author: BRYSON, Circuit Judge.

text:
    Robin G. BOYD, Petitioner v. OFFICE OF PERSONNEL MANAGEMENT, Respondent
    2016-1078
    United States Court of Appeals, Federal Circuit.
    Decided: March 20, 2017

      Cono A. Carrano, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, argued for petitioner. Also represented by Ryan S. Stronczer.
    Adam E. Lyons, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr, Elizabeth M. Hosford.
    Before O’MALLEY, BRYSON, and WALLACH, Circuit Judges.
   BRYSON, Circuit Judge.

I

Petitioner Robin Boyd was a mail processor for the United States Postal Service from 1985 to 2010. On March 2, 2011, she applied for immediate retirement based on disability. She also applied for disability retirement annuity benefits under the Federal Employees Retirement System (“FERS”).

By letter dated June 21, 2011, the Office of Personnel Management (“OPM”) notified Ms. Boyd that it had approved her application for disability retirement annuity benefits. The letter explained that OPM would provide her' with monthly interim FERS benefits in the amount of approximately 80% of her actual FERS benefits. The letter further explained that Ms. Boyd would not receive FERS benefits until OPM received confirmation that she had applied for Social Security disability benefits. The letter directed Ms. Boyd to apply for Social Security benefits and to notify OPM when she applied for those benefits.

In a separate paragraph, the letter contained the following directive, in boldface type: “If the Social Security Administration awards you monthly benefits, you must immediately notify us of the amount and the effective date of the monthly benefit.”

The June 21, 2011, letter also explained that Ms. Boyd’s FERS benefits would be offset by any Social Security benefits she received. The offset for the first year would be 100% of her Social Security benefits; the offset after the first year would be 60% of her Social Security benefits. See also 5 U.S.C. § 8452(a). The letter then stated, also in boldface type:

Because .the FERS disability benefit must be reduced by 100 percent of any Social Security benefit payable for 12 months, Social Security checks should not be negotiated until the FERS benefit has been reduced. The Social Security checks will be needed to pay OPM for the reduction which should have been made in the FERS annuity.

Ms. Boyd admits that she received the June 21, 2011, letter. She then applied for Social Security benefits and continued receiving interim FERS benefits.

On August 18, 2012, the Social Security Administration advised Ms. Boyd that she was entitled to monthly Social Security benefits starting with the month of August 2012. Ms. Boyd provided a copy of that notice to OPM in September 2012.

OPM did not immediately reduce Ms. Boyd’s FERS benefits by the amount of her Social Security benefits. Nor did Ms. Boyd refrain from negotiating the Social Security checks she received. Instead, she negotiated the Social Security checks. Five months later, on January 20, 2013, OPM sent Ms. Boyd a letter stating that her FERS benefits had been adjusted in light of the Social Security benefits she had received since August 2012, and advising her that she had been overpaid for the months of August 2012 through December 2012 in an amount totaling $3,322. The letter stated that OPM would recover the overpayment by offsetting her FERS benefits in 36 monthly installments of $92.27 beginning in April 2013.

On February 6, 2013, Ms. Boyd requested a waiver of her obligation to reimburse OPM for the overpayment; alternatively, she requested a reduced payment schedule based on financial hardship. To support her request, she enclosed a completed OPM Financial Resources Questionnaire in which she detailed her financial condition. Following that request, OPM refrained from withholding funds from her monthly benefits, pending resolution of the waiver issue.

In a letter dated December 8, 2014, OPM advised Ms. Boyd of the requirements for a waiver of the reimbursement obligation. OPM informed her that it needed an updated Financial Resources Questionnaire from her “in order to make a fair decision on [her] request for waiver of the overpayment.”

Ms. Boyd did not send OPM an updated Financial Resources Questionnaire, and on January 16, 2015, OPM denied her request for a waiver. The denial letter stated that, “[biased on the evidence of record, including your written submissions, [OPM] finds that recovery of the overpayment would not be against equity and good conscience.” However, upon considering Ms. Boyd’s 2013 Financial Resources Questionnaire, OPM adjusted her repayment schedule and reduced the monthly offset by more than half, from .$92 to $40.

Proceeding pro se, Ms. Boyd appealed OPM’s denial to the Merit Systems Protection Board. In her appeal form, she elected e-filing and provided an email address to receive notifications of filings and orders.

On February 10, 2015, the administrative judge assigned to Ms. Boyd’s appeal ordered her to submit any evidence and argument in support of her appeal within 30 days. Ms. Boyd did not file anything. The administrative judge then issued an order directing Ms. Boyd to show good cause for her failure to respond, explaining that absent a response, the administrative judge would decide the case without a hearing and based solely on the written record. Ms. Boyd again filed nothing.

The written record included Ms. Boyd’s OPM file. But missing from the OPM file was the Financial Resources Questionnaire that had been attached to her February 2013 waiver request; only the first page of that waiver request was included, which did not include her responses to the questionnaire.

Based on the written record, the administrative judge affirmed OPM’s denial of a waiver. The administrative judge found that Ms. Boyd had not demonstrated eligibility for a waiver because, “[although she timely notified OPM after she was awarded [Social Security] disability benefits,” she was “not without fault regarding the overpayment.” Specifically, the administrative judge found that Ms. Boyd had “neither alleged nor proved that she did not receive OPM’s [June 21, 2011] letter,” and that “[a]s such, she was instructed not to negotiate any [Social Security] benefits checks until her FERS payment had been reduced.” Ms. Boyd was “not without fault,” the administrative judge ruled, because she had failed to set aside the Social Security checks as the June 21, 2011, letter had directed. The administrative judge did not reach the question whether collection of the overpayment would be against equity and good conscience.

With regard to the adjustment of the repayment schedule, the administrative judge noted that Ms. Boyd did not submit a Financial Resources Questionnaire in the appeal or offer other evidence regarding her monthly income and expenses. For that reason, the administrative judge concluded that there was no evidence to refute the reasonableness of the reduced payment schedule proposed by OPM.

Ms. Boyd filed a petition for review by the full Board. She submitted new evidence of financial hardship and alleged that she had not received any of the administrative judge’s communications. She explained that although she had arranged to be notified of all Board proceedings by email, her fiancé had deleted the emails sent by the Board, thinking they were spam.

The Board affirmed the administrative judge’s decision that Ms. Boyd was not entitled to a waiver of her repayment obligation. The Board concluded that she was not entitled to a waiver because OPM had instructed her not to negotiate the Social Security benefits checks, yet she had done so. The Board also found that any shortcomings in the record before the administrative judge were the result of Ms. Boyd’s lack of due diligence. With respect to Ms. Boyd’s reassertion of her claim of financial hardship, the Board found that in light of her failure to offer evidence regarding her monthly income and expenses, there was no reason to disturb the administrative judge’s decision affirming OPM’s adjusted monthly repayment schedule.

II

Ms. Boyd argues that the Board abused its discretion (1) in determining that she was at fault for the overpayment even though she notified OPM of her award of Social Security benefits, (2) by failing to consider evidence of financial hardship she had submitted to OPM and to the Board, and (3) by finding that she had not shown good cause for her failure to respond to the Board’s electronic notices.

A

Regarding OPM’s collection of FERS overpayments, 5 U.S.C. § 8346(b) provides, in pertinent part:

Recovery of payments under this sub-chapter [including FERS annuity benefits] may not be made from an individual when, in the judgment of the Office of Personnel Management, the individual is without fault and recovery would be against equity and good conscience.

The statute delegates to OPM the authority to determine what constitutes “without fault” and “recovery [that] would be against equity and good conscience.” OPM has done so by regulation, 5 C.F.R. § 831.1401 et seq., and through published policy guidelines interpreting its regulations. Ret. & Ins. Grp., U.S. Office of Pers. Mgmt., Policy Guidelines on the Disposition of Overpayments under the Civil Service Retirement System and the Federal Employees’ [sic] Retirement System (1995) (“Policy Guidelines”).

As pertinent here, the regulations provide that a recipient of an overpayment is “without fault if he/she performed no act of commission or omission which resulted in the overpayment.” 5 C.F.R. § 831.1402. One of the considerations bearing on the finding of fault is whether the recipient “accepted a payment which he/she knew or should have known to be erroneous.” Id. § 831.1402(a)(3). The regulations state that recovery is “against equity and good conscience” when, among other factors, recovery “would cause financial hardship to the person from whom it is sought.” Id. § 831.1403(a)(1).

OPM’s Policy Guidelines explain in more detail what is required for a waiver of FERS benefits overpayments under the regulations. The guidelines state: “In general, an individual is not without fault if,” inter alia, “he/she accepted a payment which he/she knew to be erroneous[] or ... should have-known to be erroneous.” Policy Guidelines § I.B.3. However, the guidelines also provide an exception to the determination of fault:

Prompt Notification Exception. Individuals who accept a payment in excess of the amount to which they are entitled will automatically be found without fault, regardless of whether they knew or should have known that the payment was erroneous, if they promptly contact OPM and question the correctness of the payment. In general, an individual must contact OPM within 60 days of the receipt of the overpayment — i.e., a onetime prompt notification requirement. (Note: This rule provides an exception to the general rules cited above (I.B.3) by allowing certain persons who knowingly accept overpayments to be found without fault if they demonstrate good faith by promptly bringing the overpayments to OPM’s attention. However, the fact that they suspected or knew that they had received an overpayment — as evidenced by their contacting of OPM — will have a bearing on equity and good conscience determinations. See the Set-Aside Rule, guideline I.C.4.)

