source: Caselaw Access Project

license: Public Domain

text:
    MAKO COMMUNICATIONS, LLC, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Free Access & Broadcast Telemedia, LLC, Intervenor
    No. 15-1264
    Consolidated with 15-1280
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 5, 2016
    Decided August 30, 2016

      R. Scott Caulkins, Arlington, VA, argued the cause for petitioners. With him on the briefs were Aaron P. Shainis, Lee J. Peltz-man, Washington, DC, and W. James Mac Naughton, Newton, NJ.
    Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, argued the cause for respondents. With him On the brief were William J. Baer, Assistant Attorney General, U.S. Department of Justice, Robert J. Wiggers and Kristen C. Limarzi, Attorneys, Jonathan B. Sallet, General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and Thaila K. Sundaresan, Counsel. Robert B. Nicholson, Attorney, U.S. Départment of Justice, Richard K. Welch, Deputy Associate General Counsel, Federal Communications Commission, and Scott M. Noveck, Counsel, entered appearances.
    Before: GRIFFITH and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   Opinion for the Court filed by Circuit Judge SRINIVASAN.

In 2012, Congress enacted the Spectrum Act. The Act responds to the rapidly growing demand for mobile broadband services by granting the Federal Communications Commission authority to reallocate a portion of the licensed airwaves from television broadcasters to mobile broadband providers. The Act contemplates the re-purposing of licensed spectrum through a multi-step auction process. Broadcasters can offer to relinquish existing spectrum rights for a price, and other parties (including wireless providers) can bid to purchase the newly available spectrum. The Act also enables the Commission to make airwaves available by reassigning broadcasters to a smaller band of spectrum through a process called “repacking.” This Court has upheld the Commission’s rules for the auction and repacking process against a challenge brought by the television broadcast industry. Nat’l Ass’n of Broad. v. FCC, 789 F.3d 165 (D.C. Cir. 2015).

This case involves a further challenge to the Commission’s implementation of the Spectrum Act brought by a particular species of broadcasters — low-power television (LPTV) stations. LPTV stations often serve areas not reached by full-power broadcast stations and can carry niche programming catered to particular local communities. LPTV stations have always had secondary status relative to primary services such as full-power stations, meaning that, if an LPTV station’s transmissions interfere with a primary service, the LPTV station must either eliminate the interference or cease operations.

In implementing the Spectrum Act, the Commission gave no protection to LPTV stations in connection with the reallocation of licensed spectrum as part of the auction and repacking process. The Commission understands the Spectrum Act to call for such protections only with regard to primary services, and in the Commission’s view, extending those protections to LPTV stations would unduly impair the agency’s ability to make an adequate amount of spectrum available for mobile broadband providers. The result is that many LPTV stations may be displaced or forced to shut down.

In this case, petitioners Mako Communications and Beach TV, on behalf of LPTV stations, challenge the Commission’s denial of protections to LPTV stations in the auction and repacking process. According to petitioners, the Commission’s actions in that regard violate the Spectrum Act. We deny the petitions for review and sustain the Commission’s orders.

I.

The Spectrum Act, enacted as Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, responded to “the changing needs of American consumers,” in particular, the “growing need for spectrum” for wireless networks. Nat’l Ass’n of Broad., 789 F.3d at 168-69. The Act sets out a three-part process administered by the Federal Communications Commission to promote the reallocation of licensed spectrum from broadcast television to mobile broadband: (i) a reverse auction to determine the price at which television broadcasters would sell their spectrum rights; (ii) a repacking process in which the Commission reassigns television broadcasters who retain their spectrum rights to a smaller band of spectrum; and (iii) a forward auction in which other users including mobile broadband providers can bid for the newly available spectrum. See id. In 2014, the Commission adopted rules to implement the auction process. See In the Matter of Expanding the Economic & Innovation Opportunities of Spectrum Through Incentive Auctions, 29 FCC Red. 6567 (May 15, 2014) (the “Order”).

This case principally involves the repacking process, and, in particular, the implications of that process for LPTV stations. The statutory framework governing the repacking process is set out in 47 U.S.C. § 1452. That provision grants the Commission general authority to “make such reassignments of television channels as the Commission considers appropriate” and to “reallocate such portions of such spectrum afe the Commission determines are available for reallocation.” 47 U.S.C. § 1452(b)(1).- That general grant of repacking power to the Commission is subject to two statutory constraints.

First, under subsection (b)(2), the Commission must “make all reasonable efforts to preserve ... the coverage area and population served of each broadcast television licensee.” Id. § 1452(b)(2). The statute defines a “broadcast television licensee” fitting within the protections of that provision as a “full-power television station” or a “low-power television station that has been accorded primary status as a Class A television licensee.” Id. § 1401(6). LPTV stations lacking a Class A license and thus having secondary (rather than primary) status — i.e., the general category of LPTV stations — fall outside the definition of “broadcast television licensee.” As a result, the Commission determined, “[protection of LPTV ... stations in the repacking process is not mandated by” subsection (b)(2). Order ¶ 238.

Unlike subsection (b)(2), the second statutory constraint on the Commission’s repacking power expressly pertains to LPTV stations. That constraint, set out in subsection (b)(5), is the principal one at issue in this case. It states that “[njothing in [Section 1452(b) ] shall be construed to alter the spectrum usage rights of low-power television stations.” 47 U.S.C. § 1452(b)(5).' The Commission found that subsection (b)(5) does not compel according special protection to LPTV stations against displacement as part of the repacking process. The Commission explained that non-protection of LPTV stations “does not ‘alter’ their spectrum usage rights” within the meaning of subsection (b)(5). Order ¶239. Because LPTV “stations have always operated on a secondary basis with respect to primary licensees,” they “have always operated in an environment where they could be displaced from their operating channel by a primary user and, if no new channel assignment is available, forced to go silent.” Second Order on Reconsideration, 30 FCC Red. 6746, ¶ 68 (June 19, 2015) (the “Reconsideration Order”).

In addition to determining that neither subsection (b)(2) nor subsection (b)(5) compelled it to protect LPTV stations in the repacking process, the Commission also declined to extend protection to LPTV stations as a matter of discretion. The Commission “recognize[d] the valuable services that many LPTV ... stations provide.” Order ¶ 237. But the Commission did “not believe that extending protection to LPTV ... stations in the repacking process would be consistent with the goals of the Spectrum Act.” Id. ¶ 241. In the Commission’s view, “[p]rotecting them would increase the number of constraints on the repacking process significantly, and severely limit [its] recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.” Id.

The reduction in available spectrum associated with the reallocation of airwaves to wireless services is anticipated to have a substantial impact on the LPTV industry. Numerous LPTV stations thus brought petitions for reconsideration of the Commission’s rulemaking, including Mako Communications and Beach TV Properties, the petitioners in this case. On reconsideration, the Commission affirmed its intent to exclude LPTV stations from protection in the repacking process (while also reiterating a commitment to mitigate the adverse impact on LPTV stations and other secondary licensees in a separate rulemak-ing). See Reconsideration Order ¶¶ 64, 67, 68, 72-76; see also Low Power Television Digital Rules, Proposed Rule, 81 Fed. Reg. 5086 (Feb. 1, 2016). Petitioners Mako and Beach TV each filed a petition for review of the Commission’s orders in our Court. See 47 U.S.C. § 402(a); 28 U.S.C. §§ 2342(1), 2344. We consolidated their petitions.

Before addressing the merits of the arguments raised by petitioners, we briefly note a jurisdictional challenge raised by the Commission. The Commission contends that Mako’s petition lies beyond our jurisdiction because Mako failed to challenge the Commission’s Order (instead naming only the Commission’s Reconsideration Order) in its original filings with this court. Although we generally lack jurisdiction over a petition challenging only an agency’s denial of reconsideration, see Sinclair Broad. Grp., Inc. v. FCC, 284 F.3d 148, 156 (D.C. Cir. 2002), we undisputedly have jurisdiction over Beach TV’s petition. Because Beach TV raises the same arguments as Mako, we can address the merits of the petitions based on our authority over Beach TV’s petition alone, regardless of whether we would have jurisdiction over Mako’s petition. See Sec’y of the Interior v. California, 464 U.S. 312, 319 n.3, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984); accord Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Ams. for Safe Access v. DEA, 706 F.3d 438, 443 (D.C. Cir. 2013); Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009). We therefore proceed to the merits.

II.

Petitioners argue that the Commission’s implementation of the repacking process— in particular, the Commission’s refusal to protect LPTV stations in that process— contravenes subsection (b)(5)’s prohibition against “alter[ing] the spectrum usage rights of low-power television stations.” 47 U.S.C. § 1452(b)(5). We sustain the Commission’s understanding and implementation of that provision.

We review the Commission’s interpretation of the statute under the two-step Chevron framework. See Nat’l Ass’n of Broad., 789 F.3d at 171 (citing Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005)). First, we consider whether Congress “has directly spoken to the precise question at issue,” in which case we “give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If “the statute is silent or ambiguous with respect to the specific issue,” we then decide if the agency’s interpretation is “a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. “A ‘reasonable’ explanation of how an agency’s interpretation serves the statute’s objectives is the stuff of which a ‘permissible’ construction is made.” Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005) (citing Chevron, 467 U.S. at 863, 104 S.Ct. 2778).

The pertinent statutory language bars the Commission from implementing its statutory repacking authority in a manner that would “alter the spectrum usage rights of low-power television stations.” 47 U.S.C. § 1452(b)(5). According to petitioners, that provision unambiguously compels the conclusion at Chevron step one that LPTV stations must be protected against displacement in the repacking process. Petitioners’ reading of the statute is incorrect.

