source: Caselaw Access Project

author: WILLIAM PRYOR, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Khalid A. SHALHOUB, Defendant-Appellant.
    No. 16-10533
    United States Court of Appeals, Eleventh Circuit.
    (April 28, 2017)

      Wifredo A. Ferrer, Anne P. McNamara, Lisette Marie Reid, Lisa Tobin Rubio, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
    Pierre H. Bergeron, Squire Patton Boggs (US) LLP, Cincinnati, OH, Rebekah J. Poston, Squire Patton Boggs (US) LLP, Miami, FL, Samuel Rosenthal, Squire Patton Boggs (US) LLP, Washington, DC, for Defendant-Appellant.
    Before WILLIAM PRYOR and MARTIN, Circuit Judges, and DUFFEY, District Judge.

       Honorable William S. Duffey, Jr., United States District Judge for the Northern District of Georgia, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal presents the questions whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order and, if not, whether we should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear. In 1997, a grand jury indicted Khalid Shalhoub on one count of international parental kidnapping, 18 U.S.C. § 1204. Shalhoub lives in Saudi Arabia and has never been arrested. In 2015, he moved to have his attorneys specially appear to seek dismissal of the indictment, which the district court denied on the ground that the fugitive disentitlement doctrine prohibits Shalhoub from calling upon the resources of the court without submitting to its jurisdiction. Shal-houb appealed and, alternatively, petitioned for a writ of mandamus. We dismiss his interlocutory appeal for lack of jurisdiction because the order denying his motion is not appealable under the collateral order doctrine. We also deny his petition for a writ of mandamus because Shalhoub has an adequate means to obtain relief— appearance in the district court — and cannot establish that his right to mandamus is clear and indisputable.

I. BACKGROUND

Khalid Shalhoub, a citizen and resident of Saudi Arabia, married Miriam Hernandez in Miami in 1985. They divorced four years later. A Florida court granted Shal-houb and Hernandez “full shared parental responsibility” over their only child, Yas-meen, and the court designated Hernandez “as the primary residential parent.”

In 1997, a grand jury in the Southern District of Florida indicted Shalhoub on one count of parental kidnapping in violation of the International Parental Kidnapping Crime Act, which makes it a crime to “remove[ ] a child from the United States ... with intent to obstruct the lawful exercise of parental rights.” 18 U.S.C. § 1204(a). The indictment alleged that Shalhoub removed Yasmeen from the United States to Saudi Arabia “with [the] intent to obstruct the lawful exercise of the parental rights of Miriam Hernandez.” Although a magistrate judge issued a warrant for Shalhoub’s arrest the day he was indicted, Shalhoub has not been arrested, and the district court listed him a “fugitive from justice.”

In 2015, Shalhoub moved to allow his counsel to appear specially and seek dismissal of the indictment. Shalhoub argued that the indictment lacked factual specificity; that the International Parental Kidnapping Crime Act contravenes the laws of Saudi Arabia where the alleged kidnapping occurred; that the Southern District of Florida is an improper venue; that comity cautions against prosecuting conduct that occurred in another country; and that the prosecution violates Shalhoub’s right to a speedy trial. He also argued that the district court should not invoke the doctrine that “disentitles [a fugitive] to call upon the resources of [a c]ourt for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Shalhoub asserted that he is not a fugitive from justice because he was living in Saudi Arabia when he was indicted and did not flee the United States. He also argued that application of the fugitive disentitlement doctrine violates his right to due process because the district court labelled him a “fugitive” without an opportunity to be heard.

The district court denied Shalhoub’s motion without prejudice to his right to appear and seek dismissal of his indictment. The district court explained that the fugitive disentitlement doctrine barred Shal-houb’s motion because, although Shalhoub was living abroad when indicted, Shalhoub “constructively fle[d] by not deciding to return” to the United States. United States v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997). The district court also ruled that Shalhoub’s right to due process had not been violated and declined to exercise its discretion to circumvent application of the doctrine. Shalhoub appealed and, in the alternative, petitioned for a writ of mandamus.