Policy Guidelines § I.B.6.

The Set-Aside Rule, to which the Prompt Notification Exception refers, states:

Individuals who are aware that they are receiving overpayments are obligated by the principles of equity and good conscience to set aside the amount overpaid pending recoupment by OPM. Thus, an individual who accepted a payment which he/she suspected or knew to be erroneous but who is found without fault under the Prompt Notification Exception (I.B.6) is obliged to set the overpaid money aside pending recovery by OPM.... Unless there are exceptional circumstances, recovery by OPM in these cases is not against equity and good conscience. (Note: Exceptional circumstances would involve extremely egregious errors or delays by OPM— e.g., a failure to issue a written decision within 4 years of a debtor’s request for waiver. Financial hardship is not an exceptional circumstance.)

Policy Guidelines § I.C.4 (internal citations omitted).

As the quoted passages from the OPM Policy Guidelines make clear, an individual who is overpaid but who promptly notifies OPM of the overpayment is categorically deemed to be “without fault.” For such an individual, the remaining question is whether recovery of the overpayment would be against equity and good conscience. Under the Set-Aside Rule, if that individual suspected or knew that he or she had received an overpayment (and therefore had an obligation to set aside the overpaid funds), the individual is not eligible for a waiver under the “equity and good conscience” standard and would be entitled to relief only under the more exacting “exceptional circumstances” standard.

1. OPM argues that substantial evidence supports the administrative judge’s finding of fault, and that the administrative judge “properly declined to consider the equity and good conscience factor.” But OPM’s guidelines are directly contrary to OPM’s position before this court. In this appeal, OPM ignores the Prompt Notification Exception and does not explain why that exception is inapplicable to Ms. Boyd. Contrary to OPM’s argument, the Prompt Notification Exception plainly applies to Ms. Boyd’s situation, because after the Social Security Administration informed Ms. Boyd that she had been awarded Social Security benefits, she notified OPM within 60 days of her receipt of Social Security benefits for August 2012.

The Board has applied the Prompt Notification Exception in similar circumstances, with OPM’s acquiescence. E.g., Maxwell v. Office of Pers. Mgmt., 78 M.S.P.R. 350, 361 (1998) (“OPM stipulated below that the appellant was ‘without fault’ ”); James v. Office of Pers. Mgmt., 72 M.S.P.R. 211, 218 (1996) (“[B]oth OPM and the administrative judge apparently found that the appellant’s response to OPM’s questionnaire ... stating that he was receiving social security disability payments was sufficient to meet the ‘prompt notification’ requirement so as to render him without fault”).

We conclude that Ms. Boyd is without fault under the plain terms of OPM’s guidelines. The administrative judge’s contrary finding was based on an erroneous interpretation of the law. See Gose v. U.S. Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006).

2. OPM next argues that even if the Prompt Notification Exception applies, it does not justify a waiver in this case. 'OPM points out that Ms. Boyd has raised only a claim of financial hardship; according to OPM, she was required to show “exceptional circumstances” in order to be eligible for a waiver. As OPM’s Policy Guidelines make clear, the “exceptional circumstances” standard is much more demanding than the “equity and good conscience” standard, as “exceptional circumstances” are limited to “extremely egregious errors or delay by OPM.” But OPM’s argument skips an important step.

As noted, for a person like Ms. Boyd who is “without fault,” the OPM guidelines require a determination whether that person “suspected or knew” that he or she had received an overpayment. The administrative judge, however, did not decide that critical question. OPM takes the position that there was no need for the administrative judge to do so. OPM argues that Ms. Boyd must demonstrate exceptional circumstances to obtain a waiver, and notes that she has only alleged and put forth evidence of financial hardship, which is not an exceptional circumstance. Policy Guidelines § I.C.4.

We find no support in the OPM Policy Guidelines for OPM’s argument. The Set-Aside Rule is clear: It applies if the recipient of a payment “knew” — or, at a minimum, “suspected” — that the payment was erroneous. Policy Guidelines § I.C.4. The Set-Aside Rule does not apply to individuals who do not know or suspect they are being overpaid. Those individuals do not know that the money does not belong to them, and may act in good faith when they fail to set aside the ' overpayments. See Okonski v. Office of Pers. Mgmt., 63 M.S.P.R. 446, 453 (1994) (appellant could not reasonably have been expected to set aside money if he did not have a reason to know that it was an overpayment).

To place unknowing individuals in the same position as knowing individuals is an unreasonable interpretation of the guidelines, as it renders the language requiring knowledge superfluous. Policy Guidelines § I.C.4 (“Individuals who are aware that they are receiving overpayments are obligated by the principles of equity and good conscience to set aside the amount overpaid pending recoupment by OPM. Thus, an individual who accepted a payment which he/she suspected or knew to be erroneous ... is obliged to set the overpaid money aside”); see also id. § I.B.3 (“[T]he fact that they suspected or knew that they had received an overpayment — as evidenced by their contacting of OEM — will have a bearing on equity and good conscience determinations.”).

The analysis is therefore different for unknowing individuals, for whom the equity and good conscience test applies. And for such persons, financial hardship can serve as a basis for finding that recovery is against equity and good conscience. 5 C.F.R. § 831.1403(a)(1).

3. Even though the question of knowledge was not answered below, OPM argues that Ms. Boyd knew of the overpayment based on the administrative judge’s finding that Ms. Boyd received the June 21 notice. OPM points out that Ms. Boyd followed the instruction in the notice to inform OPM of her award of Social Security benefits. According to OPM, that proves she understood the notice, which also “instructed her” not to negotiate her Social Security benefits; therefore, according to OPM, she knew she was supposed to set those payments aside.

This may be enough evidence from which to infer knowledge. But Ms. Boyd argues it is not, both because the June 21 letter was less clear than OPM contends and because of her personal circumstances. This is a factual debate for the Board to resolve in the first instance. Because neither the administrative judge nor the Board made any findings on the issue of knowledge, we remand for a determination of whether Ms. Boyd knew or suspected that she had been overpaid, and if she did not, whether the recovery of the overpayment would be against equity and good conscience.

4. There is a final point that warrants discussion. In the penultimate paragraph of its opinion, the Board stated that the administrative judge correctly found that Ms. Boyd had not submitted a Financial Resources Questionnaire for Board review or any other evidence regarding her monthly income and expenses. In light of her failure to submit such evidence, the Board found “no reason to disturb the initial decision finding that Ms. Boyd had been overpaid and that she had failed to prove that the reduced repayment schedule would cause her financial hardship.” While the Board’s reference to the absence of evidence of financial hardship could be read as setting forth an alternative ground for upholding the administrative judge’s decision on the issue of waiver, the portion of the administrative judge’s opinion to which that discussion was addressed, as clearly stated in the Board’s final decision, was the portion discussing the adjustment of the repayment schedule. The ground relied on by the administrative judge for denying Ms. Boyd’s requested waiver— and the ground upheld by the Board regarding her waiver request — was that she was not without fault regarding the overpayment, and that conclusion, we hold, was legally erroneous.

B

Ms. Boyd also contends that the Board abused its discretion in finding that she failed to show good cause for her failure to respond to the Board’s electronic notices.

Ms. Boyd relies on the “good cause” standard from 5 C.F.R. § 1201.12, which provides that “[a] judge may, for good cause shown, waive a Board regulation unless a statute requires application of the regulation.” See Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982) (affirming Board decision not to excuse untimely filing of appeal under 5 C.F.R. § 1201.12 when untimeliness resulted from “inexcusable lack of diligence” and “carelessness”).

The Board rejected Ms. Boyd’s argument on the ground that her failure to file a prehearing submission or to request a hearing was attributable to her lack of diligence. See Rocha v. Merit Sys. Prot. Bd., 688 F.3d 1307, 1311 (Fed. Cir. 2012) (stating that, under good cause standard, the Board “acted well within its discretion” in refusing to allow untimely filing when the petitioner did not “carry his burden to establish that he exercised due diligence or ordinary prudence in monitoring his case.”).

The only explanation Ms. Boyd provides for her failure to submit evidence to the administrative judge or to respond to the administrative judge’s show-cause order by requesting a hearing is that her flaneé deleted all the emails sent by the Board from the email account she chose to use for e-filing. That explanation, however, does not justify her failure, given her choice to register as an e-filer.

As the Board noted, Ms. Boyd chose to receive Board communications exclusively by email. See 5 C.F.R. § 1201.14(e)(1) (“Registration as an e-filer constitutes consent to accept electronic service of ... documents issued by the [Board].”); id. § 1201.14(j)(2) (providing that the Board will serve by non-electronic means only when advised of non-delivery of e-mail, followed by a second failed attempt). Moreover, even if the relevant emails were mistakenly deleted, Ms. Boyd was “responsible for monitoring [her] case activity at the Repository at e-Appeal Online to ensure that [she] ha[d] received all case-related documents.” Id. § 1201.14(j)(3); see also id. § 1201.14(j)(2) (noting that “[delivery of e-mail can encounter a number of failure points” and stating that “[e]-filers are responsible for ensuring that e-mail from @mspb.gov is not blocked by filters”).

c

Notwithstanding Ms. Boyd’s failure to respond to the administrative judge’s directions regarding the submission of evidence and argument, and her failure to request a hearing, the administrative judge’s decision, sustained by the Board, was based on a legally erroneous application of the overpayment recovery statute, 5 U.S.C. § 8346(b), as interpreted by OPM in its regulations and Policy Guidelines. We therefore vacate the Board’s order and remand for further consideration of Ms. Boyd’s claim under the correct legal standards.