In order to assess whether the repacking process envisioned by the Commission’s orders could “alter” LPTV stations’ “spectrum usage rights,” we must initially identify the nature of those spectrum usage rights in the first place (before any purported alteration). Since their inception as a category in 1982, LPTV stations have been accorded secondary status. That status means that LPTV stations have always been subject to displacement by primary services such as full-power broadcast stations. LPTV stations cannot cause interference to (and must accept interference from) primary services. See Order ¶ 239. LPTV stations’ “secondary status” therefore has always “pose[d] the possibility that they might be required to alter facilities or cease operation at any time.” An Inquiry Into the Future Role of Low Power Television Broadcasting & Television Translators in the National Telecommunications System, 47 Fed. Reg. 21468, 21489 ¶ 95 (May 18,1982).

Petitioners do not dispute that LPTV stations have had a secondary status relative to — and thus have been subject to displacement by — primary services such as full-power television licensees. According to petitioners, however, LPTV stations did not have secondary status vis-a-vis wireless service providers before the Spectrum Act. As a result, petitioners contend, allowing for the displacement of LPTV stations’ spectrum in favor of wireless providers would run afoul of subsection (b)(5)’s prohibition against conducting the repacking process in a manner that would “alter” ' LPTV stations’ spectrum usage rights.

We need not address whether petitioners are correct in assuming that subsection (b)(5) would stand in the way of the Commission’s adding new services to the category of primary services to which LPTV stations are subordinate in priority. Even assuming subsection (b)(5) essentially froze in place the roster of primary services in effect at the time of the Spectrum Act’s enactment, LPTV stations had been subject to displacement by wireless licensees long before the Spectrum Act. See Order ¶ 239 n.741. LPTV stations’ subordination to wireless services had been made explicit by at least 2004, when the Commission reallocated a different portion of the spectrum from primary broadcast providers to wireless providers. In its Digital LPTV Order promulgated that year, the Commission adopted procedures under which an LPTV station could be notified of its displacement by a “primary” wireless service provider. See In the Matter of Amendment of Parts 73 & 74 of the Commission’s Rules to Establish Rules for Digital Low Power Television, Television Translator, & Television Booster Stations & to Amend Rules for Digital Class A Stations, 19 FCC Red. 19,331, ¶¶ 72-73 (2004); 47 C.F.R. § 74.703.

Petitioners claim, however, that the Commission’s orders under the Spectrum Act materially differ from the Commission’s Digital LPTV Order, under which LPTV stations could remain on vacated channels as secondary licensees. Under the challenged orders, petitioners contend, LPTV stations instead are removed completely from the reallocated spectrum. Petitioners’ understanding is incorrect. As was the case under the Digital LPTV Order, LPTV stations can still remain on cleared spectrum until a wireless provider actually displaces them. See, e.g., Order ¶¶ 668-671. Thus, contrary to petitioners’ claims, the challenged orders subordinate LPTV stations to wireless licensees in the same way the Commission had done before the Spectrum Act. We therefore reject petitioners’ contention that the terms of subsection (b)(5) unambiguously compel protecting LPTV stations from displacement in the repacking process called for by the Act.

Proceeding to Chevron step two, we ask whether the Commission offered a “ ‘reasonable’ explanation of how [its] interpretation serves the [Act]’s objectives.” Northpoint Tech., Ltd., 412 F.3d at 151 (citing Chevron, 467 U.S. at 863, 104 S.Ct. 2778). The challenged orders meet that standard. There are approximately 1,900 licensed LPTV stations. The Commission reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would “severely limit ... recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.” Order ¶ 241. In National Ass’n of Broadcasters, we rejected the argument that the Commission was required to protect one type of low-power station (known as a “fill-in translator” because it fills gaps in the geographic coverage of a full-power station). See Nat’l Ass’n of Broad., 789 F.3d at 179. We explained that the Commission permissibly declined to protect fill-in translator stations so as to avoid significantly impairing the agency’s flexibility in the repacking process. Id. at 180. That is essentially the same explanation given by the Commission in the orders under review in this case, and we see no reason for any different result here.

Petitioners argue that the Commission’s understanding of subsection (b)(5) nonetheless is unreasonable because it renders the provision entirely meaningless. Petitioners are mistaken. As a general matter, LPTV stations’ secondary status renders them subject to displacement insofar as they cause interference to primary services. See Order ¶¶ 239-240 & n.745. Subsection (b)(5)’s prohibition against conducting the repacking process in a manner that would “alter” LPTV stations’ spectrum usage rights therefore has the effect of making clear that, as was the case before the Spectrum Act, the Commission’s repacking authority does not enable it to displace LPTV stations even if they cause no interference to primary services. For that reason, the Commission’s understanding of subsection (b)(5) does not leave the provision without any effect. We therefore conclude that the Commission’s treatment of LPTV stations in the challenged orders rests on a reasonable understanding of subsection (b)(5) for purposes of Chevron step two, and we reject petitioners’ arbitrary-and-capricious arguments to the same effect. See Nat’l Ass’n of Broad., 789 F.3d at 176 (citing Gen. Instrument Corp. v. FCC, 213 F.3d 724, 732 (D.C. Cir. 2000)).

We finally (and briefly) take up, and reject, a distinct procedural challenge raised by petitioners. According to petitioners, the Commission’s orders are inconsistent with Section 312 of the Communications Act, 47 U.S.C. § 312, which grants certain procedural protections set forth in Section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558(c), to a licensee whose license is “revoke[d].” Both the Communications Act and the APA describe the revocation of a license as an intentional sanction against the license holder, see, e.g., 47 U.S.C. §312; 5 U.S.C. § 558, a description that does not — or at least does not have .to — apply to the displacement of an LPTV station in the repacking process. As the Commission explained, “[displacement does not ‘revoke’ LPTV ... licenses for purposes of section 312 of the Act because it does not require termination of operations or relinquishment of spectrum usage rights; displacement requires only that LPTV ... stations vacate the channel on which they are operating.” Reconsideration Order ¶ 69. Indeed, LPTV stations “may be displaced by primary services at any time,” id. not just during the repacking process, and Section 312 normally has no bearing on such displacements, see, e.g., 47 C.F.R. §74.703. Petitioners give no basis for treating the potential displacement of LPTV stations in the repacking process any differently.

$ ‡ $

For the foregoing reasons, we deny the petitions for review.

So ordered.


author: HOWARD, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. René MÁRQUEZ-PÉREZ, Defendant, Appellant.
    No. 14-2246
    United States Court of Appeals, First Circuit.
    August 30, 2016

      Lydia J. Lizarribar-Masini, with whom Camille Lizarríbar-Buxó and Lizarribar Law Office, San Juan, PR, were on brief, for appellant.
    Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.
   HOWARD, Chief Judge.

A fair proceeding before a fair tribunal is a basic requirement of due process. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Claiming that judicial misconduct, inadequate preparation time, and attorney ineffectiveness denied him a fair proceeding, René Már-quez-Pérez asks us to vacate his conviction and sentence. We hold that the judge’s conduct of the trial, though in one instance unfortunate, did not prejudice Márquez; and that the judge did not deny him adequate preparation time. We are less sanguine about counsel’s performance; because we find sufficient signs of ineffectiveness, we remand this case to the district court for further proceedings.

I.

A federal jury convicted Márquez of possessing drugs with intent to distribute, see 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c). See generally United States v. Márquez-Perez, 44 F.Supp.3d 175 (D.P.R. 2014). The district court sentenced Márquez to fifty-three months for the drug convictions and sixty months for the firearm conviction, totaling 113 months, or roughly nine-and-a-half years. Márquez timely appealed his conviction and sentence.

II.

Márquez first contends that the district judge’s courtroom behavior denied him a fair trial. Although the judge’s comportment was flawless in most respects throughout the trial, he overreacted once, when, in response to counsel’s attempt to object, he commanded the courtroom security officer to forcibly seat counsel down. Nevertheless, we sustain Márquez’s conviction for lack of prejudice.

A.

Due process guarantees a fair trial, not a perfect one. See United States v. Ayala-Vazquez, 751 F.3d 1, 23-24 (1st Cir. 2014). To prevail on a judicial misconduct claim, a party must show that (1) the judge acted improperly, (2) thereby causing him prejudice. See United States v. Lanza-Vazquez, 799 F.3d 134, 143 (1st Cir. 2015). We consider both elements in light of the whole record. See Ayala-Vazquez, 751 F.3d at 23. We may address the elements in either order, and need not reach both if a party fails on one. See id. at 25.

Our cases have generally confronted two types of judicial misconduct during a trial. The first occurs when judges commit errors of law, as by performing acts categorically beyond their authority. For example, judges exceed their authority when they testify as witnesses, or add to or distort the evidence. See Quercia v. United States, 289 U.S. 466, 471-72, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); United States v. Rivera-Rodríguez, 761 F.3d 105, 122 (1st Cir. 2014); United States v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989). They also exceed their authority by opining to the jury on the credibility of witnesses, the character of the defendant, or the ultimate issue. See Quercia, 289 U.S. at 471, 53 S.Ct. 698; Ayala-Vazquez, 751 F.3d at 28. Such acts are per se misconduct, although the judgment may still be sustained for lack of prejudice. See Ayala-Vazquez, 751 F.3d at 27; Paiva, 892 F.2d at 159.

