author: PER CURIAM.

text:
    George B. MEUSER, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 16-1052
    United States Court of Appeals, Seventh Circuit.
    Argued July 7, 2016
    Decided October 3, 2016

      Eric J. Yocum, Attorney, Yocum Law Office, Evansville, IN, for Plaintiff-Appellant.
    Cynthia A. Freburg, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, Thomas E. Kieper, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant-Appellee.
    Before WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges.
   PER CURIAM.

George Meuser suffers from schizophrenia and applied for Disability Insurance Benefits principally because of that impairment. But an administrative law judge concluded at Step 2 of the 5-step disability analysis that Meuser’s schizophrenia was not a severe impairment and denied benefits on that basis. A magistrate judge presiding by consent, see 28 U.S.C. § 686(c), upheld that ALJ’s decision, but Meuser argues that it rests on a profound misunderstanding of the medical evidence and thus is not supported by substantial evidence. We agree.

I. BACKGROÜND

Meuser, who is 46 years old, was diagnosed with schizophrenia in 1996, and for 15 years he managed his symptoms with the antipsychotic drug Zyprexa. Throughout that time, from 1995 through March 2012, Meuser worked in the mail-room at a publishing company. Although he described himself as “socially impaired somewhat,” he generally got along well with his coworkers.

But Meuser’s health began deteriorating in late 2011 after his pharmacist gave him the generic version of Zyprexa. Before that switch, as evidenced by nearly two years of physicians’ progress notes, Meu-ser was sleeping eight to ten-hours per night, was not experiencing side effects from his medication, and was showing “good” and “euthymic” mood and affect, meaning neither elevated nor depressed, see Dorland’s Medical-Dictionary 655 (32d ed. 2012). But after the drug substitution, Meuser started having insomnia and would sleep only four to six hours per night. He said that he could not focus at work. He told clinicians that an increased work load over the preceding six or seven months was causing him stress. Hoping that a break would improve his symptoms, Meu-ser took a leave of absence from his job in December 2011. He apparently was living with his parents at the time, and he continues to live with them.

Meuser changed psychiatrists in January 2012. At that time he began seeing Dr. Charles Rhoton, who rediagnosed Meu-ser’s schizophrenia from.“undifferentiated” to “paranoid type,” which involves “prominent delusions or auditory hallucinations,” see Am. PsyChiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 313 (4th ed. text- revision 2000) (DSM-IV-TR). Dr. Rhoton also noted “[pjroblems related to social environment” and assessed Meuser’s Global Assessment of Functioning (GAF) score as 61 to 70 with “mild symptoms.” Dr. Rhoton switched Meuser back to the brand-name Zyprexa he was taking previously and increased his dosage, but Meuser did not fully improve. Two weeks after Dr. Rhoton’s initial assessment, Meuser reported that the increased dosage was causing him to sleep at least 12 to 14 hours a night. Meuser started taking a lower dosage, which helped, but still his sleep was “erratic.” Dr. Rho-ton noted that Meuser’s mood was “mildly dysthymic,” or mildly depressed, and his affect was “blunted,” meaning that Meuser exhibited a severe reduction in the intensity of his external expression of emotion, see Dorland’s Medical Dictionary at 582, 655. Dr. Rhoton now revised his diagnosis to be schizophrenia, undifferentiated type.

The next month Meuser reported to Dr. Rhoton that he was “doing pretty well,” had more energy, was falling asleep easier, and had “been getting out of the house a little more.” Dr. Rhoton noted that Meuser was responding well to his medication and that his mood and affect were normal. Nevertheless, Meuser said, he was not feeling well enough to return to work. Faced with the choice of returning to work or being fired, Meuser decided to quit his job. At his next appointment with Dr. Rho-ton at the end of March 2012, Meuser said he was doing “okay,” and Dr, Rhoton assessed his mood as dysthymic.

Meuser had applied for DIB on February 27, 2012, and based on medical records through March 2012, psychologist F. Klad-der, an agency consultant, opined that Meuser’s schizophrenia was not a severe impairment. He noted that Meuser’s symptoms had been well controlled for over 15 years and that, although his symptoms were not well controlled with generic medication, Meuser was again “doing well” after switching back to Zyprexa. Dr. Klad-der checked boxes indicating only mild difficulties in activities of daily living, social functioning, and concentration, persistence, and pace. A month later William Shipley, an agency consultant with a Ph.D. in an unspecified field, agreed with Dr. Kladder’s assessment without explanation.

Meuser’s application for benefits then was denied initially and on reconsideration. For the next year and a half, until his hearing before the ALJ, Meuser visited Dr. Rhoton six times as his symptoms waxed and waned. Although at each visit Meuser reported tó Dr. Rhoton that he was “well,” “stable,” “fairly well,” or “okay,” Dr. Rhoton noted during four of those visits that Meuser was exhibiting a blunted affect, and on a fifth visit that he was'dysthymic. Meuser continued to complain about erratic sleep. In November 2012, for example, Meuser reported that sleep was “an issue” but said he did not want to change his medication. Then in February 2013 he reported sleeping only three or four hours some nights and other nights twelve to fourteen hours. And as late as August 2013 he reported sleeping “poorly” and having difficulty “falling asleep and staying asleep.” But Meuser did not report “psychotic symptoms” or “positive symptoms” such as hallucinations, paranoia, or “thought broadcasting/insertion,” see Am. PsyChiateic Ass’n, Diagnostic and Statistical Manual op Mental DISORDERS. 94 (5th ed. 2013) (DSM-V). At Meuser’s last appointment before the September 2013 hearing, Dr. Rhoton noted that his “negative symptoms” (i.e., limited emotional expression and disinterest in work or social activities) “remain prominent,” see DSM-V at 88.

A week after this appointment, Dr. Rhoton completed a mental residual functional capacity assessment, marking boxes for the degree of Meuser’s limitations in various categories. Dr. Rhoton opined that Meuser, in addition to being “moderately” limited in many areas, was “markedly” limited in his abilities to (1) maintain, attention and concentration for extended periods, (2) regularly attend scheduled activities and be punctual, (3) “sustain an ordinary routine without special supervision,” (4) “make simple work-related decisions,” (5) “ask simple questions or request assistance,” (6) accept instructions and criticism, and (7) set realistic goals and make plans. Dr. Rhoton further opined that Meuser was experiencing “extreme” limitations in the abilities to (1) “work in coordination with or proximity to others without being distracted,” (2) “complete a normal workday and workweek:without interruptions from psychologically based symptoms and ... perform at a consistent pace without an unreasonable number and length of rest periods,” and (3) “respond appropriately to changes in the work setting.” Dr. Rhoton wrote that these limitations had been present for over a year and a half, since February 2012.

Prior to the hearing Meuser submitted reports completed by himself and his parents describing his functional limitations. Meuser’s mother described how Meuser’s sleep “is a major problem,” She reported that he “only sleeps a couple of hours at a time,” which “causes great anxiety.” She said that Meuser’s chores included doing laundry, taking out the trash, caring for their two cats, and doing “odd jobs as needed around the. house.” Weekly he also prepares meals such as canned pasta or soup, frozen pizza, burgers, and cereal. She said that he “only goes out to eat or out in public about every two weeks when he sees, his psychiatrist” and, even then, needs someone, with him. And, his mother noted, Meuser had “become extremely reclusive” and “more obsessed with TV and with NASCAR” since his symptoms returned. She said that Meuser respects authority and “gets along with others when with them, but hardly ever goes near them.” Meuser’s father echoed these observations, saying that Meuser spends no time with others and has become more withdrawn. In Meuser’s own report, he recounted that his sleep is “not consistent,” and even if he does get a lot of sleep, he still feels tired. Meuser also reported difficulty with his short-term memory and concentration.

Meuser then testified about his schizophrenia at the hearing before the ALJ in September 2013. He said that he cannot sleep more than three to five hours a night. This sleep deprivation left him so tired that he “couldn’t function” at work, and after quitting his job, Meuser said, his condition had not improved. The lack of sleep also affects his short-term memory, Meuser explained, and thus he must write reminders to himself or rely on his parents to help him remember things like doctor’s appointments. He also said that his parents help him with the laundry because he forgets clothes in the dryer. He said he would “really be in a bad spot” without his parents. Meuser described his daily- activities as doing house chores, doing laundry, and “sometimes”, cooking. He said he could drive but had not ventured beyond Henderson, Kentucky, in the previous year (about 87 miles from his home in Princeton, Indiana). He stays “at home most of the time,” said Meuser, and sometimes does not leave the house for days. He testified that he had become more socially withdrawn, and that he had no close friends, only .acquaintances. And when asked about his reaction to social situations, Meuser said: “I just don’t even want to be there. It’s not anything specific with nervousness, or anything like that. It’s just, shut it down, don’t even go. Don’t even think about it.”

The ALJ, in finding at Step 2 that Meu-ser’s schizophrenia was not a severe impairment, asserted that “[sjigns and findings upon objective examination simply do not reflect the presence of a severe physical or mental impairment that more than minimally affects claimant’s ability to perform basic work functions.” The ALJ reasoned, first, that Meuser had been “very stable” on Zyprexa for 14 years,' with no side effects from the medication and GAF scores of 61 to 70. Second, after acknowledging what he described as “some complaints” from Meuser about his sleep while taking the generic form of Zyprexa, the ALJ implied (without saying directly) that Meuser had gotten better after switching back to the brand-name drug. As support for this apparent conclusion that Zyprexa effectively had controlled Meuser’s symptoms, the ALJ asserted that “[throughout the record” Meuser had “denied any psychotic symptoms” and in February 2013 had reported having “no hallucinations or other thought problems.” The ALJ suggested that, although Meuser had reported “some” problems with concentration and sleep in August.2013, his condition was not severe at the time because “his schizophrenia was negative and he was doing okay.” The ALJ. gave “little .weight” to Dr. Rho-ton’s assessment that Meuser had a number of marked or extreme limitations because, the ALJ said, the assessment was “completely in contrast” with the psychiatrist’s treatment record. According to the ALJ, Meuser himself had “reported to Dr. Rhoton he was- doing okay with negative symptoms remaining prominent, no positive symptoms with Zyprexa.” The ALJ asserted that medical records from after Meuser’s onset date show “essentially normal findings” by his treatment providers and “did not' support the presence of a severe mental- impairment!” Instead, the ALJ declared, those records evidence only mild limitations, and thus the ALJ gave “significant weight” to the agency consultants’ corresponding views. And having concluded that Meuser did not satisfy the requirement of a severe impairment at Step 2, the ALJ denied benefits without addressing the three remaining steps, see 20 C.F.R. § 404.1520(a)(4)(ii).

