author: LYNCH, Circuit Judge.

text:
    Frank Edney Monteiro MIRANDA, Petitioner, v. Jefferson B. SESSIONS, III, Respondent.
    No. 16-2174
    United States Court of Appeals, First Circuit.
    April 5, 2017

      William P. Joyce, with whom Joyce & Associates P.C., Boston, MA, was on brief, for petitioner.
    Jesse M. Bless, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anthony C. Payne, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
    Before LYNCH, Circuit Judge, SOUTER, Associate Justice, and BALDOCK, Circuit Judge.

       Pursuant to Fed. R. App. P. 43(c)(2), Jefferson B. Sessions, III, Attorney General of the United States, has been substituted for Loretta E. Lynch, former Attorney General.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

       Hon. Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

   LYNCH, Circuit Judge.

Frank Edney Monteiro Miranda, who was once deemed to be a U.S. citizen by an immigration judge (“IJ”) in 2007 and escaped the possibility of removal, now petitions for that determination to be considered binding in 2016 removal proceedings before a second IJ, who ordered Miranda removed based on his conviction for a drug felony. The Board of Immigration Appeals (“BIA”) dismissed Miranda’s appeal, and he petitions for review. Miranda argues that the doctrine of res judicata should have barred the second IJ and the BIA from readjudicating the issue of his citizenship, finding that he is not a U.S. citizen, and ordering him removed. He asks that we vacate his removal order.

This is a novel issue for this circuit. We hold that the applicability of res judi-cata becomes immaterial before this court because of the jurisdictional limitations imposed by the Immigration and Nationality Act (“INA”), Pub. L. No. 89-236, 79 Stat. 911 (codified as amended in scattered sections of 8 U.S.C.). Under the INA, this court must undertake a plenary review of the question of Miranda’s citizenship in order to determine whether we have jurisdiction to hear his petition for review. See 8 U.S.C. §§ 1252(a)(2)(C) (barring jurisdiction “to review any final order of removal against an alien who is removable” for the commission of certain criminal offenses), 1252(b)(5)(A) (requiring determination of petitioner’s nationality claim when there is no dispute of fact). We conclude that Miranda has failed to meet his burden of proving that he is a U.S. citizen. Accordingly, the jurisdictional bar in § 1252(a)(2)(C) applies and precludes judicial review of the final order of removal against him. We dismiss his petition. In doing so, we agree with the Tenth Circuit’s decision in Shepherd v. Holder, 678 F.3d 1171 (10th Cir. 2012).

I.

The facts of this case are undisputed. Miranda was born out of wedlock in Angola on June 5, 1978 to a mother and father, both of Cape Verde citizenship. On August 31, 1978, Miranda’s mother and father appeared as “informing parents” at the Embassy of Cape Verde in Angola and signed Miranda’s “record of birth” before two witnesses. Miranda has two sisters, and both were also born in Angola.

On December 9, 1988, Miranda, his mother, and his two sisters were admitted to the United States as lawful permanent residents. Shortly thereafter, his father also relocated to the United States. On December 31, 1988, Miranda’s mother and father were married in Massachusetts.

Miranda’s mother became a naturalized U.S. citizen on January 6, 1995. At that time, Miranda was sixteen years old. Miranda and his two sisters filed N-600 applications for certificates of citizenship. Miranda’s sisters attended their N-600 interviews and received their certificates of citizenship, based on U.S. citizenship derived through their mother’s naturalization. Miranda was unable to attend his N-600 interview, scheduled for May 30, 1996, because he was in the custody of the Massachusetts Department of Youth Services at the time. As a result, Miranda never received a certificate of citizenship.

On May 10, 2007, the Department of Homeland Security (“DHS”) initiated removal proceedings against Miranda after he pled guilty to failing to register as a sex offender, in violation of Massachusetts law. Miranda moved to terminate the proceedings on the ground that he was a U.S. citizen because he had allegedly derived citizenship through his mother when she was naturalized in 1995. The IJ, Charles Adkins-Blaneh, continued the proceedings in order to allow Miranda to pursue an N-600 application for a certificate of citizenship, but the United States Citizenship and Immigration Services (“USCIS”) denied Miranda’s application. The USCIS did so after examining, inter alia, Miranda’s original birth record (which included his father’s signature) and concluding that Miranda’s paternity had been legitimated. Under applicable law in 1995, Miranda could have derived citizenship through his mother’s naturalization only if his “paternity ... ha[d] not been established by legitimation.” 8 U.S.C. § 1432(a)(3) (1996).

Notwithstanding the USCIS’s denial, IJ Adkins-Blanch convened a hearing to determine whether Miranda was a U.S. citizen. At the hearing, Miranda’s mother testified that Miranda’s father was not involved in her children’s lives and that she continued to be their sole economic provider even after she married their father in 1988. Miranda also submitted as evidence letters from public schools about his mother’s responsibility for his education, a letter that his counsel had sent to his mother, and his sisters’ certificates of citizenship. At the conclusion of the hearing, IJ Adkins-Blanch issued an oral decision granting Miranda’s motion to terminate removal proceedings on the ground that he was a U.S. citizen. IJ Adkins-Blanch found that Miranda “ha[d] presented credible evidence that he derived citizenship through his mother as a child born out of wedlock whose paternity ha[d] not been established by legitimation.” DHS never appealed this decision.

On February 12, 2012, Miranda was convicted for distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). After Miranda’s release from prison, DHS initiated new removal proceedings against him. The Notice to Appear dated September 15, 2015 charged Miranda as removable under 8 U.S.C. §§ 1227(a)(2)(A)(ii), (A)(iii), and (B)(i). See 8 U.S.C. §§ 1227(a)(2)(A)(ii) (re-movability for multiple criminal convictions), 1227(a)(2)(A)(iii) (removability for aggravated felony), 1227(a)(2)(B)© (re-movability for crime relating to controlled substance). Miranda once again filed a motion to terminate removal proceedings, citing IJ Adkins-Blanch’s determination that he was a U.S. citizen and arguing that res judicata barred the second IJ, Steven Day, from readjudicating Miranda’s citizenship.

IJ Day denied Miranda’s motion, refusing to apply res judicata in the context of an administrative proceeding where doing so would “frustrate[] Congressional intent.” While IJ Day acknowledged that most circuits that have considered the applicability of res judicata in removal proceedings have held that the doctrine does apply, he also noted that the doctrine is more “flexible” in administrative proceedings than in judicial proceedings. “[Vjarious courts have affirmed BIA decisions that decline to apply the doctrine when doing so would frustrate Congress’s interest in removing aliens convicted of certain crimes,” IJ Day observed. IJ Day then concluded that Miranda was not a U.S. citizen because he had been legitimated by his father under both Angolan and Massachusetts law and thus could not have derived citizenship through his mother’s 1995 naturalization. Miranda was ordered removed from the United States to Cape Verde or, in the alternative, to Angola.

The BIA dismissed Miranda’s appeal, agreeing with IJ Day’s conclusion that res judicata was inapplicable and that Miranda’s paternity had been established through legitimation under the laws of Angola and Massachusetts.

Miranda now petitions for review of the final order of removal against him. He advances two related arguments in his petition. First, he argues that he is a citizen of the United States and thus not subject to removal. Second, he argues that IJ Day and the BIA erred by not applying res judicata to IJ Adkins-Blanch’s 2007 determination that Miranda was a U.S. citizen.

II.

A. Statutory Jurisdictional Framework

We first determine whether we have jurisdiction to hear Miranda’s petition. Section 1252(a)(2)(C) provides:

Notwithstanding any other provision of law .... and except as provided in sub-paragraph (D), no court shall have .jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a) (2) (A) (ii) of this title....

8 U.S.C. § 1252(a)(2)(C) (emphasis added). Because Miranda was charged as removable under §§ 1227(a)(2)(A)(ii), (A)(iii), and (B)(i), this jurisdictional bar would ordinarily apply to preclude our review of his petition.