II. STANDARDS OF REVIEW

We review de novo whether we have jurisdiction to decide an interlocutory appeal. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014). “Because a writ of mandamus is an action against the district court judge, the remedy is a drastic one that only exceptional circumstances, amounting to a judicial usurpation of power, will justify.” In re Coffman, 766 F.3d 1246, 1248 (11th Cir. 2014) (citation and internal quotation marks omitted) (alteration adopted). “We will issue a writ only if a petitioner establishes that he has no other adequate means to attain the relief he desires and that his right to the issuance of the writ is clear and indisputable.” Id. (internal quotation marks omitted) (alteration adopted). ‘We also must be satisfied that the writ is appropriate under the circumstances.” Id. (citation and internal quotation marks omitted).

III. DISCUSSION

The fugitive disentitlement doctrine permits a district court to “sanction or enter judgment against parties on the basis of their fugitive status.” Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998). This doctrine accounts for “the difficulty of enforcement against one not willing to subject himself to the court’s authority, the inequity of allowing [a] ‘fugitive’ to use the resources of the courts only if the outcome is an aid to him,” and “the need to avoid prejudice to the non-fugitive party.” Barnette, 129 F.3d at 1183. It also “discourage[s] ... flights from justice,” id., and protects the dignity of the courts, Ortega-Rodriguez v. United States, 507 U.S. 234, 241-42, 246, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).

Shalhoub argues that application of the doctrine to his motion was error. He requests that we reverse and remand for the district court to rule on the merits of his motion. As an alternative to appellate review, Shalhoub petitions for a writ of mandamus to compel the district court to rule on the merits of his motion.

We divide our discussion in two parts. First, we explain that we lack appellate jurisdiction because the order denying Shalhoub’s motion is not immediately ap-pealable under either the collateral order doctrine or the doctrine of marginal finality. Second, we deny Shalhoub’s petition for a writ of mandamus because he has an adequate means to obtain relief — appearance in the district court — and his right to the writ is not clear and indisputable.

A. We Lack Appellate Jurisdiction over Shalhoub’s Appeal.

Courts of appeals have jurisdiction over “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. The “final judgment rule” prohibits appellate review of a pretrial order in a criminal case “until conviction and imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). We apply the final judgment rule with “utmost strictness in criminal cases,” id. at 265, 104 S.Ct. 1051, unless the challenged order falls within the collateral order doctrine, which permits appellate review of an interlocutory order that (1) “conclusively determine[s] the disputed question,” (2) “resolve[s] an important issue completely separate from the merits of the action,” and (3) is “effectively unreviewable on appeal from a final judgment.” Id. (internal quotation marks and citation omitted).

Although neither convicted nor sentenced, Shalhoub argues that we have jurisdiction under the collateral order doctrine. We disagree. We cannot expand the collateral order doctrine to permit our intermediate review of the denial of Shal-houb’s motion.

The only kinds of pretrial orders in criminal cases that the Supreme Court has stated are important enough to fall within this “narrow” exception to the final judgment rule implicate “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Id. at 265-67, 104 S.Ct. 1051 (internal quotation marks and citation omitted). For example, a defendant may immediately appeal the denial of a motion to dismiss an indictment, which contests the legality of prosecution on the basis of double jeopardy, because the defendant challenges “the very authority of the Government to hale him into court to face trial on the charge against him.” Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Likewise, the denial of a motion to dismiss an indictment on the basis that the Speech or Debate clause of the Constitution, U.S. Const. Art. I, § 6, cl. 1, bars the prosecution is immediately ap-pealable because the motion asserts a right not to be “questioned for acts done in either House [of Congress].” Helstoski v. Meanor, 442 U.S. 500, 506, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (citation omitted). Both double jeopardy and the Speech or Debate clause implicate “a right not to be tried.” Flanagan, 465 U.S. at 267, 104 S.Ct. 1051. The only other order that the Supreme Court has said is immediately appealable under the collateral order doctrine is an order denying a motion to reduce excessive bail, Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951), because “[t]he issue is finally resolved and is independent of the issues to be tried, and the order becomes moot if review awaits conviction and sentence.” Flanagan, 465 U.S. at 266, 104 S.Ct. 1051.