VACATED AND REMANDED

      . The opinion refers to a "January 16, 2015 letter.” That date appears to be a scrivener’s error in light of the administrative judge's preceding reference to "OPM's June 21, 2011 letter” and the discussion of its contents.

      . OPM does not argue that this court should defer to its litigating position in this case as an authoritative interpretation of OPM’s regulations and guidelines. It has therefore waived that argument. See Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1369 (Fed. Cir. 2015). In any event, we note that an agency’s interpretation of its own regulations is not entitled to deference if, as in the case of OPM’s brief, the interpretation is "plainly erroneous or inconsistent with the regulation.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012). While in some circumstances an agency’s litigation position has been accorded deference as reflecting the agency’s interpretation of its own regulations, that is not true in a case such as this one, where the agency’s litigating position is "wholly unsupported by regulations, rulings, or administrative practice.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); see also Inv. Co. Inst. v. Camp, 401 U.S. 617, 628, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (Where Congress has delegated authority to an agency, it "has delegated to the administrative official and not to appellate counsel.”). We note that the practice of according deference in some instances to positions taken in agency briefing has been the subject of considerable recent debate. United Student Aid Funds, Inc. v. Bible, - U.S. -, 136 S.Ct. 1607, 1608, 195 L.Ed.2d 241 (2016) (Thomas, J., dissenting from denial of certiorari); see also Johnson v. McDonald, 762 F.3d 1362, 1366-67 (Fed. Cir. 2014) (O’Malley, J., concurring). But even in its most vigorous form, that practice would not support the interpretation of OPM’s regulations and guidelines found in the brief submitted on behalf of OPM in this case, particularly in light of the fact that the position taken in the brief differs from the position OPM took when it applied the guidelines to Ms. Boyd’s waiver request in its January 16, 2015, denial letter.

      . The Board’s finding that the June 21, 2011, letter "instructed” Ms. Boyd to set aside the overpayments does not constitute a finding that she knew or suspected that she was obliged to do so. She alleged in her original Appeal Form and in her petition for review to the Board that she did not understand that she had been overpaid. What matters is not what she was "instructed” to do, but whether she adverted to and understood that instruction.

      . According to the guidelines, a "[kjnowledge [d]etermination ... should take into account” multiple factors, including "the individual's age, physical and mental condition, and/or the nature of the information supplied to him/ her by OPM or a Federal agency.” Policy Guidelines § I.B.4.

      . A further reason for not upholding the Board's decision on waiver based on the absence of evidence of financial hardship is that OPM failed to include Ms. Boyd's 2013 Financial Resources Questionnaire in the agency record that was sent to the Board, which may have affected the Board’s financial hardship analysis. That evidence, if it is available, should be considered on remand to the extent the Board concludes it is relevant.
      Ms. Boyd also claims that the administrative judge and the Board failed to consider evidence of financial hardship that she submitted. On remand, if Ms. Boyd prevails on her claim that she did not know or suspect she was receiving overpayments, the Board will be free to consider that evidence, and any other evidence it considers appropriate in addressing the issue of financial hardship.

      . Ms. Boyd argues that administrative judges "should provide more guidance to pro se appellants and interpret their arguments in the most favorable light." O’Keefe v. U.S. Postal Serv., 318 F.3d 1310, 1316 (Fed. Cir. 2002). Here, however, the administrative judge did not have the opportunity to provide such guidance, given Ms. Boyd’s nonresponsiveness. Ms. Boyd’s pro se status does not excuse her failure to meet the e-filing requirements. See Rocha, 688 F.3d at 1310 (concluding that the Board did not abuse its discretion in refusing to allow the untimely filing of a petition for review by a pro se petitioner because he "was required by regulation” to monitor his case activity).


source: Caselaw Access Project

author: REYNA, Circuit Judge.

license: Public Domain

text:
    UNIVERSITY OF UTAH, Plaintiff-Appellee v. MAX-PLANCK-GESELLSCHAFT ZUR FOERDERUNG DER WISSENSCHAFTEN E.V., a corporation organized under the laws of Germany, Max-Planck-Innovation GmbH, a corporation organized under the laws of Germany, Whitehead Institute for Biomedical Research, a Delaware corporation, Massachusetts Institute of Technology, a Massachusetts corporation, Alnylam Pharmaceuticals, Inc., a Delaware corporation, Robert L. Caret, President of The University of Massachusetts in his official capacity, James R. Julian, Jr., Christine M. Wilda, Senior Vice President for Administration & Finance and University Treasurer of the University of Massachusetts, in his official capacity, James P. McNamara, Executive Director, Office of Technology Management of the University of Massachusetts, in his official capacity, their predecessors and successors in office, Defendants-Appellants University of Massachusetts, a Massachusetts corporation, David J. Gray, Defendants
    2016-1336
    United States Court of Appeals, Federal Circuit.
    Decided: March 23, 2017

      Mabk Carlson, Hagens, Berman, Sobol, Shapiro LLP, .Seattle, WA, argued for plaintiff-appellee. Also represented by Steve Berman.
    Morgan Chu, Irell & Manella LLP, Los Angeles, CA, argued for defendants-appellants. Also represented by David Isaac Gindler, Alan J. Heinrich; Sandra Haber-ny, Newport Beach, CA.
    Before O’MALLEY, REYNA, and WALLACH, Circuit Judges.
   REYNA, Circuit Judge.

Defendants-Appellants (“Max Planck”) appeal a decision of the United States District Court for the District of Massachusetts, which found that this case was not “exceptional” within the meaning of 35 U.S.C. § 285 and thus denied Max Planck’s motion for attorney fees. The district court did not abuse its discretion. We therefore affirm.

Background

A. Discovery of the Patented Invention

The underlying dispute concerns inven-torship of the Tuschl II patents, which relate to the field of RNA interference (“RNAi”). RNAi is a process for “silencing” certain genes from expressing the proteins they encode, which may be useful in treating a variety of diseases, particularly those associated with overactive or mutated genes.

In March 2000, well before the Tuschl II invention was reduced to practice, Dr. Thomas Tuschl .and his colleagues published an article describing their various discoveries in the field of RNAi. Less than a month later, Dr. Brenda Bass, of the University of Utah (“UUtah”), published a mini-review in Cell magazine that summarized the state of RNAi research, focusing on Dr. Tuschl’s article. In addition to summarizing current research, Dr. Bass’ mini-review included several of her own hypotheses about enzymatic processes that may be responsible for the RNAi activity reported in Dr. Tuschl’s article. One of those hypotheses involved molecules that have a feature called “3’ overhangs,” which are certain double-stranded RNA (“dsRNA”) molecules with a nucleotide overhang on the 3’ ends of dsRNA.

After publishing his article, Dr. Tuschl transitioned to a new line of research that would result in the patented Tuschl II invention. Dr. Tuschl and his colleagues focused on design and testing of candidate molecules to advance their goal of .developing synthetic drugs that could trigger RNAi in mammals and be used for therapeutic purposes. It is undisputed that Dr. Tuschl read Dr. Bass’ mini-review, recognized her hypothesis that 3’ overhangs may be relevant to RNAi, and tested that hypothesis. Those tests were successful; data from cloning and 'sequencing revealed that species with 3’ overhangs were prevalent in active RNAi systems. See, e.g., ’704 patent col. 18 l. 14-col. 19 l. 25. Based on these data, the Tuschl II inventors chemically synthesized candidate molecules with and without 3’ overhangs and tested for RNAi activity. See id. They determined that small synthetic dsRNA with 3’ overhangs (dubbed “siRNA”) can be more effective at inducing RNAi than dsRNAs without 3’ overhangs. See id. The Tuschl II inventors demonstrated that their synthetic siRNAs could trigger RNAi for therapeutic purposes in mammals, including humans. See id. at col. 21 l. 27-col. 23 l. 67.

Max Planck filed a patent application for the discovery. Dr. Bass’ mini-review was cited as prior art during prosecution of all ten of the Tuschl II patents, each of which issued. After the patent applications were filed, the Tuschl II inventors published two articles reporting their findings. Dr. Bass was a journal referee for both articles, and she recommended publication.

B. Inventorship Challenge

UUtah, on behalf of Dr. Bass, sued Max Planck for correction of ownership, claiming that Dr. Bass should be named as either a sole or joint inventor of the Tuschl II patents. UUtah’s claim of sole inventor-ship turned on allegations that Dr. Bass reduced to practice the concept that molecules with 3’ overhangs would be integral to RNAi, focusing primarily on Dr. Bass’ mini-review in Cell magazine. Its claim of joint inventorship turned on alleged collaboration between Dr. Bass and the Tuschl II inventors that occurred over several conversations at various academic conferences. J.A. 162 — 65.

