author: BROWN, Circuit Judge:

text:
    PUBLIC CITIZEN, INC., Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Calpine Corporation, et al., Intervenors
    No. 14-1244
    Consolidated with 14-1246
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 6, 2016
    Decided October 25, 2016

      Scott L. Nelson argued the cause for petitioner Public Citizen, Inc. With him on the briefs was Lynn N. Hargis.
    John S. Wright, Assistant Attorney General, Office of the Attorney General for the State of Connecticut, argued the cause for State Petitioners. With him on the briefs were Michael C. Wertheimer, Robert L. Marconi, and Clare E. Kindall, Assistant Attorneys General, and Elin Katz and Joseph A. Rosenthal.
    Robert H. Solomon, Solicitor, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief was Karin L. Larson.
    Paul A. Mezzina argued the cause for intervenors. With him on the brief were Ashley C. Parrish, David G. Tewksbury, Abraham H. Silverman, Cortney Madea, Bruce F. Anderson, Paul Franklin Wight, and John L. Shepherd Jr.

      Before: BROWN, SRINIVASAN and WILKINS, Circuit Judges.
   BROWN, Circuit Judge:

In this consolidated case, Petitioners Public Citizen and Connecticut seek review of two Notices issued by the Federal Energy Regulatory Commission as part of ISO New England’s eighth forward-capacity market. They contend we have jurisdiction because the Notices constitute either orders under the Federal Power Act or action unlawfully withheld under the Administrative' Procedure Act. We disagree and dismiss for lack of jurisdiction.

I.

ISO New England (“ISO-NE”) is a private, nonprofit entity that, among other things, administers New England’s energy markets. The Federal Energy Regulatory Commission (“FERC” or “the Commission”) is an independent agency composed of up to five members appointed by the President. See 42 U.S.C. § 7171(a)-(b). Among other responsibilities, FERC has the authority under the Federal Power Act (“the FPA”) to regulate rates for wholesale electricity. See 16 U.S.C. §§ 824d-824e. A forward-capacity market (“FCM”) is a particular type of wholesale market for electricity.

This case concerns whether FERC’s response to ISO-NE’s 2014 FCM auction (“FCA 8”) ran afoul of its FPA obligations. We therefore begin by surveying the relevant FPA provisions and describing the mechanics of an FCM auction.

A.

FPA Section 205(a) states all rates and charges—including those for wholesale electric energy—“shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.” 16 U.S.C. § 824d(a).

Sections 205 and 206 provide two mechanisms through which FERC can fulfill its statutory charge of ensuring the justness and reasonableness of rates. Section 205 governs the lawfulness of proposed rates; Section 205(d) requires utilities to file all proposed changes with FERC, and, “unless the Commission otherwise orders^” filed rates cannot go into effect without “sixty days’ notice to the Commission and to the public.” Id. § 824d(d). Section 205(e) further authorizes FERC, “either upon complaint br upon its own initiative[,]” to hold hearings on the lawfulness of proposed rates. Id § 824d(e). “[Pjending such hearing,” it “may” also suspend the rates for up to “five months beyond the time when [they] would otherwise go into effect.” Id. Section 206 permits FERC to review—and third parties to challenge— rates that have already become effective. Id § 824e(a).

B.

In 2006, FERC approved a Settlement Agreement and Tariff permitting ISO-NE to conduct annual FCM auctions. See Devon Power LLC, 117 F.E.R.C. ¶ 61,133 (2006). The Settlement Agreement provides for “thorough review of the final auction clearing prices by the Commission” and any interested parties. Id. at P 93. It further states “[P]arties may challenge [proposed rates] under the ‘just and reasonable standard’ and the Commission will address such challenges under that standard.” Id

FCMs differ from other energy markets because “ ‘[c]apacity’ is not electricity itself but the ability to produce it when necessary. It amounts to a kind of call option that electricity transmitters purchase from parties—generally, generators—who can either produce more or consume less when required.” Conn. Dep’t of Pub. Util. Con trol v. Fed. Energy Regulatory Comm’n, 569 F.3d 477, 479 (D.C. Cir. 2009). ISO-NE’s FCMs are conducted three years in advance so as to encourage competition and market entry. See Blumenthal v. Fed. Energy Regulatory Comm’n, 552 F.3d 875, 879 (D.C. Cir. 2009). Thus, in an FCM, electricity providers do not purchase energy itself, but the option to buy a quantity of energy three years hence. See id.

In the annual FCM auctions—which set capacity prices—ISO-NE first determines the net amount of capacity required by the region. ISO New England, Inc,, 148 F.E.R.C. ¶ 61,201 at P 2 (2014). Suppliers willing to provide capacity submit bids reflecting the lowest price they will accept before exiting the market for that year. Id. In the ensuing “descending clock” auction, the price continues to fall and bidders continue to exit “until the amount of capacity remaining in the auction is equal to the net Installed Capacity Requirement,” Id. At this point, the auction terminates, and “all resources remaining in the auction receive capacity obligations at the auction clearing price.” Id. However, “[u]nder some circumstances relating primarily to the sufficiency of competition within the auction, [capacity prices] may be administratively determined by ISO-NE.” Id. at P 2 n.4.

ISO-NE conducted FCA 8 on February 3, 2014, On February 28, pursuant to its Tariff obligations, it filed the auction results with FERC for review under FPA Section 205, See Devon Power LLC, 117 F.E.R.C. ¶ 61,133 at P 78. Due to insufficient competition, the auction defaulted to administrative pricing rules, and it resulted in regional capacity price increases from approximately $1.2 billion to approximately $3 billion over one year.

On April 14, Petitioners filed a timely objection to the rates, arguing they resulted from the unilateral exercise of market power. Subsequently, Petitioners each requested FERC affirmatively determine whether FCA 8’s rates were just and reasonable and assess whether the market was unduly manipulated during the auction. In response, on June 27, FERC issued ISO-NE a deficiency letter requesting additional information concerning the auction. ISO-NE provided the information on July 17.

Sixty-one days later, on September 16, 2014, FERC’s Secretary issued a Notice acknowledging the FCA 8 rates had become effective by operation of law pursuant to FPA Section 205. Individual statements released by the Commissioners revealed FERC—which at the time was composed of only four Commissioners—had deadlocked about whether to approve the rates or set them for hearing. In a joint statement, two Commissioners concluded the Settlement Agreement required FERC to examine the reasonableness of the auction rates because evidence suggested FCA 8 had been influenced by the exercise of market power. The other two—one of whom was FERC’s current Chairperson—would have approved the rates. According to the Chairperson, as long as ISO-NE had conducted the auction in accordance with a FERC-approved tariff, the Commission lacked authority to assess justness or reasonableness.

Petitioners separately filed for rehearing. The Secretary issued a second Notice explaining the first Notice was not a Commission Order and, consequently, the requests for rehearing “[did] not lie.” J.A. 154. Petitioners’ cases were consolidated before this Court, where they now ask us to review the Notices as final orders under FPA Section 313(b). Alternatively, they argue the FPA compels FERC to set challenged rates for a hearing and prevents FERC from permitting unjust rates to take effect; the Commission’s failure to perform either duty constitutes action unlawfully withheld under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(1). Under either theory of jurisdiction, Petitioners contend FERC’s reasons for permitting FCA 8’s rates to become effective were arbitrary and capricious. See id. § 706(2). They therefore ask this Court to remand with instructions to FERC to assess the justness and reasonableness of FCA 8’s rates.

II.

At the outset, we must fulfill our “independent obligation to assure ourselves that jurisdiction is proper.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). As we have explained, “[a] federal court’s subject-matter jurisdiction ... extends only so far as [the] Congress provides by statute,” Friends of the Earth v. U.S. EPA, 333 F.3d 184, 187 (D.C. Cir. 2003), and is “strictly limited to the agency action(s) included therein.” NetCoalition v. Sec. Exch. Comm’n, 715 F.3d 342, 348 (D.C. Cir. 2013). Since jurisdiction grants the “power to declare the law,” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868), it is incumbent upon us to determine, we are acting within the sphere of our legitimate authority.

A.

Petitioners first seek review of the secretarial Notices as orders under FPA Section 313(b), which permits “[a]ny party ... aggrieved by an order issued by the Commission .,. [to] obtain a review of such order.” 16 U.S.C. § 8252(b). They advance three arguments as to why Section 313(b) encompasses FERC’s actions here, all of which fail.

Petitioners begin by correctly noting that, in various contexts including the FPA, we have previously defined “order” expansively to include “any agency action capable of review on the basis of the administrative record.” Inv. Co, Inst. v. Bd. of Governors of the Fed. Reserve Sys., 551 F.2d 1270, 1278 (D.C. Cir. 1977) (emphasis added); Kan. Power & Light Co. v. Fed. Power Comm’n, 554 F.2d 1178, 1181 n.4 (D.C. Cir. 1977). However, here, Petitioners cannot demonstrate FERC engaged in agency action; they therefore cannot seek recourse under this broad definition.

As a preliminary matter, FERC’s enabling statute provides at least three Commissioners must be present to constitute a quorum and “[a]ctions of the Commission shall be determined by a majority vote of the members present.” 42 U.S.C. § 7171(e), These requirements comport with the “almost universally accepted common-law rule” that only a “majority of a collective body is empowered to act for the body.” Fed. Trade Comm’n v. Flotill Prods., Inc., 389 U.S. 179, 183, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967). They also accord with this Court’s recognition that an agency’s authority runs to it as “an entity apart from its members, and it is its institutional decisions—none other—that bear legal significance.” Pub. Serv. Comm’n of N. E v. Fed. Power Comm’n, 543 F.2d 757, 776 (D.C. Cir. 1974).