The Supreme Court has refused to apply the collateral order doctrine to review the denial of motions alleging violations of grand jury secrecy, Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), and the right to a speedy trial, United States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), vindictive prosecution, United States v. Hollywood Motor Car Co., 458 U.S. 263, 264, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), and insufficient evidence, Abney, 431 U.S. at 663, 97 S.Ct. 2034. Although important, these matters involve rights that do not “rest[ ] upon an explicit statutory or constitutional guarantee that trial will not occur,” Midland Asphalt, 489 U.S. at 801, 109 S.Ct. 1494, and they are in “no danger of becoming moot upon conviction and sentence.” Flanagan, 465 U.S. at 266, 104 S.Ct. 1051. In other words, absent the assertion of a right not to be tried or the assertion of a right akin to the right against excessive bail, a defendant must accept the burdens of trial and sentencing before he obtains appellate review of an adverse ruling. See Van Cauwenberghe v. Biard, 486 U.S. 517, 524, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (“[Litigants must abide by the district court’s judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review.”).

Shalhoub’s appeal does not fall within the limited scope of the collateral order doctrine. The denial of Shalhoub’s motion for counsel to appear specially implicates neither a “right not to be tried,” Flanagan, 465 U.S. at 266-67, 104 S.Ct. 1051, nor a right like that against excessive bail. Although Shalhoub asserts that the denial of his motion implicates a panoply of rights — due process, the presumption against extraterritorial application of American law, proper venue, and factual sufficiency in an indictment — none of them “rest[] upon an explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt, 489 U.S. at 801, 109 S.Ct. 1494. And the weight of these rights cannot overcome the policy against the exercise of jurisdiction over intermediate orders. Cf. Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 503, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (Scalia, J., concurring) (explaining that “jurisdictional limitations established by Congress or by international treaty” are “not sufficiently important to overcome the policies militating against interlocutory appeals.”).

The denial of Shalhoub’s motion is not akin to an “order fixing bail,” which is “entirely independent of the issues to be tried,” Stack, 342 U.S. at 12, 72 S.Ct. 1 (Jackson, J., concurring). The right against excessive bail is a constitutional right, U.S. Const. Amend. VIII, that protects a defendant against bail set higher than reasonably necessary to ensure the defendant’s presence at trial, Stack, 342 U.S. at 5, 72 S.Ct. 1 (majority opinion). By contrast, so long as he refuses to appear in court, Shalhoub has no right to avoid being la-belled a fugitive.

Shalhoub counters that a district court must satisfy the constitutional guarantee of due process before it labels him a fugitive, but we disagree. The constitutional guarantee of due process did not entitle Shalhoub to any procedural protections before the district court labelled him a fugitive. See Allen v. Georgia, 166 U.S. 138, 141, 17 S.Ct. 525, 41 L.Ed. 949 (1897) (upholding against due process attack a dismissal of the appeal of an escaped prisoner on fugitive disentitlement grounds); Clark v. James, 794 F.2d 595, 598 (11th Cir. 1986) (“[T]here is no constitutional right to notice and hearing prior to dismissal, even when the escapee is captured before dismissal.”); Joensen v. Wainwright, 615 F.2d 1077, 1079 (5th Cir. 1980) (“[A]n escapee ... who was at large and unavailable for hearing or receipt of notice at the time of dismissal, ... has no constitutional right to notice and hearing.”). And even if we were to accept Shalhoub’s argument that labelling him a fugitive implicates a “constitutionally-protected interest in a person’s good name,” “[w]here a person’s good name ... is at stake,” due process requires only notice and an opportunity to be heard, Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), which the district court offered Shalhoub and continues to offer him. A fugitive has no more of a freestanding right not to be labelled a fugitive, than a criminal defendant has a freestanding right not to be labelled a defendant. Although the determination that Shalhoub is a fugitive is likely unre-viewable after final judgment, Shalhoub enjoys a right to appear in court, to defend himself against the indictment, and to clear his name if he prevails.

