author: MINER, Circuit Judge:

text:
    James S. CLARRY, Archer Bailey, George G. Faulkner, David B. McCollum, David P. Robertson, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Federico F. Peña, as Secretary of the Department of Transportation of the United States, David R. Hinson, as Administrator of the Federal Aviation Administration and James B. King, as Director of the Office of Personnel Management, Defendants-Appellees.
    No. 1146, Docket 95-6226.
    United States Court of Appeals, Second Circuit.
    Argued March 8, 1996.
    Decided June 12, 1996.

      Laurie Edelstein, New York City (Eric M. Lieberman, Michael Ludwig, Rabinowitz, Boudin, Standard, Rrinsky & Lieberman, PC, New York City, of counsel), for Plaintiffs-Appellants.
    Nancy A. Miller, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Varuni Nelson, Assistant United States Attorney, Paul M. Geier, Rosalind A. Lazarus, Office of General Counsel, United States Department of Transportation, James Hicks, Steve Abel, Office of General Counsel, Office of Personnel and Management, of counsel), for Defendants-Appellees.
    Before: MINER, WALKER and LEVAL, Circuit Judges.
   MINER, Circuit Judge:

Plaintiffs-appellants James S. Clarry, Archer Bailey, George G. Faulkner, David B. McCollum, and David P. Robertson (together, the “plaintiffs”) appeal from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) dismissing their amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief may be granted. Clarry v. United States, 891 F.Supp. 105 (E.D.N.Y.1995). The district court found that the policy of the Office of Personnel Management (“OPM”) that barred air traffic controllers who had participated in a strike against the federal government from employment with the Federal Aviation Administration (“FAA”), and from employment with private entities under contract with the FAA, did not violate the Due Process Clause of the Fifth Amendment or the Administrative Procedure Act (“APA”). The district court also determined that the plaintiffs did not have standing to challenge the FAA’s policy of inserting in its contracts with private companies a prohibition against the employment of air traffic controllers who had participated in a strike against the federal government.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

This appeal arises from the 1981 air traffic controllers strike against the federal government. From approximately 1970 through 1981, the Professional Air Traffic Controllers Organization (“PATCO”) was the exclusive bargaining representative for air traffic controllers employed by the FAA. On August 3, 1981, the members of PATCO commenced a nationwide strike against the federal government (the “strike”).

At the time of the strike, 5 U.S.C. § 7311 provided that “[a]n individual may not accept or hold a position in the Government of the United States ... if he ... participates in a strike, or asserts the right to strike, against the Government of the United States.” In addition, a regulation promulgated by OPM provided:

When a person is disqualified for any reason named in § 731.202, OPM, in its discretion, may deny that person examination for and appointment to a competitive position for a period of not more than 3 years from the date of determination of disqualification. On expiration of the period of debarment, the person who has been debarred may not be appointed to any position in the competitive service until his fitness for appointment has been redetermined by OPM.

5 C.F.R. § 731.303. Among the many reasons for disqualification enumerated in 5 C.F.R. § 731.202 was “[a]ny statutory disqualification which makes the individual unfit for the service.” Section 7311 provided such a statutory disqualification.

On August 3, 1981, President Reagan issued an ultimatum, stating that the striking air traffic controllers must return to work within 48 hours or forfeit their jobs. Thereafter, the federal government discharged approximately 11,000 striking air traffic controllers who had failed to return to work by August 5, 1981 (the “strikers”). The plaintiffs were among the strikers.

Following the strike, OPM announced that it would bar the strikers from employment with the federal government for three years pursuant to 5 C.F.R. § 731.303. On December 9,1981, President Reagan issued a memorandum to the Director of OPM (“President Reagan’s Directive”) that stated:

The Office of Personnel Management has established the position that the former air traffic controllers who were discharged for participating in a strike against the Government initiated on August 3,1981 shall be debarred from federal employment for a period of three years. Upon deliberation I have concluded that such individuals, despite their strike participation, should be permitted to apply for federal employment outside the scope of their former employing agency.
Therefore, pursuant to my authority to regulate federal employment, I have determined that the Office of Personnel Management should permit federal agencies to receive applications for employment from these individuals and process them according to established civil service procedures. Your office should perform suitability determinations with respect to all such applicants according to established standards and procedures under 5 CFR, Part 731.
After reviewing reports from the Secretary of Transportation and the Administrator of the Federal Aviation Administration, I have further determined that it would be detrimental to the efficiency of operations at the Federal Aviation Administration and to the safe and effective performance of our national air traffic control system to permit the discharged air traffic controllers to return to employment with that agency. Therefore, these former federal employees should not be deemed suitable for employment with the Federal Aviation Administration.
I direct you to process their applications for reemployment with the federal government accordingly.

17 Weekly Comp. Pres. Doc. 1364 (Dec. 9, 1981).

OPM interpreted President Reagan’s Directive as barring the strikers for an indefinite period from reemployment with the FAA and private entities under contract with the FAA. On January 6,1982, OPM issued a bulletin stating that all strikers “shall be determined not to be suitable for reinstatement or appointment in any position in the Federal Aviation Administration, because it would be detrimental to the efficiency of that agency by interfering with or preventing its effective performance of its duties and responsibilities.” Federal Personnel Manual Bulletin 731-6. In August of 1985, OPM reiterated its position by issuing a new bulletin stating that “[t]he debarment against reemployment of discharged controllers within the scope of the FAA is indefinite in duration.” Federal Personnel Manual Bulletin 731-9.

On August 27, 1992, Clarry filed a complaint in district court naming as defendants the United States, Andrew Card, as Secretary of Transportation, and Thomas Richards, as Administrator of the FAA. Clarry alleged that he had been denied employment with a private company because the company’s contract with the FAA prohibited the company from hiring former FAA employees who had participated in the strike against the government. Clarry claimed that the FAA’s policy of requiring parties that it contracted with not to employ the strikers violated his right to due process and equal protection. Clarry sought declaratory, injunctive, and monetary relief.

On August 12, 1993, President Clinton issued a memorandum to the Director of OPM (“President Clinton’s Directive”), in which the President stated that he was repealing the bar against employment of the strikers. OPM responded by issuing a bulletin declaring that the strikers would no longer be barred from employment with the FAA or any private entity under contract with the FAA See Federal Personnel Manual Bulletin 731-10.

By motion dated March 30, 1994, Clarry moved in the district court for leave to file an amended complaint. The amended complaint added Bailey, Faulkner, McCollum, and Robertson as plaintiffs and James B. King, as Director of OPM, as a defendant. In the amended complaint, Clarry alleged that, in 1991, he applied for and was denied a position with a company because the company’s contract with the FAA prohibited it from hiring any of the strikers. In addition, each plaintiff alleged that he had applied to the FAA for reinstatement as an air traffic controller but was denied a suitability determination by OPM. The plaintiffs alleged four causes of action in the amended complaint. First, the plaintiffs claimed that OPM’s policy of barring the strikers from employment with the FAA for an indefinite period violated their right to due process. Second, the plaintiffs alleged that OPM’s policy of barring the strikers from employment with the FAA for an indefinite period violated OPM’s existing regulations and therefore deprived them of their due process rights. Third, the plaintiffs claimed that OPM failed to comply with the APA’s notice and comment rulemaking procedures in implementing the policy. Finally, the plaintiffs alleged that the FAA’s practice of inserting in all its contracts with private companies a prohibition against the employment of the strikers violated the Due Process Clause of the Fifth Amendment.

On November 18, 1994, the district court granted Clarry’s motion to amend the original complaint, but indicated that it would consider both the original complaint and the amended complaint when addressing the government’s motion to dismiss. On July 5, 1995, the district court granted the government’s motion to dismiss the original complaint and the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). The district court found that the plaintiffs did not have a property interest protected by the Fifth Amendment, and therefore that OPM’s policy did not violate the plaintiffs’ due process rights. In addition, the district court determined that OPM’s policy did not violate the APA Finally, the district court found that the plaintiffs did not have standing to pursue their claim that the FAA’s policy of inserting in its contracts with private entities a prohibition against the employment of the strikers violated their due process rights. The plaintiffs appealed, challenging the district court’s dismissal of the amended complaint.

DISCUSSION

The district court’s dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is reviewed de novo by this Court. Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir.1994). In reviewing such a dismissal, we must accept the material facts alleged in the complaint as true, and dismiss only where the plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. Staron v. McDonald’s Corp., 51 F.3d 353, 355 (2d Cir.1995).

I. Indefinite Bar on Employment with the FAA

The plaintiffs’ first claim is that the policy of OPM that barred the strikers for an indefinite period from employment with the FAA deprived them of a protected property interest without due process. In connection with this claim, the plaintiffs argue that 5 U.S.C. § 7311 does not provide an indefinite bar on employment for a federal employee who strikes against the government. The plaintiffs further argue that OPM incorrectly interpreted President Reagan’s Directive as imposing an indefinite bar on employment with the FAA, when, in fact, the Directive imposed only a three-year bar. Finally, the plaintiffs argue that 5 C.F.R. § 731.303 conferred upon them a constitutionally protected property interest in the right to reemployment with the FAA between 1984 and 1993, when President Clinton’s Directive was issued. We reject each of these contentions and hold that the district court properly dismissed the plaintiffs’ claim.