The second type of misconduct occurs when judges abuse their discretion. See Ayala-Vazquez, 751 F.3d at 23. The judge is the governor of the trial, and has broad discretion to participate in it. See Lanza-Vazquez, 799 F.3d at 143. A judge may “question witnesses”; “analyze, dissect, explain, summarize, and comment on the evidence”; and otherwise elicit facts that he deems necessary to a clear presentation of the case. Ayala-Vazquez, 751 F.3d at 24. Judges may also maintain the pace of the trial and ensure its proper conduct. See Lanza-Vazquez, 799 F.3d at 143-44. They may criticize counsel, and express “impatience, dissatisfaction, annoyance, and even anger”: “a stern and short-tempered judge’s ordinary efforts at courtroom administration” are not error. Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Where one party’s conduct warrants a relatively heavier hand, the judge may intervene with proportional vigor and frequency. See Lanza-Vazquez, 799 F.3d at 143-44; United States v. Rodríguez-Rivera, 473 F.3d 21, 27 (1st Cir. 2007); United States v. Gomes, 177 F.3d 76, 79-80 (1st. Cir 1999).

Nonetheless, judges may not misemploy these powers, as by favoring one party or appearing partial. See Rivera-Rodríguez, 761 F.3d at 111; Ayala-Vazquez, 751 F.3d at 24. They should be most cautious in front of the jury, which may be vulnerable to judges’ “lightest word or intimation.” Ayala-Vazquez, 751 F.3d at 28.

Márquez claims that the judge denied him a fair trial by repeatedly rebuking his counsel. These reproaches ranged from characterizing counsel’s questions as “misleading,” to chiding him to do his “homework,” to directing the security officer to forcibly seat him. Excepting this last event, they were no more than “a stern ... judge’s ordinary efforts at courtroom administration.” Liteky, 510 U.S. at 556, 114 S.Ct. 1147. And although the judge rebuked counsel more often than he did the prosecutor, counsel’s behavior warranted the added criticism.

For example, Márquez complains that the judge repeatedly interrupted counsel’s cross-examination of a police officer and characterized counsel’s questions as “misleading.” Here, the court permissibly exercised its authority over the examination of witnesses to avoid juror confusion. See United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008); Rodríguez-Rivera, 473 F.3d at 27. In one instance, counsel asked the officer whether “these are the pills you are referring to, correct?” The court characterized this as “misleading” because “[tjhat wasn’t [the officer’s] testimony.” Subsequently, counsel rephrased his question, and the court allowed it. Although the court could have spoken more mildly, it permissibly intervened to deter jury confusion.

Márquez also complains that the judge told counsel, at sidebar, that he needed to “do [his] homework.” Here, the court permissibly exercised its discretion to rebuke counsel. See Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147; Ofray-Campos, 534 F.3d at 33. Counsel had asked the government’s expert whether marijuana could be used as medicine, implying a permissible reason for Marquez’s possession. The court called for sidebar, stated that marijuana is illegal in the jurisdiction, and admonished counsel to stop this line of questioning. Perplexingly, counsel responded that marijuana is legal in Colorado. The court retorted, “That’s State. Do your homework.” This assessment was supportable: marijuana’s legality under Colorado state law was irrelevant to this federal prosecution for drug trafficking in Puerto Rico. Despite its gratuitous cheek, the court acted within its discretion in criticizing counsel.

In one instance, however, the judge overstepped his authority: in response to counsel’s attempt to object, he ordered the security officer to force counsel to ■ sit down. This took place during counsel’s cross-examination of a police officer. The prosecutor had objected to a question, and midway through the objection, counsel objected to the objection, igniting a judicial flareup:

THE COURT: Wait a minute. You are objecting to an objection?
MR. BURGOS: Yes, sir.
THE COURT: No, you are not. [Government, c]ontinue with your objection.
MR. WALSH: Our understanding is, in his testimony he mentions — he said he did not—
MR. BURGOS: Objection.
THE COURT: Sit down and shut up. Sit down and shut up while he makes his objection. Mr. Burgos, sit down.
MR. BURGOS: Your Honor—
THE COURT: Sit down.
MR. BURGOS: We prefer—
THE COURT: Sit down.
MR. BURGOS: We prefer to go to the record.
THE COURT: Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.
MR. BURGOS: We would like the jury to be—
THE COURT: Sit down, Mr. Burgos. Have a seat, Mr. Burgos. Have a seat, Mr. Burgos.
MR. BURGOS: Let the record show—
THE COURT: Have a seat, Mr. Burgos.
MR. BURGOS: — the marshals are forcing me to my seat.

(emphasis added).

Subsequently, the back-and-forth continued, with counsel continuing to interrupt; and the judge threatening to find counsel in contempt, again ordering the courtroom security officer to seat him, and eventually removing the jury. Upon the jury’s return, the judge gave curative instructions.

Counsel’s actions were plainly contumacious. Initially, counsel had the right to press his claim, “even if it appeared] farfetched and untenable.” Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717 (1952). “But if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge — his right is only respectfully to preserve his point for appeal.” Id. Counsel’s repeated intérruption of the court transgressed this basic precept.

Confronted with this transgression, the trial judge had broad discretion to restore “dignity, -order, and decorum” “essential to the proper administration of criminal justice.” Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). A judge is entitled to verbally rebuke counsel. See Ofray-Campos, 534 F.3d at 33. And the judge may remove the jury and, as proper, threaten to or actually sanction counsel, find counsel in contempt, or report counsel for violating professional ethics rules. See Logue v. Dore, 103 F.3d 1040, 1046 (1st Cir. 1997); United States v. Polito, 856 F.2d 414, 417 (1st Cir. 1988).

A judge may even command physical force when “justified by an essential state interest — such as the interest in courtroom security — specific to the defendant on trial.” Deck v. Missouri, 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). Absent an imminent physical threat, this generally means that judges may use force only “as a last resort.” Id. at 628, 125 S.Ct. 2007 (quoting Allen, 397 U.S. at 344, 90 S.Ct. 1057). From these principles, it follows that a judge should not use physical force to subdue counsel’s verbal arguments, while in the jury’s presence, except in the most extraordinary circumstances. See United States v. Elder, 309 F.3d 519, 520 (9th Cir. 2002); Johnson v. Maryland, 352 Md. 374, 722 A.2d 873, 875, 879-81 (1999) (collecting cases).

Here, for aught that appears, the trial judge did not command force to counter a physical threat or else as a last resort. Rather, he directed the security officer to forcibly seat counsel to resolve a verbal dispute that had erupted just moments earlier. The judge did so in the presence of the jury, and without first exhausting other options, such as removing the jury and pronouncing a stern warning of sanction or contempt. Under these circumstances, the judge used force not as a last resort, but nearly as a first one. We are not indifferent to the difficult task that a trial judge sometimes faces in maintaining control of a courtroom, nor to the reality that a judge’s demeanor while exercising that control will not always project unruffled serenity. On this record, however, we conclude that the judge’s speedy resort to use of force was not consistent with “the very purpose of a court system to adjudicate controversies ... in the calmness and solemnity of the courtroom according to legal procedures.” Sheppard v. Maxwell, 384 U.S. 333, 350-51, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (internal formatting omitted).

B.

Nonetheless, we sustain Már-quez’s conviction for lack of prejudice. Our prior decisions have consistently required proof of “serious prejudice,” which we recently defined as “requiring ‘a reasonable probability that, but for the claimed error, the result of the proceeding would have been different.’ ” Lanza-Vazquez, 799 F.3d at 145 (quoting Rivera-Rodríguez, 761 F.3d at 112); see also Logue, 103 F.3d at 1045 (“An inquiry into the judge’s conduct of the trial necessarily turns on the question of whether the complaining party can show serious prejudice.”). A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

In analyzing prejudice, our cases regularly weigh three factors: (1) the nature and context of the error, (2) the presence of curative instructions, and (3) the strength of the evidence in support of the judgment. First, error is more likely to be prejudicial when a judge expresses or implies his own view of the case: of the relevant evidence, a witness’s credibility, the defendant’s character, or the ultimate issue. See Quercia, 289 U.S. at 471-72, 53 S.Ct. 698; Lanza-Vazquez, 799 F.3d at 145; Rivera-Rodríguez, 761 F.3d at 120; Ayala-Vazquez, 751 F.3d at 28. By contrast, a judge’s mere displeasure at an attorney’s litigation conduct is unlikely to prejudice a party. See Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147; Ayala-Vazquez, 751 F.3d at 20 n.16; Gomes, 177 F.3d at 80.

The context of the error also matters. Misconduct in the jury’s presence is more likely to prejudice than that at sidebar. See Lanza-Vazquez, 799 F.3d at 144. Further, misconduct during the presentation of critical evidence is more likely to prejudice than that during testimony irrelevant to the defendant. Compare Rivera-Rodríguez, 761 F.3d at 123, with Of-ray-Campos, 534 F.3d at 34. And a cumulative pattern of misconduct may cause prejudice where isolated misconduct would not. See Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Rivera-Rodríguez, 761 F.3d at 112.

Second, subsequent, instructions may cure the taint. Curative instructions should remind the jury that it is the trier of fact, and that the conduct of neither counsel nor the judge is evidence or any indication of how to weigh the evidence or decide the case. See Ayala-Vazquez, 751 F.3d at 25-26. The court should give instructions promptly after a potential error, or in the final jury charge, or — ideally—at both times. See id. Some severe errors, however, cannot be cured. See Quercia, 289 U.S. at 472, 53 S.Ct. 698; Rivera-Rodríguez, 761 F.3d at 124 n.19.

