text:
    UNITED STATES of America, Appellee v. Kevin Eugene MACK, Appellant
    No. 15-3051
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 12, 2016.
    Decided November 15, 2016

      John A. Briley, Jr. argued the cause and filed the briefs for appellant.
    Karen P. Seifert, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Elizabeth Trosman, Assistant U.S. Attorney. Lauren R. Bates, Assistant U.S. Attorney, entered an appearance.
    Before: BROWN, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges.
   EDWARDS, Senior Circuit Judge:

On May 23, 2013, appellant Kevin Mack was charged by indictment with two counts of distribution of a mixture or substance containing phencyclidine (PCP), in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iv), (b)(1)(C), for twice selling PCP to an undercover police officer. On July 21, 2014, appellant pled guilty to one count of the indictment. On July 28, 2015, the District Court imposed a 77-month term of incarceration and 36 months of supervised release. In his appeal to this court, appellant contends that the District Court erred by-failing to consider his arguments for a time-served sentence. In particular, appellant claims that the trial judge ignored his “sentencing manipulation” argument—ie., that the undercover officer arranged the second PCP sale solely to increase his sentence. Appellant also argues that the District Court erred in calculating the quantity of PCP attributable to him.

At the time of sentencing, a district court judge is required to state in open court the reasons for choosing a particular sentence. 18 U.S.C. § 3653(c) (2012). This requirement has been construed to mean that the trial judge must address all “non-frivolous reasons” for an alternative sentence asserted by a defendant and provide a “reasoned basis” in open court for any sentencing decision. 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)).

The trial judge in this case expressly rejected appellant’s claim that he had been “induced” by police officers to engage in unlawful conduct in an order denying appellant’s motion to dismiss the indictment. But the trial judge did not explicitly address the issue of “sentencing manipulation” when he rendered his sentencing decision. However, after explaining the reasons for his sentencing decision, the trial judge asked appellant’s counsel on two occasions whether there was any reason why the court should- not impose the sentence on the terms indicated. Counsel said “no.” In other words, even when afforded the opportunity to object, defense counsel never complained that the trial judge had failed to address appellant’s sentencing manipulation argument. In .these circumstances, we hold that appellant did not preserve his claim that the District Court failed to adequately address his sentencing manipulation argument. We therefore review this claim for plain error. On the record before us, we -find no plain error affecting appellant’s substantial rights.

We also hold that the District Court did not clearly err in calculating the quantity of the liquids containing PCP that were the subject of the drug transactions. Under the clearly erroneous standard, the District Court’s findings of fact are presumptively correct. In re Sealed Case, 552 F.3d 841, 844 (D.C. Cir. 2009). On the record before us, we find no basis to overcome this presumption.

I. BACKGROUND

A. Summary of the Facts

In 2012, the Metropolitan Police Department (“MPD”) was investigating the sale of PCP in the District of Columbia. That investigation led an undercover MPD officer to contact someone named “Rico,” who steered the officer to his “Uncle Jimmy,” claiming that Jimmy was Rico’s PCP supplier. After failed attempts to contact Jimmy by telephone, appellant Kevin Mack texted the undercover officer and arranged to sell him PCP. On July 23, 2012, appellant sold six vials of liquid PCP to the undercover officer for $1,200. The transaction was video-recorded. A sample of the liquid was submitted to the Drug Enforcement Administration (“DEA”) for analysis and determined to be PCP with a purity of 4.9%.

Appellant and the undercover officer continued to exchange text messages after the first satei They arranged another sale about a week after their first exchange, but when the MPD officer arrived at the second buy, appellant reported that he did not have the PCP prepared for delivery. A month later, appellant and the undercover officer arranged another meeting. On September 5, 2012, appellant sold six vials of liquid PCP to the undercover officer for $1,800. This transaction was also video-recorded. DEA later determined from a sample of the liquid that it was PCP with a purity of 6.7%.

For several months-after the second PCP transaction, MPD deliberated over how to proceed with its investigation. Because the lead officer involved in appellant’s case became involved in a different matter, MPD decided to close the case and proceed with prosecution. On May 23, 2013, a grand jury charged appellant with one count of unlawful distribution of- a mixture or substance containing PCP, arid one count of unlawful distribution of one hundred grams or more of a mixture or substance containing PCP, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iv), (b)(1)(C).

B. The Proceedings Before the District Court

On April 30, 2014 and May 31, 2014, appellant filed motions to dismiss on the grounds of entrapment and selective prosecution. The District Court denied these motions. United States v. Mach, 53 F.Supp.3d 179 (D.D.C. 2014). The court ruled that no government agents “engaged in persuasive overtures” in soliciting appellant, “beyond those ordinarily present in drug transactions.” Id, at 188. The court also found that the government “did not solicit the Defendant directly,” and-noted that the first sale “was initiated by the Defendant ... out of his own volition.” Id. Regarding the second PCP sale, the court noted that, although it “resulted from a series of text messages between the undercover officers and the Defendant,” there was “no evidence” of “persuasive overtures” by MPD officers or “any reluctance” on the part of appellant. Id. The court additionally found that appellant had not provided any “factual predicate or evi-dentiary foundation” for his entraprrient argument. Id.

Finally, the court rejected appellant’s claim of selective prosecution. On this claim, the court found that appellant had “not put forth a shred of evidence even hinting at the existence of a discriminatory purpose behind the decision to prosecute him.” Id.

On July 21, 2014, appellant entered a guilty plea to Count One of the indictment. The plea agreement provided that the parties’ dispute over the drug quantity with respect to the relevant conduct would be resolved by the court as part of the sentencing procedures,

1. The Drug Quantity Hearing

Before sentencing, the District Court held a hearing at which the prosecution offered evidence to support its-calculation that the relevant drug quantity was 222 grams. The Government’s Brief to this court accurately describes the testimony and evidence that was received by the District Court:

Officer Cardinal ... stated that liquid PCP has a “distinct chemical odor,” typically a yellow or amber tint, and often contains engine starter fluid. [He] explained [that when] ... more than one ounce is obtained by MPD, it uses a process called “remediation” wherein it submits only one ounce from the larger sample to DEA. First, each separate vial is weighed on a calibrated scale. Next, each vial is tested with a field-test kit to ■ determine if it has a reaction for PCP. Thereafter,.the liquid in all the vials is emptied into a beaker and weighed together. The weight of the beaker is subtracted from that amount to get the weight of the liquid substance. Finally, a one-ounce sample is taken from the liquid mixture and sent to DEA. The remaining substance is sent to MPD’s evidence collection division for destruction. MPD officers document all of these steps with photographs. Officer Cardinal testified that he takes these steps because DEA [will] ... only receive a maximum of one ounce of liquid PCP, due to its volatility.
Regarding the transaction on July 23, 2012, Officer Cardinal introduced photographs showing the four half-ounce vials and two one ounce vials that the undercover officer had purchased from appellant, the positive field tests for PCP from each vial, and the other steps in the remediation process. All six vials contained liquid that was consistent in odor and color with liquid PCP. The Officer testified that the liquid PCP purchased from appellant on July 23 weighed 87.6 grams, without any packaging. One ounce (25.4 grams) was sampled from this mixture, secured in appropriate packaging, and sent to DEA’s Mid-Atlantic' Laboratory. That sample was tested by DEA and shown to contain PCP, with a 4.9% purity.
Regarding the transaction on September 5, 2012, Officer Cardinal introduced photographs showing the six one-ounce vials that the undercover officer had purchased from appellant, the positive field tests for PCP from each vial, and the other steps in the remediation process. All six vials contained liquid that was consistent in odor and color with liquid PCP. The Officer testified that the liquid PCP purchased on September 5 weighed 133.4 grams, without any packaging. One ounce (25.1 grams) was sampled from this mixture, secured in appropriate packaging, and sent to DEA’s Mid-Atlantic Laboratory. That sample was tested by DEA and shown to contain PCP, with a 6.7% purity.
Investigator Derek Starliper testified that he was part of the team that secured ' the liquid PCP purchased from appellant.... [H]e took physical custody of the vials from the undercover officer, packaged and labeled them, deposited them into the MPD evidence room, retrieved them for remediation by Officer Cardinal, and then submitted the sample produced from the remediation process to DEA.

Br. for Appellee 6-9 (citations omitted).

Appellant offered no evidence at the hearing. Instead, appellant submitted a Memorandum in which he questioned the reliability of the measurements and field tests conducted by MPD; argued that only the amount of drugs actually measured and tested by DEA should be used to calculate the relevant drug quantity; and also argued that the alleged weight of the liquid PCP from the second transaction should not be included in the relevant drug quantity because the DEA chemist did not testify at the hearing.