Here, however, Miranda argues that he is a U.S. citizen and thus not an “alien who is removable” under § 1252(a)(2)(C). Accordingly, in order to determine whether the jurisdictional bar applies, we must adjudicate Miranda’s claim of citizenship. Indeed, the INA requires us to do so under § 1252(b)(5)(A), which provides: “If the petitioner claims to be a national of the United States and the court of appeals finds ... that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.” Id. § 1252(b)(5)(A). Further, “[bjecause nationality includes citizenship, the statutory reference to nationality claims [in § 1252(b)(5)(A) ] is understood to include citizenship claims.” Shepherd, 678 F.3d at 1179 n.6 (citations omitted).

As the material facts in this case are undisputed, we undertake a plenary review of Miranda’s claim of U.S. citizenship in order to determine whether § 1252(a)(2)(C)’s jurisdictional bar applies.

B. Miranda’s Claim of U.S. Citizenship

“In deportation proceedings, evidence of foreign birth gives rise to a re-buttable presumption of alienage, and the burden shifts to the [petitioner] to prove citizenship.” In re Rodriguez-Tejedor, 23 I. & N. Dec. 153, 164 (BIA 2001); see also Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008). We conclude that Miranda has failed to meet this burden.

Miranda argues that he automatically derived citizenship through his mother’s 1995 naturalization under the former 8 U.S.C. § 1432(a). That section, entitled “Children born outside United States of alien parents; conditions for automatic citizenship,” provided, in relevant part:

A child born outside of the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions:
(3) ... [T]he naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the [mother]....

8 U.S.C. § 1432(a)(3)-(5) (1996). Because Miranda was unmarried, sixteen years old, and residing in the United States as a lawful permanent resident at the time of his mother’s naturalization in 1995, his claim of U.S. citizenship turns on whether his paternity had been established by legitimation.

Although the INA does not expressly define “legitimation” as it is used in the former § 1432(a)(3), the BIA has defined the term “as ‘the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.’ ” Iracheta v. Holder, 730 F.3d 419, 425 (5th Cir. 2013) (quoting In re Cabrera, 21 I. & N. Dec. 589, 591 (BIA 1996)). The agency recently held that a child’s legitimation, under 8 U.S.C. § 1101(c)(1), can be established “if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in such a country or State ..., irrespective of whether the country or State has prescribed other legal means of legitimation.” Matter of Cross, 26 I. & N. Dec. 485, 485-86 (BIA 2015). Nevertheless, as to establishing legitimation specifically for purposes of the former § 1432(a)(3), the BIA noted: “[W]here a jurisdiction requires an affirmative act to legitimate an out-of-wedlock child, paternity is not established without the requisite act, even if the jurisdiction has enacted a law to place children on equal footing without regard to the circumstances of their birth.” Id. at 490.

The parties dispute which country’s law should be, used to determine whether Miranda’s paternity was established by legitimation. Miranda argues that the laws of only Angola and Massachusetts are applicable, while the government argues that we may look to the law of Cape Verde in addition to those of Angola and Massachusetts. We need not linger on this issue because under the laws of all three jurisdictions, Miranda’s paternity was established by legitimation. He thus could not have derived U.S. citizenship through his mother’s naturalization under the former § 1432(a)(3).

First, Cape Verde legally abolished the distinction between legitimate and illegitimate children in 1976. See Matter of Cardoso, 19 I. & N. Dec. 5, 7 (BIA 1983). Article 2 of Cape Verde’s Decree-Law No. 84/76 declared that “[i]n the eyes of the law, all children are considered equal, enjoy the same rights and are subject to the same duties and obligations vis-a-vis their parents regardless of the latter[’s] civil status.” Decree-Law No. 84/76 of Sept. 25, 1976, Ch. I, Art. 2, reprinted in Cardoso, 19 I. & N. Dec. at 8 app. A. Accordingly, “every child born [after this law’s enactment in 1976] in Cape Verde — whether in or out of wedlock — is legitimated. Moreover, every such child is legitimated regardless of whether the natural father takes formal steps to assert paternity.” Brandao v. Att. Gen. of U.S., 654 F.3d 427, 430 (3d Cir. 2011).

But even if Cape Verde law required a separate act of acknowledgement to establish paternity, the signature of Miranda’s father on his birth record would be sufficient. Under Article 5 of Decree-Law No. 84/76, paternity could be “established through an express declaration to such effect by the father.” Decree-Law No. 84/76 of Sept. 25, 1976, Ch. II, Art. 5, reprinted in Cardoso, 19 I. & N. Dec. at 8 app. A. Miranda’s father made such an express declaration when he — together with Miranda’s mother — appeared as an “informing parent[]” at the Embassy of Cape Verde in Angola and signed Miranda’s birth record before two witnesses.

Second, Angola also abolished all legal distinctions between legitimate and illegitimate children in 1977, the year before Miranda’s birth. See Maria do Carmo Medina, Affiliation in the New Angolan Family Code, 1994 Int’l Surv. Fam. L. 29, 30 (recognizing that “Law Nr. 10/77 of April 15[, 1977] removed all discrimination' between legitimate and illegitimate children”).

Even if Angolan law required a separate act to establish paternity, the signature of Miranda’s father on his birth record sufficed. As the government notes, citing a 2016 Library of Congress report prepared for the U.S. Department of Justice, “Angola’s Civil Registry Code allowed for the 'acceptance [of] Miranda’s birth registration from the registry in Cape Verde.” While Miranda criticizes the “presumption” that his father’s signature on his birth record was sufficient to establish paternal legitimation, he has failed to cite a single source for the proposition that a birth record bearing a father’s signature would be insufficient. He thus fails to meet his burden of showing that his paternity was not established by legitimation under the law of Angola.

Finally, even under Massachusetts law, Miranda’s paternity was established by legitimation such that he was ineligible to derive citizenship through his mother’s naturalization under the former § 1423(a)(3). In 1986, Massachusetts passed General Law Chapter 209C, which — in 1995, the year that Miranda’s mother was naturalized — read: “Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children.” Mass. Gen. Laws ch. 209C, § 1 (1995). In terms of acknowledgement of parentage, the relevant law in 1995 provided: “A voluntary acknowledgement of parentage taken outside of the commonwealth shall be valid for the purposes of this section if it was taken in accordance with the laws of the state or the country where it was executed.” Id § 11(d). For purposes of intestate succession, Massachusetts law as of 1995 recognized that a father’s sworn affidavit “[wa]s sufficient to demonstrate the requisite unambiguous ac-knowledgement of a child.” Cosgrove v. Hughes, 78 Mass.App.Ct. 739, 941 N.E.2d 706, 712 (2011).

Under this legal regime, the fact that Miranda’s father signed Miranda’s birth record before two witnesses again suffices to establish paternity through legitimation. Miranda’s argument that his parents would have had to intermarry before his father acknowledged him is unavailing. That is because, in 1980, the Massachusetts Supreme Judicial Court struck down as unconstitutional a statutory requirement of intermarriage as a condition for establishing legitimation. See Lowell v. Kowalski, 380 Mass. 663, 405 N.E.2d 135, 141 (1980). Acknowledgement of paternity alone was sufficient for legitimation under Massachusetts law in 1995, and Miranda’s father fulfilled that requirement.

In sum, Miranda has failed to meet his burden of showing that he is a U.S. citizen. And as he has not made any argument that he is nonetheless a U.S. national, we must conclude that the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies, and we dismiss his petition for review.

