author: DYK, Circuit Judge. WALLACH, Circuit Judge,

text:
    WESTERNGECO L.L.C., Plaintiff-Cross-Appellant, v. ION GEOPHYSICAL CORPORATION, Defendant-Appellant. WesternGeco L.L.C., Plaintiff-Appellant, v. ION Geophysical Corporation, Defendant-Appellee.
    2013-1527
    2014-1121
    2014-1526
    2014-1528
    United States Court of Appeals, Federal Circuit.
    Decided: September 21, 2016

      Gkegg F. LoCasoio, Kirkland & Ellis LLP, Washington, DC, for WesternGeeo L.L.C. Also represented by William H. BüRGEss, JohN C. O’Quinn; Timothy Gil-man, Leslie M. Sohmidt, New York, NY; Lee Landa Kaplan, Smyser, Kaplan & Veselka, LLP, Houston, TX.

      David J. Healey, Fish & Richardson, PC, Houston, TX, for ION Geophysical Corporation. Also represented by Bailey Kathleen HARRIS, Jaokob Ben-Ezra, Brian Gregory Strand; Frank Porcelli, Kevin Su, Boston, MA; Olga I. May, Francis J. Albert, San Diego, CA; Justin Barnes, Troutman Sanders LLP, San Diego, CA.
    Before DYK, WALLACH, and HUGHES, Circuit Judges.
   Opinion dissenting'in part filed by Circuit Judge WALLACH.

DYK, Circuit Judge.

This case returns to us on vacatur and remand from the Supreme Court, “for further consideration in light of Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S.-, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016).” WesternGeco LLC v. ION Geophysical Corp., — U.S.-, 136 S.Ct. 2486, 195 L.Ed.2d 820 (2016) (Mem.), On remand, we vacate the district court’s judgment with respect to enhanced damages for willful infringement under 35 U.S.C. § 284 and reinstate our earlier opinion and judgment in all other respects. We remand for further proceedings consistent with this opinion and with the Supreme Court’s decision in Halo.

BACKGROUND

The vacated decision, WesternGeco L.L.C. v. ION Geophysical Corp. (“WesternGeco II”), 791 F.3d 1340 (Fed. Cir. 2015), addressed a patent infringement suit by WestemGeco L.L.C. (“WesternGe-co”) against ION Geophysical Corp. (“ION”) for infringement of, inter alia, U.S. Patent Nos. 6,691,038, 7,080,607, 7,162,967, and 7,293,520. See WesternGeco L.L.C. v. ION Geophysical Corp. (‘WesternGeco I”), 953 F.Supp.2d 731 (S.D. Tex. 2013). The jury found infringement and no invalidity as to all asserted claims and awarded WestemGeco $93.4 million in lost profits and a.reasonable royalty of $12.5 million. The jury also found that ION’s infringement, had been subjectively reckless under the “subjective” prong of the then-prevailing two-part test articulated in In re Seagate, LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (en banc).

After trial, WestemGeco moved for enhanced damages for willful infringement under 35 U.S.C. § 284. ION moved for judgment as a matter of law (“JMOL”) of no willful infringement, contending that WestemGeco had failed to prove that it was either objectively or subjectively reckless in its infringement. The district court held that ION was not a willful infringer meriting enhanced damages, finding that ION’s positions were reasonable and not objectively baseless and thus that the objective prong of the Seagate test had not been satisfied. WesternGeco I, 953 F.Supp.2d at 753. Because the district court found no objective recklessness on the part of ION, it did not reach ION’s JMOL motion seeking to set aside the jury’s finding of subjective recklessness. Id.

ION appealed to our court, asking us, inter alia, to reverse the district court’s award of lost profits. WestemGeco cross-appealed, challenging the district court’s refusal to award enhanced damages. Our opinion issued on July 2, 2015. WesternGeco II, 791 F.3d at 1340. In section III.of that opinion, we reversed the lost profits award, holding that WestemGeco was not entitled to lost profits resulting from foreign uses of its patented invention. Id. at 1351. On this issue Judge Wallach dissented. Id. at 1364 (Wallach, J., dissenting-in-part). In section V of the opinion of the court, we unanimously affirmed the district court’s denial of WesternGeco’s motion for enhanced damages,. holding, that ION’s noninfringement and invalidity defenses were not objectively unreasonable and; as such, we agreed with the district court that the objective prong of the Seagate test had not been met. Id. at 1353-54.

WesternGeco petitioned for certiorari on February 26, 2016. Petition for Writ of Certiorari, WesternGeco, LLC v. ION Geophysical Corp., 2016 WL 792196 (U.S. Feb. 26, 2016) (No. 15-1085) (“Petition”). The petition, inter alia, requested that the petition be held in view of Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc., which were argued February 23, 2016, and involved the standard for enhanced damages. WesternGe-co’s petition argued that “[i]f the result of Halo and Stryker is other than a complete affirmance and approval of Federal Circuit law, the Court should grant certiorari, vacate, and remand [(“GVR”)] for further consideration.” Id. at *31.

The. Supreme Court decided Halo on June 13, 2016. Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S.-, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016). The Supreme Court granted certiorari in this case and issued its GVR order on June 20, 2016, remanding the ease to us “for further consideration in light of Halo.” WesternGeco, at 2486. We recalled our mandate on July 25, 2016. We now consider what action is appropriate in this case in view of the Supreme Court’s remand.

Disoussion

The Supreme Court’s Halo decision was solely concerned with the question of enhanced damages for patent infringement under 35 U.S.C. § 284 and does not affect other aspects of our earlier opinion. As such, we reinstate our earlier opinion except for section V. Section V of our earlier opinion was specifically directed to the question of enhanced damages, and it is that section that we now revisit.

I

Before Halo, under our court’s two-part Seagate test, a patentee seeking enhanced damages for willful infringement was. required to prove both an objective and a subjective prong. Under the objective prong, a patentee was required to “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its. actions constituted infringement of a valid patent.” Seagate, 497 F.3d at 1371. “If this threshold objective standard [was] satisfied,” the patentee was then required to prove subjective recklessness, i.e., to “demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.” Id. If the patentee proved both prongs of willful infringement, the ultimate determination of whether to award enhanced damages under § 284 and the extent of any enhancement were left to the district court’s discretion. See id. at 1368 (“[A] finding of willfulness does not require an award of enhanced damages; it merely permits it.”).

The Supreme Court’s decision in Halo overturned the Seagate test because it “ ‘is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to the district courts.’” 136 S.Ct. at 1932 (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S.-, 134 S.Ct. 1749, 1755, 188 L.Ed.2d 816 (2014)). Halo held that district courts must have greater discretion in awarding enhanced damages in cases where the defendant’s infringement was egregious, cases “typified by willful misconduct.” Id. at 1934. “The Seagate test reflects, in many respects; a sound recognition that enhanced damages are generally appropriate under § 284 only in egregious cases.” Id. at 1932.

But, the Court held, “[t]he principal problem with Seagate’s two-part test is that it requires a finding of objective recklessness in every casé before district courts may award enhanced damages.” Id. In particular, the Court rejected Seagate’s strict requirement that a patentee prove the objective unreasonableness of an in-fringer’s defenses. Id.; see WBIP, LLC v. Kohler Co., No. 15-1038, 829 F.3d 1317, 1341, 2016 WL 3902668, at *15 (Fed. Cir. July 19, 2016) (under Halo, “[pjroof of an objectively reasonable litigation-inspired defense to infringement is no' longer a defense to willful infringement”). At the same time, Halo did not disturb the substantive standard for the second prong of Seagate, subjective willfulness. Rather, Halo emphasized that subjective willfulness alone — i.e., proof that the defendant acted despite a risk of infringement that was “ ‘either known or so obvious that it should have been known to the accused infringer,’ ” Halo, 136 S.Ct. at 1930 (quoting Seagate, 497 F.3d at 1371) — can support an award of enhanced damages. “The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Id. at 1933; see also id. at 1930 (describing the second prong of Seagate as an evaluation of the infringer’s “subjective knowledge”).

Additionally, the Court stressed throughout Halo that, if willfulness is established, the question of enhanced damages must be left to the district court’s discretion. So too, Halo stressed that “[ajwards of enhanced damages ... are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Id. at 1932. “[N]one of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test.” Id. at 1933-34. On remand from the Supreme Court, our couyt recently reconsidered enhanced damages in the case of Halo itself and, in returning the issue to the district court, emphásized the district court’s discretion. Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 13-1472, 831 F.3d 1369, 1381-82, 2016 WL 4151239, at *10 (Fed. Cir. Aug. 5, 2016).

