousness of the offense conduct, both promotes respect for the law and provides just punishment for the offense. In that respect, the District Court cited the “intensity” and “serious” nature of Corbin’s threat to kill his ex-girlfriend and her family as warranting increased punishment. Id. at 336. In addition, the District Court rejected Corbin’s proffered justification for his actions—that he was emotionally distraught over not seeing his son—because the District Court found the explanation was belied both by Corbin’s decisions “not to work[ ] [and] not to take responsibility as a father” and by Corbin’s apparent “feel[ing] that he shouldn’t have to go to the trouble of coming to visit his son.” Id. at 337. The District Court also emphasized that the sentence imposed must both “afford adequate deterren[ce]” and “protect the public from further crimes of this defendant.” Id. In that regard, the District Court noted an “overall impression” of Corbin that was “negative[.]” Id. at 336, 337. The District Court based this observation primarily on Corbin’s “lack of character” and “lack of maturity” that became evident during his trial testimony. Id. at 337. Although the District Court noted both the need to avoid “unwarranted sentence disparities among ... defendants with similar records” and the reality that Corbin did “not have a criminal history that would prompt the Court to punish him as a repeat offender,” the District Court found that Cor-bin’s testimony demonstrated a “proclivity to violence” that warranted a longer term of incarceration. Id. at 338. Specifically, the District Court found that Corbin’s willingness during his trial testimony to claim “in a very relaxed way” that he had committed prior criminal acts justified an increased term of imprisonment. Id. With respect to the acquitted conduct charged in Count One, the District Court observed as follows: Now, the acquitted conduct, the bank robbery in New Jersey for which the jury did not find proof beyond a reasonable doubt, certainly there was proof by a preponderance of the evidence.... But I’m not sure it’s necessary to rely upon that in imposing a higher than [Guideline sentence in this case because [Corbin] revealed such a lack of maturity, a lack of self-control, a lack of personal values when he testified. Id. at 337-38. Finally, the District Court observed that Corbin was “in need of correctional treatment” and that “it would be helpful, clearly, for [Corbin] to have the benefit of the kind of counseling and corrective treatment that he could receive” during any period of incarceration. Id. at 338. Corbin filed his timely notice of appeal the next day, and four days later, the District Court filed a written explanation of reasons for the variant sentence imposed. The District Court essentially reiterated the bases elucidated at the sentencing hearing, including, inter alia, (i) Corbin’s “violent volatile personality” and “lack of personal values”; (ii) the “hypocritical” nature of Corbin’s explanation for his actions, which the District Court found to be part of “a struggle for power or a self-image struggle rather than a display of fatherly love or frustration”; and (iii) Corbin’s “unwillingness to take responsibility for his actions[.]” Id. at 6. The written explanation confirmed that the District Court imposed the variant sentence “without relying upon” the acquitted conduct charged in Count One, and the District Court again observed that Corbin “would benefit from anger management counseling and parental responsibility counseling” while incarcerated. Id. ii. We exercise appellate jurisdiction over Corbin’s claims of sentencing error under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our standard of review differs based on whether the alleged sentencing error was raised below. If so, we review for abuse of discretion; if not, we review for plain error. See United States v. Lloyd, 469 F.3d 319, 320 (3d Cir.2006). Where we review for abuse of discretion, “our role is two-fold.” United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). First, we must “ensure that the district court committed no significant procedural error” in imposing sentence. Id. Second, “[i]f we determine that the district court has committed no significant procedural error, we then review the substantive reasonableness of the sentence[.]” Id. at 218. With respect to the first inquiry, a district court commits significant procedural error by, inter alia, failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), quoted in Wise, 515 F.3d at 217. Of course, “we do not defer to a district court when the asserted procedural error is purely legal,” and. “a district court will be held to have abused its discretion if its decision was based on ... an erroneous legal conclusion.” Wise, 515 F.3d at 217 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). With respect to the second inquiry—review of a sentence’s substantive reasonableness—we review for abuse of discretion “regardless of whether [the sentence] falls within the Guidelines range.” Id. at 218 (citing Gall, 128 S.Ct. at 597). Accordingly, “[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Id. Where we review for plain error, we have described the analysis as follows: There must be an error that is plain and that affects substantial rights. The deviation from a legal rule is error, and an error is plain if it is clear or obvious. In most cases, an error affects substantial rights if it is prejudicial, ie., affected the outcome of the district court proceedings .... We will exercise our discretion and vacate the sentence if the plain error affecting substantial rights also seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Evans, 155 F.3d 245, 251 (3d Cir.1998) (internal quotations and citations omitted), quoted in United States v. Voelker, 489 F.3d 139, 153-54 (3d Cir.2007). With these principles in mind, we turn to Corbin’s allegations of sentencing error. III. Corbin’s first argument, distilled to its essence, is that the District Court committed significant procedural error by imposing sentence based on Corbin’s personal values, character, maturity level, and attitude towards personal relationships—factors that Corbin argues are irrelevant under § 3553(a). We disagree. Specifically, we see no distinction between § 3553(a)(l)’s specific mandate that district courts consider the “history and characteristics of the defendant” and the District Court’s evaluation in this case of Corbin’s values, character, maturity level, and attitude towards personal relationships. Indeed, it is clear that the District Court’s findings with respect to Corbin’s history and personal characteristics were relevant to the determination that a variant sentence was necessary to reflect the seriousness of the offense, to afford adequate deterrence, and to protect the public. See § 3553(a)(2)(A)-(C). Specifically, the District Court relied upon an assessment of Corbin’s credibility in rejecting his “hypocritical” attempt to mitigate the seriousness of his offense conduct by arguing that he made the threats out of frustration and love for his son. App. 6. The Distinct Court also relied on observations about Corbin’s values, character, and maturity level in finding that his “proclivity to violence” justified an increased sentence for both deterrence and incapacitation purposes. Id. Accordingly, because the District Court’s consideration of Corbin’s values, character, maturity level, and attitude towards personal relationships was consistent with § 3553(a)’s mandates, we find no procedural error—let alone a significant procedural error—in this regard. IV. We find Corbin’s second argument—that the District Court committed significant procedural error by imposing a longer term of incarceration based on Cor-bin’s need for mental health treatment—to be equally without merit. To be sure, Corbin correctly cites our holding in United States v. Manzella, 475 F.3d 152, 162 (3d Cir.2007), that district courts are prohibited from “effecting ... rehabilitative goals ... either in sentencing a defendant to a term of imprisonment or, if a term of imprisonment is otherwise to be imposed, in determining the length of that term.” Yet, our review of the record makes it pellucidly clear that the District Court did not do so here. Rather, the District Court merely observed that during any term of incarceration, Corbin would benefit from mental health treatment and counseling. See United States v. Watson, 482 F.3d 269, 275 (3d Cir.2007) (observing that the “mere fact that a [district] court may take into account or mention correction or rehabilitation along with other factors in arriving at or explaining its [overall] sentence” does not demonstrate that the district court imposed a term of incarceration, or determined the length of that term, for rehabilitative purposes (emphasis in original)). Moreover, both Corbin and his counsel raised his need for mental health treatment at sentencing as a mitigating factor, and the District Court’s observation that Corbin could receive such treatment while incarcerated was not a procedural error—let alone a significant procedural error—in imposing sentence. V. Next, we find it unnecessary to address Corbin’s third argument—that sentencing Corbin based on the acquitted conduct charged in Count One constituted significant procedural error because it violated his Sixth Amendment jury trial rights— because we find that the District Court did not impose the variant sentence based, on that conduct. Indeed, the District Court stated at sentencing that it was not necessary to rely on that conduct, and the District Court’s written statement of reasons plainly confirmed that the acquitted conduct was not the basis for the variant sentence imposed. Accordingly, we need not address the parties’ arguments with respect to the appropriateness of considering acquitted conduct at sentencing. VI. Corbin’s final argument is that even absent a finding that the District Court committed significant procedural error, we should nonetheless reverse the 50-month variant sentence imposed here on the basis that it was substantively unreasonable. We disagree. Importantly, we are mindful of the Supreme Court’s holding in Gall that in reviewing variant sentences for substantive reasonableness under the appropriate abuse-of-discretion standard, we must “give due deference to [a] district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” 128 S.Ct. at 597. This is sensible, as “ ‘the sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant.]’ ” Id. at 597-98 (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007)). Indeed, in determining whether a variance is justified by “the totality of the circumstances,” it is clear that “ ‘[district courts have an institutional advantage over appellate courts[.]’ ” Id. at 597, 598 (quoting Koon, 518 U.S. at 98, 116 S.Ct. 2035). Accordingly, “[t]he fact that [an] appellate court might reasonably ... conclude[ ] that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. at 597. With these principles in mind, we find that the District Court imposed a substantively reasonable sentence when it found that a variant sentence of 50 months was sufficient, but not greater than necessary, to reflect the seriousness of Corbin’s death threat, to provide just punishment for that threat, to afford adequate deterrence, and to protect the public. Indeed, we find it difficult to imagine a more serious threatening communication than the one Corbin made—to murder his ex-girlfriend and her family—and it is understandable that the District Court found a variant sentence to be just punishment for that threat. Moreover, in light of the District Court’s superi- or institutional position from which to assess the import of Corbin’s trial testimony, we see no reason to disagree with the finding that Corbin’s apparent proclivity to violence, immaturity, lack of values, and poor attitude towards personal relationships justified a variant sentence to afford adequate deterrence and to protect the public from further crimes by Corbin. Accordingly, we find that the 50-month variant sentence imposed here, reviewed for abuse of discretion, was substantively reasonable. VII. For the foregoing reasons, we affirm the District Court’s judgment. . Although the indictment also charged a co-defendant on Count One, that defendant was acquitted at trial, and his involvement in the trial is immaterial to this sentencing appeal. . The record reflects some dispute at sentencing regarding whether Corbin should have received a two-point reduction for acceptance of responsibility. Corbin did not ultimately receive that reduction, and he has not challenged that ruling on appeal. Accordingly, we need not address the issue here. . Not surprisingly, Corbin cites no authority, nor have we found any, supporting his argument that the District Court's consideration of his history and personal characteristics was inappropriate. This is sensible, as Corbin's argument, if accepted, would lead to an unwarranted, restrictive interpretation of Congress’s broad mandate in § 3553(a)(1) that a district court consider a defendant's personal history and characteristics in tailoring a sentence that furthers the goals enumerated by § 3553(a)(2). . Although the parties devote substantial effort to the appropriate standard of review for this argument, we need not resolve the parties’ dispute in this regard, as we find that the District Court committed no error—plain or otherwise—in considering Corbin's values, character, maturity level, and attitude towards personal relationships in imposing sentence. . Again, although the parties devote substantial effort to the appropriate standard of review, we need not resolve the parties’ dispute in that regard, as we find that the District Court did not rely on Corbin’s need for mental health treatment in imposing a term of incarceration or in fixing the length of that term. . It is worth noting that it appears a district court may, in fact, base a sentence on acquitted conduct provided that conduct has been proven by a preponderance of the evidence and the sentence imposed is within the statutory range for the convicted offense. See, e.g., United States v. Grier, 475 F.3d 556, 567-68 (3d Cir.2007) (reliance on facts that may constitute a "separate offense," if considered in sentencing within the statutory range for the convicted offense, "do[es] not implicate the rights to a jury trial and proof beyond a reasonable doubt” because those facts “do not constitute 'elements’ of a 'crime' ” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000))), quoted in United States v. Jimenez, 513 F.3d 62, 88 (3d Cir.2008) and United States v. Ali, 508 F.3d 136, 145-46 (3d Cir.2007); see also United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Martinez, 525 F.3d 211, 215 (2d Cir.2008) (citing Grier, 475 F.3d at 567-68); United States v. White, 551 F.3d 381, 384-85 (6th Cir.2008) (same).

MEMORANDUM Albert Truax appeals from the district court’s order recommitting him to a federal medical center for no more than 45 days for the completion of a dangerousness assessment pursuant to 18 U.S.C. § 4246(a). The district court previously determined under 18 U.S.C. § 4241(d) that Truax was incompetent to stand trial on federal criminal charges. We recently decided questions indistinguishable from those presented in this appeal. See United States v. Godinez-Ortiz, Nos. 08-50337, 08-73791, slip op. (9th Cir. Apr. 29, 2009). We have jurisdiction under the collateral order doctrine, and we affirm the district court order and deny the petition for writ of mandamus. See id. AFFIRMED AND DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Kay (Katie) Wooten and Ronnie Wooten were long-time employees of Federal Express in the Dallas/Fort Worth area. The Wootens allege that because of their interracial relationship, their co-workers and supervisors harassed them, disciplined them, denied them positions for which they were qualified, and ultimately terminated their employment. The Wootens brought their claim in the United States District Court for the Northern District of Texas. The court granted summary judgment to FedEx on some claims and sent the rest to trial. A jury found for FedEx on all counts. The Wootens timely appealed. I Katie Wooten began working at FedEx as a part-time courier in May 1984 in Garland, Texas. After becoming a full-time courier, she successfully applied to transfer to the Dallas Fort Worth Ramp Transit Station in March 1999, working as a part-time ramp transport driver and then in a part-time night heavyweight freight delivery position. Ronnie began working for FedEx in October 1993 and had a similar trajectory, moving from part-time courier to full-time ramp transport driver and finally to part-time night heavyweight freight delivery. He worked at the same station as Katie. Katie and Ronnie began dating in May 2000, and married in June 2001. They allege that before and after they married, co-workers subjected them to frequent teasing, comments, and insults related to their relationship, including some related to their interracial status. From about the time they started dating, and intensifying after their marriage, their work situation deteriorated. They clashed with their co-workers and supervisors more and more often, until the situation came to a head in 2003, with several conflicts with co-workers, attendant meetings with managers, and formal grievance and disciplinary processes. Their status as an interracial couple came up several times in the course of these dealings with co-workers and managers—although, as we will discuss, it was not a prominent component of the tensions, the meetings, the complaints, or the other formal and informal contacts between the Wootens and FedEx. On December 16, 2003, FedEx fired Ronnie for receiving his third disciplinary “performance reminder” for a delivery failure, but after Ronnie complained of failure to abide disciplinary procedural rules, senior management reduced the discipline to a five-day suspension without pay. Nine weeks later, FedEx fired both of them for falsifying records and driving outside of their delivery area. Katie and Ronnie each filed an Equal Employment Opportunity Commission complaint on March 5, 2004, alleging that they were discharged because of their interracial relationship in violation of Title VII of the Civil Rights Act of 1964. Ronnie’s complaint included allegations of harassment and discrimination dating from September 2001. The EEOC issued a right-to-sue letter and this suit followed. The Wootens allege violations of Title VII, the Texas Commission on Human Rights Act, 42 U.S.C. § 1981, and the common law tort of intentional infliction of emotional distress. By order of January 7, 2007, 2007 WL 63609, Judge Sidney A. Fitzwater of the United States District Court, in a careful, sixty-six page Memorandum opinion, dismissed the TCHRA claims, Katie and Ronnie’s hostile work environment claims, their Title VII failure to promote claims, Katie’s retaliation claims under Title VII, Ronnie’s discipline/suspension claim under Title VII and § 1981, and some of their retaliation claims. The court allowed Katie’s 2002 failure to promote claim under § 1981, both Wootens’ discriminatory termination claims, and some retaliation claims of both. On January 31, 2007 WL 273648, the court dismissed from the remaining claims the claims for intentional infliction of emotional distress. The remaining claims went to trial. A jury returned a verdict in FedEx’s favor, and the district court entered judgment for FedEx. II The Wootens appeal the district court’s grant of summary judgment on their hostile work environment claims, Ronnie’s discriminatory discipline claim, and Ronnie’s retaliatory termination claim. Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” On evaluating a motion for summary judgment, “[w]e resolve doubts in favor of the nonmoving party and make all reasonable inferences in favor of that party.” “No genuine issue of material facts exists if the summary-judgment evidence is such that no reasonable juror could find in favor of the nonmovant.” We review grants of summary judgment de novo, because the issue is one of legal sufficiency. A Ronnie Wooten claims he raised an issue of material fact as to a separate discriminatory punishment claim, for his termination of December 2003, which was subsequently reduced to a week suspension with partial back pay. The district court granted summary judgment on this claim insofar as it was separate from Ronnie’s later discriminatory termination claim, characterizing it as “essentially a compo nent of the termination claim....” For essentially the reasons it stated, we hold that the district court rightly judged that the latter termination, which the court allowed to go forward, was the crux of the claim, and that the Wootens otherwise failed to raise a genuine issue of material fact sufficient to allow a separate suspension claim to go forward. B To establish a hostile work claim, plaintiffs must demonstrate (1) that they were the members of a protected group, (2) that they were the victim of uninvited harassment, (3) that the harassment affected a “term, condition, or privilege” of their employment, and (4) that the employer knew or should have known of the harassment and failed to take prompt remedial action. “To be actionable, the challenged conduct must create an environment that a reasonable person would find hostile or abusive.” “[Wlhether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include 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.” The test requires that plaintiffs prove that a reasonable juror could find that the abusive conduct was severe or pervasive. The district court appears to have rested its judgment on the fact that the Wootens failed to raise any genuine fact as to whether the conduct in question was “severe or pervasive.” Many of the allegations that the Woo-tens claim should have survived summary judgment involve the behavior of their coworker Tony Garrett, an African-American man who served as freight coordinator at the station (an hourly-paid, non-managerial post ). The allegations involve fre quent inappropriate comments by Garrett and other individuals in the office, as well as by oppressive actions of Garrett regarding work assignments. Garrett’s comments involve race: “jungle fever,” a phrase made famous by the Spike Lee movie of that name, is a reference to interracial romantic attraction. And in context, especially when Ronnie reports that he asked Garrett to stop, a reasonable juror could see it as more than mere teasing; it can be understood to express a core of virulent and longstanding disapproval of interracial romantic relationships. The butt of such “jokes” would be understandably sensitive, and could reasonably interpret the remarks as hostile, even intimidating. But deposition testimony suggest that the comments by Garrett tapered off or ceased after the Wootens’ marriage, before any complaints about possible interracial discrimination to management. Thus, even if the district court was wrong and the comments could amount to “severe or pervasive” abusive workplace conduct, Ronnie’s failure to put management on notice contemporaneously would doom this part of the Wootens’ claim. As far as the allegedly oppressive work assignments, construing the deposition testimony in the Wootens’ favor, the actions themselves were largely or entirely race-neutral. The Wootens’ complaints as to these actions similarly offer only brief glimpses of allegations of possible prejudice against their interracial relationship, and any inference of racial animus appears to be entirely subjective, not supported by any comments or actions. We stand in an uncomfortable but familiar place for courts adjudicating discrimi-. nation claims, faced with inappropriate, offensive remarks not legally sufficient to sustain a claim. The difficulty of evaluating discrimination claims at the summary judgment stage is well known and derives from obvious sources, namely the importance of “he said / she said” credibility determinations. We remain keenly aware that “[wjhether ... allegations are too vague to ultimately carry the day is a credibility determination, or requires weighing the evidence, both of which are more appropriately done by the trier of fact.” That said, there must on the full record of the case at hand be a genuine issue of fact for the jury. The Wootens offer evidence of workplace incidents, conflicts, and complaints, the vast majority of which do not directly or under any reasonable inference involve racial animus. The connection between Garrett’s and other co-workers’ race-based comments, and the more serious workplace actions such as unfavorable shifts and so on, is weak to non-existent. There is thin evidence that possible racial discrimination was complained about, amidst many other complaints, and well after the brunt, and perhaps after all, of the racial comments and innuendo had abated. We would not lay down a rule that verbal comments could never lead to inferences of racial motivation; nor do we hold that frequent racial comments, even meant in jest, cannot support a finding of hostile work environment; nor, finally, do we intend to establish a new baseline for what sort of comments and conduct do not qualify as “severe or pervasive.” Close analysis of the summary judgment evidence presented is required in these cases, and such analysis, of a voluminous amount of evidence in this case, especially the time line of racial comments, adverse actions, and complaints, here leads us to our answer, inescapably. As for the alleged hostile work environment created by Peyton, insofar as it must be separated from the claims regarding Garrett, this claim too must fail because of the utter lack of demonstration that race was involved in Peyton’s animus. True, the harassment seems to have begun in temporal proximity to a complaint that the Wootens were the objects of racial discrimination, but close examination of the evidence in record, including the Wootens’ own complaints about Peyton, fail to raise any genuine possibility that Peyton was herself motivated by racial animus. There is no evidence that any dislike or unfavorable treatment was racially motivated. However obnoxious her behavior may have been, no reasonable juror could find that it was tied to race. C The Wootens apparently seek review of the district court’s summary judgment on Ronnie’s retaliation claim relating to his December 2003 suspension, commuted to a two-day suspension. We are not persuaded that this claim is separate from the retaliation claim that was allowed to proceed. The Wootens offer no citation to any point where the district court erred. Ill The Wootens seek relief on numerous other grounds, including the prejudicial admission of irrelevant evidence, failure to render a judgment as a matter of law or order a new trial, and the failure to strike a racially biased venire member for cause. All of these grounds are preserved in some form in the record below and are reviewed for abuse of discretion. Appellants also claim their trial was tainted by perjury and subornation of perjury, leveling charges at witnesses and counsel for the appellees. All of these claims are merit-less. A The district court refused to strike venire member Paul for cause, forcing the Wootens to exercise a peremptory strike against Paul, leaving them unable to strike a possibly racially biased venire member, schoolteacher Morris. The voir dire relevant to the challenge of Paul ran thus: THE COURT: Hello, Mrs. Paul. You indicated that you had strong feelings about interracial marriage; is that correct? PROSPECTIVE JUROR PAUL: Well,— THE COURT: Unless I confused you with Mrs. Ivie. PROSPECTIVE JUROR PAUL: I think you did. THE COURT: Do you know of any reason you can’t be fair and impartial in this case? PROSPECTIVE JUROR PAUL: Well, no. I think I could be. THE COURT: All right. I think I confused you with Mrs. Ivie. Do you have any questions? MS. LASTER: I had the same note, ma’am. Are you sure you didn’t say you had strong feelings about interracial relationships? Because I wrote that down for you as well as Ms. Ivie. PROSPECTIVE JUROR [PAUL]: Well, I believe a robin should be with a Robin [sic], but there are a lot of people that are marrying interracially, and so I can’t—I can’t live their life for them. I have to live mine. MS. LASTER: Okay. So you do have feelings that interracial relationships are not right? PROSPECTIVE JUROR [PAUL]: It’s just not for me, and my family. I’ll just put it that way. MS. LASTER: Okay. PROSPECTIVE JUROR [PAUL]: But, you know, that’s somebody else’s prerogative, that’s fine. I don’t hold anything against 'em. THE COURT: Would you have any difficulty in—if I instruct you that the law prohibits discrimination based on interracial relationships, you have any problem applying that law? PROSPECTIVE JUROR [PAUL]: No. ... [Prospective juror exits.] THE COURT: Is there any challenge to the juror? MS. LASTER: Yes, judge. She lied, for one thing. I heard it and you heard it, and my clients heard her say the first time she had strong feelings about interracial relationships, and gets up here and says she doesn’t at first and finally admits it. I don’t trust anything she said through the whole voir dire process. THE COURT: I’m not sure it was a lie. There are jurors who hear things or misunderstand things for a number of reasons, and I’ll overrule the motion. Paul’s striking statement of her conviction that “a robin should be with a Robin [sic]”—a quasi-proverbial statement insinuating that interracial marriage is somehow unnatural, contrary to the order of things—obviously has bearing on the Woo-tens’ case, given the centrality of their interracial relationship to their claims. Despite this, in light of Paul’s affirmation that she could be impartial and keep her personal preferences to herself, the court refused to strike her for cause. It was then the Wootens’ decision to spend a peremptory to strike Paul, leaving them unable to strike Morris, a schoolteacher, whose voir dire ran thus: COURT: Is there anyone on the panel who has ever personally been accused of discrimination or retaliation, whether that accusation was right or wrong, had merit or no merit whatsoever? All right. On the first row, Mrs. Morris. PROSPECTIVE JUROR MORRIS: I’m a school teacher. I’m always prejudiced. Everything I do. THE COURT: Okay. And now let me ask you, is there anything about that that you think would prevent you from being fair and impartial in this case? PROSPECTIVE JUROR MORRIS: No. THE COURT: All right. Thank you. ‘ Morris’s comment suggests that she had been accused of prejudice or bias, but that she thought it in the normal course of her occupation to be accused of such things. There was no further investigation of why she might think this or how it might affect her judgment, and the record as it stands does not clearly establish that she should have been stricken for cause. The Woo-tens did not seek to challenge Morris for cause. The assertion that Morris might have been the object of a peremptory challenge is not probative here. The Supreme Court has directly held that a “wasted” peremptory does not taint a criminal trial, and its reasoning a fortiori applies here. There is no error. B The Wootens claim the district court abused its discretion in not setting aside the jury verdict, because FedEx failed to rebut the Wootens’ prima facie case of discrimination. There was ample evidence, both testimonial and documentary, that supported FedEx’s position, including on the issue of whether “delivery area” had sufficient meaning to support discipline against the Wootens. The Wootens had every opportunity to test this evidence at trial, and the jury was not unreasonable in finding that FedEx had rebutted the Wootens’ allegations of prejudice. C The Wooten’s quibble with the allegedly erroneous admission of evidence and testimony that they claim was prejudicial to their case. The evidence includes conflicting testimony regarding FedEx’s rationales for its decisions, an employment policy document on “falsification” signed by Katie Wooten in November 1990, and damaging notes from co-workers about the Wootens included in a report that was part of FedEx’s investigation of the Wootens. The challenged evidence and testimony were relevant to the central issues tested at trial. While the introduction of some of the evidence was, no doubt, prejudicial to the Wootens, none of it was not unduly so. The Wootens had ample opportunity to attack each piece of evidence at trial, and no doubt their efforts affected the weight the jury assigned evidence in coming to its determination. FedEx’s case was not nearly as troubled as the Wootens claim, and the central issues of this trial were carefully and thoroughly explored at trial. D The Wootens’ allegations of perjury, subornation of perjury, and misconduct are tenuous at best. Most of these allegations are reviewed for plain error, because they were not raised in the court below. The ones that were are reviewed for abuse of discretion. The standard of review is of no moment here, because the record below reflects no error. The Wootens’ briefs include numerous bits of testimony and argumentation taken out of context. The court gave the Wootens ample opportunity to challenge and undermine misleading testimony, and it properly instructed the jury regarding the import to be given to the statements of counsel. We find no errors, perjurious statements, or instances of misconduct that call for reversal of the judgment in this case. AFFIRMED. Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Katie is Caucasian and Ronnie is African American. . Katie was at the time separated from her husband, who at the time worked at her same station. They divorced in February 2001. . Fed.R.Civ.P. 56(c). The language of this subsection was amended effective December 1, 2007, after the district court's consideration of the summary judgment, but the change is not material for purposes of our review. . Jenkins v. Methodist Hosps. of Dallas, 478 F.3d 255, 260 (5th Cir.2007) (quoting Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir.2006)). . Jenkins, 478 F.3d at 260. . Hockman v. Westward Commc'ns, 407 F.3d 317, 325 (5th Cir.2004) (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir.1999)). . See Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). . Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996) . Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see E.E.O.C. v. WC & M Enterprises, 496 F.3d 393, 399-402 (5th Cir.2007). . The test involves an "or” and not an "and.” "Title VII provides a legal remedy to victims who establish that the abusive conduct was severe or pervasive.” Harvill v. Westward Commc'ns, 433 F.3d 428, 434-35 (5th Cir.2005) (providing citations to support the "or” as opposed to "and,” and noting that this is not "an irrelevant distinction”). At times the district court erred and misstated the test as requiring severe and pervasive conduct; but multiple times elsewhere it stated and applied the test correctly. In any case, our review is de novo, and we affirm on the merits, applying the proper test. . While they argue it repeatedly, the Woo-tens do not successfully demonstrate that Garrett was in fact a supervisor; even after considerable discovery, they merely assert that he "was given the authority by FedEx to assign the drivers’ deliveries and make decisions regarding their workload.” But the involvement of numerous other supervisors is clear throughout the record, as are the limits of Garrett’s powers (for instance, Katie Wooten admitted in deposition that he had no power to discipline her or evaluate her performance). On the other hand, FedEx construes language from Faragher v. City of Boca Raton, 524 U.S. 775, 803, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ("to hire and fire and set work schedules”) (quoting Estrich, Sex at Work, 43 Stan. L.Rev. 813, 854 (1991)), as if it laid out a necessary condition of a "supervisor” relationship, which it plainly does not. And of course, there may be de facto supervisors who do not bear that title. Not all exer cise of authority leads to an inference of a supervisory relationship, particularly when close monitoring is close at hand from other direct supervisors and managers. Some interdependence and inequality in authority among employees in a corporate enterprise is inevitable: not all dependence amounts to a legally sufficient "supervisor” relationship. No doubt, Garrett’s actions influenced the Wootens’ daily work environment, and thus his actions are serious, but based on the evidence before us Garrett was a co-worker and not a supervisor. . At deposition, Ronnie testified concerning the racial overtones of some of the comments made (by some women who worked in the office and by Garrett) about his and Katie’s relationship, before and after they began dating. The most favorable testimony for the Wootens is this (emphases added): Q: After you started dating what people made comments to you about—that referred to the fact that it was an inter-racial couple? A: Well ... this was like probably every other day with Tony Garrett. And this is how my morning would basically get started probably every other day for probably— probably up to the time me and her got married ... in 2001.... You know. I’d come in and, you know, they be in [the break room], Charlotte and sometimes Craig Harris will be in there. And Greg Arbet will be in there.... And I'll walk in there they’ll go, "Hey man, you know, here come Ronnie Wooten. Ronnie Wooten said he'll never date another black woman again.” And that was just about—I mean that was just about every other day. I would come in and—and he would do that..... Q: Tony Garrett would say that? A: Oh, yeah. Just about every other day.... And Regina said, "The only reason Ronnie would mess with a white woman is because they’ll do—them bitches will do anything you tell them to do." And I’m sitting there going like, “Oh, whatever man.” And like I said, me and Katie Wooten wasn't seeing each other then____ Q: So this was before you were seeing each other? A: This is before. Yeah, this is before---And then after we—you know, like Katie [testified], you know, they talk about the jungle fever. That—you know, I’d come in and Tony go, “Oh, here come Ronnie Wooten.” And he'll sing the jungle fever song. Q: He’d sing the song Jungle Fever? A: Yeah. And he’ll go back to the same statement, you know, "Ronnie said he’ll never date another black woman again.” And then all of a sudden Regina got to the point where she got tired of Tony saying it, you know, "I’m tired of hearing it.” And shit—“take that shit somewhere else.” And I don’t know, I—he still didn’t get the picture, but I mean up to—probably up to the time we got married he was—that was his famous line when I—when I come in____ Q: Okay. Were you pretty much known in the work place as a person that liked to kid around with his co-workers? ... A: Yeah. We played around a little bit. Q: Including Tony Garrett? A: Me and Tony—I've been knowing Tony since I was a DAL since 1993, so—we used to play basketball together and— Q: So he was a person that you joked around with in the work place? A: No, I wouldn't say that____ I joke around with everybody. It’s not—it's not a common practice that I do. Basically, when I come in I come to get my stuff—get my pouch, go get my truck and I load it. But no, when I come in, no, I don't actively go out and say, "Hey, let's—let's joke around.” ... What you’re referring to when Tony would joke around like that, no, I didn't—I used to tell Tony, "Okay. That’s enough.” With the—you know, all Ronnie say he won't date another black woman again. I didn’t like hearing that. I didn’t like it. And I told Tony, “Okay, Tony, that’s enough.” ... Q: ... Did you ever report what Tony Garrett, the kind of things that he said, to any manager before you were married to Katie Wooten? A: No.... Q: And did—after you were married could you tell me about any comments or conduct that you think occurred as harassment because you were in an inter-racial marriage? A: I can’t think of anything right now. Katie Wooten testified, apparently also about Tony Garrett: The main thing he said several times was jungle fever. "Y’all got that jungle fever going on.” He would put—swing that into sentences several times. More than several times ... Q: Well, how many? A: Throughout a two-year period? Q: Yeah. A: Probably heard it 10 or X1 times. . Inter alia, Katie claimed that Garrett would assign her more deliveries, and more spread out deliveries, than her peers, that he would assign her physically demanding “lift gate" deliveries from which female drivers were usually spared, and that on a number of occasions he affixed labels backwards on heavy delivery items, making each delivery more strenuous. Later, the Wootens claim, Garrett offered to, and did, begin giving them deliveries close to their home so they could go home for lunch: he then reported them to supervisors for their spending time at home while on the job. After the Wootens complained about his actions, Garrett allegedly physically and verbally confronted Ronnie in response to his and Katie’s complaints. . Jungle Fever (Universal Pictures 1991). The Stevie Wonder song "Jungle Fever” from the movie's soundtrack was also a hit song. . See Jenkins, 478 F.3d at 265 (favorably citing case law to the effect that courts must take notice, in discrimination claims, of racial “code words”). . The written complaints in evidence do not reflect concerns about inter-racial prejudice. There is some testimony about complaints relating to race. One part of Katie’s deposition testimony, concerning her complaints to one supervisor, Sue Walsh, ran thus: Q: You told Sue Walsh that you thought that you were being treated differently by Tony Garrett because you were in an interracial marriage? A: Because of that and he didn't—he didn’t like me. Q: Who didn't like you? A: Tony. Q: How many times did you tell Sue Walsh that you thought that Tony Garrett was doing this because you were in an inter-racial marriage. A: Probably once. Q: When? A: I didn't tell her all the time. Q: When? A: I told her—I complained about the problems all the time. Q: I want to know how much—you said you told her once that it was because it was an—because you were in an inter-racial marriage. When did that happen? A: I don’t know. It was sometime when she had come there in that year. Q: And never again after that? A: I really couldn't tell you. Q: Do you know what the subject was that you were complaining about? The specific subject? A: Yeah, it was the distribution of freight. . See Nichols v. Lewis Grocer, 138 F.3d 563, 570-71 (5th Cir.1998). . Harvill, 433 F.3d at 436 (5th Cir.2005). . See, e.g., Machinchick v. PB Power, Inc., 398 F.3d 345, 353 (5th Cir.2005) ("We have found that purely indirect references to an employee's age ... can support an inference of age discrimination”) (citing Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507 n. 4 (5th Cir. 1988)); Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.2002) ("It is ... important in hostile work environment decisions that lack a linkage of correlation to the claimed ground of discrimination.”); Bryant v. Brownlee, 265 F.Supp.2d 52, 62-66 (D.D.C.2003) (finding no inference of racial discrimination on facts presented); Terry v. Ashcroft, 336 F.3d 128, 147-150 (2d Cir.2003) (allowing for inference of racial motivation for daily supervisory harassment, in circumstances more extreme than the instant case). . In the same spirit, we recognize that prior cases finding hostile work environments, which often furnish quite egregious examples, "do not mark the boundary of what is actionable.” Harris, 510 U.S. at 22, 114 S.Ct. 367. The Second Circuit’s comment applies equally in this circuit: “Prior cases in which we have concluded that a reasonable juror could find that the work environment was objectively hostile do not 'establish a baseline’ that subsequent plaintiffs must reach in order to prevail.” Schiano v. Quality Payroll Sys., 445 F.3d 597, 606 (2d Cir.2006). . See, e.g., Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269-71 (5th Cir.1998). . Counsel to the Wootens. . The court reporter here apparently typed "Ivie” for "Paul." We make the appropriate substitutions in the remaining transcript portion. . See U.S. v. Martinez-Salazar, 528 U.S. 304, 311-17, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); see also U.S. v. Sanchez-Hernandez, 507 F.3d 826, 829 (5th Cir.2007). . The precise nature of the Wootens’ objections to this evidence is not clear from their appellate briefs; nor was it clear at trial, where objections tended to arrive in packs and be ill explained. For simplicity of analysis, we have here construed each objection as raising the strongest legal theory available, but none carries the day.