On May 14, 2015, the District Court issued an order finding that MPD “followed sufficiently reliable procedures when they handled and measured the weight of the drug evidence” and proved the relevant drug quantity beyond a preponderance of the evidence. Memorandum & Order at 10-11, United States v. Mack, No. 13-cr-0150 (D.D.C. May 14, 2015), Supplemental Appendix (“S.A.”) 57-58. The District Court found no merit in appellant’s argument that the court should consider only the drug quantity sent to DEA. Id. at 8-9, S.A. 55-56. The court pointed out that drug sampling procedures that were followed in this case were approved in United States v. Sheffield, 842 F.Supp.2d 227, 228-29 & n.2 (D.D.C. 2012), as well as United States v. McCutchen, 992 F.2d 22 (3d Cir. 1993), and United States v. Self, 681 F.3d 190 (3d Cir. 2012). Id. at 8-9, S.A. 55-56.

2. The Sentencing Hearing

Prior to sentencing, appellant filed a Memorandum requesting a “time-served” sentence. Appellant argued that he had been convicted in Maryland and was likely to be imprisoned there for five years or more; he was selectively prosecuted; he was solicited by police and the September 5, 2012, transaction was engineered to increase the drug quantity amount; and he was inappropriately prosecuted in federal court instead of D.C. Superior Court. Appellant also submitted separate written objections to the calculation of his Sentencing Guidelines range in the Presentence Report, again asserting that the court should consider only the drug quantity sent to DEA.

During the sentencing hearing, the District Court listened to arguments from appellant’s counsel and the prosecutor. The prosecutor explained to the court that appellant had not been selectively prosecuted, but rather that there was not sufficient evidence to proceed against other parties. The District Court addressed this point in noting that “many of the individuals caught up in the PCP investigation that resulted in the instant matter did not face justice.” Tr. of Sentencing Hearing at 23, S.A. 159. The District Court also addressed appellant’s argument that he was arbitrarily prosecuted in federal court. The trial judge asked the prosecutor: “[I]n this particular case, what [were] the driving factors that resulted in it being brought here rather than in superior court?” Id. at 15, S.A. 151. The prosecutor pointed to the amount of drugs and appellant’s criminal history. Id. at 15-16, S.A. 151-52.

The District Court imposed a 77-month term of incarceration and 36 months of supervised release, which would run concurrently with any sentence appellant served in his Maryland case. The court reviewed the sentencing factors in 18 U.S.C. § 3553(a), noting that the offense was “serious, PCP is a tremendously dangerous and destructive substance” and discussing appellant’s “tremendously long criminal history,” which included “repeated criminal convictions,” showing “that he is not easily deterred.” Tr. of Sentencing Hearing at 23, S.A. 159. The court also stated that appellant had been unsuccessful on repeated attempts at supervised release. The court rejected appellant’s request for a time-served sentenced because appellant had appealed his Maryland case and the court needed to “ensure[] the public’s protection” if appellant was successful in that appeal. Id. at 24, S.A. 160.

There is nothing in the record, however, to indicate that the trial judge addressed appellant’s sentencing manipulation argument during the sentencing hearing. Appellant raised this claim in his written Memorandum before sentencing and again during defense counsel’s oral presentation at sentencing. But the trial judge never explicitly commented on appellant’s request for mitigation on the ground of sentencing manipulation.

Although the trial judge did not expressly address sentencing manipulation during the course of sentencing, defense counsel declined two opportunities to object to the sentencing judge’s statement of reasons. After reciting his statement of reasons for appellant’s sentence, the trial judge said:

I will now indicate the sentence to be imposed, but counsel will have one more opportunity to make any legal objections on the factors I have considered before I impose the sentence. Any further legal objections?

Id. at 25, S.A. 161. Defense counsel replied “[n]o, Your Honor.” Id. Then, after announcing appellant’s sentence and explaining the terms of his supervised release, the District Court again asked “Counsel, any reason that I should not impose the sentence other than those previously argued as just stated?” and defense counsel replied “[n]o, Your Honor.” Id. at 27-28, S.A. 163-64.

II. ANALYSIS

A. Standard of Review

Following the Supreme Court’s decisions in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), appellate courts review sentences under an abuse-of-discretion standard and set aside sentences found to be “um'easonable.” Booker, 543 U.S. at 261-63, 125 S.Ct. 738; Gall, 552 U.S. at 51, 128 S.Ct. 586.

This review proceeds in two steps. First, the appellate court must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “In applying the clearly erroneous standard, an appellate court must remain mindful that judicial findings of fact are presumptively correct.” In re Sealed Case, 552 F.3d at 844 (citations and internal quotation marks omitted). Second, the appellate court reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard. Id.; see also United States v. Gardellini, 545 F.3d 1089, 1092-93 & n.2 (D.C. Cir. 2008). This case involves only the first step.

When a party fails to preserve a procedural challenge to his sentence, we review for plain error. See Locke, 664 F.3d at 357 (“The more demanding plain error standard of review applies where a defendant fails to raise a claim at his sentencing hearing or fails to object to a district court’s ruling.”); United States v. Akhigbe, 642 F.3d 1078, 1085 (D.C. Cir. 2011) (“[Ojur review is for plain error because ... [the defendant] failed in the district court to object to the adequacy of that court’s reasoning,”).

“To overturn a district court’s decision under plain error review, we must find that there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are satisfied, we have discretion to remedy the error only if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Baldwin, 563 F.3d 490, 491 (D.C. Cir. 2009) (citations, brackets, and internal quotation marks omitted). To affect substantial rights, the defendant must “show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez v. United States, —, U.S. -, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (citation and internal quotation marks omitted).

B. Appellant’s Procedural Challenges

As noted above, a district court judge must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c) (2012). The sentencing judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586. The judge need not recite “a full opinion in every case,” and the length and depth of the judge’s explanation “depends upon circumstances.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. The guiding principle is that “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Id.

Part of the sentencing judge’s obligation under 3553(c) is to respond to a defendant’s “nonfrivolous reasons for imposing a different sentence.” Id. at 357, 127 S.Ct. 2456. When a defendant advances nonfrivolous arguments, “the judge will normally go further and explain why he has rejected those arguments.” Id. If the sentencing judge gives such an explanation, “we generally presume that he adequately considered the arguments and will uphold the sentence if it is otherwise reasonable.” Locke, 664 F.3d at 358. By contrast, if the sentencing judge fails to respond to a nonfrivolous argument, the presumption of adequate consideration is rebutted. See United States v. Bigley, 786 F.3d 11, 14 (D.C. Cir. 2015).

Appellant argues that “the record of the sentencing procedures includes no explanation by the district judge for not agreeing with, or even considering” several of his arguments for a below-Guidelines sentence. Br. for Appellant 9. Specifically, appellant claims that the District Court did not consider the arguments that he was “selectively prosecuted,” that he was arbitrarily prosecuted in federal court (and not state court), and that the officers “solicited a second PCP transaction, in order to enlarge the guideline sentencing range.” Id. at,8.

The record largely contradicts those assertions. As discussed in detail in .the Background section, the trial judge afforded appellant ample opportunities to air his concerns about sentencing; he explicitly addressed appellant’s selective and arbitrary prosecution arguments; he . sought clarifications and explanations from the prosecutor; and he offered a carefully reasoned judgment for his sentencing decision. The judge’s only omission was his failure to explicitly address appellant’s sentencing manipulation claim.

Prior to our 2015 decision in Big-ley, there was uncertainty in our Circuit about whether sentencing manipulation was even a plausible argument for a reduced sentence. See United States v. Oliveras, 359 Fed.Appx. 257, 261 n.5 (2d Cir. 2010) (summary order) (“Our sister Circuits have adopted widely different positions on the availability of the sentencing manipulation and sentencing entrapment doctrines.... [T]he D.C. Circuit has strongly suggested that it would not recognize either doctrine.”). However, as we explained in United States v. McKeever, 824 F.3d 1113, 1123 (D.C. Cir. 2016), the “law of the circuit is now clear that a defendant may raise a mitigation' argument resting on sentencing entrapment to request a downward variance in his sentence.”

“Sentencing manipulation occurs when the government unfairly exaggerates the defendant’s sentencing range by engaging in a longer-than-needed investigation and, thus, increasing the drug quantities for which the defendant is responsible.” United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009); see also Bigley, 786 F.3d at 15 (recognizing sentencing manipulation where an “officer ma[de] multiple drug buys from the defendant before finally arresting him”); In slight contrast, sentencing entrapment occurs “if the government induces a defendant to commit a more serious crime when he was predisposed to commit a less serious offense.” United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995). We have recognized both sentencing manipulation and sentencing entrapment, and a district court is obligated under 3553(c) and Rita to respond to those arguments. Bigley, 786 F.3d at 14 (“When a district court confronts a nonfrivolous argument for a sentence below the relevant guideline range, it must consider it.” (citing Locke, 664 F.3d at 357)).