Max Planck moved to dismiss, but the district court denied the motion, finding that UUtah sufficiently alleged the facts necessary to state claims for sole and joint inventorship. J.A. 144-46. The parties proceeded to discovery.

During her deposition, Dr. Bass made several admissions undermining UUtah’s allegation that Dr. Bass reduced the Tuschl II invention to practice. When asked if she ever did “any of the experiments or generate[d] any of the data that is included in the Tuschl II patents,” she responded: “Not that I know of.” J.A. 4109. She explained that: “The subject of the Tuschl II patent is trying to figure out how to put siRNAs on cells and make them work. My lab does not study that downstream pathway.” J.A. 4103. When asked if her lab “ever studied how to put siRNAs on cells and make them work,” she responded: “No.” Id. When asked if she ever tested siRNAs as agents for targeting messenger RNAs for research or therapeutic purposes, she responded: “No.” J.A. 4107. In relation to her role as a journal referee for the articles that revealed the Tuschl II findings, Dr. Bass was asked whether she suggested to anyone that she was not being properly credited as the discoverer of the 3’ overhangs, and she responded: “I don’t think it would have ever crossed my mind to say that.” J.A. 4112.

Other admissions during her deposition directly contradicted UUtah’s allegations that Dr. Bass collaborated with the Tuschl II inventors. The only supported allegation was that Dr. Bass and Dr. Tuschl met for dinner during a conference and discussed Dr. Tuschl’s research in relation to Dr. Bass’ hypothesis relating to the 3’ overhangs. J.A. 4104, 4108, 4113-16, 4124.

On the eve of the deadline for dispositive motions in district court, UUtah withdrew its sole inventorship claims, with prejudice. J.A. 180-84. Nevertheless, UUtah decline to withdraw its joint inventorship claim. The district court granted Max Planck’s motions for summary judgment with respect to the joint inventorship claims.

The district court reasoned that there was no evidence to support a finding of collaboration between Dr. Bass and the Tuschl II inventors. While Dr. Bass’ mini-review was admittedly integral to the Tuschl inventors’ research, the mini-review was already in the public domain by the time the Tuschl inventors relied on it. Therefore, the district court reasoned, the Tuschl II inventors’ reliance on the mini-review could not, on its own, support a finding of collaboration. J.A. 4068-69. T1 district court recognized the evidence that Dr. Tuschl and Dr. Bass had one discussion over dinner that may have influenced Dr. Tuschl’s invention, but declined to find that such discussion at an academic conference could constitute the collaboration needed to establish joint inventorship. J.A. 4073 - 76.

C. Motion for Attorney Fees

Max Planck sought eight million dollars in attorney fees pursuant to 35 U.S.C. § 285, arguing that the case was “exceptional” within the meaning of this section for three reasons. First, Max Planck argued that, when viewed in light of Dr. Bass’ deposition testimony, UUtah lacked any meaningful basis for filing its correction of inventorship suit. According to Max Planck, UUtah either filed its complaint without properly interviewing Dr. Bass, or filed its complaint knowing that Dr. Bass’ testimony wbuld undermine the allegations. Second, Max Planck argued that UUtah’s delay in withdrawing its sole in-ventorship claim until the eve of summary judgment indicates that UUtah knew its claim was meritless. Third, Max Planck argued that UUtah’s claimed damages were extortionately high.

The district court denied the motion for fees. The district court disagreed that the case was objectively unreasonable when all reasonable inferences were drawn in UU-tah’s favor. J.A. 4. The summary judgment record supported UUtah’s contentions that Dr. Tuschl incorporated Dr. Bass’ hypothesis into his research, that Dr. Bass’ work made a significant contribution to the patented invention, and that the contribution was corroborated by the mini-review published in Cell magazine. J.A. 4.

The district court also explained that, even though UUtah could not ultimately produce the evidence necessary to win, its inventorship claim was predicated on a valid interpretation of Kimberly-Clark Corp. v. Proctor & Gamble Distributing Co., 973 F.2d 911, 917 (Fed. Cir. 1992), which held that one inventor seeing a relevant report and building upon it might be an element of joint behavior supporting collaboration. According to the district court, UUtah was entitled to base its case on seeking an extension of the holding in Kimberly-Clark, even though it did not prevail.

The district court agreed that UUtah’s sole inventorship argument had little factual support, but credited UUtah for withdrawing that argument prior to summary judgment. The district court also agreed that Utah’s damages request was high, but declined to find anything exceptional about its position. Ultimately, the district court concluded that this case was not exceptional because: “Although Utah may have been asking for pie in the sky, that does not differentiate this case from most patent cases.” J.A. 5-6.

Max Planck appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

Standard of Review

We apply an abuse of discretion standard to all aspects of a district court’s determination regarding fees under § 285. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., - U.S. -, 134 S.Ct. 1744, 1749, 188 L.Ed.2d 829 (2014). An abuse of discretion occurs when a district court’s decision commits legal error or is based on a clearly erroneous assessment of the evidence. Id. at 1748 n.2. “A factual finding is clearly erroneous if, despite some supporting evidence, we are left with the definite and firm conviction that a mistake has been made.” Insite Vision Inc. v. Sandoz, Inc., 788 F.3d 853, 858 (Fed. Cir. 2015).

Discussion

Max Planck argues that the district court disregarded the Supreme Court’s direction in Octane Fitness, LLC v. Icon Health & Fitness, Inc., - U.S. -, 134

S.Ct. 1749, 188 L.Ed.2d 816 (2014) by failing to consider the substantive weakness of UUtah’s litigation position in light of Dr. Bass’ deposition testimony. We disagree.

A district court “in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. An exceptional ease “is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, 134 S.Ct. at 1756. This is “a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one.” Id. at 1758.

District courts have discretion to make exceptional case determinations on a ’ case-by-ease basis, considering the totality of the circumstances. Id. at 1756. Therefore, there is “no precise rule or formula for making these determinations.” Id. A “case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award.” Id. at 1757. Other non-exclusive factors that may support, a finding of exceptional case include frivolousness, motivation, objective unreasonableness of a case’s factual or legal components, and the need in particular circumstances to advance considerations of compensation and deterrence. Id. at 1756 n. 6. The district court made no finding that any of these factors applied here.

The district court provided a thorough explanation for why it did not find this case to be exceptional. Max Planck’s argument that the district court abused its discretion in failing to follow the Octane Fitness framework presumes that there is a precise Octane Fitness framework. That is not correct. Octane Fitness provides several suggestions that might guide a district court’s discretionary decision. For example, Octane Fitness suggests that objective unreasonableness may support the finding of an exceptional case. Id. While the district court agreed that UUtah’s case was weak and based on insufficient eviden-tiary support, it provided a detailed explanation as to why it disagreed that UUtah’s case was objectively unreasonable.

Rather than providing any set formula to dictate the district court’s consideration of this issue, Octane Fitness defines an exceptional cáse as one that “stands out from others with réspect to the substantive strength of a party’s litigating position.” Id. at 1756. The district court explained why UUtah’s position did not stand out from other patent cases, and Octane Fitness does not require anything more.

This court has recognized that the Supreme Court’s opinions in Octane Fitness and Highmark stress a district court’s discretion to determine whether a case is exceptional on a case-by-case basis, considering the totality of the circumstances:

“[Bjeeause [the district court] lives with the case over a prolonged period of time,” Highmark, 134 S.Ct. at 1748, it is in a better position to determine whether a ease is exceptional and it has discretion to evaluate the facts on a case-by-case basis. Octane Fitness, 134 S.Ct. at 1756.

SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1351 (Fed. Cir. 2015) (alterations in original).

Max Planck presents evidence from the record suggesting that the district court failed to take certain facts into account and overstated the factual and legal strength of UUtah’s position. UUtah presents evidence from the record suggesting the contrary and defending its litigation strategy. We should be wary to wade in such circumstantial waters. The trial judge was in the best position to understand and weigh these issues. She had no obligation to write an opinion that reveals her assessment of every consideration. This court will not second guess her determination. We affirm.

AFFIRMED

      . The Tuschl II patents include U.S. Patent Nos. 7,056,704; 7,078,196; 8,329,463; 8,362,231; 8,372,968; 8,445,237; 8,765,930; 8,778,902; 8,796,016; and 8,853,384.


author: PER CURIAM:

text:
    NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Vonage Holdings Corporation, Intervenor
    No. 15-1497
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 8, 2017
    Decided March 24, 2017

      James Bradford Ramsay, Washington, DC, argued the cause for petitioner. With him on the briefs was Jennifer Murphy.
    Matthew J. Dunne, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the briefs were Robert B. Nicholson and Sean Sandoloski, Attorneys, U.S. Department of Justice, Jonathan B. Sallet, General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and Richard K. Welch, Deputy Associate General Counsel. Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, entered an appearance.
    Elizabeth A. Bonner argued the cause for intervenor. With her on the brief was Brita D. Strandberg, Washington, DC.
    Before: GARLAND, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.
   PER CURIAM:

This petition challenges the Order of the Federal Communications Commission authorizing interconnected Voice-over-Internet-Protocol service providers (“I-VoIPs”) to obtain North American Numbering Plan telephone numbers directly from the Numbering Administrators rather than through intermediary local phone service numbering partners. Numbering Policies for Modern Communications, 30 FCC Rcd. 6839 (2015) (“Order”). The National Association of Regulatory Utility Commissioners (“NARUC”) challenges the Order, contending that the Commission has effectively classified I-VoIP service as a Title II telecommunications service, or acted arbitrarily by delaying a classification decision or by extending Title II rights and obligations to I-VoIPs in the absence of classification. Because NARUC fails to show that it has standing to challenge the Order, the court lacks jurisdiction and the petition is dismissed.