Shalhoub urges this Court to follow a recent decision of the Seventh Circuit that held that the denial of a motion to dismiss an indictment Was an immediately appeal-able order, United States v. Bokhan, 757 F.3d 664 (7th Cir. 2014), but that decision is distinguishable. The Seventh Circuit reasoned that the motion implicated a right not to be tried because a foreign court had refused to extradite the defendant. Id. at 669-70. Bokhari, a dual citizen of Pakistan and the United States, was indicted for fraud. Id. at 666. Because Bok-hari lived in Pakistan at the time of the indictment, the United States sought extradition, but a Pakistani court denied the request. Id. Bokhari then filed a motion to dismiss the indictment, which the district court denied. Id. at 667. The Seventh Circuit held that the order was immediately appealable because the district court conclusively determined whether to defer to the Pakistani court, Bokhari suffered prejudice as a result of the indictment, and Bokhari asserted a right not to be tried on the ground that international comity required deference to the decision of the Pakistani court. Id. at 669-70. The Seventh Circuit emphasized that “[tjhis is a rare case.” Id. at 670. “[I]f Bokhari ever does set foot in this country, either through extradition or free will, his comity argument would essentially vanish.” Id. Unlike Bokhari, Shalhoub asserts no alleged right not to be tried. He instead argues that being labelled a fugitive implicates other rights — for example, due process, the presumption against the extraterritorial application of American law, and the right to a speedy trial — the denial of which is insufficient to support our intermediate review. Will v. Hallock, 546 U.S. 345, 352, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (“The importance of the right asserted [is] a significant part of [the] collateral order doctrine.” (citation and internal quotation marks omitted)). And we need not decide whether we agree with the Seventh Circuit that the decision of a foreign court not to extradite a defendant implicates a right not to be tried.

Shalhoub argues that we can exercise jurisdiction over his appeal under an alternative doctrine, marginal finality, but we disagree. An order that presents a question of “marginal” finality “fundamental to the further conduct of the case” is immediately appealable, Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 154, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), but the Supreme Court has since limited that doctrine to “the unique facts of [Gillespie],” Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), which are distinguishable from this appeal, see Gillespie, 379 U.S. at 149-51, 85 S.Ct. 308 (addressing whether the Jones Act provided the exclusive remedy for the alleged wrongful death of a deceased seaman). And we have explained that it is inconsistent for a litigant to assert that we have appellate jurisdiction under the collateral order doctrine, “which requires the issue resolved to be completely separate from the merits,” and the marginal finality doctrine, “which addresses the review of intermediate issues ‘fundamental to the further conduct of the case.’ ” See Atl. Fed. Saw. & Loan Ass’n of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 377 (11th Cir. 1989) (citation omitted). We decline to exercise appellate jurisdiction on the basis of marginal finality.

B. We Deny the Petition for a Writ of Mandamus.

The All Writs Act permits us to issue a writ of mandamus to compel a district court to perform a particular duty within its jurisdiction. 28 U.S.C. § 1651(a); see also Fed. R. App. Proc. 21; Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). The writ is a “ ‘drastic and extraordinary’ remedy,” Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (citations omitted), that is available only “to confíne an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)). “[Ojnly exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy.” Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (internal quotation marks and citations omitted).

A petition must satisfy three conditions before we may grant a writ of mandamus:

First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires — a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Id. at 380-81, 124 S.Ct. 2576 (citations and internal quotation marks omitted) (alterations adopted). Shalhoub argues that his petition satisfies all three conditions for a writ of mandamus. We disagree.