Thus, whether analyzed under the statutorily-prescribed requirements for Commission action or under general institutional principles, we reach the same conclusion: FERC did not engage in collective, institutional action when it deadlocked on FCA 8’s rates. Consequently, the Notices describing the effects of that deadlock are not renewable orders under the FPA. See Sprint Nextel Corp. v. FCC, 508 F.3d 1129, 1131-32 (D.C. Cir. 2007) (concluding FCC deadlock was not “agency action” and the press release describing the deadlock was “purely informational”); AT&T Corp. v. FCC, 369 F.3d 554, 556 (D.C. Cir. 2004) (finding a Notice describing the effects of a statutory sunset provision to be a nonreviewable agency action because it described something that occurred “‘by operation of law,’ not by Commission action”).

The very definition of “deadlock” reinforces our conclusion. Webster’s defines deadlock as “a state of inaction ... resulting from the opposition of equally powerful uncompromising ... factions.” Merriam-Webster’s Collegiate Dictionary 319 (11th ed. 2009); see also 4 Oxford English Dictionary 290 (2d ed. 1989) (defining deadlock as “[a] condition or situation in which it is impossible to proceed or act; a complete standstill”). By its very terms, then, the nature of a deadlock confirms FERC neither reached a collective decision nor engaged in an “action” of any kind.

Petitioners nevertheless urge us to apply our treatment of deadlocks under the Federal Election Campaign Act (“FECA”). See Fed. Election Comm’n v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992), There, we have held the Federal Election Commission (“FEC”) engages in final agency action when, after receiving a complaint alleging certain types of campaign finance violations, it deadlocks about whether probable cause exists to proceed with an investigation. Id. “[T]o make judicial review a meaningful exercise,” we treat the statements of the Commissioners voting to dismiss the complaint as the administrative record. Id.

As does the FPA with FERC, FECA requires FEC to act by majority vote. See 52 U.S.C. § 30106(c); id. § 30109(a)(2). But, there are other obvious and significant differences between FECA and FPA.

First, FECA’s text explicitly permits review of probable-cause deadlocks as agency action. Unlike FPA Section 313(b), FECA allows “[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party ... or by a failure of the Commission to act on such complaint” to seek judicial review. 52 U.S.C. § 30109(a)(8)(A) (emphases added). Further, FEC cannot investigate complaints absent majority vote, see id. § 30109(a)(2), meaning the statute compels FEC to dismiss complaints in deadlock situations. See also Nat’l Republican Senatorial Comm., 966 F.2d at 1476. Therefore, recognizing FECA deadlocks as agency action does not require this Court to broaden its statutorily-defined jurisdiction; the treatment of probable cause deadlocks as agency action is baked into the very text of the statute. See also Hispanic Leadership Fund, Inc. v. Fed. Election Comm’n, 897 F.Supp.2d 407, 428 (E.D. Va. 2012) (finding unreviewable an FEC deadlock about whether advertisements constituted prohibited election communications because, unlike deadlocks leading to the dismissal of private complaints, it resulted “only in the FEC concluding that it was unable to reach a determination”).

Second and more generally, Congress uniquely structured the FEC toward maintaining the status quo, increasing the appropriateness of recognizing deadlocks as agency action in that specific context. As an initial matter, FEC always includes six Commissioners, distinguishing it from the vast majority of agencies with an odd number of members. No more than three FEC Commissioners may be affiliated with the same political party. 52 U.S.C. § 30106(a)(1). The voting and membership requirements mean that, . unlike other agencies—where deadlocks are rather atypical—FEC will regularly deadlock as part of its modus operandi. Taken together, FEC’s structural design and FECA’s legal requirement to dismiss complaints in deadlock situations mark FECA as an exception to the rule. Absent a similar congressional indication in the FPA or FERC’s enabling statute, the FEC approach should not be imported here.

Finally, Petitioners seek to expand our FPA jurisdiction by invoking the “strong presumption that Congress intends judicial review of administrative action.” Amador Cty. v. Salazar, 640 F.3d 373, 379 (D.C. Cir. 2011). It bears emphasizing, however, that this presumption applies only to “final agency action.” See Bowen v. Mich. Acad, of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986); 16 ChaRles Alan WRIGHT, ET AL., FEDERAL PRACTICE & PROCEdure § 3942. As just described, FERC did not engage in agency action at all, let alone final agency action.

Final agency action is that which “mark[s] the consummation of the agency’s decisionmaking process.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Further, it must determine rights and obligations or result in legal consequences. Id. at 178, 117 S.Ct. 1154; see also Papago Tribal Util. Auth. v. Fed. Energy Regulatory Comm’n, 628 F.2d 235, 239 (D.C. Cir. 1980) (noting courts may review an interlocutory order issued by FERC if it is “definitive” and “imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process”). Here, the presumption does not attach because the deadlock does not reflect an agency decision that fully resolved the issue or completed the process. See Consummate, Blaok’s Law Dictionary (10th ed. 2014). In fact, it did quite the opposite, leaving FERC mired in indecision and impasse. Thus, the deadlock lacks the requisite finality for the presumption to apply.

In sum, we hold FERC’s deadlock does not constitute agency action, and the Notices describing the effects of the deadlock are not reviewable orders under the FPA.

B.

We next consider whether the APA confers jurisdiction over Petitioners’ claims.

The APA permits judicial review of agency action, including the failure to act. See 5 U.S.C. §§ 551(13), 702. Inaction is reviewable only where the agency fails to take a “discrete” action it is legally required to take. Norton v. S. Utah Wilderness All., 542 U.S. 55, 62-63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Action is “legally required” if the statute provides a “specific, unequivocal command” to an agency or “a precise, definite act ... about which [an official has] no discretion whatever.” Id. at 63, 124 S.Ct. 2373 (discussing the connection between the reviewability of inaction and the writ of mandamus). Accordingly, this Court has imposed “strict limits” on reviewable inactions. Anglers Conservation Network v. Pritzker, 809 F.3d 664, 670 (D.C. Cir. 2016).

Thus, here, we ask whether the FPA compelled FERC either to set the disputed rates for hearing or to affirmatively prevent any unjust and unreasonable rates from going into effect. The parties disagree about which case controls this question.

Petitioners proffer Amador County v. Salazar, 640 F.3d 373, 379 (D.C. Cir. 2011), where this Court assessed the Secretary of the Interior’s responsibilities under the Indian Gaming Regulatory Act (“IGRA”). IGRA authorizes no-action approvals of proposed gaming compacts which, after 45 days, “shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the [Ad’s] provisions.” 25 U.S.C. § 2710(d)(8)(C) (emphasis added). This Court found the latter clause demonstrated “Congress [had] limited the extent to which a compact could be approved by operation of law,” thus obligating the Secretary to “affirmatively disapprove” any compacts violating the limit. Id. at 382. Petitioners contend FPA Section 205(a)’s pronouncement that “any such rate or charge that is not just, and reasonable is hereby declared to be unlawful” imposes an analogous duty upon FERC to disapprove any unjust or unreasonable rate. 16 U.S.C. § 824d(a).

By contrast, FERC analogizes these facts to Sprint Nextel Corp. v. FCC. There, this Court assessed the reviewability of an FCC deadlock under a provision of the Communications Act stating a forbearance petition “shall be deemed granted” if the FCC does not deny it within a statutorily-prescribed period. Sprint Nextel, 508 F.3d at 1131-32. We noted that, because the FCC acts by majority vote, “[t]ies ... do not result in Commission action.” Id. at 1132. Instead, the petition was granted “by operation of law.” Id. As such, the deadlock was unreviewable, since “[t]he Commission did not engage in any circumscribed, discrete” act; rather, “Congress, not the Commission, ‘granted’ [the] forbearance petition.” Id. at 1131-32.

We conclude Sprint Nextel controls. Section 205(a)’s statement concerning the unlawfulness of unjust and unreasonable rates does not rise to an inexorable command like that found in IGRA. See also Meina Xie v. Kerry, 780 F.3d 405, 406, 408 (D.C. Cir. 2015) (holding a statutory provision stating “immigrant visas ... shall be issued ... in the order in which a petition ... is filed with the Attorney General” had “establish[ed] a specific principle of temporal priority that clearly reins in the agency’s discretion”). It does not compel FERC to engage in nondiscretionary activity either by commanding FERC to set disputed rates for a hearing or by mandating FERC disapprove any unjust or unreasonable rates. Instead, it functions as a stand-alone, declarative statement, reiterating the FPA’s overall goal of proscribing unjust and unreasonable rates. Thus, we conclude the FPA does not man-datorily obligate FERC to engage in either of Petitioners’ desired actions.

Our conclusion is buttressed by the Supreme Court’s interpretation of the Interstate Commerce Commission’s (“ICC”) duties under the Interstate Commerce Act (“ICA”). In Southern Railway Co. v. Allied Seaboard Milling Corp., the Court held the ICC’s decision not to investigate challenges levied against proposed seasonal rate increases unreviewable. 442 U.S. 444, 446, 448, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979). Southern Railway concerned a direct review statute rather than the APA; however, the marked structural and linguistic similarities between the FPA and ICA nevertheless render the Court’s reasoning and conclusions instructive. See Papayo, 628 F.2d at 243 (indicating Southern Railway’s germaneness to FERC and the FPA).

At the time the Court decided Southern Railway, the ICA contained three notable similarities to the FPA. First, like FPA Section 205(a), the ICA stated “[a]U charges made for any service rendered or to be rendered in the transportation of passengers or property ... shall be reasonable and just; and every unjust and unreasonable charge for such service is ... declared to be unlawful.” 24 Stat. 379. Second, ICA Section 15(8)(a) mirrored FPA Section 205(e) by providing that, upon receipt of a proposed rate schedule, “the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of such rate.” 90 Stat. 31. Third, in another provision analogous to FPA Section 205(e),' ICA Section l5(8)(b) authorized the Commission to suspend a proposed schedule for seven months “[pending a hearing.” Id.