Lastly, the stronger the evidence supporting the judgment, the lesser the risk of prejudice. See Lanza-Vazquez, 799 F.3d at 145; Rivera-Rodríguez, 761 F.3d at 120; Ayala-Vazquez, 751 F.3d at 26-27.

Márquez has arguably waived his claim for lack of adequate argument. See Lanza-Vazquez, 799 F.3d at 145. In any event, we find no prejudice.

First, the judge’s ire “was directed solely to counsel’s courtroom conduct and carried no suggestion that the defense ease was weak or that the judge sided with the prosecutor.” Gomes, 177 F.3d at 80. True, the error did take place in the jury’s presence; this is the sole factor that weighs in favor of prejudice. But the error did not affect critical evidence, or otherwise deter Márquez from presenting his case; indeed', the judge eventually overruled the government’s objection in favor of Márquez. And Márquez has not shown cumulative error, but only this single instance.

Second, the judge gave curative instructions both promptly after the error, and at the final jury charge. Each time, the court admonished the jury to disregard the court’s rebukes.

Finally, the evidence against Márquez— video, testimonial, and. physical evidence— was overwhelming. The government introduced, among other evidence, surveillance videos showing Márquez testing a firearm immediately before furtively selling small items hidden in handkerchiefs; physical evidence, seized from Márquez’s car and his mother’s house, including three guns, large amounts of drugs packaged in baggies, and drug paraphernalia (scales, empty baggies, a sieve, and weights); and police officer testimony that Márquez confessed to owning the drugs and guns, and to being a drug dealer. See Márquez-Perez, 44 F.Supp.3d at 182-86.

Weighing these factors, we find no prejudice, so we deny Márquez’s judicial misconduct claim.

III.

Next, Márquez claims that the district court abused its discretion in denying his motion to continue the trial date. He argues that he needed a one-day continuance to watch the government’s video evidence, and that but for the denial of his motion, he would have seen the videos and pled guilty, resulting in a lesser sentence. •Finding no abuse of discretion, we reject Márquez’s claim.

Having adequate time to prepare a defense is implicit in due process and the right to counsel. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Nevertheless, “[t]rial judges necessarily require a great deal of latitude in scheduling trials.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). To prevail on appeal, a party must show that the denial was an “unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay,” such that “no reasonable person could agree with the judge’s ruling.” See United States v. Robinson, 753 F.3d 31, 41 (1st Cir. 2014) (citing Morris, 461 U.S. at 11-12, 103 S.Ct. 1610). We first consider the reasons presented to the district court in support of the continuance request. See Ungar, 376 U.S. at 589, 84 S.Ct. 841; United States v. Delgado-Marrero, 744 F.3d 167, 195 (1st Cir. 2014). We may also weigh other relevant factors such as the moving party’s diligence in light of the complexity of the case, the time available for preparation, the timeliness of his motion, and other available assistance; the party’s contribution to his perceived predicament; and the extent of inconvenience to others, including the court, the other party, and witnesses. See Delgado-Marrero, 744 F.3d at 195-96. In addition, the moving party must show a reasonable probability of specific prejudice, see id. at 199, whether through evidence presented contemporaneously to the district judge or later-developed evidence consistent with the original request, see United States v. Rodríguez-Dúran, 507 F.3d 749, 765 (1st Cir. 2007).

Beginning with the reasons presented to the district court, Márquez alleged that he needed one extra day to watch the government’s videos with defense counsel. He had been unable to watch the videos earlier due to software issues at the detention facility, despite repeated attempts to resolve these issues with the government. He allegedly needed to watch the videos to decide whether to change his plea. Moreover, he did not benefit from counsel’s advice about the videos because counsel had not watched them either: although counsel could have watched the videos by himself, he admitted to the district judge that he “decided not to see them, for the record.”

Márquez’s desire to review the videos with defense counsel is understandable, as is his frustration with the perceived delay in the government’s repair of its technology. Nonetheless, counsel’s admission that he simply “decided not to see” the videos practically concedes that Már-quez’s (or more precisely, his counsel’s) lack of diligence contributed significantly to his predicament. Due process does not demand a continuance when “counsel knowingly put himself in this situation.” United States v. Flecha-Maldonado, 373 F.3d 170, 175 (1st Cir. 2004).

Counsel’s dilemma was exacerbated by his tardiness in filing the motion. He filed the motion to continue at 5:40 p.m. on the last working day before the start of trial— ah untimely filing. See United States v. Maldonado, 708 F.3d 38, 43 & n.2 (1st Cir. 2013); United States v. DeCologero, 530 F.3d 36, 79 n.27 (1st Cir. 2008); United States v. Rodriguez-Marrero, 390 F.3d 1, 22 (1st Cir. 2004). And he offered no explanation for his belated motion; nor was the reason for the delay in filing evident, for the perceived predicament “would have been apparent long before.” United States v. Rosario-Otero, 731 F.3d 14, 18 (1st Cir. 2013). Indeed, he had received the bulk of the videos two months before trial and knew of the software issues three weeks before trial. Cf. United States v. Orlando-Figueroa, 229 F.3d 33, 41 (1st Cir. 2000) (finding no abuse of discretion where defendants had received government tapes two months before trial).

Nor were the videos so complex or lengthy as to objectively warrant a longer preparation period. See Rodríguez-Dúran, 507 F.3d at 765. Márquez contends that some of the videos were produced just over a week before trial and that they totaled “hours” in length. In fact, thirty of the thirty-four videos were produced two months prior to trial; and the government had notified Márquez of the specific clips, just “several minutes” long, that it intended to use at trial. In analogous circumstances, we have affirmed a district court’s judgment that a month was sufficient to review hours of calls and 700 pages of documents. See United States v. Williams, 630 F.3d 44, 48 (1st Cir. 2010).

Márquez has also failed to show that he was prejudiced in deciding whether or not to plead guilty. Even if we assume that prejudice to a defendant’s plea decision is cognizable in this context, see Rodríguez-Dúran, 507 F.3d at 766, a defendant must show that, but for the denial, there was a reasonable probability that (1) the plea offer would have been consummated by the defendant, the government, and the court; and (2) the plea would have been to a lesser conviction or sentence than that actually imposed, see Lafler v. Cooper, — U.S. --, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012).

Márquez makes two arguments. First, during his presentence interview after his conviction, he told the probation officer that, had he seen the videos before trial, he “may have considered the option of pleading guilty.” Second, although the government offered Márquez a plea deal of thirteen years (or 156 months, which is more than his actual sentence of 113 months), Márquez may have been able to negotiate the proposed sentence downward. Notably, he contends that the government’s offer comprised three years for the drug offenses and a mandatory minimum of ten years for the firearm count, see 18 U.S.C. § 924(c)(l)(B)(i). But as the government realized before trial, the relevant ten-year mandatory minimum provision expired in 2004, so Márquez was subject only to a five-year mandatory minimum. See United States v. Laureano-Velez, 424 F.3d 38, 40 n.1 (1st Cir. 2005); 18 U.S.C. §§ 921 note, 924 note (citing Pub. L. No. 103-322, 108 Stat. 1796, § 110105(2) (1994)). Accounting for this discrepancy, Márquez could potentially have sought to negotiate a lesser sentence of eight years, or 96 months.

Notwithstanding these considerations, “the possibility that a plea bargain acceptable to all could have been reached within a reasonable period of time is too speculative.” Rodríguez-Dúran, 507 F.3d at 766. It is unclear whether Márquez would have pled guilty at all. Further, the parties apparently had yet to engage in plea negotiations after the government’s initial offer, and the government could have well refused to engage in them on the first day of trial. See id. at 764. The government also maintains, that it would not have agreed to a sentence less than what Márquez eventually received. Additionally, the court’s previously announced plea deadline had passed, and it may have rejected any plea as untimely. See United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir.1999); United States v. Ellis, 547 F.2d 863, 868 (5th Cir. 1977). In short, Márquez has not shown a reasonable probability that the parties would have reached an agreement within a single day, that such an agreement would have been to a lesser sentence, and that the district court would have agreed to the untimely plea.

In these circumstances, the district court was not obliged to rescue Márquez from his largely self-inflicted quandary. We find no abuse of discretion.

IV.

Lastly, Márquez claims that his trial attorney denied him effective assistance of counsel by neglecting to review the government’s video evidence before trial. Similar to his continuance claim, Márquez argues that, but for counsel’s failure to watch these videos and advise Már-quez accordingly, Márquez would have pled guilty, resulting in a lesser sentence. Although Márquez has not conclusively shown ineffectiveness on the record before us, we find sufficient signs to remand for an evidentiary hearing.

The Sixth Amendment right to counsel entitles a defendant to effective counsel during plea negotiations. See Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 1407-08, 182 L.Ed.2d 379 (2012); Lafler, 132 S.Ct. at 1384. We assess a claim of ineffectiveness in plea negotiations under the two-part test of Strickland v. Washington) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which a defendant must show deficient performance and prejudice. Lafler, 132 S.Ct. at 1384. We measure deficient performance against an “objective standard of reasonableness” “under prevailing professional norms,” considering the totality of the circumstances and deferring heavily to counsel’s judgments. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Prejudice exists if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

When faced with an ineffective assistance claim on direct appeal, we typically deny the claim due to an insufficiently developed record, leaving defendants to bring a collateral attack under 28 U.S.C. § 2255. See United States v. Constant, 814 F.3d 570, 578 (1st Cir. 2016). In rare cases where the record is sufficiently developed, we may resolve the claim on direct appeal. See id. Moreover, even on an inchoate record, we will sometimes remand for an evidentiary hearing where the defendant has identified in the record “sufficient indi-cia of ineffectiveness.” Id.; accord United States v. Colon-Torres, 382 F.3d 76, 85 (1st Cir. 2004); United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003).