C. Applicability of Res Judicata in Removal Proceedings

Miranda also argues that IJ Day and the BIA should have applied res judicata to IJ Adkins-Blanch’s 2007 decision, rather than relitigating the issue of his U.S. citizenship. He makes this argument by pointing out that 8 U.S.C. § 1252(a)(2)(D) preserves our jurisdiction over “constitutional claims- or questions of law raised upon a petition for review,” notwithstanding § 1252(a)(2)(C)’s jurisdictional bar, and that the applicability of res judicata is a question of law.

But we need not reach this argument in light of our plenary determination that Miranda has failed to meet his burden of proving U.S. citizenship. Given our foregoing analysis, it would be counterintuitive to explore whether the BIA should have accorded preclusive effect to an earlier IJ decision that reached a conclusion flatly contrary to our own. Indeed, Congress could not reasonably have intended § 1252(a)(2)(D) to allow us — after having independently determined that Miranda is a removable alien — to nonetheless consider a question of law that Miranda advances with the hope that we require the BIA to adopt a conflicting conclusion and grant Miranda, an alien with multiple felony convictions, immunity from removal.

III.

We conclude that Miranda has failed to meet his burden of proving that he is a U.S. citizen. As Miranda is neither a citizen nor a national, he is an alien. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) thus applies and precludes our review of the final order of removal against Miranda. The petition for review is dismissed.

      . Section 1252(a)(2)(D) provides an exception to this jurisdictional bar by stating that nothing in § 1252(a)(2)(C) "shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” Id. § 1252(a)(2)(D).

      . Section 1101(a)(3) defines “alien” as "any person not a citizen or national of the United States.” Id. § 1101(a)(3). Only aliens are removable. See id. § 1227(a).

      . Miranda cites one case, Porn v. National Grange Mutual Insurance Co., 93 F.3d 31 (1st Cir. 1996), for the proposition that the applicability of res judicata is a question of law. Porn, however, dealt with res judicata in the context of a judicial proceeding, in which preclusion doctrines are more rigidly applied than they are in an administrative proceeding. See, e.g., Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 109-10, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). The BIA decision, from which this petition arises, focused on the applicability of res judicata specifically in the context of administrative removal proceedings. By failing to address these nuances and elaborate on why we should recognize the applicability of res judicata in removal proceedings as a question of law for purposes of § 1252(a)(2)(D), Miranda may have waived his argument that the BIA should have applied res judicata. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Christine BODOUVA, Defendant-Appellant.
    Docket No. 16-3937
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: February 28, 2017
    Decided: March 22, 2017

      Dina McLeod (Michael Ferrara, on the brief), Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.
    Michael Gregory Pattillo, Jr. (Steven F. Molo, Jessica Ortiz, and Justin Ellis, on the brief), MoloLamken LLP, New York, NY and Washington, DC, for Defendant-Appellant.
    Before: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges.
   PER CURIAM:

Following a jury trial, defendant-appellant Christine Bodouva was convicted of one count of embezzling funds from her company’s 401(k) plan in violation of 18 U.S.C. § 664. She appeals from her conviction and the $127,854.22 forfeiture order entered against her. We affirm Bodouva’s conviction in the Summary Order issued contemporaneously with this Opinion. We write here solely to address Bodouva’s challenge to the amount of her forfeiture order. Bodouva argues that the district court (Caproni, J.) erred in concluding that it had no discretion to reduce the amount of Bodouva’s forfeiture order by the amount of restitution Bodouva had already paid to her victims. We conclude that the district court was correct: it could not reduce the amount of the forfeiture order by the amount of any restitutive payments in the absence of specific statutory authorization to do so. Accordingly, we affirm the forfeiture aspect of the judgment entered against Bodouva.

Background

In 2012 and 2013, Bodouva served as Chief Operating Officer and Senior Vice President of architecture firm William N. Bodouva & Associates (“WNBA”). During this period, Bodouva embezzled funds from WNBA’s 401(k) plan by withholding payments to the plan from employee salaries but not remitting the withheld monies to the plan. On March. 16, 2016, Bodouva was indicted on one count of embezzling funds from an employee benefit plan subject to the Employee Retirement Income Security Act (“ERISA”), in violation of 18 U.S.C. §§ 2 and 664. The indictment against Bo-douva contained a forfeiture allegation directing that Bodouva “shall forfeit to the United States, pursuant to Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c), any property, real and personal, that constitutes or is derived from proceeds traceable to the commission of the offense alleged in Count One of this Indictment.” 28 U.S.C. § 2461(c) provides that “[i]f a person is charged [and convicted] in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized [and] the Government ... includefs] notice of the forfeiture in the indictment ..., the court shall order the forfeiture of the property.” 18 U.S.C. § 981, the forfeiture statute noticed in the indictment in the present case, authorizes the forfeiture to the United States of “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of [18 U.S.C. § 664].” 18 U.S.C. § 981(a)(1)(C); see 18 U.S.C. §§ 1956(c)(7)(A), 1961(1).

On April 8, 2016, after her indictment but before her trial, Bodouva paid $126,979.63 to WNBA’s 401(k) plan. After her trial, in her sentencing submission and at her sentencing hearing, Bodouva urged the district court to reduce the amount of forfeiture imposed on Bodouva by the amount she paid to the 401(k) plan. In response, the government acknowledged that this Court had not addressed the specific question of whether criminal forfeiture amounts can be “offset” by restitutive payments but argued that the district court should not apply any offset in Bodou-va’s case. The district court concluded that it had no discretion to apply any such offset and entered the forfeiture order against Bodouva in the full amount sought by the government.

Discussion

“We review a district judge’s legal conclusions regarding forfeiture de novo.” United States v. Daugerdas, 837 F.3d 212, 231 (2d Cir. 2016). Forfeiture and restitution were mandatory in the present case, and these two remedies may be imposed concurrently. 18 U.S.C. §§ 981(a)(1)(C), 3663A(a)(1), (c)(1)(A)(ii); 28 U.S.C. § 2461(c); United States v. Torres, 703 F.3d 194, 196, 203-04 (2d Cir. 2012). The sole point of contention is whether the district court could have reduced the amount of forfeiture imposed on Bodouva in light of her restitution payment.

I.

“Restitution and forfeiture are authorized by different statutes and serve different purposes — one of remediating a loss, the other of disgorging a gain.” Torres, 703 F.3d at 196. This twofold observation forecloses Bodouva’s argument that the district court had discretion to apply an offset in her ease. First, restitution and forfeiture are creations of distinct statutes, and Bodouva cannot point to any statutory language linking them together. Accordingly, “nothing in the statutory scheme permitted the district court to reduce the mandated criminal forfeiture order because the defendant also had to satisfy her obligation to pay restitution” or had already substantially done so. United States v. McGinty, 610 F.3d 1242, 1248 (10th Cir. 2010). Moreover, in 18 U.S.C. § 981, Congress provided for reductions in forfeiture amounts resembling the offset requested here, but only in certain circumstances. See 18 U.S.C. § 981(a)(2)(B)-(C). Congress’s authorization of reductions in specific circumstances makes its silence with respect to Bodouva’s requested offset more compelling. Because the statutory schemes authorizing restitution and forfeiture are separate, district courts are bound not to reduce the amount of a mandatory criminal forfeiture order by the amount of past or future restitution payments, in the absence of specific statutory authorization to do so.

Second, the distinct purposes of forfeiture and restitution undercut any argument that, in the absence of an offset, the imposition of forfeiture and restitution amount to an unfair double disgorgement. “Criminal forfeiture is a form of punishment. As such, it is distinct from restitution or other remedial actions, which are intended to return the victim and the perpetrator to the status quo that existed before the violation took place.” United States v. Peters, 732 F.3d 93, 101 (2d Cir. 2013). Bodouva’s restitution to her victims serves a different purpose (remediating a loss) than her forfeiture obligation (disgorging a gain; punishment), see Torres, 703 F.3d at 196, and thus had no bearing on her punishment for her crime.