After receiving the complaint at issue in Southern Railway, the ICC engaged in some corrective action with the railroads, but also issued an order declining to either set the rates for a hearing or temporarily suspend the rates. 442 U.S. at 449-50, 99 S.Ct. 2388. In holding the no-investigation decision unreviewable, the Court pointed to the statute’s use of “permissive” language in Section 15(8)(a), as well as its lack of “standards to guide both the Commission in exercising its authority and the courts in reviewing that exercise.” Id. at 456, 99 S.Ct. 2388. Though not squarely addressed, the ICC’s declaration of the unlawfulness of unjust and unreasonable rates did not alter the Court’s conclusion that the ICA afforded the Commission un-reviewable discretion over investigation decisions.

Section 205(e)’s language grants FERC similar discretion, stating it “shall have authority” to hold hearings and that it “may” suspend rates. 16 U.S.C. 824d(e). Likewise, it contains no standards cabining FERC’s discretion or enabling this Court to meaningfully review how the Commission exercises its discretion. Taken together, Sprint Nextel and Southern Railway lead us to hold the FPA did not compel FERC to either set the disputed rates for hearing or affirmatively disapprove any unjust or unreasonable rates through the Section 205 process. Since the action was not legally required, we have no jurisdiction under the APA.

III.

We conclude by repeating what we initially recognized in Sprint Nextel: “because a deadlocked vote is unreviewable, we lack jurisdiction in what may be the hardest cases.” 508 F.3d at 1133. And so it is with Petitioners. FERC approved a Settlement Agreement providing, “[Pjarties may challenge [proposed rates] under the ‘just and reasonable standard’ and the Commission will address such challenges under that standard.” Devon Power LLC, 117 F.E.R.C. ¶ 61,133 at P 93. Not only did the deadlock prevent FERC from accomplishing this review, but the Commission Chairperson disclaimed authority to engage in any review whatsoever, so long as ISO-NE conducted the auction in accordance with its tariff. This interpretation seems questionable at best. And yet, without jurisdiction, we simply lack the power to assess its validity. Any unfairness associated with this outcome inheres in the very text of the FPA. Accordingly, it lies with Congress, not this Court, to provide the remedy.

Since neither the FPA nor the APA grants us the power to hear these claims, we are compelled to “dismiss[ ] the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) at 514.

So ordered.

      . ISO-NE’s Tariff states third parties must file objections with FERC within forty-five days of ISO-NE filing the auction results.

      . FERC also issued an order under FPA Section 206 requiring ISO-NE to make certain prospective revisions to its Tariff, ISO New England, Inc., 148 F.E.R.C. ¶ 61,201 at P 12. It also investigated a specific utility's bidding behavior, ultimately concluding the behavior was justified. Id. at P 11.

      . We recognize Petitioners also believe FPA compels FERC to act. As described infra Part II.B., we find that argument similarly unavailing.

      . Petitioners rely on the ‘'practical” considerations that have previously guided our reviewability determinations, see Papago, 628 F.2d at 239, but these considerations do not alter our conclusion. As relevant here, Petitioners note that, under FPA Section 205, FERC carries the burden of demonstrating the reasonableness of rates, see 16 U.S.C. § 824d(e); that burden shifts to challengers under Section 206. See id. § 824e(b). Further, per the Settlement Agreement’s terms, Section 206 challenges are governed by the Mobile-Sierra "public interest” test, which Petitioners contend constitutes a more stringent legal standard. See Potomac Elec. Power Co. v. Fed. Energy Regulatory Comm'n, 210 F.3d 403, 407-09 (D.C. Cir. 2000). Petitioners argue these differences will work irreparable injury to them should this Court deny review here. We disagree. Section 206 proceedings may in some ways be less amenable to Petitioners, yet the fact remains an avenue of review is available to them. FERC has represented that nothing in its prior orders precludes Petitioners from pursuing relief under Section 206. Additionally, practical and prudential considerations, however compelling, cannot provide the basis for our jurisdiction absent demonstrated final agency action and clear congressional authority. See NetCoalition, 715 F.3d at 348; see also S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (finding an order Issued by the Interstate Commerce Commission unreviewable even though doing so meant challengers had to proceed under a statutory section that offered different remedies and shifted the burden of proof to challengers).

      . The, lack of collective action attributable to the entire Commission distinguishes this case from our decisions in Cajun Electric Power Cooperative, Inc. v. Federal Energy Regulatory Commission, 28 F.3d 173 (D.C. Cir. 1994), and City of Batavia v. Federal Energy Regulatory Commission, 672 F.2d 64 (D.C. Cir. 1982). In Cajun Electric, FERC issued an order approving proposed tariffs as reasonable after receiving timely challenges to filed tariffs. 28 F.3d at 175-76. In Batavia, FERC as a body issued an order adopting a "mistaken belief ... about its investigative authority.” 672 F.2d at 75, 77.

      . Petitioner Connecticut stresses the importance of reading the FPA "in context” with the Settlement Agreement’s review provision. Pet’r Jepsen Br. 23-24; see Devon Power LLC, 117 F.E.R.C. ¶ 61,133 at P 93. Specifically, Connecticut suggests reading "order” in Section 313(b) too literally would "be in violation of" the Settlement Agreement. Pet’r Jepsen Br. at 23. Petitioner is incorrect. Determining our subject-matter jurisdiction is not a contextual inquiry, capable of case-by-case expansion or contraction. Rather, it involves a factual inquiry into the objective limits of our ■ Congressionally-defined power to act. Our determination, properly grounded, is incapable of "violating” anything.

      . Our recent decision in Xcel Energy Services v. Federal Energy Regulatory Commission, 815 F.3d 947 (D.C. Cir. 2016), does not undermine our holding. There, FERC entered an order accepting a Tariff revision notwithstanding its conclusion that the proposed rates “may not be just and reasonable.” Id. at 950-51. FERC later “acknowledged that it erred as a matter of law in allowing [the] proposed rates to take effect ... despite the acknowledged need for further section 205 review.” Id. at 953. We held "where the Commission acknowledges that it acted contrary to section 205[,] ... its initial rate order is ultra vires." Id. at 956. Xcel is distinguishable on two relevant grounds. First, it involved an undisputedly final agency action reached by majority vote. Second, it addressed a fundamentally different question from that presented in this case. Whereas we consider FERC’s Section 205 obligations as an initial matter, Xcel addresses FERC’s statutory duties once it has affirmatively determined the proposed rates may be unlawful. Since FERC never reached a similar conclusion here, Xcel does not govern.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
    No. 14-10147
    United States Court of Appeals, Ninth Circuit.
    Filed October 21, 2016
    D.C. No. 3:95-cr-00319-MMC-7
    Before: M. MARGARET McKEOWN, KIM McLANE WARDLAW, and RICHARD C. TALLMAN, Circuit Judges.
   ORDER

The opinion filed on August 9, 2016, appearing at 2016 WL 4191623, is hereby amended as follows:

At slip op. page 8 n.3, change “We also reject Doe’s argument that judicial es-toppel prevents a court from taking inconsistent positions; judicial estoppel is a doctrine that applies to the parties, not the court. New Hampshire v. Maine, 532 U.S. 742, 750-51 [121 S.Ct. 1808, 149 L.Ed.2d 968] (2001). In any event, we disagree with Doe’s premise that the court acted inconsistently.” to “We also reject Doe’s arguments that judicial es-toppel prevents a court from taking inconsistent positions, and that his due process rights were violated. First, judicial estoppel is a doctrine that applies to the parties, not the court. New Hampshire v. Maine, 532 U.S. 742, 750-51 [121 S.Ct. 1808, 149 L.Ed.2d 968] (2001). In any event, we disagree with Doe’s premise that the court acted inconsistently. Second, a trial court violates a defendant’s due process rights only “by relying upon materially false or unreliable information at sentencing.” United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995) (citing United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989)). Not only was Doe not “at sentencing,” but also, the trial court relied on facts to which the parties had stipulated, including Doe’s sworn plea agreement admitting solicitation of murder, as well as a government document showing Doe later backed away from that admission. Though some of the information was conflicting, it was not “materially false or unreliable information.” See id. at 578 (finding due process violation where sentencing court relied upon the “uncorroborated and unreliable” allegations of a co-defendant who “presumably wanted revenge” on defendant).”

With this amendment, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall bp permitted.


author: KOZINSKI, Circuit Judge:

text:
    Jessica Jhoana TELLEZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-73424
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 30, 2016, Pasadena, California
    Filed October 24, 2016

      Matthew E. Roston (argued), Beverly Hills, California, for Petitioner.
    Craig Alan Newell, Jr. (argued) and Carmel A. Morgan, Trial Attorneys; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Washington, D.C.; for Respondent.
    Before: ALEX KOZINSKI and JAY S. BYBEE, Circuit Judges, and DONALD E. WALTER, Senior District Judge.

       The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation.

   OPINION

KOZINSKI, Circuit Judge:

This casé raises a question of first impression for the federal courts: Has an alien “reentered” the United States for the purpose of reinstating a removal order, 8 U.S.C. § 1231(a)(5), when she was previously removed at a border-crossing checkpoint?

Jessica Tellez made her first known effort to cross the U.S. border at San Ysidro in 2000. She claimed to be a U.S. citizen, but a suspicious immigration officer referred her for a secondary inspection. Tel-lez then admitted that she was a Mexican citizen without a valid entry document. She was deemed inadmissible and signed a statement acknowledging that she could not return to the United States for five years. Tellez was then issued an expedited removal order under 8 U.S.C. § 1225(b)(1) and was returned to Mexico. Undaunted, Tellez returned to the United States the following week. She “dressed up in a nice, pretty dress,” and “smile[d] at the immigration officer” from the passenger seat of a car. The officer waved the ear through, and Tellez settled in the United States.

In 2012, Tellez applied for a waiver of inadmissibility and adjustment of her status to that of a lawful permanent resident. The applications were denied because she had previously falsely represented herself as a citizen. The Department of Homeland Security then reinstated Tellez’s expedited removal order on the grounds that she had illegally “reentered” the country. See 8 U.S.C. § 1231(a)(5). Tellez .petitioned for review.