Because Márquez has identified sufficient signs of ineffectiveness, we remand for an evidentiary hearing. First, counsel’s neglecting to review the government’s video' evidence indicates deficient performance. The Sixth Amendment requires counsel to “make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The American Bar Association Standards for Criminal Justice — which are among those standards that the Supreme Court has said may help guide our assessment of what is reasonable, see Frye, 132 S.Ct. at 1408 — require counsel to

conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities.

1 ABA Standards for Criminal Justice 4-4.1 (3d ed. 1993); accord Rompilla v. Beard, 545 U.S. 374, 387 & n.6, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

Under these principles, defense counsel generally must review documents where (1) “counsel knows the prosecution will probably rely” on the documents to present its case, and (2) the documents are easily accessible. Rompilla, 545 U.S. at 377, 389-90, 125 S.Ct. 2456. In Rompilla, the Supreme Court found ineffective assistance where defense counsel neglected to examine a public court file of the defendant’s prior convictions, despite knowing that the state would seek the death penalty based on the convictions. See id. at 384-85, 387, 125 S.Ct. 2456.

Here, counsel’s failure to watch the videos appears to fall below Rompilla’s standard. First, counsel knew that the government probably would rely on the videos because the government formally designated the videos as evidence-intended-for-trial. See Fed. R. Crim. P. 12(b)(4). Counsel’s failure to watch the videos was exacerbated' by his own beliefs, as expressed in a motion that he filed, that the videos contained exculpatory evidence. Second, the videos were easily accessible because the government produced them in discovery, presenting most of the videos to the defense two months before trial.

We also find signs of prejudice. Similar to his continuance challenge, 'Márquez argues that, but for his attorney’s deficient performance, he would have pled guilty and received a lesser sentence. This prejudice argument is, however, stronger than the other for two reasons.

First, the timing is different. In challenging the denial of his motion for a continuance, Márquez asks 'us to speculate that the parties would have reached an agreement to a lesser sentence in a single day, and that the district court would have accepted the agreement notwithstanding the past plea deadline. These tenuous inferences do not infect his ineffectiveness challenge, for competent defense counsel could have apprised Márquez of the videos’ content at an earlier date.

Second, the burdens of proof differ. To ultimately prevail on either a continuance or ineffective assistance claim, a defendant must show a reasonable probability of a better outcome. To secure a remand for a hearing on his ineffectiveness claim, however, he need only show sufficient signs of ineffectiveness as a whole. Márquez has met this lesser burden by setting forth clear markers of deficient performance and potential markers of prejudice. As explained above, there is evidence in the record that Márquez would have considered pleading guilty had he seen the videos before trial, and that the government had reason to offer him a more favorable plea to reflect the lower mandatory minimum on the firearm count.

Y.

Accordingly, we AFFIRM Marquez’s conviction, but we REMAND the action to the district court for further proceedings not inconsistent with this opinion. The district court should conduct a hearing to assess s whether counsel provided ineffective assistance, and, if so, grant the proper remedy. See Lafler, 132 S.Ct. at 1388-90.

      . We need not decide whether a merely verbal rebuke of "sit down” and "shut up” in the jury’s presence would have been misconduct. See generally Ofray-Campos, 534 F.3d at 33 (holding that similar rebuke made at sidebar was not judicial misconduct). Nor do we address whether a judge's threat to find contempt in the jury’s presence would be error. Compare Sacher, 343 U.S. at 10, 72 S.Ct. 451 ("To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client.”), with Polito, 856 F.2d at 417-19 (holding that threat, made in the jury’s presence, to report counsel for violating professional ethics rules was not prejudicial).

      . Although seemingly unfair to Márquez in this instance, "[u]nder our system of representative litigation, 'each party is deemed bound by the acts, of his lawyer-agent.’ ” Maples v. Thomas,-U.S.-, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).

      . The thirty videos comprise all of the surveillance and firearm test videos. The four subsequently produced videos show the police executing search warrants.

      .The government argues that Márquez has waived this argument because he failed to raise it below, relying on United States v. Desir, 273 F.3d 39, 43 (1st Cir. 2001). We are not convinced that Márquez failed to raise this claim below, and even if we were, we would review for plain error. See United States v. Lopez-Lopez, 295 F.3d 165, 169 (1st Cir. 2002). In any event, even applying the more defendant-friendly standard for preserved claims, we find no error in the district court's denial.
      Relatedly, however, we do deem waived any argument that Márquez was prejudiced in his preparation for trial or motions to suppress. Márquez addresses these in one sentence of his opening brief, so they are waived for lack of adequate development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). To the extent that Márquez asks us to consider arguments raised in his district court filing by merely citing the filing in his brief, those arguments are also waived. See United States v. Burgos-Montes, 786 F.3d 92, 111 (1st Cir. 2015).

      . During the trial, a Deputy U.S. Marshal sua sponte informed the judge that Márquez would have pled guilty had he seen the videos prior to trial. The judge then asked Márquez whether he had said this to the marshal and whether he would have pled had he seen the videos. Márquez responded, "no.” The government contends that this shows that Már-quez would not have pled, while Márquez says that he meant "no, he did not tell this to the marshal.” Regardless of which construction we adopt, Márquez has not affirmatively shown that he would have chosen to plead guilty.

      . We at times have also remanded for an evidentiary hearing when the defendant affirmatively makes out a colorable claim of ineffectiveness, see United States v. De Alba Pagan, 33 F.3d 125, 18 (1st Cir. 1994); accord United States v. Bell, 708 F.3d 223, 225 (D.C. Cir. 2013); United States v. Meacham, 567 F.3d 1184, 1187 (10th Cir. 2009), or else demonstrates “special circumstances,” United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir. 2005). We have not addressed the relationship between these standards. Nor have we confronted whether our discretion to remand an action on direct appeal extends to every case in which an evidentiary hearing would be warranted on a post-conviction motion to vacate under 28 U.S.C. § 2255, see Owens v. United States, 483 F.3d 48, 61 (1st Cir. 2007); Rivera Alicea v. United States, 404 F.3d 1, 4 (1st Cir. 2005). The parties have not briefed these issues, and we need not decide them; regardless of which standard we apply, we would remand.


author: SELYA, Circuit Judge.

text:
    Piero ANVERSA and Annarosa Leri, Plaintiffs, Appellants, v. PARTNERS HEALTHCARE SYSTEM, INC., et al., Defendants, Appellees.
    No. 15-1897
    United States Court of Appeals, First Circuit.
    August 30, 2016

      Tracy A. Miner, with whom Megan A. Siddall and Demeo LLP, Boston, MA, were on brief, for appellants.
    Roberto M. Braceras, with whom Jennifer L. Chunias and Goodwin Procter LLP, Boston, MA, were on brief, for appellees Harvard Medical School and Gretchen Brodnicki.
    Geoffrey M. Raux, with whom Michael J. Tuteur and Foley & Lardner LLP, Boston, MA, were on brief, for remaining ap-pellees.
    Before THOMPSON, SELYA and KAYATTA, Circuit Judges.
   SELYA, Circuit Judge.

There is a time for every action, cfi Ecclesiastes 3:1 (“To every thing there is a season, and a time to every purpose.... ”), including the bringing of suit. This case breathes life into that-axiom.'

The context is the high-stakes world of academic medical research. The questions before us have their genesis in allegations that the plaintiffs (prominent medical researchers) used manipulated research data in articles reporting on studies supported by government funds. Responding to those allegations, the institutional defendants (including a medical school and a teaching hospital) triggered a unique federal statutory and regulatory scheme. Things did not go smoothly and, after some time elapsed, the plaintiffs repaired to the federal courts in search of relief (without awaiting the outcome of the administrative proceedings).

Concluding that the suit was premature because the plaintiffs had not exhausted their administrative remedies, the district court dismissed the action. See Anversa v. Partners Healthcare Sys., Inc., 116 F.Supp.3d 22, 34-35 (D. Mass. 2015). The plaintiffs appeal. Their appeal raises novel questions at the federal appellate level concerning the interrelationship between the statutory and regulatory scheme and state-law causes of action touching upon its implementation. Answering those, questions, we affirm the district court’s application of the doctrine of administrative exhaustion but modify the judgment to ensure that the suit receives a full airing at the appropriate time.

I. STATUTORY AND REGULATORY FRAMEWORK

We begin with a’ description of the unique and highly detailed statutory and regulatory scheme that underlies this appeal. The federal government provides substantial funding for path breaking medical research. Fearful that these funds could be misused by researchers who might fabricate, falsify, or otherwise doctor research outcomes, Congress envisioned a need to establish procedures to address complaints of research misconduct. To this end, Congress created the Office of Research Integrity (ORI) within the Department of Health and Human Services (HHS), see 42 U.S.C. § 289b(a)(l), and tasked ORI with responsibility for carrying out regulations to be promulgated by the Secretary of HHS (the Secretary) for the investigation of research misconduct allegations, see id. § 289b(a)(2), (b)-(e).