Our sister circuits have reached the same conclusion on similar grounds. See United States v. Newman, 659 F.3d 1235, 1241 (9th Cir. 2011) (“In the absence of a statute authorizing a reduction in forfeiture, the district court may not reduce forfeiture because of an order of restitution to a victim or because the victim already has been made whole.”); McGinty, 610 F.3d at 1248; United States v. Browne, 505 F.3d 1229, 1281 (11th Cir. 2007) (“While the focus of restitution is on the victim, forfeiture focuses on the defendant. In addition to forcing the disgorgement of dishonest profits, therefore, forfeiture is also a punitive action against the defendant”). We join them in holding that mandatory criminal forfeiture amounts may not be reduced by the amount of restitution in the absence of specific statutory authorization for such an offset.

II.

The district court lacked any specific statutory authorization to apply an offset in the present case. Bodouva claims that the district court could have reduced the amount of the forfeiture order against her pursuant to 18 U.S.C. § 981(a)(2)(B). The statutory provision noticed in the indictment against Bodouva requires her to forfeit “[a]ny property ... which constitutes or is derived from proceeds traceable to” her crime. 18 U.S.C. § 981(a)(1)(C). (emphasis added). 18 U.S.C. § 981(a)(2) defines “proceeds” differently depending on the conduct involved in a defendant’s crime. “In cases involving lawful goods or lawful services that are sold or provided in an illegal manner, the term ‘proceeds’ means the amount of money acquired through the illegal transactions resulting in the forfeiture, less the direct costs incurred in providing the goods or services.” 18 - U.S.C. § 981(a)(2)(B). We have held that § 981(a)(2)(B) applies in, for example, insider trading cases because “[a] security is a ‘lawful good[]’ for the purposes of § 981(a)(2)(B), ... which, if [purchased or sold] based upon improperly obtained material nonpublic inside information, is ‘sold ... in an illegal manner.’ ” United States v. ContoHnis, 692 F.3d 136, 145 n.3 (2d Cir. 2012) (quoting 18 U.S.C. § 981(a)(2)(B)). By contrast,

[i]n cases involving illegal goods, illegal services, [and] unlawful activities, ... the term ‘proceeds’ means property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.

18 U.S.C. § 981(a)(2)(A). We have held that “unlawful activities” include “inherently unlawful activities], like say the sale of foodstamps, or a robbery.” Contorinis, 692 F.3d at 145 n.3; see, e.g., United States v. Uddin, 551 F.3d 176 (2d Cir. 2009) (applying § 981(a)(2)(A)’s definition in a case involving the sale of foodstamps).

Embezzlement, as in Bodouva’s case, “cannot be done lawfully, and therefore is properly considered an ‘unlawful activity’ under § 981(a)(2)(A).” ContoHnis, 692 F.3d at 145 n.3. Bodouva argues that § 981(a)(2)(B) applies because WNBA’s 401(k) plan provided lawful investment services to WNBA employees and Bodouva merely provided these services in an illegal manner. According to Bodouva, her restitution payment to the 401(k) plan should therefore be treated as a “direct cost[]” and subtracted from the forfeiture amount. 18 U.S.C. § 981(a)(2)(B). Bodouva’s argument misidentifies her criminal conduct. Her crime was not the unlawful provision of services to WNBA’s employees. Her crime was embezzlement. As Bodouva’s counsel conceded at oral argument, there is simply no way to lawfully embezzle funds. Accordingly, the definition of proceeds provided in § 981(a)(2)(A) applies here, and there is no statutory authorization for an offset.

Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . Bodouva relies on dicta to argue that the district court did have discretion to apply an offset in the present case. Neither of the cases she cites binds us or presents arguments helpful to Bodouva’s cause. Although we did contemplate the possibility of a similar offset in United States v. Kalish, 626 F.3d 165 (2d Cir. 2010), we expressly stated that "we need not decide whether such an argument [concerning the possibility of an offset] would prevail.” Id. at 169-70. In United States v. Bengis, 631 F.3d 33 (2d Cir. 2011), we remanded to the district court for entry of an order of restitution and "[left] to the district court’s determination in the first instance all relevant issues relating to the amount of restitution, whether any off-set should apply, and if so, whether there should be one based on the [defendant’s] forfeiture.... We expressed] no view as to how such issues should be resolved.” Id. at 41.


text:
    UNITED STATES of America, EX REL. J. Michael HAYES, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Daimler Chrysler Insurance Company, Erie Insurance Company of New York, Erie Insurance Exchange, Inc., Erie Indemnity Company, Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Foremost Insurance Group, Geico, Insurance, GMAC Insurance, Kemper Independence Insurance Company, Liberty Mutual Insurance Company, Liberty Mutual Group, Liberty Mutual Holding Company, Inc., Metropolitan Group Property and Casualty Insurance Company, Metropolitan Property and Casualty Insurance Company, Nationwide General Insurance Company, Nationwide Financial Services Incorporated, Nationwide Mutual Insurance Company, New York Central Mutual Fire Insurance Company, Preferred Mutual Insurance Company, Progressive Insurance Company, The Progressive Corporation, Inc., Republic-Franklin Insurance Company, Utica Mutual Insurance Company, Graphics Arts Mutual Insurance Company, Utica National Insurance Company of Texas, Utica National Insurance Company of Ohio, Utica National Assurance Company, Utica Lloyd’s of Texas, Utica Specialty Risk Insurance Company, Founders Insurance Company, Founders Insurance Company of Michigan, Utica National Insurance Group, State Farm Mutual Automobile Insurance Company, Hartford Financial Services Group, Inc., Travelers Insurance Group Holding, Inc., Travelers Property Casualty Corporation, The Travelers Companies, Inc., Zurich North America, FedEx Corporation, FedEx Express, FedEx Ground, FedEx Freight, FedEx Office, FedEx Custom Critical, FedEx Trade Networks, FedEx Supply Chain Solutions, FedEx Services, J.B. Hunt Transport Services, Incorporated, U-Haul International, and The Erie Insurance Company, Defendants-Appellees, Allstate Corporation, CastlePoint National Insurance Company, Specialty Underwriters Alliance, Inc., Tower Group Companies, Maiden Holding LTD, Kemper Corporation, Medical Liability Mutual Insurance Company, Nationwide Corporation, New York State Insurance Reciprocal, The Prudential Insurance Company of America, Prudential Financial, Inc., Heartland Express, Incorporated, Nationwide, Farmers Insurance Group Companies, Farmers Underwriters Association, AIG, Berkshire Hathaway Inc., Nationwide Mutual Insurance Intercompany Pool, Nationwide, Zurich Financial Services AG, and Zurich Insurance Group AG, Defendants.
    Docket No. 16-705
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: March 2, 2017
    Decided: April 4, 2017
    See also 2017 WL 1247138.