First, Congress made it clear that any person who participates in a strike against the federal government has no right to federal employment. Section 7311 explicitly provides that “[a]n individual may not accept or hold a position in the Government of the United States ... if he ... participates in a strike, or asserts the right to strike, against the Government of the United States.” This language unambiguously provides an absolute bar on employment without any temporal limitation. As the Federal Circuit held, “[t]he conclusion is inescapable that Congress meant exactly what it said [in § 7311] — that persons who participated in a strike against the government are barred indefinitely from employment in the government.” Wagner v. Office of Personnel Management, 783 F.2d 1042, 1046 (Fed.Cir.), cert. denied, 477 U.S. 906, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986); Dehainaut v. Pena, 32 F.3d 1066, 1074 (7th Cir.1994) (holding that § 7311, “written without condition or limitation, contemplates an indefinite ban”), cert. denied, — U.S. -, 115 S.Ct. 1427, 131 L.Ed.2d 309 (1995). If § 7311 were intended to bar federal employees only while they are participating in a strike against the federal government, as the plaintiffs contend, federal employees would be able to strike without recourse. Accordingly, we hold that § 7311 provides that any person who participates in a strike against the federal government may be barred indefinitely from employment with the federal government.

Second, we think that OPM properly interpreted President Reagan’s Directive as barring the strikers indefinitely from employment with the FAA. The Directive first notes that the strikers, “despite their strike participation, should be permitted to apply for federal employment outside the scope of their former employing agency [the FAA].” The Directive continues:

I have further determined that it would be detrimental to the efficiency of operations at the Federal Aviation Administration and to the safe and effective performance of our national air traffic control system to permit the discharged air traffic controllers to return to employment with that agency. Therefore, these former federal employees should not be deemed suitable for employment with the Federal Aviation Administration.

Nothing in the Directive indicates that there is any limitation on the period of time that the strikers are to be barred from employment with the FAA. We agree with our sister circuits that have held that OPM properly interpreted President Reagan’s Directive as imposing an indefinite bar on employment with the FAA. See Dehainaut, 32 F.3d at 1074 (holding that “OPM reasonably interpreted the language of the presidential directive to impose an indefinite ban upon the employment of controllers removed for striking, not only from all FAA positions, but also from positions which interface with FAA”); Wagner, 783 F.2d at 1045 (“[W]e have no basis for rejecting the Director’s interpretation of the presidential directive as imposing an indefinite ban upon employment of the striking controllers by the Administration.”). Accordingly, we conclude that OPM reasonably interpreted President Reagan’s Directive as imposing an indefinite bar on employment with the FAA.

Finally, we reject the plaintiffs’ contention that they possessed a Fifth Amendment property interest in the right to reemployment with the FAA following a three-year period of debarment. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court explained that, in order “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. at 2709. Property interests protected by the Fifth Amendment are not created by the Constitution, but instead are created by “existing rules or understandings that stem from an independent source.” Id.

As a consequence of the plaintiffs’ participation in the strike against the United States, the plaintiffs forfeited not only their positions as federal air traffic controllers but also any right to federal employment. See 5 U.S.C. § 7311. The plaintiffs received sufficient due process in the course of their discharge proceedings, see 5 C.F.R. § 731.302 (1984) (providing notice and opportunity to be heard); 5 C.F.R. § 731.401 (1984) (providing right to appeal), and do not allege any violation of due process with respect to the proceedings leading to their discharge from the FAA. Any property interest that the plaintiffs had in actual employment with the FAA was extinguished upon their discharge, and they retained no right to reemployment with the FAA. Accordingly, the plaintiffs had no legitimate claim or entitlement to reemployment with the FAA following their discharge.

Nevertheless, the plaintiffs claim that 5 C.F.R. § 731.303 conferred upon them a property interest in the right to reemployment with the FAA after a three-year period of debarment. Section 731.303 provided for a three-year period of debapnent and stated that, “[o]n expiration of the period of debarment, the person who has been debarred may not be appointed-to any position in the competitive service until his fitness for appointment has been redetermined by OPM.” This regulation provided only that a person may be barred for three years, and that OPM must determine an applicant’s fitness for employment before appointing the applicant. The regulation did not direct OPM to rehire persons previously discharged for striking against the government, nor did it require OPM to perform suitability determinations for persons discharged for striking. Since the regulation did not confer upon the plaintiffs a legitimate claim of entitlement to reemployment with the FAA between 1984 and 1993, the plaintiffs did not possess a constitutionally protected property interest upon which to premise their Fifth Amendment due process claim.

II. Violation of Regulations

In their second claim for relief, the plaintiffs allege that OPM’s policy of barring the strikers from reemployment with the FAA between August 1984 and August 1993 violated OPM’s “own promulgated regulation [§ 731.303], which provides for a maximum three-year period of debarment ... and thereby violated plaintiffs’ due process rights.” The plaintiffs argue that their claim is supported by the Supreme Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), in which the Court held that the failure of the Board of Immigration Appeals to comply with its own established regulations was reversible error. The Accardi doctrine is a “judicially-evolved rule ensuring fairness in administrative proceedings” by requiring “that the rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency.” Montilla v. INS, 926 F.2d 162, 166, 168 (2d Cir.1991).

The application of the Accardi doctrine is not warranted in this case because OPM did not arbitrarily fail to comply with its own regulations. Even if 5 C.F.R. § 731.303 is interpreted as generally limiting debarment to three years, President Reagan’s Directive, which specifically related to the strikers and which is consistent with 5 U.S.C. § 7311, overrode § 731.303 in this particular situation. The President has broad authority pursuant to 5 U.S.C. §§ 3301 and 7301 to regulate employment matters, and President Reagan exercised this authority to enforce § 7311 by issuing his directive. The Seventh Circuit in Dehainaut held that, even if § 731.303 applies a more lenient policy than that provided for in § 7311, “the President, acting under his statutory authority to regulate federal employment, may issue a directive overriding that regulation.” 32 F.3d at 1074 (citation and footnote omitted); see also Korte v. Office of Personnel Management, 797 F.2d 967, 970 (Fed.Cir.1986) (“[T]he President’s directive overrode or superseded [§ 731.303] and imposed an indefinite ban on the class of which [plaintiff] was a member.”). Therefore, OPM did not arbitrarily disregard its own regulations, but instead complied with President Reagan’s Directive.

Moreover, the plaintiffs’ reliance on Accardi for the proposition that the President lacked the authority to direct OPM to enforce an indefinite bar is misplaced. In Accardi Congress had delegated to the Attorney General discretionary authority to suspend deportation of deportable aliens. The Attorney General, in turn, promulgated regulations delegating all of his discretionary authority to the Board of Immigration Appeals in deportation eases. Accardi, 347 U.S. at 266, 74 S.Ct. at 502-03. The Supreme Court held that, as long as the Attorney General’s regulations remained in effect, the Attorney General could not interfere with the Board’s decision in deportation eases. Id. at 267, 74 S.Ct. at 503. However, unlike the complete delegation of discretionary authority in Accardi, the President did not delegate to OPM all his authority under §§ 3301 and 7301 to regulate federal employment. Moreover, the President did not specifically delegate his authority to prohibit the employment of individuals who have participated in a strike against the United States. Thus, the President retained the authority to direct OPM to enforce an indefinite bar against the employment of the strikers by the FAA and private companies contracting with the FAA, and OPM was obligated to enforce the Directive. Therefore, OPM did not violate the plaintiffs’ due process rights by disregarding its own regulations. Accordingly, the plaintiffs’ claim was properly dismissed by the district court.

III. APA Claim

The third claim asserted in the amended complaint is that OPM failed to comply with the APA’s notice and comment rulemaking procedures before adopting its policy of barring the strikers for an indefinite period from reemployment with the FAA. We believe that OPM did not violate any provisions of the APA, and therefore that this claim also properly was dismissed by the district court.

Under the APA, there are two distinct types of rules — legislative rules and interpretive rules. Legislative rules are those that “create new law, rights, or duties, in what amounts to a legislative act.” White v. Shalala, 7 F.3d 296, 303 (2d Cir.1993). Interpretive rules, however, do not create rights, but instead “clarify an existing statute or regulation.” Id. Because they do not create or destroy any rights, interpretive rules are exempt from the APA’s notice and comment procedures. See 5 U.S.C. § 553(b)(3)(A); New York City Employees’ Retirement Sys. v. SEC, 45 F.3d 7, 12 (2d Cir.1995).

We think that OPM’s policy is an interpretive rule, rather than a legislative rule. OPM’s policy did not “create new law, rights, or duties” as would a legislative rule. Prior to OPM’s implementation of its policy, Congress had enacted 5 U.S.C. § 7311 and OPM had promulgated 5 C.F.R. § 731.303. Neither § 7311 nor § 731.303 conferred upon the strikers a right to reemployment with the FAA or required OPM to make an individual determination of each striker’s suitability for employment. Thus, OPM policy that deemed all strikers not suitable for reemployment with the FAA did not change any existing law, right, or duty. Nor did OPM’s policy create any new laws, rights, or duties.