The Appeals Council denied review, thus making the ALJ’s ruling the final decision of the Commissioner of Social Security. See Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009).

II. Analysis

We will uphold an ALJ’s decision if it is supported by substantial evidence, but that standard is not satisfied unless the ALJ has adequately supported his conclusions. See Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).

On appeal, Meuser first argues that a diagnosis of schizophrenia is enough, standing alone, to satisfy the “severe impairment” requirement at Step 2 because that diagnosis, by definition, requires “marked” social or occupational dysfunction, see DSM-V at 99. We have difficulty imagining how an uncontested diagnosis of'schizophrenia (which describes Meuser’s situation) could not survive Step 2. An impairment is “not severe” only if it is “a slight abnormality” that has “no more than a minimal effect on the ability to do basic work activities,” SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996), such as “[understanding, carrying out, and ' remembering simple instructions,” “[responding appropriately” to supervisors and co-workers, and “[d]ealing with changes in a routine work setting,” 20 C.F.R. § 404.1521. We recently emphasized in rejecting an ALJ’s determination at Step 2 that a claimant’s impairments were not severe, “[t]he Step 2 determination is ‘a de minimis screening for groundless claims.’ ” O’Connor-Spinner v. Colvin, 832 F.3d 690, 697, 2016 WL 4197915, at *6 (7th Cir. Aug. 9, 2016) (quoting Thomas v. Colvin, 826 F.3d 953, 960 (7th Cir. 2016)); see Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); McDonald v. Sec’y of Health & Human Serus., 795 F.2d 1118, 1122 (1st Cir. 1986).

■Essentially, the ALJ has conflated Steps 2, 4, and 5. Although the ALJ could still find that Meuser, with medication, can perform work and is not disabled, an assessment of the functional limitations caused by an impairment is more appropriate for Steps 4 and 5, not Step 2, See, e.g., Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010) (schizophrenia severe but not disabling at Step 4); Milcanovic v. Colvin, 572 Fed.Appx. 587, 590-91 (10th Cir. 2014) (schizophrenia severe but not disabling at Step 5); Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 271 (6th Cir. 2010) (schizophrenia severe but not disabling at Step 4); Sultan v. Barnhart, 368 F.3d 857, 861-62 (8th Cir. 2004) (schizophrenia severe but not disabling at Step 5); Matlock v. Barnhart, 90 Fed.Appx. 208, 209-10 (9th Cir. 2004) (schizophrenia severe but not disabling at Step 4); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990) (schizophrenia severe but not disabling at Step 4). But see Bunch v. Heckler, 778 F.2d 396, 400-01 (7th Cir. 1985) (upholding an ALJ’s Step 2 determination that claimant’s schizophrenia was not severe despite hospitalization due to “bizarre and withdrawn behavior,” reports of “auditory hallucinations and ... frequent, intrusive and disturbing thoughts,” and a period of only three months in which she had not “heard voices”). Meuser’s argument that his diagnosis alone is enough to satisfy the severity requirement is similar to an issue we recently considered in O’Connor-Spinner v. Colvin, 832 F.3d 690, 2016 WL 4197915 (7th Cir. Aug. 9, 2016), concerning a diagnosis of major depression. In that case we rejected the ALJ’s determination that the claimant’s major depression was not a severe impairment at Step 2, noting that the determination “strikes us as nonsensical given that the diagnosis, by definition, reflects a practitioner’s assessment that the patient suffers from ‘clinically significant distress or impairment in social, occupational, or other important areas of functioning.’ ” Id. at 697, 2016 WL 4197915, at *6 (quoting DSM-IV-TR at 356).

We need not resolve this issue, however, because the ALJ made other errors that alone warrant a conclusion that the ALJ’s decision is not supported by substantial evidence. First, Meuser argues, correctly, that the ALJ fundamentally misunderstood the diagnosis and symptoms of schizophrenia by focusing solely on the “positive symptoms,” such as hallucinations, and thinking that “negative symptoms” meant no symptoms. For example, the ALJ reasoned that Meuser’s description of his limitations is not fully credible in part because, although Meuser had problems with sleep, he “had no hallucinations or other thought problems” and “his schizophrenia was negative and he was doing okay” (emphasis added). The ALJ’s mistaken understanding of the medical evidence led him to conclude that Meuser’s mental status' was “essentially normal” when, in fact, Dr. Rhotón’s finding that Meuser’s “[njegative symptoms remain prominent” meant just the opposite—that his emotional expression was impaired and he showed disinterest in work or social activities. Thus, the ALJ improperly played doctor when he ignored expert opinions to arrive at his own, incorrect, interpretation of the medical evidence. See Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016); Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014).

The Commissioner does not explicitly deny that the ALJ misunderstood the meaning of “negative symptoms” but contends that any misunderstanding is harmless because the reference to “negative symptoms” in the medical record was merely a “single notation” on which the ALJ did not place undue weight. To the contrary, the ALJ clearly misunderstood the medical evidence and repeatedly relied on the lack of “positive” symptoms and the reference to negative symptoms to conclude that Meuser’s schizophrenia was not severe. The Commissioner further argues that any error with respect to this issue was harmless because Meuser did not show that any limitations lasted for 12 months as required to move on to Step 3, see 20 C.F.R. § 404.1509. But this duration requirement is not part of the definition of “severe.” See id. § 404.1520. Regardless, despite a perfunctory reference to the duration requirement, the ALJ did not rely on this rationale in his opinion, so the Commissioner cannot now rely on it. See SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).

The ALJ’s misunderstanding of the symptoms of schizophrenia was compounded, Meuser argues, when the ALJ ignored several notations that Meuser had a blunted or flat affect and a dysthymic mood, Which are negative symptoms of schizophrenia, see DSM-V at 88. .We agree.-An ALJ cannot recite only the evidence- that supports his conclusion while ignoring com trary evidence. See Moore v. Colvin, 743 F.3d 1118, 1124 (7th Cir.2014); Bates v. Colvin, 736 F.3d 1093, 1099 (7th-Cir. 2013). This “cherry-picking” is especially problematic where mental illness is at issue, for “a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about [his] overall condition.” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). Here the ALJ ignored all six of Dr. Rhoton’s notations that Meuser exhibited a blunted affect or a dysthymic mood from February 2012 through August 2013 (a period, incidentally, much longer than 12 months).

Next, Meuser argues that the ALJ incorrectly rejected Dr. Rhoton’s opinion that he was markedly or extremely limited in several areas of functioning. Because Dr. Rhoton was Meuser’s treating psychiatrist, his opinion was entitled to controlling weight if “well-supported and not inconsistent with other substantial evidence.” Stage, 812 F.3d at 1126; see Bauer v. Astrue, 632 F.3d 606, 608 (7th Cir. 2008). The ALJ rejected Dr. Rhoton’s opinion because it did not align with his own, incorrect, interpretation of the medical evidence; as such the ALJ’s refusal to give controlling weight to the opinion, is not supported by substantial evidence.

- Moreover, even assuming that there had been a reason to deny controlling weight to Dr. Rhoton’s opinion, the ALJ was “not permitted simply to discard it.” Scrogham v. Colvin, 766 F.3d 686, 697 (7th Cir. 2014). Rather, the ALJ was required to explicitly consider the details of the treatment relationship and explain the weight he was giving the opinion. See 20 C.F.R. § 404.1527; Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014). He did not. The Commissioner- contends that the ALJ “properly weighed” Dr. Rhoton’s opinion “under the regulatory factors.” This contention is frivolous. The ALJ did not mention any “regulatory factors” when evaluating Dr. Rho-ton’s opinion; the ALJ said only that the opinion merited “little weight.” Looking at the factors, this conclusion is not supportable. Dr. Rhoton is a psychiatrist and for a year and a half was personally responsible for treating Meuser’s schizophrenia. See 20 C.F.R. § 404.1527(c) (explaining that more weight is given to opinions by specialists, to examining and treating relationships, to longer treatment relationships where there are frequent examinations); Bauer, 532 F.3d at 608. The ALJ instead gave “significant weight” to the agency consultants’ opinions, but these consultants did not ex-aminé Meuser, they are not psychiatrists (though one was a psychologist), and they had-reviewed only a fraction of Meuser’s treatment records that were available before Meuser submitted additional evidence. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (criticizing ALJ’s reliance on consulting physicians’ conclusions that were based on incomplete medical record); Campbell v, Astrue, 627 F.3d 299, 309 (7th Cir. 2010) (same). This error, too, is reason enough to remand the case. See Bauer, 532 F.3d at 608-09.

The preceding errors are sufficiently serious to warrant remanding the case, but we note additional issues that the ALJ must address on remand. Meuser argues that the ALJ’s misunderstanding of the medical evidence led to a flawed finding that Meuser’s testimony about the severity of his schizophrenia was “not fully credible.” The Commissioner contends that Meuser forfeited any challenge to the ALJ’s credibility finding by not raising it in the district court. But the credibility finding rests entirely on the ALJ’s misunderstanding of the medical evidence. That foundation has collapsed, and with it the adverse credibility assessment. There was no reason for Meuser to belabor the point by stating the obvious.

Meuser further contends that the ALJ overstated both the effectiveness of his medication and the extent of his daily activities. Regarding the effectiveness of the medication, it is true that, about a month after switching back to Zyprexa, Meuser reported that he was “doing pretty well,” had more energy, was sleeping better, and was getting out of the house more. But “[tjhere can be a great distance between a patient who responds to treatment and one who is able to enter the workforce.” Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011). The ALJ acknowledged that Meuser reported “some” problems with sleep; in fact, Meuser consistently complained about his sleep for over a year and a half, reporting as late as February 2013 that he was sleeping only three or four hours some nights and twelve to fourteen hours other nights. The ALJ also emphasized that Meuser was “very stable” on Zyprexa for 14 years, but this evidence was from before the alleged onset date and therefore irrelevant. See Wiese v. Astrue, 652 F.3d 728, 731 (8th Cir. 2009).