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s order filed February 12, 2009, 2009 WL 321624, be affirmed. The district court properly dismissed the complaint for lack of subject matter jurisdiction because it is not a civil action arising under federal law, see 28 U.S.C. § 1331, or between citizens of different states with an amount in controversy of more than $75,000, see 28 U.S.C. § 1332. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

MEMORANDUM David Moore appeals from the 120-month sentence imposed following his guilty-plea conviction for possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(iii), and (b)(l)(B)(iii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Moore contends that his sentence is procedurally and substantively unreasonable. These contentions fail. See U.S.S.G. § 5G1.1; see also United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005). Moore also contends that the district court erred by denying a downward departure based on alleged sentencing entrapment. This contention fails because Moore has not shown, by a preponderance of the evidence, that he lacked the intent or capability to produce the larger quantity of drugs. See United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir.2009). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Stimson Lumber Company (“Stimson”) appeals the judgment in favor of Wausau and other insurance companies in an insurance coverage action. Stimson seeks to recover for warranty claims paid to Stimson consumers relating to failures or defects in Forestex siding that was manufactured and sold by Stimson. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part and remand for further proceedings. Stimson contests the district court’s findings that (1) the insurance policy issued by Wausau, a primary coverage provider, does not cover payments Stimson paid as a part of a class action settlement (the “Gardner ” settlement); (2) Wausau does not have to pay for the attorney fees and costs awarded in connection with the Gardner settlement; (3) Wausau’s insurance policies do not cover any state consumer protection or unfair trade act claims; (4) Stimson must pay Home Indemnity’s share of defense costs; and (5) ISOP, an umbrella insurance provider, is not required to indemnify Stimson for the entire cost of the Gardner settlement, irrespective of Stimson’s insolvent primary insurer, Home Indemnity. We review summary judgments de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We “determine, viewing the evidence in light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the applicable relevant law.” Id. “Federal courts sitting in diversity look to the law of the forum state in making a choice of law determination.” Ticknor v. Choice Hotels Int’l., Inc., 265 F.3d 931, 937 (9th Cir.2001). Oregon law governs the interpretation of the insurance contracts at issue in this case. Id. To decide the choice of law in contract actions, Oregon applies the law of the state which has the most significant relationship to the parties and to the transaction. Lilienthal v. Kaufman, 239 Or. 1, 395 P.2d 543, 545 (1964). Thus, we review the Gardner action under Washington law because the Gardner settlement was entered and approved under Washington law. Id. Insurance Policy Coverage of Payments Made in Class Action Settlements In June 2004, Stimson entered into a settlement agreement that would compensate the Gardner class action claimants for the “replacement cost of Forestex, including the cost for labor and materials for the removal and replacement of siding materials including an appropriate adjustments for wrap paper, flashing, waste, overlap, painting ... disposal and replacement of trim.” Stimson argues that the district court erred in ruling that the policies do not cover “the cost of removing other parts of the building that are damages by siding,” [ER 24], or damage “incurred as a result of removing the defective siding, such as damages to the wrap paper, flashing, overlap and trim.” [ER 23] Both arguments lack merit. Even if the policy covered damages resulting from the failure of Forestex siding itself, Stimson has failed to show that the Gardner settlement requires to compensate members of the settlement class for these damages. The settlement compensation formula covers only costs associated with the actual removal and replacement of defective Forestex siding. Wausau, therefore, is not bound to pay Stimson with respect to such damages. Further, the district court correctly ruled that the policies do not cover latter type of damages—damages Stimson is required to pay under the compensation formula—as a result of “your product” exclusion contained in the policies. See Wyoming Sawmills, Inc. v. Transp. Ins. Co., 282 Or. 401, 578 P.2d 1253, 1255, 1257(1978). Stimson also argues that Wausau and the umbrella insurers policies should cover the Unfair Trade Practice Act and the Consumer Protection Act claims. We disagree. The district court correctly held that the policies do not insure against intentional harm. The Gardner class action plaintiffs pled fraudulent and willful concealment by Stimson and the sole inference one could ascertain from the allegations is intentional harmful conduct. See Drake v. Mutual of Enumclaw Ins. Co., 167 Or.App. 475, 1 P.3d 1065, 1069 (2000). We hold that the insurance policies exclude expected or intended property damage or bodily injury. We also hold that it is against public policy to insure against intentionally harmful conduct. Isenhart v. Gen. Cas. Co., 233 Or. 49, 377 P.2d 26, 28 (1962). Attorney Fees and Cost Awarded in the Class Settlement The Gardner settlement requires Stimson to pay the class plaintiffs’ attorney fees and expenses. The district court held Wausau does not have to cover Stimson’s obligation to pay for plaintiffs’ attorney fees and cost awarded in connection to the settlement because attorney fees and costs are a form of damages and no contractual obligation existed that requires Wausau to pay plaintiffs’ attorney fees and costs. We agree. Stimson argues that Wausau and the other primary insurers should cover attorney fees because of their duty to indemnify and the Supplemental Payment Provision. We disagree. “The duty to indemnify is determined by the basis for the settlement.” The Home Ins. Co. v. St. Paul Fire & Marine Ins. Co., 229 F.3d 56, 66 (1st Cir.2000); see also Bankwest v. Fidelity & Deposit Co., 63 F.3d 974, 981 (10th Cir.1995). There are no facts in the record that demonstrate the Gardner settlement agreement is covered under the policy. The settlement only contemplates payment for the replacement of Forestex, which is not covered under the policy. Stimson also contends that the Supplemental Payment Provision that states “we will pay with respect to any claim for ‘suit’ we defend ... all costs taxed against the insured in the suit” requires Wausau to pay attorney fees and costs. We disagree. Under Washington law, the law under which the Gardner settlement was entered and approved, the phrase “costs taxed” does not include attorney fees and expenses. Polygon Nw. Co. v. Am. Nat’l Fire Ins., 143 Wash.App. 753, 189 P.3d 777, 788 (2008) (stating that the Washington cost statute, Wash. Rev.Code. section 4.84.010, “list the costs that may be taxed in a suit in Washington” and “does not include an award of reasonable attorney fees.”). Wausau’s Defense Obligation after Home Indemnity Insolvency Stimson argues that the district court erred by treating Stimson as self-insured and ordering Stimson to pay the insolvent Home Indemnity’s portion of the indemnity and defense costs on a pro-rata basis. Stimson contends the duty to defend and the duty to indemnify are different and that this difference should be reflected in the pro-rata principles applied. We agree. Under Oregon law, the duty to defend an insured is broader than the duty to indemnify. Sch. Distr. No.1, Multnomah County v. Mission Ins. Co., 58 Or.App. 692, 650 P.2d 929, 933 (1982). The duty to defend is triggered if a complaint’s allegations includes any potential basis for coverage; a duty to indemnify is triggered only if the damages awarded to an injured party are actually within the policy’s coverage. If the duty to defend is triggered, the insurer has the duty to pay the defense costs of the entire action. Timberline Equip. Co., Inc. v. St. Paul Fire & Marine Ins. Co., 281 Or. 639, 576 P.2d 1244, 1247 (1978). When multiple insurers have the same duty in a single action, the defense costs can be apportioned. Id. The district court applied this principle correctly when it divided the defense costs amongst the primary insurers. However, the district court erred when it held that Stimson was required to pay Home Indemnity’s share of the defense costs given Home Indemnity’s insolvency. There is no equitable reason to treat Stimson as self-insured in face of Home Indemnity’s insolvency. This circumstance is unlike Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.1980), where the court held that it was reasonable to divide the defense costs between the insurer and the manufacture because the manufacture was uninsured during a period of time when the loss occurred. Stimson did not assume the risk of self-insured while operating a business. It is unreasonable to treat Stimson as self-insured, when it sought to limit its liability by purchasing primary insurance. See TPLC0, Inc. v. United Nat’l Ins. Co., 44 F.3d 1484, 1495 (10th Cir.1995). We therefore reverse and remand with directions to the district court to determine the defense costs between the solvent primary insurance carriers. ISOP Umbrella Insurance Dispute The district court granted also ISOP’s motion for- summary judgment, ruling that Stimson must exhaust the Home Indemnity policy limits before seeking indemnification through ISOP. Stimson contends that the district court misinterpreted the insurance policy. Stimson argues that the phrase at issue—“applicable limits”—means “amount capable of being applied.” Thus, according to Stimson, when Home Indemnity became insolvent, the limits no longer existed and ISOP coverage applied. We disagree. To adopt Stimson’s argument would make Part B of the Limits of Liability portion of the ISOP policy meaningless. Hoffman Const. Co. of Alaska v. Fred S. James & Co., 313 Or. 464, 836 P.2d 703, 706-09 (1992) (stating that if an interpretation makes another part of contract meaningless, it is not a reasonable interpretation). Thus, we agree with district court’s interpretation of the 1990-1992 insurance policy. The applicable limits of the underlying policy remain in force after Home Indemnity’s insolvency. The ISOP insurance policy does not drop down to fill the gap created by the insolvency. Stimson also contends that the district court’s application of the horizontal exclusion rule that requires Stimson to exhaust the applicable limits of all the underlying insurance policies before liability attaches under the ISOP secondary policy was erroneous. We disagree. The policy includes an “other insurances” clause which demonstrates that the ISOP insurance coverage was designed to be excess over scheduled or unscheduled underlying insurance. [ER. 334] AFFIRMED IN PART; REVERSED and REMANDED IN PART for further proceedings consistent with this disposition. The parties shall bear their own costs on appeal. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . On remand the district court shall correct its 2004 order to reflect ISOP as the appropriate party that filed the summary judgment motion. National Insurance did not file the motion. RAWLINSON, Circuit Judge, concurring: I concur in the result.

MEMORANDUM Dennis Buonanoma, a white male born in July 1947, appeals from the district court’s grant of summary judgment in favor of his former employer, Sierra Pacific Power Co. (“SPPC”), on his claims of age, gender, and racial discrimination. In addition, his attorney, Anne M. Vohl, appeals from a sanction order requiring her to pay $3,500 and to attend ten hours of continuing legal education. We vacate the grant of summary judgment on Buonanoma’s claims of age and gender discrimination, affirm the grant of summary judgment on his claim of race discrimination, and affirm the district court’s sanction order. I We review an order granting summary judgment de novo. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.2008). In this employment discrimination case, we address the plaintiffs burden to raise a triable issue of fact as to pretext under the burden-shifting regime set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In Noyes v. Kelly Services, 488 F.3d 1163, 1168 (9th Cir.2007), we explained: In the summary judgment context, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment. Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir.2000). If the plaintiff succeeds in showing a prima facie case, the burden then shifts to the defendant to articulate a “legitimate, nondiseriminato-ry reason” for its employment decision. Id. at 1123-24. Should the defendant carry its burden, the burden then shifts back to the plaintiff to raise a triable issue of fact that the defendant’s proffered reason was a pretext for unlawful discrimination. Id. at 1124. Buonanoma made a prima facie showing of age discrimination by presenting ' evidence that he is over forty, was competent, and was replaced by a younger employee. See Enlow v. Salem-Keizer Yellow Cab Co. Inc., 389 F.3d 802, 812 (9th Cir.2004). SPPC offered his poor performance as a non-discriminatory reason for his removal from the Team Leader position. Buonanoma offered circumstantial evidence that this reason was pretextual including: (a) seventeen years of prior service at SPPC; (b) evidence that his supervisor had thought he was not qualified to be a Team Leader before he was appointed as Team Leader; (c) a course of treatment by management that arguably mirrors an improper method for disposing of older workers; (d) evidence that from the time he was appointed Team Leader, his supervisor kept a file on him arguably in anticipation of firing him; (e) evidence that his supervisor continued to be dissatisfied with Buonanoma even after he received a satisfactory evaluation; (g) evidence that his supervisor misled Buonanoma concerning the time of the “anthrax meeting”; and (h) evidence that even during his last six months at SPPC he performed useful work. This circumstantial evidence is sufficiently “specific and substantial” to defeat SPPC’s motion for summary judgment, as it raises material questions of fact concerning SPPC’s reason for terminating his employment. See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir.2005); see also Eagle Produce, 521 F.3d at 1207 (noting that summary judgment is “inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor”). Although Buonanoma was initially replaced by a person who was only five years younger than he was, the district court recognized that the Ninth Circuit has not adopted a standard for substantial age difference. See Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir.1981) (“If the replacement is only slightly younger than the plaintiff, then it is less likely that an inference of discrimination can be drawn. However, replacement by even an older employee will not necessarily foreclose pri-ma facie proof if other direct or circumstantial evidence supports an inference of discrimination.”). Here, the district court did not consider Buonanoma’s proffered circumstantial evidence: that the person who replaced him was then replaced by an even younger employee. Accordingly, we conclude that there are material issues of fact that preclude a grant of summary judgment against Buonanoma on his age discrimination claim. We also conclude that the grant of summary judgment against Buonanoma on his gender discrimination claim must be vacated. The district found that because Buonanoma was replaced by a woman he had established the last element of his prima facie ease, but it granted summary judgment on the ground that Buonanoma had not shown that SPPC’s reason for terminating his employment was a pretext. Our reasons for determining that Buonanoma has raised material issues of fact concerning SPPC’s reason for terminating him are applicable to his gender discrimination claim as well as his age discrimination claim. Accordingly, the grant of summary judgment against Buonanoma on his gender discrimination claim must be vacated. We affirm, however, the district court’s grant of summary judgment against Buonanoma on his claim of racial discrimination. The district court properly found that Buonanoma had failed to show that other similarly situated employees not in his protected class were given different treatment. See Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 660 (9th Cir.2002) (noting that the plaintiff “must present evidence that similarly situated non-white individuals were treated more favorably”). II Sanctions under Federal Rule of Civil Procedure 11 are reviewed for abuse of discretion. Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir.2005). “Abuse of discretion may be found if the district court based its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. In a Second Motion for Leave to Amend Complaint, counsel sought to allege causes of action for fraud, defamation, and legal malpractice against SPPC’s attorney, Mikesell, based on the submission of misleading materials to the Equal Employment Opportunity Commission. The district court determined that the first two claims were barred by the Nevada attorney litigation privilege. See Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 60-61, 657 P.2d 101 (1983) (reiterating the “longstanding common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of controversy”); Fink v. Oshins, 118 Nev. 428, 433, 49 P.3d 640 (2002) (noting that “the privilege applies not only to communications made during actual judicial proceedings, but also to communications preliminary to a proposed judicial proceeding”) (internal quotation marks omitted). With respect to the legal malpractice claim, the district court determined that Buonanoma did not have an attorney-client relationship with Mike-sell, that Mikesell owed him no legal duty, and that there was no actual loss or damage. See Sorenson v. Pavlikowski, 94 Nev. 440, 443, 581 P.2d 851 (1978) (stating the “elements of a cause of action in tort for professional negligence”). The district court further determined that there was no objectively good reason for asserting the proposed causes of action against Mikesell, and that they were asserted for the improper purpose of removing Mike-sell as SPPC’s counsel. Counsel has failed to show that the district court held an “erroneous view of the law” or that the district court engaged in a “clearly erroneous assessment of the evidence.” Accordingly, we decline to disturb the sanction order. For the forgoing reasons, the grants of summary judgment on Buonanoma’s claims for age and gender discrimination are VACATED, the grant of summary judgment on Buonanoma’s claim for race discrimination is AFFIRMED, and the sanction order against Buonanoma’s attorney is AFFIRMED (06-16160). Each party shall bear its own costs. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Because the parties are familiar with the facts of the case, we repeat them here only as necessary.

PER CURIAM: The attorney appointed to represent Jessie Norberto Guerra has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Guerra has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Primativo Avila appeals the denial of his motion for a reduced sentence. 18 U.S.C. § 3582(c)(2). Avila’s motion was based on Amendment 706 to the Guidelines. We affirm. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008) (per curiam). A district court may modify a term of imprisonment in the case of a defendant who was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The district court did not err. Amendment 706 did not have the effect of lowering Avila’s sentencing range. Avila was held responsible for more than eleven grams of cocaine base and was ineligible for a sentence reduction. See United States v. Jones, 548 F.3d 1366, 1368-69 (11th Cir.2008) (per curiam). Avila argues that the district court had discretion to reduce his sentence below the amended range under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but Booker cannot be used as an independent basis to reduce a sentence. See United States v. Melvin, 556 F.3d 1190, 1191-93 (11th Cir.2009) (per curiam). We affirm the denial of Avila’s motion. AFFIRMED.

PER CURIAM: Randolph Murrell, appointed counsel for Shelton Purdue, has moved to withdraw from further representation of the appellant and has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the decision of the district court is AFFIRMED.

PER CURIAM: Elizabeth Salazar-Galvan (Salazar) pleaded guilty to one count of illegal reentry after deportation following a felony conviction in violation of 8 U.S.C. § 1326(a) and (b). She appeals her within-guidelines sentence of 37 months imprisonment, arguing that the sentence is procedurally unreasonable because the district court failed to provide adequate reasons to explain its choice of sentence. As Salazar failed to articulate her specific procedural objection at sentencing, this court reviews for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009). To demonstrate plain error, Salazar must show a forfeited error that is clear or obvious and affects her substantial rights. See id. If these conditions are met, this court may exercise its discretion to correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. There is nothing in the record to indicate that Salazar’s sentence would have been different if the court had provided more explanation for its choice of sentence. Salazar has thus failed to demonstrate er ror affecting her substantial rights. See id. at 365. Accordingly, we AFFIRM the district court’s judgment. Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4.

MEMORANDUM Maximiano Reyes Garcia, his wife Yolanda Gomez Montijo Garcia, and their two children, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition. Petitioners filed their second motion to reopen more than two years after the BIA’s order dismissing the underlying appeal. The BIA did not abuse its discretion in denying the motion because petitioners failed to establish eligibility for an exception to the filing limitations, see 8 C.F.R. § 1003.2(c)(2)—(3), or grounds for equitable tolling, see Itumbarria, 321 F.3d at 897 (equitable tolling is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”). Petitioners’ remaining contentions are not persuasive. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

PER CURIAM: Francisco Javier Soto-Martinez appeals his sentence following his guilty plea conviction for illegal reentry into the United States. Soto-Martinez was sentenced to 120 months of imprisonment and three years of nonreporting supervised release. This sentence was above his sentencing guidelines range of 46 to 57 months of imprisonment. Soto-Martinez contends that his sentence should be vacated as substantively unreasonable because it was greater than necessary to meet the requirements of 18 U.S.C. § 3553(a). He argues that the district court abused its discretion by giving disproportionate weight to the need to afford adequate deterrence from crime and that the district court erred in reasoning that a 120-month sentence was necessary because he had not been deterred from reentering the United States after serving nearly 10 years of imprisonment for attempted murder. He also argues that a within-guidelines sentence was sufficient to provide just punishment for the offense, promote respect for the law, and reflect the seriousness of the offense. Citing United States v. Gomez-Herrera, 523 F.3d 554, 556, 565-66 (5th Cir.2008), he argues that the district court failed to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentence is reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). This court “ ‘first ensure[s] that the district court committed no significant procedural error’ and ‘then consider[s] the substantive reasonableness of the sentence imposed.’” United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.2008) (quoting Gall, 128 S.Ct. at 597). “[A] district court need not recite each of the § 3553(a) factors and explain its applicability.” Herrera-Garduno, 519 F.3d at 531; accord United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006). At sentencing, the district court stated that Soto-Martinez had an extensive criminal history and lacked respect for the law, Soto-Martinez was “a dangerous man” in light of his criminal history, and the sentence was necessary to deter Soto-Martinez from breaking the law in the future. Soto-Martinez’s criminal history was one of the factors that the district court was permitted to consider in imposing an above-guidelines sentence. See Herrera-Garduno, 519 F.3d at 531; Smith, 440 F.3d at 709. The district court’s statements reflect consideration of the need to afford adequate deterrence from crime, the need to promote respect for the law, Soto-Martinez’s nature and characteristics, and the need to protect the public from further crimes by Soto-Martinez. See § 3553(a). Soto-Martinez has not shown that the district court abused its discretion in sentencing him to 120 months of imprisonment. See Herrera-Garduno, 519 F.3d at 531; Smith, 440 F.3d at 709 (5th Cir.2006). Soto-Martinez’s citation to “one case in which a lower sentence was imposed clearly cannot establish an unwarranted disparity under [] § 3553(a)(6).” United States v. Sanchez-Ramirez, 497 F.3d 531, 536 n. 4 (5th Cir.2007). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Paco Escamilla, a native and citizen of Mexico, seeks a petition for review of the order of the Board of Immigration Appeals (BIA) denying his applications for cancellation of removal pursuant to 8 U.S.C. § 1229b and a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(a). We dismiss the petition for lack of jurisdiction. We generally review only the BIA’s decision except to the extent that the immigration judge’s (IJ) decision influences the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.2007). We lack jurisdiction to review the denial of Escamilla’s requests for relief because he is removable for having committed criminal offenses involving moral turpitude. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1252(a)(2)(C); Danso v. Gonzales, 489 F.3d 709, 712 (5th Cir.2007). Moreover, pursuant to 8 U.S.C. § 1252(a)(2)(B)®, we are statutorily barred from reviewing the BIA’s purely discretionary denial of cancellation of removal. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004). To the extent that Escamilla challenges the disere-tionary denial of his requests for relief, we dismiss his petition for want of jurisdiction. In addition, because Escamilla conceded to his removability under § 1182(a)(2)(A)(i)(I) and (a)(6)(E)®, we need not consider his argument that the Government did not prove by clear and convincing evidence that he was also removable pursuant to § 1182(a)(6)(C)®. See Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir.2003). Escamilla’s attempt to confer jurisdiction in this court by claiming that the IJ committed legal error and violated his due process rights by “failing to appropriately exercise discretion and follow the controlling case law” is unavailing. Our review of the record reveals that both the IJ and the BIA undertook a comprehensive and reasoned analysis of Escamilla’s case and also appropriately weighed both the positive and negative equities before exercising the discretion to deny relief. We reject Escamilla’s attempt to recast what amounts to a disagreement with the weighing and consideration of the relevant factors by the IJ and the BIA as either a constitutional or legal issue. See Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir.2006); Assaad v. Ashcroft, 378 F.3d 471, 475-76 (5th Cir.2004). DISMISSED FOR LACK OF JURISDICTION. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM. Roger Rowley (Rowley) brings this direct criminal appeal of the sentence the district court imposed upon revoking his supervised release. Counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On November 26, 2008, the court revoked Rowley’s supervised release and sentenced him to 14 months imprisonment and 22 months of supervised release; the court entered judgment that same day. The notice of appeal, filed on December 12, 2008, was untimely by one day because it was not filed within 10 days of entry of judgment. See Fed. R.App. P. 4(b)(l)(A)(i). A district court may grant a defendant an additional 30 days in which to file a notice of appeal upon a showing of excusable neglect or good cause. See Fed. R.App. P. 4(b)(4). Counsel’s motion is held in abeyance, and the case is remanded to the district court to determine whether the time for filing a notice of appeal should be extended under Rule 4(b)(4). See United States v. Austin, 217 F.3d 595, 598 (8th Cir.2000); United States v. Petty, 82 F.3d 809, 810 (8th Cir.1996) (per curiam). Upon making that determination, the district court shall return the case to this court for dismissal or further proceedings, as may be appropriate. . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

CLAY, Circuit Judge. Plaintiff Eleanor Lafata, a licensed practical nurse, appeals the district court’s grant of summary judgment in favor of Defendant Church of Christ Home for the Aged. The district court granted summary judgment to Defendant on Plaintiffs claims under the Family Medical Leave Act (“FMLA”), 29 U.S.C.A. § 2601 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101 et seq. Because we conclude that genuine issues of material fact remain with respect to both of Plaintiffs claims, we REVERSE the district court’s grant of summary judgment and REMAND for trial on both of Plaintiffs claims. BACKGROUND In February of 2000, Plaintiff began working as a licensed practical nurse at Defendant’s assisted living facility. On November 25, 2000, Plaintiff injured her right shoulder while trying to lift a patient from the floor. Plaintiff was diagnosed with “adhesive capulitis right shoulder” (J.A. 305), and received written instructions from a physician advising her to avoid “repetitive lifting over 10 lbs.” and “pushing and/or pulling over 5 lbs. of force” (J.A. 307). On April 5, 2002, Plaintiff received a promotion and became the Health Services Coordinator in Defendant’s assisted living facility, which assigned her responsibility for supervising staff and interviewing prospective residents. Although Plaintiffs prior job as a staff nurse and her position as Health Services Coordinator required her to lift and pull significant weight, Defendant excluded lifting, pushing, and pulling activities from Plaintiffs job requirements to accommodate her shoulder injury. On February 21, 2003, Plaintiff fell in her driveway at home and fractured her foot. After being placed in a cast, Plaintiff returned to work on March 7, 2003. However, within a few weeks, Plaintiffs doctors determined that her job duties were exacerbating her injuries, and recommended that she take additional leave from work. Accordingly, on March 31, 2003, Plaintiff presented a physician’s note to Defendant indicating that she could “not put any pressure on [her foot] and [could-]not return to work until further notice. (J.A. 175.) In addition, Plaintiff requested forms related to both FMLA leave and disability leave from Debra Barber, Defendant’s Human Resources Director. However, Plaintiff received only forms relevant to Defendant’s disability leave policy. Plaintiff subsequently collected disability payments while on leave for her foot injury. At the time she took leave, Plaintiff served as Health Services Coordinator. On May 16, 2003, Plaintiff received a letter from Defendant informing her that it had filled her position. The letter prompted Plaintiff to file a complaint with the United States Department of Labor (“DOL”) to determine whether Defendant could replace her while she remained on leave. After investigating Plaintiff’s claim, the DOL found that Defendant failed to comply with applicable notice requirements under the FMLA and related regulations. The investigation also established that Defendant was unaware that the FMLA permitted it to count the time an employee takes under an employer’s leave policies against the employee’s twelve-week entitlement to leave under the FMLA. Following the DOL’s investigation, Defendant provided Plaintiff with twelve weeks of unpaid leave beginning July 28, 2003, and ending October 20, 2003. Defendant designated this leave as FMLA leave and, consistent with the requirements under the FMLA, agreed to provide Plaintiff with an “equivalent position ... if and when she chooses to return.” (J.A. 212.) In connection with the leave period, Plaintiff submitted a doctor’s note to Defendant which cleared her to return to work on October 16, 2003. On October 17, 2003, the last weekday before Plaintiff was scheduled to return to work, a conversation took place between Plaintiff and Barber. The conversation concerned Plaintiffs new job title and duties upon her anticipated return to work the following Monday, during which Defendant offered Plaintiff the position of Restorative License Nurse. Plaintiff claims that she informed Barber that she did not view the position as equivalent to her former role as Health Services Coordinator, and was also concerned because the job description required her to engage in physical activities, such as turning and positioning patients, which her shoulder injury prevented her from performing. According to Plaintiff, Barber ultimately told Plaintiff that the job was “what’s being offered” and that Plaintiff could “take it or leave it.” (J.A. 193.) In a letter dated October 21, 2003, Plaintiff wrote to Barber and stated that she was concerned that Barber had told her that she was required to accept the Restorative Licensed Nurse position, or no position at all. In addition, Plaintiff offered in the letter to accept a non-supervisory nursing position that Defendant then was advertising in the local paper. Ultimately, Plaintiff did not return to work on October 20, 2003, the day her FMLA leave expired, a fact that Plaintiff does not dispute. On October 23, 2003, Defendant sent a letter to Plaintiff informing her that it considered her failure to return to work a “voluntary quit.” (J.A. 317.) Plaintiff filed a charge of discrimination with the EEOC on December 15, 2003, alleging violations of FMLA and the ADA. After receiving a right to sue letter, Plaintiff filed suit in the United States District Court for the Eastern District of Michigan. On September 29, 2006, the district court issued an order granting summary judgment to Defendant with respect to Plaintiffs FMLA claim. On September 28, 2007, 2007 WL 2875188, the district court issued an order concluding that Defendant was entitled to summary judgment on Plaintiffs ADA claim. Plaintiff filed a timely notice of appeal of the district court’s orders. DISCUSSION I. FMLA CLAIM A. Standard of Review This Court reviews a district court’s grant of summary judgment de novo. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir.2004). A district court’s grant of summary judgment should be affirmed when “the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact” as to an essential element of the non-moving party’s case. Fed.R.Civ.P. 56(c). An issue of fact is “genuine” if a reasonable person could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). B. Analysis The FMLA protects employees who have worked for the same employer for at least one full year and who have provided at least 1250 hours of service within that period. See 29 U.S.C. § 2611(2)(A). Eligible employees are entitled to a total of twelve work weeks of unpaid leave during any twelve month period “[bjecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(D). The regulations implementing the FMLA impose numerous notice requirements on covered employers. For example, once an employer has determined that an employee’s leave qualifies as FMLA leave, the employer has responsibility for designating leave as FMLA-qual-ifying leave, “and for giving notice of the designation to the employee.” 29 C.F.R. § 825.300(d). An eligible employee who takes leave pursuant to the FMLA “shall be entitled, on return from such leave, to be restored by the employer to the position of employment held by the employee when the leave commenced,” id. § 2614(a)(1)(A), or “to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment” id. § 2614(a)(1)(B). To qualify as an “equivalent position” under the FMLA, the employee’s new position must be “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Plaintiff claims that Defendant violated her FMLA rights when it failed to restore her to an “equivalent position” when she attempted to return to work in October of 2003. The district court granted summary judgment to Defendant, agreeing with Defendant that Plaintiff was not protected by the FMLA in October of 2003 because her twelve-week entitlement expired in June of 2003, twelve weeks after she first took disability leave. In granting summary judgment to Defendant, the district court relied on the Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). In Ragsdale, the employee took thirty weeks of leave, the maximum allowed under the employer’s unpaid leave policy. Id. at 85-86, 122 S.Ct. 1155. After the employee exhausted her leave and was terminated, the employee sued, arguing that she was entitled to twelve weeks of leave under the FMLA because her employer had failed to notify her that twelve of the thirty weeks would count against her FMLA entitlement. Id. at 86, 122 S.Ct. 1155. The employee relied on a “penalty provision” in the FMLA regulations, which provided that, if an employee takes medical leave “and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” Id. at 85, 122 S.Ct. 1155 (quoting 29 C.F.R. § 825.700(a) (2001)). The Supreme Court invalided the “penalty provision” as beyond the power of the Secretary of Labor and inconsistent with the remedial nature of the FMLA. Id. at 85-86, 122 S.Ct. 1155. The Court found that the penalty was “unconnected to any prejudice the employee might have suffered from the employer’s lapse” in designating the leave as FMLA leave. Id. at 88, 122 S.Ct. 1155. In addition, the Court concluded that the regulation “amends the FMLA’s most fundamental substantive guarantee—the employee’s entitlement to ‘a total of 12 workweeks of leave during any 12-month period.’ ” Id. at 93, 122 S.Ct. 1155 (quoting 29 U.S.C. § 2612(a)(1)). According to the Supreme Court, the effect of the regulation was to give “certain employees a right to more than 12 weeks of FMLA-compliant leave in a given 1-year period.” Id. at 94, 122 S.Ct. 1155. For these reasons, the Court invalidated the regulation and denied the employee’s claim that the employer had violated her FMLA rights by failing to notify her that twelve weeks of her leave taken pursuant to the employer’s unpaid leave policy would count toward her FMLA leave. We conclude that the district court erred in relying on Ragsdale to grant summary judgment to Defendant. If Defendant had simply failed to designate Plaintiffs disability leave beginning in March of 2003 as FMLA leave, and Defendant terminated Plaintiff because she failed to return to work twelve weeks later, Ragsdale might compel the conclusion that, regardless of whether Defendant offered her an “equivalent position” upon her return, Plaintiffs FMLA rights were not violated. However, that is not what happened in this case. In examining the specific facts surrounding Plaintiffs leave related to her foot injury, it is clear that Plaintiff was protected by the FMLA in October of 2003. At the outset of Plaintiffs leave for her foot injury, Defendant applied its individual leave policy, under which Defendant did not count leave taken pursuant to the alternative leave policy of providing one year of paid disability leave against the employee’s FMLA entitlement. Accordingly, Defendant approved Plaintiffs leave beginning in March of 2003 solely under its paid disability leave policy, which did not require Defendant to restore Plaintiff to an “equivalent position” at any time during that leave or upon her return from disability leave. Further, Defendant actively avoided designating Plaintiffs leave as FMLA leave. Despite Plaintiffs repeated requests for FMLA forms throughout April of 2003, Defendant refused to provide the required FMLA forms to Plaintiff for her disability leave. Defendant failed to notify Plaintiff of her rights and obligations with respect to FMLA leave. In addition, Defendant affirmatively designated a later period—a twelve-week period ending October 20, 2003—as FMLA leave. Although Plaintiff ultimately received more than twelve weeks of leave, nothing in the statute or applicable regulations precludes an employer from providing an employee with more than twelve weeks of leave where only twelve weeks are categorized as FMLA leave; in fact, the FMLA encourages employers to do so. See 29 U.S.C. § 2653 (“Nothing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act....”). Plaintiff was thus entitled to the protections of the FMLA—including restoration to an “equivalent position” upon her return to work—during the period Defendant designated as FMLA leave. Consequently, on October 17, 2003, Plaintiff was within the twelve-week leave period granted by the FMLA, and therefore was entitled to the protections afforded by the FMLA, including restoration to her previous job as Health Services Coordinator, or an “equivalent position.” See 29 U.S.C. § 2614(a)(1). Because there is a genuine issue of material fact as to whether the position of Restorative License Nurse constitutes an “equivalent position” within the meaning of the FMLA, we conclude that the district court’s grant of summary judgment was improper. II. ADA CLAIM A. Standard of Review The district court also granted Defendant’s motion for summary judgment with respect to Plaintiff’s claim that Defendant failed to provide her with a reasonable accommodation for her shoulder injury. We review a district court’s grant of summary judgment de novo. Farhat, 370 F.3d at 587. B. Analysis The ADA bars employers from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limita tions of an otherwise qualified individual with a disability, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” Id. § 12112(b)(5)(A). Plaintiff argues that Defendant violated the ADA by failing to provide her with reasonable accommodations for her shoulder injury. Under the ADA, “reasonable accommodation” includes: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Id. § 12111(9). To determine the appropriate modification or adjustment necessary to accommodate the employee, the ADA’s regulations indicate that “it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o )(3). While not set forth in the text of the ADA, this Court has held that “the interactive process is mandatory, and both parties have a duty to participate in good faith.” Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 556 (6th Cir.2008). Accordingly, “[w]hen a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’ ” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir.2007) (quoting Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir.1996)). Employers “who fail to engage in the interactive process in good faith[ ] face liability [under the ADA] if a reasonable accommodation would have been possible.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir.2000) (en banc), judgment vacated on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). In granting summary judgment to Defendant, the district court concluded as follows: Plaintiffs termination^ which the district court found to be consistent with the FMLA,] occurred on October 20, 2003, but she did not request consideration for one of the allegedly open positions at defendant’s Assisted Living facility until her letter of October 21, 2003. Thus, at the time [Plaintiff] made her requested accommodation [of a transfer to a different position than that of Restorative License Nurse], she was no longer an employee, and [Defendant had no duty to accommodate her disability at that time. (J.A. 11.) However, as discussed above, Plaintiff remained protected by the FMLA through October 20, 2003, and therefore remained an “employee” for purposes of the ADA. Further, the district court’s finding that Plaintiff did not inform Defendant of the need for an accommodation until October 21, 2003 is not supported by the record. Viewing the facts in the light most favorable to Plaintiff, Plaintiff informed Barber on October 17, 2003, while she was on FMLA leave, of her concerns that her shoulder injury would prevent her from performing certain of the required duties listed in the Restorative License Nurse job description. Accordingly, contrary to the district court’s conclusion, De fendant was required to offer Plaintiff a reasonable accommodation for her shoulder injury and to engage in the mandatory interactive process to determine the appropriate accommodation. In granting summary judgment to Defendant, the district court failed to recognize that a genuine issue of material fact exists as to whether Defendant participated in good faith in the mandatory interactive process. Viewing the evidence in the light most favorable to Plaintiff, Barber informed Plaintiff that she could “take [] or leave” the position of Restorative License Nurse without accommodations. By offering Plaintiff only one option with respect to the position despite knowing of her physical limitations, Defendant failed to discuss with Plaintiff the “potential reasonable accommodations that could overcome [her] limitations.” See 29 C.F.R. § 1630.2(o )(3); cf. Barnett, 228 F.3d at 1116 (holding that “an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process”). Based on this evidence, a reasonable jury could find that Defendant discriminated against Plaintiff by failing to provide Plaintiff with reasonable accommodations for her shoulder injury as required by the ADA. CONCLUSION We therefore REVERSE the district court’s grant of summary judgment on Plaintiffs FMLA and ADA claims and REMAND the case for a trial on both claims. . Because we conclude that Plaintiff was protected by the FMLA, it is unnecessary to address her argument on appeal that she should be allowed to amend her complaint to include a claim of equitable estoppel. . The district court also granted summary judgment to Defendant on the basis that, even if Plaintiff remained an employee at the time she requested a reasonable accommodation in the form of a transfer to another position, she was unable to "point to a specific, identified position which was available at the time.” (J.A. 60.) While the district court acknowledged that Plaintiff presented newspaper clippings advertising Defendant’s nursing job openings in August 2003, the district court found that she failed to demonstrate that these positions remained available in October of 2003, at the time Plaintiff requested her accommodation. The district court further concluded that "the only evidence in the record reflects that no nursing positions were filled ..., and that the assisted living facility was overstaffed.” (Id.) Even if these positions were no longer available in October, the record establishes that Defendant offered Plaintiff the position of Restorative License Nurse, a job that Plaintiff was capable of performing with the requirements of lifting and pulling eliminated. The district court therefore erred in finding that Plaintiff failed to identify a position available at the time she sought to return to work. . As an alternative theory, Plaintiff claims that she is entitled to relief under the ADA because Defendant failed to reasonably accommodate her foot injury. This claim is unavailing, however, because Defendant quite extensively accommodated this injury by allowing Plaintiff to take twenty-nine weeks of leave.