In this case, defense counsel advanced a sentencing manipulation argument, albeit with little clarity. It would have helped if counsel had cited Bigley,- which was published before appellant’s sentencing proceeding, and before defense counsel filed his Memorandum in Aid of Sentencing. Nevertheless, counsel did raise a vaguely discernable sentencing manipulation argument in writing and orally.

In his written Memorandum, defense counsel argued that “ ‘time served’ would be an appropriate sentence” because, among other reasons, “the second transaction (on 9/05/12) has served no other purpose than to enhance the drug quantity amount on which the Court will base its sentence.” Defendant’s Memorandum in Aid of Sentencing 3-4 (June 26, 2015), Appendix for Appellant 21-22. At the sentencing hearing, defense counsel argued further that

Mr. Mack was, for lack of a better term, lured into a second transaction and the net result of that transaction, it didn’t further the investigation, it didn’t result in any major breakthrough for the law enforcement. All it did was put Mr. Mack in a position of having a greater sentence than if he had been arrested ■within a short time following his first offense....

Tr. of Sentencing Hearing at 12, S.A. 148. And on appeal, defense counsel again alleged that “the MPDC officers had solicited a second POP transaction, in order to enlarge the guideline sentencing range.” Br. for Appellant 8. Nevertheless, the transcript of the sentencing hearing shows that the District Court did not recognize or consider this argument at sentencing.

Prior to sentencing, the District Court gave careful consideration to an argument closely related to appellant’s sentencing manipulation argument. In defense counsel’s motion to dismiss the indictment, counsel argued that the undercover officers “induced the defendant’s participation in the PCP-for-money transaction on September 5, 2012 for the sole purpose of exposing the defendant to additional penal sanctions.” Omnibus Motion to Dismiss Indictment; to Compel Discovery; For a Severance of Counts; and, For a Bill of Particulars at 2, United States v. Mack, No. 13-cr-0150 (D.D.C. May 31, 2014). The District Court rejected this argument in a published opinion denying the motion to dismiss. Mack, 53 F.Supp.3d 179. The court found that

the second drug sale, which resulted from a series of text messages between the undercover officers and the Defendant, does not amount to inducement as there is no evidence that the Government’s requests were accompanied by persuasive overtures or that the Defendant displayed any reluctance in consummating the transaction. The Defendant has not provided the factual predicate or evidentiary foundation necessary to meet his initial burden of showing government inducement.

Id. at 188 (citation omitted). The defendant’s sentencing manipulation claim is essentially identical to his inducement claim: both allege that MPD officers improperly induced the second drug sale.

Of course, the District Court’s pri- or consideration of appellant’s sentencing manipulation argument is not a perfect substitute for explicit recognition at the sentencing proceeding itself. We have pre-vjously explained that sentencing judges “must adequately explain the chosen sentence ... not only for the defendant but also for the public to learn why the defendant received a particular sentence.” In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008) (citation and internal quotation marks omitted). Prior consideration of an argument in an earlier written opinion does less to adequately explain a particular sentence than an explanation during the sentencing proceeding itself. However, the District Court’s prior written opinion at least confirms that the court considered all of the “nonfrivolous reasons” asserted for a lesser sentence. Rita, 551 U.S. at 357, 127 S.Ct. 2456. Indeed, the record reveals that the trial judge was consistently attentive to the concerns raised by appellant. And there is more to be taken into account with respect to the trial judge’s handling of sentencing.

In Locke, we stressed the importance of affording a defendant an “opportunity to object to the district court’s sentencing determination at sentencing.” 664 F.3d at 357. There is no claim here that appellant was denied an opportunity to pursue his sentencing manipulation claim at sentencing. It is unclear why defense counsel failed to raise an objection when the District Court never mentioned appellant’s sentencing manipulation argument. It may be that counsel recalled the judge’s opinion denying appellant’s motion to dismiss, in which the court rejected appellant’s claim that he had been “induced” by police officers to engage in the unlawful drug sales. Counsel may have decided that it would be fruitless to raise even a variation of the “inducement” argument again. In any event, it is clear that defense counsel did not object when the trial judge set forth the i’easons supporting the sentencing decision without explicit reference to sentencing manipulation.

The alleged error raised by appellant in this appeal is the District Court’s failure to address his sentencing manipulation argument at sentencing. However, that alleged error was muted when the trial judge asked defense counsel near the conclusion of sentencing whether he had “[a]ny further legal objections[.]” Tr. of Sentencing Hearing at 25, S.A. 161. In other words, before rendering his final judgment on sentencing, the trial judge essentially asked defense counsel “have I missed anything?” And the judge queried defense counsel twice, and each time counsel said “No, Your Honor.” Any protest of the alleged error was therefore forfeited.

When a defendant fails to raise objections at sentencing, we review only for plain error. United States v. Warren, 700 F.3d 528, 531 (D.C. Cir. 2012). As the Supreme Court has explained, there are good reasons for this rule:

If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited. No procedural principle is more familiar to this Court than that a ... right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.
This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from “sandbagging” the court— remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.
In federal criminal cases, Rule 51(b) tells parties how to preserve claims of error: “by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of trial error. Rule 52(b),.however, recognizes a limited exception to that preclusion. The Rule provides, in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”

Puckett v. United States, 556 U.S. 129, 134-35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citations and internal quotation marks omitted).

On the record before us, we can find no basis upon which to overturn the judgment of the District Court. The trial judge gave appellant’s counsel two opportunities to contest the proposed sentencing decision before sentence was pronounced. Trial judges often are pressed with a long litany of claims during sentencing, so it may happen that a judge inadvertently fails to address a claim that a defendant believes to be of consequence. In these circumstances, if a trial judge—as in this case—asks defense counsel whether there are any further objections to sentencing, it is incumbent upon counsel to voice any concerns regarding matters that counsel believes have not been addressed by the judge. As the Supreme Court said in Puckett, this contemporaneous-objection rule prevents a litigant from “sandbagging” the trial judge.

Because appellant forfeited his objection that the trial judge erred in failing to address his sentencing manipulation argument, we review- the objection pursuant to the plain error standard. As the Supremé Court makes clear in Puckett, plain error review does not meahi that a defendant cannot prevail on a challenge to a sentencing decision. See, e.g., United States v. Brown, 808 F.3d 865 (D.C. Cir. 2015) (vacating a sentence and remanding for resentencing because the appellate court was unable to discern the sentencing judge’s rationale for imposing an above-Guidelines sentence); United States v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010) (vacating a plainly erroneous condition of supervised release). Plain error review simply means that the standard of review is very stringent and the likelihood of prevailing on appeal is greatly diminished. In applying Rule 52(b), we will vacate a plain error only if it impinges upon the defendant’s “substantial rights’,” Fed, R. Ceim. P. 52(b), in a way that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). On the record before us, we cannot find that appellant’s substantial rights have been affected.

“A sentencing error affects substantial rights when there is a reasonable likelihood it impacted the sentence.” Burroughs, 613 F.3d at 245. In light of the District Court’s decision denying appellant’s motion to dismiss the indictment, it is implausible to think that the error in this case impacted appellant’s sentence. The District Court’s decision in Mack clearly rejected appellant’s “inducement” claim, see Mack, 53 F.Supp.3d at 188, and that claim is essentially the same as appellant’s sentencing manipulation argument. The decision in Mack has not been contested, and for good "reason. In our view, the District Court’s findings, reasoning, and judgment in Mack are eminently sound.

C. Drug Weight Calculation

Finally, appellant argues that the District Court erred in calculating the drug weight attributable to him. He argues that the procedure used by MPD and DEA is not a “legally satisfactory proof of drug quantity.” Br. for Appellant 12. We review the District Court’s determination of drug quantity relevant for sentencing under a clear error standard. United States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). There was no error here,.

•After defense counsel called for an evi-dentiary hearing to determine the drug quantity for which appellant would be accountable, the District Court.heard testimony from the officers who processed the PCP that appellant sold to the undercover officer. As detailed above, the officers testified and introduced photographs showing that after they seized multiple vials containing clear liquid in Mack’s possession, they field .tested each vial fpr PCP. Then, the officer calibrated a scale, combined all of the liquid PCP into a beaker, and weighed the aggregate PCP. Next, the officer removed a one-ounce sample from the aggregated' liquid PCP in the beaker, packaged it, and sent it to the DEA’s Mid-Atlantic lab for testing. The officer used this same methodology to process the vials from both the first and second drug sales. The District Court credited this testimony and evidence in upholding MPD. procedures. This was not clear error.