1. Tellez claims that the reinstatement of her removal order is invalid because she did not “reenter” the United States. She argues that her initial attempt to cross the border did not constitute an initial “entry” that can create a subsequent “reentry.”

The reinstatement provision states: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5) (emphasis added). So what creates a “reentry”? We hold that when, as here, an alien is issued an expedited removal order at a U.S. border-crossing checkpoint, that alien has entered the United States for the purpose of the reinstatement provision’s “reentry” requirement.

We find our way to this conclusion by starting with the plain meaning of the provision in question. See United States v. Migi, 329 F.3d 1085, 1087 (9th Cir. 2003). The. Immigration and Nationality Act (INA) doesn’t define the term reentry—or, for that matter, entry. But common sense and a stack of dictionaries can tell us that the word enter means. “[t]o come or go into.” The American Heritage Dictionary of the English Language 436 (1976); see also United States ex rel. Claussen v. Day, 279 U.S. 398, 401, 49 S.Ct. 354, 73 L.Ed. 758 (“The word ‘entry’ by its own force implies a coming from outside.”). Under this definition, Tellez entered the country when she left Mexico and came into the sovereign territory of the United States at the San Ysidro border-crossing station.

In addition, the section of the INA under which Tellez was first returned to Mexico—a provision that authorizes the “expedited removal of inadmissible arriving aliens,” 8 U.S.C. § 1225 (emphasis added)—necessarily implies an initial entry. The verb remove is ordinarily defined as “[t]o move from a position occupied.” American Heritage Dictionary, supra, at 1101. It makes no sense to speak of removing someone who has not yet entered or never occupied a position—say, removing Clint Eastwood from the papacy or removing a colony from Mars. Entry implies movement in; removal implies movement out. Tellez must have first entered U.S. territory in order to be removed from it. Having entered once, her second entry was a reentry.

We acknowledge that the definition of entry developed at common law has a narrower and more technical meaning: Entry “has not been accomplished until physical presence is accompanied by freedom from official restraint.” United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000) (internal reference omitted). We have also used this judge-made definition to interpret some criminal provisions of the INA. See id. at 1163-65; see also United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005) (noting that the term enter, for the purposes of 8 U.S.C. § 1326, “has a narrower meaning than its colloquial usage”). Our decision today—which is limited to the reinstatement provision’s definition of “reentry”— does not disturb this longstanding common-law definition. We hold only that the INA’s reinstatement provision, which requires reentry after an initial removal, encompasses those who, like Tellez, were removed after coming into U.S. territory at a border-crossing checkpoint and subsequently returned to the United States.

Our interpretation of the reinstatement provision is supported by the “fundamental canon of statutory construction that the words of a statute must be read ... with a view to their place in the overall statutory scheme.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (internal reference omitted). Congress intended the reinstatement provision to sweep broadly. It expanded the provision in 1996 to cover all aliens who reenter the United States after being removed; its predecessor applied to only a subset of illegal reentrants. See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1279 (11th Cir. 2006) (comparing 8 U.S.C. § 1231(a)(5) with its predecessor 8 U.S.C. § 1252(f) (1994)). The legislative history of the 1996 amendment confirms that Congress sought to streamline the removal process and cover all entering aliens who violate a prior removal order. See id. at 1282 (discussing H. Rep. No. 104-469 and S. Rep. No. 104-249). It would be puzzling for Congress to significantly expand the reinstatement provision, yet leave open a truck-sized hole for all aliens first removed from a border crossing.

2. Tellez also claims that she did not reenter the United States illegally under 8 U.S.C. § 1231(a)(5) because she presented herself at the border and was waved through without question. But a successful entry can still be an illegal entry. See Tamayo-Tamayo v. Holder, 725 F.3d 950, 952 (9th Cir. 2013) (holding on similar facts that an entry was illegal because petitioner “lacked valid documentation that permitted him to enter”). There’s no question that Tellez lacked valid documentation and intended to dupe border officials into letting her enter: Just a week before her successful entry, she signed a document acknowledging that she was prohibited from entering the country for five years. A pretty dress and charming smile are not substitutes for a visa. Her reentry was illegal.'

DENIED.


author: PER CURIAM:

text:
    SUNEARTH, INC., a California corporation; The Solaray Corporation, a Hawaiian corporation, Plaintiffs-Appellants, v. SUN EARTH SOLAR POWER CO., LTD., FKA Ningbo Solar Electric Power Co., Ltd., a Chinese limited liability company; NBSolar USA Inc., a California corporation, Defendants-Appellees.
    Nos. 13-17622
    15-16096
    United States Court of Appeals, Ninth Circuit.
    Submitted En Banc October 14, 2016 , San Francisco, California
    Filed October 24, 2016

      Clark E. Proffitt and Stephen B. Mosier, Hayes Soloway P.C., Tucson, Arizona, for Plaintiffs-Appellants.
    James J. Foster, Hayes Messina Gilman & Hayes LLC, Boston, Massachusetts; Michael A. Albert and Eric J. Rutt, Wolf Greenfield & Sacks P.C., Boston, Massachusetts; for Defendants-Appellees.
    Before: SIDNEY R. THOMAS, Chief Judge, and M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FELTCHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD R. CLIFTON, JACQUELINE H. NGUYEN, PAUL J. WATFORD, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.

       The en banc court unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

We voted to rehear this case en banc to reconsider our jurisprudence concerning fee awards in cases filed pursuant to the Lanham Act, 15 U.S.C. § 1051 et seq.

Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). Historically, we have reviewed de novo a district court’s finding as to whether a defendant’s infringement was “exceptional” within the meaning of the Lanham Act’s fee-shifting provision. See, e.g., Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677, 687 (9th Cir. 2012). We have required that a plaintiff show that a defendant engaged in “malicious, fraudulent, deliberate or willful” infringement. See, e.g., Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1409 (9th Cir. 1993), superseded by statute on other grounds, Trademark Amendments Act of 1999, Pub. L. No. 106-43, 113 Stat. 218.

We interpret the fee-shifting provisions in the Patent Act, 35 U.S.C. § 285, and the Lanham Act in tandem. See Int’l Olympic Comm. v. S.F. Arts & Athletics, 781 F.2d 733, 738-39 (9th Cir.), as amended, 789 F.2d 1319 (9th Cir. 1986), aff'd, 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). The fee-shifting provisions in both acts are “parallel and identical.” Georgia-Pacific Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 720 (4th Cir. 2015), as amended (Apr. 15, 2015). Thus, we rely on an interpretation of the fee-shifting provision in one Act to guide our interpretation of the parallel provision in the other. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (interpreting the Patent Act by relying in part on “the Lanham Act’s identical fee-shifting provision”).

The Supreme Court has recently clarified how courts should analyze fee requests under the Patent Act. The Supreme Court held that a district court analyzing a request for fees under the Patent Act should look to the “totality of the circumstances” to determine if the infringement was exceptional. Octane Fitness, 134 S.Ct. at 1756. The Supreme Court explained that “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. The Court eschewed a “precise rule or formula for making these determinations” and instructed that “equitable discretion should be exercised ‘in light of the considerations we have identified.’ ” Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Specifically, the Court cited 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 (quoting Fogerty, 510 U.S. at 534 n.19, 114 S.Ct. 1023). The Court further clarified that the applicable burden of proof for fee entitlement was the preponderance of the evidence standard and .not proof by “clear and convincing evidence.” Id. at 1758,

In a second decision issued the same day, the Supreme Court held that Courts of Appeal should review a district court’s award of fees under the Patent Act for' abuse of discretion. Highmark Inc. v. All-care Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748-49, 188 L.Ed.2d 829 (2014).

Following these decisions, the Third, Fourth, Fifth, and Sixth Circuits have recognized that Octane Fitness changed the standard for fee-shifting under the Lan-ham Act. Baker v. DeShong, 821 F.3d 620, 621-25 (5th Cir. 2016); Georgia-Pacific Consumer Prods., 781 F.3d at 720-21; Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317-18 (6th Cir. 2015); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313-15 (3d Cir. 2014). Only the Second and Seventh Circuits have applied earlier case law to Lan-ham Act fee disputes, and both did so without mentioning Octane Fitness or Highmark. Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265-66 (2d Cir. 2014); Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 588 (7th Cir. 2015).

We agree with the majority of our sister circuits and conclude that Octane Fitness and Highmark have altered the analysis of fee applications under the Lanham Act, Therefore, district courts analyzing a request for fees under, the Lan-ham Act should examine the “totality of the. circumstances” to determine if the case was exceptional, Octane Fitness, 134 S.Ct. at 1756, exercising equitable discretion in light of the nonexclusive factors identified in Octane Fitness and Fogerty, and using a preponderance of the evidence standard. Pursuant to Highmark, our review of the district court’s - decision on fees -awarded under the Lanham.Act is for abuse of discretion. 134 S.Ct. at 1748-49. We overrate our precedent to the contrary.

With this correction in the law, we return control of the case to the three-judge panel for resolution of the remaining issues presented by the case.

REMANDED.


author: W. FLETCHER, Circuit Judge: LEMELLE, Senior District Judge,

text:
    STARLA ROLLINS, an individual, Plaintiff-Appellant, v. COMMUNITY HOSPITAL OF SAN BERNARDINO, erroneously sued as Dignity Health, DBA Dignity Health Catholic Healthcare West, Defendant, and Service Employees International Union-United Healthcare Workers West (SEIU-UHW), a California union, Defendant-Appellee.
    No. 14-55971
    United States Court of Appeals, Ninth Circuit.
    Argued May 2, 2016
    Filed October 26, 2016

      Douglas N. Silverstein (argued) and Michael Gregory Jacob, Kesluk Silverstein & Jacob P.C., Los Angeles, CA; Janet Gus-dorff, Gusdorff Law P.C., Westlake Village, CA; for Plaintiff-Appellant.
    Monica Guizar (argued), Jacob J. White, and Bruce A. Harland, Weinberg Roger & Rosenfeld, Los Angeles, CA, for Defendant-Appellee.
    Before: WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges, and IVAN L.R. LEMELLE, District Judge.