I.

The Communications Act, as amended by the Telecommunications Act of 1996, defines two mutually exclusive categories of communication services: “telecommunications service” and “information service.” 47 U.S.C. § 153(24), (53). Providers of telecommunications service are subject to regulation as common carriers under Title II of the Act, id. § 153(51), while information services are not. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 974, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

Prior to the challenged Order, the Commission’s regulations required “an entity requesting numbering resources to demonstrate that it is ‘authorized’ to provide service in the area for which it is requesting telephone numbers.” Order ¶ 20. The entity had to produce “evidence of either a state certificate of public convenience and necessity [ ] or a Commission license.” Id. ¶ 4. Absent such evidence, I-VoIPs had to “partner with a carrier,” usually a local exchange carrier (“LEC”), and pay that carrier a Primary Rate Interface service fee in order to get telephone numbers. Id. ¶¶ 17 n. 54, 69. In 2004, the Commission issued a notice of proposed rulemaking to classify VoIP, among others, as a “telecommunications service,” In re IP-Enabled Services, WC Docket No. 04-36, 19 FCC Rcd. 4863 (2004), but had taken no further action in that separate proceeding when the challenged Order was issued.

In 2005, the Commission began granting waivers of its rules to permit I-VoIPs, including Vonage Holdings Corporation, to “obtain numbers directly from the Numbering Administrators” without a carrier partner. Order ¶ 4. I-VoIPs that received direct number access through waivers had to “process[ ] port requests directly rather than going through a LEC.” In re Administration of the North American Numbering Plan, 20 FCC Rcd. 2957, 2962 (2005), at ¶ 9. For I-VoIPs that did not receive waivers, the regulations, beginning in 2007, imposed portability requirements where “both an interconnected VoIP provider and its numbering partner [ ] facilitate a customer’s porting request to or from an interconnected VoIP provider.” In re Telephone Number Requirements for IP-Enabled Service Providers, 22 FCC Rcd. 19531, 19532, 19548-49 (2007), at ¶¶ 1, 30, 31, 32, aff'd Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536 (D.C. Cir. 2009).

The Order revised the regulations to allow I-VoIPs, without state certification, to “obtain telephone numbers directly from the Numbering Administrators, subject to several conditions designed to minimize number exhaust and preserve the integrity of the numbering system.” Order App. C ¶ 3. Following a six-month trial period that demonstrated “there are no technical barriers preventing interconnected VoIP providers from accessing numbering resources directly,” Order ¶ 4, the Commission concluded direct access Would “facilitate innovative technologies and services that will benefit both consumers and providers, and further the Commission’s recognized pro-consumer, pro-competition, and public safety goals,” id. ¶ 2. The Commission thereby allowed number access “directly to interconnected VoIP providers, without regard to whether they are [common] carriers,” id. ¶ 78, noting that it had yet to classify “interconnected VoIP services as either telecommunications services or information services,” id. ¶ 79 n. 282. The revised regulations continued to ensure that users of I-VoIP services would obtain the benefits of local number portability, regardless of whether the I-VoIP provider obtained numbers directly or through a carrier partner. Id. ¶ 55.

The Commission rejected NARUC’s argument that its exclusive authority over numbering under 47 U.S.C. § 251(e)(1), is limited by provisions imposing number portability and cost recovery obligations on “telecommunications carriers.” See 47 U.S.C. §§ 251(b) & (e), 153(37) & (51). It interpreted these provisions to set a statutory floor that did not limit the Commission’s authority to extend numbering requirements to other service providers. See Order ¶¶ 79-82.

NARUC petitions for review of the Order.

II.

As a threshold matter, the Commission and Vonage Holdings Corporation maintain that NARUC members lack standing under Article III of the Constitution to challenge the Order because NARUC has failed to show its members suffered any injury-in-fact as. a result of the Order. In the Commission’s view, NARUC members were not harmed by the Order and any harm stems from the Commission’s failure to date to classify VoIP services as a “telecommunications service, subject to Title II common carriage regulation.” Resp’t’s Br. 22. Vonage Holdings Corporation, in turn, argues that the Order does not change the rights or responsibilities of NARUC members but maintains the status quo ante authority of the state commissions to regulate VoIPs. Intervenor’s Br. 17-18.

“[A]n association has standing to bring suit on behalf of its members when [ ] its members would otherwise have standing to sue in their own right; [ ] the interests it seeks to protect are germane to [its] purpose; and [ ] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 58 L.Ed.2d 383 (1977); Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). So, to establish standing under Article III, NARUC must demonstrate that: (1) at least one of its members was injured in fact, meaning an “actual or imminent, not conjectural or hypothetical” injury; (2) the injury was caused by the Order; and (3) the court can redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). Where, as here, NARUC members are not directly regulated by the challenged agency action, standing is “substantially more difficult to establish.” Id. at 562, 112 S.Ct. 2130; see Pub. Citizen, Inc., 489 F.3d at 1279. Furthermore, “[b]are allegations are insufficient [] to establish a petitioner’s standing,” and where that standing is not self-evident,- the petitioner in its opening brief “must support each element of its claim to standing by affidavit or other evidence.” Sierra Club v. EPA, 292 F.3d 895, 898, 899 (D.C. Cir. 2002) (quotation omitted); Scheduling Order 2 (Feb. 24, 2016) (citing D.C. Cir. Rule 28(a)(7)). Although the court sua sponte may seek supplemental submissions to satisfy itself that the petitioner has Article III standing, see American Library Association v. FCC, 401 F.3d 489, 494 (D.C. Cir. 2005), no supplemental submission is needed here.

Although NARUC bears the “burden of proof ... to show a substantial probability that it has been injured,” Sierra Club, 292 F.3d at 899 (quotation omitted), NARUC does not address standing in its opening brief beyond a single sentence, asserting without elaboration that “the Order undermines its members’ authority directly and indirectly.” Pet’r’s Br. 17. In its Reply Brief, NARUC states standing is “evident” from its opening brief, Reply Br. 12, because the Order “impacted” state commissions’ ability to carry out “tasks central to a federal scheme,” id. at 15. Essentially, then, NARUC maintains its standing is self-evident and consequently it is relieved of the obligation of present affidavits or other evidence in support of standing. See Sierra Club, 292 F.3d at 899. NARUC offers two theories of standing in its Reply Brief but neither is persuasive, and its standing is not self-evident.

First, NARUC maintains that the Commission’s actions injure its members’ “designated role in Congress[’s] plan,” Reply Br. 19, by allowing I-VoIP service providers to obtain telephone numbers without being classified as “telecommunications carriers,” Pet’r’s Br. 33. This failure to classify I-VoIPs, NARUC suggests, denies states certain regulatory authority that applies only to telecommunications carriers. Yet NARUC does not challenge the I-VoIP’s ability to obtain numbers directly. Instead, it maintains that the Order has the effect of classifying I-VoIPs as a Title II telecommunications service and this court should either confirm that fact, see Pet’r’s Br. 17-33, or vacate the Order and remand this matter to require the Commission to so classify I-VoIPs by a date certain, see id. at 62. It is undisputed that if the Commission had so classified I-VoIP service providers they would have direct access to numbers and number portability rights and obligations. See Order ¶ 4; Pet’r’s Br. 39. Consequently, NARUC has shown no injury-in-fact that is caused by the Order, but at most only harm as a result of the legal route and rationale the Commission used to reach its result. Because NARUC has not demonstrated it was “adversely affected by the Commission’s holding,” its objection to the Order’s underlying rationale is not the kind of harm that generally constitutes injury-in-fact. Int’l Bhd. of Elec. Workers v. Interstate Commerce Comm’n, 862 F.2d 330, 334 (D.C. Cir. 1988); cf. Telecomm. Research & Action Ctr. v. FCC, 917 F.2d 585, 588 (D.C. Cir. 1990).

Moreover, although NARUC asserts the Order diminishes its members’ regulatory authority, it never ties that claimed harm to the regulatory changes made in the Order. Specifically, NARUC states that I-VoIP’s “unresolved [classification] status” undercuts its members’ authority to “arbitrate interconnection disputes between telecommunications carriers,” Pet’r’s Br. 13; Reply Br. 14 n. 4 (citing 47 U.S.C. § 252) (emphasis in original), and to protect “customers of telecommunications services,” Pet’r’s Br. 9 n. 11 (citing 47 U.S.C. § 253) (emphasis in original). The Order addresses only direct number access and enhanced portability, leaving undisturbed the Commission’s separate classification proceeding. Order ¶ 79 n. 282. “Because this Order is not the source” of the harm arising from the Commission’s classification delay, NARUC’s claim of injury is misdirected. Cf. Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541-42 (D.C. Cir. 2009). Absent affidavits or other supporting evidence, NARUC fails to explain how it suffers a concrete, particularized injury simply because I-VoIPs are not yet classified by the Commission. NARUC identifies no state authority that depends on whether interconnected VoIP is classified by the Commission as a telecommunications service; instead, all the statutory provisions NARUC invokes depend on whether I-VoIP is a telecommunications service. See, e.g., Pet’r’s Br. 13 (citing 47 U.S.C. §§ 252, 253(b)). Under NARUC’s view that “I-VoIP is a [t]elecommunications [s]ervice,” Pet’r’s Br. 28, the states can already' exercise those statutory powers. NARUC fails to explain what additional concrete benefit the Commission classification would provide to states. Therefore, NARUC fails to identify a concrete harm inflicted by the Order’s inaction on classification.