      J. Michael Hayes (Peter M. Jasen, Buffalo, NY, on the brief), for Plaintiff-Appellant.
    John W. Campbell, Federal Express Corporation, Memphis, TN, for Defendants-Appellees FedEx Corporation, Federal Express Corporation, FedEx Ground Package System Inc., FedEx Freight Corporation, FedEx Office and Print Services, Inc., FedEx Custom Critical, Inc., FedEx Trade Networks Inc., FedEx Supply Chain Systems, Inc., and FedEx Corporate Services, Inc.
    David L. Yohai (Lori L. Pines and John P. Mastando III, on the brief), Weil, Gotshal & Manges LLP, New York, NY, for Defendants-Appellees Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, and Foremost Property and Casualty Insurance Company.
    Bryce L. Friedman, Simpson Thatcher & Bartlett LLP, New York, NY; Deborah L. Stein, Simpson Thatcher & Bartlett LLP, Los Angeles, CA, for Defendants-Appellees Travelers Insurance Group Holding, Inc., Travelers Property Casualty Corporation, and The Travelers Companies, Inc.
    Jonathan M. Freiman, Wiggin and Dana LLP, New Haven, CT, for Defendant-Ap-pellee Hartford Financial Services Group, Inc.
    Sharon Angelino, Goldberg Segalla LLP, Buffalo, NY, for Defendants-Appel-lees J.B. Hunt Transport Services Inc., Founders Insurance Company, Founders Insurance Company of Michigan, Graphic Arts Mutual Insurance Company, Republic-Franklin Insurance Company, Utica Mutual Insurance Company, Utica National Insurance Company of Texas, Utica National Insurance Company of Ohio, Utica National Assurance Company, Utica Lloyd’s of Texas, Utica Specialty Risk Insurance Company, and Utica National Insurance Group.
    Heath J. Szymczak, Bond, Schoeneck & King, PLLC, Buffalo, NY, for Defendants-Appellees Erie Insurance Company of New York, Erie Insurance Exchange, Inc., Erie Indemnity Company, and The Erie Insurance Company.
    Steven M. Levy and Alan S. Gilbert, Dentons US LLP, Chicago IL; Sean C. Cenawood, Dentons US LLP, New York, NY; Sharon Angelino, Goldberg Segalla LLP, Buffalo, NY, for Defendants-Appel-lees Allstate Insurance Company, Allstate Indemnity Company, Kemper Independence Insurance Company, Metropolitan Group Property and Casualty Insurance Company, Metropolitan Property and Casualty Insurance Company; and Defendants Kemper Corporation and The Allstate Corporation.
    Suzanne 0. Galbato, Bond, Schoeneck & King, PLLC/ Syracuse, NY, for Defendant-Appellee Preferred Mutual Insurance Company.
    Terrance M. Connors, Connors LLP, Buffalo, NY; Michael K. Loucks, Skadden, Arps, Slate, Meagher & Flom LLP, Boston, MA, for Defendants-Appellees Progressive Insurance Company and The Progressive Corporation, Inc.
    Douglas W. Baruch and Anayansi Rodriquez Carbo, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C.; Dan David Kohane, Hurwitz & Fine, P.C., Buffalo, NY, for Defendant-Appellee State Farm Mutual Automobile Insurance Company.
    Michael J. Willett, Gibson, McAskill & Crosby, LLP, Buffalo, NY, for Defendant-Appellee Zurich North America.
    Stephen Sozio, Jones Day, Cleveland, OH; Matthew Corcoran, Jones Day, Columbus, OH; Mark C. Davis, Lippes Mathias Wexler Friedman LLP, Buffalo, NY, for Defendants-Appellees Nationwide General Insurance Company, Nationwide Financial Services Incorporated, and Nationwide Mutual Insurance Company.
    Eric Dranoff, Saretsky Katz & Dranoff, LLP, New York, NY, for Defendant-Ap-pellee New York Central Mutual Fire Insurance Company.
    Susan L. Swatski, Hill Wallack LLP, Princeton, NJ, for Defendant-Appellee CorePointe Insurance Company f/k/a Daimler Chrysler Insurance Company.
    Barry I. Levy, Cheryl F. Korman, and Brian L. Bank, Rivkin Radler LLP, Union-dale, NY, for Defendant-Appellee Geico, Insurance.
    Kevin J. Fee and Amy C. Gross, Duane Morris LLP, New York, NY: Dennis R. McCoy, Barclay Damon, LLP, Buffalo, NY, for Defendants-Appellees Liberty Mutual Insurance Company, Liberty Mutual Group, and Liberty Mutual Holding Company, Inc.
    Kevin M. Hogan, Phillips Lytle LLP, Buffalo, NY, for Defendant-Appellee U-Haul International.
    Before: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges.
   PER CURIAM:

Relator J. Michael Hayes appeals from the district court’s dismissal with prejudice of his False Claims Act (“FCA”) qui tarn action as a sanction pursuant to Federal Rule of Civil Procedure 11. On appeal, Hayes argues that the misstatements in his complaint were not made in bad faith and did not justify the sanction of dismissal. He further argues that he should have been granted leave to amend his complaint. Although all of the defendants contend that the district court’s imposition of the sanction of dismissal and denial of leave to amend were proper, several defendants, those not affiliated with Federal Express Corporation (hereinafter the “non-FedEx defendants”), additionally argue that the district court lacked subject matter jurisdiction over the action and consequently did not err by dismissing it. We address in this opinion only the non-FedEx defendants’ challenge to the district court’s subject matter jurisdiction, and we discuss Hayes’s argument that the sanction of dismissal was wrongfully imposed in a separate summary order filed simultaneously with this opinion.

Background

In this FCA qui tam action, see 31 U.S.C. § 3729 et seq., relator Hayes alleged that the defendant companies, which are primarily, but not exclusively, liability insurance companies, have been systematically and intentionally noncompliant with their obligations under the Medicare Secondary Payer Act to reimburse Medicare for certain payments made on behalf of Medicare beneficiaries. As is discussed more fully in the accompanying summary order, Hayes alleged that he had personal knowledge of each defendant’s participation in a nationwide scheme to defraud Medicare. The assigned magistrate judge and district court ultimately concluded that Hayes had no such knowledge and had acted in bad faith by falsely purporting to have it. As a result, the district court dismissed the action with prejudice as to Hayes as a sanction under Federal Rule of Civil Procedure 11.

Hayes appeals from that decision. Although all of the defendants contend that the district court correctly dismissed Hayes’s complaint as a sanction, the non-FedEx defendants also advance an alternative basis for affirming the district court: that the district court lacked subject matter jurisdiction over Hayes’s action because Hayes did not satisfy the FCA’s first-to-file rule. The non-FedEx defendants raised this argument to the district court (although they had not raised it before the magistrate judge), but the district court did not address it.

Discussion

Because “every federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also [of] that of the lower courts in a cause under review,” we will consider the non-FedEx defendants’ contention that the district court lacked subject matter jurisdiction. Arnold, v. Lucks, 392 F.3d 512, 517 (2d ' Cir. 2004) (internal quotation marks omitted).

I.

As relevant to Hayes’s claim, the FCA imposes liability on any person who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). “The FCA may be enforced not just through litigation brought by the Government itself, but also through civil qui tam actions that are filed by private parties, called relators, ‘in the name of the Government.’ ” Kellogg Brown & Root Servs., Inc. v. U.S., ex rel. Carter, - U.S. -, 135 S.Ct. 1970, 1973, 191 L.Ed.2d 899 (2015) (quoting 31 U.S.C. § 3730(b)(1)). There are, however, certain limitations on FCA qui tam actions. Under the so-called “first-to-file rule” at issue here, “[w]hen a person brings an action under [the FCA], no person other than the Government may ... bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). That rule prevents an individual from bringing an FCA qui tam action if another action invoking the same facts is already pending at the time the individual files suit. See Kellogg Brown & Root, 135 S.Ct. at 1974, 1978.

The non-FedEx defendants argue that Hayes did not satisfy the first-to-file rule because when he filed his complaint in October 2012, a “related” action was already pending, coincidentally in the same district. According to the non-FedEx defendants, that action alleged the same general scheme: that many of the same insurance companies had systematically failed to reimburse Medicare as required under the Medicare Secondary Payer Act. See Complaint, U.S. ex rel. Takemoto v. The Hartford Fin. Servs. Grp., Inc., 157 F.Supp.3d 273 (W.D.N.Y. 2016) (No. 11-cv-613). The Takemoto complaint was filed in July 2011, over a year before Hayes filed his purportedly related complaint. See id. Although the Takemoto case has since been dismissed, see 157 F.Supp.3d at 276, aff'd sub nom. U.S. ex rel. Takemoto v. Nationwide Mut. Ins. Co., No. 16-365, 674 Fed.Appx. 92, 96, 2017 WL 214572, at *3 (2d Cir. 2017), the non-FedEx defendants contend that the existence of the Takemo-to case at the time that Hayes filed his complaint deprived the district court of subject matter jurisdiction over Hayes’s action from the outset.