       The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation.

   Concurrence by Judge LEMELLE

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff-Appellant Starla Rollins appeals the district court’s grant of summary judgment to Defendant SEIU-UHW, Rollins’s former union, on Rollins’s § 301 claim under the Labor Management Relations Act. We agree with Rollins that summary judgment was improperly granted, reverse the district court’s order, and remand for further proceedings consistent with this decision.

I. Background

Plaintiff Rollins worked for the Community Hospital of San Bernardino (“Hospital”) for over twenty years. In 2002, Rollins became a member of the Hospital’s union, Defendant SEIU-UHW (“Union”). Rollins was active in the Union, serving as a member of the bargaining team and as a union steward.

In 2007, Rollins was working as a “Ward Clerk” for the Hospital when she was offered a promotion to become the Maternal Child Health (“MCH”) Billing Coordinator. Rollins was worried that, if she switched jobs and accepted the position, she would lose the seniority she had accrued. Rollins therefore had a union representative negotiate a side agreement (the “Seniority Agreement”) with the Hospital. The 2007 Seniority Agreement provided that, in the event that the MCH Billing Coordinator position was eliminated pursuant to a reduction in force (“RIF”), Rollins would be permitted to “bump” back to her old position as a Ward Clerk. The Seniority Agreement was memorialized in emails between the Hospital’s Director of Human Resources, Elizabeth Sanchez, and Union Representative Jill King.

In 2008, the Hospital and Union agreed to a new Collective Bargaining Agreement (“CBA”). Negotiations for the 2008 CBA were already underway when Sanchez, acting for the hospital, and King, acting for Rollins, entered into the Seniority Agreement. Article 3 of the 2008 CBA provided: “No employee shall suffer any reduction in wages, benefits or other terms and conditions of employment, economic or otherwise, as a result of coverage under this Agreement.” The CBA provided, further, that “[u]pon mutual agreement, the Union and the Employer may agree to an alternative arrangement regarding reduction in force.”

In 2012, the Hospital implemented a reduction in force. The Hospital and the Union entered into a “Memorandum of Understanding” (“MOU”) in order to implement this reduction. The 2012 MOU stated that several positions, including the MCH Billing Coordinator position, were being eliminated pursuant to the RIF. The MOU provided several rights to affected employees, including severance, training opportunities, and an opportunity to bid for other open positions at the Hospital. Importantly for purposes of this case,.the MOU neither prohibited, “bumping” nor eliminated the ‘Ward Clerk” position to which Rollins was allowed to “bump” back pursuant to the Seniority Agreement.

In October 2012, Rollins was informed that she was being laid off under the RIF. Rollins raised with the Union her 2007 Seniority Agreement and right to “bump” back to her old Ward Clerk position. Union Representative Susan (Trockel) Lucio responded “that' the email was not an enforceable agreement and that the Union could not rely on the email to challenge the reduction in force.” Rollins was then terminated without being allowed to “bump” back to her old position. A subsequent class action grievance objecting to the RIF, submitted on behalf of Rollins and several other employees, was rejected by the Union.

Rollins sued both the Hospital and the Union under § 301 of the Labor Management Relations Act. 29 U.S.C. § 185. Rollins alleged that the Hospital’s failure to allow her to “bump” back to her prior Ward Clerk position violated the 2007 Seniority Agreement and the 20Ú8 CBA. She also contended that the Union breached its duty of fair representation by failing to pursue her grievance on this issue. Rollins subsequently settled her suit against the Hospital.

The district court granted summary judgment to the Union. The court concluded that the 2007 Seniority Agreement had once been an enforceable agreement. It nonetheless granted summary judgment to the Union, holding that the agreement was no longer enforceable. According to the district court, the Security Agreement either was inadmissible under the parol evidence rule or was superseded by the 2008 CBA. Alternatively, the district court held summary judgment appropriate because “the Union did not breach its duty of fair representation.” Rollins appeals.

II. Discussion

Rollins has brought a “hybrid fair representation/^ 301 suit” against the Union. Bliesner v. Comm’n Workers of Am., 464 F.3d 910, 913 (9th Cir. 2006); see generally 29 U.S.C. § 185. A.§ 301 claim formally “comprises two causes of action”: (1) a cause of action against the employer for breach of the collective bargaining agreement, and (2) a suit against the union for breach of the union’s duty of fair representation. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A § 301 claim may be brought “against the union, the employer, or both.” Bliesner, 464 F.3d at 913. This appeal involves only Rollins’s claim against the Union, as the Hospital has already settled. To prevail Rollins must show both that (1) the Hospital breached the CBA, and (2) the Union breached its duty of fair representation. See DelCostello, 462 U.S. at 164-65, 103 S.Ct. 2281.

We review the district court’s grant of summary judgment de novo. We construe the disputed facts in favor of Rollins, the nonmoving party. Bliesner, 464 F.3d at 913; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). We conclude that the Seniority Agreement is consistent with the CBA and the MOU, that the Hospital has breached the Seniority Agreement and the CBA, and that triable issues of fact exist as to whether the Union breached its duty of fair representation.

A. Hospital’s Breach of the Seniority Agreement and the CBA

To decide whether the Hospital breached a duty it owed to Rollins, we analyze the interaction of three different documents: (1) the 2007 Seniority Agreement granting Rollins the right to “bump” back to her old position as Ward Clerk, (2) the 2008 CBA between the Hospital and the Union, and (3) the 2012 MOU implementing the RIF.

The parties agree that the Hospital did not permit Rollins to “bump” back to her previous Ward Clerk position. The parties also agree .that the Seniority Agreement was, at one point, a valid and. enforceable agreément. They dispute only whether the Seniority Agreement continued to be valid and enforceable after the adoption of the 2008 CBA, The Union argues . that the Seniority Agreement (1) is inadmissible under the parol evidence rule or (2) was superseded by the 2008 CBA. We disagree.

To prevail on either argument, the Union must show that the Seniority Agreement conflicts with the 2008 CBA or the 2012 MOU. See Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1157-58 (9th Cir. 2000) (noting that the parol evidence rule “operates to bar extrinsic evidence of an agreement inconsistent with an unambiguous writing” (emphasis added)); Espinal v. Nw. Airlines, 90 F.3d 1452, 1458-59 (9th Cir. 1996) (“[A]n individual contract that conflicts with a CBA must be superseded by that CBA.” (emphasis added)); Melanson v. United Air Lines, Inc., 931 F.2d 558, 561 (9th Cir. 1991). The Seniority Agreement conflicts with neither.

First, the Seniority Agreement does not conflict with the 2008 CBA. Indeed, the CBA contemplates and approves of side agreements dealing with RIFs. Article 14, Section E, of the CBA specifically provides that “[u]pon mutual agreement, the Union and the Employer may agree to an. alternative arrangement regarding reduction in force.” The Seniority Agreement is such an “alternative arrangement regarding reduction in force,” providing that Rollins will be “allow[ed] ... to bump into the Ward Clerk position in the MCH cluster in the event of a RIF.”

Second, the Seniority Agreement does not conflict with the 2012 MOU. The MOU states that, pursuant to a RIF, the “Billing Coordinator” position in the Maternal Child Health Department was eliminated. Rather than conflicting with the MOU, the Seniority Agreement contemplates the possibility of such an MOU. That is, the Seniority Agreement contemplates the possibility of the MCH Billing Coordinator position being eliminated in a RIF, and it provides what should happen in that event. The Seniority Agreement specifically provides that “[i]n [the] event this position [MCH Billing Coordinator] is eliminated it will be able [to] bump to a Ward Clerk (Clerk II) in the MCH Cluster.” Far from being inconsistent with the Seniority Agreement, the MOU is the condition precedent (elimination of the MCH Billing Coordinator position) that triggers the operation of the Seniority Agreement.

Finally, the Union also appears to argue that Rollins cannot prevail because, even if she can show a breach of the Seniority Agreement, she has not shown a breach of the CBA. Rollins has shown a breach of both. The Labor Management Relations Act applies broadly to “contracts between an employer and a labor organization representing employees,” not exclusively to collective bargaining agreements. 29 U.S.C. § 185(a). The Seniority Agreement falls within § 185(a) as a contract negotiated between the Hospital (an employer) and the Union (a labor organization). The Seniority Agreement is also a part of the CBA. See Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d 1075, 1079 (9th Cir. 2002), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (“[A] collective bargaining agreement is not limited solely to the specific provisions of the basic labor contract formally executed by the parties, but it may also include, among other things, written side agreements and oral understandings entered into by the parties to the collective bargaining relationship”).

B. Union’s Breach of the Duty of Fair Representation

While Rollins has demonstrated a violation of a “contract[] between an employer and a labor organization representing employees,” 29 U.S.C. § 185(a), her § 301 claim against the Union can prevail only if she also shows a “breach of the union’s duty of fair representation.” DelCostello, 462 U.S. at 164, 103 S.Ct. 2281; see Bliesner, 464 F.3d at 913-14. “A union breaches its duty of fair representation when its ‘conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.’” Beck v. United Food & Commercial Workers Union, Local 99, 506 F.3d 874, 879 (9th Cir. 2007) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). Rollins contends that the Union’s handling of her Seniority Agreement grievance was “arbitrary” because it failed to investigate adequately. “A union acts ‘arbitrarily’ when it simply ignores a meritorious grievance or handles it in a perfunctory manner.” Peterson v. Kennedy, 771 F.2d 1244, 1253-54 (9th Cir. 1985) (citing Vaca, 386 U.S. at 191, 87 S.Ct. 903). In order to avoid breaching the duty of fair representation, a Union must “conduct a ‘minimal investigation’ of a grievance that is brought to its attention.” Id. at 1254 (citing Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir. 1982)).

Rollins has submitted enough evidence that the Union processed her grievance “in a perfunctory manner” to allow her to survive the Union’s motion for summary judgment. Peterson, 771 F.2d at 1254. Considering the evidence in the light most favorable to Rollins, we reach this conclusion for three reasons.