Second, NARUC maintains its members are injured by the “Order’s raison d’etre— which is to permit I-VoIP providers the option to bypass either becoming State-certified or dealing with a State-certified carrier.” Reply Br. 12 (citing Order ¶ 21). It maintains that its members suffered an injury because “the Order substitutes a necessarily less direct and arguably more burdensome procedure for States” to carry out their role in “actively policing] utilization (to avoid State area code exhaustions).” Reply Br. 13; see Oral Arg. Tape 6:15-6:50; 9:28-9:40. The Commission has delegated to state commissions the authority to “resolve matters involving the introduction of new area codes within their states,” which includes “[djirecting whether area code relief will take the form of a geographic split, an overlay area code, or a boundary realignment.” 47 C.F.R. § 52.19(a); see Order ¶ 27 n. 88. NARUC does not explain how these proceedings have become more burdensome, much less how the Order has caused a more burdensome procedure for the state commissions to carry out their delegated duties. That objection overlooks that the Commission has preserved the numbering authority of state commissions. See Order ¶ 24. The Order requires I-VoIP service providers to “file requests for numbers with the relevant state commission(s) at least 30 days before requesting numbers from the Numbering Administrators,” id. ¶24, and I-VoIPs that directly access numbers are required to “adher[ej to the numbering authority delegated to state commissions for access to data and number reclamation,” id. ¶ 27. Indeed, when NARUC’s counsel was asked during oral argument to describe, in light of Paragraph 24, how the Order harmed NARUC, counsel appeared to deflect the question, responding that its members “were not happy” with the Order. Oral Arg. Tape 32:30-34:20. Unhappiness, however, does not meet’ the first prong of Article III standing. Because it is not self-evident that state commissions’ procedures have become more burdensome for NARUC members, NARUC fails to demonstrate an injury-in-fact. Again, “[bjare allegations” are insufficient. Sierra Club, 292 F.3d at 898.

Accordingly, because NARUC has failed to demonstrate an injury-in-fact, and thus failed to establish Article III standing to challenge the Order, the court lacks jurisdiction and the petition for review is dismissed.


author: SRINIVASAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee v. Daniel FRY, Appellant
    No. 15-3062
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 21, 2016
    Decided March 31, 2017

      Michael Alan Olshonsky, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant.
    David P. Saybolt, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.
    Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit Judges.
   SRINIVASAN, Circuit Judge:

Daniel Fry pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Fry raises procedural and substantive challenges to the sentence imposed against him by the district court. His arguments principally revolve around the proposition that the district court, for policy-based reasons, should have varied from the Sentencing Guidelines provisions addressing child-pornography offenses. We reject Fry’s arguments and affirm the sentence imposed by the district court.

I.

On June 11, 2014, Fry met an undercover agent on a social-networking site after Fry had posted several links to child pornography on the site’s public chat room. On June 24, 2014, Fry contacted the undercover agent, who was posing as the father of an eight-year-old girl. During their conversation, Fry offered to send the agent forty videos of child pornography in exchange for watching (via webcam) the agent sexually abuse the purported eight-year-old child. Fry then sent the agent several images and videos containing child pornography. Many of the images and videos depicted prepubescent females engaging in sex acts with adults and other prepubescent children.

Officers arrested Fry and executed a search warrant at his home. During the search, the officers recovered over 600 images of child pornography. The images included depictions of prepubescent children engaged in sadomasochistic sex acts.

Fry pleaded guilty to one count of possession of child pornography. As part of his plea agreement, Fry agreed to the applicability of certain enhancements under the Sentencing Guidelines because his child-pornography offense involved: material with a prepubescent minor or minor under twelve, U.S.S.G. § 2G2.2(b)(2), distribution of material, id. § 2G2.2(b)(3)(F), portrayal of sadistic or masochistic conduct, id. § 2G2.2(b)(4), use of a computer, id. § 2G2.2(b)(6), and 600 or more images, id. § 2G2.2(b)(7)(D). Fry also agreed that his estimated Sentencing Guidelines range was 97 to 121 months and that a sentence within that range would be reasonable.

The district court sentenced Fry to 108 months of imprisonment, to be followed by 120 months of supervised release. Fry now appeals his sentence.

II.

Fry raises both procedural and substantive challenges to his sentence.'The government contends as a threshold matter that we should decline to address Fry’s arguments because, as part of his plea agreement, he waived the right to appeal any sentence within the Guidelines range. Fry responds that his appeal waiver should not be enforced because the district court mischaracterized the waiver in a colloquy with Fry in his plea hearing. See United States v. Godoy, 706 F.3d 493, 495-96 (D.C. Cir. 2013). We have no need to resolve whether Fry waived his right to appeal his sentence. Because the waiver question does not go to our court’s jurisdiction, we can forgo deciding it if we reject Fry’s sentencing challenges on the merits, which we do here for reasons we now explain. See United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015).

A.

We first address Fry’s claim that the district court procedurally erred in imposing his sentence. Because Fry failed to raise his procedural objections in the district court, we review the claims for plain error. See United States v. Melgar-Hernandez, 832 F.3d 261, 266 (D.C. Cir. 2016). To prevail under the plain-error standard, Fry must show that the district court made a “(1) legal error that (2) was plain, (3) affected the defendant’s ‘substantial rights,’ and (4) seriously affected the ‘fairness, integrity or public reputation of the judicial proceedings.’ ” United States v. Head, 817 F.3d 354, 359 (D.C. Cir. 2016) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Fry fails to satisfy that standard.

Fry initially contends that the district court failed to give adequate consideration to the sentencing factors set out in 18 U.S.C. § 3553(a). That provision calls for a sentencing court to consider certain factors, including the nature and circumstances of the offense, the defendant’s history, the seriousness of the offense, the need to deter criminal conduct and protect the public from further crimes, the sentencing range, and the interest in avoiding unwarranted sentence disparities among similarly situated defendants. A district court, however, “need not consider every § 3553(a) factor in every case.” In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008).

The district court gave adequate consideration to those factors here. The court explained that it viewed the offense conduct to be particularly serious because Fry offered to give the undercover agent pornographic materials if the agent would allow Fry to watch the agent sexually abuse a child victim. The case therefore involved “more than possession. We have bartering.” Sentencing Hr’g Tr. at 5. The bartering, the district court emphasized, was especially troubling because it would have created “a new victim.” Id. at 23. The court repeatedly highlighted the serious nature of Fry’s conduct and explained that the sentence would deter Fry and “others who may be inclined in doing similar kinds of things.” Id. at 25. The court thus determined that the sentence was “fair and just” and “reflects the seriousness of the offense.” Id. Those statements demonstrate the court’s consideration of the pertinent sentencing factors.

Fry’s next procedural challenge contends that the district court gave inadequate consideration to his policy-based argument for a sentence below the Guidelines range. His argument was that the Guidelines for child-pornography offenses should be disregarded because they give rise to sentencing enhancements in too great a share of child-pornography cases. We address the substance of that argument below, but with regard to Fry’s contention that the district court gave it insufficient consideration, a district court, we have explained, must “provide a ‘reasoned basis’ for its decision and consider all ‘non-frivolous reasons’ asserted for an alternative sentence” at the time of sentencing. United States v. Locke, 664 F.3d 353, 357 (D.C. Cir. 2011) (quoting Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); see 18 U.S.C. § 3553(c). As long as the district court provides a reasoned basis, “we generally presume that [the court] adequately considered the arguments and will uphold the sentence if it is otherwise reasonable.” Locke, 664 F.3d at 358.

Those standards are satisfied here. The district court stated that it had “taken into consideration” the arguments made by Fry’s counsel in deciding against giving Fry a sentence at the upper end of the Guidelines range. Sentencing Hr’g Tr. at 25. When Fry’s counsel raised concerns about certain of the Guidelines enhancements for child-pornography offenses, the district court explained that, even absent those enhancements, the serious nature of Fry’s conduct remained. The court later affirmatively acknowledged that it had heard Fry’s argument and had also read Fry’s pleadings on the point. The record thus confirms that the district court considered Fry’s arguments for a sentence below the Guidelines range.

In short, Fry fails to identify any procedural error, let alone plain error, committed by the district court in imposing his sentence.

B.

We turn next to Fry’s argument that the sentence imposed by the district court was substantively unreasonable. “[W]e review claims of substantive unreasonableness for abuse of discretion, regardless of whether an objection on those terms was made” at sentencing. United States v. Russell, 600 F.3d 631, 633 (D.C. Cir. 2010). The 108-month sentence imposed by the district court was within the Guidelines range and is thus presumptively reasonable. See id. at 634. In fact, Fry expressly conceded in his plea agreement that a sentence within that range would be reasonable.