And regarding the extent of Meu-ser’s daily activities, the ALJ determined that Meuser was- only mildly limited in activities of daily living and in social functioning. But “[a]n ALJ cannot disregard a claimant’s limitations in performing” daily activities. Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009); see Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008). When assessing Meuser’s activities of daily living, the ALJ relied on Meuser’s ability to, for example, do laundry, cook meals, and complete chores, but the ALJ ignored evidence that Meuser gets help with the laundry from his parents when they retrieve the clothes he leaves in the dryer, that the meals he cooks are simple and prepackaged, and that he rarely leaves the house. Meuser, after all, is not claiming that he is disabled by physical limitations, so the proper focus—ignored by the ALJ—is the effect of Meuser’s schizophrenia on his mental functioning, including his abilities to concentrate, perform work tasks without constant supervision, maintain a consistent pace, and work around and with other persons. Whether or not he can pop a frozen dinner into the microwave or occasionally clean the litterbox is irrelevant. Moreover, the ALJ asserted that Meuser was only mildly limited in social functioning in part because he was able to spend time with his parents and he got along well with coworkers when he did work. But the ALJ disregarded evidence that Meuser was “extremely reclusive,” that he seemed to spend time only with his parents, and that his only interactions with coworkers were before his alleged onset date.

III. Conclusion

Because the ALJ misunderstood the medical evidence and improperly rejected the treating psychiatrist’s opinion, the ALJ’s conclusion that Meuser did not have a severe impairment is not supported by substantial evidence. We therefore REVERSE the judgment of the district court and REMAND the matter to the agency for further proceedings.’

      . The American Psychiatric Association abandoned reliance on GAF scores in 2013 with the publication of the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders. See Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014).


source: Caselaw Access Project

author: SYKES, Circuit Judge.

license: Public Domain

text:
    DCV IMPORTS, LLC, Petitioner, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Respondent.
    No. 16-1015
    United States Court of Appeals, Seventh Circuit.
    Argued August 9, 2016
    Decided October 4, 2016
    John Howard Brooke, John Mycroft Stevens, Law Offices of John H. Brooke, P.C., Muncie, IN, for Petitioner.
    Charles R. Gross, Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Tyce R. Walters, Department of Justice, Civil Division, Appellate Staff, Washington, DC, Jason A. Libby, Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Chicago, IL, for Respondent.
    Before BAUER, POSNER, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

DCV Imports, LLC, a family-operated fireworks importer in rural Illinois, petitions for review of an order denying renewal of its import license. An administrative law judge found that DCV Imports willfully failed to keep required records of its daily transactions, see 18 U.S.C. § 842(f); 27 C.F.R. § 555.127, and recommended that the company’s license not be renewed. The regional office of.the Bureau of Alcohol, Tobacco, Firearms and Explosives accepted that recommendation, and the decision was upheld by the Deputy Director, of ATF. We conclude that substantial evidence supports the Deputy Director’s decision and deny the petition for review.

I. Background

The activities of two closely related, family-owned fireworks businesses are relevant to this case, although only the denial of DCV Import’s license is directly at issue. Mary Vinyard and Stephen Vinyard, Sr., began operating S&N Fireworks in the late 1970s, and in 1997 they obtained from the ATF a license to import high explosives. Their son Darren founded DCV Imports in 2004 with the intention of eventually buying out his parents’ business or running his own fireworks company. DCV (meaning Darren Clifford Vinyard) shared S&N’s place of business in Lincoln, Illinois, and in 2004 obtained its own license to import high explosives. From 2004 until 2011, S&N Fireworks ordered bulk fireworks from DCV Imports, which imported the explosives from China and immediately transferred them to S&N Fireworks. S&N then packaged and sold the fireworks for individual shows.

In addition to the two companies’ shared premises and symbiotic business relationship, Darren was employed by S&N Fireworks and was listed as a “responsible person” on S&N’s license. ATF regulations define “responsible person” as one “who has the power to direct the management and policies of the applicant pertaining to explosive materials” and generally “includes partners, sole proprietors, site managers, corporate officers and directors, and majority shareholders.” 27 C.F.R. § 555.11. Darren’s duties with S&N included delivering fireworks for shows and staging firewprks shows.

ATF agents periodically conduct compliance inspections of federal explosives licensees. See id. § 555.24. Agency regulations require that licensees maintain for each storage area or “magazine” an accurate “daily summary of magazine transactions,” including the quantity of explosives received and removed and the total on hand at day’s end. See id. § 555.127. Licensees also have an affirmative duty to notify ATF about discrepancies that “might indicate a theft or loss of explosive materials.” Id. ATF investigators .inspecting DCV Imports in 2004, 2008, and 2010 did not uncover any regulatory violation. DCV was not storing any explosives during this period, however, because all fireworks it received were immediately transferred to S&N Fireworks. Following each inspection, an ATF investigator reviewed with Darren the applicable statutes and regulations, and each time he signed an Acknowl-edgement of Federal Explosives Regulations.

S&N’s compliance record, on the other hand, was spotty. ATF investigators cited the company for numerous violations during a 2006 inspection, including not maintaining accurate daily summaries and storing fireworks unsafely. That inspection led to a “warning conference” in 2008 attended by Darren and other S&N Fireworks personnel. Then in 2009 an inspection revealed a multitude of violations, including hundreds of instances where actual counts of stored fireworks contradicted inventory records, multiple inaccurate daily summaries, and the disappearance of roughly 10,-000 pounds of shells. Stephen “Vinny” Vin-yard, Jr., Darren’s brother, was the S&N employee tasked with maintaining the daily summaries throughout the period when these infractions occurred. Darren attended a conference in early 2010 to wrap up the 2009 inspection, and after reviewing the violations with an ATF investigator, he signed a report acknowledging the- citations. Later that same year the ATF’s Chicago Field Division, through its Director of Industry Operations, notified S&N Fireworks that its license would not be renewed because of willful violations uncovered during the 2009 inspection. Rather than contest the decision, S&N voluntarily surrendered its license.

DCV Imports then bought out S&N’s inventory, equipment, customer lists, and show contracts. As part of the transaction, Darren agreed to give Vinny a 50% stake in DCV and to make him vice president, although Darren retained operational control as president of the company. DCV Imports expanded its operations from importing fireworks to running a complete fireworks business, as S&N Fireworks had been. Darren made Vinny responsible for maintaining the required daily summaries (and consequently the magazine inventories) even though maintaining those same records for S&N Fireworks had been Vin-n/s job when the lapses leading to the company’s demise had occurred. Vinny. did not receive any formal recordkeeping training and struggled to complete the daily summaries; he told Darren that he was uncomfortable performing this task. In early 2013 Vinny hired a cousin to take oyer the recordkeeping duties. Vinny him-splf trainee! the cousin to maintain the daily summaries and then “stopped paying attention” to the records.

• A team of ATF investigators arrived unannounced in September 2013 to inspect DCV Imports.1 The investigators began by counting the explosives in DCV’s magazines and comparing those numbers to a computerized inventory, but when it became clear that the quantities > did not match, the team asked Darren for the daily summaries. The investigators found 73 instances in which those records did not match the amount of fireworks added or removed from a magazine. Those 73 inaccurate daily summaries totaled 1,897 missing “units” or roughly 870 net pounds of explosives for which DCV Imports could not account. As before, this inspection concluded with a conference during which ATF investigators reviewed regulatory requirements and DCVs violations with Darren and required him to sign an Ac-knowledgement of Federal Explosives Regulations.

Based on these violations, ATF’s Director of Industry Operations in Chicago notified DCV Imports in May 2014 that the agency did not intend to renew DCV’s explosives license. The notice charged DCV Imports with willfully failing to comply with the recordkeeping mandate of 27 C.F.R. § 555.127. The notice placed special emphasis on the volume of missing fireworks.

DCV invoked its right to a hearing before an administrative law judge. See 18 U.S.C. § 843(e)(2). In a written submission to the assigned judge, DCV Imports did not dispute the violations but argued instead that its violations- should not be deemed willful given its perfect compliance record before 2013. The agency responded that S&N Fireworks and DCV Imports were “essentially the same business operation” and equated the violations of the former with the latter.

The administrative law judge conducted an evidentiary hearing in December 2014 and afterward issued a written order agreeing with the agency that DCV Imports had committed the recordkeeping violations willfully. The judge reasoned that Darren’s long history of working in the fireworks industry and extensive interactions with the ATF' “demonstrate that he was sufficiently knowledgeable of thé ATF’s federal explosives regulations” yet chose to disregard those requirements. The judge acknowledged that DCV Imports and S&N Fireworks are different entities, and although she did' not impute S&N’s violations to DCV, the judge did hold Darren accountable for the knowledge he gained as a responsible person at S&N Fireworks. She also agreed with the agency that Darren’s decision to defer record-keeping responsibility to Vinny—knowing that he was “at the center of the faulty recordkeeping that led to S&N’s 2010 denial”—strongly supported a finding of willfulness. The judge recommended that the agency confirm the decision not to renew DCVs license.

That recommendation was accepted. DCV Imports sought review by the Deputy Director of the ATF, who after briefing and oral argument upheld the- denial ’of DCVs license renewal. See 27 C;F.R. § 555.79. DCV Imports petitioned for review by this court. See id. § 555.80.