First, the Union never seriously considered Rollins’s rights under the Seniority Agreement. A class action grievance was filed by Union Representative Ozier on behalf of Rollins and several other Hospital employees, but it was a general challenge to the RIF. It did not specifically challenge the Hospital’s failure to honor Rollins’s Seniority Agreement. The Union Appeal Panel, the appellate body that reviewed the denial of the class action grievance, does not appear to have “deliberated” the Security Agreement. Cf. Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000). The record suggests that the documents sent to the panel did not include the Seniority Agreement. Rollins was present at the Union Appeal Panel’s hearing, but she stated that she did not present the Security Agreement or make any arguments related to it. Although Ozier testified in her deposition that she thought the Seniority Agreement was provided to the panel, she stated that she could not recall for sure.

Second, the Union improperly lumped Rollins with other, non-similarly situated employees. Because Rollins was the beneficiary of a Seniority Agreement providing her an additional right (the right to “bump” back to her old position), she was differently situated from other employees terminated during the RIF. The class action grievance does not appear to have raised the issue of Rollins’s Seniority Agreement. We have previously recognized that a union has “acted arbitrarily where it failed to ... consider individually the grievances of particular employees where the factual and legal differences among them were significant.” Peterson, 771 F.2d at 1254 (citing Gregg v. Chauffeurs, Teamsters & Helpers Union Local 150, 699 F.2d 1015, 1016 (9th Cir. 1983)).

Third, the Union provided factually contested reasons for rejecting Rollins’s grievance. Although we will “not question whether the [Union’s] reasoning” for rejecting a grievance “was faulty or not,” Peters v. Burlington N. R. Co., 931 F.2d 534, 540 (9th Cir. 1990), when a grievance is “important and meritorious” a union must provide a “more substantial [] reason” for abandoning it. Gregg, 699 F.2d at 1016 (noting that the “merits of the grievance” are “relevant to the sufficiency of the union’s representation”); see also Peters, 931 F.2d at 540 (noting that, when evaluating whether a union acted arbitrarily, a' court must “evaluate the strength of the employee’s grievance”). As explained above, Rollins has shown a breach of the Seniority Agreement and the CBA by the Hospital, thereby demonstrating that she had an important and meritorious grievance. The Union therefore needed to provide a “more substantial” reason for failing to pursue her claim.

Union Representative Lucio stated during an October 2012 meeting that the Seniority Agreement “was not an enforceable agreement.” Lucio, however, did not explain why she believed that this was so. The Union’s Director of Representational Excellence, Marcus Hatcher, claimed to have reviewed the Seniority Agreement. But he asserted that the Seniority Agreement was “not relevant to the MOU” and unenforceable because “it can’t supersede a contract.” There are two problems with Hatcher’s reasoning. First, as explained above, the Seniority Agreement was neither inconsistent with, nor superseded by, the 2008 CBA. See Espinal, 90 F.3d at 1458-59; Melanson, 931 F.2d at 561. Second, Hatcher’s statement conflicts with the Union’s longstanding practice of negotiating individual side agreements for employees, consistent with the CBA. According to the Director of Human Resources Elizabeth Sanchez (who negotiated the Seniority Agreement on behalf of the Hospital), the Hospital “typically reached agreements pertaining to single employees that were not expressly referenced in the CBA.” An employee of the Union, John Borsos, confirmed that the Union “regularly [entered into] side letters or agreements that were not expressly referenced in the CBA.” According to Borsos, it was the Union’s “standard practice” to enter into these side agreements.

Finally, Ozier testified that, during a December 2012 meeting between the Hospital and Union, an unidentified person told her that the Seniority Agreement emails “appeared [to be] cut-and-paste and therefore [were] not going to be acknowledged.” If the Union had doubts about the authenticity of the emails that constituted the Seniority Agreement, it could easily have investigated arid determined the truth of the matter. Union Representative Jill King, who negotiated the agreement on Rollins’s behalf, stated that the agreement was “appropriately maintained and preserved” in the Union’s own files,’ and the Agreement was negotiated using official Union and Hospital email addresses. Further, the two people who negotiated the Seniority Agreement—King and Sanchez—submitted declarations stating that, if- asked, they would have confirmed the authenticity of the Seniority Agreement. Although a union can legitimately decline to pursue a grievance on authenticity grounds, the Union’s decision to dismiss the Seniority Agreement on that ground without any investigation, if proven at trial, would support Rollins’s argument that the Union acted arbitrarily. See Tenorio, 680 F.2d at 601 (“To comply with its duty, a union must conduct some minimal investigation of grievances brought to its attention.”).

We recognize that Rollins has the heavy burden of showing that the Union’s handling of her claim under the Seniority Agreement was arbitrary. See Beck, 506 F.3d at 879. Unions maintain “wide discretion to act in what they perceive to be their members’ best interests,” and we “accord substantial deference” to the Union’s decision not to pursue Rollins’s Seniority Agreement claim. Peterson, 771 F.2d at 1253 (citation omitted). At the same time, there is ample evidence to support a contrary conclusion—that the Union acted improperly by (1) failing to put Rollins’s claim through the Union’s own formal mechanisms for reviewing the merits of grievances, (2) improperly including Rollins in a class action grievance that did not raise her specific claim, and (3) providing weak or invalid justifications for rejecting Rollins’s claim. A jury that resolves the factual disputes in Rollins’s favor could find that the Union’s treatment of Rollins’s rights under the Seniority Agreement was “perfunctory” at best, and therefore “arbitrary.” Peterson, 771 F.2d at 1254.

Conclusion

We conclude that Rollins' presented sufficient evidence to counter the Union’s motion for summary judgment on her hybrid claim. We conclude that Rollins has shown a violation of the Security Agreement and the CBA. We also conclude that, if Rollins’s evidence is believed, she has shown a violation of the Union’s duty of fair representation. We therefore reverse the district court’s order granting summary judgment to the Union and remand for further proceedings.

REVERSED and REMANDED.

LEMELLE, Senior District Judge,

concurring:

I concur with the majority opinion to reverse the decision granting defendant’s motion for summary judgment. Nonetheless, it is the role of the factfinder and not this Court to decide the relationship between Rollins’s Seniority Agreement (“SA”) and the Collective Bargaining Agreement (“CBA”). The majority opinion only leaves to the jury the question of whether the Union breached its duty of representation. The factfinder should also be tasked with determining whether or not the SA should remain in effect after the negotiation of the CBA.

The relationship between the SA and CBA is less clear than the majority conveys. A jury could determine whether Rollins, who was present for negotiations of the CBA, would be entitled to have the benefits of a previous agreement considered at all without explicitly incorporating them in the subsequent agreement. The SA should be interpreted through the introduction of parol evidence, weighed by the jury in order to resolve this factual inquiry.

When reviewing similar contracts in the past, this Court has permitted the use of parol evidence. In Cappa, this Court éx-plained a CBA that was not fully integrated and recognized the existence of other agreements, like the- one at issue in the present matter, was “far from being an unambiguous instrument” and therefore allowed parol evidence of an oral agreement to vary the terms of the CBA. Cappa v. Wiseman, 469 F.Supp. 437, 440 (N.D. Cal. 1979), aff'd, 659 F.2d 957 (9th Cir. 1981) (“In light of these principles, and because the Agreement is far from being an unambiguous instrument, the terms of which are sufficient unto themselves, it is appropriate to consider parol evidence to determine the parties’ intent and interpretation of the contract terms.”). Respectfully, this Court should not summarily decide the relationship between the SA and the CBA. The parties who entered into the SA and the CBA should be given a chance to litigate the intended relationship between the two contracts using parol evidence.


author: N.R. SMITH, Circuit Judge:

text:
    IN RE Marcella Lee BARKER, aka Marci Barker, aka Marci Yanni Barker, Debtor, Spokane Law Enforcement Federal Credit Union, Appellant, v. Marcella Lee Barker; Robert Drummond, Chapter 13 Trustee; Ocwen Loan Servicing, LLC, Appellees.
    No. 14-60028
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 3, 2016, Seattle, Washington
    Filed October 27, 2016

      Quentin M. Rhoades (argued) and Francesca di Stefano, Sullivan Tabaracci & Rhoades P.C., Missoula, Montana, for Appellant.
    Robert Drummond (argued), Great Falls, Montana; Kraig C. Kazda, Kazda Law Firm P.C., Great Falls, Montana; for Appellees.
    Before: WILLIAM A. FLETCHER, RONALD M. GOULD, and N. RANDY SMITH, Circuit Judges.
   OPINION

N.R. SMITH, Circuit Judge:

If a creditor wishes to participate in the distribution of a debtor’s assets under a Chapter 13 plan, it must file a timely proof of claim. The debtor’s acknowledgment of debt owed to the creditor in a bankruptcy schedule does not relieve the creditor of this affirmative duty.

BACKGROUND FACTS

On September 6, 2012, debtor Marcella Lee Barker filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Montana. Later that day, in response to the filed petition, the bankruptcy court issued an Official Form B9I, titled “Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines” (“Notice”). The Notice stated that the deadline for creditors to file a proof of claim was January 8, 2013. On September 8, 2012, the Bankruptcy Noticing Center sent the Notice to the Appellee, Spokane Law Enforcement Federal Credit Union (“Credit Union”), by first class mail. On September 19, 2012, Barker timely filed her Chapter 13 plan with the bankruptcy court. According to her attached certificate of mailing filed with the court, the plan was also sent to the Credit Union that day via first class mail.

On September 19, 2012, Barker also properly filed schedules of her assets and liabilities. In these schedules, Barker listed the Credit Union as a secured creditor holding a $6,646.00 purchase money security interest in a 2004 Ford F-150. Barker also listed the Credit Union as an unsecured creditor holding a $47,402.00 claim that had previously been secured by an unidentified automobile, which Barker’s ex-husband had sold.