After Halo, the objective reasonableness of the accused infringer’s positions can still be relevant for the district court to consider, when exercising its discretion. Halo looked to Octane Fitness for the relevant standard. Halo, quoting Octane Fitness, held that there is “ ‘no precise rule or formula’ ” to determine whether enhanced damages should be awarded and that district courts should generally “ ‘exercise[ ] [their discretion] in light of the considerations’ underlying the grant of that discretion.” Halo, 136 S.Ct. at 1932 (quoting Octane Fitness, 134 S.Ct. at 1756). Octane Fitness in turn held that, in determining whether to award • attorney’s fees under § 285, a district court should “consider!] the totality of the circumstances.” Octane Fitness, 134 S.Ct. at 1756. In that connection Octane Fitness relied on “the comparable context of the Copyright Act,” id. noting that “[i]n Fogerty v. Fantasy, Inc., for example, [the Court] explained that in determining whether to award fees under a similar provision in the Copyright Act, district courts could consider a ‘nonexclusive’ list of ‘factors,’ including ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence,’ ” id. at 1756 n.6 (emphasis added and internal citation omitted). Thus, objective reasonableness is one of the relevant factors. In short, as the Supreme Court itself has said, district courts should exercise their discretion, “tak[ing] into account the particular circumstances of each case,” and consider all relevant factors in determining whether to award enhanced damages. Halo, 136 S.Ct. at 1933-34.

II

Here, in granting ION’s motion for JMOL of no willful infringement, the district court found that WesternGeco had not proved that ION’s defenses to infringement were objectively unreasonable and consequently concluded that the first, objective prong of the Seagate test had not been met. WesternGeco I, 953 F.Supp.2d at 751. As Halo has rejected the Seagate rule that a patentee’s failure to establish the objective recklessness of the defendant’s infringement precludes a finding of willfulness, we must vacate the district court’s determination of no -willful infringement by ION.

On remand the district court must consider two questions. The first of these is subjective willfulness. The jury here was instructed on the Seagate standard for subjective willfulness. The jury found that WesternGeco had “prove[d] by clear and convincing evidence that ION actually knew, or it was so obvious that ION should have known, that its actions constituted infringement of a valid patent claim.” J.A. 77. We note that ION’s renewed motion for JMOL contended that the jury’s verdict of subjective willfulness was unsupported by substantial evidence. ION argued that “no reasonable jury could conclude that the subjective-prong of . the willfulness inquiry was established, by clear and convincing evidence.” WesternGeco I, No. 4:09-cv-01827, ECF No. 559, at 16 (ION’s renewed motion for JMOL of no willful infringement of Sept. 28, 2012). On remand, the district court must review the sufficiency of this evidence as a predicate to any award of enhanced damages, mindful of Halo’s replacement of Seagate’s clear-and-convincing evidence standard with the “preponderance of the evidence standard.” Halo, 136 S.Ct. at 1934.

The second issue that the district court must consider on remand, if the jury’s finding of willful infringement is sustained, is whether enhanced damages should be awarded. Halo emphasized that the question of enhanced damages under § 284 is one that must be left to the district court’s discretion. The district court, on remand, should consider whether ION’s infringement constituted an “egregious case[ ] of misconduct beyond typical infringement” meriting enhanced damages under § 284 and, if so, the appropriate extent of the enhancement. Id, at 1935.

Conclusion

For the foregoing reasons, we vacate the judgment of the district court of no willful infringement by ION and remand for further consideration of enhanced damages under § 284. As to other aspects of the district court’s judgment, we hereby reinstate those aspects of our earlier judgment set forth in sections I-IV of our earlier opinion, which were not affected by the Supreme Court’s order.

AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED

Costs

Costs to neither party.

WALLACH, Circuit Judge,

dissenting-in-part.

I join the majority’s opinion to the extent it apples the Supreme Court’s decision in Halo on the issue of enhanced damages for willful infringement under 35 U.S.C. § 284 (2012). See Halo Elecs. Inc. v. Pulse Elecs., Inc., 186 S.Ct. 1923 (2016). However, for the reasons articulated in my original dissent, see WesternGeco L.L.C. v. ION Geophysical Corp. (WesternGeco II), 791 F.3d 1340, 1354-64 (Fed. Cir. 2015) (Wallach, J., dissenting-in-part), I dissent-in-part from today’s panel opinion, which reinstates our earlier opinion “in all other respects.” Maj. Op. at 1360.

The majority misunderstands the import of its prior holding, stating that my original dissent-in-part was from the panel’s “holding that WestemGeco was not entitled to lost profits resulting from foreign uses of its patented invention.” Id. at 1360. It is of course uncontroversial that paten-tees are not entitled to lost profits resulting from foreign uses of a patented invention. See Brown v. Duchesne, 60 U.S. (19 How.) 183, 195-96, 15 L.Ed. 595 (1856) (“[T]he use of [the invention] outside of the jurisdiction of -the United States is not an infringement of his rights, and he has no claim to any compensation for the profit or advantage the party may derive from it.”).

Patentees are entitled, however, to lost profit's resulting from infringement under the laws of the United States, which is what the jury found below, WesternGeco II, 791 F.3d at 1342 (“The jury found infringement — ”), what the district court found, id. at' 1343 (“[T]he [district] court granted summary judgment of infringement,”), and what was affirmed by this court on appeal, id. at 1347-49 (noting, inter alia, “the correctness of the infringement finding”).

The key issue left unaddressed in the now-reinstated opinion’s analysis is: When a patent holder successfully demonstrates both patent infringement under United States law and foreign lost profits, what degree of connéction must exist between the two before the foreign activity may be used to measure the plaintiffs damages? Put another way, left unanswered is the question of where we must draw the line as to when patented products or services made, used, or sold abroad (or some combination of these) may be considered in calculating damages flowing from infringement under Title 35 of the United States Code. The issue is not one of infringement, where foreign use generally does not count, but one of damages, where it may.

Rather than grapple with this difficult question of proximity, the majority avoids it altogether, considering the foreign lost profits in this case to relate' solely to foreign use and to be wholly disconnected from the infringement found by the jury. By reinstating our earlier decision, the majority repeats, out of context, the statement from Power Integrations that “ ‘the entirely extraterritorial production, use, or sale of an invention patented in the United States is an independent, intervening act that, under almost all circumstances, cuts off the chain of causation initiated by an act of domestic infringement.’” WesternGeco II, 791 F.3d at 1351 (quoting Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc., 711 F.3d 1348, 1371-72 (Fed. Cir. 2013)).

The statement in Power Integrations, however, addressed the patentee’s argu-

ment that “having established one or more acts of direct infringement in the United States,” the plaintiff should be able to “recover damages for [the defendant’s] worldwide sales of the patented invention because those foreign sales were the direct, foreseeable result of [the defendant’s] domestic infringement.” 711 F.3d at 1371. If the statement is read too broadly, such that it prohibits any consideration of foreign activities when measuring damages, it conflicts with Supreme Court precedent holding that ordinary sales abroad can in some cases be used to measure damages resulting from domestic infringement. See Goulds’ Mfg. Co. v. Cowing, 105 U.S. 253, 254-55, 26 L.Ed. 987 (1881); Dowagiac Mfg. Co. v. Minn. Moline Plow Co., 235 U.S. 641, 650, 35 S.Ct. 221, 59 L.Ed. 398 (1915) (discussing Goulds’); see also WesternGeco L.L.C. v. ION Geophysical Corp., 621 Fed.Appx. 663, 664 (Fed. Cir. 2015) (9-3 decision denying the petition for rehearing en banc) (Wallach, J., dissenting); WesternGeco II, 791 F.3d at 1354-64 (Wallach, J., dissenting-in-part). Such a conflict should serve as a red flag, indicating that the approach taken by the panel may belong to the class of “ ‘unduly rigid’ ” rules the Supreme Court has repeatedly cautioned against, including in its decision that led to the present remand. Halo, 136 S.Ct. at 1932 (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 1755, 188 L.Ed.2d 816 (2014)).

Not only is the approach taken by the majority unduly rigid, it is in substantial tension with Supreme Court guidance on the specific issue of (1) infringement under United States law followed by (2) use on the high seas. Duchesne — the very case cited by the majority for the proposition that lost profits based on foreign use are not compensable — illuminates at least one circumstance under which such foreign use is “compens[able]”: Where the patented invention is “manufactured” or “sold” in the United States, the defendant is “justly answerable for” the resulting “advantage which [he] derived from the use of th[e] improvement ... on the high seas.” 60 U.S. (19 How.) at 196 (emphases added); see also WesternGeco II, 791 F.3d at 1362 (Wallach, J., dissenting-in-part) (discussing Duchesne). The compensation in such a case is not for the foreign use itself, but for the damages caused when the defendant “diminished the value of [the plaintiffs] property” by “compet[ing] with the plaintiff,” in the United States, “where the plaintiff was entitled to ... exclusive use.” Duchesne, 60 U.S. (19 How.) at 196 (emphasis added).