Among other things, the statute obligates the Secretary to promulgate regulations that define “research misconduct,” id. § 289b(a)(3)(A); to ensure that institutions receiving funds have a compliant “administrative process to review reports of research misconduct,” id. § 289b(b)(l); and'to create a process for ORI itself to receive allegations of and reports about research misconduct, to carry out its own investigations as needed, and to take necessary remedial action, see id. § 289b(c). Relatedly, Congress tasked the Secretary with fashioning regulations that would facilitate ORI’s oversight of institutional compliance with the research misconduct regulations. See id. § 289b(d). Congress also authorized the Secretary to appoint ORI’s director, who must “be experienced and specially trained in the conduct of research, and have experience in the conduct of investigations of research misconduct.” Id. § 289b(a)(2).

■ The Secretary has responded to this statutory mandate by promulgating an elaborate regulatory mosaic. In that mosaic, “research misconduct” is defined as “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” 42 C.F.R. § 93.103. Establishing research misconduct requires a showing, by a preponderance of the evidence, of “a significant departure from accepted practices of the relevant research community” that is “committed intentionally, knowingly, or recklessly.” Id. § 93.104.

These standards inform a protocol which, mirroring congressional intent, creates a two-level process for review of research misconduct allegations. The first level occurs at the funded institution. An inquiry “is warranted” when the institution is made aware of “sufficiently credible and specific” allegations of research misconduct. Id. § 93.307(a)(3). Such an inquiry comprises “an initial review of the evidence to determine whether to conduct an investigation.” Id. § 93.307(c). The institution generally “must complete the inquiry within 60 calendar days of its initiation unless circumstances clearly warrant a longer period,” and it must document the reasons for any delays in completing the inquiry. Id. § 93.307(g). The inquiry culminates in a written report — a report on which the target of the inquiry (the respondent) has the opportunity to comment. See id. § 93.307(e)-(f).

If the inquiry finds a “reasonable basis for concluding” that some research misconduct involving federal funds has taken place, id. § 93.307(d)(1), and that particularized allegations of research misconduct “may have substance,” id. § 93.307(d)(2), the institution must notify ORI of the inquiry results within 30 days, sending along a copy of the inquiry report, see id. § 93.309(a). It must also give the respondent notice of the allegations that the investigation will explore. See id. § 93.310(c).

From that point forward, the institution is obliged to conduct a “thorough and sufficiently documented” investigation, which “includes examination of all research records and evidence relevant to reaching a decision on the merits of the allegations.” Id. § 93.310(e). The institution is expected to interview all relevant witnesses, see id. § 93.310(g), and to “[p]ursue diligently all significant issues and leads discovered that are determined relevant to the investigation ... and continue the investigation to completion,” id. § 93.310(h). As with the earlier inquiry, the investigation culminates in a written report, on which the respondent has the opportunity to comment. See id. §§ 93.312(a), 93.313(g). This phase of the regulatory framework has its own temporal limitation: it provides that “[a]n institution must complete all aspects of an investigation within 120 days,” id. § 93.311(a), unless it requests and receives an extension from ORI, see id. § 93.311(b). Regardless of whether the investigation concludes that research misconduct occurred, the report, its findings and conclusions, all the relevant evidence, and any information about actions taken or pending by the institution must be forwarded to ORI. See id. § 93.315.

Once ORI receives the investigation report and the related materials, it conducts its own assessment of the allegations. ORI has the authority to obtain additional input from virtually any source, supplement the evidence, and develop its own analysis. See id. § 93.403(d)-(e). Moreover, ORI may make independent findings as to whether research misconduct was committed and if so, by whom. See id. § 93.403(f). It also may recommend appropriate administrative action, which can range from the relatively mild (say, a letter of reprimand) to the relatively severe (say, debarment from eligibility to receive federal research funding). See id. § 93.407(a).

Even beyond the notice requirements, opportunities for comment, and time limits described, above, the regulatory framework contains protections for researchers facing investigation. For example, the regulations offer assurances of confidentiality, limiting disclosure of information about an ongoing proceeding “to the extent possible, to those who need to know.” Id. § 93.108(a). So, too, the regulations require institutions to “[t]ake reasonable steps to ensure an impartial and unbiased investigation to the maximum extent practicable.” Id. § 93.310(f). In this regard, institutions must ensure that those participating in the investigation have the “appropriate scientific expertise” and are not affected by “personal, professional, or financial conflicts of interest.” Id.

Should ORI find research misconduct, a respondent has access to an additional safety valve: a right to appeal that finding and any resulting administrative action to an administrative law judge (ALJ). See id. § 93.500(b). The ALJ’s review of both ORI’s finding and its proposed administrative action is de novo. See id. § 93.517(b). Withal, the ALJ “does not review the institution’s procedures or misconduct findings.” Id. When issued, the ALJ’s decision serves as a recommendation to the Assistant Secretary for Health in HHS, who may affirm, modify, or reject it entirely. See id. § 93.523(b). In making those determinations, the Assistant Secretary uses familiar standards of review, such as whether particular findings are clearly erroneous or whether the decision (or any part of it) is arbitrary or capricious. See id. The Assistant Secretary’s decision constitutes final agency action for most purposes, subject to review in the federal courts under the Administrative Procedure Act (APA). See 5 U.S.C. § 701-706.

Three other features of this statutory/regulatory scheme deserve mention. First, although ORI examines the institution’s handiwork in determining whether to carry out its own investigation, see 42 C.F.R. § 93.403(c), there is no formal process for a respondent to prefer charges that an institution has violated the regulations in the course of either the inquiry or the first-tier investigation. The regulations do, however, provide a process by which ORI may, on its own initiative, probe an institution’s compliance with the regulations and take appropriate enforcement action. See id. §§ 93.412-.413.

Second, it is manifest that neither the statute nor the regulations contemplate enforcement by private parties. Instead, enforcement is left to the Secretary, acting through ORI and the Assistant Secretary for Health.

Finally, the statute itself contains no explicit exhaustion requirement. While the district court found an exhaustion requirement to be implicit in the statutory scheme, see Anversa, 116 F.Supp.3d at 31-32, it is unnecessary (for reasons to which we shortly shall return) for us to pass upon this aspect of the district court’s decision — and we do not do so. Instead, we resolve this appeal on the basis of the district court’s alternate holding (its administrative exhaustion ruling).

II. FACTUAL OVERVIEW

The raw facts, outlined in the complaint, are essentially undisputed for present purposes. The plaintiffs are two high-profile medical researchers, Dr. Piero Anversa and Dr. Annarosa Leri. At the time of the underlying events, both of them held faculty appointments at Harvard Medical School (Harvard). In addition to their teaching roles, both plaintiffs were intimately involved with a cardiac stem cell research laboratory at Brigham and Women’s Hospital (the Brigham): Dr. Anversa led the lab, and Dr. Leri toiled as a principal investigator there. The Brigham, it should be noted, is not only a Harvard teaching hospital but also a founding member of the Partners Healthcare System (Partners).

In 2012, questions arose about the authenticity of data that appeared in an article co-authored by the plaintiffs and other scientists, including a researcher at Lawrence Livermore National Laboratory (LLNL). Shortly after the publication of this paper in the journal “Circulation,” the LLNL researcher reported to the plaintiffs that discrepancies existed between the data LLNL had provided and the data presented in the paper. Dr. An-versa asserts that he repeatedly asked the Brigham lab member who received the LLNL data if the presentation in the paper was accurate and received assurances that everything was in order. But LLNL persisted; it reported the discrepancies to Gretchen Brodnicki, Harvard’s Dean for Faculty and Research Integrity.

On January 10, 2013, Dean Brodnicki informed the plaintiffs that Harvard and the Brigham were going to begin a joint inquiry into allegations of research misconduct. These allegations related not only to the “Circulation” paper but also to an article co-authored by the plaintiffs and other collaborators that had appeared in another journal, “The Lancet,” in 2011.

The inquiry took substantially longer than the 60 days allotted in the regulations. One reason was that (as Dean Brod-nicki told the plaintiffs in March of 2013) the inquiry was expanded to encompass yet another allegation relating to an unpublished manuscript submitted in 2013 to “The Lancet” and the journal “Science.” The inquiry panel did not submit a draft report to the plaintiffs for their comments until January 8, 2014. The final panel inquiry report was issued on February 28, 2014. The plaintiffs allege that the report recommended retraction of the 2011 “Lancet” and 2012 “Circulation” papers, that the lab be evaluated for its appropriateness as a training ground for budding researchers, and that the inquiry proceed to a full-blown investigation. The plaintiffs further allege that “[t]he inquiry panel found no evidence that [the plaintiffs] ever participated in falsifying or fabricating research data or results, or that they even knew of any research misconduct at the time it occurred,” but nonetheless recommended proceeding to an investigation “on the theory that Dr. Anversa should be held responsible for arguably negligent failure to investigate” research misconduct.

Simultaneous with their receipt of the final panel inquiry report, the plaintiffs were notified that Harvard and the Brigham intended to commence an investigation. The three scientists who composed the inquiry panel were appointed to serve on the investigation panel, and a fourth member was added a few weeks later. On three separate occasions — twice in 2014 and once in 2015 (after suit had been commenced) — the investigation was expanded to include additional research papers beyond those identified in the panel inquiry report. Betimes, Harvard and the Brigham have sought — and ORI has granted — multiple extensions to the 120-day investigatory period.