Fry claims that the sentence nevertheless was unreasonable and the district court should have varied downward because the child-pornography Guidelines, U.S.S.G. § 2G2.2, are based on congressional mandates rather than empirical studies. Fry notes that district courts have discretion to vary from the Guidelines for crack-cocaine offenses “based on a policy disagreement with those Guidelines.” Fry Br. 12 (quoting Spears v. United States, 555 U.S. 261, 266, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009)). He claims the child-pornography Guidelines contain largely the same flaws as the crack-cocaine Guidelines and thus require the same treatment. Specifically, Fry highlights that many of the enhancements listed in section 2G2.2 apply to ordinary offenders, giving rise to disproportionately severe sentences even for “run-of-the-mill” cases. Id. at 11-12 (quoting United States v. Dorvee, 616 F.3d 174, 186 (2d Cir. 2010)). In support of his argument, Fry presented evidence through which he sought to show that his enhancements for images involving prepubescent minors, for the number of images, for use of a computer, and for sadomasochistic images applied in the vast majority of cases. As a result, Fry contends, the district court should have varied downward from the child-pornography Guidelines.

None of Fry’s arguments, however, supports the conclusion that a district court’s decision to agree with the Guidelines constitutes an abuse of discretion. It is true that several courts of appeals have allowed district courts to vary downward from the child-pornography Guidelines based on policy disagreements with those Guidelines. See United States v. Henderson, 649 F.3d 955, 960, 963 (9th Cir. 2011); Dorvee, 616 F.3d at 188; United States v. Grober, 624 F.3d 592, 609, 611 (3d Cir. 2010); United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009). None of those courts, however, require a district court to disagree with the Guidelines. In fact, several of our sister circuits have emphasized that district courts may choose to agree with the Guidelines on policy grounds. See Henderson, 649 F.3d at 964; Grober, 624 F.3d at 609; Stone, 575 F.3d at 90, 93. We similarly conclude that, even if a district court retains discretion to vary from the child-pornography Guidelines based on a policy disagreement with them, a district court does not necessarily abuse its discretion by agreeing with (and applying) those Guidelines.

Here, the district court’s statements at sentencing evidence the judge’s agreement with the policy behind the Guidelines. The court recognized that it could vary outside the Guidelines range. The court emphasized, however, that the children in child-pornography videos are “true victims” whose “victimization follows them the rest of their lives,” which, to the court, was “the reason why, in a nutshell, Congress has set these very serious, and sometimes, you could even argue, severe sentences for these types of actions here.” Sentencing Hr’g Tr. at 24. The court thus exercised its discretion to agree with the policy behind the Guidelines, stating, “I must give a sentence that reflects the seriousness of the conduct; a Guideline Range sentence does that.” Id. The court also explained that, even absent the Guidelines enhancements, the “very serious” nature of Fry’s conduct remained a central consideration in its analysis. See id. at 12-13. In particular, as noted above, Fry was “bartering ... for a new victim to be created.” See id. at 23.

The district court could reasonably conclude that the sentence reflected “the seriousness of the conduct” and would protect the public by deterring Fry and “others who may be inclined in doing similar kinds of things.” See id. at 24-25. Fry has thus failed to show that the district court abused its discretion in imposing a sentence in the middle of the Guidelines range.

*****

For the foregoing reasons, we affirm the district court’s judgment.

So ordered.


author: ROSENBERG, District Judge:

text:
    Patricia C. FLOURNOY, Plaintiff-Appellant, v. CML-GA WB, LLC, Defendant-Cross Claimant-Cross Defendant-Appellee, Rialto Capital Advisors, LLC, Paul Gregory King, Defendant-Cross Claimant-Appellees, Rex Property and Land, LLC, Defendant-Cross Defendant-Cross Claimant-Appellee.
    No. 16-10073
    United States Court of Appeals, Eleventh Circuit.
    (March 27, 2017)

      Regan Keebaugh, James Radford, Rad-ford & Keebaugh, LLC, DECATUR, GA, for Plaintiff-Appellant.
    Jill A. Deutchman, Chelsea Lynne Dennis, Hartman Simons & Wood, LLP, ATLANTA, GA, Thomas Lee Cathey, Hull Barrett, PC, AUGUSTA, GA, for Defendant-Appellee CML-GA WB, LLC.
    Jill A. Deutchman, Hartman Simons & Wood, LLP, ATLANTA, GA, Thomas Lee Cathey, Hull Barrett, PC, AUGUSTA, GA, for Defendant-Appellee RIALTO CAPITAL ADVISORS, LLC.
    James Spencer Verner Weston, James Barrett Trotter, Trotter & Jones, LLP, AUGUSTA, GA, for Defendant-Appellees REX PROPERTY AND LAND, LLC, PAUL GREGORY KING.
    Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and ROSENBERG, District Judge.

       Honorable Robin L. Rosenberg, United States District Judge for the Southern District of Florida, sitting by designation.

   ROSENBERG, District Judge:

Plaintiff Patricia Flournoy is an African-American woman who owns and operates a hair salon. Seeking to expand her business, Ms. Flournoy applied to lease space in the JB Whites Building. After her lease application was denied Ms. Flournoy brought suit, alleging that the denial infringed her right to freedom from racial discrimination in the making of a contract. See 42 U.S.C. § 1981. The district court granted summary judgment for Defendants, ruling that Ms. Flournoy had not established a prima facie case and, alternatively, that she had not rebutted the legitimate, nondiscriminatory reasons Defendants proffered for denying her lease application. Ms. Flournoy appealed. We now affirm on the second of these two grounds.

I. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo and apply the same standards that governed the district court. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). In determining whether this standard is met, the Court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). Only a genuine and material factual dispute will defeat summary judgment. Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Id. (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). A fact is material if “it would affect the outcome of the suit under the governing law.” Id. (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505).

II. BACKGROUND

Plaintiff Patricia Flournoy has, since about 2007, owned and operated Karisma Hair Studio in Augusta, Georgia. In 2012, desiring to grow her business, Ms. Flour-noy began looking for a new location. During an online search, she came across an advertisement by Defendant Rex Property and Land, LLC (“Rex”). Rex is the real estate management company for Defendant CML-GA WB, LLC (“CML”). CML, a special purpose entity managed by Defendant Rialto Capital Advisors (“Rialto”), owns the JB Whites building in downtown Augusta.

Ms. Flournoy called the telephone number included in Rex’s advertisement and spoke with Ms. Andrea Carr, a property manager at Rex. The pair viewed several available properties. But only one — the JB Whites building — piqued Ms. Flournoy’s interest. The first floor of JB Whites is commercial space. Fifty-one condominiums occupy the floors above. Ms. Flournoy expressed interest in one of the rear commercial units. Ms. Carr gave Ms. Flournoy a lease application and told her that she would be subjected to a background and credit check.

After meeting with Ms. Carr, Ms. Flour-noy received a call from Defendant Paul King. Mr. King, Rex’s general manager, is the property manager and sales broker for the JB Whites building. Mr. King expressed interest in visiting the Karisma Hair Studio and asked a number of questions about Ms. Flournoy’s business. After the call, he visited the salon’s existing location. Either shortly before or after his visit to Karisma, Mr. King asked whether Ms. Flournoy’s salon could service all races and genders. Ms. Flournoy assured him that it could.

Mr. King also discussed Ms. Flournoy’s interest in the space with Bradley Kentor, the Vice President of Commercial Real Estate at Rialto. Mr. Kentor told Mr. King early in the application process that a salon was not a preferred tenant because the cost of ventilation to mitigate fumes and odors was potentially prohibitive. It is unclear whether this conversation occurred before or after Mr. King called Ms. Flour-noy and visited her salon. Mr. Kentor also had concerns about the historically high failure rate of salons, and the fact that salon visitors were not likely to patronize other commercial spaces during visits to the JB Whites Building.

Credit and background checks on Ms. Flournoy were run on August 24, 2012. Ms. Flournoy’s credit score was less than 700. According to Ms. Flournoy, Ms. Carr, who had run the checks, told Ms. Flournoy that “everything looked good” and gave her a diagram of the suite so that Ms. Flournoy could indicate where she wanted sinks and other fixtures placed. The rear units were not built out; no plumbing, HVAC, or electrical work was (or is) in place.

Ms. Flournoy later received a call from Ms. Carr. First, Ms. Carr told Ms. Flour-noy that Mr. King had indicated a desire for commercial tenants to be able to service “the people upstairs.” Ms. Flournoy assured Ms. Carr that she could cut and style all hair types. Ms. Carr also told Ms. Flournoy that Mr. King had requested the submission of a business plan. Ms. Flour-noy hired Ms. Catherine Maness to prepare that plan.

Ms. Maness called Ms. Carr to get an address needed to complete the business plan. Ms. Maness testified that Ms. Carr told Ms. Maness during that phone call that Ms. Flournoy’s credit score posed a problem. Ms. Maness relayed her conversation with Ms. Carr to Ms. Flournoy, who then called Ms. Carr. Ms. Carr said that she could not remember when she told Ms. Flournoy that Rialto wanted a credit score of at least 700.

Ms. Maness and Ms. Flournoy went to Mr. King’s office to deliver the business plan. Ms. Flournoy testified that Mr. King told her during the meeting that she would not be permitted to lease the space because her credit score was too low. According to Mr. King, other reasons were provided as well. Mr. King said that Mr. Kentor had instructed him to implement a minimum credit score requirement. But Mr. Kentor said that he' did not recall giving any such instruction. After this meeting, Ms. Flournoy and Defendants stopped communicating about her lease application.