Defense counsel claims that appellant should only be accountable for the two one-ounce samples (roughly 50 grams) sent to the DEA’s lab, and not .for the aggregate quantity of PCP in the vials field tested and weighed by MPD. The District Court rejected this argument after the evidentiary hearing. Appellant’s sole challenge to this finding is that MPD’s testing procedures were not authorized by 28 CFR § 50.21, which appellant claims governs only DEA’s drug testing procedures. Br. for Appellant 11-12. This argument misses the mark. MPD’s drug processing procedures do not need to be authorized by any federal regulations to provide valid, •satisfactory proof of .drug quantity. See McCwtchen, 992 F.2d at 25-26 (upholding processing technique to determine drug quantity for sentencing where the government extrapolated from a test sample).

“A district court makes findings of drug quantities under a preponderance of the evidence standard.” Burnett, 827 F.3d at 1120 (citing United States v. Fields, 325 F.3d 286, 289 (D.C. Cir. 2003)). Appellant has not raised, nor do we perceive, any error with the District Court’s calculation of PCP attributable to appellant.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of the District Court.


source: Caselaw Access Project

author: WILKINS, Circuit Judge:

license: Public Domain

text:
    David DEJESUS, Appellant v. WP COMPANY LLC, Doing Business as The Washington Post, Appellee
    No. 15-7126
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 6, 2016
    Decided November 15, 2016
    Rehearing En Banc Denied January 13, 2017

      Mayer Morganroth argued the cause and filed the brief for Appellant. With him on the brief was Cherie Morganroth, Birmingham, MI.
    Jacqueline M. Holmes argued the cause and filed the brief for Appellee. With her on the brief was Eric S. Dreiband,- Washington, DC.
    Before: BROWN, SRINIVASAN and WILKINS, Circuit Judges.

       Chief Judge Garland did not participate in this matter.

   WILKINS, Circuit Judge:

Appellant David DeJesus charges that he was improperly terminated by his employer WP Company LLC (the Washington Post), in violation of the following laws: Title VII of the Civil Rights Act of 1964 (Title VTI), 42 U.S.C. § 2000e; the Civil Rights Act of 1866 (§ 1981), 42 U.S.C. § 1981; and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621. DeJesus is African-American and was, at the time of his termination, fifty-nine years old. The District Court granted summary judgment in favor of the Washington Post. We reverse and remand for further proceedings.

I.

For over eighteen years, DeJesus sold ad space in the Washington Post. In August 2011, he was terminated by his then-supervisor, Noelle Wainwright.

Wainwright became Dejesus’s supervisor in early 2008. In three annual appraisals (2008, 2009, and 2010), Wainwright generally rated DeJesus as “meet[ing] standards.” J.A. 134, 199, 394. However, Dejesus’s performance varied by different measures: as the Washington Post concedes, he “generated significant revenue[ ] and won numerous awards,” but he was also rated slightly “below standards” for “getting results,” “initiating action,” and “managing work.” Appellee’s Br. at 15-16.

DeJesus alleges that, as compared to his white and under-forty colleagues, Wainwright treated him in an “edgy” and “condescending” manner. J.A. 228-29. She also made remarks that DeJesus interpreted as coded language with racial undertones, such as describing him as “speaking well.” Id. Wainwright’s attitude purportedly extended to other African Americans. An African-American manager felt Wainwright treated her differently due to her race, and Wainwright “was condescending toward [her] and tried to order [her] around.” J.A. 961. Another African-American colleague testified that Wainwright “would not speak to [her], even if [she] spoke to [Wainwright] first.” J.A. 732. According to DeJesus, Wainwright was also dismissive of African-American client representatives: on one occasion, she dismissively labeled an African-American representative as “opinionated” and not “a good use of time” to pursue, although that representative subsequently authorized a $300,000 media buy. J.A. 230.

Wainwright’s discrimination was, DeJe-sus alleges, consistent with a cultural shift at the Washington Post—an institution replacing its racially diverse and seasoned staff with a whiter and younger staff. Other employees shared Dejesus’s perception, testifying that since 2008, “the management philosophy at the [Washington] Post was downsizing, attrition, eliminating-and replacing older employees, offering buyouts, and forcing people out,” J.A. 734; “[i]f you were 40 + years old, the [Washington] Post made sure you were leaving,” J.A. 731; and “the [Washington] Post was phasing African Americans out. too, across the board, and particularly upper-level positions,” J.A. 732.

According to DeJesus, he was swept up in this shift in 2011, in a series of events that led to his termination. Allstate Insurance, one of Dejesus’s accounts, purchased a full-page “blackout” ad about the dangers of texting while driving, in an effort to influence a bill being debated in Congress.

Allstate’s ad agency, Starcom, wanted to measure the efficacy of the campaign and asked DeJesus whether the Washington Post “do[es] any sort of research, like ad recall.” J.A. 774. The Washington Post had the capacity to conduct a Research and Analysis of Media (RAM) study, which would measure the extent to which readers could recall the texting-while-driving ad. Wainwright was on vacation, so DeJesus consulted with the acting manager on his floor, who advised him to ensure that Star-com understood the parameters of a RAM study. DeJesus then communicated with the Washington Post’s RAM-study coordinator, who confirmed that such a study, with certain caveats, would be appropriate. But, the window to conduct such a study was closing. Consequently, DeJesus ordered the RAM study.

The completed- study was delivered to both Wainwright and DeJesus. After discovering that DeJesus had ordered the study, Wainwright instructed him to “please, communicate with [her] on these types of requests,” and explained that she “should have been aware of this before we decided to move forward.” J.A. 781. After DeJesus apologized, Wainwright concluded, “No worries. Good story on the results.” J.A. 780. -

In the weeks that followed, Wainwright emphasized via email that DeJesus should deliver the RAM study to 'the “client” in person. DeJesus presented the study to Stacy Sharpe, Allstate’s Vice President of Federal Regulatory Affairs and the driving force behind the ad campaign. DeJesus had a good working relationship with Sharpe. In the past, he had invited Sharpe, who is African-American, to an event hosted by the Washington Post. Upon learning of the invitation, Wainwright allegedly remarked that Sharpe was “not a good fit for the event,” and when DeJesus invited Wainwright to sit with him and Sharpe, Wainwright declined. J.A. 567-68.

When Wainwright discovered that DeJe-sus presented the RAM study to Sharpe, Wainwright was displeased. DeJesus described her reaction as “explosive,” J.A. 572, but Wainwright denied raising her voice, J.A. 524. - According to Wainwright, when she instructed DeJesus to present the RAM study to the “client,” she meant a different Allstate executive, Karen Horn-berger, who had direct authority over the ad budget. But according to DeJesus, Wainwright never mentioned Hornberger and “client” typically referred to the purchasing company, i.e. Allstate, and not any particular person in that company.

A few days later, DeJesus was informed that he was “no longer a good fit for The Washington Post” and was offered a separation package. J.A. 574. He declined that package and was subsequently terminated on August 3, 2011. In a memo entitled “Termination of Employment,” Wainwright explained that DeJesus was being terminated “for willful neglect of duty and insubordination.” J.A. 368. According to Wainwright, DeJesus had “ordered a RAM study for a client without seeking proper authorization from [Wainwright]” and,- subsequently, failed “to follow [her] specific instructions regarding this already unauthorized RAM study.” Id.

At the time of his termination, DeJesus was covered by a collective-bargaining agreement between the Washington Post and the Washington-Baltimore Newspaper Guild. Pursuant to that agreement, DeJe-sus grieved his termination on August 3, 2011, asserting that he “was terminated without good and sufficient cause.” J.A. 861. The grievance went to arbitration. After a hearing, the arbitrator concluded that the Washington Post “failed to prove that the grievant engaged in ‘willful neglect of duty and insubordination[,]’” as defined by the collective-bargaining agreement, and ordered that DeJesus be reinstated. J.A. 496.

DeJesus filed a Charge of Discrimination with the EEOC on May 22, 2012. The EEOC issued a Notice of Right to Sue on April 30, 2013. On July 18, 2013, DeJesus filed his complaint with the District Court, asserting claims of race and age discrimination, in violation of Title VII, § 1981, and the ADEA. The District Court granted summary judgment for the Washington Post on September 29, 2015. DeJesus v. WP Co. LLC, 134 F.Supp.3d 183 (D.D.C. 2015).

n.

We review the District Court’s grant of summary judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In conducting our analysis, we review “the record taken as a whole.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

. In making this determination, courts must “view[] the evidence in the light most favorable to the non-movant and draw[] all reasonable inferences accordingly.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). If, even then, “no reasonable jury could reach a verdict in her favor,” summary judgment is properly granted. Id. “[W]e are not to make credibility‘determinations or weigh the evidence.” Holcomb, 433 F.3d at 895; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[A]t the summary judgment stage the judge’s function is not himself 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”).