PER CURIAM: On November 30, 2005, the district court, after accepting appellant’s plea of guilty, sentence appellant to concurrent prison sentences of 235 months for conspiracy to possess with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 846, and for possession with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). In March 2008, appellant moved the district court to reduce her sentences pursuant to Amendment 706 to the Sentencing Guidelines, which reduces the offense levels for cocaine base. The court denied her motion, concluding that since her offense level was determined under the career offender Guideline, she was ineligible for a sentence reduction under Amendment 706. She now appeals contending that, although she qualified as a career offender at sentencing, the court departed downward based upon the finding that her criminal history category overstated her criminal record. Accordingly, she contends that she is eligible for sentence reduction under Amendment 706. A district court may reduce the sentence “of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements provide that “a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy statement if’ a retroactive amendment applies to the defendant but “does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10, comment. (n.l(A)). Here, although, at sentencing, the district court departed downward in arriving at appellant’s criminal history category, her offense level was calculated by application of the career offender provision. Thus, the sentence range upon which her sentences were based was not affected by Amendment 706, and she is ineligible for sentence reduction. See United States v. Moore, 541 F.3d 1323 (11th Cir.2008), cert. denied, McFadden v. United States, — U.S.-, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009), and cert. denied, — U.S.-, 129 S.Ct. 1601, 173 L.Ed.2d 689 (2009). AFFIRMED. . The presentence report, and the district court, calculated appellant's base offense level at 32 under U.S.S.G. § 2D1.1(c)(4), and determined that she was a career offender under U.S.S.G. § 4B1.1. Because the statutory maximum sentence life imprisonment, her offense level became 37. After reducing that level for her acceptance of responsibility and reducing her criminal history category to V, the court arrived as a sentence range of 235 to 293 months' imprisonment.

PER CURIAM: Anthony Decarlos Harris pleaded guilty to possession of a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (2006). Harris was sentenced to fifty-seven months of imprisonment and now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising one issue but stating that there are no meritorious issues for appeal. Harris was informed of his right to file a pro se supplemental brief but did not do so. We affirm. In the Anders brief, counsel questions whether Harris’ sentence was substantively unreasonable. A sentence is reviewed for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); see also United States v. Seay, 553 F.3d 732, 742 (4th Cir.2009). The appellate court must first determine whether the district court committed any “significant procedural error,” Gall, 128 S.Ct. at 597, and then consider the substantive reasonableness of the sentence, applying a presumption of reasonableness to a sentence within the guidelines range. United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, — U.S.-, 129 S.Ct. 476, 172 L.Ed.2d 341 (2008); see also Gall, 128 S.Ct. at 597; Rita v. United States, 551 U.S. 338, 345-59, 127 S.Ct. 2456, 2462-69, 168 L.Ed.2d 203 (2007) (upholding presumption of reasonableness for within-guidelines sentence). We have thoroughly reviewed the record and find that the district court committed no procedural error in calculating the sentence. Furthermore, we find that the district court’s within-guidelines sentence is reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Harris’ conviction and sentence. This court requires that counsel inform Harris, in writing, of the right to petition the Supreme Court of the United States for further review. If Harris requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Harris. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: Roberto Garcia-Espinoza appeals the sentence imposed following his guilty-plea conviction of illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Garcia-Espinoza asserts that the district court erred when it ordered his federal sentence to run consecutively to a not-yet-imposed state sentence. Because his challenge is foreclosed by our prior precedent, we affirm the district court’s holding. * ifs * AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See United States v. Brown, 920 F.2d 1212 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.2006). OWEN, Circuit Judge, with whom DENNIS, Circuit Judge, joins, concurring: Though our prior precedent in United States v. Brown requires that we affirm the district court’s sentencing of Roberto Gareiá-Espinoza, I write separately to recommend that the court re-examine en banc how we have previously construed 18 U.S.C. § 3584. In Brovm, we held that § 3584 permits a federal district court to direct that a federal sentence must run consecutively to a future sentence that had yet to be imposed by a state court. Section 3584(a) provides: (a) Imposition of concurrent or consecutive terms.—If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. ... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. We interpreted this section to mean that “when determining whether to impose concurrent or consecutive sentences” the district court “may consider subsequent sentences anticipated, but not yet imposed, in separate state court proceedings.” In its briefing before our court in the present case, the Government contends that our decision in Brovm should be overruled or modified. The Government says: “This Court, in an appropriate case, should overrule or modify United States v. Brown [citations omitted] and hold that 18 U.S.C. § 3584(a) does not authorize a district court to order that the federal term of imprisonment be served consecutively to a yet-to-be-imposed state sentence.” Our sister circuits are split on this issue. Those that have come to the same conclusion as Brovm have generally interpreted the final sentence of § 3584(a) as encouraging consecutive sentences where multiple terms of imprisonment are imposed at different times, regardless of whether one of the terms is not yet imposed. Those that interpret § 3584(a) differently from, Brovm have held that the statute’s first sentence limits its applicability to those-situations in which multiple terms of im prisonment are imposed at the same time or in which the defendant is already subject to an undischarged term of imprisonment. These courts concluded that the final sentence merely sets out a default rule for those two situations governed by the statute and does not bestow upon the district court the ability to impose a sentence consecutive to a future state court sentence. The Government contends that we should not revisit Brown in the present ease because the defendant has now served his state sentence and cannot receive credit toward his federal sentence, thus making this matter moot. I disagree. The Bureau of Prisons (BOP) has the authority to implement a concurrent sentence by retroactively designating the state prison in which the defendant served his state sentence as the place for service of his federal sentence as well. Thus, if we were to vacate and remand for resentencing and the district court imposed a concurrent sentence, the BOP could still implement that sentence notwithstanding the fact that the defendant has already served the entirety of his state sentence in a state prison. In light of the circuit split and because both of the parties in this case argue that Brown’s construction of § 3584(a) is incorrect, I recommend that the court re-examine our Brown holding en bane. . 920 F.2d 1212 (5th Cir.1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.2006). . Id. at 1217. . 18 U.S.C. § 3584(a). . Brown, 920 F.2d at 1217. . See United States v. Mayotte, 249 F.3d 797, 799 (8th Cir.2001); United States v. Williams, 46 F.3d 57, 59 (10th Cir.1995); United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir.1993). . See United States v. Donoso, 521 F.3d 144, 149 (2d Cir.2008); United States v. Smith, 472 F.3d 222, 226 (4th Cir.2006); United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir.1998); United States v. Clayton, 927 F.2d 491, 492 (9th Cir.1991). . See Donoso, 521 F.3d at 149; Smith, 472 F.3d at 226; Quintero, 157 F.3d at 1039-40; Clayton, 927 F.2d at 492. . See 18 U.S.C. § 3585(b) (providing that a defendant shall be given credit toward service of a term of imprisonment only for time served that has not been credited against another sentence); Leal v. Tombone, 341 F.3d 427, 429-30 (5th Cir.2003) (denying federal sentencing credit to a defendant for time served in a state prison where the state sentencing court ordered that his sentence be concurrent to the federal sentence). . See Barden v. Keohane, 921 F.2d 476, 478 (3d Cir.1990); 18 U.S.C. § 3621(b) (authorizing the BOP to designate any facility that meets minimum standards of health and habitability as the place for service of a federal sentence).

OPINION PER CURIAM. John Wallace appeals pro se from the District Court’s order dismissing his and his wife’s complaint. For the following reasons, we will affirm. I. Wallace’s claims arise principally from prior judicial proceedings. In 2004, his wife, Margaret Wallace, filed an employment discrimination suit in the Eastern District of Pennsylvania against her former employer Graphic Management Associates (“GMA”) and certain of its employees. The case initially was assigned to District Judge Weiner (now deceased) but was reassigned to District Judge Surriek after Judge Weiner recused himself on Margaret Wallace’s motion. Judge Surrick ultimately dismissed her complaint as a sanction for her repeated refusal to comply with discovery and scheduling orders, and we affirmed. See Wallace v. Graphic Mgmt. Assocs., 197 Fed.Appx. 138 (3d Cir.2006). In 2006, while that appeal was pending, John Wallace filed another action in the Eastern District of Pennsylvania alleging that the defendants in his wife’s suit, aided by their attorneys, had filed various fraudulent documents "with the court and that Judges Weiner and Surrick had “acquiesced” in the fraud. He also alleged various improprieties during proceedings before the Pennsylvania Commonwealth Court. The complaint named as defendants Judges Weiner and Surrick, the judges of the Pennsylvania Commonwealth Court, GMA and its counsel. The complaint purported to state claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the federal defendants and 42 U.S.C. § 1983 against the state defendants. Among other things, Wallace alleged that GMA and its counsel were federal and state actors because they had perpetrated fraud on state and federal courts in which the judges thereof had acquiesced. The District Court dismissed Wallace’s complaint, and we affirmed that ruling as well. See Wallace v. Federal Judges of United States Dist. Ct., 311 Fed.Appx. 524 (3d Cir.2008). Finally, while that appeal was pending, the Wallaces filed the complaint as issue here. The complaint once again names as defendants the federal judges and private actors who were defendants in Wallace’s 2006 complaint and repeats many of the allegations and purported claims contained therein. The complaint also asserts claims arising out of a Pennsylvania state landlord-tenant proceeding conducted while Wallace’s 2006 complaint was still pending before the District Court. According to the Wallaces, the purported fraud in Margaret Wallace’s 2004 employment suit deprived her of a judgment and left her "without sufficient funds to pay rent to her landlord, JADO Associates (John Wallace apparently was in prison at the time). In April 2005, JADO Associates obtained a judgment from Pennsylvania District Justice Michele A. Varricchio for eviction and approximately $2,000 in back rent. The Wallaces concede that they were behind on their rent and that JADO Associates was entitled to evict them, and they claim to have paid the judgment in full. They contend, however, that JADO Associates submitted fraudulent documents to District Justice Varric-chio overstating their liability for back rent by “$650 or more” and that District Justice Varricchio must have known of the fraud because the Wallaces informed her of the allegedly correct amount. On the basis of these allegations, the Wallaces named as defendants JADO Associates, its owners Julian and Dorca As-encio (collectively, the “JADO defendants”), District Justice Varricchio and an unnamed employee of her office. Just as Wallace did in his 2006 suit against GMA, they assert a § 1983 claim against the JADO defendants on the theory that they acted under color of state law by virtue of District Justice Varricchio’s alleged “acquiescence” in their fraud. The Wallaces clarified that the only claim they intended to assert against the JADO defendants was one under § 1983. See, e.g., Compl. at 132 (“The Plaintiffs sue not for eviction, and not for the correct amount of judgment, but for deprivation of Procedural and Substantive Due Process of Law and Equal Protection due to the fraudulent amount.”). All defendants except the JADO defendants filed motions to dismiss. The JADO defendants never entered an appearance, and the Wallaces moved for default judgment against them (as well as other defendants). By opinion and order entered April 28, 2008, the District Court dismissed the Wallaces’ claims against all the non-JADO defendants with prejudice. As to the JADO defendants, the District Court first denied the Wallaces’ motion for a default judgment because it concluded that they had not properly served the complaint, then dismissed their claims without prejudice for failure to effect service within 120 days of filing the complaint, see Fed.R.Civ.P. 4(m), and failure to conform with Rule 8. The District Court gave them leave to file an amended complaint “to assert only their claims against JADO Associates, and to cure their current complaint’s Rule 8 deficiencies.” Only John Wallace appeals. II. On appeal, Wallace wisely recognizes that all of his claims against the nonJADO defendants are foreclosed by our decision in his prior appeal and he raises no issues as to them. Any such potential issues, therefore, are waived. Instead, he raises two issues regarding the JADO defendants. We normally would lack appellate jurisdiction because the District Court dismissed the claims against those defendants without prejudice. Here, however, Wallace argues that the statute of limitations has run on his claims, thus making the dismissal without prejudice effectively final. We see no reason to question that assertion. In any event, Wallace’s brief makes clear his intention to stand on his complaint. Thus, for either or both of those reasons, we have jurisdiction pursuant to 28 U.S.C. § 1291. See In re Westinghouse Secs. Litig., 90 F.3d 696, 705 (3d Cir.1996). Wallace argues first that the District Court erred in denying his motion for a default judgment against the JADO defendants. We review that ruling for abuse of discretion, see Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir.2000), but exercise plenary review over the District Court’s ruling on the validity of service of process, see Umbenhauer v. Woog, 969 F.2d 25, 28 (3d Cir.1992). We find no reversible error here. The District Court properly explained that a default judgment cannot be entered on a complaint that has not been validly served. See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1304 (3d Cir.1995). The District Court further concluded that the Wallaces had not validly served their complaint. We agree, but for a different reason. The District Court noted that the Wallaces had served the JADO defendants by certified mail and concluded that “[s]er-vice through the United States mail is insufficient” under Fed.R.Civ.P. 4(e) (governing service of individuals) and Rule 4(h) (governing service on corporations and other associations). As Wallace argues on appeal, however, each rule permits service according to the law of the state in which the district court is located (here, Pennsylvania). See Fed.R.Civ.P. 4(e)(1), 4(h)(1)(A). Pennsylvania law in turn permits service on out-of-state defendants by “any form of mail requiring a receipt signed by the defendant or his authorized agent,” and provides that service is effective on receipt. Pa. R. Civ. P. 403, 404(2). Here, Wallace served the complaint on the JADO defendants in New York (where they allegedly reside) by certified mail requiring a signed receipt, and he submitted a copy of the receipt signed by defendant Julian Asencio. Thus, this manner of service was proper under Pennsylvania law, at least as to that defendant. That service, however, was untimely. Service must be effected within 120 days of filing the complaint. See Fed. R. Civ.P. 4(m). The Wallaces filed their complaint on March 22, 2007, but did not serve it until Julian Asencio received it on August 2, 2007, 132 days later. Service was untimely even using the date of mailing, July 27, 2007, which was 127 days after the Wallaces filed their complaint. Thus, because the JADO defendants had not been validly served, no default judgment could be entered against them. See Petrucelli, 46 F.3d at 1304. Wallace’s second argument is that the District Court erred by granting him leave to file an amended complaint after dismissing his claims without prejudice because the statute of limitations already had run on those claims. Thus, he argues, the merits of those claims can be decided “only now in this appeal.” Wallace, however, does not argue that the actual dismissal of his claims was erroneous in any respect, and he raises no argument about their merit on appeal. Any potential error in this regard is thus waived. Nevertheless, we note that the District Court, despite some irregularities in its approach, did not commit reversible error in dismissing these claims because they so clearly lack merit. See Fed.R.Civ.P. 61. It is clear from the Wallaces’ complaint that the only claim they intended to assert against the JADO defendants was a claim under § 1983 that those defendants violated their federal constitutional rights. It is also clear from their complaint that they neither alleged nor can allege anything that might transform the private JADO defendants into state actors for § 1983 purposes. The Wallaces allege the JADO defendants should be deemed state actors because they defrauded a court and a judge “acquiesced.” This is the very same theory of state action that we rejected in Wallace’s prior appeal. As we explained in that case, litigation “does not transform a private actor into an entity acting under color of state or federal law,” and conclusory allegations of conspiracy do not suffice. Wallace, 311 Fed.Appx. at 526. See also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1265 (3d Cir.1994) (explaining that there is no state action for purposes of § 1983 when a private litigant merely obtains a judgment with “acquiescence by the state”). Accordingly, we will affirm the judgment of the District Court. One final matter merits mention. In Wallace’s prior appeal, we cautioned that, should he “continue to file lawsuits against immune or otherwise improper defendants, the District Court or we could enter an order restricting his filing of such cases.” Wallace, 311 Fed.Appx. at 526. Wallace already had filed the complaint at issue here when we issued that opinion, and he wisely has not pressed in this appeal claims against parties that we already have addressed. Thus, we will take no further action in this regard at this time except to repeat the warning, particularly in light of Wallace’s apparent contemplation of claims against Judge Hillman. We suggest that Wallace bear this warning in mind, as any court he may come before in the future undoubtedly will do. . The District Court aptly characterized the complaint as “the type of burdensome and unnecessarily and unfairly cumbersome complaint that is violative of the Federal Rules." The rambling 210-page complaint, much of which is not set forth in numbered paragraphs, is rife with redundancies and irrelevant and impertinent matter. It includes, among other things, lists of GMA’s counsel’s alleged “captive" state and federal judges, and in reference to the passing of Judge Weiner alleges that he "through death has entered another jurisdiction and has found justice.” Compl. at 17. . Nevertheless, we note that we agree in all respects with the District Court's analysis of why the Wallaces' claims against the non-JADO defendants fail as a matter of law. In particular, the District Court properly applied the doctrines of judicial immunity, judicial privilege, res judicata and collateral estoppel. We further note that, because Wallace has appealed pro se, he may not assert claims on behalf of his wife. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.1991). . The statute of limitations for a § 1983 claim arising in Pennsylvania is two years. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir.1993). The JADO defendants obtained their judgment on April 12, 2005. . The record is devoid of any evidence regarding whether Julian Asencio was authorized to accept service on behalf of JADO Associates or Dorca Asencio. Although "the party asserting the validity of service bears the burden of proof on that issue,” Grand Entm't Gp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.1993), we will assume for present purposes that Julian Asencio was so authorized. . Even if service had been timely, a default judgment still would not have been proper because, as explained below, the complaint fails to state a claim upon which relief can be granted. See Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir.1988) (vacating default entered on legally insufficient claim because a default admits only well-pleaded facts and not legal conclusions). . The District Court dismissed these claims for two reasons—pursuant to Rule 4(m) because service had not been effected within 120 days of filing the complaint, and pursuant to Rule 8 for noncompliance therewith. We review each type of ruling for abuse of discretion. See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir.1996) (dismissals under Rule 4); In re Westinghouse Secs. Litig., 90 F.3d 696 at 702 (dismissals under Rule 8). In this case, the District Court did not provide the Wallaces with notice and an opportunity to respond before sua sponte dismissing their claims. See Fed.R.Civ.P. 4(m) (providing that a district court may dismiss "on motion or on its own after notice to the plaintiff”). Cf. Oatess v. Sobolevitch, 914 F.2d 428, 430 n. 5 (3d Cir. 1990) (explaining that courts may sua sponte dismiss a complaint under Rule 12(b)(6) “so long as the plaintiff is accorded an opportunity to respond”). The District Court also did not properly apply Rule 4(m) because it failed to consider whether the Wallaces had "good cause" for the late service or whether to allow late service in the exercise of its discretion in lieu of dismissal. See Petrucelli, 46 F.3d at 1305-06 (setting forth analysis required under Rule 4(m)). In addition, we have held in other contexts that district courts may not dismiss complaints sua sponte before service of process. See Oatess, 914 F.2d at 430-31 (dismissal under Rule 12(b)(6)); Urbano v. Calissi, 353 F.2d 196, 197 (3d Cir.1965) (dismissal for lack of subject matter jurisdiction). Neither of these cases addressed a situation in which a plaintiff had served process but had done so untimely. In light of our disposition, we need not consider the significance of that distinction. . In addition to his substantive arguments, Wallace asks us.to address whether District Judge Hillman or the District Court Clerk’s Office might be subject to liability for "delaying” the entry of default against the JADO defendants. The Federal Employee defendants rightly argue that Wallace's arguments, raised for the first time on appeal, cannot state a basis for relief, and in any event there is no merit to his assertions, which Wallace himself acknowledges raise only "theoretical” and "hypothetical” issues.

SUMMARY ORDER Petitioner Lian Xin Wang, a native and citizen of the People’s Republic of China, seeks review of an October 15, 2007 order of the BIA denying his motion to reopen. In re Lian Xin Wang, No. [ AXX XXX XXX ] (B.I.A. Oct. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Wang’s untimely motion to reopen. Wang argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen or his prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

MEMORANDUM Brett Anthony Pelch appeals the denial of his habeas petition and dismissal with prejudice. We affirm. The performance of Pelch’s trial counsel was not deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There was a low probability that a motion to suppress would succeed, because the state trial court was unlikely to find that the pretrial publicity created a “very substantial likelihood” of misidentifieation. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The evidence against Pelch was so overwhelming that Pelch was not prejudiced, even if there had been any inadequacy in trial counsel’s not moving to suppress the identifications. Strickland, 466 U.S. at 691, 694, 104 S.Ct. 2052. Trial counsel would not have rendered ineffective assistance even if there would have been “nothing to lose” from making such a motion. Knowles v. Mirzayance, 556 U.S. -, 129 S.Ct. 1411, 1419-22, 173 L.Ed.2d 251 (2009). The performance of Pelch’s appellate counsel was neither deficient nor prejudicial under Strickland. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). It was reasonable for appellate counsel not to argue that trial counsel was ineffective for failing to seek exclusion of the identification evidence. As explained above, trial counsel was not deficient in this respect, so this claim would not have provided grounds for reversal. Appellate counsel could reasonably conclude that raising this argument might do more harm than good by detracting from other arguments. Jones v. Barnes, 463 U.S. 745, 752-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

PER CURIAM: Elvis Joseph Amarame seeks to appeal the district court’s order accepting the magistrate judge’s recommendation to grant in part and deny in part Defendants’ motion to dismiss Amarame’s complaint. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 387 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Amarame seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

PER CURIAM: Darnell Bernie Calloway appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Calloway, No. 7:05-cr-00051-jct-1, 2008 WL 2552861 (W.D.Va. June 25, 2008). See United States v. Hood, 556 F.3d 226 (4th Cir.2009). We deny Callo-way’s motion to consolidate and appoint counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: James Alexander Scott appeals the district court’s order denying relief on his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Scott, No. 1:99-cr-00405-1 (E.D. Va. filed Jan. 5, 2009 & entered Jan. 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma terials before the court and argument would not aid the decisional process. AFFIRMED.

MEMORANDUM Mustafa Janan (“Janan”) appeals a district court order holding him in contempt for his refusal to provide voice exemplars in accordance with a grand jury subpoena. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1826 and 28 U.S.C. § 1291. We apply contract principles to the interpretation of a proffer agreement and review de novo alleged violations of a proffer agreement. United States v. Chiu, 109 F.3d 624, 625 (9th Cir.1997). We affirm. The proffer agreement (“the Agreement”) between Janan and the U.S. Attorney is not ambiguous. The Agreement explicitly states that the government is precluded from directly offering Janan’s statements against him only in its case-in-chief. We have held that similarly worded agreements confer only direct use immunity. Id. at 626. Janan’s attempt to distinguish Chiu on the ground that Janan is a witness, rather than a defendant, is not persuasive. As in Chiu, the government here has not used Janan’s statements against him in its case-in-chief. We reject Janan’s invitation to adopt an expansive definition of the term “case-in chief.” In Chiu, we held that a government’s use of proffer statements to prepare a witness for trial did not constitute use during the case-in-chief. Id. The term “case-in-chief’ refers only to “[t]he evidence presented at trial by a party between the time the party calls the first witness and the time the party rests” or “[t]he part of a trial in which a party presents evidence to support the claim or defense.” Black’s Law Dictionary 229 (8th ed.2004). We reject Janan’s suggestion that the term “case-in-chief’ encompasses preliminary proceedings in any action. No trial has yet taken place, and therefore no case-in-chief has yet been presented. ' Accordingly, the district court’s order is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . Because the government has not violated the Agreement, we do not reach the question whether quashing the subpoena is an appropriate remedy for violation of a proffer agreement.