If the non-FedEx defendants are correct that the first-to-file rule is jurisdictional, their arguments on that point are not merely an available alternative on which we may affirm the district court; instead, they raise an issue to resolve before turning to the merits of Hayes’s appeal. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.”). As a result, we consider below whether the first-to-file rule is jurisdictional.

II.

Several circuits have stated or assumed that the first-to-file rule is jurisdictional. See, e.g., U.S. ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013), aff'd in part, rev’d in part on other grounds sub nom. Kellogg Brown & Root, 135 S.Ct. at 1979 (2015); U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376-77 (5th Cir. 2009); Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2005). The D.C. Circuit, however, has reached the opposite conclusion. See U.S. ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 120-21 (D.C. Cir. 2015). For the reasons articulated below, we join the D.C. Circuit in holding that the first-to-file rule is not jurisdictional and instead bears on the merits of whether a plaintiff has stated a claim.

The Supreme Court has warned against “profligate use of the term ‘jurisdiction.’ ” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013). “To ward off’ such use, the Supreme Court has “adopted a ‘readily administrable bright line’ for determining whether to classify a statutory limitation as jurisdictional.” Id. (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). Courts are to “inquire whether Congress has ‘clearly stated’ that the rule is jurisdictional; absent such a clear statement, ... ‘courts should treat the restriction as non-jurisdictional in character.’ ” Id. (brackets omitted) (quoting Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235). Under this test, a “provision that ‘does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts’ ” will not be considered jurisdictional. Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)).

The first-to-file rule provides that “no person other than the Government” may bring an FCA claim that is “related” to a claim already “pending.” 31 U.S.C. § 3730(b)(5); see also Kellogg Brown & Root, 135 S.Ct. at 1974. As the D.C. Circuit observed, this language “speaks only to who may bring a private action and when,” Heath, 791 F.3d at 120, but “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts,” id. (quoting Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235). This is in sharp contrast to other provisions of the FCA that do explicitly invoke the jurisdiction of the district courts. See, e.g., 31 U.S.C. § 3730(e)(1) (“No court shall have jurisdiction over an action brought by a former or present member of the armed forces ... against a member of the armed forces arising out of such person’s service in the armed forces.”); id. § 3730(e)(2)(A) (“No court shall have jurisdiction over an action brought ... against a Member of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the action was brought.”). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Kucana v. Holder, 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (brackets omitted). Because the FCA “clearly state[s]” that other limitations on qui tarn actions are jurisdictional, but does not “clearly state[]” that the first-to-file rule is jurisdictional, we must treat the first-to-file rule “as nonjurisdictional in character.” Auburn Reg’l Med. Ctr., 133 S.Ct. at 824 (quoting Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235). As a result, we join the D.C. Circuit in holding that the ÉCA’s first-to-file rule “bears only on whether a qui tam plaintiff has properly stated a claim.” Heath, 791 F.3d at 121. Accordingly, a district court does not lack subject matter jurisdiction over an action that may be barred on the merits by the first-to-file rule.

Conclusion

For the foregoing reasons, we join the D.C. Circuit in holding that the first-to-file rule of the FCA is not jurisdictional. Because we conclude in the summary order accompanying this opinion that the district court did not err by imposing the sanction of dismissal, we need not consider the non-FedEx defendants’ argument that Hayes’s action did not satisfy the first-to-file rule. For these reasons, the judgment of the district court is AFFIRMED.

      . On review, the Supreme Court did not address the Fourth Circuit's observation that the first-to-file rule was jurisdictional but focused instead on whether the first-to-file rule was satisfied in that particular case. See 135 S.Ct. at 1979. We agree with the D.C. Circuit’s conclusion that the Supreme Court’s discussion was “decidedly nonjurisdictional ..., raising the issue after it decided a nonjurisdic-tional statute of limitations issue.” U.S. ex rel. Heath v. AT & T, Inc., 791 F.3d 112, 121 n.4 (D.C. Cir. 2015). As a result, we do not read the Supreme Court’s decision as implicitly affirming the Fourth Circuit’s observation that the first-to-file rule was jurisdictional.


author: McKEE, Circuit Judge.

text:
    SECRETARY UNITED STATES DEPARTMENT OF LABOR v. Richard J. KWASNY; Kwasny and Reilly, P.C.; Kwasny and Reilly 401(k) Profit Sharing Plan Richard J. Kwasny, Appellant
    No. 16-1872
    United States Court of Appeals, Third Circuit.
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 7, 2016
    (Opinion filed: April 5, 2017)

      Richard J. Kwasny, 1039 South Kimbles Road, Yardley, PA 19067, Attorney for Appellant
    Leonard H. Gerson, Thomas Tso, United States Department of Labor, Office of the Solicitor, Room N-4611, 200, Constitution Avenue, N.W., Washington, DC 20210, Attorneys for Appellee
    Before: McKEE and RESTREPO, Circuit Judges; HORNAK, District Judge.

       Honorable Mark R. Hornak, District Judge for the United States District Court for the Western District of Pennsylvania, sitting by designation.

   OPINION OF THE COURT

McKEE, Circuit Judge.

Richard Kwasny appeals the District Court’s order granting summary judgment in favor of the Secretary of Labor and denying his cross-motion for summary judgment. Because the record shows no genuine issue of disputed fact regarding Kwasny’s violation of the Employee Retirement and Income Security Act of 1974 (“ERISA”) by directing employee 401(k) contributions into his Firm’s general assets, we hold that the District Court did not err in granting summary judgment. We will therefore affirm, but remand, for a determination of whether the judgment against Kwasny should be offset by a previous Pennsylvania state court judgment entered against Kwasny for the same misdirected employee contributions.

I

Richard Kwasny is a former managing partner of the now-dissolved law firm Kwasny & Reilly, P.C. (the “Firm”). While Kwasny was a partner at the Firm, the Firm established a 401(k) Profit Sharing Plan (the “Plan”) for its employees, and Kwasny was named as a trustee and fiduciary of the Plan. Between September of 2007 and November of 2009, the Plan sustained losses in the amount of $40,416.30 because Plan contributions withdrawn from employees’ paychecks were commingled with the Firm’s assets and were not deposited into the Plan.

In 2011, the Secretary of Labor received a substantiated complaint from a Plan member, which triggered an investigation. The Secretary eventually filed this action to recover the lost funds, remove Kwasny as trustee and fiduciary of the Plan, and enjoin Kwasny from acting as a plan fiduciary in the future. The Secretary and Kwasny thereafter filed cross motions for summary judgment. The District Court granted the Secretary’s motion for summary judgment and denied Kwasny’s. Kwasny appeals.

II

The District Court had jurisdiction pursuant to 29 U.S.C. § 1132(e). We have jurisdiction under 28 U.S.C. § 1291. Our review of a District Court’s grant of summary judgment is plenary. Accordingly, we apply the same standard as the District Court. Summary judgment is appropriate where, construing all evidence in the light most favorable to the nonmoving party, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Our function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

III

We must first decide whether the District Court correctly found that Kwasny violated the Employee Retirement and Income Security Act of 1974 (“ERISA”) by directing employee 401(k) contributions into the firm’s general assets. Next, we must determine whether the District Court erred in denying Kwasny’s motion for summary judgment based on his affirmative defenses.

A

The District Court’s grant of the Secretary’s motion for summary judgment was based primarily on facts deemed admitted under Federal Rule of Civil Procedure 36(b). Kwasny never sought to amend or withdraw the admissions, even upon invitation by the District Court. Kwasny likewise does not appeal the order deeming the issues admitted. In addition to Kwasny’s admissions, the District Court relied on testimony by the Firm’s former bookkeeper, Kathleen Meske. Kwasny’s evidence, on the other hand, consists only of his own declaration, which he claims creates a genuine issue of material fact.