II. Discussion

We will uphold the agency’s conclusión that DCV Imports acted willfully if it is supported by substantial evidence. See § 843(e)(2); 5 U.S.C. § 706(2)(E). Congress has directed the Attorney General (and by delegation the Director of the ATF) to deny or refuse to renew a license to import or deal in explosive materials if the applicant has willfully violated any pertinent statute or regulation. 18 U.S.C. § 843(a), (b)(2). “Willfully” as used in § 843 is not defined, and only one of our sister circuits has addressed its meaning. In Vineland Fireworks Co. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, the Third Circuit reasoned that explosives licensing is analogous to firearms licensing “because ATF administers both ...' and the statutory provisions governing the revocation of each type of license require that the licensee has ‘willfully violated’ a statutory provision or a regulation.” 544 F.3d 509, 518 (3d Cir. 2008). The court concluded that decisions addressing firearms licensing under the Gun Control Act provide “a useful framework” for explosives licensing and observed that the six circuits that have interpreted the meaning of “willful” in proceedings to revoke the license of a firearms dealer agree that the term means plain indifference to, or purposeful disregard of, a known legal duty. Id.; see Shawano Gun & Loan, LLC v. Hughes, 650 F.3d 1070, 1077-78 (7th Cir. 2011); RSM, Inc. v. Herbert, 466 F.3d 316, 320-23 (4th Cir. 2006); Willingham Sports, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 415 F.3d 1274, 1277 (11th Cir. 2005); Appalachian Res. Dev. Corp. v. McCabe, 387 F.3d 461, 464 (6th Cir. 2004); Perri v. Dep’t of the Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981); Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979).

We adopt the Third Circuit’s approach and conclude that the interpretation of “willfulness” applicable to firearms licensing applies as well to revocation of explosives licenses. Accordingly, no showing of bad purpose or evil motive is required to establish willfulness, and no de minimis exception is available. See Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 497-98 (7th Cir. 2006) (interpreting a parallel provision of the Gun Control Act).

With this definition in mind, we turn to the question whether substantial evidence supports' the administrative law judge’s finding that1 DCV Imports -acted willfully. DCV Imports insists that the judge focused “so heavily” on establishing Darren’s knowledge of the explosives regulations that she “failed to address the more important issue of whether DCV intentionally disregarded or was plainly indifferent to its legal duties.”

■ DCV essentially takes the position that it lost 870 net pounds of explosives because of negligence or ignorance, not purposeful disregard of its regulatory duties. The company argues that the administrative law judge was wrong to fault Darren for giving Vinny responsibility for the daily summaries because Vinny was the “relatively more experienced brother.” Darren’s choice to defer to “the most experienced person available” evinces a “conscious effort to fulfill” the regulatory requirement, DCV argues. But that inference is unreasonable on- this record; even if we accept that Vinny was the “more experienced brother,” his recordkeeping history at S&N Fireworks was so poor that it led to the revocation of S&N’s license. DCV Imports also contends that the agency was wrong to impute to Darren' knowledge gained from his time at S&N Fireworks because he did not hold an ownership interest and was at most a site manager. But Darren’s lack of an ownership interest in S&N Fireworks is irrelevant since DCV Imports cannot claim that he was unaware of the recordkeeping requirements.

DCV also argues that the agency was wrong to rely on the acknowledgments Darren signed because those forms merely indicate that ATF gave him a general overview of the regulatory requirements and do not establish that Darren actually understood them. Again, that’s not a reasonable argument on this record. Substantial evidence supports the agency’s conclusion that Darren was sufficiently familiar with the regulatory requirements based on his long history in the fireworks business and numerous prior ATF inspections and warnings., , ,

DCV tries To minimize its culpability by characterizing the many lapses' uncovered in the 2013 inspection as a “single record-keeping violation.” Once again, that’s not an accurate characterization of the facts; hundreds of pounds of explosives were lost on account of 73 inaccurate daily summaries. Anyway, one willful violation is enough; the ATF isn’t required to cite a licensee repeatedly before revoking an explosives - license. Am. Arms Int’l v. Herbert, 563 F.3d 78, 87 (4th Cir. 2009) (“Plain indifference can be found even where nine times out of ten a licensee acts in accordance with the regulations, if he was plainly indifferent to the one-in-ten violation.”); Vineland Fireworks Co., 544 F.3d at 518-19. Darren and Vinny were intimately involved with S&N Fireworks when their parents lost their license based largely on the same type of recordkeeping violations, yet neither of the brothers exercised the initiative to ensure that DCV complied. This more than supports a finding of willfulness.

Moreover, no principled basis exists on which to distinguish the facts of this case from1 Vineland Fireworks Co., the only federal appellate decision directly addressing revocation of an explosives, license. There the Third Circuit upheld a finding that a licensee willfully failed to maintain accurate daily transaction records where the company’s owner had been the responsible person of a predecessor company when its license was revoked for similar recordkeeping violations. 544 F.3d at 521-22, The Third Circuit specifically rejected an argument that the company’s principal should be excused from compliance because her bookkeeper was undergoing cancer treatment when the violations occurred, finding that the owner’s interactions with ATF during the predecessor company’s .revocation demonstrated her knowledge of the regulatory requirements. DCVs argument—that Darren’s lack of experience and Vinny’s apparent incompetence negates a finding of willfulness— is similarly unpersuasive.

Finally, DCV asserts that because it previously asked the ATF for guidance in interpreting a different set of explosives regulations, the finding of willfulness was improper. As far as we can tell, this contention concerns a separate, unrelated charge that the administrative ■ law judge rejected and thus no longer is at issue. A licensee’s effort to understand one regulation does not inoculate it against a finding that it intentionally disregarded another. DCV also suggests, without citation to evi-dentiary support, that the ATF investigators provided contradictory interpretations of the agency’s regulations. The administrative law judge pointed out that no evidence in the record supports this contention.

In short, substantial evidence supports the agency’s conclusion that DCV Imports willfully violated explosives regulations. The petition for review is, accordingly, Denied.


author: POSNER, Circuit Judge.

text:
    Jeffrey BRILL, Plaintiff-Appellant, v. TRANSUNION LLC, Defendant-Appellee.
    No. 16-1091
    United States Court of Appeals, Seventh Circuit.
    Argued September 9, 2016
    Decided October 4, 2016
    Rehearing En Banc Denied Nov. 7, 2016
    Julie A. Murray, Public Citizen Litigation Group, Washington, DC, Plaintiff-Appellant,
    William R. Brown, Schuckit & Associates, P.C., Zionsville, IN, Defendant-Ap-pellee.
    Before POSNER, MANION, and WILLIAMS, Circuit Judges.
   POSNER, Circuit Judge.

Credit reporting agencies prepare reports that provide information about a person’s finances—such things as bill-payment history, loans, current debt, and other information (such as where the person lives and works and,- in some cases, whether he or she has been sued or arrested). The information is intended to help lenders decide whether to extend credit or approve a loan and what interest rate to charge. Prospective employers, insurers, and owners of rental property can obtain the credit reports from the agency.

It’s important to debtors that they check their credit reports regularly, to ensure that the information in them is correct and that no fraudulent accounts have been opened in their name. A debtor who finds an inaccuracy can take steps to have it corrected. See “Credit Reports and Scores,” www.usa.gov/credit-reports (visited October 4, 2016, as were the other websites cited in this opinion).

TransUnion, one of the three major American credit reporting agencies, prepared a credit report which revealed, on the basis of information that TransUnion had obtained from Toyota, that a man named Jeffrey Brill was in arrears on a 2013 extension of the lease of a car from Toyota. Brill told TransUnion that his signature on the lease extension had been forged by a former girlfriend named Kelly Pfeifer; that upon her signing the extension it had become her lease, not his; and that he therefore owed nothing to the lessor, Toyota. Invoking the Fair Credit Reporting Act he demanded that TransUnion “conduct a reasonable reinvestigation” to determine whose lease it was, Brill’s or Pfeifer’s. See 15 U.S.C. § 16811(a)(1)(A). TransUnion responded by asking Toyota to confirm the accuracy of its report. Toyota did so, though apparently just by noting that the name of the lessee on the lease extension was Brill; it did not try, and was not asked by TransUnion to try, to determine whether the signature was a forgery.

Brill claims that TransUnion’s investigation of whether he or Pfeifer had leased the car was not “reasonable” within the meaning of the section of the Fair Credit Reporting Act just cited, which provides (in the section cited in the previous paragraph and here amplified) that “if the completeness or accuracy of any item of information contained in a consumer’s [e.g., Brill’s] file at a consumer reporting agency is disputed by the consumer and. the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information.”

Brill contends that TransUnion did not conduct an adequate reinvestigation, which would (he argues) have required it to do more than just ask Toyota (as it had done) to confirm the accuracy of its report to TransUnion. The “more” might be for TransUnion to hire a handwriting expert to determine whether the signature on the lease extension was Brill’s or Pfeifer’s, or maybe for TransUnion to dispense with the expert and just ask the Toyota employees who had been involved in the negotiation of the lease extension to advise whether the signatures (the signature on the original lease and the signature on the extension) were of different persons or the same person. Brill contends that the signatures were obviously of different persons, but the contention cannot be evaluated because he hasn’t submitted the signatures in the litigation.

He claims to have suffered adverse financial consequences from TransUnion’s credit report, which showed him as a delinquent debtor on the car lease and—after he settled with Toyota, which he had also sued—added that his obligation had been written off as a bad debt, implying that Brill had limited financial resources.

His suit against TransUnion is based on the civil liability provisions of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681n(a), o(a), and p(a). The district court dismissed the suit (precipitating this appeal) for failure.to state a claim, on the ground that TransUnion had-no duty to verify the accuracy of Brill’s signature on the Toyota lease, because Toyota, as the lessor, was in a better position to determine the validity of its own lease. That’s to put it mildly. The lease extension that may have been signed by Pfeifer rather than Brill was a document created by Toyota. TransUnion had had nothing to do with it, which is why upon receiving Brill’s challenge to the accuracy of its credit report it had asked Toyota to confirm (or deny) the accuracy of the lease purportedly signed by Brill. That was an appropriate procedure, especially as' TransUnion couldn’t readily locate any other document that might have resolved the issue. Cf. Henson v. CSC Credit Services, 29 F.3d 280, 287 (7th Cir. 1994).

But believing not without reason that Toyota’s response confirming that he was the lessee was too perfunctory to hold up, Brill had sued Toyota; the parties had settled; and the terms of the settlement were to be confidential and have remained so. We not only have no idea of what those terms might be and therefore no idea whether Brill has succeeded in clearing the cloud on his credit (which if so would vitiate the present suit); we haven’t seen the signatures on the lease extension, which are not in the record. It’s odd for a party to withhold from the court evidence that it contends is conclusive in its favor, but that’s what Brill has done.