III. DISCUSSION

42 U.S.C. § 1981 guarantees all persons “the same right ... to make and enforce contracts ... as is enjoyed by white citizens....” To sue successfully for non-employment discrimination under § 1981, Ms. Flournoy must show that she is a member of a racial minority, that the discrimination concerned one or more activities enumerated in the statute, and that Defendants intentionally discriminated against her on the basis of her race. See Kinnon v. Arcoub, Gopman & Assoc. Inc., 490 F.3d 886, 889-91 (11th Cir. 2007) (citing Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir. 2004)).

It is undisputed that the first two elements are satisfied. Ms. Flournoy, who is African-American, belongs to a racial minority. And the denial of a lease application plainly concerns the right “to make ... contracts.” 42 U.S.C. § 1981. The issue, therefore, is whether Ms. Flournoy can show that the denial of her application amounted to intentional, race-based discrimination. This showing may be made using direct or circumstantial evidence. Ms. Flournoy has put forward only the latter.

To determine whether Ms. Flournoy’s circumstantial evidence suffices to establish intentional, race-based discrimination, the Court applies the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Brown v. Am. Honda Motor Co., Inc., 939 F.2d 946, 949 (11th Cir. 1991) (applying this framework in a § 1981 lawsuit). Under the Douglas/Burdine framework, plaintiff bears the initial burden of establishing a prima facie case, which creates a rebuttable presumption of discriminatory intent. McDonnell, 411 U.S. at 802, 93 S.Ct. 1817. Defendant must then rebut that presumption by producing evidence of a legitimate, nondiscriminatory reason for its action. Id. at 802-03, 93 S.Ct. 1817. If defendant bears its burden of production, plaintiff must establish that defendant’s proffered reason is but a pretext for unlawful discrimination. Tex. Dep’t, 450 U.S. at 256, 101 S.Ct. 1089.

The Court now turns to the first part of that thrust and parry: Ms. Flournoy’s pri-ma facie case. The district court below applied the prima facie case articulated in Benton v. Cousins Properties, Inc., 230 F.Supp.2d 1351 (N.D. Ga. 2002), aff'd 97 Fed.Appx. 904 (11th Cir. 2004) (table decision). It requires Ms. Flournoy to show that: she belongs to a racial minority, the discrimination against her concerned one or more activities enumerated in § 1981, and an apt comparator was not subjected to the same discriminatory treatment. Id. at 1370. It is not necessary to address whether the district court applied the correct prima facie case or whether it did so properly because, even if Ms. Flournoy has made out her prima facie case, she has not created a genuine dispute of material fact regarding the legitimate, nondiscriminatory reasons offered by Defendants. -

Assuming arguendo that Ms. Flournoy has made out a prima facie case, Defendants must rebut the resulting inference of discrimination by articulating legitimate, nondiscriminatory reasons for their action. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. That “exceedingly light” burden is one of production, not persuasion. Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). Here, Defendants shouldered it by articulating, by reference to the record, several legitimate, nondiscriminatory reasons for rejecting Ms. Flournoy’s lease application. Among them: odors emanating from the salon would disturb the residential tenants on the upper floors, Ms. Flournoy’s business would not survive given the number of other salons in the area, a salon would not .generate cross-shopping with other commercial .tenants of the JB Whites building, Ms. Flournoy’s credit score was too low, and Defendants would not break even given the high cost of building out the unit.

Ms. Flournoy must persuade the Court that Defendants’ legitimate, nondis-eriminatory reasons are pretexts for discrimination in order to prevail. Because Defendants, have “proffer[ed] more than one legitimate, nondiscriminatory reason,” Ms. Flournoy “must rebut each of the reasons to survive a motion for summary judgment.” Chapman v. Al. Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc). With regard to each reason, Ms. Flournoy must demonstrate “such weaknesses, iim plausibilities, inconsistencies, incoheren-cies, or contradictions ... that a reasonable factfinder could find them unworthy of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005).

The Court begins with Ms. Flournoy’s focus: the credit score requirement. According to Mr. King, Ms. Flournoy’s application was denied partly because her credit score was below 700. A reasonable factfinder could, Ms. Flournoy alleges, reject this explanation given record inconsistencies about the requirement’s very existence. Mr. King testified to being instructed to put the credit score requirement in place by Mr. Kentor, who, according to Ms. Flournoy, “denied ever giving King such instruction,” Appellant Br. 13. But that was not Mr. Kentor’s testimony. Mr. Kentor stated only that he did not recall giving Mr. King any such instruction. This Court is, of course, obligated to view the facts in the light most favorable to Ms. Flournoy and to draw all reasonable inferences in her favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). But the leap between “I do not recall” and “I gave no such instruction” is more than a reasonable inference.

However, Ms. Flournoy also points out that Ms. Ellis — the only other proprietor to pursue a rear commercial unit and a white woman — was not made aware of the credit score requirement until two months into her application process and only after Defendants had learned of Ms. Flournoy’s lawsuit. Taking this fact and Mr. Kentor’s inability to recall ever instructing King to implement a credit score requirement in the light most favorable to Ms. Flournoy, the issue of whether a reasonable factfin-der could reject the explanation that Ms. Flournoy’s lease application was denied on account of her credit score becomes closer. But even assuming that Ms. Flournoy has demonstrated “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that a reasonable factfin-der could find the credit score explanation “unworthy of credence,” she still would not prevail.’ Vessels, 408 F.3d at 771.

True, “[i]n appropriate circumstances, the trier of fact can infer from the falsity of the explanation that the [defendant] is dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). But Ms. Flournoy’s reliance on that principle is misplaced. More than one legitimate, nondiscriminatory reason has been presented in this case. We reject the argument that the jury, having concluded that King manufactured the credit score requirement, “could also reasonably disbelieve all of the other alleged non-discriminatory reasons offered ...” Appellant Br. 11. It is the law of this Circuit that where a defendant “proffers more than one legitimate, nondiscriminatory reason,” plaintiff “must rebut each of the reasons to survive a motion for summary judgment.” Chapman v. Al. Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc). Here, several other legitimate, nondiscriminatory reasons presented by Defendants have not been rebutted by Ms. Flournoy. She cannot, therefore, survive summary judgment. .

Defendants offered fear that odors from the salon would disturb the residential tenants who lived above the commercial units as an explanation for denying Ms. Flournoy’s lease. Indeed, Defendants had experience with odors wafting upward from a restaurant occupying a commercial unit in the building. Ms. Flournoy has not rebutted this proffered reason. She asserts that there are “additional inconsistencies” regarding odors. Appellant Br. 18-19. Specifically, she notes disagreement about whether Mr. King and Mr. Kentor discussed odors over the phone or in-person and disagreement about whether concern about odors was ever relayed to Ms. Flournoy and Ms. Maness. These inconsistencies exist. But neither could render the Defendants’ explanation “unworthy of credence.” Vessels, 408 F.3d at 771. Regardless of where the discussion took place, there is no question that Mr. Kentor relayed concern about odors to Mr. King, who saw that concern as meritorious.

Defendants also proffered concern that salon patrons would be unlikely to visit multiple commercial spaces within JB Whites — a phenomenon known in marketing circles as “cross-shopping.” The ultimate goal of Defendants’ enterprise was selling the building’s residential units. Defendants reasoned that commercial tenants likely to generate cross-shopping would best serve that end. The reasoning is that cross-shopping would increase foot traffic which would, in turn, increase sales of residential units. Mr. Kentor cited data reflecting that salon patrons do not typically cross-shop. Instead, “[t]hey take a parking space and do their service and they leave ... They don’t grab a cup of coffee at Blue Moon and say, hey, I will go look at a model unit ...” DE 41-4, 107:7-8. Ms. Flournoy emphasizes that although a salon may not have been a preferred use because of concerns about cross-shopping, it was not a prohibited use. Appellant Br. 17. But the fact that this consideration did not compel the denial of her lease is not relevant. It is a sensible legitimate, nondiscriminatory reason for which Defendants could have denied Ms. Flournoy’s lease application. That is enough.

IV. CONCLUSION

Because Ms. Flournoy has failed to create a genuine issue of material fact regarding some of the legitimate, nondiscriminatory reasons that Defendants provided for denying her lease .application, the decision of the district court is

AFFIRMED.

      . "... I talked to Bradley Kentor, and he said they wanted — for anybody for those back units, they wanted a credit score of 700 and higher. So that was the first time that has been introduced.” 41-5, 52: 18-22; id. 56: 19-21 ("... I can't give a date, but it was Bradley told me on the phone. He said, we want 700 and up ...”); id. 219: 12-18 ("At some point in the process I talked to Bradley and he said he wanted a 700 credit score ...”).

      . "Q: So there is no requirement that a commercial tenant have a minimum credit score of at least 700? A: Not that I recall ever having that discussion, no.” 41-4, 31-32: 22-1; id. at 36-37: 22-3 (Q: During Mr. King’s deposition, I’m pretty sure he said that you told him that there would be a minimum credit score requirement of 700 for the rear commercial spaces in the JB Whites Building ... A: I don’t recall ever instructing him to do that.”).