Instead, OPM’s policy reflects an exercise in “its rule-making power to clarify an existing statute or regulation.” White, 7 F.3d at 303. OPM’s policy implementing President Reagan’s Directive is derived from 5 U.S.C. § 7311 and OPM’s own regulations. OPM’s regulations enumerate several factors to be considered in determining whether an individual is suitable for employment with the federal government. These factors included “[w]hether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance in the position applied for” and “[w]hether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance by the employing agency of its duties and responsibilities.” 5 C.F.R. § 731.202. President Reagan’s Directive provided a finding, based on the same factors enumerated in § 731.202, that the strikers were not suitable for reemployment with the FAA OPM adopted the interpretation provided in President Reagan’s Directive, stating that the strikers “shall be determined not to be suitable for reinstatement or appointment in any position in the Federal Aviation Administration, because it would be detrimental to the efficiency of that agency by interfering with or preventing its effective performance of its duties and responsibilities (5 CFR § 731.202(a)(2)).” Federal Personnel Manual Bulletin 731-6. Thus, OPM policy was based on an interpretation of its own regulations. Because OPM’s policy neither created any new law or rights nor was derived from an interpretation of OPM’s own regulations, we hold that it is an interpretive rule that is exempt from the APA’s notice and comment procedures.

IV. Prohibition on Employment with Private Entities

We think that the district court properly determined that the plaintiffs lacked standing to raise their final claim for relief. The essential question under the standing doctrine is “whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quotations omitted). In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court defined the three constitutional requirements that a litigant must satisfy in order to establish standing. First, the plaintiffs must have suffered an injury in fact — an injuiy that is actual or imminent, not merely hypothetical or conjectural. Id. at 560, 112 S.Ct. at 2136. Second, the injury must be fairly traceable to the challenged action. Id. Third, it must be likely, not just possible, that the injury will be redressed by a favorable ruling of the court. Id. at 561, 112 S.Ct. at 2136-37.

The plaintiffs assert in their final claim that the FAA deprived them of their Fifth Amendment liberty and property interests to pursue employment by inserting into its contracts with private companies a prohibition against the employment of the strikers. The only relief that the plaintiffs seek under this claim is a declaration that the policy is unconstitutional and an injunction enjoining the FAA from continuing to enforce its policy. However, the policy challenged by the plaintiffs was repealed by President Clinton’s Directive before the plaintiffs filed the amended complaint. Therefore, neither a declaratory judgment that the repealed policy is unconstitutional nor an injunction prohibiting the FAA from enforcing the policy would benefit the plaintiffs in any way. Because a favorable ruling by the district court would not redress their alleged injury, the plaintiffs do not have standing to pursue this claim.

Nonetheless, the plaintiffs contend that they have standing because the FAA has continued to prohibit private entities that have a contract with the FAA from hiring the strikers. However, even if the FAA continued to enforce its policy, none of the plaintiffs have alleged that they have applied for and have been denied employment with a private enterprise under contract with the FAA following the repeal of the policy. Therefore, the plaintiffs have not alleged that they have been injured from the continued enforcement of the policy that has been repealed. Accordingly, the plaintiffs lack standing to challenge the alleged enforcement of the repealed policy.

CONCLUSION

In view of the foregoing, we affirm the judgment of the district court.

      . Section 731.303 was amended in 1991 and now appears, as amended, at § 731.304. Because all the events at issue in the present case took place prior to 1991, all references in this opinion to § 731.303 are to the version of the rule that was in effect prior to the 1991 amendments.

      . Section 731.202 also was amended in 1991. All references to § 731.202 in this opinion are to the version of the rule that was in effect prior to the 1991 amendments.

      . Section 3301 provides that:
      The President may—
      (1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service;
      (2) ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and
      (3)appoint and prescribe the duties of individuals to make inquiries for the purpose of this section.
      Section 7301 provides that "[t]he President may prescribe regulations for the conduct of employees in the executive branch.”

      . In Executive Order No. 10577, the President authorized the Civil Service Commission, the predecessor of OPM, to “promulgate and enforce such regulations as may be necessary to carry out the provisions of the Civil Service Act and Rules, the Veterans’ Preference Act, and all other applicable statutes or executive orders imposing responsibilities on the Commission.” Exec. Order No. 10577, 19 Fed.Reg. 7521 (1954), reprinted as amended in 5 U.S.C. § 3301. In Executive Order No. 11222, the President authorized the Civil Service Commission "to establish!] regulations for the conduct of persons in the civil service.” Exec. Order No. 11222, 30 Fed.Reg. 6469 (1965), reprinted as amended in 18 U.S.C. § 201. As is apparent, neither of these orders totally divested the President of his statutory authority in relation to federal employment matters.

      . The APA’s notice and comment procedures provide in pertinent part:
      (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law____
      (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
      5 U.S.C. § 553.


source: Caselaw Access Project

author: WINTER, Circuit Judge:

license: Public Domain

text:
    Colleen RUSSMAN, a child with disabilities, by her parents, Patricia and Paul RUSSMAN, Plaintiffs-Appellees, v. Thomas SOBOL, as Commissioner of the New York State Education Department, Defendant, Board of Education of the Enlarged City School District of the City of Watervliet, New York, Defendant-Appellant.
    No. 996, Docket 95-7756.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 1, 1996.
    Decided June 12, 1996.
    As Amended June 27, 1996.

      Cory Haines, Law Intern, Disabilities Law Clinic of Albany Law School, Albany, New York (Nancy M. Maurer; Joseph Connors; Michael Cardinale, law intern, of counsel), for Plaintiff-Appellee.
    Stephen F. Bailly, Hicks & Bailly, Albany, New York, for Defendant-Appellant.
    Michael L. Costello, Albany, New York (Richard E. Barnes, John A. Liekweg, Mark A. Mainello, of counsel), for Amicus Curiae New York State Catholic Conference.
    Gerald A. Rosenberg, Rosenman & Colin, New York City (John F. Finnegan, Bruce M. Sabados, Rosemary Halligan, Stacey B. Creem, of counsel), for Amici Curiae New York State Schools are for Everyone, the National Association of Protection and Advocacy Systems, and Western New York Disability Law Coalition.
    Jay Worona, Albany, New York (Pilar Sokol, of counsel), for Amicus Curiae New York State School Boards Association, Inc.
    Before: OAKES, WINTER, and WALKER, Circuit Judges.
   WINTER, Circuit Judge:

This appeal presents important questions concerning obligations imposed upon public school authorities by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and the constitutionality of those obligations under the Establishment Clause of the First Amendment. Colleen Russman and her parents commenced this suit against the Board of Education of Watervliet, New York (the “school district”), alleging that the school district’s refusal to provide Colleen special education services at a parochial school violates Section 1413 of New York Educ. Law § 3602-c, and the Free Exercise Clause of the First Amendment to the United States Constitution. On cross-motions for summary judgment, Magistrate Judge Smith granted judgment for the school district on the grounds that: (i) IDEA forbids the school district from using federal funds to provide instructional services at a parochial school; (ii) New York law does not require the school district to provide special education services at parochial schools; and (iii) such aid is forbidden by the Establishment Clause of the First Amendment to the United States Constitution. Judge Cholakis reversed Magistrate Smith’s ruling and granted summary judgment for the Russ-mans. The school district appeals, and we affirm.

BACKGROUND

The pertinent facts are not in dispute and were set forth in detail in the two district court opinions, Russman v. Board of Educ., No. 93-CV-905, slip op. (N.D.N.Y., June 30, 1995); Russman v. Board of Educ., No. 93-CV-905, slip op. (N.D.N.Y., June 22, 1994), familiarity with which is assumed. Colleen Russman, currently fifteen years old, has been classified as mentally retarded since 1986. For the first five years of her schooling, Colleen was educated in classes set aside by the school district exclusively for children with disabilities. In the Spring of 1991, Colleen’s parents asked the school district’s Committee on Special Education to develop an Individualized Educational Program (“IEP”) for Colleen that would allow her to be “mainstreamed” into a regular, age-appropriate class. The IEP developed by the district called for the services of a consultant teacher to work with the regular classroom teacher in modifying the academic curriculum for Colleen and a teaching aide to assist Colleen directly with her studies. It provided as well for speech and occupational therapy. The parties agree that the mainstream program is appropriate for Colleen and that the services described in the IEP are necessary for her to be mainstreamed successfully. Agreement ends here.

Colleen and her parents wish to implement the IEP at St. Brigid’s Regional Catholic School, the school that Colleen’s two sisters attend. The Russmans can and will pay St. Brigid’s tuition, but they cannot afford to pay for the support services of a consultant teacher and a teaching aide. The Russmans do not seek special education services in connection with religious courses but only in connection with core academic subjects such as math and English. The school district refuses to implement the plan at a parochial school. Although the district provides speech and occupational therapy to other students at a “neutral” site at St. Brigid’s, the school district contends that the provision of a consultant teacher and a teaching aide for Colleen at St. Brigid’s would violate the Establishment Clause of the First Amendment.

The school district’s decision to provide Colleen with special education benefits only at a Watervliet public school was upheld by an impartial hearing officer on December 24, 1992. That decision was affirmed by the state review officer of the New York State Education Department on March 8, 1993. Subsequently, Colleen, then eleven years old, and her parents brought the present action alleging that the failure to provide the services at St. Brigid’s violates the Free Exercise Clause of the First Amendment to the United States Constitution as well as federal and state statutory law. During the pendency of the administrative proceedings and this litigation, Colleen has had her IEP implemented in a Watervliet public school.