DeJesus asserts race discrimination in violation of Title VII and § 1981. Title VII makes it unlawful for an employer “to discharge any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e~ 2(a)(1). To prevail, a plaintiff must demonstrate that race was “a motivating factor” for the termination. 42 U.S.C. § 2000e-2(m); Johnson, 823 F.3d at 706. Likewise, “[§ ] 1981 prohibits private employers from intentionally discriminating on the basis of race with respect to the ‘benefits, privileges, terms, and conditions’ of employment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting 42 U.S.C. § 1981). While Title VII and § 1981 are different in important ways, “facts sufficient to support Title VII liability [under a theory of intentional race discrimination] will support § 1981 liability as well.” 6 Lex K. LaRSon, Employment DISCRIMINATION § 101.10, at 101-52 (2d ed. 2007); see also Ayissi-Etoh, 712 F.3d at 576-77 (analyzing a § 1981 claim using the same framework as a Title VII claim); Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011) (“We analyze § 1981 discrimination claims in the same manner as claims brought pursuant to Title VII of the Civil Rights Act.”).

DeJesus also asserts age discrimination in violation of the ADEA. The ADEA makes it unlawful for an employer “to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

Under all three statutes—Title VII, § 1981, and the ADEA—plaintiffs seeking to prove disparate treatment through indirect, circumstantial evidence employ the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Ayissi-Etoh, 712 F.3d at 576 (“In Section 1981 and Title VII cases, courts use the same framework fox-determining whether unlawful discrimination occuired.”); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (applying the McDonnell Douglas framework to an ADEA claim). Under this formula, a plaintiff must first establish a prima facie case of prohibited discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The employer must then come forward with a legitimate, non-discriminatory reason for the challenged employment decision. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets this burden, the framework falls away and the court must decide one ultimate question: “Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

Therefore, our inquiry centers on whether DeJesus produced sufficient evidence for a reasonable jury to conclude that the Washington Post’s asserted non-diserimi-natory reason for terminating him—“willful neglect of duty and insubordination”— was not the actual reason, and that the Washington Post intentionally discriminated against DeJesus on account of his race or age.

III.

According to the Washington Post, De-Jesus was terminated for “ordering] a RAM study without seeking proper authorization” and intentionally failing to present that study to a particular person. These two acts purportedly constituted “willful neglect of duty and insubordination.”

As an initial matter, there may be circumstances when an employer offers several independent reasons for the challenged action, and the employee must cast doubt on each reason to overcome summary judgment. See Russell v. Acme-Evans Co., 51 F.3d 64, 69-70 (7th Cir. 1995). We are not presented with such a case. Wainwright’s memo describes both the unauthorized RAM study request and the failure to properly deliver the unauthorized study as the same sin: “willful neglect of duty and insubordination.” At oral argument, the Washington Post confirmed this characterization, explaining that, “it’s the two things together.” In other words, the two grounds for termination are so “intertwined” that they should be considered as one. See id. at 70.

“[T]he issue is whether [Wainwright] honestly and reasonably believed” that DeJesus had committed “willful neglect of duty and insubordination” sufficient to warrant termination. Brady, 520 F.3d at 496. For three reasons, we think a reasonable jury could conclude she did not.

First, when Wainwright discovered that DeJesus had ordered the RAM study without her authorization, she instructed him to clear future requests with her, but reassured him, “No worries. Good story on the results.” J.A. 574. DeJesus testified that there was no follow-up conversation. Such an unperturbed reaction to a purportedly dischargeable offense, by itself, could cast doubt on the Washington Post’s proffered reason.

Second, a jury could properly conclude that the Washington Post’s proffered reason is so unreasonable that it provokes suspicion of pretext. Once the RAM study was in-hand, Wainwright repeatedly emphasized via email that DeJesus should deliver it to the “client” in person. The record strongly suggests that “client” typically meant “Allstate” as a business and, therefore, Wainwright’s email instructions were arguably ambiguous as to the particular Allstate official who should have received the RAM study. See, e.g„ Wainwright Dep. Tr. at 38:21-22, J.A. 512 (“Q: Who was the client? A: Allstate.”), Wainwright testified that by “client,” she meant a particular person, Hornberger, who had authority over Allstate’s ad budget. DeJe-sus testified that Wainwright never mentioned Hornberger.

Notwithstanding the ambiguity of Wainwright’s instructions, the Washington Post insists it is enough that Wainwright honestly believed that DeJesus’s failure to properly deliver the RAM study constituted insubordination. But Wainwright’s belief must have been both “honest” and “reasonable.” See Brady, 520 F.3d at 496 (“[T]he issue is whether the employer honestly and reasonably believed [the proffered reason for termination].”). To be clear, courts should not evaluate the rear sonableness of the employer’s business decisions, such as whether it made financial sense to terminate an employee who generated substantial revenue; we are not “a super-personnel department that reexamines an entity’s business decisions.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (citation omitted). Rather, the factfinder is tasked with evaluating the reasonableness of the decision-maker’s belief because honesty and reasonableness are linked: a belief may be so unreasonable that a factfinder could suspect it was not honestly held. Here, where contractual prerequisites for such an allegation were found in the arbitration not to have been met, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (“[Arbitral deci-siones] may be admitted as evidence and accorded such weight as the court deems appropriate,”), and the supervisor’s immediate response' did not even hint at any irretrievable misstep, a jury could find Wainwright’s interpretation of the events—that this was insubordination, not mere miscommunication—so unreasonable that it provokes suspicion of mendacity. In other words, the jury might hear Wainwright’s explanation and think: “she doesn’t really believe that.”

Third, characterizations contained in Wainwright’s termination memo offer an account of DeJesus’s actions that a reasonable jury could find misleading, even mendacious. Wainwright explained that, rather than present the RAM study to Hornber-ger, DeJesus met only “with a local client contact with no advertising decision-making ability or budgetary oversight.” J.A. 368. That “local client contact” was Sharpe, Allstate’s Vice President of Federal Regulatory Affairs, who reported directly to Allstate’s chairperson and was the principal force behind the texting-while-driving ad campaign that the RAM study evaluated. Five months earlier, Wainwright commended DeJesus for cultivating a relationship with Sharpe, which Wainwright described as demonstrating Dejesus’s understanding -of the “who, what, when and where of decisions.” J.A. 384. Sharpe, according to Wainwright at the time, was “helping to drive media decisions inside Allstate on behalf of’ the Washington Post; Id,

Wainwright’s descriptions of Sharpe are technically' consistent, but in tension: “a local client contact with no advertising decision-making ability,” who is also a high-level executive part of the “who, what, when and where of decisions” and “drive[s] media decisions inside Allstate.” Given the temporal proximity (five months) between these dissonant descriptions, a reasonable jury could conclude that Wainwright was shading the truth enough to evince mendacity—that she deliberately exaggerated Dejesus’s purported mistake in an’effort to manufacture cause to terminate him.

To be sure, there is evidence that Wainwright honestly believed that Dejesus’s actions were proper grounds for termination. For example, DeJesus testified that Wainwright had an “explosive” reaction to learning about his presentation to. Sharpe instead of Hornberger, evincing genuine anger and frustration (although, Wainwright herself disputed this account). Indeed, some aspects of the Washington Post’s proffered reason may be more credible than others. But, as explained above, those aspects are so “intertwined” that they rise and fall together. See Russell, 51 F.3d at 70.

In sum, a jury could conclude that Wainwright’s “no worries” reaction demonstrated that the unauthorized RAM study was not a big deal, her interpretation of Dejesus’s actions as insubordination was so unreasonable that it could not be honestly held, and her shaded characterization of Sharpe suggests an overall lack of forthrightness. At this stage, we “view[] the evidence in the light most favorable to” DeJesus and are obligated to “draw[] all reasonable inferences accordingly.” See Wheeler, 812 F.3d at 1113. We therefore conclude that a reasonable jury could find that the Washington Post’s proffered nondiscriminatory reason—“willful neglect of diuty and insubordination”—“was not the actual reason” for Dejesus’s termination. See Brady, 520 F.3d at 494.

If there is sufficient cause to •doubt the Washington Post’s proffered reason, what additional showing of intentional discrimination must DeJesus make to survive summary judgment? There is no easy answer. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc) (“[I]t is difficult, if not impossible, to say in any concise or generic way under what, precise circumstances [an inference of intentional discrimination based • on a demonstration of pretext alone] will be inappropriate.”). This Court could “do no better than to quote [St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)]:” “In an appropriate case, ‘the factfinder’s disbelief of the reasons put forward by the defendant’ will allow it to infer intentional discrimination.” Aka, 156 F.3d at 1294 (quoting Hicks, 509 U.S. at 511, 113 S.Ct. 2742). Although “rebuttal evidence alone will not always suffice to permit an inference of discrimination,” id. at 1292, “we do not routinely require plaintiffs ‘to submit evidence over and above rebutting the employer’s stated explanation in order to avoid summary judgment[,]’ ” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (quoting Aka, 156 F.3d at 1290). Moreover, “[i]f ‘disbelief is accompanied by a suspicion of mendacity,’ ... the likelihood of intentional discrimination is increased, permitting the factfinder to infer discrimination more readily.” Aka, 156 F.3d at 1294 (quoting Hicks, 509 U.S. at 511, 113 S.Ct. 2742). For the reasons explained above, we think a reasonable jury could suspect mendacity on the part of Wainwright.