SWEET, District Judge. Plaintiff, Northwestern National Insurance Company of Milwaukee, Wisconsin (“Northwestern”) has moved for leave to amend its complaint pursuant to Federal Rule of Civil Procedure 15(a) and for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) on the basis of an amended complaint asserting the grounds of equitable, common law and contractual surety rights of exoneration and quia timet. Defendants Raymond Cos-grove, William Curran, James McCabe, John Muller and Robert Norton (the “Cos-grove Defendants”), joined by defendants Randolph K. Pace (“Pace”), Jerry Silva (“Silva”), and Michael McCann (“McCann”), cross-move for leave to amend their Answer and Counterclaim to assert additional affirmative defenses and causes of action and pursuant to Federal Rule of Civil Procedure 20(a) for leave to join Allan Esrine (a/k/a “Ivan Esrine”) (“Esrine”) as a counterclaim defendant. For the reasons set forth below, plaintiffs motion for leave to amend is granted as unopposed. Plaintiffs motion for a preliminary injunction is granted. Defendants cross-motion is granted in part as set forth below. Parties Northwestern is a corporation organized under the laws of the State of Wisconsin with its principal place of business in the State of Wisconsin. Northwestern acted as surety to the limited partners. Benjamin D. Lentz (“Lentz”) is and was counsel for Northwestern during the relevant time periods. Defendant Michael J. Alberts is an individual citizen of the State of New Jersey residing at 56 Winding Way, Little Silver, N.J. 07739. Defendant James A. Alberts is an individual citizen of the State of New Jersey residing at 45 Birchwood R., Glen Rock N.J. 07452. Defendant Richard J. Alberts is an individual citizen of the State of Florida residing at 15714 Warbler Place, Tampa, FL 33624. Defendant Cassandra M. Sheehan is an individual citizen of the State of New Jersey residing at 115 Tower Hill Drive, Red Bank, N.J. 07701. Defendant Raymond J. Cosgrove is an individual citizen of the State of New Jersey residing at 49 Wardell Avenue, Rum-son, N.J. 07760. Defendant Penelope A. Boyle is an individual citizen of the State of New Jersey residing at 19 Riverlawn Drive, Fair Haven, N.J. 07701. Defendant John C. Maucere, Jr. is an individual citizen of the State of New Jersey residing at 51 Maddaset Cellar Avenue, Scotch Plains N.J. 07076. Defendant Jerry Silva is an individual citizen of the State of New York residing at 2594 Norton Place, Bellmore, N.Y. 11710. Defendant Michael L. Methany is an individual citizen of the State of Kentucky residing at 11900 East Arbor Drive, Anchorage, Ky 40223. Defendant H.U.A. Resources, Inc. is a New Jersey corporation having its principal place of business at Box 8250 Red Bank, N.J. 07701. Defendant Alton Jones is an individual citizen of the State of Kentucky residing at Rt. # 2-578, London, Ky 40505. Defendant Arthur Lawson is an individual citizen of the State of Kentucky residing at RD. # 2 Box 674, London, Ky 40505. Defendant John J. Muller., Jr. is an individual citizen of the State of New Jersey residing at 129 Rumson Road, Little Silver, N.J. 07739 Defendant Michael J. O’Connell is an individual citizen of the State of Kentucky residing at 209 Pleasant View Avenue, Louisville, Ky 40206. Defendant Randolph K. Pace is an individual citizen of the State of New York residing at 180 East End Avenue, New York N.Y. 10128. Defendant Michael J. McCann is an individual citizen of the State of New York residing at 620 Fifth Avenue,’ New York, N.Y. 10020. Defendant Southern Companies, Inc', is a New Jersey corporation having its principal place of business at 655 Shrewsbury Avenue, Shrewsbury, N.J. 07701. Defendant William W. Curran is an individual citizen of the State of New Jersey residing at 38 Park Street, Apt. 10-A, Flor-ham Park, N.J. 07832. Defendant James Mason McCabe is an individual citizen of the State of New Jer sey residing at 691 Harding Road, Little Silver, N.J. 07739. Defendant Harold A. Thau is an individual citizen of the State of Connecticut residing at 19 Saugatuck River Road, Weston, Ct 06883. Defendant Patrick J. Rooney is an individual citizen of the State of New York residing at 94 McDougal Street, New York, N.Y. 10012. Defendant Van Allen Capital Corp. is a New York Corporation having its principal place of business at 11 Broadway, New York, N.Y. 10004. Defendant Robert T. Norton is an individual citizen of the State of New Jersey residing at 114 Elm Street, Westfield, N.J. 07090. Prior Proceedings On May 18,1988 Northwestern instituted this diversity suit against defendants. The Cosgrove Defendants filed an Answer to the complaint in August, 1988. In an opinion of the court of July 7, 1989 (“July 7 Opinion”) 717 F.Supp. 148, the Cosgrove Defendants were granted in part leave to amend their initial response to the complaint by filing a counterclaim alleging fraud (Counts I and II), breach of a duty to disclose (Count III), breach of a duty of good faith and fair dealing amounting to constructive fraud (Count IV), and failure to liquidate collateral and/or apply the proceeds thereof on a pro-rata basis to offset the alleged debts (Count V). By letter of January 12, 1990 the Cos-grove Defendants sought to resolve discovery disputes concerning (1) the status of Esrine, a disbarred felon, who had participated in the transactions underlying this suit, allegedly as an agent of Northwestern; (2) the relationship between Northwestern and the former law firm of Finley, Kumble, Wagner, Underberg, Manley, Myerson & Casey (“Finley Kumble”) whose partner was retained by defendants when allegedly the same partner was representing Northwestern on another matter; as ‘ well as (3) the circumstances surrounding Northwestern’s loss of its bond rating in 1984. The letter was treated as a motion returnable on February 2, 1990. Northwestern’s motion for leave to amend and preliminary injunction pursuant to the amended complaint was also returnable on this date. By letter of January 31, 1990, the parties adjourned the motion from February 2 to February 16 allowing defendants to also move for leave to amend. By letter of February 12, the parties adjourned all three motions to March 9, 1990. Oral argument was heard on that date and the motions considered submitted. By letter of March 13, 1990 Pace, and by letter, affidavit, and memorandum of law, Silva and McCann joined in the Cosgrove cross-motion and opposition to Northwestern’s motion. Corrected documentary submissions were made in April by the Cosgrove Defendants. By order to show cause brought on June 14,1990, and returnable the following date, Northwestern sought to preserve the status of the parties on the motions sub judi-ce, in the event that the Merchant Marine Bank (the “bank”) would seek to draw on a letter of credit, thereby requiring Northwestern to pay as surety for the defendants on obligations owing to the bank. Northwestern sought this preservation of the rights, of all parties to prevent rendering the pending motion for quia timet and exoneration moot. Over opposition, by memo endorsement, the posture of the parties was considered unaltered by the bank’s actions pending the outcome of the motions. Facts All of the defendants except Maucere, H.U.A., Muller, Southern, and McCabe were former limited partners of Southern Pipeline Partners (“the partnership”), an Oklahoma limited partnership which was formed for the purpose of constructing and operating a gas pipeline in southeastern Oklahoma. As part of their purchase price of limited partner units of the partnership, the limited partners executed and delivered promissory notes to the partnership. The partners endorsed, assigned, and negotiated these promissory notes to Equi-lease Corporation (“Equilease”). To induce Equilease to purchase the promissory notes, Equilease required the limited partners to deliver a surety bond guaranteeing that the limited partners would make timely payments of principal and interest under their promissory notes. To induce Northwestern, as their surety, to issue such a bond on behalf of the limited partners as principals, each of the limited partners executed and delivered to Northwestern an application for surety bond which contained an agreement to indemnify the surety and an estoppel letter. Northwestern issued its Bond (the “Equi-lease Bond”) in favor of the partnership as the named Obligee, and Equilease as the named permitted assignee. Northwestern guaranteed the limited partners’ obligations under their promissory notes. The partnership made interest and principal payments on the Equilease loan through the Spring of 1986, reducing the principal balance by approximately $925,-000, and thereby reducing the balance due on each of the limited partner’s notes from $185,000 to $160,000 on a per unit basis. The partnership was unable to meet payments due in June 1986 and thereafter. On or about September 30, 1986 and on or about December 16, 1986, Equilease advised Northwestern that the limited partners had defaulted in their obligations under their promissory notes, and demanded payment from Northwestern pursuant to the bond. Northwestern, as surety, made total payments of $2,095,688.66 to Equi-lease, on behalf of the limited partners. In late December, Southern Pipeline Development, Inc. (“Development”), a co-general partner of the partnership and Southern Reserve, Inc. (“Reserve”), the parent company and sole shareholder of Development, advised Northwestern and Equilease of a proposed restructuring of the limited partners’ promissory notes negotiated to Equilease and bonded by Northwestern. In general, the restructuring consisted of (1) the transfer of the partnership’s assets to Reserve; (2) Reserve’s borrowing of $6,845,000 from a new financial institution; (3) the assumption by the former limited partners of the $6,845,000 borrowing by execution of assumption agreements; (4) Northwestern issuing a financial guarantee bond in favor of the new financial institution guaranteeing the payments due under the assumption agreements; (5) Reserve and Development indemnifying Northwestern against all loss, cost and expense it would incur by issuing a new financial guarantee bond, and, as collateral security for their promise to indemnify, would grant to Northwestern a first security interest/mortgage in the transportation system; and (6) Reserve's use of the $6,845,000 loan proceeds to pay Equilease the remaining monies due on the limited partners’ promissory notes (less a discount), reimburse Northwestern for the payments it had made to Equilease on behalf of the limited partners, and establishment of a fund of $700,000 to make improvements to the transportation system. The restructuring was to be consummated on or before December 31, 1986. The limited partners allege that Esrine “masterminded" the entire restructuring with the goal of immunizing Northwestern from “attack” by the limited partners and that throughout, Esrine and Northwestern were “one in [sic] the same.” Allegedly unbeknownst to Alberts or the Cosgrove Investors, Finley Rumble had been representing Northwestern since 1985 in the Gas Reclamation, Inc. Litigation (“GRI”) and in litigation in California at the same time. There is no record of any correspondence advising Finley Rumble’s respective clients of the potential conflict of interest. Northwestern allegedly waived this conflict of interest. The February 12, 1987 Closing At the February 12, 1987 closing, Reserve executed and delivered to the Bank its promissory note (the “Reserve Note”), in the principal amount of $6,845,000 plus interest, and a Pledge and Security Agreement both in favor of the Bank. Pursuant to the. terms of the Reserve Note, the $6,845,000 principal was to be repaid as follows: $2,280,000 on December 31, 1987; $2,280,000 on December 31, 1988; $2,285,-000 on December 31, 1989. In addition, quarterly interest payments were to be due on the first day of March, June, September, and December in each of the those years. The Reserve Note is secured by the Assumption Agreements executed by the defendants, which are in turn secured by Northwestern’s bond delivered to the bank. The Defendants’ Agreements With Northwestern To induce Northwestern to issue the substitute bond on their behalf, each of the defendants allegedly executed an “Agreement with Surety” in favor of Northwestern. Pursuant to the “Agreement with Surety” among other things, the defendants/principals requested Northwestern to issue a new bond on their behalf, and agreed to indemnify Northwestern in the event Northwestern suffered a loss by reason of its issuance of such a bond. As a further inducement to Northwestern to issue the bond, Reserve and Development each executed an indemnity agreement dated February 12, 1987 (the “Indemnity Agreement”) in favor of Northwestern pursuant to which, in effect, they both agreed to indemnify and hold Northwestern harmless from all loss, cost and expense that Northwestern may incur as a result of issuing its bond on behalf of the maker of the Assumption Agreements (Northwestern principals). As security to Northwestern for their obligation under the Indemnity Agreement, Reserve and Development also executed a “Mortgage, Assignment, Security Agreement and Financing Statement” (the “mortgage”), pursuant to which Reserve and Development granted to Northwestern a first mortgage/security interest in the transportation system. In early April 1987, the limited partners’ promissory notes, marked paid, were returned to them by Reserve. The loan Agreement between the bank and Reserve dated February 12, 1987 show payment of $4,153,743.47 via wire transfer to Equilease for the remaining obligations due under the limited partners’ notes held by Equilease. A total of $2,242,652.65 was paid to Northwestern. $2,095,688.66 represented reimbursement to Northwestern for its payment to Equilease on behalf of the limited partners; $24,380.99 represented interest on the amount; and $122,583.00 represented the increased premium for the Merchants Bond. In April 1987 Equilease returned to Northwestern the Equilease Bond. Reserve paid the quarterly installments of interest to the bank due on March 31, 1987 and June 30, 1987. Both Reserve and the makers of the Assumption Agreements (the defendants/principals) defaulted in making each of the subsequent interest payments and the first two annual installments of principal. Northwestern, pursuant to its obligations under the bond, has made payments from November 15, 1987 through November 22, 1989 totalling $5,816,807. Counsel to the bank, Michael Van Dyke (“Van Dyke”) informed Northwestern that no payments were made by the defendants/principals of the final installment of principal $2,285,000 and accrued interest scheduled to be paid on December 31, 1989 and that the bank will be making demand upon Northwestern, the surety, to make payment on behalf of the principals. As soon as demand is made upon Northwestern, Northwestern will make demand upon the defendants/principals to place it in funds pursuant to their obligation. Based upon the prior refusals of the defendants/principals to make any payments to the bank and the posture of this litigation, Northwestern anticipates that the defendants will refuse to place Northwestern in funds. Northwestern’s complaint sets forth two causes of action — for indemnity for the payments Northwestern has made on behalf of each of the makers of the Assumption Agreements, Northwestern’s principals, and for declaratory relief for future payments that Northwestern would be making on behalf of the makers of the Assumption Agreements. Northwestern’s proposed amended complaint is based on the same facts and underlying transactions and only seeks additionally to allege the rights of exoneration and quia timet. The Issue In the instant complaint, Northwestern, as surety, seeks reimbursement of the monies it has paid on behalf of the defendants/principals to the bank arising out of the limited partners’ refusal to honor their obligations under their assumption agreements. Northwestern now seeks leave to amend its complaint to add a new count asserting its surety rights of exoneration and quia timet, and moves for a preliminary injunction to enforce these rights by compelling the defendants/principals to pay into the court their respective portions of the $2,285,000 final installment (plus accrued interest) due to the bank. Leave to Amend Leave to amend is granted as unopposed. Quia Timet and Exoneration Quia timet is a right used to protect a party against an anticipated future injury when it cannot be avoided by a present action at law, for example, by allowing a surety to compel its principal to post collateral for an anticipated liability. Exoneration is the right of a surety to compel its principal to pay for debt for which the surety’s liability already has matured. These rights are equitable, common law, and contractual rights. Admiral Oriental Line v. United States, 86 F.2d 201, 204 (2d Cir.1936) (Hand, J.) (“In equity, ... before paying the debt a surety may call upon the principal to exonerate him by discharging it; he is not obliged to make inroads into his own resources when the loss must in the end fall upon the principal.”) (citations omitted); Filner v. Shapiro, 633 F.2d 139, 142 (2d Cir.1980) (court recognizes the right of a surety to demand the principal “to exonerate him from liability by discharging the debt when due”); Milwaukie Constr. Co. v. Glens Falls Ins. Co., 367 F.2d 964, 966 (9th Cir.1966) (“Not only does a bill quia timet lie to compel the principal to pay the debt after it has become due, but its use has also been extended to compel the principal to furnish the surety indemnity against possible loss where the surety has reasonable grounds for anticipating that his rights are being jeopardized and that he will incur a liability by threatened conduct of the principal.”); Fireman's Fund Ins. Co. v. S.E.K. Construction Co., 436 F.2d 1345, 1349 (10th Cir.1971) {quia timet is available when there is justifiable fear of probable injury); Morley Constr. Co. v. Maryland Casualty Co., 90 F.2d 976, 977 (8th Cir.1937), cert. denied, 302 U.S. 748, 58 S.Ct. 266, 82 L.Ed. 578 (1937) (in addition to being reimbursed after it pays, a surety may “maintain a quia timet suit in equity before any payment,” (quoting Pomeroy’s Equity Jurisprudence § 1417 (3d Ed.)); American Surety Co. v. Lewis State Bank, 58 F.2d 559, 560 (5th Cir.1932) (“A surety is indeed a favorite of equity, which will extend its aid in exoneration, quia timet before he pays.”); Schirm v. Auclair, 597 F.Supp. 202, 208 n. 5 (D.Conn.1984) (the surety had the right “to compel the debtor to pay the debt when it becomes due. This is the familiar common law right of exoneration.”); Georgetown College v. Madden, 505 F.Supp. 557, 593 (D.Md.1980), aff'd in pertinent part, 660 F.2d 91 (4th Cir.1981) (surety has a right to compel the principal to exonerate it); See also 72 C.J.S. Principal and Surety § 303 (1975) (in equity, surety has right to compel principal to exonerate him from liability, to pay the debt, or to secure him against loss). The Cosgrove Defendants assert that whether or not there exists a right for quia timet and exoneration turns on whether the 1987 Surety Agreement signed during the restructuring ■ unambiguously replaces the 1984 Surety Agreement. Nonetheless, because the rights exist in equity and at common law, the disputed contractual foundation for the rights need not be resolved in the present motion. The only relevant contractual issue would be whether the parties contracted away the common law and equitable rights in the 1987 Agreement. Even should the 1987 agreement be construed as a failure to renew contractual rights, however, it makes no attempt to contract away common law and equitable rights. Therefore, Northwestern, even absent a contractual provision, is entitled to invoke the equitable and common law rights of exoneration and quia timet. See Fireman’s Fund Ins. Co., 436 F.2d at 1349 (1971). See also, Wingsco Energy One v. Vanguard Groups Resources 1984, Inc., Civ. H-86-452, 1989 WL 223756 (S.D.Tex.1989) (unpublished memorandum and order) (“contractual, common law and equitable rights are independent, unconditional, and unqualified”). As the Milwaukie Constr. Court stated: Before maturity of the debt, or accrual of liability, for which he is surety, the surety has no right of action in equity to be indemnified against apprehended danger of loss by reason of his undertaking. After maturity, however, in the absence of a present remedy at law, although he has hot paid and has not been troubled by the creditor, or asked by him to pay, he has the right, before payment, to go into a court of equity, at any time, to . compel the principal to exonerate him from liability or to pay the debt, or to secure him against loss, provided no rights of the creditor are prejudiced thereby. The doctrine in such cases rests on the simple right, as between the principal and surety, that the surety has to be protected by the principal; a surety is awarded exoneration in order that mischief and circuity of action may be avoided; he is not obliged to make inroads into this own resources when the loss must in the end fall on the principal. 367 F.2d at 966 (quoting 72 C.J.S. § 303 (1951)). The Cosgrove Defendants contend that Northwestern has failed to demonstrate that loss for which surety is obliged to pay will fall upon the principal when the underlying agreements, including the Surety Agreements, are contested as unenforceable. Additionally, the Cosgrove Defendants claim that there is no danger that the principals are transferring or secreting funds and thus the requirement that there be no adequate remedy at law is absent because Northwestern, if entitled, will be able to pursue monetary damages. To invoke the common law or equitable rights of exoneration a surety must demonstrate that liability is absolute and must in the end rest with the principal, see Admiral Oriental Line, 86 F.2d at 204 (2d Cir.1936), whereas to invoke the doctrine of quia timet, a surety must show reasonable grounds for anticipating that its rights are being jeopardized and thus it will incur a liability by the threatened conduct of the principal. -Suits for Exoneration and Other Special Relief, 17 Forum 344, 345 (1981) (defining the difference between the two rights). Northwestern has satisfied these conditions. There is no dispute over the relations between the parties. Northwestern is the surety for the principals. Northwestern has shown that it has made payments that have come due on behalf of the defendants/principals’ default on those payments to the bank. Northwestern has also shown future, if not immediate, monetary payments are due. A review of this ease and the posture of the parties warrants Northwestern’s fear that the Cosgrove Defendants are not going to make any payments to the bank, nor collateralize Northwestern for the remainder of this litigation. Moreover, Northwestern’s only remedy at law to enforce these rights is the instant motion. See Wingsco at 6 (“denial of Northwestern’s requested relief will forever deny to Northwestern its ability to assert and enforce its quia timet and exoneration rights under the Indemnity Agreements, at common law, and in equity”). The defendant’s contention that a suit for monetary damages, another remedy at law is available, is unpersuasive because the present action seeks a vindication of these rights — to be collateralized while the litigation is pending, not an ultimate settling of the accounts. For the same reasons, the Cosgrove Defendants’ position that all of the underlying agreements and circumstances of this suit indicate that the liability may not fall on the principals in the end is unavailing. The bank is holding surety liable for a debt on which principals/defendants have defaulted. Whether or not principals will be responsible in the end — when the smoke clears and judgment is rendered — is not the issue relevant to this motion. From the surety’s perspective vis-a-vis the bank, the defendants/principals’ liability for debts owing now and in the future must fall on the principals and thus this case is readily distinguishable from the facts presented in Fireman’s Fund Ins. Co. where the Court found that the default by principal had yet to occur. 436 F.2d at 1350. Accordingly, pursuant to the principles of suretyship law, if the Cosgrove Defendants are not required to immediately collateralize the surety, Northwestern will lose its equitable and common law rights to be collateralized prior to payment on obligations due or forthcoming. Standards for a Preliminary Injunction In the Second Circuit, upon a request for a preliminary injunction, a court should examine the following factors: (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious question going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc., v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Irreparable Injury The irreparable injury requisite for the preliminary injunction overlaps with the absent lack of adequate remedy at law necessary to establish the equitable rights. Because the rights will extinguish if not asserted prior to the final payments, Northwestern must vindicate these principles of surety law now. As the Court in Barney found, “[ujnless the injunctive relief requested below is granted, [Northwestern] will not be adequately secured for its obligations and will forever and irreparably lose its rights of quia timet and exoneration.” Northwestern Nat’l Ins. Co. v. Barney, C89-3936 (unpublished memorandum and order) (W.D.Ohio 1988). Therefore, the loss of the rights, not the potential financial loss, constitutes the irreparable harm. Cf Citibank, N.A. v. Singer Co., 684 F.Supp. 382, 386 (S.D.N.Y.1988) (Irreparable injury found where bank’s customer refused to place bank with cash collateral on demand when bank feared it would not be repaid by customer under letter of credit application and agreement). The Cosgrove Defendants admit as much when they state: “that a [contractual] promise to collateralize Northwestern would be meaningless to Northwestern it [sic] if [sic] was forced to await the outcome of the legal action for damages.” Even if Northwestern “relinquished its [contractual] rights” this same logic, defendants’ logic, is equally applicable to the equitable rights — similar to but independent of the contractual rights — that as between principal and surety, surety should be protected by the principal. Likelihood of Success Although the Cosgrove Defendants assert that the “substantial issues regarding the enforceability of the agreements” preclude any finding of likelihood of success, this statement, even if true applies only to the merits of the underlying motions, not the merits of the injunction motion—the exoneration and quia timet claims. As the Court in Wingsco stated: “These contractual, common law, and equitable rights are independent, unconditional, and unqualified. Thus, Northwestern has made a sufficient showing of likely success ■ on the merits to require issuance of the injunction.” Wingsco at 6. Significantly, the Court granted Northwestern a preliminary injunction'after previously denying Northwestern’s motion for summary judgment on the merits and both the Wingsco and the Barney Courts rejected the investors claims that Northwestern could not obtain exoneration and quia timet relief because of the investors’ defenses on the merits of the underlying claims. Sufficiently Serious Questions and Balance of Hardships Under the alternative component for an injunction, there is no dispute over the seriousness of the questions raised. The Cos-grove Defendants contend, however, that as between principals with outstanding defenses and surety who is obligated to pay, surety should pay the money because that is the nature of the surety business and the surety’s obligation is primary and direct. On the contrary, although a surety may be liable and have an obligation to pay the bank, the principals’ liability is primary, the surety’s obligations are secondary. As between the two parties, the balance of hardships decidedly tips in favor of surety who has shouldered the entire amount of payments to date. See 72 C.J.S. § 300 (“between principal and surety equity always lends aid for the protection of surety”) (footnote omitted). Pre-Judgment Attachment The Cosgrove Defendants state that a surety seeking a preliminary injunction for exoneration or quia timet must first comply with the state pre-judgment attachment statute. Nonetheless, the Cosgrove Defendants’ sole support for this proposition is a Tenth Circuit case where an Oklahoma state law explicitly modified the common law rights at issue. No such similar modification exists in New York and defendants have presented no reason why the deposit of funds into the court would trigger Rule 64 of the Federal Rules of Civil Procedure. ' Accordingly, because these doctrines are invoked in and recognized in equity, the Cosgrove Defendants are required to deposit the funds into the court pending the outcome of the underlying merits.. Cross-Motion to Amend the Answer Rule 13(f) of the Federal Rules of Civil Procedure provides “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice so requires, the pleader may by leave of court set up the counterclaim by amendment.” The standards enunciated in the July 7th opinion for leave to amend the initial counterclaims are equally applicable here. See Northwestern Nat’l Ins. Co. v. Alberts, 717 F.Supp. 148, 153 (S.D.N.Y.1989) (construing Rule 13(f) in conjunction with Rule 15(a), considering compulsory nature of counterclaims, whether pleader acted in good faith and timely, and when considering the counterclaim’s merit applying standards under Rule 12(b)(6) construing counterclaims allegations in light most favorable to defendant and accepting allegations as true). According to the Cosgrove Defendants, the First Count of the Amended counterclaim is “essentially a‘consolidation of the fraud claims stated in Counts I and II of the Counterclaim.” The Third, Fourth and Eleventh counts of the Amended Counterclaim are “virtually identical to existing Counts II, IV, and V”. The Seventh, Eight and Ninth Counts state statutory causes of action for securities fraud. The Second (breach of fiduciary duty), Fifth (intentional interference with contractual relations) and Sixth (aiding and abetting another’s breach of fiduciary duty) counts alleged common law torts, all arising out of the common nucleus of facts set forth in the First Count. The Tenth Count is a RICO count. Northwestern does not oppose the proposed new affirmative defenses—twelfth through Seventeenth—and thus leave to assert these is granted. Northwestern contends that the proposed amended and additional counterclaims fail to state a claim upon which relief can be granted and therefore should be denied as futile. The compulsoriness of the counterclaims is not challenged. Rule 9(b) Northwestern opposes the Amended Counterclaim asserting that Rule 9(b) is violated by the “lumping together” of several parties under a “conspiracy” among Northwestern, Michael Alberts, Esrine, Finley Kumble and “numerous [unidentified] others”. Rule 9(b) of the Federal Rules of Civil Procedure provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The Second Circuit recently described three aims served by Rule 9(b): (1) providing a defendant fair notice of plaintiff’s claim, to enable preparation of defense; (2) protecting a defendant from harm to his reputation or goodwill; and (3) reducing the number of strike suits. Di Vittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Rule 9(b) permits a litigant to plead intent generally, as long as the complaint alleges facts sufficient to support an inference of fraudulent intent. See, e.g., Stern v. Leucadia Nat’l Corp., 844 F.2d 997, 1003 (2d Cir.1988), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 109 (1988); Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). When more than one defendant is charged with fraud, however, the complaint must particularize each defendant’s alleged participation in the fraud. Leslie v. Minson, 679 F.Supp. 280, 284 (S.D.N.Y.1988) (citations omitted). Six of the eleven counts implicate Rule 9(b). The factual underpinnings for the fraud claims are all set forth in the First Count and incorporated by reference in each of the succeeding counts. In the July 7th opinion, the counterclaim was found sufficient under 9(b) standards. The amended counterclaim builds on the prior counterclaims and is thus also sufficient under Rule 9(b) for the same reasons set forth in the prior opinion. Northwestern’s objection to the “bare bones” conspiracy allegation is unfounded; the Cosgrove Defendants need not expressly allege an agreement to conspire when the factual allegations will support a finding of conspiracy or at least a tacit agreement by which concerted action may be inferred. See Grosser v. Commodity Exch., Inc., 639 F.Supp. 1293, 1310-11 (S.D.N.Y.1986), aff'd, 859 F.2d 148 (2d Cir.1988) (quoting First Federal Savings and Loan Assoc. v. Oppenheim, Appel, Dixon & Co., 629 F.Supp. 427, 443 (S.D.N.Y.1986)). The Cos-grove Defendants have sufficiently alleged the factual underpinnings of a tacit unlawful agreement and would have leave to amend to replead the phrase “agreed to misrepresent/defraud etc.”. Loss Causation Northwestern’s contention that the Cosgrove Defendants fail to allege “loss causation”, how the misrepresentation caused the loss as opposed to other factors, is persuasive. The defendants have plead that Northwestern made representations inducing defendants into the restructuring agreement and the defendants suffered a loss because of those representations that they would not have suffered had they known the truth because they would then have “walked” as did the released limited partners. Although the Cosgrove Defendants need not prove in the pleadings that there is no other cause underlying the loss, see e.g., Bastian v. Petren Resources Corp., 892 F.2d 680, 685 (7th Cir.1990), cert. denied, — U.S. -, 110 S.Ct. 2590, 110 L.Ed.2d 270 (1990), they must allege that “but for” the misrepresentations “the investment would not have lost its value.” In re Gas Reclamation, Inc. Secur. Litig., 733 F.Supp. 713, 721 (S.D.N.Y.1990). Consequently, assertions that the Cosgrove Defendants would not have entered the restructuring agreement and suffered the alleged loss thereto, namely their posture prior to the restructuring — the forfeiting of their prior defenses to the 1984 promissory notes and their undivided interests in the “previously unencumbered” pipeline is inT sufficient as a pleading. See id. (“Allegations that but for the fraudulent statements and omission, the plaintiffs would not have invested in the transaction in which they lost money are not sufficient.”).' Accordingly, to the extent loss causation is a requirement of the counts pled, the Cos-grove Defendants are granted leave to re-plead consistent with this requirement or if unable to, the claims resting upon loss causation are denied as unable to sustain a motion to dismiss. The Second Count The proposed Second Count alleges a breach of fiduciary duty by Northwestern derived, allegedly, “by virtue, inter alia, of powers of attorney granted by them to Northwestern in connection with both thé 1984 Bond and the 1987 Bond.” Although Northwestern claims that others had powers of attorney, the language of the 1987 Surety Agreement states “I hereby irrevocably appoint Northwestern as my attor ney-in-fact to execute and deliver to the Bank, Southern Reserve, and any other person....” Accordingly, leave is granted to amend the Second Count on the basis of this allegation. Leave is Granted to Amend the Third, Fourth and Eleventh Counts As leave was granted in the prior opinion, to the extent the Cosgrove Defendants-can comply with the loss causation requirements discussed above, leave is granted for the Third and Fourth Counts. The Eleventh Count, contrary to Northwestern’s assertion, has not been mooted by intervening offset proceedings. The Fifth and Sixth Counts Comply with Rule 8 Pleading Requirements Northwestern opposes the claims of intentional interference with contract as con-clusory and not sufficiently pled and the aiding and abetting claim on the already rejected 9(b) ground, the rejected lack of fiduciary ground in the discussion of count two, and failure to allege the factual underpinnings of the claim. Nonetheless, the incorporated facts alleged under Count One are sufficiently pled to withstand this motion, with the exception of the loss causation requirement discussed above that must be demonstrated to satisfy pleading the requirements of aiding and abetting. In Re Gas Reclamation, Inc. Secur. Litig., 733 F.Supp. at 721. The Seventh, Eighth, and Ninth Counts To the extent these claims implicate Rule 9(b) and loss causation, the same conclusions discussed above hold here as well. Additionally, with respect to Northwestern’s contentions that it was not a “control person” or “seller” within the statutory meanings of those appellations, the defendants have alleged facts incorporated under Count One to sustain a claim that Northwestern’s role qualifies as a “control person” within the meaning of the New Jersey Statute. The Cosgrove Defendants have not, however, alleged that Northwestern was a “seller” within the meaning of Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), that it “solicited the sales in question for a financial gain” Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124, 1126 (2d Cir.1989). Although Northwestern admits the financial interest, the Cosgrove Defendants have not alleged that Northwestern or its agent personally solicited the sales for each defendant. See In re Gas Reclamation, 733 F.Supp. at 723 (“Each investor, therefore, must prove that Esrine, as Northwestern’s agent, personally solicited him or her.”). It is not sufficient that the amended counterclaims merely alleges substantial or active participation in the sale of the underlying securities. Id. Consequently, leave to replead the amended claims is granted on the condition that the Cosgrove Defendants can amend to allege that Northwestern or its agent personally solicited the sales for each defendant and meet the loss causation requirement of Eighth Count. The RICO Count Northwestern contests the Cos-grove Defendants amended counterclaims with respect to several components of a RICO claim as set forth by the Second Circuit in Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). The amended complaint sufficiently alleges the RICO defendants to be Northwestern and Esrine as its agent and the predicate acts are pled with sufficient particularity. Pursuant to § 1962(c), defendants in the amended claims have characterized the enterprise as an “association in fact” defined as set forth in United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981) and sufficiently have alleged the common ongoing purpose of this association to the extent that the agreements have continued and the promissory notes underlying the transactions contemplated this ongoing relationship. See In re Gas Reclamation, 659 F.Supp. 493, 517 (S.D.N.Y.1987). Similarly, although Northwestern contends that those predicate acts fail to constitute a “pattern of racketeering activity” encompassing the continuity requirement, the RICO Count alleges a scheme, ongoing in nature beginning no later than July 1986 and continuing through the present. The relatedness and continuity requirements set forth in H.J. Inc. v. Northwestern Bell, — U.S. -, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989), are met here in that the scheme alleged contemplated a long-term course of fraudulent conduct and was executed with over twenty investors in a like manner for a common goal. See also Proctor & Gamble v. Big Apple Indus. Bldgs. Inc., 879 F.2d 10, 17 (2d Cir.1989) (explaining continuity and relatedness requirements). Finally, although the Cosgrove Defendants have alleged injuries ascribed to the RICO violations, for the reasons discussed with respect to loss causation, it is not clear that causation has been established as required. See In re Gas Reclamation, 659 F.Supp. at 518 (causation required to sustain civil RICO action). Accordingly, the-cross-motions to allege the counterclaims are granted only to the extent thesé defects can be cured. The Discovery Motion The motion to compel discovery, made over opposition, is granted as set forth below: Any correspondence between Northwestern and Best for the period 1982-1984 will be produced. The Northwestern file relating to Esrine will be produced with leave granted to apply for additional discovery based on that file if necessary. The Finley Kumble invoices related to the GRI matter will be produced. Conclusion For the reasons set forth above, the motion to compel discovery is granted, the motion for leave to amend and preliminary injunction is granted, and the cross-motion to add Esrine as a defendant is granted and to amend is granted in part to the extent not inconsistent with the above discussion. Settle order on notice. It is so ordered. MEMORANDUM OPINION On Motion for Vacatur and Reconsideration Defendants have moved for vacatur of the July 9th Order (the “Order”) and reconsideration of the June 25th Opinion (the “Opinion”) on which it was based. A portion of this motion was addressed in an order issued in Part I by the Honorable Kenneth Conboy on August 10th 1990. A portion of this motion is withdrawn by an order issued in conjunction with this memorandum opinion and is currently pending appeal to the Second Circuit. The remaining issues addressed herein concern the position of two defendants Norton and Silva, pleading requirements, and the discovery issues addressed in the Opinion and the Order. Defendants Norton and Silva The Opinion at page 429 states that “each of the defendants allegedly executed an ‘Agreement with Surety’ in favor of Northwestern.” The opinion is amended to add the following footnote after the word “allegedly”: Defendant Norton and Silva both contest the validity of the Surety Agreement with Northwestern. Defendant Silva in deposition testimony testified first that the signature on the agreement “looked” like his signature and then that it was not his signature. All parties agree that Defendant Norton did not actually sign the agreement but that his secretary signed and notarized the agreement. A factual hearing must be held to determine whether Silva did sign the agreement and whether Norton authorized the signature of the Surety Agreement (there is no dispute that Norton signed both the Power-of-Attorney and the Assumption Agreement and that Northwestern made payments on behalf of Norton to the Bank) or is estopped from contesting the agreement because either a common law principal/surety relationship had been established or Northwestern reasonably relied upon the apparent authority of Norton’s secretary who executed document. In the interim, the Order to pay into the Court shall not apply to either defendant Silva or Norton. Pleading Requirements Loss Causation , The Order required the Defendants to plead loss causation with respect to the First, (common law fraud), Third (constructive fraud), Fourth (Breach of duty of good faith), Fifth (tortious interference with contract), Sixth (aiding and abetting breach of fiduciary duty), Eighth (federal securities fraud) and Tenth (RICO) Counts of the Counterclaim. The Cosgrove Defendants contend that loss causation is applicable only to the Eighth Count and to the Tenth Count to the extent that the alleged predicate acts consist of securities fraud. First and Third Count The opinion held that whether or not the Defendants plead an agreement to misrepresent is immaterial because the factual underpinnings of a tacit agreement had been pled with sufficiency under Count One. The amended counterclaim may but need not incorporate the express language of the alleged conspiracy. See Grosser v. Commodity Exch., Inc., 689 F.Supp. 1293, 1310 (S.D.N.Y.1986). Count One and Three allege common law fraud, however, and therefore must plead loss or proximate causation under the standard rule of tort law. See Bennett v. United States Trust Co., 770 F.2d 308, 316 (2d Cir.1985) (requiring adequate causation to. plead common law fraud). Fourth, Fifth, and Sixth Counts The Fourth (constructive fraud), Fifth (tortious interference) and Sixth (aiding and abetting breach of duty) counts are common law tort counts and therefore must comply with the standard requirements under tort law, including causation, be it termed loss causation or proximate causation. The Opinion is amended to delete the last sentence of page 435 and the reference to In Re Gas Reclamation, which concerned aiding and abetting with respect to allegations of securities violations. The last line of the Opinion should read and the Order reflect that: “Nonetheless, the incorporated facts alleged under Count One are sufficiently pled to withstand this motion, with the exception of the causation requirement, as discussed above, that must be demonstrated to satisfy the pleading requirements of these common law torts.” Seventh and Ninth Counts Paragraph 3(d) of the order is modified to provide leave to amend to the extent the Seventh and Ninth counts are based upon “control person” liability. To the extent liability is based upon “seller” liability in these counts, leave to amend is granted provided that the Defendants plead that Northwestern personally solicited the sales for each defendant. Eighth and Tenth Count The requirement of loss causation pleading in the Eighth and Tenth Counts is not disputed. Discovery The defendants' assertion that Northwestern has waived any purported right to assert “confidentiality” or privilege as a basis for withholding the documents in question is rejected. The language in the Order stands even though the opinion addressed the relevance of the documents and stated no express finding that the production should be conditioned; Northwestern retains its right to move under appropriate circumstances on the basis of privilege and the defendants’ have set forth no reason, besides waiver, to deny a confidentiality order. It is so ordered. . Default judgments have been entered against H.U.A. and Southern Companies, Inc. Michael J. Alberts and Maucere have filed bankruptcy petitions. . No challenge has been made to the requirements that the activities affect interstate commerce, and the direct or indirect investment or participation in the enterprise. . "Personally" is used as "directly” not as "in-person” as the Defendants have sought to read the Opinion for purposes of reargument. See In re Gas Reclamation, Inc. Securities Litig., 733 F.Supp. 713, 723 (S.D.N.Y. 1990).

PER CURIAM: Annis Recardo Lloyd appeals the district court’s order dismissing as frivolous his 42 U.S.C. § 1983 (2000) action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lloyd v. Jordan, No. 5:08-ct-03037-BO (E.D.N.C. Oct. 16, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: Dennis Purnell, federal prisoner # 40677-004, appeals the dismissal of his 28 U.S.C. § 2241 petition, which challenged his 1997 drug and firearms convictions and sentences. He argued that his convictions violated the Double Jeopardy Clause because they subjected him to multiple punishments based on the same evidence and course of conduct, that the verdicts were inconsistent, and that he is actually innocent of the crimes of conviction. Because Purnell challenged errors that occurred at or before sentencing, his claim could not be asserted in a § 2241 petition. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.2000). Moreover, Purnell has not met his burden of showing that he is entitled to proceed under § 2241 via the savings clause of 28 U.S.C. § 2255 solely because his first § 2255 motion was dismissed as untimely. See Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir.2000). Accordingly, the district court’s dismissal of Purnell’s § 2241 petition is AFFIRMED. Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4.

PER CURIAM: James Gatewood Blakely seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition and the district court’s order denying his motion for reconsideration. The orders are not appeal-able unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any disposi-tive procedural ruling by the district court is likewise debatable. Miller-El v. Cock-rell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Blakely has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

MEMORANDUM Alberto Hernandez-Amparan appeals from the 33-month sentence imposed following his jury-trial conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment. Hernandez-Amparan contends that the district court erred at sentencing by incorrectly assuming that he was subject to a twenty-year statutory maximum penalty pursuant to 8 U.S.C. § 1326(b)(2). We conclude that Hernandez-Amparan has failed to demonstrate that any error affected his substantial rights. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir.2008). At the government’s request, we remand the case to the district court with instructions to correct the reference in the judgment to § 1326(b)(2). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000). AFFIRMED; REMANDED to correct the judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Pro se appellant David Henderson brought suit against Ramona Schuenemeyer, Regional Commissioner of the Social Security Administration, seeking recovery of a social security insurance payment that was allegedly deposited into a wrong account. The district court adopted the magistrate judge’s report and recommendation, which concluded that the court lacked subject matter jurisdiction and that Henderson failed to state a claim. The district court dismissed Henderson’s claim with prejudice. On appeal, Henderson does not contend that the district court’s legal conclusions were incorrect. See Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir.1987). Instead, Henderson argues that both the district court judge and the magistrate judge were biased against him in violation of his due process rights and alleges that the district court judge met secretly with Schuenemeyer outside of Henderson’s presence. Henderson presents no evidence indicating bias on the part of either judge or suggesting that the district court judge had any interaction with Schuenemeyer. Therefore, we AFFIRM the district court’s dismissal with prejudice. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

MEMORANDUM Leonard Kalajyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) (No. OS-77277). Kalajyan also petitions for review of the BIA’s denial of his motion to reopen removal proceedings (No. 07-73372). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003). We dismiss in part and deny in part the petition for review No. 05-77277. We deny the petition for review No. 07-73372. With respect to petition for review No. 05-77277, we lack jurisdiction to review the IJ’s determination that Kalajyan failed to timely file his asylum application because the underlying facts are disputed. Cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Accordingly, we dismiss his contentions regarding his asylum claim. Substantial evidence supports the IJ’s conclusion that any harm Kalajyan suffered during the two incidents in which his father was arrested did not rise to the level of persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995). Substantial evidence also supports the IJ’s conclusion that the harm Kalajyan suffered because he was suspected of murder was not on account of a protected ground. See Dinu v. Ashcroft, 372 F.3d 1041, 1044-45 (9th Cir.2004); see also Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir.2001) (personal retribution is not persecution on account of a protected ground). Finally, the record does not compel reversal of the agency’s conclusion that a fundamental change in circumstances rebutted the presumption of a clear probability of future persecution. See 8 C.F.R. § 1208.16(b)(l)(i)(A). Accordingly, Kalajyan’s withholding of removal claim fails. Substantial evidence supports the IJ’s conclusion that mistreatment Kalajyan suffered did not rise to the level of torture, and further, that he has not shown it is more likely than not that he would be tortured if he returned to Armenia. See Kumar v. Gonzales, 444 F.3d 1043, 1055-56 (9th Cir.2006). With respect to petition for review No. 07-73372, the BIA did not abuse its discretion in denying Kalajyan’s motion to reopen as untimely because it was filed more than one year after the BIA issued its final order, see 8 C.F.R. § 1003.2(c)(2), and Kalajyan failed to demonstrate changed circumstances in Armenia to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 G.F.R. § 1003.2(c)(3)(ii). PETITION FOR REVIEW in No. OS-77277 DISMISSED in part; DENIED in part. PETITION FOR REVIEW in No. 07-73372 DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

SUMMARY ORDER Petitioner-appellant Alfonso Forney appeals from a judgment of the District Court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which petitioner alleged that (1) his plea in state court was not knowing and voluntary, and was accepted in violation of the Fifth Amendment to the United States Constitution, see Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); and (2) he received ineffective assistance of counsel during his plea and sentencing proceedings in state court in violation of the Sixth Amendment to the United States Constitution, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In May 2001, following a jury trial in state court at which petitioner was convicted of sodomy in the first degree. In March 2003, the Appellate Division, Second Department, vacated the conviction on the grounds that the trial court had improperly denied petitioner the right to represent himself. See People v. Forney, 303 A.D.2d 763, 763, 757 N.Y.S.2d 455 (2d Dep’t 2003). On July 24, 2003, petitioner pleaded guilty to one count of attempted sodomy in the first degree in exchange for a promised sentence of four years’ imprisonment—effectively, time served—and a five-year period of post-release supervision. At a sentencing hearing on August 7, 2003, after the court reviewed the terms of post-release supervision, petitioner’s counsel moved to withdraw his plea on two grounds: (1) petitioner was “unclear about the[] conditions of post-release supervision,” and (2) petitioner “[wa]s not guilty.” J.A. 50 (Tr. of Proceedings, Aug. 7.2003, 15:12-17). Addressing the court directly, petitioner himself explained that he was concerned about two post-release requirements: (1) having to maintain employment (“I like to have [the] freedom to do what I want to do. For me to be forced to maintain employment, this is something I’m going to violate immediately. I don’t work.”); and (2) a curfew (“I’m twenty-five years old. I got to go by a curfew?”). J.A. 52 (Tr. of Proceedings, Aug. 7, 2003, 17:9-12, 17-18). The trial court denied petitioner’s motion to withdraw his plea, and the Appellate Division, Second Department, unanimously affirmed. See People v. Forney, 17 A.D.3d 481, 481, 792 N.Y.S.2d 335 (2d Dep’t 2005) (“The plea minutes indicate that the defendant knowingly, intelligently, and voluntarily entered his plea of guilty.”). The New York State Court of Appeals denied petitioner’s application for leave to appeal. See People v. Forney, 5 N.Y.3d 762, 762, 801 N.Y.S.2d 256, 834 N.E.2d 1266 (2005). Petitioner initiated habeas corpus proceedings in January 2006. In an unpublished Memorandum and Order entered August 1, 2007, the District Court denied relief, principally on ground that a court is not obliged to inform a defendant prior to a guilty plea of the conditions of post-release supervision that might be imposed on him. The District Court concluded that any other defects in the plea were harmless. Nevertheless, the District Court granted a certificate of appealability on September 14,2007. We review a district court’s grant or denial of a writ of habeas corpus de novo and its findings of fact for clear error. See, e.g., Clark v. Perez, 510 F.3d 382, 389 (2d Cir.2008). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a federal court may grant habeas corpus relief on a claim adjudicated on the merits in state court only if the adjudication was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Upon review of the record before us, we cannot say that the state court’s adjudication was contrary to clearly established Federal law or involved an unreasonable determination of the facts. We agree with the Appellate Division’s conclusion that petitioner “knowingly, intelligently, and voluntarily entered his plea of guilty.” For-ney, 17 A.D.3d at 481, 792 N.Y.S.2d 335; accord Brady, 397 U.S. at 748, 90 S.Ct. 1463 (holding that guilty pleas “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences”). We have considered petitioner’s remaining arguments, including his claim of ineffective assistance of counsel, see Strickland, 466 U.S. at 687, 104 S.Ct. 2052, and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.

SUMMARY ORDER Petitioner Xiao Lian Weng, a native and citizen of the People’s Republic of China, seeks review of an August 31, 2007 order of the BIA denying her motion to reopen. In re Xiao Lian Weng, No. [ AXX XXX XXX ] (B.I.A. Aug. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Wang’s untimely motion to reopen or in finding her ineligible to file a successive asylum application. Weng argues that the BIA erred in concluding that she failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing her motion to reopen or her prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... .it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Similarly, the BIA’s determination that Weng was ineligible to file a successive asylum application was not in error. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

MEMORANDUM Les Hegel appeals the denial of his application for Supplemental Security Income benefits. The case centers on the administrative law judge’s (“ALJ”) determination that Hegel does not have a severe mental limitation that limits his ability to work. The parties are familiar with the facts, which we repeat here only to the extent necessary. “Although the contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician’s opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record.” To-napetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001) (citing Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir.1989)); see also Lester v. Chater, 81 F.3d 821, 831 n. 8 (9th Cir.1995) (noting reasons justifying rejection of an examining physician’s opinion need not support rejection of treating physician’s opinion). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995) (internal citations omitted). Here, examining psychologist Dr. John Arnold suggested that Hegel was somewhat limited in his ability to work, despite finding that Hegel exaggerated reports of psychopathology. Dr. Joyce Everhart diagnosed Hegel with malingering, noted that Hegel “appears to be functioning within normal limits,” and observed that Hegel did not appear to be giving his best effort on mental tests, yet concluded, in a check-the-box statement, that Hegel had moderate limitations. Non-examining expert Dr. J.M. Toews testified that none of Hegel’s conditions created limitations as severe as those put forth by Drs. Arnold and Everhart. Substantial evidence supports the ALJ’s exclusion of the examining physicians’ opinions. In addition to contrary findings by the non-examining medical expert, the ALJ’s decision was based on inconsistencies in the medical opinions, reports of malingering and invalid test results, and the ALJ’s finding that Hegel was not credible. Moreover, the examining physicians’ “checked box” limitations were not supported by objective findings. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004) (“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings ... ”) (internal citations omitted). These reasons constitute specific, legitimate reasons to support the ALJ’s findings. Hegel also argues that the ALJ erred by finding that Hegel’s personality disorder does not constitute a severe impairment because personality disorders constitute a severe impairment by definition. This argument has no merit. “The evaluation of whether an impairment(s) is ‘severe’ ... requires an assessment of the functionally limiting effects of an impairments) on an individual’s ability to do basic work activities.” SSR 96-3p. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Hegel also argues that the ALJ improperly rejected the opinion of a treating physician, Dr. Ashley. Hegel’s memorandum of authorities filed in the district court, however, only presents arguments regarding Drs. Arnold and Everhart. His argument regarding Dr. Ashley is raised for the first time on appeal, and we do not address it here. See Bolker v. Comm’r of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.1985) (“As a general rule, we will not consider an issue raised for the first time on appeal”).