DISCUSSION

We review a district court’s grant of summary judgment de novo, United States v. Articles of Banned Hazardous Substances, 34 F.3d 91, 96 (2d Cir.1994), affirming only where there are no genuine issues of material fact and the moving party is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

A The Establishment Clause

The First Amendment of the United States Constitution provides in relevant part that “Congress shall make no law respecting an establishment of religion.” U.S. Const. Amend. I. The school district argues that the Establishment Clause prohibits it from implementing Colleen’s IEP at St. Brigid’s. We disagree.

Where government programs are made available to a broad class of citizens defined in a religion-neutral fashion, the individuals receiving the benefits may choose to use them in a religious setting, and the program does not thereby violate the Establishment Clause. See Witters v. Washington Dept. of Servs., for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (Establishment Clause does not forbid blind student studying at Christian college from receiving generally available state assistance distributed to blind students for vocational training); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (state law that provided tax deductions for certain educational expenses not unconstitutional even though deductions might primarily benefit parents whose children attended sectarian schools); see also Rosenberger v. Rector and Visitors of the Univ. of Virginia, — U.S. -, - - -, 115 S.Ct. 2510, 2521-24, 132 L.Ed.2d 700 (1995) (state university does not violate Establishment Clause by funding printing services for student newspaper with heavily Christian themes where printing services are provided as part of policy of funding all student newspapers without respect to religion).

In Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Supreme Court held that a public school district may constitutionally use IDEA funds to provide a sign language interpreter for a deaf student at a Catholic high school. Id. at 13, 113 S.Ct. at 2469. Under Zobrest, the provision of governmental services to a religious school will survive a First Amendment challenge if: (i) the services are provided in a neutral manner without regard to religion; (ii) the services are provided at the parochial school not as a result of legislative choice but rather as a result of the private choice of the individual utilizing the services; and (iii) the funds traceable to the government do not “find their way into the sectarian schools’ coffers.” Zobrest, 509 U.S. at 10, 113 S.Ct. at 2468.

The special assistance required by Colleen’s IEP would satisfy these factors if provided at St. Brigid’s. First, the assistance is a neutral governmental service made available without regard to religion. See id. at 10, 113 S.Ct. at 2467-68. Second, the teaching aide and teaching consultant will provide services at St. Brigid’s solely because of a decision made by the Russman family. See id. Third, the special education benefits flow directly to Colleen and do not financially benefit St. Brigid’s. See id. (funds spent on special education services under IDEA not co-mingled with funds belonging to sectarian schools); see also Rosenberger, — U.S. at - - -, 115 S.Ct. at 2523-24 (where school pays third-party contractor to perform services to program beneficiaries and funds are not paid directly to religious organization, benefit received by religious organization is incidental and does not violate Establishment clause). Thus, provision of the stipulated services to Colleen falls within the scope of permissible activity under Zobrest.

We are not persuaded by the school district’s argument that under Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), it is prohibited from providing such services to Colleen. In Meek and Ball the Court struck down government programs that provided teachers, counselors, teaching materials, and equipment to sectarian schools. However, both cases involved massive grants provided directly to the parochial schools so as to benefit the religious institutions financially. See Meek, 421 U.S. at 364-65, 95 S.Ct. at 1762-63 (direct loan of teaching material and equipment, as well as teachers and guidance counselors, to private schools, 75 percent of which were religious); Ball, 473 U.S. at 375-79, 105 S.Ct. at 3218-20 (discussing school district’s shared time and community education programs, which provided classes to sectarian school students at public expense). These cases are therefore inapposite.

The school district also fails to persuade us that Zobrest authorizes only entirely mechanical assistance, such as verbatim translations by sign language or physical assistance in traveling. Although we recognize that, unlike the sign-language interpreter in Zobrest, the teaching aide and consultant here provide cognitive assistance, this distinction is not dispositive. The primary purpose of both a sign language interpreter and a teaching aide is solely to make the material intelligible to the disabled student, not to create a particular religious message or to advance a particular religious viewpoint. In such cases there is little danger of “excessive entanglement” by government actors with religion. See Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). To hold otherwise would interpret Zobrest in a way that distinguishes between students with physical disabilities, for whom mechanical assistance is necessary, and those with mental disabilities, for whom cognitive assistance is necessary, for purposes of IDEA. The statute makes no such distinction, and we decline to carve one into the Constitution. Because we decline to differentiate between cognitive and physical assistance, the parties’ dispute over whether religious content can be found in St. Brigid’s core curriculum is immaterial.

We turn now to the question of whether the state is required to provide these services at non-public schools.

B. The Individuals with Disabilities Act

The IDEA conditions monetary grants to states by requiring that they provide a “free appropriate public education” to disabled children, 20 U.S.C. § 1412(1), including special education or other services as needed by particular children, 20 U.S.C. §§ 1412(4), § 1414(a)(5). If necessary, a state may place a disabled child in a private school at public expense. 20 Ú.S.C. § 1413(a)(4)(B).

The statute imposes somewhat different obligations regarding disabled children who are voluntarily placed in private schools. It requires states to “providfe] for such children special education and related services.” However, this obligation is limited by the phrase “to the extent consistent with the number and location of’ such children in a state. Turning to pertinent regulations, 34 C.F.R. § 300.403, provides that:

[i]f a child with a disability has a [free appropriate public education] available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the child’s education at the private school or facility. However, the public agency shall make services available to the child as provided under [various regulations].

Other regulations state that school districts must afford to children who attend private schools benefits that are “comparable in quality, scope, and opportunity for participation to the program benefits that the [district] provides for students enrolled in public schools.” 34 C.F.R. § 76.654(a). They also require that each local educational authority “provide special education and related services designed to meet the needs of private school children with disabilities.”

The school district argues that although the IDEA requires it to provide Colleen with special education services, nothing in the statute or regulations requires that the school district provide the services on-site at a private school. The caselaw on this issue is mixed. At least two district courts have held that the IDEA compels states to provide on-site benefits to handicapped children at nonpublic schools. See Cefalu v. East Baton Rouge Parish Sch. Bd., 907 F.Supp. 966 (M.D.La.1995) (IDEA requires school district to provide sign-language interpreter for deaf student at parochial school); Fowler v. Unified Sch. Dist. No. 259, 900 F.Supp. 1540 (D.Kan.1995) (school district required to provide interpretive services for deaf student at private, non-sectarian school).

However, two courts of appeals have held to the contrary. In Goodall v. Stafford County Sch. Board, 930 F.2d 363 (4th Cir.), cert. denied, 502 U.S. 864, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991), the Fourth Circuit held that where a school district offered to provide services to disabled students at a public school, the Education of the Handicapped Act (“EHA”), an earlier version of the present IDEA, see Education of the Handicapped Amendments of 1990, Pub.L. No. 101-476, § 901, 104 Stat. 1103, 1141 (1990) (revising short title), did not require that the district make the services available to students at a sectarian school. In K.R. v. Anderson Community School Corporation, 81 F.3d 673 (7th Cir.1996), the Seventh Circuit held that a school district had discretion under the IDEA and pertinent regulations to decline to offer a full-time instructional assistant to a student at a private school so long as such an assistant was offered to the student at the public school. Cf. McNair v. Cardimone, 676 F.Supp. 1361 (S.D.Ohio 1987) (EHA does not compel provision of transportation to and from private school for child with hearing impairments), aff'd, 872 F.2d 153, 156-57 (6th Cir.1989) (affirming on ground that transportation is not service required by child’s disability but refusing to reach question whether EHA compelled provision of necessary services to handicapped children attending private schools).

It appears that the Department of Education shares the view that the IDEA affords some discretion regarding the on-site provision of special educational services at private schools. See 20 Individuals With Disability Educ.L.Rep. 1440 (1994) (memorandum stating that private school children need only be afforded genuine opportunity for equitable participation and have no entitlement to full range of services offered public school children); 22 Individuals With Disabilities Educ. L.Rep. 369 (1994) (response letter stating same); 16 Educ. for Handicapped L.Rev. 1398-1400 (1990) (response letter stating that whether or not public school needs to provide on-site services at private school depends on specific facts); 49 Fed.Reg. 48522 (1984) (public schools have “discretion to devise ... the most efficient scheme possible for providing adequate special education and related services to a number of, but not necessarily all, private school handicapped children”); 45 Fed.Reg. 22570 (1980) (public school need offer only genuine opportunity for equitable participation and what constitutes “genuine opportunity” will “vary widely, depending on local circumstances”).

Although we do not take the position that the IDEA requires the on-site provision at private schools of any and all services that might be required in the context of public education, we read the statute to accord greater rights to disabled children voluntarily in private schools than do some of the authorities cited above. In particular, we view Goodall as unpersuasive. Goodall relied, inter alia, on 34 C.F.R. § 76.532, which prohibits the use of IDEA funds for “religious ... instruction.” 930 F.2d at 369. This regulation is coextensive with the Establishment Clause and does not create any separate regulatory limitation on IDEA See Zobrest, 509 U.S. at 7 n. 7, 113 S.Ct. at 2465 n. 7. Central to Goodall’s holding was its view that provision of special services to a student in a parochial school would be unconstitutional and thus violative of Section 76.532. Because we hold that the provision of services to Colleen Russman at St. Brigid’s does not violate the Establishment Clause, see supra, we conclude that it likewise does not violate Section 76.532.