In reinstating its earlier decision, the majority, expresses no concern for the consequences that may result from that decision. Creative lawyers, for example, may seek to insulate their clients from infringement liability by structuring market transactions so as to distance the infringer from the foreign activities, seeking to mirror the present case in which ION sells the device in question “to its customers, who perform surveys” on the high seas- “on behalf of oil companies.” WesternGeco II, 791 F.3d at 1343. When done for liability-avoidance reasons, such a change in form can increase costs without altering the underlying economic substance of the transaction.

Sueh efforts — and perhaps other unforeseen industry responses — would''not only be wasteful, but would also result in unfairness to the patent owner, whose loss from the infringement remains the same regardless of the number of entities involved or the complexity of the underlying transactions. So long as there is a sufficient connection between the infringement and the foreign activity, plaintiffs who successfully establish infringement under United States law should be able to rely on foreign activities to measure those damages adequate to “return the patent owner to the financial position he would have occupied but for the infringement.” Carborundum Co. v. Molten Metal Equip. Innovations, Inc., 72. F.3d 872, 881 (Fed. Cir. 1995).

Formulating a proper proximity standard — i.e., a standard that can be used to determine the sufficiency of the connection between infringement under United States law and foreign lost profits — is no easy task. There are some guideposts, however. For example, our case law has established that- a party will not necessarily be able to recover damages equal to lost foreign sales simply because those lost sales would not have occurred “but for” the domestic infringement. Power Integrations, 711 F.3d at 1370 (finding the connection insufficient despite the argument of Power- Integrations that it was entitled to damages based upon lost foreign sales it “would have made but for Fairchild’s domestic infringement” (emphasis added)). It has established that “[w]here a physical product is being employed to measure damages for the infringing use of patented methods,” the patentee may recover “when and only when” one of the actions specified in 35 U.S.C. § 271(a) (e.g., selling) “for that unit” - -takes place in the United States, “even if others of the listed activities for that unit (e.g., making, using) take place abroad.” Carnegie Mellon Univ. v. Marvell Tech Grp., Ltd., 807 F.3d 1283, 1306 (Fed. Cir. 2015).

' A unifying theme from these cases and others cited in my original dissent is that the appropriate measure of damages must bear some relation to the extent of the infringement in the United States. Thus, on the one hand, where the volume of non-infringing sales is independent of the extent of United States infringement, those sales should not be used as a measure of damages flowing from the domestic infringement. For example, where a product is designed in the United States by an “infringing use of [the] patented method[ ],” id. and units of the product are then “manufactured, sold, and used abroad,” the number of units produced abroad bears little or no relationship to the extent of the infringement in the United States, id. at 1305 (internal quotation marks and citation omitted). This is because once a product is designed, an unlimited number of non-infringing; units may be produced from that design.

At the other extreme, there may be a one-to-one relationship, or nearly so, between the infringement in the United States and the non-infringing foreign activity. In this case, each non-infringing unit or activity bearing such a one-to-one relationship with the infringing unit or activity is relevant to the damages calculation. See, e.g., R.R. Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1519 (Fed. Cir. 1984) (Where -a certain number of infringing “carsets” are manufactured in the United States and that same number is sold in a foreign country, each non-infringing foreign sale is relevant.); cf. State Indus., Inc. v. Mor-Flo Indus., Inc., 883 F,2d 1573, 1575 (Fed. Cir. 1989) (Where a patented method is used to produce each non-infringing water heater, the number of water heaters sold is relevant to the damages calculation.).

The present case appears to lie somewhere in between these extremes. As described by the majority, the patent-practicing devices sold by ION are combined (and then used) in non-infringing streamer systems on the high seas, in a manner that would infringe if the combination occurred within the United States. See WesternGeco II, 791 F.3d at 1348. Because each streamer system contains some number of devices-, id, at 1343, the volume of infringing activity in the United States bears some relationship to the number of streamer systems used on the high seas, and the number of streamer systems in turn bears some relationship to the volume of lost sales. At the same time, however, because a given streamer system could presumably be used more than once, the volume of infringing activity in .the United States may not bear a one-to-one relationship with the volume of lost sales; As with damages questions generally, complex factual issues such as these may exist regarding the relationship between the infringing acts and. the units or activities used to measure the patentee’s resulting losses.

The importance of such complex factual issues to the damages calculation explains why discretion is afforded to district courts and juries in arriving at an -appropriate damages figure. See AstraZeneca AB v. Apotex Corp., 782 F.3d 1324, 1333 (Fed. Cir. 2015) (“The amount of damages awarded to a patentee ... is ... reviewed for clear error, while the methodology underlying the court’s damages computation is reviewed for abuse of discretion.” (emphases added)); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1310 (Fed. Cir. 2009) (“We review the jury’s determination of the amount of damages, an issue of fact, for substantial evidence.” (emphasis added)). An unduly rigid rule barring the district court from considering foreign lost profits even when those lost profits bear a sufficient relationship to domestic infringement improperly cabins this discretion, encourages market inefficiency, and threatens to deprive plaintiffs of deserved compensation in appropriate cases. Accordingly, I again respectfully dissent-in-part,

      . The opinion dissénting-in-part "join[s] the majority's opinion to the extent it applies the Supreme Court’s decision in Halo on the issue of enhanced damages for willful infringement under 35 U.S.C. § 284 (2012),” but disagrees on the issue of lost profits, ‘‘for the ' reasons articulated in [the] original dissent." Dissent at 1365. In fact, the. issue of lost profits is not properly before us, WesternGe-co’s petition for certiorari presented two questions. Petition, 2016 WL 792196, at *ii, 'The first was lost profits — namely, “[wjhether the court of appeals erred in holding that damages based on a patentee’s so-called ‘foreign lost profits’ are categorically unavailable in cases of patent infringement under 35 U.S.C. § 271(f).” Id. The second was "[w]hether the Court should hold this Petition for Halo and Stryker.” Id. The scope of the .. Supreme Court’s GVR order was limited to the second question, WesternGeco, at 2486. "The general rule is that, when the Supreme Court remands in a civil case, the court of appeals should confine its ensuing inquiry to matters coming within the specified scope of the remand.” Kotler v. Am. Tobacco Co., 981 F.2d 7, 13 (1st Cir, 1992); see also, e.g., Escalera v. Coombe, 852 F.2d 45, 47 (2d Cir. 1988) (upon GVR, “[a]ny reconsideration at this juncture of our earlier opinion must be limited to the scope of the Supreme Court’s remand”); Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir. 1960) (on remand, "the jurisdiction of this Court is rigidly limited to those points, and those points only, specifically consigned to our consideration by the Supreme Court”).

      . The jury was instructed to determine whether ION acted recklessly and to "consider all facts,” including "(1) Whether or not the in-fringer acted in accordance with' the standards of commerce for its industry; (2) Whether or not there is a reasonable basis to believe that the infringer did not infringe or had a reasonable defense to infringement; (3) Whether or not the infringer made a good-faith effort to avoid infringing the patent such as attempting to design a product the infringer believed did not infringe; [and] (4) Whether or not the infringer tried to cover up its infringement.” J.A. 11096.

      . ION did not waive its challenge to the willfulness verdict based on the lack of subjective willfulness by failing to raise it on the first appeal. At the time of the first appeal it had raised the issue in a JMOL motion but the district court did not decide that issue (the •district court having ruled that there was a lack of objective willfulness, a ground then sufficient to set aside the willfulness verdict). Laitram Corp. v. NEC Corp., 115 F.3d 947 (Fed. Cir. 1997) is similar to this cáse. There the jury found both infringement and willfulness. Id. at 949. The district court entered JMOL of non-infringement and did not reach the issue of willfulness. Id. On the patentee's appeal we reversed the judgment of non-infringement and remanded. Id. On a second appeal by the accused infringer the question was whether the accused infringer had waived a challenge to willfulness (and enhanced damages) by failing to argue it as an alternative ground on the first appeal. Id. at 953-54. We held that there was no waiver because the jury's -finding of willfulness was “neither [itself] on appeal nor relevant to the sole issue that was: infringement ... [ánd] properly considered moot — until the reversal of JMOL of non-infringement” on appeal. Id. at 954; see also Eichom v. AT&T Corp., 484 F.3d 644, 657-58 (3d Cir, 2007); Indep. Park Apartments v. United States, 449 F.3d 1235, 1240-41 (Fed. Cir. 2006); Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 738-41 (D.C. Cir. 1995).
      Thus, this case is distinguishable from our recent decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., where the accused in-fringer failed to raise the issue at the JMOL stage in district court or "challenge the propriety of the jury finding of subjective willfulness” on appeal. No. 13-1472, 831 F.3d at 1381, 2016 WL 4151239, at *10 (Fed. Cir. Aug. 5, 2016). We do not suggest that appel-lees in the future can avoid waiver by limiting discussion on the first appeal to just one aspect of the overall issue of enhanced damages since under the Supreme Court’s decision in Halo, objective and subjective willfulness are no longer distinct issues.