Barker moved to amend and modify the Chapter 13 plan several times over the next few months. Each time such a motion was filed, Barker sent a notice to the Credit Union. In addition, each time the bankruptcy court entered an order confirming the amended plan, the Bankruptcy Noticing Center notified the Credit Union.

On May 30,2013, more than four months after the deadline to file a proof of claim expired, the Credit Union filed three claims with the bankruptcy court: a secured claim for $5,490.78 and unsecured claims for $28,293.94 and $24,587.47. In accordance with the Local Bankruptcy Rules for the United States Bankruptcy Court for the District of Montana, the Trustee sent a “Notice of Late Filed Claims” to the Credit Union on June 7, 2013. On June 10, 2013, the Credit Union requested a hearing “to contest the tardy response.” In this request, the Credit Union asserted that the claims were belated, because a “disgruntled employee” failed to timely file the claim. On July 31, 2013, the Credit Union filed a formal motion with the bankruptcy court requesting the court to allow -the three claims. The court held a hearing on the matter on August 2, 2013. The court denied the Credit Union’s motion and disallowed the claims because the proofs of claims were not timely filed.

On August 12, 2013, the Credit Union filed a notice of appeal with the bankruptcy court, and the appeal was taken to the Ninth Circuit Bankruptcy Appellate Panel (“BAP”). On March 28, 2014, the BAP affirmed the bankruptcy court’s decision to disallow the late filed claims. On April 24, 2014, the Credit Union filed a timely notice of appeal to this court.

STANDARD OF REVIEW

“Whether a claim may be disallowed in a bankruptcy proceeding on the ground that the proof of claim was not timely filed pursuant to Rule 3002(c), Fed. R.Bankr.P., is a question of law subject to de novo review.” IRS v. Osborne (In re Osborne), 76 F.3d 306, 307 (9th Cir. 1996) (italics omitted). Whether the Credit Union has asserted an informal proof of claim is also a question of law subject to de novo review. See Wright v. Holm (In re Holm), 931 F.2d 620, 622 (9th Cir. 1991).

DISCUSSION

In order to fully understand the intricacies of the legal questions presented in this case, a short summary of Chapter 13 bankruptcy proceedings is helpful.

A petition filed under Chapter 13 helps overextended debtors reorganize their debt—while allowing them to keep their assets—by using “current and future income to repay creditors in part, or in whole, over the course of a thre'e-to five-year period.” HSBC Bank USA, Nat’l Ass’n v. Blendheim (In re Blendheim), 803 F.3d 477, 485 (9th Cir. 2015). A Chapter 13 case begins, like all other bankruptcy cases, “with the filing of a petition and the creation of an estate, which comprises the debtors’ legal and equitable interests in property.” Id. at 484 (citing 11 U.S.C. § 541; Fed. R. Bankr. P. 1002(a)). As soon as a debtor files a bankruptcy petition, all entities are immediately prohibited from further pursuing collection efforts against the debtor or the debtor’s estate. Id. (citing 11 U.S.C. § 362). Along with the petition, a debtor must also file a schedule of assets and liabilities and a statement of financial affairs. Fed. R. Bankr. P. 1007(b)(1).

In order to collect a debt from a debtor filing a Chapter 13 bankruptcy petition, an unsecured creditor must file a valid “proof of claim,” which has gone through the “allowance process set forth in 11 U.S.C. § 502.” In re Blendheim, 803 F.3d at 484-85. A secured creditor, who wishes to receive distributions under a Chapter 13 plan, must also file a valid proof of claim. See id. at 485; see also Schlegel v. Billingslea (In re Schlegel), 526 B.R. 333, 342-43 (9th Cir. BAP 2015). However, a secured creditor, who does not wish to participate in a Chapter 13 plan or who fails to file a timely proof of claim, does not forfeit its lien. In re Blendheim, 803 F.3d at. 485 (“A creditor with a lien on a debtor’s property may generally ignore the bankruptcy proceedings and decline to file a claim without imperiling his lien, secure in the in rem right that the lien guarantees him under non-bankruptcy law: the right of foreclosure.”).

A bankruptcy court may disallow a claim for many reasons, including if the proof of claim was untimely. 11 U.S.C. § 502(b)(9); In re Blendheim, 803 F.3d at 485. In order for a proof of claim to be timely, a creditor generally must file it within “90 days after the first date set for the meeting of creditors.” Fed. R. Bankr. P. 3002(c). If a creditor fails to file a timely proof of claim, a debtor or trustee may file a claim on the creditor’s behalf within thirty days after the creditor’s ninety-day clock has expired. Fed. R. Bankr. P. 3004.

The Credit Union admits that it filed its proofs of claims late. Thus, the bankruptcy court properly rejected the claims. However, it argues that the bankruptcy court still should have allowed it to participate in the Chapter 13 plan, because Barker listed the debt she owed the Credit Union in her bankruptcy schedules. We disagree.

The Federal Rules of Bankruptcy Procedure clearly provide that, in the Chapter 13 context, “[a]n unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed.” Fed. R. Bankr. P. 3002(a) (emphasis added). The Ninth Circuit has made it clear that this straightforward language should be given its “plain meaning” and enforced accordingly. Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1148 (9th Cir. 2000). In addition, “in a highly statutory area such as bankruptcy,” the Ninth Circuit prescribes “[cjlose adherence to the text of the relevant statutory provisions.” Id. (“[I]n a Chapter 13 proceeding: ‘Where the statutory language is clear, our “sole function ... is to enforce it according to its terms.”’”) (quoting Rake v. Wade, 508 U.S. 464, 471, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993)). A plain reading of the applicable statutes and rules places a burden on each Chapter 13 creditor to file a timely proof of claim. A claim will not be allowed if this burden is not satisfied.

There is other evidence, besides the plain language of the statute, that indicates Congress intended to place such a burden on the creditor. Specifically, a creditor in the Chapter 11 context is not always required to file a proof of claim. Varela v. Dynamic Brokers, Inc. (In re Dynamic Brokers, Inc.), 293 B.R. 489, 495 (9th Cir. BAP 2003). Both the Federal Rules of Bankruptcy Procedure and the federal statutes governing Chapter 11 bankruptcy make clear that “in chapter 11 cases ‘it shall not be necessary for a creditor’ to file a proof of claim unless the claim is either not scheduled or is scheduled as disputed, contingent or unliquidated.” Id.; Fed. R. Bankr. P. 3003(c)(2); 11 U.S.C. § 1111(a). Similar language (relieving a creditor of the burden of filing a proof of claim if the debtor has scheduled the claim) is absent from the rules and statutes governing Chapter 13 bankruptcy. This purposeful omission indicates Congress’s intent to require all creditors wishing to enforce their claims to file a proof of claim in the Chapter 13 context. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[Wjhere 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.”) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).

Bankruptcy schedules serve multiple purposes independent of a proof of claim and are as vital to the bankruptcy plan as the proof of claim. Bankruptcy courts use debtors’ schedules to determine whether debtors are eligible for the particular relief they seek. Guastella v. Hampton (In re Guastella), 341 B.R. 908, 918 (9th Cir. BAP 2006) (“The debtors’ schedules should be the starting point to a determination of the debtor’s aggregate debts. ... However, the schedules are not dispositive. If the debtors’ schedules were dispositive, then eligibility could be created by improper or incomplete scheduling of creditors.” (omission in original) (quoting Quintana v. IRS (In re Quintana), 107 B.R. 234, 238-39 n.6 (9th Cir. BAP 1989), aff'd, 915 F.2d 513 (9th Cir. 1990)). Creditors also “rel[y] on the schedules to determine what action, if any, they [will] take in the matter.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 785 (9th Cir. 2001). A creditor may chose not to pursue a claim after evaluating all of a Chapter 13 debtor’s debts and the proposed repayment plan. Perry v. Certificate Holders of Thrift Sav., 320 F.2d 584, 589 (9th Cir. 1963) (“There are many cases where creditors, although listed on the books of a bankrupt as such, will not be able to participate on an equal basis with other general creditors.”). The proof of claim plays the important role of “alert[ing] the court, trustee, and other creditors, as well as the debtor, to claims against the estate,” and the creditor’s intention to enforce the claims. In re Daystar of Cal., Inc., 122 B.R. 406, 408 (Bankr. C.D. Cal. 1990); see also Adair v. Sherman, 230 F.3d 890, 896 (7th Cir. 2000). Simply put, “[t]he requirement that creditors be scheduled is not a substitute for the further provision ... that creditors’ claims be proved.” Perry, 320 F.2d at 589.

A variety of courts have disallowed creditors’ late filed claims despite the fact that they were listed on the debt- or’s bankruptcy schedules. See, e.g., Bowden v. Structured Invs. Co. (In re Bowden), 315 B.R. 903, 907 (Bankr. W.D. Wash. 2004); In re Greenig, 152 F.3d 631, 632-34 (7th Cir. 1998) (disallowing late filed claim even though debtor listed the debt in a bankruptcy schedule and the bankruptcy court confirmed the debtor’s reorganization plan, which included the debt at issue). We agree with these courts. In a Chapter 13 case, a creditor must file a timely proof of claim in order to participate in the distribution of the debtor’s assets, even if the debt was listed in the debtor’s bankruptcy schedules.

I. Whether or not Barker’s listing of debt owed to the Credit Union was a judicial admission, it is not sufficient to meet the Credit Union’s burden of affirmatively filing a timely proof of claim.

The Credit Union argues first that, under the doctrine of judicial admissions, Barker must pay all the debts she listed in her bankruptcy schedules. The Ninth Circuit has acknowledged the doctrine of judicial admissions. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). “Judicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Id. (quoting Dery v. Gen. Motors Corp. (In re Fordson Eng’g Corp.), 25 B.R. 506, 509 (Bankr. E.D. Mich. 1982)).. Judicial admissions are “conclusively binding on the party who made them.” Id.