Athough Anderson is somewhat more persuasive, it nevertheless accorded excessive discretion to school authorities to deny the on-site provision of services to disabled students in private schools. Anderson relied principally on the different statutory and regulatory language used with regard to disabled students attending public schools and those voluntarily placed in private schools. Based on these differences, it concluded that there was “little doubt that ... Congress intended to give disabled students voluntarily attending private school a lesser entitlement,” 81 F.3d at 678, and permitted school authorities to refuse to provide an instructional assistant to a disabled student in a private school. Id. at 679.

Anderson is unquestionably correct that the rights accorded disabled students in public schools differ from those accorded such students voluntarily placed in private schools. However, the principal difference stems from the IDEA language limiting the obligation of states to provide special education and related services to private school students “to the extent consistent with the number and location” of disabled children voluntarily in private schools. Anderson failed, however, to analyze the import of the specific language with regard to the individualized service that was denied.

In our view, the quoted reference to the “number” of students involves services to groups of students rather than the individualized service at issue in Anderson and in the present case. If, to take a simple example, one occupational therapist can efficiently aid five disabled students and three therapists are available in a public school attended by fourteen such children, public school authorities are not required by the IDEA to provide a therapist to a private school with only one such student. In our view, the statute affords discretion to offer occupational therapy to the private school child only at a public school because of the higher per-student cost of providing it at the private school. However, nothing in the quoted language suggests that, where a private school is attended by five disabled children and the cost per student of providing an occupational therapist at the private or public school is identical, school authorities may limit such services to the public school. Nor does the language suggest that an individually tailored service may be offered only at a public school. The reference to the “number” of students suggests only that school districts have discretion to deny on-site provision of services at private schools where economies of scale in providing the services at one place exist.

With respect to the statutory reference to “location,” we read the IDEA to mean only that, where the provision of services at a distant private school would entail significant additional costs, e.g., transportation, to be borne by the state, public school authorities may fulfill their IDEA obligations by offering the services at a local public school.

We do not, therefore, agree with Anderson’s vesting of school authorities with broad discretion to deny on-site individualized services to private school students. Indeed, apart from the limiting language discussed above, the statute and regulations are more consistent with mandatory entitlements than with discretionary authority. Where the cost of special services does not vary with where they are provided, the IDEA and regulations regarding voluntary private school students make little sense if such services may be made available only in the public schools. The statute and regulations require that necessary services be provided to disabled private school students according to their needs rather than the name of their school, see Zobrest, 509 U.S. at 13, 113 S.Ct. at 2469, and state that such services must be “comparable in quality, scope, and opportunity for participation” to those offered to public school students. 34 C.F.R. § 76.654. Use of the word “comparable” strongly suggests that the provision of services will usually take place outside the public school. Otherwise, the regulation would simply provide that any services for the disabled available at a public school must be open to private school students.

Moreover, if services required by the IDEA need be provided only in public schools even absent fiscal concerns, then private school students are entitled under the IDEA to little more than after-school services. Most services required by an IEP must be provided during school hours to be effective. For example, a teaching consultant cannot benefit a disabled student in a private school if available only outside her school and divorced from her curriculum. If public school authorities may freely refuse to provide such benefits at private schools, therefore, disabled students must either forgo the IDEA benefits, bear their cost, or transfer to the public schools. This result, however, seems to be precisely what the statute and regulations seek to preclude. Indeed, the principal purpose of the statutory and regulatory commands appears to make a child’s disability irrelevant to the family’s choice of school, at least where differences in costs of provision do not exist.

Turning specifically to the facts of the present case, no claim is made by the school district that providing Colleen Russman with a teaching consultant and teaching aide at St. Brigid’s is significantly more expensive than providing the same services at the public school. Indeed, the only reason offered by the district for the denial of services is its view that the Establishment Clause prohibits the on-site provision of such services at a parochial school, an issue disposed of above. To obtain the benefits to which she is entitled under the IDEA, Colleen has been forced to abandon her choice of school, a result contrary to the purpose of the statute. We therefore hold that the IDEA requires the school district to provide Colleen with the consultant and aide at St. Brigid’s.

In view of our disposition of this matter, we need not address the Russmans’ Free Exercise and state law claims.

We therefore affirm.

      . Although Judge Cholakis's opinion suggests that some issues of fact remain for trial, see Russman v. Board of Education, No. 93-CV-905, slip op. at 5-6, 12 n. 12 (N.D.N.Y., June 30, 1995), a final judgment was nevertheless entered for plaintiffs. We see no issue for trial.


author: WALKER, Circuit Judge:

text:
    GOOD SAMARITAN HOSPITAL REGIONAL MEDICAL CENTER, Long Island College Hospital, and Northern Westchester Hospital Center, Plaintiffs-Appellants, v. Donna E. SHALALA, in her official capacity as Secretary of Health and Human Services, and Empire Blue Cross Blue Shield, Defendants-Appellees.
    No. 1157, Docket 95-6224.
    United States Court of Appeals, Second Circuit.
    Argued March 14, 1996.
    Decided June 12, 1996.

      Fredrick I. Miller, Garfunkel, Wild & Travis, P.C., Great Neck, New York (David E. Steekler, Linda C. Fentiman, Jordy Rabinowitz, of counsel), for Plaintiffs-Appellants.
    Martin Siegel, New York City (Mary Jo White, United States Attorney, Southern District of New York, Steven M. Haber, of counsel), Defendants-Appellees.
    Before: CARD AMONE, WALKER, and McLAUGHLIN, Circuit Judges.
   WALKER, Circuit Judge:

The plaintiffs, three New York not-for-profit hospitals, appeal from an August 4, 1995 judgment of the United States District Court for the Southern District of New York (William C. Conner, District Judge), reported at 894 F.Supp. 683 (S.D.N.Y.1995), granting summary judgment to defendants Donna Shalala, in her official capacity as Secretary of the Department of Health and Human Services (the “Secretary”), and Empire Blue Cross Blue Shield (“Empire”), and dismissing the plaintiffs’ amended complaint. We uphold the Secretary’s position that review by the Provider Reimbursement Review Board (“PRRB”) of a fiscal intermediary’s denial of a motion to reopen is precluded, and reject the plaintiffs’ contention that the statute and regulations require a different conclusion. Accordingly, we agree in substance with the thoughtful opinion of Judge Conner and affirm.

BACKGROUND

This action arises under Title XVIII of the Social Security Act (the “Medicare Act”), 42 U.S.C. §§ 1395-1395cce, a federally funded system of health insurance benefits for the aged and disabled. The plaintiffs are health service providers under the Medicare Act and are entitled to reimbursement for services rendered to Medicare beneficiaries. Defendant Empire is the fiscal intermediary from which the plaintiffs receive reimbursement. The facts of this dispute, which involves the plaintiffs’ attempt to reopen their Medicare claims for one or more of the 1986, 1987, and 1988 fiscal years, are set forth fully in the district court’s opinion, and we reiterate only those facts necessary to the disposition of this appeal.

In calculating the plaintiffs’ reimbursement rates for Medicare services, Empire did not take into account the alleged increase in the plaintiffs’ operating costs incurred as a result of the expansion and renovation of their facilities in the early 1980s. The plaintiffs requested that Empire reopen the payment determinations so that their claims could be increased. Empire refused the requests, and the plaintiffs timely sought review of the refusals from the PRRB. The PRRB denied the plaintiffs’ requests, holding that under 42 C.F.R. § 405.1885(c) it lacked jurisdiction to review Empire’s rulings not to reopen. That regulation provides: “Jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision.” 42 C.F.R. § 405.1885(c); see also Provider Reimbursement Manual (“PRM”) § 2932.1, reprinted in Medicare & Medicaid Guide (CCH) ¶7740 (1989).

Thereafter, the plaintiffs filed the instant action challenging the PRRB’s decisions not to review Empire’s reopening denials as well as Empire’s decisions themselves. Both sides moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, and the district court granted the defendants’ motion, holding that 1) the PRRB properly declined to review Empire’s refusal to reopen the plaintiffs’ claims for Medicare reimbursement and 2) the district court lacked jurisdiction to review the merits of Empire’s reopening denials. The plaintiffs now appeal.

DISCUSSION

In reviewing the district court’s grant of summary judgment, we must determine whether genuine issues of material fact exist and whether the law was correctly applied. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). Because this case contains no disputed factual issues, we are presented only with a legal issue of statutory interpretation. We review de novo the question whether the defendants were entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).

Under the Administrative Procedure Act (“APA”), we may set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Our review of the Secretary’s interpretation of the Medicare Act is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has directly addressed the question at issue, we “must give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. at 2781. If, on the other hand, the statute is silent or ambiguous with respect to the specific issue, we must defer to any reasonable construction of the statute by the Secretary. Id. at 843-44, 104 S.Ct. at 2781-83.