But, for good measure, DeJesus has furnished evidence of intentional discrimination that bolsters his claims. As to both race and age discrimination, DeJesus submitted “independent evidence of discriminatory statements or attitudes on the part of the employer.” Id. at 1289.

Wainwright allegedly was “edgy” and “condescending” to DeJesus, as compared to his white colleagues. J.A. 551, 559. She made comments susceptible to being interpreted as race-inflected code, such as describing both DeJesus and Sharpe as “not a good fit,” J.A. 574, complimenting DeJe-sus for “speaking well,” J.A. 228-29, and dismissing an African-American client representative as “opinionated,” J.A. 230. Several African-American colleagues corroborated Dejesus’s account, testifying that Wainwright was especially condescending to and dismissive of them, refusing to respond to an African-American colleague even if the colleague spoke first. These accounts may be false, or it may well be that Wainwright was an equal-opportunity bully. But it is the province of a jury to credit, or not credit, this testimony.

It may be argued that these statements and attitudes are immaterial because they do not concern the employment decision— termination;—in controversy. “Although we have found that an isolated race-based remark unrelated to the relevant employment decision could not, without more, permit a jury to infer discrimination, we have not categorically labeled such comments immaterial.” Morris, 825 F.3d at 669-70 (citation omitted). Indeed, a reasonable jury could treat evidence of a deci-sionmaker’s broad-based racial animus or bias as corroborating evidence that such animus or bias infected a particular employment decision; it is not unreasonable to doubt that an employer quarantines her animus or bias to day-to-day treatment of colleagues, away from decisions about hiring, or promotion, or termination. Wainwright’s comments and attitude bear on the central question in this case: were Wainwright’s employment decisions motivated by race?

Likewise, a reasonable jury could conclude that, but for the fact that DeJesus was fifty-nine years old, he would not have been terminated. See Gross, 557 U.S. at 178, 129 S.Ct. 2343. Higher-level management, who were “100% supportive” of the termination, ratified Wainwright’s decision with little apparent discussion. J.A. 857. That “management's] philosophy” since 2008 was, according to a former employee, “downsizing, attrition, eliminating and replacing older employees[.]” J.A. 734. In support of this characterization, the former employee described four specific instances in which top-level management purportedly “forced out” older employees due to their age. J.A. 735-38. Another former employee identified two departments in which management “[got] rid of excellent older employees in order to put younger people in[.]” J.A. 731. She explained that, “if you were 40+ years old, [t]he [Washington] Post made sure you were leaving.” Id. It would not be an unreasonable stretch—if the Washington Post’s proffered reason is deemed pretextual—for a jury to conclude that when Wainwright presented the chance to terminate a fifty-nine-year-old employee, DeJesus was rushed out the door because of his age.

By resolving these fact-bound questions in the Washington Post’s favor, the District Court committed error.

IV.

For the foregoing reasons, we reverse the grant of summary judgment by the District Court and remand for further proceedings.

So ordered.

      . The record is unclear as to whether DeJesus advanced any theory of discrimination on the basis of color or national origin. To the extent he did, his appeal makes no effort to challenge the District Court’s decision on that basis. Therefore, those arguments are waived. See Petit v. U.S. Dep't of Eduo., 675 F.3d 769, 779 (D.C. Cir. 2012) (“[A] party waives its right to challenge a ruling of the district court if it fails to make that challenge in its opening brief.”).

      . E.g., scope of coverage (§ 1981 does not cover religious or sex discrimination), the availability of certain theories (§ 1981 is limited to intentional discrimination), and the types of employers susceptible to suit (§ 1981 contains no minimum requirement for the number of people employed by the defendant). See generally Mark A. Rothstein et al., Employment Law § 2:40 (5th ed. 2014); 6 Lex K. Larson, Employment Discrimination § 101 (2d ed. 2007).

      . DeJesus contends the arbitrator’s decision that his termination violated the collective-bargaining agreement is issue-preclusive and compels the determination that the Washington Post’s proffered reason is pretextual. This argument is meritless for multiple reasons, including the fact that neither discrimination nor any decisionmaker's belief was “actually litigated” in the arbitral proceedings. See Milton S. Kronheim & Co., Inc. v. District of Columbia, 91 F.3d 193, 197 (D.C. Cir. 1996).

      . The Washington Post made no effort to distance itself or higher-level decisionmakers from the actions of Wainwright. Even if it had, such an effort would have been futile because Wainwright’s actions—as illustrated by the memo entitled “Termination of Employment”—undisputedly caused and were intended to cause Dejesus's termination. See Morris v. McCarthy, 825 F.3d 658, 668-69 (D.C. Cir. 2016) (applying the cat's-paw theory of discrimination). Consequently, we treat Wainwright’s actions as the actions of the Washington Post.

      .The Washington Post repeatedly mentions, but does not forcefully press, additional nondiscriminatory reasons for Dejesus’s termination. The memo explaining the basis for termination vaguely gestures to other "issues regarding [Dejesus's] work performance.” But reading the memo as a whole, it is clear that the principal non-discriminatory reason relied upon by the Washington Post is "willful neglect of duty and insubordination” related to the RAM study, and the reference to other issues is an after-thought residual clause. Indeed, the Washington Post's General Counsel and Vice President of Labor Relations confirmed that "absent [the RAM study] inci-den^,] ... [DeJesus] would [not] have been terminated.” Therefore, we test the Washington Post’s principal non-discriminatory reason: "willful neglect of duty and insubordination.”

      . The Washington Post did not object to or move to strike the affidavits of either of these former employees.

      . During discovery, DeJesus attempted to obtain information about employees who, like him, were offered buyouts. The District Court concluded that “allowing discovery about employees who voluntarily resigned would likely require the [Washington] Post to disclose substantial information that is irrelevant to De[J]esus's claims.” However, the heart of DeJesus’s claim is that these voluntary resignations (i.e. buyouts) were not, in fact, voluntary; DeJesus asserts that these buyouts were coerced and if the employees rejected the offers, like he did, they would have been terminated. Our case law does state buyouts are "presumed” voluntary, see Aliotta v, Bair, 614 F.3d 556, 566 (D.C. Cir. 2010), but this presumption can be overcome, id. at 566-67 (describing cases). Here, the District Court’s discovery order deprived DeJesus of the very mechanism—information about the overlap between employees receiving buyout offers and employees being terminated—that would have enabled him to rebut the "voluntariness” presumption, When a terminated plaintiff’s theory is that his buyout offer was not voluntary, information about employees who accepted buyouts is not irrelevant, especially in light of the liberal rules governing discovery. See 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2008 (3d ed, 2010) (“Certainly the requirement of relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms.”).


author: BROWN, Circuit Judge:

text:
    Eric FRIEDMAN, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent
    No. 16-1007
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 23, 2016
    Decided November 15, 2016

      Z.W. Julius Chen argued the cause for Petitioner. With him on the briefs were Gregory S, Walden and William Mongan. Pratik A. Shah, Washington, DC, entered an appearance.

      - Amanda Kate Bruchs, Attorney, Federal Aviation Administration, argued the cause and filed the brief for Respondent. Michael S. Raab and Abby C. Wright, Attorneys, U.S. Department of Justice, entered appearances.
    Neal Kumar Katyal and Jaclyn L. DiLauro, Washington, DC, were on the brief for amicus curiae The American Diabetes Association in support of Petitioner.
    Before: ROGERS, BROWN and PILLARD, Circuit Judges.
   BROWN, Circuit Judge:

“I’ve never known an industry that can get into people’s blood the way aviation does.”

—Robert Six, founder of Continental Airlines

Petitioner Eric Friedman (“Friedman”), a commercial airline pilot, claims Respondent Federal Aviation Administration (“the FAA” or “the Agency”) has behaved in an arbitrary and capricious manner in assessing his request for a commercial airline pilot’s license. Friedman has been diagnosed with Insulin Treated Diabetes Melli-tus (“ITDM”), and although he holds a third class medical certificate authorizing him to pilot non-commercial flights in the United States, he seeks the first class certificate necessary to serve as a commercial airline pilot. He argues the FAA has im-permissibly conditioned issuance of a first class license on ninety days of continuous blood glucose monitoring, a costly and invasive procedure not medically necessary for his care. Since we believe the Agency’s unwavering position constitutes final action, we remand to the FAA to provide reasons for its denial.

I.