Shalhoub fails to establish that he has no adequate means to challenge the indictment. Shalhoub argues that he is under no obligation to travel to the United States and his indictment will pend indefinitely unless we compel the district court to rule on his motion. The indictment has been pending against Shalhoub for nearly twenty years. “At any time during this long interval he had only to show up in ... district court” to challenge the indictment. See In re Kashamu, 769 F.3d 490, 493 (7th Cir. 2014). That he does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.

Shalhoub also fails to identify any “clear abuse of discretion” by the district court. Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (citation omitted). Shalhoub argues that he has a right to the writ because he is not a fugitive and that the district court erred when it applied the doctrine of “constructive flight” to him, but we have held that a “defendant need not leave the jurisdiction” for the doctrine of fugitive disen-titlement to apply. Barnette, 129 F.3d at 1184. “[W]hile legally outside the jurisdiction!, the defendant] may constructively flee by deciding not to return.” Id. Shal-houb asserts that Barnette is distinguishable because he was in his home country when the grand jury returned his indictment unlike the defendant in Barnette. But whether Shalhoub was in Saudi Arabia when the grand jury indicted him is beside the point. Like the defendant in Barnette, Shalhoub knew of the indictment and “refused to surrender himself to th[e] jurisdiction of the court,” id., electing instead not to travel outside of Saudi Arabia to avoid apprehension. The district court did not clearly abuse its discretion when it applied the doctrine of constructive flight to Shalhoub.

Nor has Shalhoub established a clear and indisputable right to the writ. Shal-houb argues that “labeling [him] a ‘fugitive’ without a hearing or evidentiary showing violates due process, because the ‘fugitive’ label constitutes a stigmatizing statement.” But, as explained earlier, the constitutional guarantee of due process did not entitle Shalhoub to any procedural protections before the district court labelled him a fugitive. See Allen, 166 U.S. at 141, 17 S.Ct. 525; Clark, 794 F.2d at 598; Joensen, 615 F.2d at 1079. A fugitive is someone who has been offered process and refuses it. Fugitive, Black’s Law Dictionary (10th ed. 2014) (“A criminal suspect or a witness in a criminal ease who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, esp. by fleeing the jurisdiction or by hiding.”). The guarantee of due process is not violated whenever a defendant dislikes the process offered.

Shalhoub argues that his right to the writ is clear and indisputable because the International Parental Kidnapping Crime Act cannot “apply ... extraterrito-rially to conduct that occurred within Saudi Arabia in compliance with Saudi law,” but we disagree. Although we ordinarily operate under the presumption that a statute does not apply extraterritorially, United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir. 1980), it makes no sense to say that the International Parental Kidnapping Crime Act — which makes it a crime to “remove[ ] a child from the United States ... or retainf ] a child ... outside the United States,” 18 U.S.C. § 1204(a)—does not apply to conduct that occurs in another country. United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir. 1998) (“[W]e ask whether the language [of the statute] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” (emphasis added) (citation and internal quotation marks omitted)). The plain text of the Act extends the force of federal law to conduct that occurs “without or beyond the limits of’ the United States — that is, extraterrh torially. Outside, Webster’s New International Dictionary 1735 (2d ed. 1961).

Nor does Shalhoub have a clear and indisputable right to mandamus on the ground that venue is improper in the Southern District of Florida. Venue lies “in any district in which [an] offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). The indictment contains enough information to suggest that the crime commenced in the Southern District of Florida where Shalhoub’s ex-wife lived before their daughter was removed from the United States. And Shalhoub once resided in the Southern District of Florida. Contra United States v. Clenney, 434 F.3d 780 (5th Cir. 2005) (holding that venue did not lie in the Northern District of Texas because the defendant had “never set foot in the Northern District”). In any event, a motion to dismiss an indictment for improper venue is not the kind of “compelling” question that justifies issuance of the writ. See United States v. Martin, 620 F.2d 237, 239 (10th Cir. 1980).