At issue in this case is Part A of the Medicare Act, which authorizes federal reimbursement of providers for various medical services provided to persons covered by Medicare. 42 U.S.C. §§ 1395c to 1395Í-4. Under the existing reimbursement system, health care providers are reimbursed for their treatment of beneficiaries on the basis of prospectively determined national and regional rates. 42 U.S.C. § 1395ww(d). Private insurance companies, acting as fiscal intermediaries for the Secretary, assist in the reimbursement process by determining the amount of reimbursement due. 42 U.S.C. § 1395h; 42 C.F.R. § 421.103. A provider seeking reimbursement must file an annual cost report with its fiscal intermediary. 42 C.F.R. § 413.20. Based on the report, the intermediary issues a “notice of amount of program reimbursement” (the “NPR”), which sets the amount of Medicare payment. 42 C.F.R. § 405.1803.

As the district court correctly observed, upon the issuance of an NPR, a provider may seek to have it corrected or altered in one of two ways. First, if a provider is dissatisfied with an intermediary’s “final determination” as to the amount of reimbursement, the provider has a right to obtain a hearing before the PRRB within 180 days of receiving its NPR. 42 U.S.C. § 1395oo (a)(l)-(3). If a provider then wishes to appeal a final decision of the PRRB, it may seek judicial review within sixty days. 42 U.S.C. § 1395oo (f)(1).

Principally at issue in this appeal is the second, alternative procedure for review. Under the Secretary’s regulations, providers may request the reopening of an NPR within three years of its issuance. 42 C.F.R. § 405.1885(a); see also PRM § 2931.2 (setting forth the criteria to be applied by the intermediary in deciding whether to grant reopening). The Secretary’s regulations limit jurisdiction to consider a motion to reopen to the “administrative body that rendered the last determination or decision.” 42 C.F.R. § 405.1885(c). The Secretary has interpreted this to mean that “[a] provider has no right to a [PRRB] hearing on a finding by an intermediary or hearing officer that a reopening or correction of a determination or decision is not warranted.” PRM § 2932.1; see id. § 2926.6(B)(4). Thus, reopening denials may not be appealed to the PRRB.

The availability of review by the PRRB of an intermediary’s decision not to reopen the cost reports has not previously been considered by this court, and the two circuits that have addressed this issue are split. Compare Athens Community Hosp. v. Schweiker, 743 F.2d 1, 4 n. 4 (D.C.Cir.1984) (not permitting review), overruled on other grounds, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988), with Oregon v. Bowen, 854 F.2d 346, 349 (9th Cir.1988) (permitting review). We write to make clear our views.

At the outset, we note that under the statutory scheme, the plaintiffs were not precluded from having the reimbursement determinations reviewed by the PRRB. Rather, for reasons not stated in the record, they simply missed the deadline. Congress has determined that a provider must be reasonably diligent in reviewing its NPRs so that a direct appeal may be filed. See 42 U.S.C. § 1395oo(a). In this case, the plaintiffs failed to appeal their NPRs within the time allotted and requested instead that Empire reopen consideration of their cost reports under 42 C.F.R. § 1885.

The plaintiffs assert that under the plain language of 42 U.S.C. § 1395oo (a), the intermediary’s determinations denying their reopening requests are reviewable by the PRRB because they were “final determinations.” Whether the PRRB’s decisions not to review Empire’s reopening denials may be appealed is governed by the meaning of “final determination” as that term is used in the statute, which states in relevant part:

Any provider of services which has filed a required cost report within the time specified in regulations may obtain a hearing with respect to such cost report by a Provider Reimbursement Review Board ... if—
(1) such provider—
(A)(i) is dissatisfied with a final determination of the organization serving as its fiscal intermediary pursuant to section 1395h of this title as to the amount of total program reimbursement due the provider ...,
(2) the amount in controversy is $10,000 or more, and
(3) such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination under paragraph (l)(A)(i)____

42 U.S.C. § 1395oo (a).

We find that the plain meaning of § 1395oo (a) does not compel a holding that a reopening denial is a “final determination” of the amount of total program reimbursement. To the contrary, we believe that the statute may be construed permissibly as stating that a reopening denial is a refusal to revisit the final determination. We agree with the defendants that a reopening denial is similar to a decision of a judicial panel denying rehearing that, as opposed to the initial panel opinion, no one contends to be an appealable order. See Binghamton Gen. Hosp. v. Shalala, 856 F.Supp. 786, 794 (S.D.N.Y.1994). As the district court correctly observed,

[wjhile ... a decision not to reopen is in some sense “final,” it does not, in and of itself, establish an “amount of total program reimbursement.” Instead, it is a final determination that there are not grounds on which to reconsider a previous final determination as to the amount of total program reimbursement.

Good Samaritan Hosp., 894 F.Supp. at 690 (citing Staten Island Hosp. v. Sullivan, No. 91-Civ-733, 1992 WL 675952, at *5 n. 6 (D.D.C. Mar. 31,1992)).

We now turn to the Secretary’s implementing regulations. These regulations authorize the reopening of NPRs on motion by the provider within three years. They also provide, however, that “jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision.” 42 C.F.R. § 405.1885(c). They do not address the appeal of denials of motions to reopen, but they do specifically provide for review of revisions to reopened cost reports. 42 C.F.R. § 405.1885(a). The Secretary has interpreted the jurisdictional restriction of the regulations as precluding PRRB review of an intermediary’s denial of a motion to reopen: “A refusal by the intermediary to grant a reopening requested by the provider is not appealable to the Board, pursuant to 42 C.F.R. § 405.1885(e).” PRM § 2926.6(B)(4).

Where, as here, “questions involving statutory construction arise, ‘great deference’ must be accorded ‘to the interpretation given the statute by the officers or agency charged with its administration.’ ” Allegheny Elec. Coop., Inc. v. FERC, 922 F.2d 73, 80 (2d Cir.1990) (quoting Power Auth. v. FERC, 743 F.2d 93, 103 (2d Cir.1984)), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 56, 116 L.Ed.2d 32 (1991). “[W]e must defer to the agency’s resolution of the matter if it is based on a permissible construction of the statute and is ‘sufficiently reasonable.’” Detsel v. Sullivan, 895 F.2d 58, 62 (2d Cir.1990) (citing Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83). Substantial deference must also be accorded the PRRB’s interpretation of the regulations. Thomas Jefferson Univ. v. Shalala, — U.S. -, - - -, 114 S.Ct. 2381, 2386-87, 129 L.Ed.2d 405 (1994).

Applying these standards, we find that the PRRB’s interpretation of 42 C.F.R. § 405.1885(e) as precluding review of Empire’s denial of the plaintiffs’ motion to reopen their cost reports “is based on a permissible construction of the statute” in a case where Congress has not directly spoken to the issue. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82. We are in ultimate agreement with the well-reasoned opinion of the district court that the PRRB’s interpretation of the statutory reviewability provision is a reasonable, permissible construction of the statutory scheme, which is entitled to considerable deference by this court. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83. We also find that the PRRB’s interpretation of the regulations was not an abuse of discretion under the APA.

We thus join the D.C. Circuit in finding that 42 U.S.C. § 1395oo, read by itself, leaves us in a “quandary” as to the availability of PRRB review over a reopening decision, see HCA Health Servs., Inc. v. Shalala, 27 F.3d 614, 618-19 (D.C.Cir.1994) (deferring to the Secretary’s interpretations in considering scope of reopening review, upon finding that reopenings are not specifically covered by statute), and that the PRRB’s view of its limited jurisdiction over reopening denials conforms with 42 U.S.C. § 1395oo (a), see Athens Community Hosp. v. Schweiker, 743 F.2d 1, 4 n. 4 (D.C.Cir.1984), overruled on other grounds, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988); see also HCA Health Servs., 27 F.3d 614.

We decline to join the Ninth Circuit, which has held that § 1395oo (a) expressly provides for such appeals. See Oregon v. Bowen, 854 F.2d 346 (9th Cir.1988). In Bowen, the Ninth Circuit concluded that § 1395oo (a) plainly provides for review of reopening decisions because they “implicate” the amount of total program reimbursement due the provider. Id. at 349. Furthermore, according to the Ninth Circuit, a finding of non-review-ability would “eviscerate[ ] the congressional intent of providing administrative review of a fiscal intermediary’s cost determination.” Id. at 350. The Ninth Circuit failed to consider, however, the difference between an initial reimbursement determination and a subsequent decision about whether to reopen that determination. In our view, the principal problem with the Ninth Circuit’s broad reading of the statute is that it “effectively gut[s] the 180-day appeal limitation expressly provided by § 1395oo (a)(3).” Good Samaritan Hosp., 894 F.Supp. at 690 (footnote omitted).

Finally, the plaintiffs argue on the merits that Empire should have granted their reopening motions and reimbursed them for certain outlays associated with their capital improvements. Judicial review of PRRB decisions is governed by 42 U.S.C. § 1395oo (f)(1), which provides in pertinent part:

Providers shall have the right to obtain judicial review of any final decision of the Board ... by a civil action commenced within 60 days of the date on which notice of any final decision ... is received.

In this ease, because the only final decision reached by the PRRB was that it lacked jurisdiction to review Empire’s reopening denials, the district court was limited to reviewing this decision and did not have jurisdiction to review the merits of Empire’s reopening decisions.