A further problem with his suit is the difficulty, even with the aid of a handwriting expert, of determining whether two signatures are by the same person. Brill insists that his signatures always include a middle initial, D, and the signature on the lease extension omitted the D. But of course if Brill' signed the lease extension but wanted to “frame” Pfeifer as the signer, he had only to omit his middle initial and cry forgery. It happens also that handwriting analysis is expensive, see, e.g., Do-cExaminer; Forensic Document Laboratory, http://docexaminer.com/pages/faq.html; Forensic Document Analysis: Fee Schedule: How Much Does it Cost?, http:// expertdocumentexaminer.com/cost.html— and often inconclusive when one of the signatures isn’t genuine, for then the similarities or differences between them may be attributable to fraud or some other contrivance. Forcing a credit reporting agency to hire a handwriting expert in every case of alleged forgery would impose an expense disproportionate to the likelihood of an accurate resolution of the dispute over whether it was indeed forgery. And so .the Fair Credit Reporting Act’s provisions for identity theft, 15 U.S.C. §§ 1681c-l, c-2, sensibly ask persons who believe they are or may be victims of credit fraud to report to the police before turning to the credit reporting agency. As far as we know, Brill didn’t do that.

A similar puzzle concerns another related suit brought by Brill—against Pfeifer for defrauding him by using, a forged signature to “steal” the Toyota lease from him. But all that we’re told about the suit is that Brill obtained a default judgment. In other words, Pfeifer didn’t fight—and that is not a confession of forgery.

Nor has Brill indicated how he could prove forgery in the present suit, against TransUnion. As the plaintiff he has the burden of proof, but rather ■ than bear that burden he invokes the statutory duty of reinvestigation by the credit reporting agency to shift the burden of proof to TransUnion, insisting that Tran-sUnion ■ should have done more than check with Toyota, as it did: should have hired a handwriting expert, or analyzed the handwriting without bothering to hire a handwriting expert, or evaluated Toyota’s procedures for verifying the identity of customers, or interviewed the Toyota employees who had been involved in the extension of the lease. As to the first suggestion, handwriting experts are expensive and often produce inconclusive results. See Saul Bienenfeld, “Handwriting Analysis: Science or Art Form? A New York Federal Judge Weighs in,” https://www.hnkedin.com/pulse/ handwriting-analysis-science-art-form-new-york-judge-saul-bienenfeld.

The second suggestion, discussed and rejected earlier in this opinion-using untrained people in lieu of a handwriting expert—is undeveloped and unsupported. And the last two points are particularly weak because once he sued Toyota, Brill was in a superior position to TransUnion to evaluate Toyota’s procedures for verifying customers’ identity and to interview (as by deposing) Toyota employees in order to determine whether they had followed the prescribed procedures in Brill’s case. And it might well be unduly burdensome for TransUnion to ask Toyota to identify, and put TransUnion in touch with, the employees. In any event TransUnion could not expect Toyota to accede to such a request. No company willingly tells another company: “you want to interview my employees in order to see whether they violated rights of someone [Brill] who sued me? No problem.” Instead it says: “Forget it.” Brill’s suit against Toyota was his chance to use discovery to interview Toyota employees. It’s too late now. It was his decision to settle his suit against Toyota rather than use discovery procedures to explore the issue of forgery in depth.

As for Brill’s argument that TransUnion should have forwarded the documents he sent to Toyota (he sent TransUnion a copy of his signature from 2009 and a list of ways in which it differed from the signature on the lease) he’s provided no evidence for his claim that the signatures clearly differ, and therefore no reason to think that sending the signature to Toyota would have helped.

Further on Brill’s strident claim that the two signatures are obviously of different people: neither signature is in the record, though Brill had both documents as well as other samples of his signature. Again we find him refusing to present a case, instead insisting that he need provide no evidence to support any of his allegations.

And last, supposing that the signature on the lease extension was determined to be forged (presumably by Pfeifer), what next? Because of the secrecy surrounding Brill’s settlement with Toyota, we know none of its terms, though we can surmise that Brill obtained some money. Toyota has reported that it has treated the $8,795 owed it by Brill under the lease extension (if indeed he was the signatory of that document) as “bad debt,” implying forgiveness. It would not be right to award him damages against TransUnion that duplicated relief he’d obtained from Toyota, but that is something we can’t determine because he will not reveal the terms of the settlement nor, as far as we’re aware, has he asked Toyota to do so.

We agree with the district judge that Brill has failed to make a plausible claim against TransUnion. The dismissal of his suit is therefore

AFFIRMED.


author: LÓKEN, Circuit Judge.

text:
    James V. KUNTZ, Plaintiff-Appellant, v. RODENBURG LLP, doing business as Rodenburg Law Firm, Defendant-Appellee.
    No. 15-2777
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 18, 2016
    Filed: September 22, 2016
    Thomas J. Lyons, Sr., Consumer Justice Center, P.A., Vadnais Heights, MN, for Plaintiff-Appellant.
    James R. Bedell, Michael S. Poncin, Moss & Barnett, Minneapolis, MN, Eeva Greenley, Stephanie R. Hayden, Clifton Rodenburg, Rodenburg Law Firm, Fargo, ND, for Defendant-Appellee.
    Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
   LÓKEN, Circuit Judge.

After one brief telephone conversation, James Kuntz sued Rodenburg LLP (“Ror denburg”), a North Dakota debt collection law firm hired to collect his daughter’s consumer debt, asserting multiple violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d-f. Kuntz appeals the district court’s grant of summary judgment dismissing claims under 15 U.S.C. §§ 1692b(3) and 1692d(5) that Ro-denburg unlawfully called him multiple times to obtain his daughter’s contact information and that the volume of calls constituted unlawful harassment. Reviewing the grant Of summary judgment de novo, we affirm. See Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 770 (8th Cir. 2001) (standard of review).

I. Background.

In December 2013, Rodenburg was hired to collect a Capitol One credit card debt of Alexis Kuntz. The client provided three telephone contact numbers for Alexis, two cell phone numbers with Minnesota area codes, where Alexis apparently resided, and a 701 area code number, James Kuntz’s home phone in Gladstone, North Dakota, where his adult daughter Alexis has not lived since 1994. Rodenburg verified the North Dakota number was a land-line, so it could autodial ‘that number. See 47 U.S.C. § 227(b). Beginning December 18, 2013, and continuing through January 20, 2014, Rodenburg autodialed Kuntz’s landline number twelve times without a response. Kuntz’s caller ID revealed that a law firm had called but not the reason for the call. His phone did not record voice-mail messages.

On January 20, 2014, Kuntz returned the twelfth call from Rodenburg. He spoke first to Linda Boschee, who transferred him to Theresa Wolf, the person in charge of the Alexis Kuntz collection file. In a recorded conversation, Kuntz asked why he was called because he was not on any of his daughter’s accounts. Wolf said she therefore could not discuss the file with him and then said either, “She has her phone number. We can get in contact with her and take yours out,” or, “If you have her phone number, we can get in contact with her and take yours out.” Kuntz responded, “Ah, let me call her and find out what she’s been getting.” After January 20, Rodenburg called Kuntz .twice more, one autodial call, and once when his number came up on Wolfs call list. Wolf testified that this call was a mistake, as she had intended to remove Kuntz’s phone number from the file after the January 20 call. Rodenburg made no further calls to Kuntz. He commenced this action in May 2014.

II. The 15 U.S.C. § 1692b(3) Claim.

Section 1692b(3) provides:

Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall ... (3) not communicate with any such person more than once unless requested to dp so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.

The district court concluded that the first twelve calls were not “communications” because “they did not convey that Roden-burg was calling about the debt.” See Zortman v. J.C. Christensen & Assocs., 870 F.Supp.2d 694, 704-05 (D. Minn. 2012). Kuntz agrees, but he argues that the two unanswered calls Rodenburg made to him after January 20 violated § 1692b(3) because the January 20 conversation was the one communication § 1692b(3) allows. The district court concluded that, even accepting Kuntz’s disputed version of his conversation with Wolf, Rodenburg reasonably believed that Kuntz’s response on January 20 was incomplete and therefore § 1692b(3) permitted a call back to learn if he “now has correct or complete location information.”

Kuntz argues that summary judgment was improper because Roden-burg’s intent in making the post-January 20 calls is a disputed fact. However, it is not a material disputed fact. “To be a material fact, the factual issue must potentially affect the outcome of the. suit under the governing law.” Depositors Ins. Co. v. Wal-Mart Stores, Inc., 506 F.3d 1092, 1094 (8th Cir. 2007) (quotation omitted). Here, the district court adopted the position urged by Kuntz on the issue of intent: “It is reasonable to infer that Wolf was attempting to acquire contact information about Alexis” by calling back. Thus, the fighting issue is whether Rodenburg “reasonably believed” that Kuntz had not provided a complete response in his January 20 communication with Wolf. Reasonableness is an objective standard. See Worsham v. Accounts Receivable Mgmt., Inc., 497 Fed.Appx. 274, 277 (4th Cir. 2012).

In the January 20 call, it is undisputed that Wolf told Kuntz, “we can get in contact with [Alexis] and take your [phone number] out.” Kuntz replied, “let me call her and find out what she’s been getting.” Kuntz argues that § 1692b(3)’s safe harbor does not apply “where a person has complete information the first time but refuses to provide it.” But Kuntz did not refuse to provide location information or state that he could not provide it. He did not even say that Alexis could not be reached at the number Rodenburg autodialed. He simply said he wanted, to call his daughter and check with her before responding further. In these circumstances, we agree with the district court that it was objectively reasonable for Rodenburg to believe that parent Kuntz had or could obtain location information about his daughter, Alexis, permitting a follow-up call to learn if he had acquired or was now willing to provide “correct or complete location information.” Cf. Worsham, 497 Fed.Appx. at 276-77.