Matters deemed admitted due to a party’s failure to respond to requests for admission are “conclusively established” under Federal Rule of Civil Procedure 36(b), and may support a summary judgment motion. Rule 36(b) is intended to narrow the triable issues in the case. An admission is therefore an “unassailable statement of fact” and is binding on the non-responsive party unless withdrawn or amended. Because Kwasny did not appeal the District Court’s order deeming 'the issues admitted, the admissions continue to bind him in this appeal. Accordingly, the District Court was correct to treat Kwasny’s admissions as established fact.

Kwasny’s admissions and Meske’s declaration together establish a prima fade case of an ERISA violation. Under ERISA, trustees of an ERISA retirement plan (such as a 401(k) plan) have the following duties: (1) ensure that plan assets are held in a trust account, (2) act solely in the interest of the plan participants and their beneficiaries, (3) act prudently, (4) prevent the plan from engaging in a direct or indirect transfer of plan assets for the benefit or use of a party in interest, and (5) refrain from dealing with the plan’s assets for the fiduciary’s own interest. Breach of these duties results in a violation and may trigger restitution or injunc-tive relief. Plan funds protected under the statute include money withheld from employees’ paychecks for purposes of the benefit plan but not yet delivered to the benefit plan. The Plan’s trustees are jointly and severally liable for money that is withheld but misdirected from a plan.

Here, the record establishes that: (1) “Between January 2007 and December 2007 Richard Kwasny was a trustee of the Plan,” (2) “Between September 7, 2007 and November 13, 2009, $41,936.73 was withheld from employee compensation but not deposited into the Plan,” (3) “Richard Kwasny directed that employee withhold-ings intended for deposit into the Plan be commingled with the general assets of the Firm,” (4) “Richard Kwasny directed that the employee withholdings intended for deposit into the Plan be used for the benefit of the Firm,” and (5) “Richard Kwasny was responsible for determining if payroll checks and contribution checks were issued ... between January 2007 and December 2009.” Additionally, the Firm’s bookkeeper, Kathleen Meske, declared that Kwasny instructed her to send the employee contribution checks to the Plan asset custodian only after he paid employee wages, Kwasny himself, and the Firm’s outstanding bills. In sum, the facts establish that Kwasny, a Plan trustee, used withheld employee contributions — protected Plan funds under ERISA — for the benefit of himself and the Firm in violation of his fiduciary duties.

Kwasny argues that Meske’s declaration should be ignored because she was not privy to all conversations among the partners, and unbeknownst to Meske, the partners could have decided not to accept a paycheck and therefore did not have funds to contribute to the 401(k). However, the possibility that the firm partners may have properly failed to contribute funds is irrelevant. The ERISA violation is prefaced on Kwasny’s directing employee contributions to be withheld from the employees’ paychecks, not the partners’. Similarly, Kwas-ny’s assertion that he was not the only trustee of the Firm and was therefore not solely responsible for Plan assets is irrelevant because, as we have already noted, trustee liability is joint and several. Moreover, the fact that Kwasny was not permitted to cross-examine Meske is irrelevant for summary judgment purposes. We therefore conclude that the District Court’s grant of summary judgment in favor of the Secretary was correct.

B

We also agree with the District Court’s conclusion that Kwasny is not entitled to summary judgment based on either of the two defenses he raises on appeal: (1) statute of limitations, and (2) res judicata.

1. Statute of Limitations

Actions such as this one for breach of fiduciary duty may not be brought under ERISA after the earlier of “(1) six years ... after the date of the last action which constituted a part of the breach or violation ... or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.” Put simply, Section 1113 creates “a general six year statute of limitations, shortened to three years in cases where the plaintiff has actual knowledge.” Actual knowledge “requires a showing that plaintiffs actually knew not only of the events that occurred which constitute the breach or violation but also that those events supported a claim of breach of fiduciary duty or violation under ERISA.”

Kwasny asserts the statute of limitations has expired because Firm employees and the Department of Labor had actual knowledge of the withholdings before 2011, and therefore, the Secretary’s 2014 suit is barred. Kwasny relies on the following statements from his declaration:

• Firm employees were aware that their contributions were not being deposited into the Plan as early as 2007 because it was widely known and documented in monthly statements to employees.
• A Department of Labor investigator examined all the Firm’s Plan books and records at some point in 2010 in response to a complaint by Larry Haft, a previous employee of the Firm.
• The Employee Benefits Security Administration (EBSA) received complaint calls in 2006 and 2010 regarding the failure to remit employee contributions to a 401 (k) plan.

The Secretary’s evidence consists of the declarations of two EBSA employees: Trudy Logan from the EBSA regional office and the regional director Norman Jackson. Logan declared that EBSA received complaints in 2006 and 2010 but the callers submitted no evidence to substantiate their claims, and they did not identify the Plan at issue here. It was not until Fall 2011 that EBSA received a complaint that included substantiating evidence and sufficiently identified the Plan to allow it to be referred for enforcement. Consistent with Logan’s declaration, Jackson declared that there was no investigation into the Firm’s Plan contributions before November 2011.

We conclude that the District Court correctly held that Kwasny’s evidence creates no genuine issue of material fact regarding whether the Secretary’s suit was brought within the statute of limitations. As the District Court correctly noted, whether or not Firm employees were aware of violations is legally irrelevant because the plaintiff in this case is the Secretary of Labor, not the Firm employees. Likewise, we agree with the District Court that Kwasny’s self-serving declaration stating that someone from the Department of Labor examined the Firm’s books at some unspecified time in 2010 is insufficient to create a triable issue of fact without personal knowledge or facts to substantiate the assertion.

Lastly, we agree that as a matter of law, the 2006 and 2010 EBSA complaint calls do not establish that the Secretary-had actual knowledge of the ERISA violation. Actual knowledge “requires that a plaintiff have actual knowledge of all material facts necessary to understand that some claim exists.” Logan declared that EBSA had no knowledge that the Plan was implicated by the complaints until 2011. Additionally, EBSA had no knowledge of the specific facts that made up the violation because no evidence was submitted to substantiate the complaints in 2006 or 2010. Accordingly, the District Court was correct in concluding that the 2006 and 2010 phone calls to EBSA are insufficient to establish the Secretary’s actual knowledge of the ERISA claim against Kwasny.

For all of these reasons, we hold that the District Court was correct to conclude that Kwasny’s statute of limitations defense does not prevent an entry of summary judgment in favor of the Secretary.

2. Res Judicata

Res judicata includes the legal concepts of claim preclusion and issue pre-elusion. Claim preclusion prevents the re-litigation of identical cases, whereas issue preclusion prevents the relitigation of discrete issues. Here, Kwasny is only arguing claim preclusion as a defense.

The preclusive effect of a state court judgment in a subsequent federal lawsuit is determined by the Full Faith and Credit Statute. The statute provides that state judicial proceedings “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” The statute has been interpreted by the Supreme Court to require federal courts to look to state law to determine the preclu-sive effect of a prior state judgment. Accordingly, we must look to Pennsylvania law on claim preclusion to determine whether it applies in this case.

Under Pennsylvania law, claim preclusion requires privity between the parties in the previous case and the current suit. In its broadest sense, privity is a “mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.”

First, Kwasny argues that the Secretary is precluded from bringing its claim against him because a former employee of the Firm, Larry Haft, obtained a judgment from Bucks County Court of Common Pleas based, in part, on withheld employee 401(k) contributions. It is true that the Secretary’s suit seeks monetary recovery to vindicate the rights of all Firm employees (including Haft) for Kwasny’s withheld employee 401(k) contributions. But when the Secretary of Labor brings an ERISA suit, the government seeks to vindicate broader interests than those of the employees. As the Court of Appeals for the Seventh Circuit has noted, the Secretary’s interests also include “the reinforcement of public confidence in a private pension system” and “supervising the enforcement of the ERISA statute,” which “ensure[s] the financial stability of billions of dollars of assets which in turn have a monumental effect on not only the Treasury of the United States, but on the national economy and commerce as well.” A private litigant cannot represent these interests. Accordingly, the Court of Appeals for the Seventh Circuit and a number of appellate courts have held that the Secretary of Labor is not bound by the results reached by private litigants in ERISA suits.