CONCLUSION

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

      . The sections of the PRM relevant to this appeal are reprinted in the Medicare and Medicaid Guide (CCH) ¶¶ 7700 et seq.


author: JACOBS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Jerome WALLACE, Defendant-Appellant.
    No. 1578, Docket 95-1703.
    United States Court of Appeals, Second Circuit.
    Argued June 3, 1996.
    Decided June 19, 1996.
    Celeste L. Koeleveld, Assistant U.S. Attorney, New York City (Mary Jo White, U.S. Attorney for the Southern District of New York, and Nancy Northup, Assistant U.S. Attorney, on the brief), for Appellee.
    Lawrence K. Feitell, New York City, for Defendant-Appellant.
    Before FEINBERG, JACOBS and CABRANES, Circuit Judges.
   JACOBS, Circuit Judge:

Jerome Wallace raises three challenges to his conviction for conspiracy to commit bank fraud in violation of 18 U.S.C. § 371: (i) the FBI “manufactured” federal jurisdiction, in the sense that the only link between Wallace’s crime and a federally-insured bank was supplied by the FBI; (ii) the evidence was insufficient to establish that Wallace conspired to defraud this particular bank; and (iii) Wallace could not have committed conspiracy to defraud this particular bank because the bank was never at risk of losing anything. We reject all three claims and therefore affirm.

I

In a Bronx apartment four years ago, Wallace showed Carl Corso several hundred stolen checks, most of which had been issued by the State of New Jersey Teachers’ pension fund. Wallace asked Corso to help him cash ten of the checks by setting up a bank account with the use of false information, double endorsing the checks, depositing them, withdrawing the money after the checks cleared, and abandoning the account. Corso tried to do this, but the bank would not accept his fake I.D. He then asked two friends to deposit two checks apiece in then-bank accounts. They did, and the scheme worked.

To cash the other six cheeks (in the amount of about $70,000), Corso enlisted Vinny Capri who, unfortunately for the schemers, was an FBI informant. After Vinny (falsely) told Corso and Wallace that he had deposited the cheeks, they demanded a deposit slip. The FBI provided Vinny with a phony deposit slip from a Citibank branch in downtown Manhattan (prepared with the cooperation of Citibank personnel), and Vinny gave it to Corso and Wallace. Wallace then instructed his “secretary” to call Citibank to confirm that the deposit had actually been made. After being put on hold several times by Citibank, the secretary aborted the call for fear that it was being traced.

After the time passed for the check to clear, Wallace demanded that Vinny withdraw the money. Vinny stalled. Wallace and his “associates” then stole Vinny’s truck and threatened him in a number of phone calls taped by the FBI. The critical call came on August 24, 1992. In between threats to Vinny and his family, Wallace specifically pressed Vinny to withdraw the money from Citibank:

Transcript at 5
No, Vinnie, go back in the bank and get my money now.
Transcript at 7
[G]o back in the bank and get something now, Vinnie.
Transcript at 16
I would advise you and I’m telling you this now, to sit in front of that bank and make sure there’s no more excuses. Do you understand that?
Hey, look, you don’t play games with my money. Three weeks to cash a check? What are you, you out your mind? Three fucking weeks to cash a check, you think I wanta see you anymore? It takes five days, you played with my money three weeks. You could’ve pulled out a thousand dollars at a time, I would of had all my money by now.

During this conversation, Vinny told Wallace he would deliver the money at a cafe on the Upper East Side. Wallace sent Corso and another associate to pick up the payment. After the pick-up, Wallace and his coconspirators were arrested.

Wallace, his brother Bruce, and Dwayne Register were indicted for bank fraud, extortionate collection of credit, and conspiracy to commit both crimes. Register pleaded out. A jury acquitted Bruce Wallace on all charges. Jerome Wallace was convicted on the substantive extortion charge and both conspiracy charges, and was acquitted on the substantive bank fraud charge. The district court granted Wallace’s motion for judgment notwithstanding the verdict on the two extortion charges, finding the evidence insufficient to prove that the extortion was used to collect an “extension of credit,” as that term is defined by statute. On the conspiracy to commit bank fraud charge, the court held that the government’s evidence and the jury instructions constructively amended the indictment. It therefore dismissed this charge without prejudice to any future indictment that might be returned on the same issue.

The government appealed. We affirmed the district court’s ruling on the extortion charges, but reversed on the conspiracy to commit bank fraud charge, holding that the indictment had not been constructively amended or varied. United States v. Wallace, 59 F.3d 333, 338, 340 (2d Cir.1995). The jury’s guilty verdict on the bank fraud conspiracy charge was thus reinstated, and the case returned to the district court. After sentencing, Wallace took this appeal, challenging the merits of his conviction on the three grounds listed above.

II

A “Manufactured” federal jurisdiction

Wallace’s offense constitutes conspiracy to violate the federal bank fraud statute only because the offense involved Citibank, which is a federally insured bank. See 18 U.S.C. §§ 20, 1344. Citibank became involved only because the FBI gave Vinny phony Citibank deposit slips, so that he could satisfy Wallace’s demand for proof that the deposit had been made. Wallace contends that this constitutes “manufactured” federal jurisdiction and that, under United States v. Archer, 486 F.2d 670 (2d Cir.1973), the indictment must therefore be dismissed.

In Archer, federal agents set up an elaborate sting operation to nab corrupt judges and prosecutors in Queens County. The agents arranged for undercover informants to commit several “crimes” and then kept watch as the prosecution process unfolded. During the course of the operation, the informants lied to local law enforcement officials, prosecutors, grand juries, and judges. To ensure that the corrupt acts committed by the targets of the investigation would constitute violations of the Travel Act, 18 U.S.C. § 1952, the informants placed interstate calls to the targets to discuss the scheme, and prompted the targets to make interstate calls by giving them out-of-state numbers at which the informants could supposedly be reached. Ultimately, a district attorney and local defense lawyer, among others, were indicted for violating the Travel Act. Id. at 672-74.

This Court held that the interstate phone calls were insufficient to satisfy the “use of a facility in interstate commerce” element under the Travel Act, because “the federal officers themselves supplied the interstate element” and had “[mjanufactured federal jurisdiction.” Id. at 682. On petition for rehearing, the court clarified its opinion, explaining that “there is no indication that the defendants agreed either to make or to cause to be made any interstate or foreign telephone calls.” Id. at 684-85.

Courts that have construed Archer have taken pains to limit its applicability, see United States v. Keats, 937 F.2d 58, 64-65 (2d Cir.) (interstate calls by federal agents can satisfy jurisdictional element as long as it was “reasonably foreseeable” to defendants that the calls would take place), cert. denied, 502 U.S. 950, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991), and to explain that “manufactured jurisdiction” as an independent doctrine is a dubious concept. See, e.g., United States v. LaPorta, 46 F.3d 152, 160 (2d Cir.1994); United States v. Podolsky, 798 F.2d 177, 180-81 (7th Cir.1986) (Posner, J.). These cases make clear that the “manufactured jurisdiction” concept is properly understood not as an independent defense, but as a subset of three possible defense theories: (i) the defendant was entrapped into committing a federal crime, since he was not predisposed to commit the crime in the way necessary for the crime to qualify as a federal offense, see Podolsky, 798 F.2d at 181; (ii) the defendant’s due process rights were violated because the government’s actions in inducing the defendant to commit the federal crime were outrageous, see LaPorta, 46 F.3d at 160; or (iii) an element of the federal statute has not been proved, so federal courts have no jurisdiction over the crime, see United States v. Clark, 62 F.3d 110, 112 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 734, 133 L.Ed.2d 684 (1996); Podolsky, 798 F.2d at 181. The first theory does not apply, since Wallace did not make an entrapment defense, and could not have made such a defense in any case since he was obviously predisposed to defraud banks. The second category is inapplicable as well: unlike the government’s conduct in Archer, which arguably could have supported a due process claim of outrageousness, the FBI committed no crimes here, acted with Citibank’s cooperation, and lied to no one (except the conspirators).

Thus, Wallace’s manufactured jurisdiction claim is assertable, if at all, only in aid of the third (jurisdictional) theory of defense, the one closest to the Archer scenario and holding. Courts have refused to follow Archer when there is any link between the federal element and a voluntary, affirmative act of the defendant. Thus, when confronted with situations in which (i) the FBI introduces a federal element into a non-federal crime and (n) the defendant then takes voluntary actions that implicate the federal element, this Court has consistently held that federal jurisdiction has not been improperly “manufactured” and that the statutory elements have been met, despite the surface similarity to Archer. See LaPorta, 46 F.3d at 154, 160 (FBI informant asked defendant, suspected of being an arsonist, if he would set fire to the informant’s “daughter’s car,” which was actually a government-owned car; conviction for destroying government property by fire upheld and claim of “manufactured jurisdiction” rejected, because “the defendants themselves committed the substantial jurisdictional act of burning the government [car]” (internal quotation marks omitted)); United States v. Lau Tung Lam, 714 F.2d 209, 210-11 (2d Cir.) (DEA informant in Europe, asked by defendant whether she knew of any heroin buyers, steered defendant to drug buyers in America; conviction for conspiracy to import heroin upheld and claim of “manufactured jurisdiction” rejected, because the defendant “himself committed the substantial jurisdictional act of bringing drugs into the United States”), cert. denied, 464 U.S. 942, 104 S.Ct. 359, 78 L.Ed.2d 322 (1983); United States v. Gambino, 566 F.2d 414, 418-19 (2d Cir.1977) (after government created phony garbage-collection business in the Bronx with ties to interstate commerce, defendants tried to intimidate the business into closing shop; Hobbs Act conviction upheld and claim of “contrived jurisdiction” rejected because “the activities of [the phony business] were necessarily wedded to interstate commerce” and because “[n]o one asked [the defendant] to threaten the FBI agent [posing as the business owner] or to hit him on the head”), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978).