      . According to the majority, "the issue of lost profits is not properly before [this court],” Maj. Op. at 1361 n.l, because ”[t]he scope of the Supreme Court’s' [grant certiorari, vacate, and remand ('GVR') ] order was limited to the second question [presented],” i.e., “ '[whether the Court should hold this Petition for Halo and Stryker [Corp. v. Zimmer, Inc., — U.S. -, 136 S.Ct. 356, 193 L.Ed.2d 289 (2015) (mem.)],"' Id. (quoting Petition for Writ of Certiorari, WestemGeco LLC v. ION Geophysical Corp., No. 2015-1085, 2016 WL 792196, at *1 (U.S. Feb. 26, 2016)). However, the majority reads the Supreme Court’s GVR Order too narrowly. First, although the Supreme Court did not grant certiorari on the question of foreign lost profits in Halo, "a denial of cer-tiorari has no precedential value.” Cty. of Sonoma v. Isbell, 439 U.S. 996, 996,- 99 S.Ct. 597, 58 L.Ed.2d 669 (1978). Second, the.Order does not limit this court's review to a specific issue or question presented, as many GVR orders do.. See, e.g., Herrmann v. Rogers, 358 U.S. 332, 332, 79 S.Ct. 353, 3 L.Ed.2d 345 (1959) (limiting the appellate court’s review on remand to a finite issue of Idaho property law). The GVR Order, in its entirety, provides: ■
      On petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit. Petition for writ of certiorari granted. Judgment vacated, ánd case remanded to the United States Court of Appeals for the Federal Circuit for further consideration in light of Halo....
      Justice ALITO took no part in the consideration or decision of this petition.

        WestemGeco LLC v. ION Geophysical Corp., — U.S. -, 136 S.Ct. 2486, 195 L.Ed.2d 820 (2016). The Supreme - Court’s only directive was that this court reconsider the pri- or opinion "in light of Halo," id. which overturns the two-part test for enhanced damages and the tripartite framework for appellate review in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc). See generally Halo, 136 S.Ct. 1923 (2016). The Supreme Court neither directly addressed the ' merits of this court’s holding on the issue of •damages associated with both infringement under United States law and Use' on the high seas, nor does it preclude their consideration. See Hah Elees., Inc. v. Pulse Elees.-, Inc., Nos. 2013-1472, -1656, 831 F.3d 1369, 1373, 2016 WL 4151239, at *2 (Fed. Cir. Aug. 5, 2016) ("[T]he Supreme Court’s review was limited to the issue of enhanced damages and left undisturbed the judgments on other is-sues_”); see also Maj. Op. at 1361 ("The Supreme Court’s Halo decision was solely concerned with the question of enhanced damages for patent infringement under 35 U.S.C. § 284 and does not affect other aspects of our earlier opinion.” (footnote omitted)).

      . Indeed, even in the infringement context, "foreign activity ... can have an impact on the rights of a United States patent owner.” Lexmark Int’l, Inc. v. Impression Prods., Inc,, 816 F.3d 721, 784 (Fed. Cir. 2016) (en banc) (10-2 decision) (Dyk, J., dissenting).

      . As recognized elsewhere in Power Integrations, the central issue in foreign lost profits cases is not whether the use or sale is '■‘entirely extraterritorial,” but the nature and degree of connection between the underlying infringement and the (perhaps entirely extraterritorial) foreign activity that most proximately led to the lost profits. See 711 F.3d at 1371 (noting that plaintiffs cited no case law supporting the use of “sales consummated in foreign markets, regardless of any connection to infringing activity in the United States,” when calculating damages (emphasis added)); Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 589 F.Supp.2d 505, 511 (D. Del. 2008) (expressing concern that the "estimate [of the plaintiff’s expert witness] of $30 million in damages was not related to parts that were manufactured, lised, or sold in the United States by [the defendant]”).


source: Caselaw Access Project

author: Senior Circuit Judge RANDOLPH. RANDOLPH, Senior Circuit Judge,

license: Public Domain

text:
    LEAGUE OF WOMEN VOTERS OF the UNITED STATES, et al., Appellants v. Brian D. NEWBY, in his capacity as the Executive Director of the United States Election Assistance Commission, et al., Appellees
    No. 16-5196
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 8, 2016
    Decided September 26, 2016

      Joel T, Dodge, Chelsea Goulet, Michael Courtney Keats, Attorneys, Stroock & Stroock & Lavan LLP, Wendy Weiser, Brennan Center for Justice, Director, New York, NY, Jonathan D. Janow, Attorney, Kirkland & Ellis LLP, Washington, DC, for Plaintiffs-Appellants League of Women Voters of the United States, League of Women Voters of Georgia, League of Women Voters of Kansas.
    Jason Adam Abel, Errol Ramon Patterson, Linda S. Stein, Steptoe & Johnson LLP, Jon M. Greenbaum, Esquire, Director, Lawyers' Committee for Civil Rights, Washington, DC, Dale Ho, Director, ACLU Foundation, New York, NY, for Plaintiffs-Appellants Georgia State Conference of the NAACP, Georgia Coalition for the People’s Agenda.
    Jon M. Greenbaum, Esquire, Director, Lawyers Committee for Civil Rights, Washington, DC, Dale Ho, Director, ACLU Foundation, New York, NY, for Plaintiffs-Appellants Marvin Brown, Joann Brown.
    John A. Freedman, Esquire, R. Stanton Jones, Elisabeth Susan Theodore, Andrew Mercer Treaster, Attorney, Arnold & Porter LLP, Washington, DC, for Plaintiff-Appellant Project Vote.
    Daniel Tenny, Alisa B. Klein, Mark B. Stern, Attorneys, Beth S. Brinkmann, Esquire, U.S. Department of Justice (DOJ), Civil Division, Appellate Staff, Benjamin Charles Mizer, Solicitor, U.S. Department of Justice (DOJ), Office of the Assistant Attorney General, Channing Phillips, Esquire, U.S. Attorney, U.S. Attorney’s Office (USA), Civil Division, Washington, DC, for Defendants-Appellees Brian D. Newby, United States Election Assistance Commission.
    Garrett Robert Roe, Kris W. Kobach, Esquire, Office of the Kansas Secretary of State, Topeka, KS, Dale Lee Wilcox, Immigration Reform Law Institute, Washington, DC, Intervenor for Defendant-Appel-lee Kris W. Kobach.
    Noel Henry Johnson, Kaylan Lytle Phillips, Public Interest Legal Foundation, Plainfield, IN, Public Interest Legal Foundation, Intervenor for Defendant-Appellee Public Interest Legal Foundation.
    Eugene F. Chay, Senior Attorney, Asian Americans Advancing Justice AAJC, Washington, DC, Amicus Curiae for Appellants American-Arab' Anti-Discrimination Committee, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice—AAJC, Asian Americans Advancing Justice—Asian Law Caucus, Asian Americans Advancing Justice—Atlanta, Asian Americans Advancing Justice—Chicago, Asian Americans Advancing Justice—Los Angeles, Campaign Legal Center, Common Cause, Demos, Fair Elections Legal Network, Mexican American Legal Defense and Educational Fund, National Asian Pacific American Bar Association, National Association of Latino Elected and Appointed Officials Educational Fund, National Council of Jewish Women, People for the American Way Foundation, Service Employees International Union, Southern Coalition for Social Justice.
    Lawrence J. Joseph, Attorney, Law Office of Lawrence J. Joseph, Washington, DC, Amicus Curiae for Appellee Eagle Forum Education & Legal Defense Fund.
    Brittnie Ryan Baker, Jonathan Lee Sherman, Counsel, Fair Elections Legal Network, Washington, DC, Adam Martin Sparks, Esquire, Attorney, Krevolin & Horst, LLC, Atlanta, GA, Amicus Curiae for Appellant Fair Elections Legal Network.
    Before: ROGERS, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.
   Dissenting opinion by

Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge and Williams, Senior Circuit Judge:

In order to increase participation in federal elections, the National Voter Registration Act requires states to register eligible citizens who ■ submit a complete and valid federal registration form. Although some states in recent years have enacted voter-registration laws that require documentary proof of U.S. citizenship, historically the federal form, which includes a list of state-specific voter-registration instructions, has never included such a requirement. That changed earlier this year, when a member of the staff of the Election Assistance Commission, which has the responsibility for prescribing the contents of the form, approved requests by Alabama, Georgia, and Kansas to add their proof-of-citizenship requirements to the form. Two individuals and several voting-rights organizations sought a preliminary injunction against this decision, which the district court denied after finding a lack of irreparable harm. This opinion provides the analysis underlying our expedited judgment reversing the -district court. League of Women Voters of U.S. v. Newby, No. 16-6196, — Fed.Appx. -, 2016 WL 4729502 (D.C. Cir. Sept. 9, 2016) (“Judgment”).