ORDER DENYING CERTIFICATE OF APPEALABILITY STEPHEN H. ANDERSON, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this proceeding. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Donald Gee, an inmate at the Wyoming State Penitentiary, proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the dismissal of his petition for a writ of habeas corpus. The petition did not specify whether it sought habeas relief pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241. It did cite the All Writs Act, 28 U.S.C. § 1651, which is not applicable here. Aso without reference to a particular habeas statute, the district court dismissed the petition on the ground that it addressed only the conditions of Mr. Gee’s confinement. Those conditions include his placement in long-term administrative segregation, a regression in his classification from “AD SEG IV to AD SEG III,” and a finding of guilty with respect to a disciplinary charge filed against him on July 7, 2008. For the reasons stated below, wé agree with the district court that Mr. Gee’s complaints relate solely to the circumstances of his confinement and that a petition for a writ of habeas corpus, whether pursuant to § 2254 or § 2241, is an improper vehicle for redress of those claims. Accordingly, we deny a certificate of ap-pealability and dismiss the matter. BACKGROUND According to Mr. Gee, he has now served approximately twenty-eight years in prison for an aggravated robbery conviction. Documents which he submitted indicate that he will complete his minimum sentence on November 18, 2021, and that he has a parole board date sometime in the second quarter of 2009. Mr. Gee has been before the Tenth Circuit on more than twenty occasions, either on appeals or attempts to appeal. Among those proceedings, in 1996, Mr. Gee brought a civil action pursuant to 42 U.S.C. § 1983 contending that certain officers at the Wyoming State Penitentiary violated his rights to substantive and procedural due process, equal protection, and freedom from cruel and unusual punishment, by arbitrarily and capriciously placing him in administrative segregation “in an effort to break his spirit.” Duffy. v. Uphoff No. 96-8017, 108 F.3d 341 (10th Cir. Feb.27, 1997) (unpublished). That action was dismissed by the district court as frivolous, and the dismissal was affirmed by this court. See id. In 1998, we dismissed as frivolous a combined appeal in two other civil rights actions filed by Mr. Gee, this time contesting, among other things, a lack of access to a law library. Gee v. Shillinger, Nos. 96-8124, 97-8033, 134 F.3d 382 (10th Cir. Jan.27, 1998) (unpublished). In our opinion in that appeal, we imposed filing restrictions pursuant to 28 U.S.C. § 1915(g), as follows: We direct the clerk of this court not to accept any further appeals of judgments in civil actions or proceedings or any extraordinary writs in noncriminal matters, other than habeas, from Gee unless he pays the filing fees established by our rules. Gee, 134 F.3d at 382. Perhaps in response to those restrictions, Mr. Gee denominated his proceeding in this case as one seeking a writ of habeas corpus, notwithstanding the general similarity of the allegations in the present case to those raised in appeal Nos. 96-8017, 96-8124 and 97-803 referred to above, and other complaints of alleged civil rights violations. In any event, Mr. Gee’s petition in this case alleges that since March 16, 2005, he has been placed (apparently for non-punitive reasons) in administrative segregation at the Wyoming State Penitentiary “pending investigation into possible sleepwalking disorder, and until housing issues [are] resolved.” Pet. ¶ 8. In addition, Mr. Gee asserts that he has been arbitrarily regressed from administrative segregation level IV to administrative segregation level III, resulting in a loss of privileges. Finally, the petition alleges that disciplinary charges were unfairly filed against him in July 2008 in retaliation for his complaints about a new system for awarding privileges and about his assignment to level III. He claims he was denied due process in the disciplinary proceedings because he was not allowed to call witnesses or to submit documentary evidence. Mr. Gee’s petition describes the root of his classification problems and assignment to a single-occupancy cell in administrative segregation, to be a sleep disorder which makes it impossible for him to control his behavior during rapid eye movement (REM) sleep. Mr. Gee allegedly walks in his sleep and, when asleep, trashes his cell and does injury to himself. Id. ¶¶ 17-20. Arguably, this disorder renders him incapable of sharing a cell with another inmate, so he insists on a single-occupancy cell. The petition further asserts that single-occupancy cells have not been made available to Mr. Gee in the general population because no such cells are available due to overcrowding. The relief sought by the petition includes: referral to an outside sleep disorder specialist for a determination as to whether or not Gee’s sleep walking requires single-cell occupancy in the general population, and for treatment; assignment to one of the two cells in the general population unit that are designated for single-cell occupancy (although allegedly not available due to the size of the prison population); expungement of the disciplinary guilty finding of August 1, 2008; an order protecting Mr. Gee from racism, discrimination and retaliation; and, a writ of habeas corpus releasing Mr. Gee from custody allegedly approximating “Supermax” confinement, and transferring him to the general prison population. Id. § VH(d)(j). The petition does not contain any allegation with respect to earned or good time credits; nor does it seek any relief with respect to such credits or anything else relating to the duration of his sentence. Rather, as indicated above, Mr. Gee’s complaints are limited to his classification within the prison, including privilege levels and assignment to administrative segregation, the imposition of discipline in August 2008, and alleged racism and retaliation. DISCUSSION A. In order for this court to grant a COA, Mr. Gee must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court’s denial of habeas relief is based on procedural grounds, he must demonstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A court need not pass on the constitutional issues raised by Mr. Gee if he cannot make a threshold showing that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect.” Id. at 485, 120 S.Ct. 1595. In reviewing Mr. Gee’s pleadings, we must accord them the special solicitude applicable to pleadings filed by prisoners proceeding pro se. See, Erickson v. Par-dus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007). A proceeding seeking a writ of habeas corpus is subject to a predicate state court exhaustion requirement, and to the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1). As to the former, Mr. Gee alleges that there is no state procedural mechanism which allows Wyoming courts to review the type of Wyo ming Department of Corrections actions involved here. Pet. ¶¶ 28-30. Thus, exhaustion is impossible. As to the latter, we note that the one-year statute of limitations forecloses any review of Mr. Gee’s assignment to administrative segregation in 2005, as set out in the petition. But, the petition renews these arguments with respect to actions taken in 2008. B. As the district court observed, and as set out above, Mr. Gee’s petition deals only with the conditions of his confinement: indefinite housing in administrative segregation versus special single-cell occupancy housing in the general population; regression to special status level III, restricting privileges with respect to property and activity; lack of treatment for an alleged sleep disorder; and, procedure and result relating to disciplinary proceedings commenced in July 2008. The petition does mention, in passing, race, equal protection, and retaliation, but the allegations are con-clusory, and, in any event, relate only to the circumstances just described. Nothing in the petition relates directly to or questions the fact of Mr. Gee’s conviction or the duration of his sentence. The Supreme Court has explained the role of habeas and civil rights actions as follows: Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004); see also Hill v. McDonough, 547 U.S. 573, 579, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Mr. Gee contends that the office of a writ pursuant to § 2254 is broad enough to encompass petitions seeking a transfer from administrative segregation to the general prison population. In support, he cites a § 2254 case, in which a panel of the Seventh Circuit suggested that habeas (presumably § 2254) applies to petitions where the prisoner is “seeking not earlier freedom, but transfer from a more to a less restrictive form of custody.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.1991). The opinion offered the following as a generalization:. If the prisoner is seeking what can fairly be described as a quantum change in the level of custody—whether outright freedom, ... or the run of the prison in contrast to the approximation to solitary confinement that is disciplinary segregation—then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law, even if, as will usually be the case, the program or environment that he is challenging is more restrictive than the alternative that he seeks. Id. Even giving that dicta some weight here, it is distinguishable from Mr. Gee’s assignment to administrative segregation for the past three-plus years, since the petition itself establishes that the assignment was not disciplinary but a purely administrative response to Mr. Gee’s “medical” condition and single-cell occupancy needs. Regardless, the general proposition stated in Graham has not gained any significant traction, and, following the Supreme Court’s opinion in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), it has been questioned. In Sylvester v. Hanks, 140 F.3d 713 (7th Cir.1998), another panel of the Seventh Circuit reviewed a § 2254 case challenging an order transferring a prisoner to confinement in disciplinary segregation for three years. At the outset it expressed reservations about the propriety of using § 2254 as a vehicle to challenge the prisoner’s changed custody status, stating: We confess to some doubt that this ease should proceed under § 2254. Sylvester does not seek earlier release from custody.... Instead, he contends that his custody should take one form (the prison’s general population) rather than another (segregation). Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of “custody.” Id. at 714 (citation and parenthetical omitted). More directly to the point, the Tenth Circuit has not countenanced the use of § 2254 as a vehicle for challenging circumstances of confinement unrelated to the fact or duration of a prisoner’s custody, and we hold that § 2254 is not available to Mr. Gee in the circumstances challenged in his petition. The remaining question is whether § 2241 is available to Mr. Gee as a vehicle to seek a transfer from administrative segregation to the general prison population, as well as for other conditions of confinement relief. This circuit has held that § 2241 most appropriately applies to government action that inevitably affects the “duration of the petitioner’s custody.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (emphasis added); Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir.2001) (“Prisoners who raise constitutional challenges ... to administrative segregation ... or suspension of privileges ... must proceed under § 1983....”). Since, as explained above, Mr. Gee’s petition challenges only administrative decisions affecting his day-to-day circumstances and prison privileges, then, under the facts presented here, § 1983, not § 2241, is the statute under which he must proceed. C. Requiring claims like those here to be pm-sued in a civil rights action does not risk their dismissal under the rule of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court ruled that where success in a prisoner’s § 1983 action would implicitly question the validity of conviction or length of detention then a successful habeas action must precede it. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Obviously, since we hold here that Mr. Gee’s claims cannot proceed under § 2254 or § 2241, the rule in Heck would not apply. Mr. Gee is neither expressly nor implicitly attacking his incarceration pursuant to his original judgment of conviction. And, he is not challenging the duration of his confinement. Accordingly, Heck would not apply to a subsequent civil rights action by him. CONCLUSION We hold that Mr. Gee’s claims cannot proceed under either § 2254 or § 2241. On the face of this petition, such a conclusion, and its concomitant and procedural dismissal, are not debatable by jurists of reason. Accordingly, Mr. Gee’s application for a certificate of appealability is DENIED; his motion for leave to proceed in forma pauperis is DENIED; and, this proceeding is DISMISSED. This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . A COA is required in proceedings under both § 2254 and § 2241. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.2000) (holding that § 2253(c)(1)(A) requires a state prisoner to obtain a COA regardless of whether he is seeking relief under § 2254 or under § 2241). . Of course we do not express or imply any opinion with regard to the merits of a § 1983 action brought by Mr. Gee raising these same claims. . In Muhammad, 540 U.S. at 751 n. 1, 124 S.Ct. 1303, the Supreme Court noted that ‘‘[t]he assumption is that the incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules."

MEMORANDUM Anacleto Urias-Soto, his wife Georgina Romero-Flores, and their minor child Eduardo Perez-Romero, natives and citizens of Mexico, petition pro se for review of the decision of the Board of Immigration Appeals denying, as untimely filed, their motion to reopen the underlying denial of their application for cancellation of removal based on their failure to establish the requisite hardship to a qualifying relative. Petitioners have waived any challenge to the BIA’s order denying their motion to reopen by failing to raise any arguments related to the BIA’s dispositive determination that the motion to reopen was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996). This court lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). PETITION FOR REVIEW DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM S.J. Amoroso Construction Company, Inc. (“Amoroso”) appeals from the district court’s order granting summary judgment to Executive Risk Indemnity Inc. (“Executive Risk”) in its suit seeking coverage under a Directors & Officers insurance policy (“D&O Policy”). We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 776 (9th Cir.2009), we reverse in part and affirm in part. The district court erred by ruling that Amoroso was not entitled to coverage under the D&O Policy for claims stemming from Paul Mason’s alleged misrepresentations because he acted in his individual capacity, and not on behalf of the insured organization. California law provides that employees may be said to act within the scope of their employment, even when their actions are not authorized by their employer, so long as their actions are not so “unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992, 1003, 47 Cal. Rptr.2d 478, 906 P.2d 440 (1995) (internal citation omitted). Based on the record before us, we cannot conclude that Mason’s acts were so “unusual or startling” that they should be classified as actions taken in his individual capacity. Under Insuring Clause 1(C) of the D&O Policy, Mason’s alleged misrepresentations qualify as a wrongful act committed by the insured organization. Though Mason’s alleged misrepresentations fall within the scope of Insuring Clause 1(C), we must consider whether the D&O Policy’s exclusion of coverage for claims arising from a contract or agreement applies. Under California law, “[wjhereas coverage clauses are interpreted broadly to afford the greatest possible protection to the insured, exclusionary clauses are construed narrowly against the insurer.” Continental Cas. Co. v. City of Richmond, 763 F.2d 1076, 1079 (9th Cir.1985). “Exceptions to the performance of the basic underlying contract obligation must be clearly stated to apprise the insured of the effect of those exceptions.” Id. Considering this standard, the construction contract between Mauna Kea Properties, Inc. (“Mauna Kea Properties”) and DAP cannot form the basis for a complete exclusion of coverage under Exclusion 111(C)(2), which excludes claims “arising from” liability “under any written or oral contract or agreement.” In the litigation brought by Mauna Kea Properties (“Mauna Kea litigation”), Mau-na Kea Properties alleged that Amoroso made negligent or intentional misrepresentations that induced Mauna Kea Properties to contract with DAR. This theory of liability in the Mauna Kea litigation depends on the fact that Amoroso was not a party to the construction contract and, therefore, did not have liability under the contract (when Mauna Kea allegedly thought that Amoroso would). To that extent, Amoroso’s liability is not liability under a contract or agreement, and Executive Risk may not rely on Exclusion 111(C)(2) to deny coverage. There remains a triable issue of fact, however, about whether the correspondence between Mason and Mauna Kea Properties concerning the potential assignment of the construction contract created a separate contract or agreement under which any potential liability on the part of Amoroso would be excluded from coverage. On remand, the district court should consider whether, under California law, the letter correspondence amounted to a contract or agreement by Amoroso to, in effect, guarantee DAP’s performance of the construction contract. If it did, Executive Risk permissibly denied coverage pursuant to Exclusion 111(C)(2) to the extent that Amoroso’s liability arose under the letter correspondence. Where there is a genuine issue of liability, the insurer, as a matter of law, could not have acted in bad faith in denying coverage. See Lunsford v. Am. Guar. & Liab. Ins. Co., 18 F.3d 653, 656 (9th Cir.1994). The district court, therefore, did not err in granting summary judgment to Executive Risk on Amoroso’s claim of bad faith due to Executive Risk’s denial of coverage. We leave it to the district court to determine in the first instance whether Amoroso has stated a claim of bad faith based on a breach of the duty to defend, and, if so, whether Amoroso should prevail on such a claim. Amoroso’s arguments that the district court committed procedural error are without merit. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. Costs on appeal are awarded to Amoroso. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Reshonda McNeal, an African-American woman, appeals from the district court’s grant of summary judgment in favor of her employer, the City of Tarrant, Aabama, in her racial discrimination suit filed pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. McNeal alleged that the City diseriminatorily failed to promote her. On appeal, she argues that the district court erred in finding that she could not establish a prima facie case of discrimination because she had not shown that she was qualified for an upgrade of position or that she was similarly situated to the white employees who received upgrades. The City argues that her appeal is frivolous and moves for expenses, attorneys’ fees, and double costs in the amount of $15,358.83, pursuant to Fed.R.App.P. 38. I. We review a district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir.2000). Summary judgment will be granted if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Sierminski, 216 F.3d at 949. “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A Title VII claim based on circumstantial evidence is analyzed according to the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. at 1824. In a failure-to-promote case, the plaintiff may satisfy this burden by showing that (1) she belongs to a protected class, (2) she applied for and was qualified for a promotion, (3) she was rejected despite her qualifications, and (4) other equally or less-qualified employees outside her class were promoted. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir.2004). The comparators for the fourth prong must be “similarly situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Section 1981 has “the same requirements of proof and use[s] the same analytical framework” as Title VII. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998). McNeal failed to present any sufficient evidence that she was qualified prior to October 2007 to receive the general upgrade she had requested. She also failed to present any sufficient evidence that she ever requested a temporary upgrade or that she was qualified at any time to receive one. In addition, the undisputed facts show that her three suggested comparators never received general upgrades, but that they were all qualified to receive, and did receive, temporary upgrades. Accordingly, the district court did not err in finding that she failed to establish a prima facie case of discrimination. Upon review of the record and consideration of the parties’ briefs, we discern no reversible error. Accordingly, we affirm the district court’s judgment. AFFIRMED. . Because McNeal neither argues the merits of her 42 U.S.C. § 1983 claim against Mayor Loxcil Tuck nor contests the district court’s finding that Tuck had qualified immunity from suit, she has waived any appeal from the grant of summary judgment in Tuck’s favor. See Farrow v. West, 320 F.3d 1235, 1242 n. 10 (11th Cir.2003). . The City also moves to dismiss the appeal on grounds of frivolity and McNeal’s failure to post the bond imposed by the district court pursuant to Fed.R.App.P. 7. When an appellant fails to post a required appeal bond, dismissal is available as a sanction. Carr v. Grace, 516 F.2d 502, 504 (5th Cir.1975). Likewise, ”[i]f it shall appear to the court at any time that an appeal is frivolous and en tirely without merit, the appeal may be dismissed.” 11th Cir. R. 42-4. However, McNeal appears to have made good-faith efforts to obtain an appeal bond. Moreover, we are not persuaded that the appeal is frivolous. Furthermore, because the City did not move to dismiss until after the appeal had been fully briefed by both parties, the City will not be prejudiced by a decision on the merits. Accordingly, we deny the City’s motion to dismiss and proceed to resolve the appeal on the merits. . Although McNeal argues that we should not use the traditional prima facie model for discrimination, there simply is not enough evidence of discrimination to support the use of a modified version that she asserts we should use. Compare Schoenfeld v. Babbitt, 168 F.3d 1257 (11th Cir.1999). As discussed above, not only were her suggested comparators upgraded in a different way than she sought to be promoted but she could not be upgraded in the same way. Furthermore, two of them were stripped of their temporary upgrades when they did not achieve the necessary score on the test, and McNeal was promoted when she achieved it. . We decline to award sanctions to the City. . McNeal’s request for oral argument is denied.

MEMORANDUM Renzhang Liu, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review. The agency determined that Liu’s failure to submit his fingerprints was a sufficient reason to deny his application for relief. The agency, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289, 1292-95 (9th Cir.2008) (holding IJ’s denial of petitioner’s request for a continuance constituted an abuse of discretion where law governing fingerprint requirement was unclear and uncertain, and IJ did not warn petitioner that failure to submit new fingerprints in advance of merits hearing could result in pretermission of her claims); see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008) (reaching same result as in Cui). We therefore grant the petition for review and remand for the BIA to reconsider Liu’s appeal. See Cui, 538 F.3d at 1292-95. In light of our disposition, we need not address Liu’s due process contention. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

SUMMARY ORDER Mohamed Bahaa El Din Hamdy was convicted, following a jury trial in the United States District Court for the Western District of New York (Skretny, /.), of making a materially false statement and concealing a material fact in violation of 18 U.S.C. § 1001(a)(1)—(2), making and using a materially false document in violation of 18 U.S.C. § 1001(a)(3), and subscribing to a materially false statement on an immigration application in violation of 18 U.S.C. § 1546(a). He was sentenced principally to time served. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Hamdy argues that the district court erred in admitting into evidence an unredacted version of a letter he sent military officials in support of his request for a discharge in lieu of trial by court martial, also referred to as a Chapter 10 request. In that letter, Hamdy stated he “faced discrimination because of [his] religion and [his] race, and was called a terrorist” during his time in the military. Hamdy’s counsel moved to redact Hamdy’s reference to being “called a terrorist.” The district court admitted the unredacted letter after confirming that it was written by Hamdy. Federal Rule of Evidence 403 permits a district court to exclude otherwise relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice.” Hamdy relies on our prior holding that “[t]o avoid acting arbitrarily, the district court must make a conscientious assessment of whether unfair prejudice substantially outweighs probative value.” United States v. Salameh, 152 F.3d 88, 110 (2d Cir.1998) (per curiam) (citation and internal quotation marks omitted). We agree with Hamdy that the district court failed to conduct “a conscientious assessment of whether unfair prejudice” resulting from admission of the unredacted letter “substantially outweigh[ed its], probative value.” Thus, the district court acted “arbitrarily.” Nonetheless, we conclude that admission of the unredacted letter, even if error, was harmless. Any prejudice resulting from admission of the unredacted letter was minimal. The reference to terrorism was contained in a string of complaints, made by Hamdy himself, about Hamdy’s alleged mistreatment while in the military. Thus, the reference did not imply that Hamdy faced actual charges of terrorism, but instead was merely intended to support Hamdy’s request for leniency in his discharge proceedings. Furthermore, to the extent that the instant statement reasonably could be characterized as objectionable, the government did not call attention to the statement when it was admitted or during argument; therefore, it is unlikely that jurors focused on the statement in rendering a verdict. Hamdy also argues that the district court plainly erred twice in responding to questions from the jury during deliberations. First, Hamdy argues that the district court had a duty to offer to read back testimony when the jury requested a transcript. Hamdy cites United States v. Zarintash, 736 F.2d 66 (3d Cir.1984), in which the Third Circuit held that it was error for the trial court not to order portions of testimony to be read back to the jury after it requested transcripts. Id. at 70-71. However, in Zarintash, the district court refused all requests by defense counsel to read testimony to the jury. Id. at 69. The trial court even refused to inform jurors that they could have testimony read back if requested. Id. In this case, the district court instructed the jury that it could not have transcripts because they did not yet exist, but made clear that testimony could be read back by the reporter. Second, Hamdy contends that the district court improperly discouraged jurors from requesting that testimony be read back. This Court has “held that a court’s decision to refuse to allow readbacks of testimony when requested by the jury during deliberations is within the court’s broad discretion.” United States v. Criollo, 962 F.2d 241, 243 (2d Cir.1992). “[A] court’s response to a jury request for a readback should balance the jurors’ need to review the evidence before reaching their verdict against the difficulty involved in locating the testimony to be read back, the possibility of undue emphasis on a particular portion of testimony read out of context, and the possibility of undue delay in the trial.” Id. The district court’s responses to the jury-struck a fair balance between a willingness to read back testimony “if it helps,” and a desire to minimize the tedious process of locating and reading back portions of the transcript. The court’s responses were well within its broad discretion. For the foregoing reasons, the judgment of the district court is AFFIRMED.

MEMORANDUM “Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000). Here, Louis Chiaramonte (“Chiaramonte”) presented no evidence that he was unaware of his injury, or that he acted with any diligence to investigate whether he had a claim under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Therefore he is not entitled to equitable tolling: “The absolute lack of any effort on his part to inquire about available options defeats his equitable tolling claim.” See Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116, 1120 (9th Cir.2006). Chiaramonte also argues that his employer, Santa Cruz Big Trees & Pacific Railway Co. (“SCBT”), should be equitably estopped from asserting the statute of limitations against him because SCBT helped him to receive California workers’ compensation but did not inform him of his potential FELA claim. The equitable estoppel analysis “focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit.” Santa Maria, 202 F.3d at 1176. In order to assert equitable estoppel, the plaintiff must demonstrate both actual and reasonable reliance on the defendant’s conduct or representations. Id. It was unreasonable for Chiaramonte to assume that SCBT’s assistance with obtaining workers’ compensation indicated that no federal remedies were available. See Huseman, 471 F.3d at 1123-24 (finding same). Accordingly, we AFFIRM. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Christopher A. Odom appeals the district court’s order accepting the recom mendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Odom v. Ozmint, No. 3:07-cv-00343-PMD (D.S.C. Oct. 30, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

BOYCE F. MARTIN, JR., Circuit Judge. This is a pro se civil rights action brought by Michigan inmate Luis Ruiz under 42 U.S.C. § 1983. Ruiz contends that the defendants violated his due process rights by tampering with a videotape showing he did not commit an assault upon prison guards for which he received prison disciplinary sanctions and an assault conviction in state court. The district court dismissed Ruiz’s suit as an attack on the length of his sentence, which is not cognizable under § 1983. We AFFIRM. I. Luis Ruiz is a prisoner at the Bellamy Creek Correctional Facility in Ionia, Michigan, where he is serving a two-to-four-year sentence for assaulting a prison guard consecutive to an eight-to-twenty-year sentence for assault with intent to do great bodily harm. Ruiz’s sentence for assaulting a prison guard arose out of a physical altercation with three guards at Marquette Branch Prison on July 12, 2000. The guards reported that Ruiz spit on them repeatedly as they led him back to his cell from the shower and that he then resisted their attempts to put him into his cell, bit one guard (allegedly to infect him with hepatitis C), and kicked another. Ruiz received four major misconduct sanctions for his alleged role in the incident: two for assault resulting in serious injury (staff victim); one for assault (staff victim); and one for “threatening behavior.” On July 20, a department of corrections hearings officer found Ruiz guilty of all four counts. The following week, Ruiz was charged with assault by the Marquette county prosecutor based upon the same conduct. Ruiz pleaded guilty to this charge. On August 8, Ruiz filed a grievance with prison officials, claiming that the guards had attacked him. This grievance was denied internally. Ruiz then filed a civil suit against the guards and a succession of habeas petitions challenging his assault conviction. His civil claim was eventually dismissed on summary judgment. Ruiz filed the instant suit while his third habeas petition was pending. It is an action brought under §§ 1988, 1985(8), and 1986 seeking damages arising out of constitutional violations he alleges occurred in connection with the internal investigation and review of the July 12, 2000 incident. Ruiz alleges (1) that defendants violated his rights under the Eighth and Fourteenth Amendments by altering an exculpatory surveillance tape in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) that defendants conspired with Marquette prosecutors to alter the tape in -violation of his right to Equal Protection of the laws (§§ 1985/1986 claim). He seeks $20,000 in compensatory damages and $15,000 in punitive damages from each defendant. He also seeks court-appointed counsel and additional discovery relating to his claims. The district court dismissed Ruiz’s suit for failure to state a claim because it concluded that Ruiz’s suit is a challenge to the duration of his confinement. It reasoned that the major misconduct sanctions made Ruiz ineligible to earn disciplinary credits under Michigan law, and that a favorable result would require credits to be reinstated and would thus shorten his sentence. Based upon this finding, the district court held that Ruiz’s suit was not cognizable under § 1983. See Edwards v. Balisok, 520 U.S. 641, 646-47, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The district court did not address Ruiz’s § 1985(3) and § 1986 claims. Ruiz appeals. II. The standard of review for a district court’s dismissal of a complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(b) is de novo. Thomas v. Eby, 481 F.3d 434, 437 (6th Cir.2007). Dismissal of a plaintiffs complaint for the failure to state a claim on which relief may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id. The Court must read plaintiffs pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and accept plaintiffs allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). III. 1. Section 1983 Claims A. Official Capacity Ruiz’s damages claims against the defendants in then official capacities are barred by the Eleventh Amendment because they are deemed to be against the state itself, and Michigan has not waived its immunity to suit. See, e.g., Doe v. Wigginton, 21 F.3d 733, 736-37 (6th Cir.1994). B. Individual Capacity Habeas corpus is the sole means for an inmate to challenge the legality or length of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). So damages claims that necessarily imply the invalidity of the defendant’s conviction or sentence are not cognizable under § 1983 unless the conviction or sentence has previously been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Otherwise, prisoners would be able to use § 1983 to circumvent the exhaustion requirements of the federal habeas corpus statute. Preiser, 411 U.S. at 490-92, 93 S.Ct. 1827. This “prior invalidation” rule extends to challenges to prison disciplinary sanctions that affect the length of the defendant’s sentence, such as the loss of “good time” credits. Edwards, 520 U.S. at 646-47, 117 S.Ct. 1584. Here, Ruiz alleges that Marquette prison staff and Marquette county prosecutors conspired to alter evidence material to his innocence of the assault for which he received prison sanctions and was later charged in state court. The district court dismissed Ruiz’s suit solely based upon its effect on his right to earn disciplinary credits under state law. But that ruling was contrary to this Court’s interpretation of Michigan law in Thomas v. Eby, 481 F.3d 434, 440 (6th Cir.2007). However, we may affirm on any ground supported by the record, Ley v. Visteon Corp., 543 F.3d 801, 805-06 (6th Cir.2008), and because we find that Ruiz’s suit implies the invalidity of his assault conviction, we affirm. While Ruiz’s filings in this case are not altogether clear, it is apparent that his legal theory implicates not only the internal misconduct sanctions he received, but also his subsequent conviction for assault. This conviction, which Ruiz refers to throughout his filings, arises out of the same facts as his misconduct sanctions, was based upon the same evidence, and, he alleges, involved the same Brady violation. For example, in his complaint, Ruiz states: “The video tape was matinal [sic] to Plaintiffs case in all cases filed prior to Plaintiff filing his 28 U.S.C. § 2254 writ of habeas corpus presently before this court.” The habeas petition Ruiz refers to is not a challenge to any internal sanction he received, but to his assault conviction. This petition alleges essentially the same Brady claim as this suit. Likewise, in his appellate brief, Ruiz states: Plaintiff has established that the Marquette Prosecutors Gary Walker and Derek Swanjanen committed professional misconduct by withholding the edited video tape done by Superior Reproduction of Marquette at the urgence of defendants Hofbauer, Caruso, Pennell, Place, Lauma, with advicement [sic] of the Michigan State Police Det./Sgt. Jean Belanger as the collectively had a meeting and reviewed the video tape on July 13, 2000. These state officials violated Plaintiff[s] Due Process and sought to cover up the infliction of corprol [sic] punishment by editing and altering the video tape of July 12, 2000 acting under color of law committed conspiracy pursuant to 42 U.S.C. § 1985, 42 U.S.C. § 1986. The prosecutors ... used the badge of their authority to violate Plaintiffs Equal Protection and Due Process rights acting as state official[s]. ... These defendants retaliated by seeking to maliciously prosecute plaintiff and at the same time edit and alter the video tape withhold [sic] from plaintiff through the course of every hearing, prison and circuit court with Judge Sol-ka. Appellant’s Br. at 2-3 (emphasis added). Along the same lines he later states: These defendants contracted Superior Reproduction of Marquette and the Marquette Prosecutor to discuss the editing and altering the evidence that would have exonerated plaintiff.____ The malicious prosecution of plaintiff and the prosecutors and state police making false reports from defendants place critical incident report of July 13, 2000 was a violation of plaintiffs Due Process Rights for the purpose of inflicting Cruel and Unusual Punishment while withholding the video tape from plaintiff at every stage of the circuit court proceedings after being bound over from the district court where the prosecutor did not produce the video tape for plaintiff s defense. Appellant’s Br. at 6 (emphasis added). Similarly, in his objections to the magistrate’s recommendation and report, Ruiz states: “Plaintiffs disciplinary hearing on July 20, 2000 was conducted in violation of plaintiffs [right to] Due Process and Equeal [sic] protection of the law that lead [sic] to a malicious prosecution in violation of the Eighth Amendment.” Shortly thereafter, Ruiz alleges once again: “The Defendants and their subordinates acted with willful intent to violate plaintiffs] civil rights to maliciously prosecute plaintiff by tampering with ‘Brady exculpatory evidence’ and using the prosecutor’s office and Michigan State Police to take that evidence and withhold it from palintiff [sic] during the course of the malicious prosecution.” Because Ruiz alleges a Brady violation in his assault prosecution, the Supreme Court’s decision in Heck v. Humphrey is directly on point. See Heck, 512 U.S. at 479, 114 S.Ct. 2364. As the Court held in Heck, a Brady violation is a reversible eiTor, so a suit seeking damages for a Brady violation necessarily implies the invalidity of the underlying conviction. Heck, 512 U.S. at 490, 114 S.Ct. 2364 (affirming the court of appeals’ holding that the plaintiffs Brady claim challenged the legality of his conviction); see also Perez v. Sifel, 57 F.3d 503, 505 (7th Cir.1995); Hale v. Fee, 52 F.3d 325 (6th Cir.1995). So, because Ruiz’s suit attacks the validity of his assault conviction and that conviction has not been previously set aside, he does not have a cognizable claim under § 1983. Accordingly, we affirm the district court’s dismissal of Ruiz’s § 1983 claim. 2. Section 1985(3) and Section 1986 Claims The district court did not address Ruiz’s claims under § 1985(3) and § 1986. However, because Ruiz has failed to state a claim under either theory, we will affirm the district court’s dismissal of Ruiz’s suit. Ley, 543 F.3d at 805-06. To state a claim under § 1985(3), a claimant must allege both membership in a protected class and discrimination on account of it. Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir.2000). In other words, the suit must allege action because of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Id. at 559-60 (citing United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 829, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)). Ruiz makes no such allegation, so he fails to state a claim under § 1985(3). See Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir.1998). And, because § 1986 is derivative of § 1985, he also fails to state a claim under § 1986. See Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.1980). IV. In addition to compensatory and punitive damages, Ruiz seeks appointment of counsel and discovery relating to his civil rights claims. Because we find that he has failed to state a claim under any of his legal theories, we decline to appoint Ruiz counsel or order discovery. V. For the foregoing reasons, we AFFIRM the ruling of the district court. . The suit alleged excessive force and deliberate indifference to medical needs. The district court granted summary judgment for defendants, and this Court affirmed. Ruiz v. Martin, 72 Fed.Appx. 271 (6th Cir.2003). To the extent Ruiz attempts to reintroduce those issues here, they are barred by res judicata. . The prison does not give prisoners access to security footage for security reasons. The tape was reviewed by prison officials at his disciplinary proceeding and was produced in state court after Ruiz requested it. The judge found that it was neither inculpatory nor exculpatory. Ruiz claims it has been altered. . In his appellate brief Ruiz raises a challenge to the conditions at his current place of confinement. Because this claim was not presented to the district court, we decline to address it.

ORDER James McRoy appeals the dismissal, on untimeliness grounds, of his civil rights complaint alleging that prison officials were deliberately indifferent to his safety when he was attacked by a fellow inmate. We affirm. This suit is procedurally complicated because McRoy’s allegations are intertwined with another complaint that he previously filed in May 2006. In that complaint he alleged that he contracted hepatitis B while in jail, and that the defendants either failed to vaccinate him when requested or failed to treat him after he contracted the virus. The district court recruited counsel to represent McRoy, but two separate counsel withdrew, and so in November 2007 the court allowed McRoy additional time to amend his complaint to explain why each defendant might be liable. The following month he amended his complaint to implicate additional prison officials (he named more than fifty) and to elaborate upon their general ineffectiveness in protecting him from the virus, but he also added an entirely new claim—that the officials had been deliberately indifferent to an assault made upon him more than three years earlier, in June 2004. According to McRoy, officials had instituted a policy prohibiting inmates from spending all day in their cells; as a result of being forced out of his cell for part of the day, he says, he was left vulnerable to attack, and indeed was attacked by another inmate wielding a steel crutch and broom taken from the medical unit. The district court screened the complaint under 28 U.S.C. § 1915A and again noted defects—the complaint, for instance, asserted unrelated claims against different defendants. The court dismissed the complaint without prejudice and invited McRoy to submit, within 30 days, a second amended complaint asserting only related claims and alleging how each defendant was responsible for each claim. The court also alerted McRoy that the statute of limitations applicable to claims brought under 42 U.S.C. § 1983 in Illinois is two years, and that mere negligence is insufficient to support a § 1983 claim. In May 2008, McRoy again amended his complaint; he excised any reference to the assault and confined his claim to alleging only deliberate indifference in his contracting the hepatitis B virus. The court eventually dismissed the complaint with prejudice for failure to state a claim. McRoy v. Sheahan, No. 06 C 3033 (N.D.Ill. Jan. 8, 2009). The circumstances surrounding the assault, however, became the basis of a new complaint (and the subject of this appeal) that McRoy filed also in May 2008. In this complaint, McRoy renewed his claim that jail officials acted negligently and with deliberate indifference to his safety when their poor security practices led to an attack by a fellow inmate. The district court, suspecting that the suit was barred under the two-year statute of limitations for § 1983 actions filed in Illinois, ordered McRoy to show cause why his complaint concerning events more than four years earlier should not be summarily dismissed as time-barred. McRoy responded that his complaint was timely because he first sued under § 1983 as early as May 2006, which was less than two years after his assault in June 2004. The court disagreed, finding that the newly filed complaint did not relate back to the May 2006 complaint because it did not arise out of the same transaction or occurrence. That earlier complaint dealt solely with allegations about the contracting of hepatitis B; it neither mentioned the inmate attack nor explained how any of the defendants might have been responsible in allowing the attack to occur. Because the allegations regarding the attack did not arise from the same transaction or occurrence mentioned in that earlier complaint, the new complaint was untimely and had to be dismissed. The court denied McRoy’s subsequent motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. On appeal, McRoy renews his contention that his complaint is timely because his claims regarding the assault in June 2004 relate back to the complaint he filed in May 2006. McRoy, however, misunderstands the concept of relation back. Under Illinois law (the relevant state law here, see Fed.R.Civ.P. 15(c)), an amended complaint relates back to the original complaint only if the new claim arises from the same transaction or occurrence. 735 ILCS 5/2—616(b); Phillips v. Ford Motor Co., 435 F.3d 785, 787-88 (7th Cir.2006) (citing Chandler v. Ill. Cent. R.R. Co., 207 Ill.2d 331, 278 Ill.Dec. 340, 798 N.E.2d 724, 732-33 (2003)). But McRoy’s new complaint concerns the attack in June 2004, whereas the May 2006 complaint targeted MeRoy’s contracting of hepatitis B. Because the new complaint did not relate back to the earlier complaint, the district court did not err in finding it untimely. AFFIRMED.