We agree with our sister circuit courts of appeals that under ERISA’s statutory framework, “private plaintiffs do not adequately represent, and are not charged with representing, the broader national public interests represented by the Secretary” in ERISA suits. Because the Secretary’s interest in maintaining the integrity of, and public confidence in, the pension system is broader than the interests of private litigants, we conclude that in ERISA suits, the Secretary is not in privity with private litigants and is therefore not bound by the results reached by private litigation. Accordingly, we agree with the District Court’s conclusion that the Haft judgement does not preclude the Secretary from bringing suit.

Kwasny also argues that, at the very least, the judgment in this case should be offset by the judgment awarded Haft in the previous litigation. The Secretary agrees that such an offset may be appropriate if the previous judgment was to recover withheld employee 401(k) contributions. The District Court concluded, however, that the judgment in this case should not be offset because the Bucks County judgment dated August 29, 2012 references only punitive damages and “Kwasny does not provide any other signed court order indicating any other award against him.” This conclusion is only partially correct. While it is true that the August 29th order awards Haft punitive damages against Kwasny in the amount of $32,677.15, Haft also obtained a default judgment against Kwasny on November 28, 2011, in the amount of $80,435.85. This amount appears to have been calculated including compensation for “401K payments withheld from plaintiffs wages ... never deposited in to the 401K plan.” It is unclear from the appellate record whether an offset of the Secretary’s judgement is appropriate in this case. We will therefore direct the District Court to consider the issue on remand.

IV

For the reasons set forth above, we will affirm the District Court’s grant of the Secretary’s motion for summary judgment except as to the amount of the judgment. We remand the matter for a determination as to whether the amount of the judgment should be offset by the Bucks County default judgment.

      . Under ERISA, a trustee who exercises control respecting the management or disposition of Plan assets is also a fiduciary. 29 U.S.C. § 1002(21)(A).

      . $40,416.30 was never forwarded to the Plan and $2,099.06 was forwarded late and without interest.

      . Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015).

      . Id.

      . Fed. R. Civ. P. 56(a); see also Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir. 2015).

      . Santini, 795 F.3d at 416.

      . Perez v. Kwasny, 159 F.Supp.3d 565, 569 (E.D. Pa. 2016).

      . Id. at 568 n.5.

      . Id. at 570.

      . Fed. R. Civ. P. 36(b).

      . Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 176 n.7 (3d Cir. 1990).

      . Fed. R. Civ. Proc. 36(b).

      . Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992) (quoting Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension Fund, 850 F.2d 1028, 1037 (3d Cir. 1988)).

      . Airco Indus. Gases, Inc., 850 F.2d at 1035-37 ("The new provisions give an admission a conclusively binding effect ... unless the admission is withdrawn or amended.”) (quoting Fed. R. Civ. P. 36 advisory committee's note).

      . See State Nat’l Ins. Co. v. Cty. of Camden, 824 F.3d 399, 404 (3d Cir. 2016) (“If an appeal is taken only from a specified judgment, this Court does not exercise jurisdiction to review other judgments that were not specified or 'fairly inferred’ by the Notice.”).

      . 29 U.S.C. § 1103.

      . § 1104(a)(1)(A).

      . § 1104(a)(1)(B).

      . § 1106(a)(1).

      . § 1106(b)(1).

      . § 1109(a).

      . 29 C.F.R. § 2510.3-102 ("[T]he assets of the plan include amounts ... that a participant or beneficiary pays to an employer, or amounts that a participant has withheld from his wages by an employer, for contribution or repayment of a participant loan to the plan....”).

      . Struble v. N.J. Brewery Emps.' Welfare Trust Fund, 732 F.2d 325, 332 (3d Cir. 1984) ("These cases do not require, however, that the plaintiff name all of the trustees as defendants. It is a well-established principle of trust law that multiple trustees who are at fault may be held jointly and severally liable.”).

      . Kwasny is deemed to have admitted that $41,936.73 was withheld in employee contributions, but the Secretary alleges that only $40,416.30 was withheld and not repaid into the Plan.

      . J.A. at 117-18.

      . Struble, 732 F.2d at 332.

      . Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, 1084 (3d Cir. 1988) ("[NJeither a desire to cross-examine an affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary judgment.” (quoting Nat’l Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983))).

      . 29 U.S.C. § 1113.

      . Kurz v. Phila. Elec. Co., 96 F.3d 1544, 1551 (3d Cir. 1996).

      . Montrose Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773, 787 (3d Cir. 2001) (quoting Int’l Union of Elec., Elec., Salaried, Mach. & Furniture Workers, AFL-CIO v. Murata Erie N. Am., Inc., 980 F.2d 889, 900 (3d Cir. 1992)).

      . See Landwehr v. DuPree, 72 F.3d 726, 732 (9th Cir. 1995) ("[T]he limitations period in an ERISA action begins to run on the date that the person bringing suit learns of the breach or violation.”) (emphasis added).

      . Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) (“In order to satisfy the standard for summary judgment the affi-ant must ordinarily set forth facts, rather than opinions or conclusions. An affidavit that is essentially conclusory and lacking in specific facts is inadequate to satisfy the movant or non-movant's burden.") (internal quotation marks and brackets omitted).

      . Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992).

      . R & J Holding Co. v. Redevelopment Auth. of Cty. of Montgomery, 670 F.3d 420, 426-27, 429 (3d Cir. 2011).

      . Though Kwasny references issue preclusion in his brief, he does not outline how the doctrine applies to this case. Indeed, because the previous judgment was not in Kwasny's favor, any issues actually litigated would not have been decided in his favor and would not advance his case here. Even so, under Pennsylvania law, like claim preclusion, issue preclusion requires privity between the parties, so the result here is the same. See Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 351 (3d Cir. 2014), cert. denied, - U.S. -, 135 S.Ct. 2372, 192 L.Ed.2d 144 (2015) (outlining the requirements of issue preclusion under Pennsylvania law as including “privity with a party in the prior case”).

      . Metro. Edison Co., 767 F.3d at 350.

      . 28 U.S.C. § 1738.

      . Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380-81, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985).

      . Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 276 (3d Cir. 2014), cert. denied sub nom. Allston v. Lower Merion Sch. Dist., — U.S. -, 135 S.Ct. 1738, 191 L.Ed.2d 702 (2015) (outlining the requirements of claim preclusion as (1) a final judgment on the merits, (2) the same parties or their privities, and (3) a subsequent suit based on the same cause of action).

      . Greenway Ctr., Inc. v. Essex Ins. Co., 475 F.3d 139, 149 (3d Cir. 2007) (quoting Ammon v. McCloskey, 440 Pa.Super. 251, 655 A.2d 549 (Pa. Super. Ct. 1995)).

      . Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 687-92 (7th Cir. 1986) (enbanc).

      . Id.; Wilmington Shipping Co. v. New England Life Ins. Co., 496 F.3d 326, 340 (4th Cir. 2007); Donovan v. Cunningham, 716 F.2d 1455, 1462 (5th Cir. 1983); Herman v. S.C. Nat. Bank, 140 F.3d 1413, 1424 (11th Cir. 1998).

      . Herman, 140 F.3d at 1424.

      . See Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991) (holding that offset of a judgment obtained by the Secretary of Labor is only appropriate when private plaintiffs actually recover concurrent judgments).

      . Perez, 159 F.Supp.3d at 574.

      . J.A. at 79.