I.

The Elections Clause of the United States Constitution directs states to regulate the “Times, Places - and Manner” of congressional elections, but empowers Congress to preempt those regulations. U.S. Const, art. I, § 4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc. (“ITCA”), — U.S. -, 133 S.Ct. 2247, 2253-64, 186 L.Ed.2d 239 (2013). In 1993, Congress, in an exercise of that power, enacted the National Voter Registration Act (“the NVRA”), Pub. L. No. 103-31,107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501 et seq.); see also ITCA, 133 S.Ct. at 2251. The NVRA requires states to permit voters to register for federal elections (1) when applying for a driver’s license, (2) by mail, and (3) in person. 52 U.S.C. § 20503(a)(l)-(3). This appeal concerns only the second requirementr-regis-tration by mail.

The NVRA directs each state to “accept and use” a federally prescribed national mail voter registration form, often called “the Federal Form.” Id. § 20505(a)(1). Whatever methods of voter registration a state uses for its own elections, it cannot decline to register for federal elections an applicant who completes and timely submits a valid Federal Form. See id. § 20507(a)(1)(B); ITCA, 133 S.Ct. at 2254-57. The NVRA at once requires and restricts the inclusion of certain information on the Federal Form. The form

may require only such identifying information (including the signature of the applicant) and other information (including data relating to-previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.

52 U.S.C. § 20508(b)(1) (emphasis added). It must, however, “speciffy] each eligibility requirement (including citizenship)” and require registrants to sign, under penalty of perjury, an attestation that he or she meets each eligibility requirement. Id. § 20508(b)(2). In addition, the Federal Form must contain state-specific voter-eligibility requirements. Id. § 20508(b)(4)(i); see also id. § 20507(a)(5)(A). The Federal Form thus consists of three parts: (1) a voter registration application; (2) instructions for how to complete the application; and (3) state-specific' instructions. 11 C.F.R. § 9428.3(a). The state-specific instructions must contain certain information for each state: “the address where the application should be mailed and information regarding the state’s specific voter eligibility and registration requirements.” Id. § 9428.3(b); see also id. § 9428.4(b)(1).

Although the NVRA was originally administered by the Federal Election Commission, Congress, in the Help America Vote Act of 2002, Pub. L. No. 107-252, § 802, 116 Stat. 1666, 1726, transferred to the newly created Election Assistance Commission (“the Commission”) the power, “in consultation with the chief election officers of the States,” to “develop” the Federal Form and to promulgate regulations needed to carry out that task. 52 U.S.C. § 20508(a)(1)—(2); see also id. § 21132. The Commission is to be composed of four commissioners, appointed for a term, two from each party, id. § 20923(a)(1), (b)(2), and to act requires a vote of three Commissioners, id. § 20928. The Commission’s staff includes an executive director, id. § 20924(a).

In recent years, several states, including Alabama, Georgia, and Kansas, have enacted laws requiring that anybody who wishes to register to vote must provide documentary proof of United States citizenship. See Ala. Code § 31-13-28(c)-(i); Ga. Code Ann. § 21-2-216(g); Kan. Stat. Ann. § 25-2309(i)-(t). Not surprisingly, the enforcement of • these proof-of-citizenship laws proved contentious, and litigation ensued. In-2005, Arizona requested that its state-specific instructions be changed - by the Commission to reflect its proof-of-citizenship requirement and renewed its request in 2007 after it had been denied. In 2012, Kansas made a similar request of the Commission regarding its own proof-of-citizenship law. In 2013, the Supreme Court resolved the Arizona litigation, holding in ITCA, 133 S.Ct. 2247, that the NVRA forbids a state from demanding that registrants who submit a Federal Form provide information not required by the form itself. Id. at 2260. The Court noted that Arizona remained free to-renew its request to alter the Federal Form and, if necessary, challenge the Commission’s denial under the Administrative Procedure Act (“APA”). Id. at 2259.

The next day, Kansas renewed its request, and Arizona followed suit the following day. Ultimately, the Commission’s Acting Executive Director denied the requests and the Tenth Circuit affirmed their denial. See Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1188-99 (10th Cir. 2014).

In November 2015, the Commission hired Brian Newby as its executive director. The day after Newby became executive director, the Kansas Secretary of State’s office sent him a letter again asking that the Commission add the proof-of-citizenship requirement to the Federal Form’s Kansas-specific instructions. New-by subsequently became aware of similar pending request letters from Alabama and Georgia. On January 29, 2016, Newby approved the modifications requested by all three states (hereinafter, the “Alabama Decision,” the “Georgia Decision,” the “Kansas Decision,” and collectively, the “Newby Decisions”). On February 1/2016, a new versión of,the state-specific instructions for Alabama,' Georgia, and Kansas went into effect, listing the proof-of-citizenship requirement. As a result, the Federal Form leads registrants in those three states to believe that they cannot be registered for federal elections unless they provide proof of citizenship. Cf. ITCA, 133 S.Ct. at 2259-60: The ■ district .court found on the. record before it that Alabama and Georgia were not, for the moment, enforcing the proof-of-citizenship laws. League of Women Voters of U.S. v. Newby, No. CV 16-236, — F.Supp.3d -, - n.7, 2016 WL 3636604, at *3 n.7 (D.D.C. June 29, 2016) (“Mem. Op.”). These two states, however, gave no assurance they would not enforce their proof-of-citizenship laws. Permaloff Supp. Decl. 2 ¶ 3; Polythress Supp. Deck 2 ¶ 3.

Appellants are two individual Kansas residents (Mr. and Mrs. Brown), and several voting-rights organizations operating at the national level and at the state level in, variously, Alabama, Georgia, and Kansas. On February 12, 2016, less than two weeks after the Newby Decisions, appellants filed suit pursuant to the APA, 5 U.S.C. § 706(2)(A), seeking declaratory and injunctive relief invalidating the Newby Decisions. On ■ February 17, appellants moved for a temporary restraining order and preliminary injunction. Six days later, the district court denied the temporary restraining order. Mem. Order, League of Women Voters of U.S. v. Newby, No. CV 16-236 (D.D.C. Feb. 23, 2016). In its response to appellants’ motion for injunctive relief, the Department of Justice declined to defend the Newby Decisions, instead consenting to the preliminary injunction. The district court therefore permitted intervention by Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation (“PILF”). Several months later, on June 29, after hearing oral argument in early March, the district court denied the preliminary injunction motion. See Mem. Op., — F.Supp.3d at- -, 2016 WL 3636604, at *8-*9. This appeal followed, see 28 U.S.C. § 1292(a)(1), and this court granted expedited review.

II.

A party seeking a preliminary injunction must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” Pursuing Am.'s Greatness v. FEC (“PAG”), No. 15-5264, 831 F.3d 500, 505, 2016 WL 4087943, at *3 (D.C. Cir. Aug. 2, 2016) (internal quotation marks omitted); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20-22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This court reviews the district court’s legal conclusions as to each of the four factors de novo, and its weighing of them for abuse of discretion. See Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009).

To the extent intervenors maintain that this court must remand because the district court did not consider three of the four preliminary injunction factors or weigh all four factors, we disagree. This court can independently grant an injunction after considering the proper factors. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006). Unlike in Chaplaincy, where remand allowed for further development of the injunction factors, id. this court has a full record, both in the district court and on appeal, the parties amply and ably briefed and litigated all four factors of the preliminary injunction test. And the parties did not posit—nor does this court envision—the need for any additional information concerning the equities and the public interest. Because the record “compel[s] only one conclusion,” there is no reason to remand to the district court. Araya v. J.P. Morgan Chase Bank, N.A., 775 F.3d 409, 417 (D.C. Cir. 2014) (citing Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266-67 (D.C. Cir. 1995)). Notably, this court granted expedition precisely because if appellants prevailed, then there would exist a hard deadline for meaningful injunctive relief. A fundamental constitutional issue is at stake and time is of the essence. The November 8 elections loom, and the registration cutoff for using the federal registration form comes well before that: 21 days before in Kansas; 30 days before in Georgia; and 15 days before in Alabama. See 52 U.S.C. § 20507(a)(1)(B).

A.