MEMORANDUM The California state court decision was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). The admission of Rodriguez’s redacted statement did not violate Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because the statement only incriminated Melendez when “linked with other evidence introduced at trial.” United States v. Hoac, 990 F.2d 1099, 1105 (9th Cir.1993). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

ORDER On October 14, 2008, Wayne Adams sued Detective Jeffrey Rotkvich of the Des Plaines, Illinois Police Department under § 1983 for violating his constitutional rights in connection with his arrest and subsequent prosecution. The district court dismissed Adams’s complaint for lack of subject matter jurisdiction. Adams appeals. We affirm, although on different grounds. After stopping and arresting Adams for a traffic violation on the night of May 19, 2005, the arresting officers transported him to the police station in Des Plaines, Illinois. In his complaint, Adams alleged that early in the morning of May 20 at the police station, Detective Rotkvich improperly arrested him for battery after he threw a toothpick at Rotkvich. He also claimed that Rotkvich used legal process against him “to accomplish a purpose for which the process was not designed,” namely “to punish [Adams] and to show him that’[Rotkvich] was the Boss.’ ” Adams listed these allegations under two § 1983 counts: malicious prosecution and abuse of process. Before Rotkvich was served with process, the district court dismissed the case for want of subject matter jurisdiction. We review de ! novo a district court’s dismissal for lack of subject matter jurisdiction. Johnson v. Orr, 551 F.3d 564, 567 (7th Cir.2008). The Supreme Court has held that “a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes ... is wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946); accord Greater Chicago Combine & Ctr., Inc. v. City of Chicago, 431 F.3d 1065, 1069 (7th Cir.2005); Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1180 (7th Cir.1989). Although similar to the standard for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the standard for dismissing a complaint for insubstantiality is “considerably more rigorous.” Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1256 (7th Cir.1994). Indeed, we have observed the Supreme Court’s use of exacting adjectives to describe the level of insubstantiality required for a case to be dismissed on this ground: “ ‘wholly,’ ‘obviously,’ or ‘plainly’ insubstantial or frivolous; it must be ‘absolutely devoid of merit’ or ‘no longer open to discussion.’” Ricketts, 874 F.2d at 1182 (quoting Hagans v. Lavine, 415 U.S. 528, 536-39, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)). Against this backdrop, we consider whether Adams’s complaint was sufficient to invoke federal jurisdiction. We turn first to the malicious prosecution claim. In Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.2001), we held that, in light of the Supreme Court’s “effective holding” in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), malicious prosecution is not a constitutional tort if state law provides a remedy for malicious prosecution. Newsome also held that lili- nois provides such a state-law remedy. Id. Therefore, Adams’s malicious prosecution claim was not cognizable under § 1983 and thus was wholly insubstantial. Similarly, and consistent with our holding from Newsome, we conclude that abuse of process is not a free-standing constitutional tort if state law provides a remedy for abuse of process. Illinois provides such a remedy. Podolsky v. Alma Energy Corp., 143 F.3d 364, 372 (7th Cir.1998) (citing Kirchner v. Greene, 294 Ill. App.3d 672, 229 Ill.Dec. 171, 691 N.E.2d 107, 116 (1998)). Accordingly, Adams’s claim for abuse of process also was not cognizable under § 1983 and thus was plainly insubstantial. However, we also recognized in Newsome that a plaintiffs factual averments maybe actionable under § 1983 if they allege a violation of a specific constitutional provision, such as the Fourth Amendment, 256 F.3d at 750-51, even though a parallel cause of action exists under state law, McCullah v. Gadert, 344 F.3d 655, 659-60 (7th Cir.2003). Adams alleged that Rotkvich lacked a warrant and probable cause for his arrest, which essentially is a claim for false arrest under the Fourth Amendment. See Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir.2005) (“[A] false arrest is an unreasonable seizure prohibited by the Fourth Amendment.”); Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 899 n. 9 (7th Cir.2001) (“[A] claim for false arrest is a claim for the harm of being unlawfully imprisoned through some extrajudicial act that does not amount to legal process, for example, when a police officer performs a warrantless arrest without probable cause.”). Therefore, those allegations were substantial enough to invoke federal jurisdiction under a Fourth Amendment false arrest claim. “However, we have previously held that if remanding a case dismissed for want of subject matter jurisdiction would be futile because [the] appellant has also failed to state a claim upon which relief can be granted, we will affirm the district court, even though the dismissal for lack of subject matter jurisdiction was improper.” Gammon, 27 F.3d at 1256. In dismissing Adams’s suit, the district court suggested that Adams’s potential false arrest claim was barred by the statute of limitations. We agree. Under Illinois law, a § 1983 false arrest claim is subject to a two-year statute of limitations. Wallace v. City of Chicago, 440 F.3d 421, 425 (7th Cir.2006), aff'd sub nom. Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Kato, the Supreme Court held that “the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” 549 U.S. at 397, 127 S.Ct. 1091. Because Adams’s complaint was not filed until October 14, 2008—which is more than two years after he was subjected to legal process—the statute of limitations clearly bars his recovery on the false arrest claim. Therefore, Adams has failed to state a § 1983 claim for false arrest for which relief can be granted. Adams does not identify any other constitutional provision under which his factual allegations might plausibly state a claim for relief. Accordingly, the district court’s dismissal is AFFIRMED AS MODIFIED. . Even though statutes of limitations are affirmative defenses ordinarily raised by defendants, a district court may, on its own motion, dismiss a suit based on an affirmative defense that is apparent and unmistakable from the face of a complaint (thus rendering the suit frivolous) before the defendant files an answer. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002); see also Gleash v. Yus-wak, 308 F.3d 758, 760 (7th Cir.2002) (holding that the district court could dismiss a suit as frivolous based on an applicable affirmative defense even though the defendants had not yet been served with process). . Adams attempts to evade the statute of limitations bar on his false arrest claim by label ing it as one for malicious prosecution under the Fourth Amendment. However, a § 1983 plaintiff cannot avoid the statute of limitations by re-characterizing what is at bottom a false arrest claim as one for malicious prosecution. Newsome, 256 F.3d at 751; Williams v. Heavener, 217 F.3d 529, 531 (7th Cir.2000) (collecting cases). . To the extent that Adams contends he was prosecuted without probable cause, we repeatedly have rejected the idea that the Fourth Amendment protects a defendant’s interest in not being prosecuted groundlessly and the related concept of a continuing seizure. Bielanski v. County of Kane, 550 F.3d 632, 638 (7th Cir.2008).

PER CURIAM. For the reasons stated by the District Court in its opinion, the judgment below is affirmed. Associated Stores, Inc. v. Industrial Loan & Invest. Co., D.C.E.D. N.C., 202 F.Supp. 251. Affirmed.

ALVIN B. RUBIN, Circuit Judge: In this copyright-infringement suit, a jukebox operator found guilty of willful infringement of music performance rights challenges the district court’s findings of willfulness and the number of infringements and the court’s calculation of damages. We hold that the court did not err in finding the infringements willful, but that some of the evidence proving that the defendant owned jukeboxes on which infringements took place was inadmissible hearsay and, therefore, findings of infringement based solely on this evidence cannot stand. We therefore affirm in part, reverse in part, and remand for the court to determine how many infringements were proved by the remaining, admissible evidence. I. The plaintiff, Broadcast Music, Inc. (“BMI”), is a nonprofit licensing organization that obtains public-performance rights in copyrighted musical compositions and collects royalties to be distributed to the artists. The defendant, Xanthas, Inc., which does business in Louisiana as TAC Amusement Co., owns and operates hundreds of jukeboxes, video games, pinball machines, and billiard tables that it places in various establishments. BMI sued Xanthas and its owner, John J. Elms, Jr., in federal district court, alleging that Xanthas had committed fifteen acts of copyright infringement at four locations in July and August 1986. The complaint alleged that Xanthas had failed to pay the required fee to the U.S. Copyright Office for licenses to operate its jukeboxes and had then played on them compositions in which BMI held the performance rights. BMI later amended its complaint to allege 182 infringements at 22 different locations between May and November 1986. The amended complaint sought an injunction against further infringements and damages of at least $250 for each infringement claimed. The action was stayed against Elms, who had declared bankruptcy. Xanthas stipulated that it owned seven of the jukeboxes and had committed 44 of the infringements, but it contended that it did not know whether it owned the remaining jukeboxes on which the infringements allegedly took place. After a bench trial, the district court entered judgment for BMI. 674 F.Supp. 553. In its findings of fact, the court stated that each of the 182 infringements alleged had occurred on the dates and in the locations alleged and that on each date, Xanthas had owned and operated the jukebox on which the songs were played without having paid the copyright office the required registration fee. The court found that Xanthas knew of the registration requirement, having paid registration fees between 1978 and 1981 and having been apprised of its delinquency by BMI, but had “willfully neglected” to pay registration fees from 1984 through 1986. Because BMI had elected, as was its right, to take the “statutory damages” authorized by § 504(e) of the Copyright Act, the district court concluded that BMI could recover between $250 and $50,000 for each infringement. The court then stated that the “proper” measure of damages was three times the amount of Xanthas’s unpaid registration fees. In calculating the number of jukeboxes Xanthas owned, and thereby its delinquent fees, the court found that Xanthas had owned 586 jukeboxes in 1984, that it had owned 584 jukeboxes through 1987 but had proved only 27 of these to have been registered in that year, and finally that “rounding off the number of jukeboxes that defendant Xanthas owned in 1984-87 to 500 per year is in the best interest of justice.” The court there fore awarded $319,500 in statutory damages, calculated as follows: No. of Amount Year jukeboxes Fee Amount tripled 1984 500 $50 $25,000 $ 75,000 1985 500 50 25,000 75,000 1986 500 50 25,000 75,000 1987 500 63 31,500 94,500 $319,500 Xanthas appeals, challenging the court’s finding of willfulness, the evidence by which the infringements and Xanthas’s jukebox ownership were proved, and the court’s method of calculating damages. II. Under the Copyright Act of 1976, a jukebox operator who wishes to play copyrighted music must, unless he has specific permission from the copyright owner, register his jukeboxes with the United States Copyright Office and pay an annual registration fee to the Copyright Office, which then forwards the fees to the principal performance-rights societies such as BMI. The society then distributes the money pro rata to those of its members who created or owned the music. A jukebox operator who fails to register his jukeboxes and then performs copyrighted music infringes the copyright and is subject to penalties provided by the Copyright Act. Under 17 U.S.C. § 504(c), a copyright owner who has proved an infringement may elect before final judgment, as BMI did here, to receive “statutory damages” instead of his actual damages or the in-fringer’s profits. Statutory damages may range from $250 to $10,000, “as the court considers just,” “for all infringements involved in the action, with respect to any one work.” If the court finds the infringement was committed willfully, the court “in its discretion” may increase the statutory award to no more than $50,000. As this language makes clear, BMI's and the district court’s focus on the number of infringements in the calculation of damages was misplaced. The House committee report on the statutory-damages provision states pellucidly: “A single infringer of a single work is liable for a single amount between $250 and $10,000, no matter how many acts of infringement are involved in the action_Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded.” Even on appeal, however, Xanthas has not challenged the district court’s failure to enter a finding concerning the number of “separate and independent” works infringed. We will not, therefore, reverse the district court on this basis but will permit the entry of a damage award premised, even if incorrectly, on the number of infringements. III. There is no merit in Xanthas’s claim that its infringement was not willful. Xanthas admits that it knew of the registration requirements and made a conscious decision to violate them; it argues only that its violation was not “deliberate” because it could not afford to pay the fees. A defendant acts “willfully” within the meaning of § 504(c)(2), however, if he knows his actions constitute an infringement; the actions need not have been malicious. Faced with a financial inability to pay the fees required by law, Xanthas could have approached BMI and sought permission, temporary or otherwise, to play copyrighted songs. Instead, it chose to stay in business and use BMI’s music without paying for it. That was patently willful. IV. Xanthas next argues that some of the evidence used to prove its ownership of jukeboxes on which infringements allegedly took place was inadmissible hearsay and therefore the district court’s finding concerning the number of infringements cannot stand. BMI first argues, concerning this as well as other claims of error, that any mistake the district court committed is harmless because the damage award the court entered fell within the wide range permitted by § 504(c)(1) and (2). Under this section, while the district court is bound by the rule that it must award damages according to the number of “separate and independent” works infringed, the court enjoys wide discretion in setting the amount of damages for each work infringed and hence the final amount of damages. Section 504(c) authorizes the court to award an amount from $250 to $10,000 for each work infringed “as the court considers just,” and to increase the per-work-infringed award to $50,000, “in its discretion,” for willful infringements. The statute by its terms places no further limits on the district court’s discretion. Indeed, in Douglas v. Cunningham, the leading case on the standard of review of statutory-damage awards, the Supreme Court stated: “[T]he employment of the statutory yardstick, within set limits, is committed solely to the court which hears the case, and this fact takes the matter out of the ordinary rule with respect to abuse of discretion.” The Court therefore reversed the court of appeals’ restriction of the district court’s damage award of $1 per copy. Even considering only the 44 infringements to which Xanthas stipulated, therefore, the district court had discretion to award anything from $11,000 (44 X $250) to $2,200,000 (44 X $50,000) in statutory damages. If BMI proved all of the infringements it alleged, the maximum award permitted would be $91,000,000 (182 X $50,000). The district court’s award of $319,500 obviously falls well below the maximum, however computed. Section 504(c), however, does not give the district court discretion to premise its award on a number of infringements not proved by admissible evidence. As we stated in our only reported decision on the statutory-damages provision, damages may not be awarded “without a hearing or a demonstration by detailed affidavits establishing the necessary facts.” That the district court enjoys such wide discretion in fixing the amount of damages for each work infringed makes it all the more important that we review its premise as to the number of works infringed (in this case, the number of infringements). Because, moreover, the court’s decision is so discretionary, we cannot tell how it would have ruled had it premised its decision on a different number of infringements. We therefore see no merit in BMI’s argument that any error in determining the number of infringements is harmless because the eventual award was within the permissible range. For the same reason, we are not persuaded any error was harmless because the court eventually calculated damages according to unpaid registration fees rather than infringements. The court might have used a different measure had it found a different number of infringements. Xanthas argues that 138 of the 182 infringements, those to which it had not stipulated, were proved by inadmissible hearsay evidence. Much of the evidence proving these infringements came in the form of testimony from Scott Martin, a BMI attorney in charge of monitoring jukebox owners’ compliance with the registration requirements. Martin read the responses of proprietors of establishments with jukeboxes to questionnaires that BMI had sent asking who owned the jukebox in their establishment. The proprietors themselves did not testify. BMI argues that Xanthas is es-topped to deny its ownership and operation of the fifteen jukeboxes in dispute because Xanthas failed to produce documents that BMI had requested regarding its ownership of its jukeboxes. BMI, however, never moved under Federal Rule of Civil Procedure 37 to compel the production of this evidence. Sanctions such as estoppel may be imposed under Rule 37(b) for failure to produce documents only when the court has entered an order compelling discovery. The pretrial order stated that “immediate receipt of such documents would expedite plaintiff’s preparation of this case for trial or preparation of a motion for summary judgment.” Although Xanthas had not produced the documents by the time of trial, BMI never sought, and the district court never entered, sanctions for this failure. Apparently neither the parties nor the court, therefore, viewed the statement in the pretrial order as an order compelling discovery sufficient to notify Xanthas of a duty to produce the documents, and a violation of which would expose it to sanctions such as estoppel. The district court erred when it admitted this evidence on the ground that hearsay is admissible in a bench trial; it is not. Under Federal Rule of Evidence 802, “[hjearsay is not admissible except as provided by [the Federal] [Rjules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress,” and neither this rule nor any other rule or statute creates an exception for bench trials. Moreover, the trial court relied on this evidence, so if its admission was error, it was not harmless. The letters from proprietors, moreover, do not fall within the exception making business records admissible. That exception, embodied in Federal Rule of Evidence 803(6), in relevant part permits the admission of a record made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the ... record, ... all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. BMI argues that it drafted and mailed the questionnaires as part of its “regularly conducted business activity.” The information presented as evidence, however, came not from BMI but from proprietors of establishments with jukeboxes. Nothing in the record shows that the proprietors completed these forms in the course of their regular business activities. Even assuming the proprietors had filled out such forms regularly, this would not show that they were kept “in the regular course of business” under Rule 803(6), as the Supreme Court held in Palmer v. Hoffman, construing the statutory predecessor of Rule 803(6). Like the accident reports the railroad in Palmer customarily produced, the forms were not completed by the proprietors as part of the “systematic course” of their business; their primary utility, rather, is for litigation. BMI argues alternatively that the letters from proprietors are reliable, and therefore admissible, because they were sent and completed pursuant to a procedure authorized by § 116(a)(1)(B) of the Copyright Act. We have on occasion ac cepted arguments of this form, whether under the business-records exception or under the “catch-all” exception of Rule 803(24), which permits the admission of evidence when circumstances indicate it is trustworthy and more probative than other available evidence. The provision in the Copyright Act, however, contains no assurances of the reliability of the statements by proprietors. It imposes penalties on proprietors for failing to return the forms, but not for providing inaccurate information on them. Although the proprietors doubtless had incentives to keep accurate records of who owned the jukeboxes in their establishments, we do not see how they had any incentive to fill out the questionnaires from BMI with precision or completeness. BMI, however, introduced independent, non-hearsay evidence of Xanthas’s ownership of each of the 22 jukeboxes in dispute. The Appendix summarizes the evidence. Xanthas stipulated that it owned seven of the jukeboxes. Ten appeared on a list that Xanthas had filed in 1984 detailing its assets that might serve as collateral for a bank loan; this list is not hearsay but a party admission properly received as evidence. Finally, Gary Meliet, the president of a company engaged in a joint venture with Xanthas, testified that in early January 1987, his company took over the operation of ten of Xanthas’s jukeboxes that BMI had alleged were used for infringements, including five that Xanthas had in 1984 listed itself as owning. The relevant issue, however, was Xanthas’s ownership of jukeboxes in 1986 when the infringements were alleged to have taken place. That Xanthas listed a jukebox on the collateral list in 1984 is insufficient by itself to prove that Xanthas owned or operated the jukebox in 1986. According to unrefuted testimony, the proprietors of establishments in which jukeboxes are operated change suppliers frequently when the proprietors seek new styles of music. Moreover, between 1984 and 1986, Xanthas went into bankruptcy and its stock of jukeboxes declined, although to what extent is not clear. As to five jukeboxes, representing forty infringements, the only evidence of Xanthas’s ownership came from the collateral list. We therefore reverse the district court’s conclusion that these forty infringements were proven. With respect to the ten jukeboxes for which independent testimony of ownership came from Gary Meliet, however, we will remand for the district court to consider whether the admissible evidence was sufficient to prove Xanthas’s ownership. Meliet testified that his company took over these ten jukeboxes, among others, from Xan-thas at the beginning of 1987, only a few months after the infringements allegedly took place. Because ownership changed hands frequently, however, Meliet admitted it would be “speculation” to conclude that Xanthas had owned these boxes earlier in 1986. The district court should have the first opportunity to address this close question of fact based on the remaining, admissible evidence. We would remand in any event, moreover, because, as noted above, we cannot tell how the district court would have exercised its wide discretion in awarding statutory damages had it concluded, as we have, that forty of the alleged infringements were not proved by admissible evidence. We note, for the benefit of the district court on remand, that of the ten jukeboxes (representing 98 infringements) that Meliet testified belonged to Xanthas in early 1987, five (representing 54 infringements) also appear on the collateral list indicating that Xanthas owned them in 1984. The district court may find the inference stronger that Xanthas owned these jukeboxes in 1986 than that it owned the jukeboxes for which the only identification came from Meliet. We conclude, in sum, that (1) BMI proved infringements on seven jukeboxes, representing 44 infringements, that Xanthas admitted owning; (2) the findings of forty other infringements, on five jukeboxes, were supported solely by inadmissible hearsay evidence and must be overturned; and (3) the district court should reconsider the sufficiency of proof of the remaining 98 alleged infringements (on ten jukeboxes) now that we have ruled the letters from proprietors inadmissible. We need not now consider Xanthas’s other claims on appeal, some of which raise difficult questions concerning the discretion of the district court to award damages based on Xanthas’s failure to pay license fees in years for which BMI neither alleged nor proved infringements. These issues may not arise should the district court choose a different measure of damages on remand. For these reasons, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. APPENDIX Location of Number of jukeboxes infringements Stipulated to by Xanthas: 1. Godfather’s Pizza, 6601 Veterans 5 Blvd., Metairie 2. Johnny’s Pizza, 14030 Plank Rd., 6 Baker 3. Steak & Egg Kitchen, 2239 5 Williams Blvd., Kenner 4. Sal’s Lounge, 5032 W. Esplanae, 10 Metairie Location of Number of jukeboxes • infringements 5. Steak & Egg Kitchen, 3647 Veter- 4 ans Blvd., Metairie 6. Steak & Egg Kitchen, 7733 Florida 8 Blvd., Baton Rouge 7. Godfather’s Pizza, 3600 Williams 6 Blvd., Kenner 44 Proved only by 1984 collateral list: 1. Mia Chere’s, 16467 Florida Blvd., 11 Baton Rouge 2. Luc Eddie’s, 2725 Mississippi Ave., 4 Metairie 3. Rack-It Bar, 11463 Plank Rd., Bak- 13 er 4. Bungalow Lounge, 5908 Airline 6 Hwy., Baton Rouge 5. Le Meledy, 3124 Loyola Dr., Ken- 6 ner 40 Provided only by Gary Meliet’s testimony: 1. Johnny’s Pizza, 14265 Old Ham- 12 mond, Baton Rouge 2. Johnny’s Pizza, 3404 Drusilla Ln., 5 Baton Rouge 3. Jody’s, 5680 Plank Rd., Baton 9 Rouge 4. Patio Lounge, 8743 Jefferson 11 Hwy., Baton Rouge 5. Johnny’s Pizza, 12451 Jefferson 7 Hwy., Baton Rouge 44 Proved by both Meliet and 1984 list: 1. Florida Jnctn., 13431 Florida Blvd., 8 Baton Rouge 2. Pizza Inn, 5580 Government St., 7 Baton Rouge 3. Europe’s Pizza, 6764 Airline Hwy., 11 Baton Rouge 4. Pastime Lounge, 252 South Blvd., 10 Baton Rouge 5. CheckMate Lounge, 8384 Airline 18 Hwy., Baton Rouge 54 . 17 U.S.C. § 504(c). . 17 U.S.C. § 116(b), (e)(3). . Id. § 116(b)(2). . 17 U.S.C. § 504(c)(1). . Id. § 504(c)(2). . House Comm, on the Judiciary, H.R.Rep. No. 94-1476. . Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1115 (2d Cir.1986), relying on Melville Nimmer, 3 Nimmer on Copyright § 14.04[B][3] at 14-30.6-30.7 (1986). . 294 U.S. 207, 210, 55 S.Ct. 365, 366, 79 L.Ed. 862 (1935); see also Morley Music Co. v. Dick Stacey’s Plaza Motel, Inc., 725 F.2d 1, 3 (1st Cir.1983). . United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir.1979); see also Morley Music Co., 725 F.2d at 3. . See Fitzgerald Pub. Co., 807 F.2d at 1116. . See also Cates v. LTV Aerospace Corporation, 480 F.2d 620, 624 (5th Cir.1973). . Moore v. United States, 429 U.S. 20, 97 S.Ct. 29, 30, 50 L.Ed.2d 25 (1976) (per curiam). . 318 U.S. 109, 111-15, 63 S.Ct. 477, 479-81, 87 L.Ed. 645 (1943). . Id. at 114, 63 S.Ct. at 481. . 17 U.S.C. § 116(a)(1)(B), which provides in relevant part: The proprietor of the establishment in which the public performance takes place is not liable for infringement with respect to such public performance unless ... such proprietor refuses or fails, within one month after receipt by registered or certified mail of a request, ... by the copyright owner, to make full disclosure, by registered or certified mail, of the identity of the operator of the phono-record player. . See United States v. Veytia-Bravo, 603 F.2d 1187, 1189-91 (5th Cir.1979); United States v. Ragano, 520 F.2d 1191 (5th Cir.1975), cert. denied, 427 U.S. 905, 96 S.Ct. 3192, 49 L.Ed.2d 1199 (1976); United States v. Snell, 508 F.2d 21 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 41 (1975). . Cf. Veytia-Bravo, 603 F.2d at 1191; Ragano, 520 F.2d at 1200-01. . Fed. R. Evid. 801(d)(2).

WASHINGTON, Circuit Justice. These are informations, filed on behalf of the United States, against the brig Nancy and her cargo, and also against the cargo of the Caroline, for breaches of the non-importation laws of the United States. The Nancy is claimed by an American citizen; and the goods in the two vessels are claimed by Willing & Francis, for themselves, and on account of certain persons residing at Malta. The facts, in these cases, are—that the goods imported into the port of Philadelphia in these vessels, were shipped at the island of Malta, in the ship Union, by the jurats of the university of the four cities of Malta, some time in the month of February, 1811, consigned to Willing & Francis at Philadelphia, to be sold by them, and the proceeds to be invested in a return cargo of flour. It appears, by the letters from the shippers of this cargo to their consignees, that in case the non-importation law as to Great Britain should be renewed, the Union, with the cargo on board, was to be ordered to Amelia Island, where her cargo was to' be taken out and replaced by a cargo of.flour, which the consignees were to send forward to that place. On the 6th of May, 1811, Willing & Francis received information of this consignment, and immediately sent orders to the master of the Union, who had then arrived on the coast of the United States, to proceed to Amelia Island; to which place, they informed him, they would despatch two vessels with flour, to load the Union, and also to receive her cargo to bring to Philadelphia. The flour was accordingly sent to Amelia Island in these two vessels, the Nancy and the Caroline, in which the cargo of the Union was imported into Philadelphia, some time in August, 1811. A pro forma decree having been made by the district court, dismissing the information [ease unreported], appeals were entered to this court The questions arising in these causes, are —(1) Was the cargo of the Union, in whole or in part, the growth, produce, or manufacture, of the island of Malta? (2) Was the importation into the United States to be considered as having been made from that island, or from Amelia Island? (3) Was the island of' Malta a dependence of Great Britain? 1. As to the first question, there can be no doubt, upon the evidence, that the articles composing this cargo are not produced in the island of Malta for exportation; and that this particular cargo was imported into that island from Italy and other places, not belonging in any respect to the British government. 2. In order to arrive at a clear understanding of the subject, to be considered under the second head of argument; it will be proper to take a brief view of the different acts of congress, which interdicted commercial inter course between tbe United States and Great Britain. Tbe act of March 1, 1809, prohibits, after the 20th of May following, the importation into the United States, of any goods, &e., wherever grown or manufactured, from any port or place situated in Great Britain, or Prance, or in any of the colonies, or dependencies; or in the actual possession of either of those nations. It also prohibits the importation of any goods, being the growth, produce, or manufacture of those countries, or of their colonies, dependencies, or places, in their actual possession, from any port whatever. The 5th section of this law declares, that all such prohibited articles, imported into the United States, contrary to the true intent and meaning of the act, or which should be put on board of any vessel, with intention of importing the same into the United States, together with all other articles on board of the same vessel, belonging to the owner of the prohibited articles; should be forfeited. The sixth section provides, that if the said prohibited articles should be put on board, with intent to import the same into the United States, with the knowledge of the owner, or master of such vessel, the vessel also should be forfeited. The operation of this law as against Great Britain, was suspended for a short time, by the president’s proclamation, issued on the 19th of April, 1809 (5 Am. Reg.), in consequence of the arrangement with Mr. Erskine; and was to take effect on the 10th of dune following—-and was again revived by proclamation, dated the 9th of August, 1809. But it at length expired, by its own limitation, in May, 1810, no law having been passed, during that session, further to continue it By the act of May 1, 1810 [2 Stat. 605], it was however declared, that in case either Great Britain or France should, before the 3d of March, 1811, so revoke or modify her edicts, as that they should cease to violate the neutral commerce of the United States— which fact, the president was to declare, by proclamation; and if the other nation should not, within three months thereafter, do the same thing, in relation to her edicts, that the 3d, 4th, 5th, Cth, 7th, 8th, 9th, 10th, and 18th sections of the act of March 1, 1809, should, from the expiration of the said three months from the date of the said proclamation, be revived against the dominions, colonies, and 'dependencies, and the articles the growth, produce, or manufacture of the dominions, colonies, and dependencies of the nation so refusing, or neglecting to revoke, or modify her edicts; and that the restrictions imposed by this act, (which relate only to the prohibition of our waters to the armed vessels of those two nations,) should, from the date of the proclamation, cease, in relation to the nation so revoking her decrees. On the 2d of November, 1810, the president issued his proclamation, declaring that Prance had complied with the conditions of the law of the 1st of May, 1S10; in consequence of which, the above sections of the act of March 1, 1809, were brought into operation against Great Britain, her colonies and- dependencies, to take effect from the 2d of February, 1811, unless, before that time, Great Britain should repeal her offensive edicts. Then came the act of March 2, 1811, which enacted, that until the president should, by his proclamation, declare, that Great Britain had revoked, or so modified her edicts, as that they had ceased to violate the neutral commerce of the United States, the provisions of the above sections of March 1, 1809, should have full force, and be immediately carried into effect against Great Britain, her colonies and dependencies. Prom- this view of the above laws, the two following positions appear to the court to be perfectly dear; 1st, that the prohibited articles, the importation of which, or the putting on board of which, with intention to import the same into the United States, is made, by the fifth section of the act of the 1st of March, 1809, a cause of forfeiture, are, as well those which are prohibited on account of the place at which they were put on board, as those which are the growth, produce, or manufacture of the offending nation. The object of the law was to interdict all commerce with the ports, as well as in the products of Great Britain and Prance, so far as related to importations into the United States: and a violation, or intention to violate this policy of our government, was, in reason, as well as by the plain construction of the law, made punishable in either case. If then the island of Malta should be determined to be a prohibited place, and the intention of the owners of this cargo, at that place, was to import the same into the United States; or, without such intention being proved, the importation was made, either directly or indirectly; the forfeiture was complete, as soon as the cargo came within the jurisdiction of the United States, notwithstanding the landing, and paying of duties, at Amelia Island, and the trans-shipment at that place, for the port of Philadelphia. In the latter case, that is, of an original importation, from Malta to Amelia Island; there can be no doubt, but that if the cargo had been bona fide sold at Amelia Island, the purchaser might have imported it into the United States, without incurring a forfeiture; because the continuity of the voyage, from the forbidden place, would have been substantially broken, and not in form merely. Contrivances to evade a law, may sometimes be so deeply laid, as to elude detection, notwithstanding the strictest examination of all the circumstances that can be brought to light. But whenever it is made clearly to appear, that the law, in its obvious spirit and intention, has been violated by covert means, a court of justice would forget its duty, by affording its sanction to such contrivances. But, when it appears, that the cargo was originally put on board, with intent to import the same into the Unit ed States, no question, it is conceived, can arise, as to the continuity of the voyage; for here the offence consists, not in the importation, but in the intention with which the cargo was put on board. Now, as to the facts in this case, there can be no doubt. The letters from the owners at Malta, to their consignees, and from those consignees to the master of the Union, and to their agent at Amelia Island, as also to the person whom they sent in the Nancy—all prove clearly, that the cargo was put on board at Malta, with an intention to import the same into the United States; directly, if the laws would permit; and if not, then indirectly, by trans-shipping it at Amelia Island. The second position which arises out of the view before taken, of the different acts of congress on this subject, is, that the non-importation law of March 1, 1809. which interdicted commerce with the possessions, as well as with the colonies and dependencies of Great Britain, was revived only against that nation, her colonies, and dependencies; and this conducts us to the third and most difficult question in the cause. Is Malta to be considered as a dependence of Great Britain? In deciding this question, the court has not had an opportunity to derive much information from books. The precise meaning of the word “dependency,” as it is used by congress, in the law under consideration, cannot be ascertained with any degree of certainty. It may, however, be safely concluded, that it imports some civil and political relation, which one country bears to another, as its superior, different from that of a mere possession. The introduction of the words “actual possession,” into the act of March 1, 1809, and the omission of them in that of May 1, 1S10, afford strong evidence, that congress did not consider a dependency, as synonymous with a possession; but, on the contrary, the difference was so material, as to induce congress to sanction a trade with the former, which had been previously interdicted with both. As soon as this distinction is established, the mind of a legal man is irresistibly led to annex to the one, the idea of possession, accompanied by title, in opposition to a mere naked possession, obtained either by force, and against right, or rightfully acquired, and wrongfully withheld from the legal sovereign; and this, the court is strongly inclined to think, is the true definition of a dependency;—that is, a territory distinct from the country in which the supreme sovereign power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe. It is not a colony, because it is not settled by the citizens of the sovereign, or mother state; but it is lawfully acquired or held, and the people are as much subjects of the state which has thus obtained it, as if they had been born in the principal state, and had emigrated to the dependent territory. The usual ways by which such acquisitions are made, are by purchase, or by conquest in war. The first, being made with the consent of the sovereign, is permanent and indefeasible; but the latter is subject to uncertainty, and' liable to restoration to the sovereign, from whom it was taken, unless confirmed by a treaty of .peace, or unless it be voluntarily relinquished by such sovereign. When so confirmed, or relinquished, and not before, it seems to be, in the true sense of the word, a dependency; that is, it is durably incorporated into the dominions of the conqueror, and becomes a part of his territory, as to government and national right. Conquests in war, are, by the best authorities amongst elementary writers on national law, and according to the modern practice of nations, considered only as temporary possessions, held by force, and subject to be defeated by re-capture, or by the peace. Barbeyrac, in a note on part of the 8th chapter of Grotius, expresses the general idea on this subject. “But the object of a just war, does not require of itself, that one should acquire over the vanquished, an absolute and perpetual sovereignty. It is only a favourable opportunity of gaining dominion; and it requires always, beyond this, a consent either express, or tacit, of the conquered; otherwise a state of war always continues. The sovereignty of the conqueror, is nothing more than a title by force, and endures no longer than the conquered people are in a state of incapacity to throw off the yoke.” “It is true,” he adds, “that neutral powers are not to call in question this conquest, or say that it is unlawful, or the war unjust.” But this does not alter the nature of the case, or give to the possession perpetual right and duration. It remains a conquest, liable to all the vicissitudes of war, and not a dependency— durably, legally, and indisputably attached. The dominion is only temporary, and it cannot be considered as a national territory and domain, being held on condition, and not in perpetual right Vattel is full upon this subject. “Immovable lands, towns, provinces,” &c. he says, “pass under the power of the enemy, who makes himself master of them; but it is only by the treaty of peace, or the entire submission and extinction of the state to which these towns and provinces belong, that the acquisition is completed, and the property becomes stable and perfect.” Vatt. Law Nat. bk. 3, c. 13, § 197. So, also, section 198. See, also, Puff. Law Nat. bk. 8, c. 6, § 20. It is not within the province of this court, to settle disputed rights between nations. But it is under the necessity, of expounding laws, and of discovering, for our guidance, the meaning of the terms in which they are expressed. The court has not had an opportunity to enter into a minute investigation of the actual or political state of the island of Malta. But, on a general view of the books which detail its history, from the time it was invaded by the French, until the period when this shipment was made, it does not seem to have been at any time permanently or rightfully incorporated with the domains of Great Britain. It continues a possession, gained by conquest from France, and not from the people or ancient government of the island; and consequently, the law of nations imposed an obligation upon the conquerer to restore the island to the people, and not to bring it under subjection to a new master. Vatt. Law Nat. bk. 3, c. 13, § 203. The island appears to be under a military government, notwithstanding the commander is styled “civil governor,” or “commissioner;” and the officers of police, and a judge of the admiralty, are appointed by the military and civil governor. See Eton’s Materials for a History of Malta, p. 89. The ancient laws of the island, executed by native magistrates, are yet in force—as is often the case in conquered countries, held in temporary subjection. No doubt, these magistrates are subject to the power and control of the occupant by conquest, for the time being. But the natives have never ceased to claim an independent right to the government and soil; although, from a detestation of their former oppressors and perfidious betrayers, the knights of St. John, they have frequently requested, and have as often been denied, the privileges and laws enjoyed by British subjects. See Pasley, pp. 306,390,391, 31, Memorial of the Maltese Deputies. Nothing shows more strongly that they are not considered by Great Britain herself as part of her subjects, or the island as part of her territories. By the treaty of Amiens, (after the offer of the Maltese to place themselves under the British government,) the British administration agreed to re-deliver the island to the knights, contrary to every stipulation, actual or implied, with the inhabitants. Quart. Rev. 1813, pp. 4, 5. This was a breach of confidence, palliated by her own writers only on the principle of expediency, and the advantages to be derived to England, either positively, or as a prevention to its falling into the hands of the French, to whom the knights were alleged to be devoted. Still, however, Great Britain bound herself, by this treaty, to abandon any claim she might have acquired to the island, and to restore it to its ancient government. After this, her title by conquest, imperfect and defeasible as it was, changed entirely its character. Before this agreement to restore the island, she had but a mere possession; but that possession was rightful—the continuance of it, after the treaty, was wrongful. Under all these circumstances, the court is of opinion, that the island of Malta has been, and now is, held by Great Britain, by force,, without right, in direct contravention of a solemn treaty. It is not the period, long or short, of such forcible possession, but the stability and right of the occupant, which, in the opinion of the court, will satisfy the true meaning of the term “dependency.” It is only a foreign possession, without certain permanence or settled right The decree of the district court affirmed.