Congress has granted the FAA broad authority to regulate those “practices, methods, and proeedure[s] the Administrator finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a)(5). Accordingly, the FAA issues airman certificates to pilots who are “qualified for, and physically able to perform the duties related to, the position.” Id, § 44703(a). The Agency has also, established rules requiring pilots to hold both a medical certificate and a pilot certificate. See, e.g., 14 C.F.R. § 61.3(a) & (c). The FAA lists a number of conditions generally disqualifying for any class of medical certification, among them a “medical history or clinical diagnosis of diabetes mellitus that requires insulin or any other hypoglycemic drug for control,” otherwise known as ITDM. 14 C.F.R. §§ 67.113(a), 67.213(a), 67.313(a). While a diagnosis of ITDM generally excludes a pilot from any medical certificate issued by the FAA pursuant to 49 U.S.C. § 44703(a), the FAA has .the discretionary authority to grant exceptions to the medical regulations contained in 14 C.F.R. § 67. See 49. U.S.C. § 44701(f), An Authorization for Special Issuance of a Medical Certificate may be provided to an applicant with á disqualifying condition “if the person shows to the satisfaction of the Federal Air Surgeon that the duties authorized by the class of medical certificate applied for can be performed without endangering public safety during the period in which the Authorization would be in force.” 14 C.F.R. § 67.401(a).

Regulations require the Federal Air Surgeon (“FAS”) to make his determination using standards published for each condition as set forth in the FAA’s Guide to Aviation Medical Examiners (“AME Guide”). See id, § 67.407(a). The process includes a medical examination performed by a member of the community of Aviation Medical Examiners . (“AME”s), see. id. § 67.401(a), and it may require pilots to provide additional medical information to the FAA where necessary, see id. § 67.413(a). Specifically, the FAS must “consider[ ] the need to protect the safety of persons and property in other aircraft and on the ground.” Id. § 67.401(e).

For much of its history the FAA enforced a blanket ban on the issuance of medical certificates to individuals with ITDM, but in 1996 it reversed course and established criteria for pilots with ITDM to receive a third class medical certificate (but not a first class certificate). Since the policy change was adopted, there has been no medically related accident, incident, or inflight incapacitation, from any cause, of any such insulin treated special issuance pilot. In light of the strong record of third class pilots with ITDM, and in reliance on the expert analysis provided by an Expert Panel on Pilots with Insulin Treated Diabetes (“Expert Panel”)—convened by the American Diabetes Association (“ADA”) at the FAA’s request—the FAA amended its AME Guide to broaden the third class ITDM protocol to all classes of medical certificates on April 21,2015.

On April 27, 2015, Friedman submitted a completed application for a first class license to the FAA. A few days later, on April 30, 2015, the FAA requested supplemental information, including “any and all information that you may have that is relevant to your condition, which may include ... (if applicable) continuous glucose monitor readings.” JA 73. The next month, Friedman inquired as to the FAA’s method for evaluating glucose testing results and stated “I do not use a continuous glucose monitor.” JA 31-32. Continuous Glucose Monitoring (“CGM”), according to the ADA, is an invasive procedure that “uses a sensor inserted under the skin to check glucose levels in tissue fluid. A transmitter sends information about glucose levels via radio waves from the sensor to a wireless monitor.” ADA Amicus Br. 14. This technique provides a “historical record of glucose levels over time” and can “provid[e] helpful information about historic trends in one’s blood sugar levels and how those levels have been affected by diet and exercise.” Id. However, CGM data is not as accurate as other blood glucose measures like fingersticks. Id. 15-16. Moreover, CGM is costly and is not covered by insurance unless medically necessary.

On June 17, 2015, just two days after Friedman wrote to the FAA to note the Agency had requested information beyond its own published evaluation protocol, the FAA revised its AME Guide. The newly-minted version provided “[fjirst and second class applicants will be evaluated on a case-by-case basis by the Federal Air Surgeon’s Office” and omitted any protocol for evaluation. JA 469. Later, on October 6, 2015, the FAA again requested Friedman provide “any and all information that you may have that is relevant to your condition, which may include ... [a] report for continuous glucose monitoring (CGM) conducted for a minimum of 90 days.” JA 71. The letter informed Friedman his application would be denied if he did not indicate he planned to comply with the request within sixty days. JA 72. In response, Friedman again advised the FAA he did not possess any CGM data. This time, however, Friedman also presented letters from his physicians explaining CGM was not medically necessary in his case. The Expert Panel even submitted a letter in support of Friedman’s application to explain, “CGM systems have value, [but] they are neither necessary nor appropriate for making decisions on medical certification of pilots with diabetes” and are less accurate than the blood glucose data Friedman had already submitted. JA 65-66. On November 13, 2015, the FAA wrote to Friedman yet again to request CGM data and again cautioned that failure to respond within thirty days with an agreement to supply CGM data would result in denial of his application.

Thereafter, on December 1, 2015, the FAA wrote Friedman to explain it was “unable to proceed with further determination of [his] potential eligibility for special issuance of a first-class airman medical certificate until [the Agency] receivefd] the [CGM] information previously requested....” JA 53. On December 18, 2015, the FAS sent an additional letter informing Friedman his request for a first class certification “remains under consideration” and granting him a third class certificate—the certificate level he already held. JA 47-48. Specifically, the letter noted the FAS had reviewed the information submitted in Friedman’s April 27, 2015 application and granted the third class license in response. Ibid. It further advised Friedman “should not undergo a new FAA medical examination until advised to do so by the Aerospace Medicine Certification Division (AMCD).” JA 48.

II.

The threshold question in this case is whether the FAA has, either actually or impliedly, issued a final order eligible for judicial review. The Administrative Procedure Act .(“APA”) authorizes judicial review of “final agency action for which there is no other adequate remedy in a court,” and “[a]gency action made renewable by statute.” 5 U.S.C. § 704. And, while Section 46110 of the Federal Aviation Act authorizes judicial review of an “order” and omits any explicit finality requirement, this Circuit has “incorporated generally applicable finality principles into the analysis of what counts as an ‘order’ under section 46110.” Flytenow, Inc. v. FAA, 808 F.3d 882, 888-89 (D.C. Cir. 2015).

Here, the FAA contends it did not issue a final order regarding Friedman’s first class medical certificate application; it purportedly ruled solely on his independent request for a third class medical certificate and specifically indicated the first class certificate remained under review. See JA 47-48, 53. Accordingly, the Court initially considers whether the Agency’s admitted actions nonetheless meet the two-part test of finality:

First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations .have been determined, or from which legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Case law interpreting this standard is “hardly crisp,” and it “lacks many self-implementing, bright-line rules, given the pragmatic and flexible nature of the • inquiry as a whole.” Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016). As a general principle, therefore, “the term ‘order’ in [Section 46110] should be read expansively.” City of Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007).

' The specific facts presented here establish a constructive denial of Friedman’s application for a first class certificate.

In its October 6, 2015 letter, the FAA first expressly required CGM data from Friedman: the Agency warned it would “deny [his] request for upgrade” to a first class certificate if he did not “reply within 60 days ... [to] advise [the FAA] of [his] plans” to provide the requested data. JA 72; see 14 C.F.R. § 67.413(a) & (b) (noting an applicant “must” provide requested supplemental information and authorizing the FAA to “deny the application for a medical certificate” for those who fail to comply). Friedman refused. Thereafter, on November 13, 2015—about one month after the FAA’s countdown clock started— the FAA repeated its demand, and it requested a “reply within 30 days.” JA 55. The Agency was clearly counting down towards a denial on December 13, 2015, and yet Friedman continued to explain that he did not possess- or intend to procure the requested CGM data. Then, in its December 1, 2015 letter acknowledging communication from Friedman’s attorney, the FAA ignored the ticking clock. Instead, it merely noted, “We are unable to proceed with further determination of your potential eligibility for special issuance of a first-class airman medical certificate until we receive the information previously requested in our letter of November 13, 2015. We look forward to reviewing that information when you are able to provide it.” JA 53. Thereafter, in its only communication authored after the thirty-day deadline had passed, the FAA acknowledged Friedman’s “request for upgrade[d] first-class special issuance medical certification remains under consideration,” but it failed to offer an extension of the previously-set deadline or otherwise establish any timetable for denial of Friedman’s application for failure to comply. JA 47 (December 18, 2015 letter).