At the outset, intervenors ask this court to resolve two legal questions that remain open. First, Kobach urges the court, in light of the Supreme Court’s decision in Winter, 555 U.S. at 20-24,129 S.Ct. 365, to abandon the so-called “sliding-scale” approach to weighing the four preliminary injunction factors, which “allow[s] that a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). This court, however, has not yet needed to decide this issue. See, e.g., PAG, 831 F.3d at 505 n.1, 2016 WL 4087943, at *3 n.1; Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014). Because appellants satisfy each of the four preliminary injunction factors, this case presents no occasion for the court to decide whether the “sliding scale” approach remains valid after Winter.

Next, both intervenors contend that appellants face a higher burden of persuasion because they seek a mandatory, as opposed to prohibitory, injunction. In inter-venors’ view, whether an injunction in the APA context is mandatory or prohibitory—and the extent of the movants’ burden—depends on an essentially arbitrary criterion: whether the agency decision was of a sort that could be given practical effect before plaintiffs could get into court. But this court has rejected any distinction between a mandatory and prohibitory injunction, observing that “the ‘mandatory’ injunction has not yet been devised that could not be stated in ‘prohibitory’ terms.” United States v. W. Elec. Co., 46 F.3d 1198, 1206 (D.C. Cir. 1995) (internal citation omitted).

B.

Because the district court denied the preliminary injunction motion for want of irreparable harm, Mem. Op., — F.Supp.3d at -, 2016 WL 3636604, at *8-*9, this court will begin there. The party seeking a preliminary injunction must make ■ two showings to demonstrate irreparable harm. First, the harm must be “certain and great,” “actual and not theoretical,” and so * “imminenft] that there is a clear and present need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal quotation marks omitted). Second, the harm “must be beyond remediation.” Id.

An organization is harmed if the “actions taken by [the defendant] have 'perceptibly impaired' the [organization’s] programs.” Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)); see also Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996) (explaining that the initial question is whether “a defendant’s conduct has made the organization’s activities more difficult”). If so, the organization must then also show that the defendant’s actions “directly conflict with the organization’s mission.” Nat’l Treasury Emps. Union, 101 F.3d at 1430. The second step is required to ensure that organizations cannot engage in activities simply to 'create an injury. Id. Appellants have met this standard.

Before the States enacted their proof-of-citizenship laws, the Leagues registered voters using state registration forms. They held registration drives both in formal venues, like naturalization ceremonies, and a wide variety of informal ones, like shopping malls, community festivals, and even bus stops. But the Kansas proof-of-citizenship requirement substantially limited the ability of the Kansas League to successfully register voters because (1) often potential voters didn’t have citizenship documents with them, (2) even if they did, the League didn’t have equipment to copy those documents, and (3) some potential voters balked at the idea of allowing the League’s volunteers to copy their sensitive citizenship documents (and members of the League echoed those concerns). Predictably, the number of voters successfully registered at League drives plummeted. A declaration of a former Kansas League president recounts that registration numbers in Kansas fell by more than 85% in three counties, nearly 70% in another, and two other counties suspended all registration efforts. Furtado Decl. ¶¶ 19-26. Although the Kansas law presented formidable obstacles to its registration efforts, the Kansas League could still use the Federal Form to register a voter regardless of whether the voter had his or her citizenship documents handy. Use of the Federal Form without proof of citizenship initially came at. the cost of having to register separately for state elections, but that cost disappeared when a Kansas state court ruled that Kansas law required qualified Federal Form applicants to be registered for all elections. Opinion & Order, Belenky v. Kobach, No. 2013CV1331 (Shawnee Cnty. Dist. Ct, Jan. 15, 2016). After Belenky, the Kansas League planned to use the Federal Form “much more frequently,” Furtado Decl. ¶ 30, but the Newby Decisions removed that option by importing the State proof-of-citizenship requirement into the Federal Form. The Kansas League is now unable to register any voter who cannot produce proof of citizenship.

As noted, it is unclear whether Alabama and Georgia are currently enforcing their proof-of-citizenship laws. But that does not mean that the Alabama and Georgia Leagues cannot show a likely injury. Indeed, based on the experience of the Kansas League, it seems almost certain that similar'obstacles to registration will spring up in Alabama and Georgia when those States decide to enforce their laws. As a preliminary injunction requires only a likelihood of irreparable injury, see Winter, 555 U.S. at 22, 129 S.Ct. 365, (2008), Damocles’s sword does not have to actually fall on all appellants before the court will issue an injunction.

Because, as a result of the Newby Decisions, those new obstacles unquestionably make it more difficult for the Leagues to accomplish their primary mission of registering voters, they provide injury for purposes both of standing and irreparable harm.- See Nat’l Treasury Emps. Union, 101 F.3d at 1430; see also Fair Emp’t Council of Greater Wash., 28 F.3d at 1276. And that harm is irreparable because after the registration deadlines for the November election pass, “there can be no do over and no redress.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014).

Intervenors’ counter arguments are unpersuasive. First, intervenors assert that the Kansas League’s voter registration efforts are, in fact, carried out by its local affiliates and not the League itself. Furta-do refers to the local organizations under the Kansas League as its “affiliates” and describes the state and local groups as components of a single unit working in concert. Furtado Decl. ¶¶ 7, 8. Moreover, according to the bylaws of the national organization, the League of Women Voters of the United States, local leagues are a unit of organization within the larger group, rather than separate entities that operate independently. See Bylaws op the League op Women Voters op the United States, Art. Ill, § 2, cl. A; Arts. IV-VI; Art. IX, §§ 5; Art. X, §§ 2-3, 5. In financial and budgetary terms, the national, state, and local Leagues are interdependent and inextricably linked. Id. Art. XIII, §§ 2-3..

Second, Kobach maintains that Furta-do’s estimate of the Kansas League’s expenditures is too speculative. That misses the point. The Newby Decisions harm the Leagues because they will likely impair their, efforts to register voters. Cf. Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1040-41 (9th Cir. 2015). The League’s expenditures are merely a symptom of that programmatic injury. Fair Emp’t Council of Greater Wash, 28 F.3d at 1277; Furtado Decl. ¶¶ 37-39.

Third, Kobach maintains that Newby’s Kansas Decision actually makes the Kansas League’s job easier. No longer, he suggests, will it have to explain to the public the difference between registering for state and federal elections. Instead, it can simply tell Kansans that they must provide citizenship documentation to register to vote in any type of election. As discussed, registering voters in many respects has become and will continue to be much harder for the Kansas League, not easier, as a result of the Kansas Decision. The League properly focuses on the difficulties posed to accomplishing its mission.

C.

The Leagues have a substantial (perhaps overwhelming) likelihood of success on the merits. Under section 9(b) of the NVRA, 52 U.S.C. § 20508(b), the Federal Form requires registrants to supply information as part of their application only insofar as it is “necessary to enable the appropriate State election official' to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” Id-. § 20508(b)(1) (emphasis added); see also ITCA, 133 S.Ct. at 2259 (section 9(b) “acts as both a ceiling and a floor with respect to the contents of the Federal Form”). In a contemporaneous internal memorandum, which this court may consider, see Tourus Records, Inc. v. DEA, 259 F.3d 731, 738 (D.C. Cir. 2001), Executive Director New-by justified his decisions by stating that “[s]tate-specific instructional changes are ministerial, and, thus, routine.” Brian D. Newby, Acceptance of State-Instructions to Federal Form, for Alabama, Georgia, and Kansas at 2 (Feb. 1, 2016). Far from considering whether these amendments were “necessary” (as required by the NVRA), he concluded that the “examples of need for these Changes are irrelevant to [his] analysis” because of “the role and right[ ] of the states to set the framework for acceptance and completion of the [Federal F]orm.” Id. at 4-5. Newby viewed his role merely to “review the requests] for clarity and accuracy.” Id. at 2. Because Newby expressly found that the criterion set by Congress—ie., whether the amendments were necessary to assess eligibility—was “irrelevant” to his analysis, id. at 4, it is difficult to imagine a more clear violation of the APA’s requirement that an agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted).

In an attempt to salvage the New-by Decisions, intervenors contend that the court should defer to Newby’s interpretation of section 20508(b) because it is ambiguous. Specifically, they maintain that the NVRA gives the states (not the Commission) the authority to determine whether information is necessary within the meaning of that provision. We disagree.