III. The § 1692d(5) Claim.

Section 1692d(5) provides:

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.... [T]he following conduct is a violation of this section: ... (5) Causing a telephone' to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

Kuntz alleges that Rodenburg violated § 1692d(5) because calling him fourteen times between December 19„ 2013 and January . 27, 2014 constituted unlawful harassment. He argues on appeal that Ro-denburg’s intent is a disputed issue of fact that precludes summary judgment. However, we agree with the district court there is no material; factual disputé because Ro-denburg’s conduct did not rise to the level of harassment as a matter of law.

Kuntz does not argue the merits of the harassment issue on appeal except to assert generally at oral argument that one phone call can be harassing. That assertion failed to raise and preserve the issué. “Courts have held that the question whether a debt collector’s conduct in attempting to contact a debtor by telephone amounts to harassment or annoyance in violation of these provisions ultimately turns on evidence regarding the volume, frequency, pattern, or substance of thé phone calls.” Kavalin v. Global Credit & Collection Corp., No. 10-CV-314, 2011 WL 1260210, at *4 (W.D.N.Y. Mar. 31, 2011). Though this is a fact-intensive issue, it may be resolved as a matter of law when the summary judgment record establishes' that no reasonable jury could find the requisite level of harassment. See Carman v. CBE Group, Inc., 782 F.Supp.2d 1223, 1229-32 (D. Kan. 2011) (collecting cases and granting summary judgment); Gnesin v. Am. Profit Recovery, No. 12-CV-12595, 2012 WL 6844686, at *3 (E.D. Mich. Nov. 19, 2012); Waite v. Fin. Recovery Servs., Inc., No. 8:09-CV-02336-T, 2010 WL 5209360, at *3 (M.D. Fla. Dec. 16, 2010); Tucker v. CBE Group, Inc., 710 F.Supp.2d 1301, 1305 (M. D. Fla. 2010).

The judgment of the district court is affirmed.

      . The Honorable Ralph R. Erickson, Chief Judge of the United States District Court for the District of North Dakota.

      . Rodenburg’s brief on appeal argued that Kuntz is a non-debtor third party who lacks standing to sue under § 1692b(3) because it was enacted to safeguard the reputation and privacy of consumers. At oral argument, Ro-denburg conceded Kuntz has standing. As this is an issue of prudential rather than Article III standing, the concession is no doubt binding, See Lexmark Int'l, Inc, v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). But in any event, it was appropriate. The plain language of § 1692b(3) makes clear that its purpose was to protect "any person other than the consumer” from unwanted, repetitive calls from debt collectors. See generally Todd v. Collecto, Inc., 731 F.3d 734, 737-39 (7th Cir. 2013).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mario THOMAS, also known as “Hoodie”, Defendant-Appellant.
    No. 16-1283
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: September 26, 2016

      Counsel who represented the appellant was Anna Marie Williams, AFPD, of Fay-etteville, AR. ,
    Counsel who represented the appellee was Benjamin Wulff, AUSA, of Texarkana, AR.
    Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
   PER CURIAM.

Mario Thomas appeals the district court’s enhancement of his sentence under the United States- Sentencing Guidelines (U.S.S.G. or Guidelines), and we affirm. Thomas was convicted of distributing cocaine base. At sentencing the district court applied the Guidelines’ career-offender enhancement on the basis of two prior convictions, one of which was for first-degree battery under §5-13-201 of the Arkansas Code. That statute enumerates several classes of conduct that qualify as first-degree battery, including: “With the purpose of causing serious physical injury to another person, the person causes serious physical injury to any person by means of a deadly weapon.” Ark. Code Ann. § 5—13—201(a)(1). The Arkansas Code defines “serious physical injury” as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ,” id. § 6-1-102(21), and “deadly weapon” as “(A) A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury; or (B) Anything that in the manner of its use or intended use is capable of causing death or serious physical injury,” id. § 5-1-102(4).

In' United States v. Boose, 739 F.3d 1185, 1188 (8th Cir. 2014), we held that § 5-13-201 prohibits a wider range of conduct than that which would be considered a crime of violence under the “force clause” of U.S.S.G. § 4B1.2(a)(l). The district court therefore employed the “modified categorical approach” when sentencing Thomas to attempt to determine whether he had been convicted under a divisible portion of § 5-13-201 prohibiting a class of conduct that qualified as a crime of violence. It looked to the information, which identified § 5-13-201 as the statute under which Thomas was charged with first-degree battery. Although that document did not in express terms identify any particular subsection of § 5-13-201, it parroted the language of subsection (a)(1), alleging that Thomas, “with the purpose to cause serious physical injury did cause serious injury to Jarnard McCree by means of a deadly weapon,” The sentencing order indicated that Thomas pled guilty to that charge and there was no evidence the information had been amended. The district court concluded that Thomas pled guilty to a violation of subsection (a)(1). It further concluded that subsection (a)(1) requires as an element the use of violent force and is therefore a crime of violence.,

The district court applied the career-offender enhancement on the basis of Thomas’s prior conviction under § 5-13-201(a)(1) and another prior conviction for delivery of a controlled substance. This resulted, after a downward adjustment for acceptance of responsibility, in an offense level of 31 and a recommended Guidelines range of 188 to 235 months’ imprisonment. The district court denied Thomas’s objection to the career-offender enhancement and sentenced Thomas to 188 months’ imprisonment. Thomas now appeals, arguing that his prior Conviction for first-degree battery under § 5-13-201 was not a crime of violence because: (1) the charging document does not specify which subsection Thomas was charged with and (2) in any event subsection (a)(1) does not require the use-actual, attempted, or threatened-of violent force.

“We review de novo a district court’s application of an enhancement based upon a prior conviction.” United States v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008). The career-offender enhancement prescribes the offense level for certain defendants who have “at, least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a)(3). The definition of a “crime of violence” includes any offense, punishable by imprisonment for a term exceeding one year, that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 4B1.2(a)(l). The Supreme Court has addressed the question of what offenses qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and we employ that analysis to determine whether an offense -is a crime of violence under the Guidelines, e.g., Boose, 739 F.3d at 1187 n.1 (noting the ACCA’s and Guidelines’ “nearly identical definitions” of “violent felony” and “crime of violence”).

Under Johnson, a previous conviction is one for a crime of violence if the crime of conviction requires as an element the actual, attempted, or threatened use of “violent force”—i.e., “force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. 1265. If violent force is an element of the crime of conviction, the inquiry ends; by being convicted of that crime the defendant necessarily has been convicted of a crime employing violent force and, therefore, a crime of violence. The district court may make this determination by “looking] only to the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This “categorical approach” is not appropriate, however, if the defendant has been convicted under a statute that defines both crimes that do and crimes that do not qualify as a crime of violence. In that case, the district court may look to certain kinds of record evidence to determine which of these crimes the defendant was convicted of— the so-called “modified categorical approach.” See United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011). In the event of a past conviction based on a guilty plea, the district court may look to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Both parties agree that the only record setting forth a factual basis for Thomas’s conviction under § 5-13-201 in this case is the charging document.

Thomas first argues that the charging document does not establish that he was convicted under subsection (a)(1) of § 5-13-201. Records that the district court is permitted to rely upon under the modified categorical approach must establish the crime' of conviction by a preponderance' of - the evidence. United States v. Ossana, 679 F.3d 733, 736 (8th Cir. 2012). “Occasionally, ... it will be necessary to interpret the state court record and make reasonable inferences based upon the Shepard-qualifying materials in order to identify- the discrete statutory subdivision at issue.” Id We agree with the government and infer from the information that Thomas was convicted under subsection (a)(1). The charge tracks the language of (a)(1), and that is the only subsection of § 5-13-201 that employs, as the charge does, the term “deadly weapon.” The state court’s criminal docket indicates that the information was never amended, and- the plea agreement and sentencing order do not contradict this conclusion in any way. See United States v. Vinton, 631 F.3d 476, 485 (8th Cir. 2011) (concluding defendant was convicted under a subsection of a statute because “[t]he charging instrument precisely traek[ed] the language” of that subsection).

Second, Thomas argues that § 5—13— 201(a)(1) does not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(l). But as the plain language of § 5-13-201(a)(l) and the statutory definition of “serious physical injury” suggest, one must cause serious injury to violate § 5-13-201 (a)(1). in Smith v. State, 352 Ark. 92, 98 S.W.3d 433, 438 (2003), the Supreme Court of Arkansas held that repeatedly striking a victim in the head with the butt of a gun merely inflicted “physical injury” sufficient for a second-degree battery conviction but not “serious physical injury” as required for first-degree battery. Thus, if it is the case that a defendant exercises physical force to violate subsection (a)(1) by causing serious physical injury as Arkansas defines and interprets that term, then such physical force unquestionably meets the definition of “violent force” set forth in Johnson; that force must necessarily have been capable of causing physical pain or injury to another person.

The question, then, is whether it is possible to inflict serious physical injury by means of a deadly weapon, as those terms are defined in the Arkansas Code, without employing physical force. We conclude it is not. As the Supreme Court has explained, the term physical force “plainly refers to force exerted by and through concrete bodies.” Johnson, 559 U.S. at 138, 130 S.Ct. 1265. The Arkansas Code’s definition of “deadly weapon” describes just such a physical instrumentality. Ark. Code Ann. § 5-1-102(4). This result is demanded by both common sense and our precedent. See United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016) (holding Arkansas’s statute for second-degree battery prohibiting “intentionally or knowingly ... causing] physical injury” is a crime of violence under the Guidelines’ force clause (alteration in original) (quoting Ark. Code Ann. § 5-13-202)); Vinton, 631 F.3d at 485-86 (same for a Missouri assault statute making it a crime if a person “[attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument” (quoting Mo. Rev. Stat. § 565.060.1(2))).

Accordingly, we affirm.

      . The Honorable Susan 0. Hickey, United States District Judge for the Western District of Arkansas.

      . Because we affirm the district court, we do not reach Thomas’s further arguments that his previous convictions for second-degree battery and kidnaping likewise do not qualify as crimes of violence.

      . Although we are not bound by Arkansas state courts' definition of "physical force” as that term is used in the Guidelines, we are bound by their interpretation of what § 5—13— 201(a)(1) requires. Johnson, 559 U.S. at 138, 130 S.Ct. 1265.