Opinion for the Court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge: In 1993, Croixland, the owner of a greyhound dog racing facility in Hudson, Wisconsin, entered into an agreement with three Indian tribes to sell the track and thereafter to manage jointly casino operations that the tribes would own. A precon dition to the agreement was the purchase of the facility land in trust by the Department of Interior under the Indian Regulatory Act, see 25 U.S.C. § 465 (1994), and approval of gaming activities on that land under the Indian Gaming Regulatory Act, see 25 U.S.C. § 2719(b)(l)(A)(1994). The Minnesota Area Director of the Department recommended approval of the tribes’ application in the fall of 1994, but on July 14, 1995, the Deputy Assistant Secretary of Indian Affairs denied the application. After learning in the course of other litigation about actions in Washington, D.C. taken by lobbyists for Indian tribes opposing the sale, Croixland sued the lobbyists for defamation and conspiracy to defame. The district court dismissed the complaint for failure to state a cause of action. We reverse. I. This court reviews the dismissal of a complaint under Federal Rules of Civil Procedure 12(b)(6) de novo. See Chandler v. District of Columbia Dep’t of Corrections, 145 F.3d 1355, 1360 (D.C.Cir.1998). We must accept the allegations of the complaint as true, drawing all inferences in the plaintiffs favor, and will affirm “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997). To succeed on a defamation claim, the plaintiff must show: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective 'of special harm or that its publication caused the plaintiff special harm. Crowley v. North Am. Telecomm. Ass’n, 691 A.2d 1169, 1172 n. 2 (D.C.1997) (quotations omitted); see also Restatement (Second) of Torts § 558 (1976). Croixland’s complaint alleged that the lobbyists had conspired to convince decisionmakers in Washington, D.C. reviewing the tribes’ application that Croix-land had connections to organized crime. See Compl. ¶ 20. Insofar as is relevant to this appeal, the complaint alleged that the lobbyists, “by publishing the defamatory statement that plaintiff [i.e., Croixland] was connected to organized crime, intended to injure plaintiff in its business reputation and to cause the Department of Interior to deny approval of the proposed Hudson casino.” Id. ¶29. To this end, the lobbyists falsely stated, according to the complaint, that “a company named Delaware North was the owner of the Hudson greyhound facility, that Delaware North was connected to organized crime, and that approval of the Hudson casino would allow organized crime to be directly involved in Indian gaming.” Id. at ¶20. To support their false statements that Croixland was connected to organized crime, the lobbyists agreed to distribute an article appearing in the November 17, 1994, edition of the Wall Street Journal purporting to describe Delaware North’s ties to organized crime. Id. One of the lobbyists—Scott Dacey, not one of the defendants—met with and gave the article to the Deputy Assistant Secretary of Indian Affairs. Id. ¶ 22. The complaint referred as well to a strategy by the lobbyists to get a story in the Washington Post about Delaware North’s relationship with tracks in Wisconsin. Id. ¶ 21. The complaint also alleged that a defamatory statement was made to Senator John McCain during a meeting in June 1995, where the lobbyists stated that “the owners of the Hudson greyhound facility are connected to organized crime.” Id. ¶ 26; see also id. ¶ 23. Senator McCain allegedly told the lobbyists that he intended to ask the Justice Department to look into the Hudson casino application. Id. ¶ 26. After the tribes’ application was denied, the lobbyists sent Senator McCain a letter, reminding him of their meeting “regarding the proposed conversion of a dog track in Hudson, Wisconsin, to an Indian gaming casino which would bail out the dog track owner, Delaware North of Buffalo, New York,” and thanking him for his “help with the Department of Justice.” Id. The letter stated that “[wjithout your assistance, we do not believe the BIA [Bureau of Indian Affairs] headquarters would have overturned its Minneapolis area office on this matter.” Id. In addition, the complaint alleged that the lobbyists repeated the defamatory statement that the owner of the Hudson facility was connected to organized crime. Id. If 38. In dismissing the complaint, the district court focused on whether the alleged defamatory statements were “of and concerning” Croixland. Croixland had alleged that it was defamed when the lobbyists reported to Department officials and others that the owner of the Hudson track had connections to organized crime, either directly or through Delaware North’s ownership. The lobbyists responded that they only made statements about Delaware North, and consequently no reasonable listener would think they were referring to Croixland. ■ The district court agreed with the lobbyists and ruled that because during the meeting with Senator McCain, in the subsequent letter to him, and in the newspaper article, there was no mention of Croixland by name and no indication that any listener understood that the references were to Croixland, the complaint failed to allege defamatory statements “of and concerning” Croixland. To satisfy the “of and concerning” element, it suffices that the statements at issue lead the listener to conclude that the speaker is referring to the plaintiff by description, even if the plaintiff is never named or is misnamed. See, e.g., Peck v. Tribune Co., 214 U.S. 185, 188-90, 29 S.Ct. 554, 53 L.Ed. 960 (1909); Washington Post Co. v. Kelly, 38 F.2d 151 (D.C.Cir.1930); Harmon v. Liss, 116 A.2d 693, 695 (D.C.1955); see also Service Parking Corp. v. Washington Times Co., 92 F.2d 502, 504-05 (D.C.Cir.1937); Caudle, 942 F.Supp. at 638; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 783 (5th ed.1984); Restatement (Second) of Torts § 564 (1977). The complaint refers to statements that were not just about Delaware North as Delaware North but rather were about Delaware North in its alleged capacity as the owner the Hudson facility. Insofar as Croixland was the true owner, even if never named, it could be defamed in its status as the owner. Grisanzio v. Rockford Newspapers, Inc., 132 Ill.App.3d 914, 87 Ill.Dec. 679, 477 N.E.2d 805 (1985), on which the lobbyists rely, is not to the contrary. Grisanzio operated a restaurant in a building that was owned by Zammuto, who was reputed to be part of the mob. After a newspaper reported Zammuto’s mob connections, Gri-sanzio sued. The court dismissed his complaint because he was never mentioned by name and a reader of the article would reasonably perceive the distinction between the operator of a restaurant and the owner of the building. Id. at 809-10. By contrast, in the instant case, the alleged references to “the owner of the Hudson track” afford no such distinction for the listener. So too, Carlucci v. Poughkeepsie Newspapers, Inc., 57 N.Y.2d 883, 456 N.Y.S.2d 44, 442 N.E.2d 442 (1982), is of no assistance to the lobbyists. In that case the court rejected the notion that a reader learning that the 38-year-old owner of a grocery store had been arrested on gambling charges would perceive that statement to be “of and concerning” the corporation that in fact owned store, especially since a corporation cannot be arrested. By contrast, given the conduct at issue and context of the statements in the instant case, the substitution of the name of one corporation, Delaware North, for another, Croixland, as “the owner of the Hudson facility,” presents the possibility that a listener could perceive that the true owner is connected to organized crime. Consequently, there are two ways that Croixland’s complaint sufficiently pled the “of and concerning” element. First, the complaint alleged that the lobbyists linked Croixland to Delaware North and Delaware North to organized crime. Even if the lobbyists misidentified the owner of the facility, it did not remove the taint to the true owner. This is due in part to the fact that Delaware North managed and operated gambling enterprises in a number of states, see supra n. 3, and assertions of its ownership did not rule out that it had a management agreement or affiliate relationship with Croixland that was consistent with Croixland’s' ownership of the Hudson facility. In any event, the assertion that “the owner” had mob connections sufficed to place in jeopardy Croixland’s opportunity with the tribes inasmuch as mob connections would doom the tribes’ application pending in the Interior Department. Second, the complaint alleged that Croixland was defamed because statements were made about “the owner of the track” having connections to organized crime without reference to Delaware North. It is undisputed, for purposes of the motion to dismiss, that Croixland is the owner of the Hudson track. Compl. ¶ 7. Viewing the inferences most favorably to Croixland, a reference to “the owner of the track” could reasonably be understood to mean Croixland even if the listener did not know Croixland by name. See Harmon v. Liss, 116 A.2d 693, 695 (D.C.1955). The defamation would arise from the inference that the owner of the track is connected to organized crime where there is no ambiguity that a particular entity owns the track. Drawing favorable inferences for the non-moving party, see Chandler, 145 F.3d at 1360, and viewing the alleged remarks from the perspective of the listeners, see Kelly, 38 F.2d at 151, Caudle, 942 F.Supp. at 638, it follows that, in the context of discussions about a pending tribal application at the Interior Department for the sale of Croixland’s track, the lobbyists’ defamatory statements could lead listeners such as Department officials or the Chairman of the Senate Committee on Indian Affairs to believe that Croixland was connected in some manner to Delaware North or at least that whoever owned the Hudson track was connected to organized crime. Furthermore, even assuming that references to Delaware North as the owner of the Hudson track were not “of or concerning” Croixland, the complaint still was not properly dismissed. Under Federal Rule of Civil Procedure 8(e), a complaint may contain alternative theories, and if one of the theories can survive a Rule 12(b)(6) motion, the district court cannot dismiss the complaint. Croixland’s complaint included an alternative theory, namely that defamatory statements were made directly about Croixland without reference to Delaware North. This appears in paragraph 26 of the complaint, referencing the meeting with Senator McCain, paragraph 29, regarding the lobbyists’ intent to injure Croixland’s business reputation and cause the Department to deny approval of the proposed Hudson casino, and paragraph 38, concerning conspiracy, in which Croixland alleges numerous publications of the defamatory statement by the lobbyists that the owner of the Hudson facility had connections to organized crime. Accordingly, we reverse the order dismissing the complaint and remand the case for further proceedings. . For ease of reference we refer to appellees as "the lobbyists.” Croixland sued Thomas J. Corcoran, Patrick E. O’Donnell, and Larry Kitto as defendants, but in their complaint refer to conduct by defendants and "other persons known and unknown.” See Comp. ¶ 20. . The lobbyists cite Caudle v. Thomason, 942 F.Supp. 635, 638-39 (D.D.C.1996), for the proposition that heightened pleading requirements apply in defamation cases. In fact, as with any pleading, Croixland’s complaint must allege the elements of the cause of action; the Federal Rules of Civil Procedure impose no special pleading requirements for defamation as they do for a specified list of other matters. See, e.g., Fed.R.Civ.P. 9. . The November 17, 1994 Watt Street Journal article by John R. Emshwiller, entitled “Sins of the Father? Concession King's Son Fights Mob Stigma As He Builds Empire; Delaware North’s Businesses Appear Gangster-Free, But Regulators Wonder; Hosting You at Yo~ somite,” describes Delaware North as having "more than 200 operating units in 39 states and six countries.” The article reported that in 1972 the company (then known as Emprise Corporation) was convicted of conspiracy "to hide its ownership interest and the interests of two reputed mob figures in the Frontier Casino in Las Vegas.” Since then no such ties had been uncovered, due in part to the current owner’s efforts, including hiring "former top federal law enforcement officials” to rid the company of any such ties. The newspaper article noted, however, that state and federal regulators remained skeptical. . At the time of the meeting, Senator McCain was chairman of the Senate Committee on Indian Affairs. See Congressional Staff Directory (1995). . Furthermore, Illinois employs the rule of innocent construction, see Grisanzio, at 809, and the District of Columbia does not, see Ollman v. Evans, 750 F.2d 970, 980 n. 18 (D.C.Cir.1984) (in banc). . "A party may set forth two or more statements of a claim.... [and] [w]hen two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.” Fed.R.Civ.P. 8(e).

OPINION AND ORDER CURRAN, District Judge. Midwest Knitting Mills, Inc., a Wisconsin manufacturer of knitted goods, is suing the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-80, for compensatory damages in the amount of $3,113,637.20, for injuries to its business. The plaintiff alleges that the Small Business Administration (SBA), an agency of the United States, caused injury to Midwest Knitting’s business by its negligent supervision of employee Frederick Matthews and by its tor-tious interference with its own contract with Midwest Knitting. The plaintiff has fulfilled the statutory prerequisite to suit by filing an administrative claim with the local office of the Small Business Administration. See 28 U.S.C. § 2675. Six months passed with no action being taken, so Midwest Knitting deemed the claim denied. See 28 U.S.C. § 2675(a). The United States has answered and denied liability. After the deadline for the completion of all discovery had passed, the defendant moved to dismiss for lack of subject matter jurisdiction and for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1) & 56. This motion is now fully briefed and ready for decision. I. ALLEGATIONS OF THE COMPLAINT In its Complaint, Midwest Knitting alleges that: 7. The defendant, through its Small Business Administration, created a structure known as the “8-A program”, designed specifically to insure that worthy and qualified minority businesses would have the opportunity to obtain a fair share of the Federal government’s military contracts. The distinctive feature of the 8-A program is the provision for “advance payments to cover the cost of material, labor, overhead and administration”, this feature being intended to assist otherwise viable companies, equipped with production capability and staff, but short of operating capital, to handle profitable contracts. Plaintiff qualified and was certified as an 8-A contractor in 1978 and recertified in 1982, and thereafter secured and fulfilled a number of military contracts obtained under the aforementioned program through its Milwaukee, Wisconsin, office. At the time of the termination of plaintiff’s business in January of 1986, plaintiff, through the Milwaukee, Wisconsin, office of the Small Business Administration, had been awarded and was either working on or was prepared to commence work on five contracts whose total value exceeded the sum of two million dollars. Plaintiff depended on and relied on the advance payment provisions of the 8-A program to enable it to fulfill its production requirements on the contracts awarded to it. 8. Plaintiff complied in all respects with the rules and regulations of the 8-A program aforesaid and qualified for advance payments on its military contracts; that such advance payments were duly approved by appropriate authorities in the Small Business Administration chain of command, but that such payments never reached the plaintiff company due to dereliction, negligence, and deliberate sabotage on the part of the Business Development Specialist, one Frederick Matthews, assigned by the Small Business Administration to plaintiffs cases to oversee, monitor and assist in the procurement and development of plaintiffs contracts and to administratively expedite the processing of plaintiffs application for advance payments aforesaid. The failure to receive the advance payments as approved and authorized prevented plaintiff from commencing and pursuing production as planned, with the result that expensive machinery remained unused, trained personnel on plaintiffs payroll were idled and then released from employment, plaintiffs financial obligations went into default, production deadlines were defaulted, and the company was forced to terminate production and close its operation. 9. That the failure of plaintiff company to receive the advance payments for which it had qualified was a direct result of the retention in office of the aforesaid Business Development Specialist by the Small Business Administration management personnel, and the failure of the government’s supervisory personnel to exercise due care in the supervision of the said Business Development Specialist assigned to plaintiffs project; that such supervisory personnel were well aware, or should have been aware, that such Business Development Specialist was not carrying out his duties and was in fact incapable of so doing because of personal habits and attitudes, and chemical involvement and dependency, resulting in physical, intellectual and- emotional infirmities; that such infirmities on the part of the Business Development Specialist were well known, or should have been known, to the government’s supervisory and administrative personnel at its Small Business Administration offices in Milwaukee, Wisconsin, at its Madison, Wisconsin, district office, and at its Chicago, Illinois, regional office, and yet, despite such knowledge, his superiors failed to take remedial action, retained him in office and continued his assignment to plaintiff’s contracts; that such conduct on the part of the government's supervisory personnel constitutes negligence and dereliction on the part of the defendant and was a direct and proximate cause of the failure of plaintiff’s business and the resultant damage to it. 10.That further, after plaintiff’s business was in jeopardy due to the aforementioned facts, on October 10, 1985, the Small Business Administration, through its management personnel, did make demand on the plaintiff for the surrender and termination of all of its Small Business Administration contracts and did utilize its economic power to enforce such demand and compel compliance by plaintiff. Complaint at ¶¶ 7-10. The plaintiff claims that, because of this conduct on the part of Small Business Administration personnel, it was forced to surrender its contracts and “was deprived of the right to complete the subject contracts and was deprived of the profits to be derived therefrom, as well as the profits to be derived from the future operation of plaintiff’s company; that such damages are in the amount of $3,113,637.20.” Complaint at ¶ 11. Based on these allegations, the plaintiff raises two theories of liability: (1) that the SBA was negligent in supervising Frederick Matthews, an SBA employee who was responsible for monitoring and overseeing contracts and handling advance payment requirements and processing, see Memorandum in Opposition to Defendant’s Motion to Dismiss and for Summary Judgment at 2-12; and (2) that the SBA tor-tiously interfered with its own contract with Midwest Knitting. See Id. at 12-15. II. DEFENDANT’S MOTION TO DISMISS A. DEFENDANT’S POSITION The defendant has moved the court for an order dismissing all of the plaintiff’s claims for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) & 56. The United States contends that: [Bjased upon the nature of the allegations articulated in the complaint and the elucidation of the cause of action advanced by the plaintiff during the course of pretrial discovery, there exists no jurisdictional basis upon which monetary damages might properly be awarded to the plaintiff in this federal forum, thus justifying the entry of judgment in favor of the defendant and the outright dismissal of the complaint. Memorandum in Support of Motion of Defendant United States of America to Dismiss and for Summary Judgment at 4-5. Specifically, the defendant contends that this court is without jurisdiction to entertain this action under the Federal Tort Claims Act because Wisconsin does not recognize the tort óf improper or inadequate employment supervision and because claims for interference with contract rights are specifically excluded from the Federal Tort Claims Act’s waiver of sovereign immunity. See Id. at 5 & 11. B. LEGAL STANDARDS The United States has moved to dismiss Midwest Knitting Company’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that all the claims are barred" by the doctrine of sovereign immunity. The government has also submitted affidavits and other matters outside the pleadings, so it has moved for an order granting" summary judgment. See Federal Rule of Civil Procedure 56(c). The Seventh Circuit has explained that evi-dentiary materials can be considered in resolving a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) and that challenges to jurisdiction should be dealt with under Rule 12(b)(1) rather than as a motion for summary judgment. See Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2561, 109 L.Ed.2d 743 (1990); Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir.1986). Therefore, the court will confine itself to ruling on the motion to dismiss. Matters outside the pleadings need be considered only insofar as the jurisdictional issue is intertwined with the issue of whether the plaintiff has established all the essential elements of claims upon which relief can be granted. See Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir.1987). When subject matter jurisdiction is put at issue under any federal procedural rule, the burden of proving the jurisdictional allegations is on the party asserting jurisdiction. See Grafon Corporation v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). In the instant case, the issues raised by the government’s motion are legal rather than factual. Therefore, even though there appear to be material facts in dispute bearing on the merits of the plaintiff’s claims, for purposes of resolving the jurisdictional issue, the court will accept the plaintiff’s allegations of fact as true and will decide whether, nevertheless, Midwest Knitting’s claims are barred by the doctrine of sovereign immunity as a matter of law. C. SOVEREIGN IMMUNITY The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671-80, provides for a limited waiver of the government’s sovereign immunity for certain claims sounding in tort. Absent a waiver of sovereign immunity, a plaintiff’s claims cannot survive. It is established principle that the United States, as sovereign, “is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define the court’s jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1975) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941)). A waiver of sovereign immunity cannot be implied but must be unequivocally expressed. Testan, 424 U.S. at 399, 96 S.Ct. at 953; Ascot Dinner Theatre v. Small Business Administration, 887 F.2d 1024, 1027 (10th Cir.1989). Thus, when no explicit consent to suit exists under the FTCA, a district court is without jurisdiction to entertain a suit against the United States. See Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1156 (5th Cir.1981). 1. Negligent Supervision The Federal Tort Claims Act states that “[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circum-stances_” 28 U.S.C. § 2674. Therefore, as a threshold matter, a plaintiff must establish that the government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); Campbell v. United States, 904 F.2d 1188, 1191 (7th Cir.1990). The Seventh Circuit has stated that: “Because the FTCA is, in effect, a jurisdictional statute, the failure to establish adequately compliance with § 1346(b) deprives the court of subject matter jurisdiction over the suit.” Misany v. United States, 826 F.2d 612, 614 (7th Cir.1987). In this case the parties agree that “the place where the act or omission occurred” is in the State of Wisconsin. Therefore, Wisconsin law governs the substance of Midwest Knitting’s claims. See Gales v. United States, 617 F.Supp. 42, 43 (W.D.Pa.1985), aff'd, 791 F.2d 917 (3d Cir.1986) (mem.). Accordingly, the plaintiff’s allegations, taken as true, must state a cause of action under Wisconsin law. See Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988). As pointed out by the government, an initial inquiry to be made in this case is whether, under Wisconsin law, an individual can be held liable for negligent supervision. The plaintiff contends that an employer, such as the government, has an independent duty to third persons such as Midwest Knitting to use due care in supervising employees such as Frederick Matthews who are engaged in administering contracts. The plaintiff alleges that Matthews engaged in intentional and negligent conduct in his handling of Midwest Knitting’s applications for prepayments from the SBA which led to the ruin of Midwest Knitting’s business. See Affidavit of Assistant United States Attorney James L. Santelle in Support of Motion of Defendant United States of America to Dismiss and for Summary Judgment as Exhibit A (Transcript of Deposition of James DeShazer), p. 177. Under section 2680(h) of the FTCA, 28 U.S.C. § 2680(h), “the United States is not liable for the intentional torts of those carrying out its business, even though the plaintiff alleges a claim of primary negligence on the part of the United States in failing to supervise or otherwise avoid foreseeable risks.” Guccione v. United States, 847 F.2d 1031, 1036 (2d Cir.1988), reh’g denied, 878 F.2d 32, 33 (2d Cir.1989) (intentional tort exception to the FTCA excludes any claim predicated upon government’s breach of an independent duty to supervise when government’s liability arises, if at all, only because of the government’s employment relationship with the employee engaging in intentional tortious conduct), cert. denied, — U.S. -, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990). Cf. Sheridan v. United States, 487 U.S. 392, 398-403, 108 S.Ct. 2449, 2453-56, 101 L.Ed.2d 352 (1988) (intentional tort exception to the FTCA does not bar claim for government’s negligence in failing to supervise or control person who committed assault and battery in military hospital because government’s liability in this situation is entirely independent of employment relationship between tortfeasor and government). Therefore, the government cannot be liable for negligently supervising any intentional conduct on the part of Matthews. At most, the court can only consider whether Midwest Knitting has a cause of action for the government’s negligent supervision of Matthews’ negligent acts. The government argues that Wisconsin has not recognized a tort of negligent supervision and that this state’s law imposes no independent duty upon an employer to supervise administrative employees. In attempting to meet its burden of establishing jurisdiction, Midwest Knitting cites Frew v. Dupons Construction Company, Inc., 37 Wis.2d 676, 155 N.W.2d 595 (1968), in which one defendant, the City of Kenosha, appealed the denial of its summary judgment motion. The plaintiffs in that case were suing Dupons Construction Company, the City of Kenosha and others for damages sustained when a fire and explosion destroyed a building owned by the plaintiffs. The defendants were constructing a sewer line when a city inspector discovered that gas was escaping from a damaged valve and failed to notify the gas company. The leak soon led to the explosion and fire resulting in the damage to the plaintiff’s property. The Wisconsin Supreme Court ruled that the denial of summary judgment was proper because the plaintiff had raised a jury question as to whether the City’s inspector was acting within the scope of his employment. Id. at 685, 155 N.W.2d at 600. The court also ruled that the city was not totally insulated from liability by statutory and contractual provisions. Nowhere in this opinion did the Wisconsin Supreme Court rule that an employer can be held liable for breach of an independent duty to a third party to supervise its employees. Instead, the court merely discussed employer liability under the well-established doctrine of respondeat superior whereby: “A master is subject to liability for physical harm caused by the negligent conduct of servants within the scope of employment.” Id. at 682, 155 N.W.2d at 598 (quoting Restatement, 1 Agency (2d), p. 536, sec. 243.). Midwest Knitting does not say that it is attempting to hold the government liable for Matthews’ negligence under the doctrine of respondeat superior. But even if it were, there is nothing in the record to suggest that Matthews’ alleged negligent acts resulted in any physical harm. Therefore, the doctrine would not apply. The plaintiff also cites two cases from other jurisdictions in attempting to persuade the court that it has a claim for negligent supervision. In International Distributing Corporation v. American District Telegraph Company, 569 F.2d 136 (D.C.Cir.1977), the District of Columbia Circuit reversed a trial court’s grant of sum mary judgment on a claim of negligent supervision. On appeal, the court ruled that an employer may be liable for the negligent breach of its duty to supervise employees who are privileged because of their employment to enter another’s property. Thus, the operator of a burglar alarm service could be held liable for thefts committed by two of its employees. The second case cited also arose in the District of Columbia and was brought under the FTCA by a homeowner who claimed that the government was liable for its negligent supervision of a contractor and for negligent supervision of a rehabilitation project. See Melton v. United States, 488 F.Supp. 1066 (D.D.C.1980). The court ruled that this theory of liability was not barred by the discretionary function exception to the FTCA. It did not consider the viability of the theory under District of Columbia law. Even if a cause of action for negligent supervision of an administrative employee is recognized in the District of Columbia, the law of another jurisdiction is not relevant in this case. Only the law of Wisconsin may be applied. See Misany v. United States, 873 F.2d 160, 163 n. 2 (7th Cir.1989); Gard v. United States, 594 F.2d 1230, 1234 (9th Cir.) (court cannot choose to follow whatever law it feels to be most enlightened), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). Except to state that no Wisconsin appellate opinion has specifically rejected the tort of negligent supervision, the plaintiff has presented no reason why Wisconsin courts would recognize such a tort. Many jurisdictions have rejected this cause of action. See, e.g., Chesapeake and Potomac Telephone Company of Virginia v. Dowdy, 235 Va. 55, 365 S.E.2d 751 (1988); Alford v. Life Savers, Inc., 210 Neb. 441, 315 N.W.2d 260 (1982). Recently, in concluding that such a cause of action does not exist in Kansas, the Tenth Circuit observed in an employment rights case that: “Plaintiff has cited no cases in Kansas or elsewhere, recognizing such a cause of ac tion.... We also observe that this cause of action, once recognized, would necessarily arise any time a middle level supervisor engaged in discriminatory conduct. We think it unlikely that the Kansas courts would adopt a liability rule with such broad implications.” Poison v. Davis, 895 F.2d 705, 710 (10th Cir.1990). It is equally unlikely that Wisconsin courts would conclude that an employer can be sued for the negligent supervision of an administrative employee where the employee’s conduct did not result in physical injury to a person or property. Because Midwest Knitting has not met its burden of establishing that the government would be liable to it in accordance with the law of Wisconsin, the court lacks subject matter jurisdiction over the claim for negligent supervision. Therefore, the plaintiff's negligent supervision claim will be dismissed for lack of jurisdiction. This claim will be dismissed with prejudice because the bar of sovereign immunity is absolute, so no other court would have the power to hear the case. See Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988), cert. denied, — U.S. -, 109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989). 2. Tortious Interference with Contract The plaintiffs second theory of liability is that the SBA tortiously interfered with its own contract with Midwest Knitting. In moving to dismiss, the government contends that such a cause of action is explicitly barred by a statutory exception to FTCA coverage. Section 2680 of the FTCA provides that: The provisions of this chapter and section 1346(b) of this title shall not apply to— (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.... 28 U.S.C. § 2680(h). The defendant also points out that Midwest Knitting has not established that Wisconsin recognizes a cause of action for a defendant’s interference with its own contract with a plaintiff. Instead, Wisconsin allows a plaintiff to seek relief for a defendant’s tortious interference with an existing or prospective contract only when the contract at issue is between the plaintiff and a third party and only when the interference by the defendant is alleged to be intentional. See Pure Milk Products Coop v. National Farmers Organization, 90 Wis.2d 781, 796, 280 N.W.2d 691, 698 (1979); Augustine v. Anti-Defamation League, 75 Wis.2d 207, 219, 249 N.W.2d 547, 553 (1977). Although Midwest Knitting has labeled its claim “interference with contract rights,” the plaintiff maintains that its claim is not barred by the intentional tort exclusion to the FTCA because it is not making a claim for the government’s interference with Midwest Knitting’s contract with a third party. Rather, the plaintiff argues that: We believe that a proper understanding of the tort of interference with contract rights recognizes that this section of the code applies only to interference with contracts between plaintiff and a third party. The tort, and therefore the exception to the Federal Tort Claims Act Waiver of Sovereign Immunity does not apply when the contract is between the plaintiff and the defendant and the defendant’s tortuous [sic] acts impair property rights acquired under the contract. Memorandum in Opposition to Defendant’s Motion to Dismiss and for Summary Judgment at 13. In support of this theory, the plaintiff cites Fort Vancouver Plywood Company v. United States, 747 F.2d 547 (9th Cir.1984), a case which arose in the State of Washington, in which the plaintiff had entered into a timber sales contract with the United States Forest Service. After most of the timber was cut, the Forest Service conducted a slash burn on adjoining property. The fire swept through Fort Vancouver’s sale, destroying both cut and standing timber. Fort Vancouver then filed a lawsuit under the FTCA for loss of the timber. Id. at 549. The Ninth Circuit ruled that the plaintiffs claims were not barred by the intentional tort exceptions to the FTCA. See 28 U.S.C. § 2680(h). The court reasoned that: This case does not involve a contract between plaintiff and a third party. It involves a contract between plaintiff and the government. Consequently, this is not an interference with contract rights claim and the section 2680(h) exception does not apply. Fort Vancouver Plywood Company, 747 F.2d at 554. The court went on to explain that: “A different situation is presented when the contract is between the plaintiff and the defendant and the defendant’s tor-tious acts impair property rights acquired under the contract.” Id. The court concluded that there had been no interference with the contract itself, but that the contract only established' Fort Vancouver’s property interest in the timber — an interest allegedly invaded by the government’s negligence in starting and maintaining the fire. The plaintiff also cites Nicholson v. United States, 177 F.2d 768 (5th Cir.1949), a case which arose in Georgia, in which the plaintiff entered into a contract with the government for the labor of prisoners of war. The plaintiff claimed that, due to the negligence of the prisoners and their guard, his barn caught fire and burned. The trial court granted summary judgment in favor of the government on the ground that the claim was barred by the “interference with contract” exception to the FTCA. See 28 U.S.C. § 2680(h). However, the Fifth Circuit reversed saying that Nicholson’s cause of action was not barred merely because he had a contractual relation with the government. Id. at 769. The guard and prisoner’s duty to act with due care for the plaintiff’s property was a duty independent of any terms of the parties’ contract. In the instant case the plaintiff has not identified any independent, noncontractual right with which the SBA has interfered. In both Fort Vancouver and Nicholson the plaintiffs suffered physical injury to their property, while Midwest Knitting has merely claimed that the government impaired unspecified “property rights under the contract.” Memorandum in Opposition to Defendant’s Motion to Dismiss and for Summary Judgment at 13. Other than claiming that the government acted negligently in not providing Midwest Knitting with advance payments, the plaintiff’s only other factual support for its interference with contract allegations is that the government cancelled four of its contracts with Midwest Knitting. Concomitantly, the damages Midwest Knitting is seeking are the sum total of the lost payments for these four cancelled contracts. See Complaint at 1111; Memorandum in Support of Motion of Defendant United States of America to Dismiss and for Summary Judgment at 11. Thus, this “interference with contract” claim cannot be saved by the rulings in Fort Vancouver or Nicholson. It is merely a restatement of the negligent supervision claim coupled with a breach of contract claim. Any liability of the government for the cancelling of the contracts depends wholly upon the government’s alleged failure to perform its alleged promises. It is well-established that breach of one’s own contract is not a tort. Blanchard v. St. Paul Fire and Marine Insurance Company, 341 F.2d 351, 357 n. 3 (5th Cir.), cert. denied, 382 U.S. 829, 86 S.Ct. 66, 15 L.Ed.2d 73 (1965). In sum, the plaintiff has not met its burden of persuading the court that it has subject matter jurisdiction over this interference with contract claim. Midwest Knitting has failed to establish that it could maintain such a cause of action under Wisconsin law, see 28 U.S.C. § 2674, and any claims for tortious interference with contract are explicitly excluded from coverage by the FTCA. See 28 U.S.C. § 2680(h). The sole remedy for breach of contract claims against the government lies under the Tucker Aet. See 28 U.S.C. §§ 1346(a)(2) & 1491(a)(1). See also Blanchard v. St. Paul Fire and Marine Insurance Company, 341 F.2d 351, 357-59 (5th Cir.), cert. denied, 382 U.S. 829, 86 S.Ct. 66, 15 L.Ed.2d 73 (1965); Woodbury v. United States, 313 F.2d 291, 295-96 (9th Cir.1963). Consequently, because the United States has not consented to suit under such a theory, this claim is barred by the doctrine of sovereign immunity and it will be dismissed with prejudice, see supra p. 1352, for lack of subject matter jurisdiction. ORDER Because the plaintiffs claims are barred by the doctrine of sovereign immunity and because the court lacks subject matter jurisdiction over them, the court ORDERS that the Motion of Defendant United States of America to Dismiss (filed May 2, 1990) IS GRANTED. See Federal Rule of Civil Procedure 12(b)(1). IT IS FURTHER ORDERED that this action IS DISMISSED with prejudice. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 58, the Clerk of Court shall enter a final judgment of dismissal as a separate document. This judgment shall provide that: This action came on for hearing before the Court, Honorable Thomas J. Curran, District Judge, presiding, and the issues having been duly heard and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED that all the claims of plaintiff Midwest Knitting Mills, Inc. are dismissed for lack of subject matter jurisdiction and that this action is dismissed with prejudice. Done and Ordered. . The plaintiff has specifically denied that it is raising a claim under a tort theory of misrepresentation. Instead, Midwest Knitting asserts that “negligent supervision of an employee forms the gravamen of the complaint.” Memorandum in Opposition to Defendant's Motion to Dismiss and for Summary Judgment at 15. . The Second Circuit has observed that, when a plaintiff is attempting to escape the FTCA’s intentional tort exception, the allegations of negligence may merely be allegations of intentional conduct in artfully redrawn form. See Guccione v. United States, 847 F.2d at 1034. In the instant case neither the intentional nor the negligent tortious conduct of Matthews has been clearly delineated or differentiated by the plaintiff’s allegations. . The plaintiff cites two additional Wisconsin cases, Schicker v. Leick, 40 Wis.2d 295, 162 N.W.2d 66 (1968) and Hoeverman v. Feldman, 220 Wis. 557, 265 N.W. 580 (1936), but only for general propositions of tort law. . The Attorney General has not certified and the government has not admitted that Frederick Matthews was acting within the scope of his employment if he engaged in the tortious conduct alleged by the plaintiff. See 28 U.S.C. § 2679. . At all times relevant to this complaint, Frederick Matthews was employed by the SBA as a GS-12 Business Development Specialist. See Affidavit of Attorney Richard F. Yanisch in opposition to Motion to Dismiss and for Summary Judgment at Exhibits. . In its Proposed Findings of Fact and Conclusions of Law, submitted after the briefing of the summary judgment motion was completed, the plaintiff cites two additional cases in which plaintiffs attempted to mount FTCA claims for negligent supervision. Like International Distributing and Melton, these cases have no bearing on the viability of a negligent supervision claim under Wisconsin law. In the first case, Andrews v. United States, 732 F.2d 366 (4th Cir.1984), a woman living in South Carolina was allowed to sue the supervisor of a physician's assistant. The assistant had sexually seduced her under the guise of rendering medical treatment. The Fourth Circuit ruled that her claim for negligent supervision was not barred by the intentional tort exception to the FTCA, see 28 U.S.C. § 2680(h), because the claim did not arise out of assault and battery. Instead, the court labeled the claim as one for "medical malpractice,” Andrews, 732 F.2d at 371, and ruled that the plaintiff could maintain her claim that a military doctor had failed to supervise his assistant after the doctor had been informed that the assistant's conduct was causing the plaintiff emotional damage. See Id. at 371 n. 7. The court focused on the applicability of the intentional tort exception and did not consider whether South Carolina recognized a cause of action for negligent supervision under such circumstances. In the second case, Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), a case arising in Tennessee, the United States Supreme Court ruled that a plaintiff's claim was not barred by the misrepresentation exception to the FTCA found in 28 U.S.C. § 2680(h). Plaintiff Onilea Neal had obtained a loan from the Farmers Home Administration (FmHA) for a prefabricated house. After she moved into the house, she discovered defects and sued the government under the FTCA for the failure of FmHA employees properly to inspect and supervise construction of the house. Block v. Neal, 460 U.S. at 290, 103 S.Ct. at 1090. The Court determined that, although the plaintiff was claiming that the FmHA had made misstatements to her, the gravamen of her claim was not misrepresentation, but that the FmHA had voluntarily undertaken to supervise the construction of her house and that FmHA officials had failed to use due care in carrying out their supervisory activity. Id. at 297, 103 S.Ct. at 1093. The Court noted, however, that although the Sixth Circuit had ruled that Neal had stated a claim against the United States under the common-law Good Samaritan doctrine, the court of appeals had not expressly considered whether Tennessee law recognizes this doctrine or whether, if it does, it would apply it to a private person responsible for similar negligence. Id. at 294 n. 3, 103 S.Ct. at 1092 n. 3. See abo Love v. United States, 871 F.2d 1488, 1495 (9th Cir.1989) (questioning whether Montana law would impose liability for negligent supervision of loan deferral services under a good Samaritan theory when the supervision was not performed specifically to promote safety from physical harm). . A contractor has no independent right or entitlement to financing from the SBA. See Ascot Dinner Theatre v. Small Business Administration, 887 F.2d 1024, 1030 (10th Cir.1989).