The- relevant statutory text is straightforward. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). Section 20508(a)(2) provides that the Commission “in consultation with the chief election officers of the States, shall develop a mail voter registration application form for elections for Federal office.” Section 20508(b)(1) provides that this form “may require only such identifying information (including the signature of the applicant) ... as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” That is, section 20508(a)(2) directs the Commission to create the Federal Form and section 20508(b)(1) sets limits on the contents of that form. It would be illogical for Congress to provide in section 20508(b)(1) that the consultant, rather than the developer, would determine “necessity.” Section 20505(a)(2), in turn, provides that states may “develop and use” their own voter registration forms “[i]n addition to accepting and using” the Federal Form. Id. § 20505(a)(2). If Congress intended to give the states the power to decide what information the. Federal Form contains, then it would have had little reason to include this separate permission for states to use their own forms. ITCA, 133 S.Ct. at 2255-56. Similarly, permitting the states to dictate the contents of the Federal Form would undermine the Federal Form’s role as a mandatory “backstop” to state registration forms. See 52 U.S.C. §§ 20505(a)(1), 20507(a)(1)(B); ITCA, 133 S.Ct. at 2255. A state could turn the Federal Form into mere duplicative paperwork, a facsimile of the state registration form. See ITCA, 133 S.Ct. at 2255-56.

Our interpretation accords with' Supreme Court precedent. In ITCA, the Court made plain that the Commission, not the states, determines necessity. Id. at 2258-60. In the Court’s view, section 20508(b)(1) permitted states to “request that the [Commission] alter the Federal Form,” which the Commission could “reject[ ],” subject to judicial review under the APA. Id. at 2259. To prevail in court, the requesting state would have to “establish” that the information it wanted the Commission to add to the Federal Form was “necessary.” Id. at 2260. Only after the Commission (or a reviewing court) determines necessity is the Commission “under a nondiscretionary duty to include [a state proof-of-citizenship] requirement on the Federal Form.” Id. The Court’s discussion did not envision a process by which a state had the authority to direct the Commission to act so long as its request conformed with state law. Nor would that interpretation of section 20508(b)(1) have been consistent with the rest of the opinion. The Court explained at some length that the NVRA could not be read to contemplate a scheme whereby a state could mandate inclusion in the Federal Form of every one of its registration requirements. See id. at 2255-56 & n.4. Finally, the interpretation advanced by intervenors is that reflected in Justice Alito’s dissenting opinion, additional evidence that the ITCA majority considered and rejected that reading. See id. at 2274 (Alito, J., dissenting); cf. id. at 2270 (Thomas, J., dissenting). As the Tenth Circuit observed, “[t]his is-one of those instances in which the dissent clearly tells us what the law is not.” Ko-bach, 772 F.3d at 1188.

The canon of constitutional avoidance does not compel or support a different interpretation of the NVRA. The Elections Clause directs states to regulate the time, place, and manner of congressional elections, but gives Congress the power to preempt state regulation. U.S. Const, art. I, § 4, cl. 1. The Qualifications Clause and the Seventeenth Amendment, on the other hand, bestow on the states exclusive authority to decide the eligibility criteria for voters in federal elections. Id. art. I, § 2, cl. 1; id. amend. XVII. Thus, as ITCA recognized, it would raise a serious constitutional question “if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” 133 S.Ct. at 2258-59. But such a scenario would not arise under our interpretation of section 20508(b)(1) because that provision requires the Commission to include information shown to be “necessary.” Accordingly, the constitutional question dovetails with the statutory one—if the proposed change to the Federal From is “necessary” to enforce voter qualifications, then the NVRA and probably the Constitution require its inclusion; if not, the NVRA does- not permit its inclusion and the Constitution is silent.

To the extent our dissenting colleague would conclude that any error in the New-by Decisions is harmless error, Dis. Op. 16, because the Constitution itself renders non-discretionary the Commissions duty to grant the states’s requested additions to the statement of staj;e qualifications in the Federal Form, he posits a constitutional issue that is not presented by this court’s September 9, 2016, judgment and relies, to boot, on the views of the dissenting Justices in ITCA, 133 S.Ct. at 2262 (Thomas, J.); id. at 2270 (Alito, J.). The issue is not presented here, for reasons the Supreme Court explained in ITCA, 133 S.Ct. at 2259-60. As stated in this court’s judgment,

the Leagues seek only to enjoin the Commission (or its agents) from giving effect to the January 29, 2016 decisions of Executor Director Newby. Neither this preliminary injunction- nor a final judgment would forbid the Commission from including a proof-of-citizenship requirement if it - determined that such a requirement was necessary to “effectuate [the States’] citizenship requirements].” Arizona v. Inter TribalCouncilof Arizona, Inc., [— U.S. -,] 133 S.Ct. 2247, 2260[, 186 L.Ed.2d 239] (2013). Like Arizona after ITCA, the States here remain free to renew their “requests] that the [Commission] alter the Federal Form to include information the State[s] deem[ ] necessary to determine eligibility.” Id. If the Commission refuses those requests (or fails to act timely), the States here (like Arizona) will have the “opportunity to establish in a reviewing court” that their proof-of-citizenship requirements are necessary to enable them to assess eligibility. Id.; see 52 U.S.C. § 20508(b)(1). Because they have yet to do so, our review of agency action here presents no Constitutional issue.

Judgment, at-, 2016 WL 4729502 at *1.

Because Newby never made the necessity finding required by section 20508(b)(1), assuming without deciding whether he had authority to .grant the requests, appellants have shown that the Newby Decisions very likely were not “based on a consideration of the relevant factors.” State Farm, 463 U.S. at 43, 103 S.Ct., 2856; see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The presence in the record of evidence that intervenors argue could be read to support a necessity finding, a question we do not reach, cannot cure this deficiency. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947).

D.

Appellants have also demonstrated that the balance of the equities tips in their favor because a preliminary injunction will “not substantially injure other interested parties.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297. Here, the court must consider the equities with respect to four sets of parties:. (1) appellants, (2) PILF, (3) the three states affected by the Newby Decisions, and (4) the federal appellees (Newby and the Commission).

1. Harm to appellants and the public interest if a preliminary injunction does not issue. First, appellants’ extremely high likelihood of success on the merits is a strong indicator that a preliminary injunction would serve the public interest. There is generally no public interest in the perpetuation of unlawful agency action. PAG, 831 F.3d at 511-12, 2016 WL 4087943, at *8; Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)..To the contrary, there is a substantial public interest “in having governmental agencies abide by the federal laws that govern their existence and operations.” Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994).

Second, the public interest further favors a preliminary injunction because, absent an injunction, there is a substantial risk that citizens will be disenfranchised in the present federal election cycle. The public has a “strong interest in exercising the fundamental political right to vote,” Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (internal quotation, marks omitted), a right that is “‘preservative of all rights,’” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (quoting Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)), and “of the most fundamental significance under our constitutional structure,” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). As our sister circuits have concluded, “[t]he public interest therefore favors permitting as many qualified voters to vote as possible.” Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012); see also League of Women Voters, 769 F.3d at 247. The Newby Decisions, as discussed, make it substantially more difficult for groups like the Leagues' to register otherwise qualified voters. In that respect, the programmatic harm to the Leagues dovetails with the public interest. In the case of Alabama and Georgia, the mismatch between the Federal Form’s state-specific requirements and the temporary non-enforcement practice in those states is very likely to confuse the public. Confusion will create a disincentive for citizens who would otherwise attempt to register to vote. Cf. Purcell, 549 U.S. at 4-5,127 S.Ct. 5. Meanwhile, in Kansas, record evidence indicates that, absent an injunction, a large number of eligible Federal Form registrants very likely will not be registered to vote for failure to provide proof of citizenship. Furtado Decl. ¶ 34. During oral argument Kobach advised that approximately 17,000 registration applications were being held on a suspension list. Oral Arg. Tape 45:20-46:49 (Sept. 8, 2016). It does not matter whether that is because they lack access to the requisite documentary proof or simply because the process of obtaining that proof is so onerous that they give up. Krehbiel Decl. ¶¶ 6-9. The outcome is the same—the abridgment of the right to vote.

Third, the programmatic harm to the Leagues and the public interest align in another respect, too. Congress emphasized the importance of the use of the Federal Form in “organized voter registration programs” held by “private entities,” 52 U.S:C. § 20505(b), as among the “procedures that will increase the number of eligible citizens who register to vote in elections for Federal office,” id. § 20501(b)(1). The substantially diminished ability of the Leagues to use the Federal Form in voter registration drives—including in communities that generally have little access to voter registration services—therefore runs contrary to what Congress, in enacting the NVRA, declared to be the public interest.

2. Harm to PILF and the states if a preliminary injunction issues. On the other side of. the ledger, to the extent the states and public interest may suffer some harm if' the court enters an injunction, those harms are insufficiently grave to overcome the much more substantial countervailing harms.