      . Thomas’s reliance on the dissent in Rice is unavailing, not least because we are bound by the court's opinion in that case.


author: COLLOTON, Circuit Judge. ERICKSON, District Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. THIRTY-TWO THOUSAND EIGHT HUNDRED TWENTY DOLLARS AND FIFTY-SIX CENTS ($32,820.56) IN UNITED STATES CURRENCY, Defendant, Carole Hinders; Mrs. Lady’s Inc., Claimants-Appellants. United States of America, Plaintiff-Appellee, v. Thirty-two thousand eight hundred twenty dollars and fifty-six cents ($32,820.56) in United States Currency, Defendant, Carole Hinders; Mrs. Lady’s Inc., Claimants-Appellants.
    No. 15-2622, No. 15-2624
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 9, 2016
    Filed: September 30, 2016

      Counsel who presented argument on behalf of the appellant was Wesley Patrick Hottot, of Bellevue, WA. The following attorney(s) appeared on - the appellant brief; Robert Everett Johnson of Arlington, YA.
    Counsel who presented argument on behalf of the appellee was Jacob Alden Schunk, AUSA, of Cedar Rapids, IA. The following attorney(s) appeared on the ap-pellee brief; Matthew Jeremy Cole, AUSA, of Cedar Rapids, IA., Timothy Vavricek, AUSA, of Cedar Rapids, IA.
    Before SMITH and COLLOTON, Circuit Judges, and ERICKSON, District Judge.

      . The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota, sitting by designation.

   COLLOTON, Circuit Judge.

In May 2013, the Internal Revenue Service (“IRS”) seized $32,820.56 from Carole Hinders’s business bank account based on allegations that Hinders had unlawfully “structured” deposits to avoid federal currency reporting requirements. The government then .filed a civil forfeiture complaint against th.e seized currency. Hinders responded by filing claims to the seized property.

Over a year later, the government moved to dismiss the case, and the district court dismissed the action without prejudice. Hinders moved for attorney fees, costs, and interest under the Civil Asset Forfeiture Reform Act (“CAFRA”), 28 U.S.C. § 2465(b)(1), and asked the court to dismiss the case with prejudice- on a motion to reconsider. The district court denied Hinders’s motion for fees under CAF-RA and declined to reconsider its prior dismissal without prejudice. Hinders appeals, and we affirm.

I.

Carole Hinders owned and operatéd Mrs. Lady’s, a Mexican restaurant in Ar-nolds Park, Iowa. The restaurant accepted only cash and checks for payment, and Hinders regularly deposited the restaurant’s earnings in the bank. Hinders almost always deposited less than $10,000 at a time but occasionally deposited more than that amount. According to Hinders, she did this on the advice of her mother, who previously managed the bookkeeping for Mrs. Lady’s and told Hinders that she could “avoid paperwork at the bank” if she kept deposits under $10,000. This activity caught the attention of the IRS, which investigates persons believed to be “structuring” transactions to evade a bank’s legal obligation to report cash transactions exceeding $10,000. See 31 U.S.C. §§ 5313(a), 5324(a)(3); 31 C.F.R. § 1010.311.

In May 2013, the IRS seized $32,820.56 from the restaurant’s business checking account. Before the seizure, Agent Christopher Adkins, an IRS task force officer, reviewed the restaurant’s bank statements from mid-April 2012 through mid-February 2013. While more than $315,000 had been deposited diming this period, no individual deposit had exceeded $10,000. A majority of deposits were for amounts between $5,000 and $9,500, and deposits on consecutive business days accumulated to more than $10,000 on multiple occasions.

On the day of the seizure, Agent Adkins interviewed Hinders. According to Adkins, Hinders confirmed that she was aware of the reporting requirement and claimed that she did not break up cash for deposit. Adkins contends that Hinders then changed her story after being shown a record of her deposits and admitted that she broke up deposits so that the bank would not have to fill out paperwork. When asked why she did this, Hinders asserted that she thought avoiding paperwork was a good thing and that her mother had advised her to keep deposits below $10,000.

Hinders disputes Adkins’s account of the interview. She admits that she broke up deposits to keep them under $10,000 and does not recall denying this fact. She claims that Agent Adkins asked her if she knew of “the $10,000 rule,” and she admitted that she did, but says that she was thinking of the internal bank paperwork that her mother had described. Hinders maintains that she did not know that the bank was required to report deposits greater than $10,000 to the IRS.

In October 2013, the government filed a civil forfeiture complaint against the seized property, alleging that it represented proceeds from structuring offenses committed by Hinders in violation of 31 U.S.C. § 5324. Hinders filed two claims to the property, one in her capacity as president of Mrs. Lady’s, Inc., and one in her personal capacity. The parties submitted a scheduling order and discovery plan to the court and began discovery.

In October 2014, the IRS issued a policy memorandum that altered its approach to civil forfeiture. The new policy provided as a general rule that the agency no longer would pursue the seizure and forfeiture of funds in structuring cases where the funds were believed to have come from legal sources. A forfeiture in these circumstances would be pursued only in exceptional circumstances and with approval by the Director of Field Operations.

In December 2014, the government moved to dismiss the forfeiture complaint without prejudice. The motion stated that the government wished to exercise its prosecutorial discretion to decline to pursue the case and to allocate its resources elsewhere. The government asserted that the parties had undertaken limited discovery, that trial was not scheduled to begin for several months, and that Hinders would not be prejudiced by dismissal. Hinders opposed the government’s motion. She urged the court to dismiss the case with prejudice, or to deny the motion altogether and allow the case to proceed to trial. She argued that the government would not be able to pursue the case in the future, that the government had no evidence that she violated the law, and that the requested dismissal would cause her prejudice.

The district court granted the motion to dismiss without prejudice. The court found that the government did not seek dismissal to gain a strategic advantage and had offered a plausible reason for seeking dismissal as an exercise of its prosecutorial discretion. The court further found that the dismissal would not result in a waste of judicial time and effort and that the dismissal would not prejudice Hinders. The court retained jurisdiction to determine whether Hinders was entitled to a fee award under CAFRA.

Hinders moved for attorney fees, costs, and interest pursuant to 28 U.S.C. § 2465(b)(1). She argued that she had “substantially prevailed” within the meaning of CAFRA’s fee-shifting provision because she had challenged the forfeiture of her property and obtained an order dismissing the complaint. Hinders argued alternatively that if the dismissal- without prejudice undermined her request for fees, then the court should reconsider its order and dismiss the complaint with prejudice.

The district court determined that Hinders had not substantially prevailed under CAFRA, because the dismissal without prejudice did not qualify as a material alteration of the legal relationship between the parties.' The court therefore determined that Hinders was not entitled to an award of fees, costs, and interest under CAFRA. The court declined to reconsider its dismissal without prejudice because Hinders had waived the argument that she would suffer legal prejudice through a denial of fees under CAFRA. But the court did award Hinders a portion of the requested costs based on the court’s inherent authority.'Hinders appeals both the denial of her motion for fees and the court’s dismissal of the case without prejudice.

II.

A

We first address Hinders’s contention that she “substantially prevailed” in the district court, and that she is thus entitled to attorney fees, costs, and interest under CAFRA. CAFRA provides that the United States “shall be liable”' for attorney fees, costs, and interest “in any civil procéeding to forfeit property ... in which the claimant substantially prevails.” 28 U.S.C. § 2465(b)(1). There has been no alteration of the legal relationship between Hinders and the government, because the court’s order dismissing the case without prejudice does not preclude the government from refiling an action based on Hinders’s alleged structuring offenses. Hinders argues, however, that she “substantially prevailed,” because the district court granted the government’s motion to dismiss the case without prejudice, and she recovered the currency that was in dispute.

While the Supreme Court has not addressed CAFRA’s fee-shifting provision, the Court has construed similar provisions in other statutes. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 582 U.S. 598, 601, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court addressed fee-shifting provisions in the Fair Housing Amendments Act and the Americans with Disabilities Act, both of which granted district courts discretion to award attorney fees to a “prevailing party.” Construing “prevailing party” as a legal term of art, the Court held that a “material alteration of the legal relationship of the parties” was necessary to permit an award of fees under both statutes. Id. at 603-04, 121 S.Ct. 1835 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93,109 S.Ct. 1486,103 L.Ed.2d 866 (1989)). A judgment on the merits or a court-ordered consent decree qualified. Id. at 604, 121 S.Ct. 1835. But a voluntary change on the part of a defendant, even if it resulted in the outcome sought by the plaintiff, “lack[ed] the necessary judicial imprimatur” to authorize a fee award. Id. at 605, 121 S.Ct. 1835. The Court thus rejected a “catalyst theory” under which a plaintiff could obtain fees if she achieved a “desired result . because the lawsuit brought about a voluntary change in the defendant’s conduct,” Id. at 601, 605, 121 S.Ct. 1835.

Hinders argues that the Buckhannon standard does ndt apply here, because CAFRA provides for an award to a plaintiff who “substantially prevails,” while Buckhannon addressed statutes concerning a “prevailing party.” She contends that the term “substantially prevails” requires courts to look to the substance of the result achieved by the claimant. On her view, CAFRA allows an award of fees where a claimant has “largely” prevailed, “even if that is not ‘wholly’ true as a formal procedural matter.” Because the government moved to dismiss the case and returned the seized money to Hinders, she argues that she achieved her desired ends and “substantially prevailed” in the litigation.

In Buckhannon, the Court ruled that a “prevailing party”—or what could be termed “a party who prevails”—must secure a “material alteration of the legal relationship” between parties. 532 U.S.- at 603-05, 121 S.Ct. 1835. CAFRA uses the modifier “substantially,” but it still speaks of a party who “prevails.” The most natural reading of the CAFRA fee-shifting provision in light of Buckhannon retains the core meaning of the term: a party who prevails must obtain a “judicially sanctioned change in the legal relationship of the parties.” 532 U.S. at 605, 121 S.Ct. 1835. Insofar as “substantially” alters the standard, the Second Circuit rightly observed that many definitions in the legal context suggest that the term refers to “the amount or degree of recovery necessary to obtain fees—not the method or manner in which the recovery must be obtained.” Union of Needletrades, Indus., & Textile Emps. v. INS, 336 F.3d 200, 208 (2d Cir. 2003).