III. TRAVEL OF THE CASE

In December of 2014 — while the investigation was still in progress — the plaintiffs sued Partners, the Brigham, Harvard, Dean Brodnicki, and Dr. Elizabeth Nabel (the Brigham’s president). Their complaint limned claims under Massachusetts law for tortious interference with business relations, invasion of privacy, and unfair and deceptive business practices. The complaint also charged Partners, the Brigham, and Harvard with breach of contract based on a claim that the ORI regulations are incorporated into their employment contracts with those institutions.

The plaintiffs alleged that both the completed inquiry and the ongoing investigation failed to comply with pertinent regulations. Specifically, they alleged that the inquiry panel applied the wrong standard in recommending an investigation and that its report was riddled with other errors. See id. § 93.104(b). They also ascribed a host of failings to the investigation panel, claiming (for example) that some of its members lacked the requisite scientific expertise and that some were either biased due to their participation in the flawed inquiry or labored under conflicts of interest. See id. § 93.310(f). The plaintiffs further lamented that both the inquiry and the investigation have been subject to egregious and unwarranted delays. See id. §§ 93.307(g), .311(b). Finally, the plaintiffs alleged that Dr. Steven Gygi (a member of both the inquiry and investigation panels), Dean Brodnicki, and Dr. Nabel separately transgressed confidentiality obligations imposed by the regulations. See id. § 93.108.

The plaintiffs seek money damages and unspecified declaratory relief. With respect to damages, they say that the manifold failures that occurred during the inquiry and the investigation caused them harm. They claim, for instance, that they missed out on a number of promising employment and other professional opportunities, and lost a lucrative offer for the purchase of Dr. Anversa’s company. They also claim that Dr. Leri’s promotion to a full professorship at Harvard was delayed and that they have suffered reputational injury.

The defendants moved to dismiss. See Fed. R. Civ. P. 12(b)(1), (6). They contended, inter alia, that the plaintiffs should be required to exhaust administrative remedies before bringing suit. The district court agreed and dismissed the complaint without prejudice. See Anversa, 116 F.Supp.3d at 35. The court held that the statutory scheme governing research misconduct investigations mandated exhaustion. See id. at 32. Alternatively, the court held that common-law principles of administrative exhaustion militated in favor of dismissal. See id. at 34. This timely appeal followed.

IY. ANALYSIS

Given the structure of the district court’s disposition, an issue of jurisdictional priority looms. Even though the doctrines of statutory and administrative exhaustion have a common objective — delaying a plaintiffs day in court while administrative proceedings run their course — the two doctrines rest on different foundations. The question whether a statutory scheme requires the channeling of claims through the administrative process implicates the jurisdiction of the district court. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489-91, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-09, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). By contrast, administrative exhaustion applies “where Congress has not clearly required exhaustion,” and cedes discretion to a district court to decline the exercise of jurisdiction and await the conclusion of administrative proceedings. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).

Here, the district court’s ruling consists of two alternative holdings. Taken together, these holdings amount to a double-barreled conclusion that the statutory structure forbade the district court’s exercise of jurisdiction over the action and— even if it had jurisdiction — it would decline to exercise that jurisdiction for prudential reasons.

In the ordinary course, questions about the existence of subject matter jurisdiction take precedence in our analysis of a case. See Acosta-Ramírez v. Banco Popular de P.R., 712 F.3d 14, 18 (1st Cir. 2013). This approach is consistent with the Supreme Court’s admonition that a court “may not rule on the merits of a case without first determining that it has jurisdiction over the category of. claim in suit.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). But the two exhaustion doctrines at issue here do not implicate this principle: they are simply alternative “threshold grounds for denying audience to a case on the merits.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). In comparable situations, the Supreme Court has made pellucid that a nonjurisdictional threshold reason for pretermitting a merits determination — such as a decision not to exercise pendent jurisdiction over state-law claims, dismissal on the basis of forum non conveniens, or Younger abstention— may be applied without first resolving a difficult jurisdictional question. See Sinochem Int’l, 549 U.S. at 431-32, 127 S.Ct. 1184.

Such an approach — bypassing the jurisdictional inquiry — is preferable here. The statutory exhaustion analysis is complex and uncertain, and its outcome would have no bearing on the ultimate result: as we explain below, the district court acted well within its discretion in insisting upon administrative exhaustion. Thus, we proceed directly to the merits of the district court’s administrative exhaustion ruling.

Administrative exhaustion is governed by “sound judicial discretion.” McCarthy, 503 U.S. at 144, 112 S.Ct. 1081. Consequently, the customary practice among the circuits has been to review a district court’s decision to compel the exhaustion of administrative remedies, in the absence of a statute directing exhaustion, for abuse of discretion. See, e.g., Koch v. White, 744 F.3d 162, 164-65 (D.C. Cir. 2014); Thermal Sci., Inc. v. U.S. Nuclear Regulatory Comm’n, 184 F.3d 803, 805 n.3 (8th Cir. 1999) (per curiam). Although we have never explicitly stated the standard in this manner, we have recognized that application of the administrative exhaustion doctrine is a matter of discretion, guided by the factors identified in McCarthy. See Portela-Gonzalez v. Sec’y of the Navy, 109 F.3d 74, 77 (1st Cir. 1997). We hold, therefore, that appellate review of a district court’s decision to require administrative exhaustion should be for abuse of discretion.

Generally, aggrieved parties are required to exhaust available federal administrative remedies before bringing suit in federal court. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 51 n.9, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Portela-Gonzalez, 109 F.3d at 77. This principle rests on solid foundations: exhaustion normally “serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” McCarthy, 503 U.S. at 145, 112 S.Ct. 1081. Preserving agency authority is particularly important insofar as “the action under review involves exercise of the agency’s discretionary power or when the agency proceedings in question allow the agency to apply its special expertise.” Id. Insisting upon exhaustion not only gives an agency the first opportunity to apply that expertise and correct possible errors, but also respects congressional prerogative by “preventing] litigants from bypassing Congress’ carefully crafted remedial scheme.” Irizarry v. United States, 427 F.3d 76, 79 (1st Cir. 2005). So, too, insisting upon exhaustion promotes judicial efficiency both by obviating the need for review in cases in which the agency provides appropriate redress, see Portela-Gonzalez, 109 F.3d at 79, and by creating “a useful record for subsequent judicial consideration, especially in a complex or technical factual context,” McCarthy, 503 U.S. at 145, 112 S.Ct. 1081.

Where, as here, Congress has not mandated exhaustion, federal courts have some leeway to relax this requirement. See Swirsky v. Nat’l Ass’n of Sec. Dealers, 124 F.3d 59, 63 (1st Cir. 1997). That leeway is built into the common-law doctrine of administrative exhaustion. In considering whether to exercise it, “courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion.” McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. This analysis is “ ‘intensely practical,’ because attention is directed to both the nature of the claim presented and the characteristics of the particular administrative procedure provided.” Id. (internal citations omitted) (quoting Bowen v. City of New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986)).

In discussing how to construct this balance, the Supreme Court described three “sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion.” Id. These situations arise when “requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action,” id. at 146-47, 112 S.Ct. 1081; when an administrative remedy may be insufficient because the agency is powerless to grant effective relief or incompetent to adjudicate the claims at issue, see id. at 147-48, 112 S.Ct. 1081; or when the administrative body is clearly biased, see id. at 148-19, 112 S.Ct. 1081.

The plaintiffs asseverate that their case falls within two of these categories. In their view, the administrative process cannot grant them appropriate relief and, moreover, they face an indefinite (and, therefore, unreasonable) timeline. These drawbacks, they say, more than outweigh whatever may be gained by exhaustion because — in this instance — exhaustion will neither preserve agency authority nor promote judicial economy.

We start our inquiry into the district court’s application of administrative exhaustion with the plaintiffs’ suggestion that completion of the administrative process in this case will not advance the interests that exhaustion exists to protect. We do not agree. To begin, the plaintiffs vastly understate the ongoing importance of ORI’s expertise to the administrative proceedings. They similarly understate the degree to which ORI’s expertise already, has played a valuable role in the institutional investigation. The issues raised by. the plaintiffs’ suit are in many respects the very kind of issues that call for the exercise of ORI’s special insights. We explain briefly.

The enabling statute requires that ORI be led by a professional experienced in research misconduct investigations, and the regulations envision that ORI’s oversight of the institutional investigation process will allow it to apply that expertise. This know-how is reflected, for example, in ORI’s ability to grant extensions to an institution to complete an investigation and to conduct a review of the institution’s investigation before issuing findings of research misconduct. What is more, ORI- — -in the course of its review — may well comment on the interpretation of key components of the regulations undergirding the plaintiffs’ claims, such as the appropriate standard for initiating an investigation, the scope of confidentiality obligations, and the qualifications needed for panel members.

Permitting the agency to apply its expertise in the first instance is especially important because it protects ORI’s authority even- if the plaintiffs’ state-law claims are not themselves adjudicated in the agency-supervised proceeding. The statutory structure contemplates that the first tier of review in research misconduct cases will take place at the institutional level with ORI oversight. Respect for Congress’s judgment in this area counsels in favor of allowing the agency to exercise that oversight authority before a federal court intervenes. ORI’s authority would be severely undermined if, for example, we were to permit a jury to decide whether an ongoing investigation, with extension requests reviewed and approved by ORI, had dragged on so long as to amount to a breach of contract based on the very rules that ORI is tasked with administering.