First, the states—and the public—“indisputably ha[ve] a compelling interest in preserving the' integrity of [the] election process.” Purcell, 549 U.S. at 4, 127 S.Ct. 5 (internal quotation marks omitted). What is' disputable is whether an injunction would actually do much, if- any, harm to that interest. An injunction would undermine this interest if it permitted fraudulent registration by non-citizens. But there is precious little record evidence that it would do so. Kansas represented in its request letter that between 2003 and 2015 eighteen non-citizens had tried to or.successfully registered to vote. Only one of them attempted to use the Federal Form. When the requests of Arizona and Kansas to add their proof-of-citizenship requirements to the Federal Form were rejected in 2014, it appeared that only a tiny fraction of one percent of registered voters were non-citizens. Earlier this year, a federal district court in Kansas found similarly little evidence of fraudulent registration by non-citizens trying to register at the Department of Motor Vehicles. See Fish v. Kobach, No. 16-2105, — F.3d -, -, 2016 WL 2866195, at *29 (D. Kan. May 17, 2016). Additionally, the Tenth Circuit observed that the states have other tools at their disposal to ensure the integrity of elections, including protections against voter fraud. See Kobach, 772 F.3d at 1197, 1199. This court need take no position now on what evidence the Commission ought to require to show that documentary proof of citizenship is “necessary” for purposes of section 20508(b)(1), but observes only that, on the evidence before this court, the likely harm to election integrity appears minimal. Kobach suggests that he' does ■ not need to provide any evidence of harm to justify the state’s interest in election integrity, relying on a case where the question was whether, as a matter of constitutional law, a state interest in preventing voter fraud could justify a state’s voter identification law. See State Appellee Intervenor Br. 58 (citing, Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191, 195-97, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Stevens, J., joined by Roberts, C.J. & Kennedy, J.)). That is immaterial to the factual question presented here—the. .extent to which an .injunction would harm this valid state interest.

Second, there would be an administrative burden on Kansas to the extent that an injunction would mean Kansas must determine whether it had any outstanding Federal Form applicants unaccompanied by documentary proof of citizenship. See Mot. for TRO and Perm. Injunction at 2 (Feb. 17, 2016) (calling for Newby and the Commission to “take all actions necessary to restore the status quo ante”). The injunction would constructively remove the information added by Newby from versions of the Federal Form submitted prior to compliance with this court’s September 9, 2016, judgment. Kansas therefore could not, as a matter of federal law, decline to register for federal elections individuals who submitted a valid and complete Federal Form on or after appellants sought the injunction, whether or not they provided documentary evidence that they are U.S. citizens. See ITCA, 133 S.Ct. at 2260. Such a burden appears contemplated by the NVRA when it authorized mail-in registration using a Federal Form containing only “necessary” information. Furthermore, Kansas had procedures in place pri- or to the Newby Decisions that conform to what the requested injunction would require. In sum, the burden is not so great that it outweighs the strong public interest in ensuring that unlawful agency decision-making does not strip citizens of the right to vote. To the extent Kansas is purging suspended registration applications after 90 days, any burden is of its own making because it was aware of pending challenges in federal and state courts. Because the district court was satisfied on the record before it that Alabama and Georgia were not enforcing them proof-of-citizenship laws, on the other hand, an injunction will not impose any appreciable administrative burden on those states.

Third, it is a fair assumption that reverting the Federal Form to its prior version could • cause some confusion among registrants: But there is confusion now, as the declarations submitted by appellants show. An agency should not be allowed to claim that the confusion resulting from its own improper action weighs against an injunction against that action. The harm to the public interest as a result of confusion from reinstatement of the prior Federal Form is, in any event, far outweighed by the countervailing harms that would flow from the court’s refusal to enjoin the New-by Decisions.

Fourth, unlike the Leagues, PILF fails to state any concrete harm flowing from the issuance of an injunction. Federal ap-pellees also do not claim any such harm— as discussed, the Department of Justice has consented to the preliminary injunction.

E.

Accordingly, on September 9, 2016, the judgment of this court reversed the district court’s denial of appellants’ motion for a preliminary injunction and enjoined the Commission and anyone acting on its behalf from giving effect to the Newby Decisions. Further, the court ordered that the Commission take “all actions necessary to restore the status quo ante,” pending a determination on the merits, including informing the three states that Federal Form applications filed since January 29, 2016, should be treated as if they did not contain the now-stricken state-specific instructions. Kobach’s request that the court remand without vacatur simply misunderstood the posture of the instant case. See Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150-51 (D.C. Cir. 1998). As appellants requested, the preliminary injunction did not vacate the Newby Decisions but merely prohibits the Commission from giving them effect, pending entry of the final judgment.

RANDOLPH, Senior Circuit Judge,

dissenting:

Far more is at stake here than matters of civil procedure and administrative law.

Of utmost importance is that on the eve of a Presidential election, and elections for federal office, a court has issued an injunction forbidding Kansas, Georgia and Alabama from enforcing their election laws, laws requiring those who seek to register to vote to prove that they are citizens of this country.

That order is unconstitutional.

Under Article I, § 2, cl. 1, of the Constitution and the Seventeenth Amendment, it is the States, and the States alone, who have the authority and the power to determine the eligibility of those who wish to vote in federal elections. There is no claim in this case that the laws of these three States violate the Fourteenth Amendment or any other constitutional provision. And so neither the Congress nor the President nor any federal commission and, most certainly, not two federal judges sitting in Washington, D.C. (or even eight or nine) have the authority to prevent Kansas, Georgia and Alabama from enforcing their laws in the upcoming federal elections.

I would not have reached the constitutional issue the majority’s order now poses. In my view the appeal should have been disposed on the ground that the League of Women Voters and their allies have not even come close to demonstrating the type of harm entitling them to an order suspending these state laws.

My reasons for disposing of this appeal on non-constitutional grounds are, briefly stated, as follows.

First, put aside the only two individual plaintiffs who claimed they were citizens but could not prove it. They have now registered to vote in federal elections. Their fundamental right to vote is not at issue in this case. The only proper plaintiffs before us are the League of Women Voters and the other, similar organizations. What is their irreparable injury? The States’ proof-of-citizenship laws, as reflected on the Federal Form, do not prevent these plaintiffs from conducting voter registration drives. The success of their efforts may be affected, but the proof-of-citizenship requirement does not restrict their ability to engage in political activity by encouraging others to vote. To the extent these plaintiffs may have to spend more time and money in their registration drives, that does not entitle them to a preliminary injunction. “Mere injuries,” our court has held, “in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297-98 (D.C. Cir. 2006) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

As to plaintiffs’ probability of success on the merits, the majority opinion holds that the federal Election Assistance Commission’s Executive Director abused his discretion in ■■ changing ■ the' Federal Form upon the States’ requests.

■That holding raises the “serious constitutional” issue I mentioned above, an issue the Supreme Court—in its words—was “[hjappily” “spared” from having to decide in Arizona v. Inter Tribal Council of Arizona, Inc., — U.S. -, 133 S.Ct. 2247, 2258, 2259, 186 L.Ed.2d 239 (2013). The Supreme Court did not have to decide whether the EAC was “under a nondiscre-tionary duty to include Arizona’s” proof-of-citizenship requirement on the Federal Form because Arizona had never requested the EAC to do so. Id. at 2260.

Justice Thomas would have decided the constitutional issue the Supreme Court majority managed to avoid and Justice Alito would have construed the governing statute to allow the States to require any information they deemed necessary. Justice Thomas determined that the “text and history” of Article I, § 2, cl. 1, of the Constitution and the Seventeenth Amendment “confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.” 133 S.Ct. at 2265 (Thomas, J., dissenting). It follows that when a State requests updated registration requirements to the Federal Form, “the federal government does not have the constitutional authority to withhold such approval.” Id. at 2270. The Supreme Court majority did not express any disagreement with Justice Thomas’s analysis. For the reasons Justice Thomas stated, Justice Ali-to would have held that the National Voter Registration Act must be read to allow the States to “decide for themselves what information ‘is necessary ... to assess the eligibility of the applicant’—both by designing- their own forms and by requiring that federal form applicants provide supplemental information when appropriate. [42 U.S.C.] § 1973gg-7(b)(l).” 133 S.Ct. at 2274-J75 (Alito, J., dissenting).

Based on this constitutional analysis, the Executive Director properly granted the requests of Kansas, Georgia and Alabama. He did not inquire into the wisdom of the States’ laws, but instead relied on the “simple fact” that “registration is not complete without this information.” Because the EAC was under a nondiscretionary, constitutional duty to grant the States’ requests, it is of no moment how well the Executive Director explained his actions or whether he had the authority to act or whether the Commission itself should have directed the changes to the Federal Form. If those were errors, they were clearly harmless under the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., Ozark Auto. Distributors, Inc. v. Nat’l Labor Relations Bd., 779 F.3d 576, 582 (D.C, Cir. 2015).