Although not dispositive, there is a general practice of treating federal fee shifting statutes consistently, see Buckhannon, 532 U.S. at 603 & n.4, 121 S.Ct. 1835 (citing Marek v. Chesny, 473 U.S. 1, 43-51, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (Appendix to opinion of Brennan, J., dissenting)), and this court seemed to treat “substantially prevailing” as the functional equivalent of “prevailing” in Sierra Club v. City of Little Rock, 351 F.3d 840, 845 (8th Cir. 2003). Where Congress intends to apply a different meaning, it has been able to say so directly. See 5 U.S.C. § 552(a)(4)(E)(ii) (defining a party who has “substantially prevailed” as one who obtains a judicial order, an enforceable written agreement or consent decree, or “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial”). Like other circuits that have examined the unadorned terms, we see “nothing to suggest that Congress sought to draw any fine distinction between ‘prevailing party1 and ‘substantially prevail.’” Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 455 (D.C. Cir. 2002), superseded by statute, OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524; see Loggerhead Turtle v. Cty. Council of Volusia Cty., 307 F.3d 1318, 1322 n.4 (11th Cir. 2002) (asserting that variations in terminology “are generally deemed inconsequential”); see also Synagogue v. United States, 482 F.3d 1058, 1062-63 (9th Cir. 2007) (addressing CAFRA); United States v. Khan, 497 F.3d 204, 209 n.7 (2d Cir. 2007) (same).

Hinders argues that CAFRA’s legislative history shows that Congress meant to provide for attorney fees in cases like this where the government voluntarily dismisses a case without prejudice. We find the materials unilluminating. Congress enacted CAFRA to make civil forfeiture proceedings fair to property owners and to allow innocent property owners the ability to recover their property and make themselves whole. United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1012 n.1 (8th Cir. 2003). But that general purpose is not inconsistent with the textual requirement that a claimant must secure a material alteration of the legal relationship to obtain attorney fees. The relevant committee, report sheds no light: the fee-shifting provision of CAFRA was not one of the core reforms listed. H;R. Rep. No, 106-192, at 11-19 (1999). While one representative on .the House floor did refer to the fee-shifting provision as a key aspect of CAFRA’s reforms, his remarks did not address the intended definition of the term “substantially prevails.” See 146 Cong. Rec. H2047 (daily ed. Apr, 11, 2000) (state? ment of Rep. Hyde).

Hinders also suggests that Buck-hannon and related cases address only whether fees may be awarded to a prevailing plaintiff, while claimants in civil forfeiture cases are akin to civil defendants because they seek only the return of their property rather than enforceable judgments. The relevant statutes do not support the suggested distinction. Although Buckhannon involved a plaintiff seeking fees, the civil rights statutes considered in that casé authorized awards to both prevailing plaintiffs and prevailing defendants in certain circumstances, and the term “prevailing party” applied to both. See Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 60 (2d Cir. 2012) (stating that the Fair Housing Act allows a fee award to a prevailing defendant where an action is “frivolous, unreasonable, or groundless, or [where] the plaintiff continued to litigate after it clearly became so”); Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1176 (11th Cir. 2006) (applying the same standard to the Americans with Disabilities Act); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed,2d 648 (1978), In other contexts, courts have held that prevailing defendants may obtain attorney fees on the same terms as prevailing- plaintiffs. See Fogerty v. Fantasy, Inc., 610 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994); Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir. 2006) (Sotomayor, J.). A defendant need not prevail on the merits to be a prevailing party, CRST Van Expedited, Inc. v. EEOC, — U.S. -, 136 S.Ct. 1642, 1651, 194 L.Ed.2d 707 (2016), -but we see no basis in the text of CAFRA or other authority to say that a CAFRA claimant, even if analogous to a civil defendant, may recover fees without any judicially sanctioned change in the relationship between parties.

Hinders complains that the district court’s interpretation of CAFRA would lead to absurd results and compound the burden that civil forfeiture imposes on innocent claimants. She posits that claimants who are able to show early in litigation that the government’s case is weak would be less likely to obtain fees than claimants who litigate further and secure a dismissal with prejudice. The district courts, however, retain discretion to guard against abuse and to dismiss with prejudice in appropriate cases. If a court is convinced that dismissal without prejudice at the government’s request would cause legal prejudice to a claimant by unfairly depriving her of the ability to seek attorney fees under CAFRA, then the court may deny the government’s motion. See United States v. $107,702.66 in U.S. Currency, No. 7:14-CV-00295-F, 2016 WL 413093, at *3-4 (E.D.N.C. Feb. 2, 2016); see also United States v. Ito, 472 Fed.Appx. 841, 842 (9th Cir. 2012) (per curiam). Hinders’s proposed interpretation of CAFRA, on the other hand, is no panacea. If the government is unable to dismiss a legally meritorious case without prejudice based on the exercise of prosecutorial discretion, then the exposure to liability for attorney fees may deter the government from forbearing litigation that would result in forfeiture of a claimant’s property. After all, the new IRS policy issued shortly before the dismissal .here contemplated that the government would refrain from pursuing forfeitures even where claimants violated federal law by structuring deposits derived from lawful sources.

For these reasons, we conclude that Hinders has not “substantially prevailed” in this action. The district court’s dismissal without prejudice did not materially alter the legal relationship of the parties, and Hinders is thus not eligible for an award of attorney fees, costs, or- interest under CAFRA.

B.

Hinders next argues that the district court abused its discretion in dismissing the case without prejudice rather than with prejudice. Federal Rule of Civil Procedure 41(a)(2) states that a court may dismiss a case “at the plaintiffs request ... on terms that the court considers proper.” Unless otherwise specified, a dismissal under Rule 41(a)(2) is without prejudice. When determining whether to allow a voluntary dismissal without prejudice, a district court should consider “whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.” Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013) (quoting Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011)). We review a district court’s decision for -abuse of discretion. Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 727 (8th Cir. 2014).

The district court considered each of the relevant factors in deciding to graht the government’s motion. The court found that the government had offered a valid reason for seeking dismissal—the exercise of its prosecutorial discretion and a desire to allocate resources elsewhere. The district court further found that there was no indication that the government sought dismissal “in order to gain sortie kind of strategic advantage” or as an exercise of “procedural gamesmanship.” The court observed that there had been no hearings, that only two depositions had been taken, and that trial remained months away, so the dismissal would not result in a waste of resources. The court also found that Hinders had not shown that she would be prejudiced by a dismissal without prejudice.

We see no abuse of discretion in this determination. While the government declined to pursue the case further as a matter of prosecutorial discretion, the IRS and the Department of Justice are free to change their discretionary policies and to pursue another civil forfeiture action in the future. The statutory requirement of 18 U.S.C. § 984(b) that the government must trace property directly to an underlying offense after one year would present an evidentiary challenge, but it does not establish a legal barrier to a renewed action.

Hinders also advances the contention to which we alluded earlier: that the government’s only reason for seeking dismissal without prejudice was to avoid an inevitable fee award under CAFRA, and that the district court’s ruling caused her legal prejudice. The district court, however, determined on the motion to reconsider that Hinders waived this argument by failing to raise it in response to the motion to dismiss. There was no error in that conclusion. In arguing prejudice in response to the motion to dismiss, Hinders identified only the fading memories of witnesses, her current representation by pro bono counsel, the prospect of forum shopping, and the. fear of future investigation. Her only mention of attorney fees appeared in the background section of her motion without accompanying legal argument. The district court thus did not abuse its discretion by relying on a waiver by Hinders to deny the motion-to reconsider.

⅝ íl* ⅜

For the foregoing reasons, the judgment of the district court is affirmed.

ERICKSON, District Judge,

concurring.

I concur specially not because I have any great reluctance to join the majority opinion. There is nothing in the Court’s opinion that is inconsistent with the facts of the case, the positive law or this court’s precedent. Instead I concur to comment on the exercise of discretion by the Department of Justice in this matter. It is beyond question that the Attorney General and the United States Attorneys “retain ‘broad discretion’ to enforce the Nation’s criminal laws.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). They have no less discretion in deciding when to enforce the nation’s civil forfeiture laws.

In exercising this discretion prosecutors should act in a manner that comports with justice. This includes an obligation to quickly and diligently investigate the facts underlying the case. The tortuous history of this case reflects an unwise exercise of discretion. early on in the proceedings. It should have been apparent to the government and its agents that if Hinders had simply made daily cash deposits, no forfeiture question would have been raised. While Hinders made comments about the structuring of her deposits to stay under “the $10,000 rule,” it should have been equally apparent to the government that the violation was at most a technical violation—and one that arose out of Hinders’s lack of understanding the problems created by failing to make daily deposits. The failure of the government to exercise its discretion early in the proceedings in a manner that minimized expense and litigation was, in my opinion, improvident to such a degree that failure to note it is unconscionable. In the future the government would be wise to exercise greater common sense in exercising its discretion.

      . The Honorable Leonard T. Strand, then United States Magistrate Judge for the Northern District of Iowa, now United States District Judge for the Northern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

      . Other circuits have applied the Buckhannon standard to cases involving CAFRA's fee-shifting provision without expressly addressing the difference in terminology. See United States v. Evans, 561 Fed.Appx. 877, 880-81 (11th Cir. 2014) (per curiam); United States v. Craig, 694 F.3d 509, 512 (3d Cir. 2012); United States v. Huynh, 334 Fed.Appx. 636, 639 (5th Cir. 2009) (per curiam). Multiple district courts have determined that the Buckhannon standard governs CAFRA’s fee-shifting provision. See United States v. 2007 BMW 335i Convertible, 648 F.Supp.2d 944, 948-52 (N.D, Ohio 2009); United States v. Certain Real Prop., 543 F.Supp.2d 1291, 1293-94 (N.D. Ala. 2008); United States v. $13,275.21, More or Less, in United States Currency, No. SA-06CA-171-XR, 2007 WL 316455, at *3-4 (W.D. Tex. Jan. 31, 2007). We have not located any decision that construes the term "substantially prevails” in the way that Hinders proposes.