Cases from other circuits make the same point. See Clark, 62 F.3d at 111, 114 (5th Cir.) (informant asked car thief to drive car across state lines for the sole purpose of establishing federal jurisdictional element; conviction for interstate transportation of stolen motor vehicle upheld and “manufactured jurisdiction” claim rejected because “the government had a legitimate interest in identifying and apprehending car thieves who are willing to steal cars in one state and transport them to another for disposition”); United States v. Peters, 952 F.2d 960, 963 (7th Cir.) (same facts and same result; “manufactured jurisdiction” claim rejected because the informant “merely furnished the defendant with an opportunity to complete his scheme”; “[t]he fact that the agents steered [the defendant] to commit a crime within federal jurisdiction rather than hand him over to [the local] police does not render federal jurisdiction inappropriate” (internal quotation marks omitted)), cert. denied, 503 U.S. 911, 112 S.Ct. 1277, 117 L.Ed.2d 503 (1992); Podolsky, 798 F.2d at 180 (7th Cir.) (informant asked arsonist to bum down a building over which there was federal jurisdiction for sole purpose of establishing jurisdiction; “[t]he Bureau of Alcohol, Tobacco and Firearms did not put 2438 West Division Street into interstate commerce; it was there all the time; they just induced [the defendant] to direct his criminal intentions there”).

With a proper understanding of Archer ’s limited precedential force, it is clear that Wallace’s “manufactured jurisdiction” argument fails, because all elements of the statute, as construed by the indictment, have been met. The indictment charged Wallace with conspiring “to execute a scheme and artifice to defraud a financial institution, to wit, Citibank ... in that the defendants would and did ... wrongfully receive payment on the [stolen] cheeks....” Although Citibank was introduced to the scheme only because of the FBI’s actions, Wallace did indeed “execute a scheme ... to defraud ... Citibank.” After Vinny told Corso and Wallace that the checks had been deposited, they demanded proof. The Citibank deposit slips were then produced. The testimony indicates that Wallace scrutinized the slips for authenticity and was well aware that the apparent location of the funds was Citibank. He even ordered his “secretary” to call Citibank in an attempt to confirm the deposit. Finally, in the phone conversation on August 24,1992, Wallace twice demanded that Vinny “go back in the bank and get my money now” and ordered him “to sit in front of that bank and make sure there’s no more excuses.” This evidence shows Wallace purposefully trying to defraud Citibank. Unlike the conspirators in Archer, who never agreed to make any interstate phone calls, Wallace and his coconspirators clearly undertook to pressure Vinny to withdraw money from Citibank. The jurisdictional element was therefore an essential part of the conspiratorial agreement. Since all of the statutory elements have been met, Archer, as limited by subsequent holdings, does not control, and Wallace’s “manufactured jurisdiction” claim must be rejected.

B. Insufficient evidence

As defined by the indictment, the purpose of the conspiracy was to “execute a scheme and artifice to defraud ... Citibank [by] wrongfully receiving] payment on the [stolen] cheeks.” The indictment listed ten overt acts that the defendants committed in furtherance of the conspiracy; by the time Wallace’s case reached trial, the list of ten was narrowed to three:

1. Two of Wallace’s coconspirators stole Vinny’s truck;
2. Wallace and others made a threatening phone call to Vinny on August 24, 1992; and
B. On the same day, two of Wallace’s coconspirators met Vinny and received a partial payment from him on the stolen checks.

Wallace argues that even if these acts were proved, they do not prove that he “committed any overt acts to ensure the[] collection [from] Citibank.” He thus claims that the government never proved the conspiracy as defined in the indictment.

During Wallace’s threatening phone call — the second overt act — he explicitly asked Vinny to withdraw the funds from “the bank,” which Wallace knew to be Citibank. The jury could easily have found that this phone call constituted an act in furtherance of an agreement to defraud Citibank by attempting to withdraw the money allegedly deposited there. Wallace’s argument therefore fails.

Because this argument fails, Wallace’s further argument (made in passing) that the jury charge was improper because it listed overt acts with no connection to a scheme to defraud Citibank, loses any force it may have had.

C. Impossibility of completing the conspiracy

Wallace points out that Citibank was never at risk of losing anything, and that it was therefore impossible to complete the conspiracy. He says that since the bank could not have been defrauded, there could be no conspiracy to commit bank fraud. This argument is meritless.

To be complete, a conspiracy simply requires (i) an agreement about the object of the conspiracy, (ii) specific intent to achieve that object, and (iii) an overt act in furtherance of the agreement. United States v. Montour, 944 F.2d 1019, 1024 (2d Cir.1991). That the conspiracy cannot actually be realized because of facts unknown to the conspirators is irrelevant. United States v. Giordano, 693 F.2d 245, 249 (2d Cir.1982) (“[I]t does not matter that the ends of the conspiracy were from the beginning unattainable.”). In Giordano, an FBI informant asked a suspected arsonist to bum down a fictitious piano store, invented by the FBI for the purposes of the sting. This Court explained why the defendant’s conspiracy conviction was appropriate despite the impossibility of completing the substantive offense:

The district judge thought that it would be impossible to establish the necessary link to interstate commerce for a business property that exists only in the “minds of government agents.” But a “misapprehension” by the conspirators as to facts that make it impossible for them to commit the crime that is the object of the conspiracy does not make the conspiracy less culpable.

Id. at 250; see also id. at 249 (“[F]ederal jurisdiction does not depend on proof that the objective of the conspiracy has been, or could have been, achieved.”); United States v. Shively, 715 F.2d 260, 267 (7th Cir.1983) (bank fraud conspiracy conviction upheld even though bank was not federally insured, because defendants thought it was federally insured), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984). Since a sham business may be the victim of a conspiracy, a fortiori an existing business that was never in harm can be the victim of a conspiracy as well.

Wallace’s attempt to rely on United States v. Blackmon, 839 F.2d 900 (2d Cir.1988), and United States v. Morgenstern, 933 F.2d 1108 (2d Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1188, 117 L.Ed.2d 430 (1992), is unavailing. In Blackmon, this Court reversed the defendants’ bank fraud convictions because the victim of the defendants’ fraud was not the bank, but a woman whom the defendants had duped into withdrawing her money from the bank. The bank withdrawals in Blackmon were completely legal, 839 F.2d at 906-07, which is no small ground for distinguishing that case. Here, had the facts been as Wallace believed, the withdrawal of money from Citibank would have been illegal, since stolen checks were the source of the funds. And unlike Blackmon, there can be no question here that one of the intended victims of the conspiracy was Citibank, and that Citibank would have suffered actual harm had the facts been as Wallace believed.

Morgenstern can give Wallace no comfort, because the defendant’s bank fraud conviction was upheld there on the ground that he had intentionally defrauded the bank and the bank had actually been victimized. See 933 F.2d at 1113-14 (distinguishing Blackmon). Our case is the same.

* * * * * *

Having rejected all of Wallace’s claims, we affirm the judgment of the district court.

      . On the original appeal, Wallace challenged only the district court’s ruling that the government could seek another indictment on the bank fraud conspiracy charge. His claim that this violated the Double Jeopardy Clause was mooted by the Court's reinstatement of the jury's guilty verdict on the bank fraud conspiracy charge. This is therefore Wallace’s first opportunity to appeal the merits of his conviction.

      . Our research has uncovered only two appellate court cases (both in the Fourth Circuit) in which
        Archer was followed and convictions were overturned because of "manufactured” jurisdiction. In United States v. Coates, 949 F.2d 104, 105 (4th Cir.1991), jurisdiction was founded solely on one interstate phone call placed by a federal agent; so there was no affirmative link between the federal element and the defendant’s actions. In United States v. Brantley, 777 F.2d 159 (4th Cir.1985), cert. denied, 479 U.S. 822, 107 S.Ct. 89, 90, 93 L.Ed.2d 42 (1986), agents set up a sham gambling den with equipment and liquor brought from other states. The court overturned the Hobbs Act conviction of a local sheriff who had shielded the gambling operation, because "the [interstate] commercial predicate for federal jurisdiction” was achieved merely by "pretense,” id. at 163, and was not "reasonably necessary or appropriate” in the circumstances. Id. at 162. The validity of the reasoning in Brantley has been questioned by one court. See Podolsky, 798 F.2d at 180. In addition, the Brantley court allowed the sheriff’s conspiracy conviction to stand, since ”[i]f the true facts had been as they believed them to have been, commerce would clearly have been affected.” Id. at 163, 164. Since our case involves only a conspiracy conviction, the section of the Brantley opinion overturning the sheriff's substantive conviction has limited reference.

      . Wallace does not claim that the conduct charged in the indictment falls outside the statute.