Although we have acknowledged this doctrine, we have never declared that a bankruptcy schedule constitutes the “formal admission” required for the application of the doctrine. We need not reach this question here either. As outlined above, a creditor who wishes to participate in a Chapter 13 plan has an affirmative duty to file a proof of claim. A debtor’s acknowledgment of debt in a bankruptcy schedule—whether or not that is a judicial admission—does not satisfy this affirmative duty. Congress chose to require Chapter 13 creditors to file proofs of claims that demonstrate their intent to enforce their claims; a judicial admission by a debtor does not fulfill this strict requirement or its purpose.

II. Barker’s listing of debt owed to the Credit Union in her bankruptcy schedules does not constitute an informal proof of claim.

Creditors, failing to file a timely formal proof of claim, often assert that an informal proof of claim can function to establish the creditor’s claims. See Cty. of Napa v. Franciscan Vineyards, Inc. (In re Franciscan Vineyards, Inc.), 597 F.2d 181, 183 (9th Cir. 1979). The Ninth Circuit has two requirements for a document to qualify as an informal proof of claim: (1) the document “must state an explicit demand showing the nature and amount of the claim against the estate,” and (2) the document must “evidence an intent to hold the debtor liable.” Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Rests., Inc.), 754 F.2d 811, 815 (9th Cir. 1985). Examples of an informal proof of claim are “demands against the estate” or “correspondence between a creditor and the trustee or debtor-in-possession which demonstrate an intent on the part of the creditor to assert a claim against the bankruptcy estate.” Sullivan v. Town & Country Home Nursing Servs., Inc. (In re Town & Country Home Nursing Servs., Inc.), 963 F.2d 1146, 1153 (9th Cir. 1991).

The Credit Union argues that Barker’s listing of debt she owed to the Credit Union in her bankruptcy schedules constitutes an informal proof of claim, which is sufficient to preserve its claims. More specifically, the Credit Union asserts that there is no requirement that the writing establishing the informal proof of claim must come from the creditor.

The Credit Union’s argument ignores the explicit requirement that the creditor must somehow demonstrate its intent to hold the debtor liable. As explained above, the filing of a proof of claim (which evidences the creditor’s decision to hold the debtor liable) plays an important role in Chapter 13 bankruptcy proceedings. This function applies equally to an informal proof of claim. In order to establish an informal proof of claim, a creditor must have taken some affirmative action to assert its claim within the statutorily prescribed time frame. In re Bowden, 315 B.R. at 907 (rejecting argument that debt- or’s schedules alone suffice to establish an informal proof of claim). The Credit Union has failed to cite any legal authority that has held that a debtor’s bankruptcy schedules alone qualify as an informal proof of claim. Moreover, in all of the cases the Credit Union cites in support of its position, the creditors took some sort of affirmative action to demonstrate their intent to enforce their claims prior to the filing deadline. See, e.g., Fyne v. Atlas Supply Co., 245 F.2d 107, 108 (4th Cir. 1957) (“We agree that mere knowledge on the part of the trustee or of the referee in bankruptcy as to the existence of a claim is not sufficient basis for allowing the filing of an amended claim nor is the listing of the claim in the bankrupt’s schedules sufficient. Here, however, there is much more than this.”); Scottsville Nat’l Bank v. Gilmer (In re Pitts), 37 F.2d 227, 229 (4th Cir. 1930) (allowing late filed claim where “the trustee conferred with the officers and the attorney for the bank frequently with regard to matters connected with the estate”); Clapp v. Norwest Bank Hastings, N.A. (In re Clapp), 57 B.R. 921, 924 (Bankr. D. Minn. 1986) (allowing late filed claim where creditor “clearly and frequently asserted its intention to pursue its claim” in letters to the debtor’s attorney and in interactions with the court).

Barker’s bankruptcy schedules simply do not meet either of the prongs required to establish an informal proof of claim. The Barker-drafted documents are not an explicit demand and do not demonstrate the Credit Union’s intent to hold Barker liable for the listed debt. Accordingly, we affirm the bankruptcy court’s conclusion that the informal proof of claim doctrine does not apply in this case.

III. Barker’s listing of debt owed to the Credit Union in her bankruptcy schedules does not constitute a debtor’s proof of claim.

Federal Rule, of Bankruptcy Procedure 3004 and 11 Ü.S.C. § 501(c) provide that, if a creditor does not file a timely proof of claim, the debtor or trustee may file a proof of claim for the creditor. The Bankruptcy Rules specifically require that the debtor’s proof of claim be filed in the thirty day period immediately following the creditors’ deadline to file their proofs of claims. Fed. R. Bankr. P. 3004. In this case, the Credit Union’s deadline to file was January 8, 2013. Therefore, Barker, or the Trustee, had from January 9, 2013, until February 7, 2013, to file a proof of claim on behalf of any creditors.

The Credit Union argues that Barker’s bankruptcy schedules constitute a debtor’s proof of claim. This argument is not'persuasive. First, the bankruptcy schedules (acknowledging the debt at issue) were not filed within the applicable thirty-day time frame. Thus, just considering the issue of timing, Barker’s bankruptcy schedules do not meet the requirements of Rule 3004.

Timing aside, Barker’s bankruptcy schedules do not qualify as a debtor’s proof of claim. Congress adopted Rule 3004 in addition to the Rules requiring Chapter 13 debtors to file schedules of their assets and liabilities. Therefore, Rule 3004 requires that debtors make an additional showing of their desire to include an unasserted claim in their Chapter 13 plan after receiving notice of which creditors intend to enforce their claims. Barker never made this additional showing. Therefore, the filing requirements of Rule 3004 have not been satisfied, and Barker’s bankruptcy schedules do not constitute a debtor’s proof of claim.

IV. The principles of equity do not permit the bankruptcy court to retroactively extend the deadline for the Credit Union to file its proofs of claims.

Finally, the Credit Union argues that equity favors allowing its claims. Specifically, the Credit Union.argues that, if its claims- are not allowed, it will suffer a severe loss while the other creditors receive an undeserved windfall. While this may be true, the Ninth Circuit has repeatedly held that the deadline to file a proof of claim in a Chapter 13 proceeding is “rigid,” and the bankruptcy court lacks equitable power, to extend this deadline after the fact. In re Gardenhire, 209. F.3d at 1148 (“Our precedents support the conclusion that a bankruptcy court lacks equitable discretion to enlarge the time to file proofs of claim; rather, it may only enlarge the filing time pursuant to the exceptions set forth in the Bankruptcy Code and Rules.”); In re Osborne, 76 F.3d at 308; Zidell, Inc. v. Forsch (In re Coastal Alas ka Lines, Inc.), 920 F.2d 1428, 1431-33 (9th Cir. 1990); Ledlin v. United States (In re Tomlan), 102 B.R. 790, 792, 796 (E.D. Wash. 1989), aff'd, 907 F.2d 114 (9th Cir. 1990).

Further, allowing the bankruptcy court to retroactively extend the deadline in this ease would thwart the purpose of Chapter 13:

The purpose of Chapter 13 is ‘to serve as a flexible vehicle for the repayment of part or all of the allowed claims of the debtor.’ (Emphasis added.) Sen. Rept. No. 95-989, Pub.L. 95-598, 92 Stat. 2549, 95th Cong., 2d Sess. (1978), p. 141, reprinted in U.S. Code Cong. & Admin. News 1978 at 5787, 5927. In order to effectuate this purpose, it is essential that all unsecured creditors seeking payment under the plan file a proof of claim. A date certain for such filings is crucial to the ability to determine the full extent of the debts and evaluate the efficacy of the plan in light of the debtor’s assets and foreseeable future earnings.

In re Tomlan, 102 B.R. at 792 (alteration in original). Barker’s Chapter 13 plan will only be successful if she and the Trustee “know, early on, what claims must be paid.” Id. at 794 (quoting In re Goodwin, 58 B.R. 75, 77 (Bankr. D. Me. 1986)). Barker will not get the “fresh start” she seeks if creditors are continually allowed to add additional claims far after the deadline to file has expired. Id. (quoting In re Goodwin, 58 B.R. at 77).

CONCLUSION

In order to participate in distributions of Barker’s assets under her Chapter 13 plan, the Credit Union was required to file a proof of claim by the prescribed deadline. Because the Credit Union’s proof of claims were untimely, the bankruptcy court properly rejected them.

AFFIRMED.

      . As noted in the Notice, a different deadline applies to a proof of claim filed by a "governmental unit.” See Fed. R, Bankr. P. 3002(c)(1). This alternative deadline is not relevant in this case as Appellee is not a governmental unit.

      . A Chapter 13 debtor must file a Chapter 13 plan within fourteen days after filing a Chapter 13 petition. Fed. R. Bankr. P. 3015(b).

      . In 2012, the Federal Rules of Bankruptcy Procedure required Chapter 13 debtors to list their assets and liabilities on Official Form B6, and its subparts. See Fed. R. Bankr. P. 9009. On December 1, 2015, Official Form B6 was replaced by Official Form B 106. 6 West's Fed. Forms, Bankruptcy Courts § 1:20 (4th ed.).

      . The copies of the proofs of claims submitted in the excerpts of record appear to assert two unsecured claims for $28,293.94 and $24,587,47, These numbers are inconsistent with the Appellant's brief which list the amount of the unsecured claims as $28,293.84 and $24,597.47.

      .Rule 3002-1 of the Local Bankruptcy Rules for the United States Bankruptcy Court for the District of Montana provides as follows:
      Late filed proofs of claim in Chapter 12 or 13 cases shall be deemed disallowed, without need for formal objection by the trustee or a hearing, if the trustee sends a notice to the late filing creditor using Mont. LBF 21. If a creditor files a response and requests a hearing within thirty (30) days of the date of the notice, then the creditor shall notice the contested matter for hearing pursuant to Mont, LBR 9013-1- If the creditor fails to file a written response to the objection to the late filed claim within thirty (30) days of the date of the notice provided by Mont. LBF 21, the failure to respond shall be deemed an admission that the objection should be sustained by the Court without further notice or hearing. .,

      . There are a handful of exceptions to the deadline for filing proofs of claims, none of which apply here.