The plaintiffs’ countervailing interests in immediate review do not outweigh these substantial advantages to exhaustion. Arguing to the contrary, they assert that the administrative process cannot provide them with appropriate relief. In support, they note that ORI lacks any mechanism to review state-law claims and has no authority to award money damages (the primary form of relief demanded in their suit). Although they acknowledge ORI’s oversight role, they observe that they will not be parties to any enforcement action taken by ORI against the institutions. Furthermore, even if they were to challenge a hypothetical future finding of research misconduct before an ALJ, the ALJ would not have the authority to consider the institution’s conduct of either the inquiry or the investigation. There is some truth in what the plaintiffs say — but we conclude that neither the unavailability of a monetary remedy in agency proceedings nor the agency’s lack of capacity to adjudicate the state-law claims at issue is dispositive.

With respect to the unavailability of money damages, the plaintiffs rely on the McCarthy Court’s statement that “the uncertainty of the administrative agency’s authority to award [monetary] relief counsels against requiring exhaustion.” Id. at 155, 112 S.Ct. 1081. But the McCarthy Court mentioned the unavailability of a specific form of relief merely as one factor in the exhaustion calculus. Other circumstances (such as the agency’s lack of interest in exhaustion, the fact that the claim at issue did not call for the application of agency expertise, and the fact that record development before the agency would provide only minimal assistance to future judicial review) combined to make exhaustion unnecessary. See id. at 155-56, 112 S.Ct. 1081. Because no comparable mix of factors is present here, the unavailability of monetary relief through ORI does not relieve us of the duty to carry out the intensely practical analysis required by McCarthy. See Munsell v. Dep’t of Agric., 509 F.3d 572, 592 (D.C. Cir. 2007) (“The rationale for requiring exhaustion does not depend on the existence of money damages as a remedy. So long as the administrative process offers the possibility of some redress ... the administrative process can serve its proper function.”).

We add, moreover, that there are significant institutional advantages in compelling exhaustion here. Addressing a similar claim in an analogous context, we recognized that “[e]xhaustion is beneficial regardless of whether the administrative process offers the specific form of remediation sought by a particular plaintiff’ because “the administrative process facilitates the compilation of a fully developed record,” which “is an invaluable resource for a state or federal court required to adjudicate a subsequent civil action covering the same terrain.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 61 (1st Cir. 2002).

So it is here. Although ORI will not adjudicate the plaintiffs’ 'state-law claims as such, the district court’s eventual disposition of those claims would benefit greatly from any legal interpretations or factual findings made by ORI in the course of its review. Indeed, the shape of the plaintiffs’ claims may well change based on the outcome of the institutional investigation. The regulations specifically require institutions to make “[a]ll reasonable and practical efforts, if requested and as appropriate, to protect or restore the reputation of persons alleged to have engaged in research misconduct but against whom no finding of research misconduct is made.” 42 C.F.R. § 93.304(k). Insofar as the complaint seeks to remedy “[l]ong-term injury to [the plaintiffs’] professional reputations and careers,” the outcome of the institutional investigation and any subsequent action under this provision may reconfigure the contours of the controversy by the time it is ripe for district court consideration.

Our review of the record persuades us that the district court made the “intensely practical” assessment that the McCarthy Court required. We think that the totality of the circumstances — particularly the unique characteristics of this two-tiered investigatory system, Congress’s manifest desire to ensure that ORI is able to use its expertise to guide and evaluate an initial round of investigation at the institutional level, and the significant advantages that exhaustion could bring' — warrants a finding that the district court did not abuse its discretion in applying the doctrine of administrative exhaustion. In the circumstances at hand, neither the unavailability of a monetary remedy in'the administrative proceeding nor the agency’s inability to adjudicate state-law claims demands a different result.

The plaintiffs have a fallback position. They press the notion that forcing them to delay their suit, will cause undue prejudice to its subsequent prosecution because they face an indefinite timeframe for administrative action. They emphasize the length of the inquiry to date and the several extensions to the investigation (which has entered its third year). This problem is exacerbated, they say, by the institutions’ lackadaisical approach to the matter and by the repeated widening of the scope of the investigation. In their view, these developments show that the time limits in the regulations are effectively meaningless and that ORI has abdicated its responsibility to superintend the investigation.

Although we understand the plaintiffs’ frustration with the pace of the proceedings, we do not believe that matters have reached the tipping point. The duration of administrative proceedings, without more, cannot suffice to demonstrate that an agency’s actions are unreasonable. Rather, determining whether a timeframe for agency action is unreasonable involves more than a matter of simple arithmetic. Cf. Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (limning range of factors for evaluating the reasonableness of agency delay). An inquiring court must pay close attention to the specific regulatory framework and its relationship to the claims presented. See McCarthy, 503 U.S. at 146, 112 S.Ct. 1081.

Here, the district court fulfilled that responsibility. The features of the ongoing process are every bit as consistent with a conclusion that the investigation is proceeding apace through a complex area of medical research as with an inference of indefiniteness. Virtually by definition, research misconduct is a complicated area; and the regulations specifically envision that research misconduct inquiries and investigations may take longer than the time limits spelled out in the regulations. Both the inquiry process and (with ORI’s consent) the investigatory process can be extended when circumstances warrant. See 42 C.F.R. §§ 93.307(g), 93.311(b). Such flexibility is crucial, given the regulatory imperative that institutions must “[p]ursue diligently all significant issues and leads discovered that are determined relevant to the investigation.” Id. § 93.310(h).

In the case at hand, all indications are that the investigation is being actively pursued, and the repeated expansions of its scope suggest compliance with the mandate to explore “any evidence of additional instances of possible research misconduct” that comes to light during the investigation. Id. Against this backdrop, we discern no principled basis for viewing this time-frame, at present, as unreasonable.

The plaintiffs advance one other strain of this argument. They submit that the duration of the investigation and subsequent ORI review could cause the statute of limitations to expire on some or all of their state-law claims. See, e.g., Mass. Gen. Laws ch. 260, § 2A (establishing three-year statute of limitations for tort claims). This is a legitimate concern: the running of the statute of limitations could well “occasion undue prejudice to subsequent assertion” of the plaintiffs’ claims. McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. At least some of the plaintiffs’ claims already may have accrued, and the district court’s order of dismissal without prejudice will be of little consolation should those claims become time-barred.

This concern, however, does not demand the solution that the plaintiffs urge. In light of the strong interests in exhaustion that are extant here, permitting this action to go forward in parallel to the administrative proceedings is not the most salutary way to guard against a potential limitations problem. In the context of state ha-beas proceedings (which present similar temporal snares), federal appellate courts have acknowledged that district courts may stay a petition filed within the statute of limitations until state remedies have been exhausted. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Rhines v. Weber, 544 U.S. 269, 274-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001); see also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (collecting cases). Such a prophylactic approach is well-suited to administrative exhaustion cases because it protects agency authority while administrative proceedings are ongoing yet ensures that limitations concerns will not bar the ultimate consideration of the plaintiffs’ claims.

For these reasons, we hold that, as a matter of practice, a district court ordinarily should stay, rather than dismiss, an action when it finds that principles of administrative exhaustion require it to act. We apply that prescription here: though upholding the district court’s determination that administrative exhaustion is warranted, we think it appropriate to direct that its order of dismissal be converted to a stay of judicial proceedings pending the timely resolution of the administrative proceedings.

y. CONCLUSION

The defendants have raised a gallimaufry of other grounds for dismissing this action, but we need go no further. Thus, we take no view of these other grounds. Suffice it to say that we affirm the district court’s decision, based on the common-law doctrine of administrative exhaustion, and the plaintiffs must exhaust their administrative remedies before proceeding with their suit. However, we direct that the district court, on remand, convert its order of dismissal to an order staying the case pending the timely resolution of administrative proceedings.

Affirmed as modified. AH parties shall bear their own costs.

      . We say "for most purposes” because a recommendation for debarment or suspension from receiving federal research funds only becomes final after ratification by a different official. See 42 C.F.R. § 93.523(c).

      . At oral argument in this court, plaintiffs’ counsel reported that both of her clients have left Harvard and are now working in Switzerland.

      . At oral argument in this court, counsel for Harvard reported that the deadline for completing the investigation authorized by the most recent ORI extension is November 1, 2016. The investigation panel, we were told, is in the process of drafting its report.

      . The plaintiffs allege that Dr. Gygi resigned from the investigation panel in September of 2014, acknowledging that he had discussed the investigation with a colleague.

      . The parties have not contested the existence of Article III jurisdiction, and the district court did not consider that question. Nevertheless, we have an obligation to assure ourselves of our own jurisdiction. See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Colombani, 712 F.3d 6, 10 (1st Cir. 2013). In keeping with that obligation, we note that Article III jurisdiction exists in this case notwithstanding that the controversy is between non-diverse parties and asserts exclusively state-law claims. Federal question jurisdiction under 28 U.S.C. §1331 encompasses a narrow swath of cases in which "a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Given that all of the plaintiffs’ claims turn on the interpretation of the federal regulations governing research misconduct investigations and the importance of those regulations to the Congressional scheme, this case plainly falls within the narrow swath of cases described in Grable.

      . It is worth noting that this is not a case in which self-sufficient state-law claims merely run parallel to administrative regulations. Rather, the plaintiffs invoke the federal court's subject matter jurisdiction only by advancing claims that turn on the answers to embedded federal questions concerning the meaning and application of the very federal regulations that ORI exists to enforce. To allow the case to proceed to judgment and run the risk of having ORI's ongoing oversight thereafter arrive at conclusions that conflict with that judgment makes little practical sense.