OPINION OF THE COURT HARDIMAN, Circuit Judge. This appeal presents a question of first impression: whether an administrative ruling under the Sarbanes-Oxley Act may have preclusive effect on a subsequent discrimination claim brought in federal court. We hold that it may, largely for the reasons set forth in the District Court’s comprehensive opinion. I. Appellant Carol Tice was a pharmaceutical salesperson for Bristol-Myers Squibb Co. for almost two decades, until she was fired in 2005. Tice claims that her termination was based on gender in violation of 42 U.S.C. § 2000e (Title VII), and age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (ADEA). In a separate claim previously adjudicated before an administrative law judge, Tice unsuccessfully argued that she was fired for reporting illegal corporate activity in violation of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A(b)(2) (SOX). Bristol-Myers has consistently' stated that Tice was fired for falsifying sales reports and failing to account for a significant portion of her assigned inventory of sample medications. Tice was terminated on April 13, 2005. She filed a SOX claim with the Occupational Safety and Health Administration a month later, which was heard by an Administrative Law Judge (ALJ) in January 2006. The ALJ rejected the SOX claim in April 2006. In December 2006, almost a year after her SOX administrative hearing, Tice brought suit in federal district court under Title VII and the ADEA. In support of her SOX claim, Tice argued that Bristol-Myers salespeople falsified reports under corporate pressure to do so. Tice claimed that she was fired for reporting this activity, in violation of SOX. The ALJ rejected these allegations, finding that Tice “was terminated for the act of falsifying calls [herself], not for the reporting of doing so.” Tice v. Bristol-Myers Squibb Co., 515 F.Supp.2d 580, 588 (W.D.Pa.2007) (quoting ALJ). Tice admitted to falsifying her sales call reports, but justified doing so because of purportedly unrealistic goals set by her manager. The ALJ concluded that “Bristol-Myers demonstrate[d] by clear and convincing evidence that it would have disciplined Tice or terminated her even in the absence of [any] protected activity.” Tice, 515 F.Supp.2d at 586 (quoting ALJ). Because Tice failed to establish that the justification proffered by Bristol-Myers was pre- textual, the ALJ rejected Tice’s SOX claim. After the ALJ ruled against her, Tice had a statutory right to appeal. SOX states that a plaintiff “may obtain review of [the final agency decision] in the United States Court of Appeals for the circuit in which the violation ... allegedly occurred or the circuit in which the complainant resided on the date of such violation.” 49 U.S.C. § 42121(b)(4)(A); 18 U.S.C. § 1514A(b)(2) (referring to 49 U.S.C. § 42121(b)(4)(A)). The statute also provides that “[a]n order ... with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.” Id. § 42121(b)(4)(B) (emphasis added). Tice chose not to appeal the ALJ’s decision, but pursued Title VII and ADEA claims in federal court, arguing that she was fired because of her age and gender. In support of these claims, Tice alleged that her manager was motivated to retaliate against her because of a sexual harassment claim she filed previously. Instead of relying upon any specific facts indicating age or sex discrimination, Tice alleges that she was fired for reporting SOX violations while unidentified younger and male employees were not fired. Under the burden-shifting analysis that governs Title VII, ADEA, and SOX claims, the burden of production shifts to the defendant after a plaintiff establishes a pri-ma facie ease of discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the employer can then produce evidence of a nondiscriminatory or non-retaliatory motive for its actions, the burden shifts back to the plaintiff to produce evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). The ALJ who rejected Tice’s SOX claim determined that Bristol-Myers had a legitimate, non-pretextual reason for firing Tice. Although the plain language of SOX dictates respect for final agency decisions, Tice argues that she should be allowed to litigate anew in federal court the reason for her termination. In support of this argument, Tice cites the general rule entitling Title VII and ADEA plaintiffs to de novo review in federal court following an initial hearing before a state or federal agency. See Astoria Fed. Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (unreviewed state agency decisions have no preclusive effect on ADEA' claims brought subsequently in federal court because ADEA requires de novo review); Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (unreviewed state agency decisions have no preclusive effect on discrimination claims brought subsequently in federal court because Title VII requires de novo review); Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (federal employee entitled to de novo review in district court after internal administrative adjudication of her discrimination claim by her agency employer). But see Kremer v. Chem. Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (full faith and credit principles require federal courts to give preclusive effect to state agency decisions that have been reviewed by a state court). To bolster her argument, Tice points to a SOX provision stating that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law.” 18 U.S.C. § 1514A(d). The District Court rejected Tice’s argument, finding that de novo review of Title VII and ADEA claims does not extend to issues adjudicated in a SOX proceeding. The Court noted that Tice could “arguably ... establish a prima facie case for age discrimination and sex discrimination,” Tice, 515 F.Supp.2d at 590, but granted summary judgment for Bristol-Myers because the ALJ’s ruling precluded Tice from challenging the company’s legitimate, non-pretextual reason for firing her. We repeat at length Judge Conti’s cogent and thorough collateral estoppel analysis: In this ease, plaintiff was afforded a full and fair opportunity to litigate during a federal administrative proceeding that was not part of the statutory framework of a Title VII or ADEA claim, but rather was part of the statutory framework of a SOX claim. The factual issues whether defendant’s stated reason for firing her was truthful and whether defendant consistently followed its policy and fired employees who filed false reports were determined with respect to plaintiffs SOX claim in a final order of the Secretary of Labor. The prior administrative proceeding was of a judicial nature, consisting of full discovery, testimony under oath by witnesses, cross-examination of witnesses, oral arguments and briefs presented by competing sides, and a reasoned opinion written by an administrative law judge. During the administrative hearing, material issues were whether Bristol-Myers’ stated reason for terminating plaintiff was truthful and whether it consistently followed its policy and fired employees, like plaintiff, who filed false reports. Those issues were actually litigated and the ALJ determined that plaintiff was fired because she falsified sales call reports. Bristol-Myers proved this fact by clear and convincing evidence. The ALJ also found that defendant consistently followed its policy of firing employees who falsified reports. Simply put, plaintiff was terminated because she violated company policy. Plaintiff now seeks to place the same factual issues which were resolved in connection with her SOX claim at issue. Plaintiff, however, is precluded by statute from collaterally attacking the decision which became the final order in her SOX claim. All requirements for use of the doctrine of issue preclusion are met and this court must conclude that plaintiff cannot reliti-gate those factual issues. Use of the doctrine of collateral estoppel is appropriate under these specific circumstances involving a final order of the Secretary of Labor in a SOX claim by reason of the statutory prohibition on collateral attack of that order. Id. at 600. Tice filed this timely appeal. II. We must reconcile the general presumption of de novo review of Title VII and ADEA claims in federal court with explicit language in SOX affirming the preclusive effect of agency rulings. Tice extols the former principle over the latter, but her argument fails because the rule that Title VII and ADEA plaintiffs are entitled to de novo review in federal court is not as expansive as Tice suggests. A. Title VII was enacted to “assure equality of employment opportunities by elimi nating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). “To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.” Id. Before a federal complaint may be brought under Title VII, one must “file[ ] timely a charge of employment discrimination with the [EEOC], and ... receive[ ] and act[ ] upon the Commission’s statutory notice of the right to sue.” Id. at 47, 94 S.Ct. 1011. Federal courts retain “plenary powers to secure compliance with Title VII,” exercising de novo review if the EEOC rejects a plaintiffs claim. Id. at 44-45, 94 S.Ct. 1011. Title VII plaintiffs are also entitled to de novo review in federal court following adjudication within the federal agency where they are employed, Chandler, 425 U.S. at 845-46, 96 S.Ct. 1949, or by a state agency tasked with remedying employment discrimination, Elliott, 478 U.S. at 796, 106 S.Ct. 3220. See also Solimino, 501 U.S. at 110-11, 111 S.Ct. 2166 (similarly requiring de novo review in federal court of state agency decisions under the ADEA). Title VU’s general grant of de novo review conflicts with the “obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Solimino, 501. U.S. at 108, 111 S.Ct. 2166. For this reason, final agency decisions outside the Title VII context normally have preclusive effect in federal courts pursuant to the doctrines of collateral estoppel and res judicata. See Elliott, 478 U.S. at 798, 106 S.Ct. 3220 (“[G]iving preclusive effect to administrative factfinding serves the value underlying general principles of collateral estoppel: enforcing repose. This value ... is equally implicated whether factfinding is done by a federal or state agency.”); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (“Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”). The valuable interests served by collateral estoppel include “relieving] parties of the cost and vexation of multiple lawsuits, conserving] judicial resources, and, by preventing inconsistent decisions, encouraging] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Nevertheless, the “suitability [of preclusion] may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedure.” Solimino, 501 U.S. at 109-10, 111 S.Ct. 2166. In determining whether the prior judgment of an administrative agency has preclusive effect in a subsequent Title VII or ADEA claim, “the question is not whether administrative es-toppel is wise but whether it is intended by the legislature.” Id. at 108, 111 S.Ct. 2166. Because “a common-law rule of preclusion would [not] be consistent with Congress’ intent in enacting Title VII,” adjudication of discrimination claims arising under Title VII by certain state or federal agencies generally does not preclude reliti- gation of these claims in federal court. Elliott, 478 U.S. at 796, 106 S.Ct. 3220. In some situations, however, prior proceedings may have preclusive effect in the subsequent litigation of a Title VII or ADEA claim. For example, if a plaintiff obtains review of a state agency decision in state court, then the countervailing principles of full faith and credit bar her from relitigating the same issues in federal court, notwithstanding the general presumption of de novo review. Kremer, 456 U.S. at 477-78, 102 S.Ct. 1883. “Nothing in the legislative history of [Title VII] suggests that Congress considered it necessary or desirable to provide an absolute right to relitigate in federal court an issue resolved by a state court.” Id. at 473, 102 S.Ct. 1883. In Kremer, the Supreme Court rejected the claim that Congress’ choice to erect a framework for Title VII litigation in which state and federal agencies act as checkpoints along a path to ultimate adjudication in federal court diminishes respect for collateral judgments made outside of that framework: “[0]ur language should not be read to imply, that by vesting final responsibility in one forum, Congress intended to deny finality to decisions of another.” Id. at 477,102 S.Ct. 1883. Likewise, when an employee consents to compulsory arbitration as a condition of employment, the Federal Arbitration Act prohibits collateral attack on the arbitrator’s judgment. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (ADEA context); Seus v. John Nuveen & Co., 146 F.3d 175, 182 (3d Cir.1998) (applying Gilmer in Title VII context). But see Gardner-Denver, 415 U.S. at 47-54, 94 S.Ct. 1011 (holding that arbitration pursuant to collective bargaining agreements cannot preclude subsequent litigation of Title VII claims in federal court). The fact that arbitration might preclude a plaintiffs federal court action is not contrary to the purpose of Title VII, because the EEOC has independent authority to investigate allegations in furtherance of the statute’s goals. Gilmer, 500 U.S. at 28, 111 S.Ct. 1647. In sum, an exception to the general rule that administrative decisions are entitled to preclusive effect has been recognized when discrimination proceedings are brought before agencies falling within the framework contemplated by Title VII and ADEA. See Solimino, 501 U.S. at 108-09, 111 S.Ct. 2166 (concluding that general presumption in favor of administrative es-toppel is implicitly rebutted by ADEA). In Chandler, Elliott, and Solimino, underlying administrative decisions were not preclusive where a subsequent federal action under Title VII effectively served as a de novo appeal of the original discrimination claim. See, e.g., Elliott, 478 U.S. at 795-96, 106 S.Ct. 3220 (concluding that Congress intended discrimination plaintiff who lost at the administrative level “to have a trial de novo on his Title VII claim”). In each case, the plaintiffs basic legal theory was the same before the agency and the court: illegal discrimination on the basis of a characteristic protected by Title VII or ADEA. Elliott’s reliance on this premise was explicit: Like the plaintiff in Chandler, the respondent in [Elliott ] pursued his Title VII action following an administrative proceeding at which the employing agency rejected a discrimination claim. It would be contrary to the rationale of Chandler to apply res judicata to deny respondents a trial de novo on his Title VII claim. Elliott, 478 U.S. at 796, 106 S.Ct. 3220 (emphasis added). Elliott further noted that “EEOC review ... of discrimination charges previously rejected by state agen cies would be pointless if the federal courts were bound by such agency decisions.” Id. at 793, 106 S.Ct. 3220 (emphasis added). This premise is intuitive because, within the Title VII framework, according preclu-sive effect to underlying agency decisions would eviscerate the ultimate responsibility that Congress placed with the judiciary by depriving aggrieved parties of a federal forum. See Solimino, 501 U.S. at 111-12, 111 S.Ct. 2166 (holding that state administrative findings in an age discrimination claim are not preclusive in a subsequent ADEA case in federal court because “such federal proceedings would be strictly pro forma if state administrative findings were given preclusive effect,” and because “preclusion would ... reduce to insignificance those cases in which federal consideration might be pursued in the wake of the completed proceedings of state agencies”). “Denial of preclusion in Title VII and [ADEA] cases [thus] reflects respect for the relationship between state and federal agencies established by these specific statutory schemes, not doubts about the general preclusion rule.” 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4471.3 (2008) (emphasis added). Different countervailing interests are at stake in applying collateral estoppel in a Title VII action to bar relitigation of an issue decided in the course of a non-discrimination proceeding tangential to the plaintiffs subsequent Title VII claim. The foregoing purposes are not served by extending de novo judicial review to nullify the preclusive effect of non-discrimination claims adjudicated outside of the normal Title VII framework. As the Supreme Court has repeatedly indicated, the question is whether Congress intended a particular proceeding to have preclusive effect on Title VII claims. See Solimino, 501 U.S. at 108, 111 S.Ct. 2166; Chandler, 425 U.S. at 859-60, 96 S.Ct. 1949; Elliott, 478 U.S. at 796, 106 S.Ct. 3220. We turn now to that question. B. In this case, Tice elected to pursue a claim under SOX. Her claim fell outside of the framework contemplated by Title VII because it did not allege discrimination based on a protected characteristic, but rather retaliation for blowing the whistle on illegal corporate activity. Congress has clearly stated that administrative findings in a SOX case are subject to review only by direct appeal, not collateral attack. See § 42121(b)(4)(B). After losing at the agency level, Tice chose not to appeal her SOX claim. This does not necessarily prevent Tice from arguing that her termination was improper for entirely different reasons in another forum. However, given SOX’s explicit prohibition against collateral attack, it does prevent her from relitigating issues specifically decided in the course of her SOX proceedings. According preclusive effect to the ALJ’s finding of Bristol-Myers’s legitimate, non-pretextual reason for firing Tice comports with the plain language of SOX as well as the general purpose of Title VII. Our holding thus reconciles the seemingly conflicting mandates of Title VII and SOX, in the same way that the Supreme Court sought to “harmoniz[e]” ADEA and the full faith and credit requirement “insofar as two statutes are capable of coexistence.” Solimino, 501 U.S. at 109, 111 S.Ct. 2166. This is not to say that all issues adjudicated in the course of a non-discrimination claim will necessarily have preclusive effect in a subsequent Title VII claim. In fact, we have categorically rejected the preclusive effect of any administrative decision made by a state agency—whether or not part of the Title VII framework— unless reviewed by a state court. See Roth v. Koppers Indus., 993 F.2d 1058, 1062 (3d Cir.1993) (state unemployment agency’s ruling that employee had just cause to resign was not entitled to preclu-sive effect, in part because “unreviewed administrative agency findings can never be accorded preclusive effect in subsequent Title VII proceedings”); Caver v. City of Trenton, 420 F.3d 243, 258-59 (3d Cir.2005) (same result where police officer successfully challenged his termination in state administrative proceedings, then brought a discrimination claim under Title VII). However reasonable it was to conclude that Congress did not intend for those proceedings to have preclusive effect under Title VII, the same cannot be said here. In this case, Congress explicitly provided that when the federal agency adjudicates a claim arising under SOX, that claim is not amenable to collateral attack in any other forum. This legal precept applies notwithstanding the general presumption of de novo review under Title VII. C. Both Tice and our dissenting colleague have raised colorable arguments against preclusion. We acknowledge that the result is not readily apparent because of the tension between the conflicting mandates of Title VII and § 42121(b)(4)(B). Nevertheless, we believe that our reading of the SOX statute—which adheres to its plain language—is the most natural reading in light of general preclusion principles and the exceptions carved out under Title VII. Before engaging the contrary arguments, we begin by explaining our view that the premise underlying the dissenting opinion is invalid. The Dissent believes that the presumption of de novo review under Title VII may be overcome only “where Congress has manifested a clear intent to set it aside.” Dissent I. However, the precedent cited by the Dissent in support of this premise says the opposite. According to Solimino, “legislative repeals by implication will not be recognized, insofar as two statutes are capable of coexistence, absent a clearly expressed congressional intention to the contrary.” 501 U.S. at 109, 111 S.Ct. 2166. The Dissent reads this language to define how explicitly Congress must speak in conferring preclusive effect upon administrative judgments in subsequent Title VII or ADEA cases. In fact, the language cited by the Dissent refers to the putative repeal by Title VII of a statutory provision mandating preclusion, not vice versa. In Kremer, the Supreme Court held that the general presumption of de novo review under Title VII was insufficient to override the full faith and credit statute, so federal courts must grant preclusive effect in Title VII actions to prior agency decisions reviewed by state courts. 456 U.S. at 485, 102 S.Ct. 1883. This is the circumstance in which a clear statement is necessary, according to Solimino. In this case, the question is whether administrative judgments under a separate statutory scheme are entitled to preclusive effect in a Title VII or ADEA action. Solimino specifically says that the answer to this question—unlike the question posed in Kremer—does not require a clear statement, because “the possibility of an im plied [legislative] repeal does not cast its shadow here.” Solimino, 501 U.S. at 109, 111 S.Ct. 2166. Simply put, the contours of the preclusion doctrine under Title VII and the ADEA are not statutory (they have been defined by the Supreme Court in the foregoing cases) so there is nothing to repeal. The Court could not have been more explicit when it said that legislative intent with respect to preclusion does “not ... entail[ ] a requirement of clear statement ... [because] [r]ules of plain statement and strict construction prevail only to the protection of weighty and constant values, be they constitutional ... or otherwise.” Id. at 108, 111 S.Ct. 2166 (citations omitted) (emphasis added). Therefore, in Solimino, the Court concluded that the ADEA’s filing requirements were sufficient evidence that “collateral estoppel is not to apply,” even though “the statute contains no express delimitation of the respect owed to state agency findings.” Id. at 110-11, 111 S.Ct. 2166. D. Having explained our disagreement of the Dissent’s premise, we turn now to the arguments against preclusion raised by Tice and the Dissent. Tice argues that the SOX provision stating that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law,” § 1514A(d), confers upon her a right to de novo review in federal court. We disagree. As we have explained, there is no absolute right to de novo review in federal court of all issues arising in a Title VII claim, especially not with respect to issues previously adjudicated outside of the normal Title VII framework. Our ruling does not diminish a plaintiffs pre-existing Title VII rights, but merely clarifies the extent of those rights. Contrary to the Dissent’s suggestion, we are not “creating] a new rule,” much less one that “prohibits reliti-gation when the claim was merely tangential and addressed only in passing” by the original fact-finder. Dissent I. First, our holding is based on the well established rule that administrative estoppel is presumptively appropriate. It merely reconciles the qualified exception for discrimination claims brought within the framework contemplated by Title VII with Congress’s express intent to protect the finality of SOX adjudications. Moreover, preclusion is entirely appropriate in this particular case because the issue of Bristol-Myers’s legitimate, non-pretextual reason for firing Tice was not “tangential” or “addressed in passing,” but was squarely addressed by the ALJ and essential to his decision. Tice claims that she has not had a “full and fair opportunity to litigate the underlying issues” in the present case. Appellant’s Br. 20. Regardless of whether the elements of Tice’s prima facie case differ under Title VII and SOX, the fact remains that both prima facie cases are rebutted by the same legitimate, non-pretextual justification for her termination: the falsification of sales records. This is the relevant issue for purposes of our preclusion analysis. The Dissent objects that our holding unduly burdens mixed-motive plaintiffs by binding them to findings made by an ALJ under SOX when a Title VII claim is pending in federal court. Although forcing litigants to strategically choose the most col- orable among several competing theories of recovery might otherwise be a legitimate purpose of collateral estoppel, we agree that § 1514A(d) refutes such intent in this case. But our decision does not burden legitimate mixed-motive Title VII plaintiffs, who remain free to assert entirely separate reasons for their termination under Fuentes, Preclusion is dispositive in this case only because Tice challenges the ALJ’s finding that Bristol-Myers had a legitimate, nonpretextual reason to fire her, rather than arguing that she was fired for discriminatory reasons in addition to the legitimate reason established in the SOX proceedings. III. In sum, we find that normal preclusion principles apply here because SOX falls outside of the general Title VII framework and explicitly prohibits collateral attacks. Accordingly, the District Court correctly held that Tice is barred from relitigating the ALJ’s determination that she was fired for falsifying sales reports. We will affirm. . Tice's suit also involves a claim under the Pennsylvania Humans Relations Act (PHRA), governed by tire same standards as her Title VII claim. See Woodson v. Scott Paper Co., 109 F.3d 913, 919 (3d Cir.1997). . It is not clear when Tice initiated her Title VII claim with the Equal Employment Opportunity Commission. Her right to sue letter was issued on September 26, 2006. At oral argument, Tice's counsel characterized her SOX and Title VII claims as "parallel'' proceedings, in an effort to refute the impression that the Title VII claim was an improper method of collaterally attacking the SOX judgment. This is contrary to Tice's brief, which states that she "instituted the underlying action by filing a Complaint against Bristol-Myers ... following the conclusion of the SOX proceedings.” Appellant's Br. 9. Even assuming that the Title VII and SOX claims were “parallel proceedings,” the relative timing of the actions is immaterial to our decision. . The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. . The Dissent correctly notes that principles of federalism are no basis for distinguishing between the preclusive effect of state and federal agency decisions. Our distinction is not between state and federal agencies, per se, but rather between state agencies in general, and a federal agency whose final judgments have been explicitly deemed immune to collateral attack. . Not only does the clear statement rule not apply, but Congress’ intent is much clearer in this case than in Solimino, where merely implicit intent with respect to preclusion was deemed sufficient to override the general presumption of administrative estoppel. In this case, there is explicit intent in § 42121(b)(4)(B) to affirm the presumption of administrative estoppel. . The discrimination analysis set out in Fuentes outlines an alternative theory for proving discrimination: since discrimination need not be the sole motivating reason for mistreatment to trigger liability under Title VII or the ADEA, Tice could show that although she was fired for falsifying sales reports, other evidence shows that "an invidious discriminatory reason was” also a motivating reason for her termination. 32 F.3d at 764; see also Miller v. CIGNA Corp., 47 F.3d 586, 593-94 (3d Cir.1995) (en banc) (holding that ADEA's requirement that a discharge decision be "because of” an employee's age does not require that it by "solely because of” age); Wilson v. Susquehanna Twp. Police Dept., 55 F.3d 126, 130 (3d Cir.1995) (applying Miller to Title VII sex discrimination claim). GARTH, Circuit Judge, dissenting in part and concurring in part: By holding that the findings of an unre-viewed administrative agency have preclu-sive effect in subsequent Title VII and ADEA cases, I believe the majority opinion has jettisoned Supreme Court and Third Circuit precedents. Accordingly, although I concur in affirming the judgment of the District Court, I write separately because the majority holds that Congress intended SOX to predominate over other federal statutes such as Title VII and ADEA. I find no such intent. I. I adhere to our precedents and our longstanding principle that “unreviewed administrative agency findings can never be accorded issue preclusive effect in subsequent Title VII and ADEA proceedings.” Roth v. Koppers Indus. Inc., 993 F.2d 1058, 1062 (3d Cir.1993) (citing Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986)); see also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (extending this rule to ADEA claims). By contrast, the majority holds that Congress intended SOX to trump Title VII/ADEA on the basis of one sentence in 49 U.S.C. § 42121(b)(4): “An order of the Secretary of Labor [under this section] shall not be subject to judicial review in any criminal or other civil proceeding.” The principle of a de novo trial in Title VII/ADEA claims is firmly established. See, e.g., Chandler, 425 U.S. at 861, 96 S.Ct. 1949 (“Nothing in the legislative history indicates that ... ‘civil action’ was to have [a] chameleon-like character, providing fragmentary de novo consideration of discrimination claims where ‘appropriate.’ ”). The only extent to which it is not “absolute” is where Congress has manifested a clear intent to set it aside, or where it conflicts with prior statutes. See Solimino, 501 U.S. at 109, 111 S.Ct. 2166 (“[L]egislative repeals by implication will not be recognized, insofar as two statutes are capable of coexistence, ‘absent a clearly expressed congressional intention to the contrary.’ ” (citation omitted)); see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). In the Sarbanes-Oxley Act, Congress has manifested no such intent. Judge Hardiman argues that the de novo rule is limited to review of decisions by state administrative agencies, but his opinion does not cite to any court or opinion that has raised this distinction. The Supreme Court’s statement of the rule is, in my opinion, more controlling: Title VII contains “a ‘specific statutory authorization’ for a district court ‘civil action,’ which both the plain language of the statute and the legislative history reveal to be a trial de novo.” Chandler, 425 U.S. at 862, 96 S.Ct. 1949; see also Elliott, 478 U.S. at 796, 106 S.Ct. 3220 (declining to distinguish Chandler on the grounds that it had involved a federal agency rather than a state agency). While it is true that most of the relevant case law happens to involve state agency decisions rather than federal agency decisions, the Supreme Court has refused to draw a federal/state distinction in this regard. See, e.g., Elliott, 478 U.S. at 796, 798, 106 S.Ct. 3220 (“[T]he value underlying general principles of collateral estoppel ... is equally implicated whether factfinding is done by a federal or state agency”); Solimino, 501 U.S. at 108, 111 S.Ct. 2166. Thus, the only way for SOX to take precedence over Title VII and ADEA is for Congress to have clearly expressed its intent to narrow the scope of the established rule of Title VU/ADEA de novo trial. But nowhere does this clear intent appear in the relevant statutes, and Judge Hardiman’s opinion does not provide us with a guide where we might find such an intent. We may look long and hard, but Title VII/ADEA is never mentioned or alluded to in the text or legislative history of SOX or of § 42121. Thus, I am unable to agree that, by adding a cause of action for wronged employees under SOX, Congress intended simultaneously to weaken the extant anti-discrimination framework of Title VII and ADEA. The language in § 42121 is simply boilerplate text, intended to focus upon the administrative appeals process rather than to encroach upon the substance of other statutory schemes. The exact same provision, relied upon by the majority here, appears in at least eight independent statutes. If Congress truly intended in each instance to use this language to restrict the right to de novo trial in anti-discrimination actions, the silence in the legislative history is deafening. Moreover, the text of § 42121 is couched merely in terms of “review,” rather than initial determination. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), preclusive effect was denied where the Title VII claim previously had been considered in an arbitral forum, even though the arbitrator’s decision was final and binding and judicial review was limited. In so holding, the Court stated that, “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather he is asserting a statutory right independent of the arbitration process.” Id. at 54, 94 S.Ct. 1011 (emphasis added). Likewise, a plaintiff who institutes an action under Title VII subsequent to a decision under SOX by the Secretary of Labor, as Tice has here, is not seeking review of the SOX decision but rather is asserting an independent statutory right. Allowing SOX to trump Title VII/ADEA not only ignores Supreme Court and Third Circuit precedents, but also eviscerates sound policy and good common sense. The majority’s opinion sets up a fractious system where employees with legitimate claims under both Title VII/ADEA and SOX effectively are deterred from filing simultaneous complaints with the EEOC and OSHA because early adjudication by one agency would preclude their claims pending before the other—to say nothing of the district court. Cf. Elliott, 478 U.S. at 796 n. 5, 106 S.Ct. 3220 (“ ‘[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’” (citation omitted)). Therefore, given that relitigation is permitted when the claim in an administrative court was identical and directly investigated by the agency created specially for that task, it is perverse for the majority to create a new rule prohibiting relitigation when the claim was merely tangential and addressed only in passing by an agency appointed for another task. Cf. Gardner-Denver, 415 U.S. at 56, 94 S.Ct. 1011 (“ ‘[T]he choice of forums inevitably affects the scope of the substantive right to be vindicated.’ ” (quoting U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 359-60, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971) (Harlan, J., concurring))). The majority claims its position is supported by two exceptions: the full faith and credit statute, and compulsory arbitration under the Federal Arbitration Act (FAA). It is not. While the majority claims these exceptions demonstrate that there is “no absolute right to de novo review in federal court of all issues arising in a Title VII claim,” majority op. 122, they instead prove the rule. A. The First Exception One of the fundamental tenets of our judicial system is that federal courts are required to give “full faith and credit” to the “judicial proceedings of any court of any ... State.” 28 U.S.C. § 1738. In Kremer v. Chem. Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme Court held that a de novo trial pursuant to Title VII was precluded where a state court had reviewed the state administrative agency’s decision. Because the state court’s review triggered § 1738 and accordingly required the application of full faith and credit, permitting a de novo trial in federal court of a final judgment of a state court would have implicitly repealed the full faith and credit statute. Thus, absent clear congressional intent, Title VII could not supercede the full faith and credit statute (just as SOX does not supercede Title VII). Id. at 470-72 (“[A]n implied repeal must ordinarily be evident from the language or operation of a statute ... [and the legislative history of Title VII] plainly do[es] not demonstrate that Congress intended to override the historic respect that federal courts accord state court judgments.”). B. The Second Exception Nor does Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), undermine the general rule of a de novo trial under Title VII/ADEA. Rather, Gilmer stands for the proposition that an employee may voluntarily waive this statutory right, and that the text and legislative history of the ADEA do not preclude such waiver. See id. at 26, 111 S.Ct. 1647 (requiring a showing “that Congress intended to preclude a waiver of a judicial forum for ADEA claims”). This holding does not eviscerate the existence of the right to a de novo trial; to the contrary, it affirms its viability. Moreover, the Court constructed this exception with particular care, after repeatedly denying preclusive effect in the related context of collective bargaining. See, e.g., McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Gardner-Denver, 415 U.S. 36, 94 S.Ct. 1011. The care with which the Supreme Court carved out these two exceptions attests to the strength of the principle that Title VII and ADEA claims are entitled to de novo trial in federal court. Without more, the Sarbanes-Oxley Act, either in purpose or in text, cannot be said to diminish the force of the precedents I have cited, which unambiguously hold that unreviewed agency findings—such as the one that dealt with Tice’s claim here—have no preclusive effect on Title VII or ADEA claims. II. One further comment must be made, and because it has assumed the importance that it does in the majority opinion, I feel it must be corrected. The majority opinion, in Section II.C, reads the language in Solimino, 501 U.S. 104, 111 S.Ct. 2166 (1991), as holding that the “clear intent” rule does not apply to Title VII preclusion. It is mistaken. Solimino states only that the “clear intent” rule does not apply to administrative preclusion, precisely because administrative preclusion does not “represent independent values of such magnitude and constancy as to justify the protection of a clear statement rule.” 501 U.S. at 109, 111 S.Ct. 2166. By contrast, the “clear intent” rule does apply to Title VII, and it applies specifically here because SOX is a federal statute conflicting with Title VII. Indeed, if the preclusion doctrine under Title VII were non-statutory and thus subordinate to other statutes, as the majority suggests, then the “clear statement” rule would not have been invoked in Kremer, 456 U.S. at 468-76, 102 S.Ct. 1883, to resolve a conflict between principles of preclusion under Title VII and the full faith and credit statute because the latter would have clearly trumped. The fact that it was invoked at all demonstrates that Title VII is not automatically subordinate to SOX. In Kremer, Title VII yielded because it was enacted subsequent to, and did not repeal, the full faith and credit statute. See id. at 468, 102 S.Ct. 1883 (“[A]n exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal.” (emphasis added)). Likewise, SOX is subordinate to Title VII, not only because of policy considerations and common sense, see supra, but because SOX was enacted long after Title VII and there is no evidence in either § 42121 or 18 U.S.C. § 1514A of even a glimmer of express or implied repeal. III. Nevertheless, mindful of the doctrine that the decision of a lower court “must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason,” SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943), I join in affirming the District Court’s grant of summary judgment to Bristol-Myers. I do so, not because the administrative findings precluded Tice’s Title VII and ADEA claims, but because the District Court could permissibly adopt the ALJ’s findings of fact. In doing so, the District Court properly determined that Tice had failed to demonstrate any genuine issue of material fact concerning her admitted falsifications of sales reports. Thus, although I strongly disagree with the preclusion analysis of the majority, and accordingly dissent from that analysis, I respectfully concur in the judgment which affirms the District Court’s order of September 13, 2007. . The earliest reference appears to be in the Safe Drinking Water Act, Pub.L. No. 93-523, § 1450, 88 Stat. 1660 (1974) (codified at 42 U.S.C. § 300j-9(i)(3)(B)). Additional references are contained in at least seven other statutes. Consumer Product Safety Improvement Act of 2008, Pub.L. No. 110-314, § 219, 122 Stat. 3062 (codified at 15 U.S.C. § 2087(b)(5)(B)); 9/11 Commission Act of 2007, Pub.L. No. 110-53, § 1413, 121 Stat. 266, 418 (codified at 6 U.S.C. § 1142(c)(4)(B)); Pipeline Safety Improvement Act of 2002, Pub.L. No. 107-355, § 6(a), 116 Stat. 2985 (2002) (codified at 49 U.S.C. § 60129(b)(4)(B)); Aviation Investment and Reform Act, Pub.L. No. 106-181, § 519(a), 114 Stat. 61 (2000) (codified at 49 U.S.C. § 42121(b)(4)(B)); Energy Reorganization Act of 1974, Pub.L. No. 95-601, sec. 10, § 210, 92 Stat. 2947 (1978) (codified as amended at 42 U.S.C. § 5851(c)(2)); Clean Air Act Amendments of 1977, Pub.L. No. 95-95, sec. 312, § 322, 91 Stat. 685 (1977) (codified as amended at 42 U.S.C. § 7622(c)(2)); and Toxic Substances Control Act, Pub.L. No. 94-469, § 23, 90 Stat. 2003 (1976) (codified at 15 U.S.C. § 2622(c)(2)). Other statutes may incorporate by reference in the manner of SOX. See 18 U.S.C. § 1514A(b)(2). . See Roth v. Koppers Indus. Inc., 993 F.2d 1058 (3d Cir.1993); Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986); Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). . Under the existing statutory schemes, a plaintiff must first file separate complaints with each respective agency. See 18 U.S.C. § 1514A(b)(l) (allowing action in district court under SOX only “if the Secretary [of Labor] has not issued a final decision within 180 days”); 29 C.F.R. § 1601.28 (mandating issuance of notice of right to sue under Title VII only after 180 days has passed since the filing of a charge with the EEOC); 29 U.S.C. § 626(d) (prohibiting the filing of a civil action under the ADEA until 60 days after a charge has been filed with the EEOC).