Herd, the FAA has issued no formal decision on Friedman’s application for a first class certificate. Despite his consistent refusal to provide the requested CGM data, the Agency has placed Friedman in a holding pattern—preventing him from obtaining any explicitly final determination on his application and thwarting the Court’s interest in reviewing those agency actions that, in practical effect if not formal acknowledgement, constitute “the consummation of the agency’s decisionmaking process” and determine “rights or obligations.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154; see also 5 U.S.C. § 551(13) (defining agency “action” to include a “failure to act”). Indeed, this Court has repeatedly noted the applicable test is not whether there are further administrative proceedings available, but rather “whether the impact of the order is sufficiently ‘final’ to warrant review in the context of the particular case.” Envtl. Def. Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 591 (D.C. Cir. 1971) (assessing the Federal Insecticide, Fungicide, and Rodenticide Act’s provision for judicial review “[i]n a case of actual controversy as to the validity of any order” of the Secretary of Agriculture as articulated in 7 U.S.C. § 135b(d) (1970)); Cibar-Geigy Corp. v. EPA, 801 F.2d 430, 435-37 (D.C. Cir. 1986) (finding final agency action where a letter from the Environmental Protection Agency confirmed its policy with respect to new labeling changes and noting “[o]nce the agency publicly articulates an unequivocal position ... and expects regulated entities to alter their primary conduct to conform to that position, the agency has voluntarily relinquished the benefit of postponed judicial review”); Envtl. Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1098-99 (D.C. Cir. 1970).

Where an agency has clearly communicated it will not reach a determination on a petitioner’s submission due to petitioner’s recalcitrance but simultaneously refuses to deny the petitioner’s submission on those grounds, it has engaged in final agency action subject to this Court’s review. In Securitypoint Holdings, Inc. v. Transportation Security Administration, 769 F.3d 1184 (D.C. Cir. 2014), for example, we reviewed as final agency action a letter from the Transportation Security Agency (“TSA”) Chief Counsel refusing to lift a contracting requirement newly imposed on TSA airport security checkpoint contractors. SecurityPoint sought to obtain the government contract, but it objected to and refused to sign TSA’s new Memorandum of Understanding (“MOU”) promising to indemnify TSA for intellectual property claims. Id. at 1186. The company wrote to the TSA’s Chief Counsel to urge the agency to abandon the MOU, and TSA denied the request by letter. The Court later held that letter represented the consummation of the agency’s “decisionmaking process regarding SecurityPoint’s contention that it should abandon the challenged alterations of the MOU language.” Id. at 1187. Here, Friedman refuses to comply with the agency requirement he seeks to challenge, and the Agency has made clear it will not act on his application until he submits. Friedman, for his part, repeatedly asserts that he provided all that is required under the April 2016 AME Guide, and no FAA “regulation or policy require[s] the use of [CGM] for either initial certification or inflight monitoring.” JA 41-43. Accordingly, as with the TSA Chief Counsel’s letter in SecurityPoint, the FAA’s communications here represent the agency’s rejection of Friedman’s argument, its final decision to require CGM data, and its confirmation that it is not now opening the third-class applicants’ case-by-case exemption process, to first-class applicants.

The government, apparently ignoring the power of. the Court to ensure justice in an area of law governed by a “pragmatic and flexible” approach, Rhea Lana, 824 F.3d at 1027, is content to distinguish the cases cited by Friedman on their specific facts. Air One Helicopters, Inc. v. FAA, 86 F.3d 880 (9th Cir. 1996), the Agency contends, applies only to a scenario where an agency and a private party find themselves at an impasse that neither is empowered to clear. Similarly, the FAA reads Air Line Pilots Ass’n, International v. Civil Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984), to apply only to situations where the private party has done everything in his power to comply with an agency’s request but the agency, nonetheless, excessively delays determination of his claims. Finally, the FAA asserts the doctrine of Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970), reviewing “administrative inaction [that] has precisely the same impact on the rights of the parties as denial of relief,” does not apply since Friedman is free to trigger a new six-month license validity period at his option. The Agency has missed the forest for the trees. Nothing in our case law suggests the law of final agency action is confined to the specific facts of prior circuit cases.

To the contrary, the doctrine asks whether a particular agency action represents the “consummation of [its] decision-making process” and determines “rights or obligations.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. The standard is met here. As described above, the FAA has set deadlines, counted down towards them, and .then allowed them to pass without discussion; its actions suggest the FAA has made up its mind, yet it seeks to avoid judicial review by holding out a vague prospect of reconsideration. And, as a result of the FAA’s conduct, Friedman has been unable to resume his job as a commercial airline pilot at American Airlines, a job that requires a first class medical certificate. See Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (finding adequate legal consequences where an agency’s new test for runway lighting “effectively pro-Mbits airports from buying light bases that fail the new ... test, and ... bars manufacturers like Safe Extensions from selling their products to airports”).

III.

Since we hold Friedman’s case is subject to judicial review, we now proceed to the merits.

The FAA argues Friedman’s claims are insulated from judicial scrutiny as “there is no law to apply” to the FAA’s determination. Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). But the jurisprudence of unfettered discretion is inapplicable here. Several regulations provide the criteria upon which the FAS relies to determine whether Friedman may be granted a first-class certificate. Specifically, under 14 C.F.R. § 67.401(a), a special issuance may be granted “if the person shows to the satisfaction of the Federal Air Surgeon that the duties authorized by the class of medical certificate applied for can be performed without endangering public safety during the period in which the Authorization would be in force.” Later in that same section, the regulation charges the FAS with a duty to “consider[] the need to protect the safety of persons and property in other aircraft and on the ground.” Id. § 67.401(e). While these directives are clearly open to interpretation, they nonetheless provide a judicially manageable standard. See, e.g., Safe Extensions, 509 F.3d at 601 (finding a judicially manageable standard in the phrase “necessary for safety” under 49 U.S.C. § 44701); Union of Concerned Scientists v. U.S. Nuclear Regulatory Comm’n, 824 F.2d 108, 109, 113 (D.C. Cir. 1987) (reviewing whether regulations “provide[d] adequate protection to the health and safety of the public” under 42 U.S.C. § 2232(a)).

Arguing in the alternative, the FAA maintains Friedman’s license application was denied for refusal to comply with the Agency’s request for CGM data. To justify this decision, the FAA points to the Expert Panel’s letter in support of Friedman’s application, which acknowledged “CGM systems have value” and are “most useful in identifying trends and the direction and speed at which a person’s blood sugar may be changing.” JA 65-66. While the Expert Panel concluded treatment decisions for individuals with ITDM should not be based on CGM data alone— as the devices may be inaccurate and are, in any event, less accurate than fingerstick blood test results—it also noted CGM provides constant glucose monitoring results capable of detecting spikes and dips in interstitial glucose (indicative of actual blood glucose) that might have gone undetected via intermittent fingerstick measurements. Ibid-, see also ADA Amicus Br. 13-14. Nonetheless, the FAA overstates the. usefulness of this concession, as the Expert Panel does not ultimately recommend employing CGM data “for making decisions on medical certification of pilots with diabetes.” JA 66. It is not for us to say in the first instance whether or how CGM data might be of future use to the FAA in evaluating license applications. But it is clear the FAA has not borne its burden of justification. The FAA’s letters communicating its demand for CGM data to Friedman, despite his many requests for clarification, fail to articulate any rationale for consideration of the additional information. See Safe Extensions, 509 F.3d at 606 (finding no “substantial evidence” to support the FAA’s rationale where it offered “no evidence whatsoever” on the relevant issue).

Notably, the Agency does not identify any FAA statements that could be construed as explaining its denial of Friedman’s application, the determination Friedman calls upon this Court to review. Of course, there is a certain irony inherent in requiring an agency to identify reasons for a denial it never thought it issued. But “recent [D.C. Circuit] cases regarding whether agency actions qualify as orders never consider the adequacy of the record, instead asking only whether the action was final.” Id. at 599 (citing Dania Beach, 485 F.3d at 1187; Vill. of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006)). As the Supreme Court explained,

The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. The task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court. If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Specifically, “the court can undertake review as though the agency had denied the requested relief and can order an agency to either act or provide a reasoned explanation for its failure to act.” Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987).

In light of the complete absence of a relevant administrative record to review—and the inherent inequity in passing judgment on this matter without offering the Agency a chance to explain its reasoning—any analysis of the FAA’s denial would be imprudent. Accordingly, we remand this matter to the FAA to offer reasons for its denial of Friedman’s application for a first class medical certificate. Friedman’s additional allegations must await proceedings on remand.

* * *

The FAA has placed Friedman in administrative limbo—he has neither a first class medical certificate nor an official order denying him the certificate—and the only way out requires capitulation to the very requirement he seeks to challenge. The Agency cannot manipulate its own processes, threatening denial but then refusing to deny or otherwise take definitive action on Friedman’s application, in an effort to thwart judicial review.

So ordered.

      . On November 12, 2015, Friedman had applied to the FAA for a renewal of his third class medical certificate due to expire on December 31, 2015. While Friedman alleges the FAA altered his first class application in granting his request for a third class certificate, he has presented no evidence suggesting this was done in bad faith. Without evidence to the contrary, "[w]e must presume an agency acts in good faith.” Comcast Corp. v. FCC, 526 F.3d 763, 769 n.2 (D.C. Cir. 2008).