Shalhoub exhorts us to follow In re Hi-jazi, 589 F.3d 401 (7th Cir. 2009), in which the court granted a writ of mandamus to a defendant who lived outside of the United States and sought to dismiss an indictment through a special appearance of his counsel. Shalhoub argues that his petition is identical to the petition in Hijazi. Shal-houb argues that, like the petitioner in Hijazi, he is under “no obligation to travel to the United States,” he has suffered prejudice by not being able to travel, and his claims could not “be remedied by the regular appeals process.” Id. at 407. We reject this argument.

Unlike the petitioner in Hijazi, Shal-houb cites no refusal by the Saudi Government to extradite him, and he has significant contacts with the United States. Id. at 407-14. Notwithstanding what the Seventh Circuit has stated on this issue, see id. at 407 (explaining that although Hijazi could “show[] up in court” to challenge the indictment, “Hijazi ha[d] [a] right to stay [in Kuwait], and in that way, to refuse to cooperate with the U.S. proceeding”), we submit that Shalhoub has an adequate remedy: appearance in the district court.

We are not “satisfied that the writ is appropriate under the circumstances.” Cheney, 542. U.S. at 381, 124 S.Ct. 2576. Shalhoub’s petition does not raise the kinds of significant questions necessary for issuance of the writ. Id. (explaining that separation of powers is the kind of significant question that the writ could be used to address). If Shalhoub wants to the challenge the indictment, he need only submit himself to the jurisdiction of the district court.

IY. CONCLUSION

We DISMISS Shalhoub’s appeal for lack of appellate jurisdiction, and we DENY his petition for a writ of mandamus.


author: BY THE COURT: WILLIAM PRYOR, MARTIN, Circuit Judge,

text:
    Roger NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee.
    No. 15-14216-FF
    United States Court of Appeals, Eleventh Circuit.
    05/01/2017
    Todd S. Garber, Finkelstein Blankinship Frei-Pearson & Garber, LLP, White Plains, NY, Scott Rhead Shepherd, Nathan C. Zipperian, Shepherd Finkelman Miller & Shah, LLP, Fort Lauderdale, FL, William S. Consovoy, Consovoy McCarthy, PLLC, Arlington, VA, for Plaintiff-Appellant.
    Lucia Nale, Christopher Comstock, Thomas V. Panoff, Mayer Brown, LLP, Chicago, IL, Louis F. Bonacorsi, Bryan Cave, LLP, Saint Louis, MO, April Boyer, Stephen Allan McGuinness, K & L Gates, LLP, Miami, FL, for Defendant-Appellee.
    Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges .

       Judge Hull, having recused herself, did not participate.

   BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

WILLIAM PRYOR,

Circuit Judge, joined by MARCUS, Circuit Judge, respecting the denial of rehearing en banc:

A majority of the Court has voted not to rehear en banc our decision in Nicklaw v. CitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), which held that a mortgagor lacked standing to complain—two years after the fact—that his lender recorded the satisfaction of his mortgage more than 90 days after that satisfaction occurred. Id. at 1000-01. As members of the panel, we write in respect of that decision and to respond to the errors in the arguments made by our dissenting colleague.

Roger Nicklaw satisfied his mortgage in July 2012, but his lender, CitiMortgage, Inc., failed to record the satisfaction until October 2012. Id. Two years later, Nicklaw filed a putative class action against Citi-Mortgage alleging that CitiMortgage violated two New York statutes that require a lender to file a certificate of discharge with the county clerk within thirty days after a mortgagor satisfies his mortgage. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. If the lender fails to record the certificate within 30 days, it is subject to a statutory penalty of $500 payable to the mortgagor. That amount increases to $1,000 after 60 days and $1,500 after 90 days.

Nicklaw’s complaint alleged only speculative harms to the market for residential property. He alleged that “banks frequently fail to comply with their obligations to timely file mortgage satisfactions,” and, as a result, “there is a real possibility that a large loss by a title company ... may disrupt the entire system for transferring residential property in New York State.” Nicklaw Compl. 4. He alleged that “[t]he failure to timely present a mortgage satisfaction can also frustrate landowners who need a marketable title to complete a property sale.” Id. And he stated that the New York legislature enacted the statutes at issue “[t]o address lenders’ failure to present mortgage satisfactions in a timely manner.” Id. But Nicklaw neither alleged that he had suffered any concrete harm nor that he was at risk of incurring any future harm as a result of the earlier delay in recording the certificate of discharge.

Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), made clear that the role of the legislature in “identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. Instead, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. As a result, when a plaintiff alleges that a statutory requirement has been violated, courts must determine whether the “violations alleged ... entail a degree of risk sufficient to meet the concreteness requirement.” Id. at 1550.

Nicklaw’s complaint failed to allege a concrete injury. To be sure, CitiMortgage recorded the satisfaction of Nicklaw’s mortgage more than 90 days after it was required to record the satisfaction. But Nicklaw filed his lawsuit in October 2014 — two years ■ after CitiMortgage recorded the satisfaction of his mortgage— and he failed to allege that the violations of the statutes had harmed him in the past or put him at risk of any future harm, let alone any of the harms identified in Judge Martin’s dissent. See Martin Dissent at 1269-70. Indeed, any risk of future harm was eliminated years before Nicklaw filed this lawsuit when CitiMortgage recorded the satisfaction of his mortgage. Our dissenting colleague cites no decision of the Supreme Court that holds — or even hints — that a plaintiff has standing to sue because he faced a risk of harm that never materialized and has since disappeared. Nicklaw’s complaint alleged only that the statutes were violated years before he filed his complaint. This bare allegation of a statutory violation that has since been remedied is not sufficient to satisfy the requirement of concreteness in Article III. See, e.g., Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016) (explaining that a customer who alleged that his cable company retained his personal information in violation of a federal statute had not established a concrete injury in part because he failed to identify any material risk of harm caused by the statutory violation); Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514-15 (D.C. Cir. 2016) (holding that customers who alleged that a retailer violated a consumer protection law when it requested their zip codes failed to establish a concrete injury because the customers did not allege any injury beyond a statutory violation); Zia v. CitiMortgage, Inc., 210 F.Supp.3d 1334, 1340-41 (S.D. Fla. 2016) (explaining that a mortgagor who alleged that CitiMortgage violated the New York statutes failed to establish a concrete injury because he did not allege any tangible harm, intangible harm, or material risk of harm from the statutory violation); Order at 9, Villaneuva v. Wells Fargo Bank, N.A, No. 13-cv-5429-CS-LMS & Bowman v. Wells Fargo Bank, N.A., et al., No. 14-cv-648-CS-LMS (S.D.N.Y. Aug. 5, 2016) (granting leave for mortgagors to amend their complaint after determining that an allegation that their lenders violated the New York statutes failed to establish a concrete injury because the mortgagors alleged only that the lenders violated the statutes).

Contrary to the depiction in Judge Martin’s dissent, see Martin Dissent at 1269-70, the New York statutes cited in Nick-law’s complaint do not involve a plaintiffs statutory right to truthful information. Havens Realty Corporation v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), held that a “tester” who poses as a renter suffers a concrete injury when a real estate agent fails to provide him with truthful information about available housing in violation of the Fair Housing Act, 42 U.S.C. § 3604. 455 U.S. at 373, 102 S.Ct. 1114. The Supreme Court explained that the Act “confers on all ‘persons’ a legal right to truthful information about available housing,” so all persons have standing to sue when they are denied that information. Id. at 373-74, 102 S.Ct. 1114. But unlike the Fair Housing Act, the New York statutes do not confer a “right to truthful information” on a mortgagor. If anything, the New York statutes confer a right to truthful information on other individuals — that is, the statutes provide a mortgagor a cause of action when the satisfaction of his mortgage is not recorded for others to see. Federal Election Commission v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), likewise explained that a voter suffers a concrete injury when a political organization fails to disclose campaign finance information to him in violation of a statute requiring disclosure. Id. at 21, 118 S.Ct. 1777. The voter suffers a concrete injury because, as a result of the failure to disclose, he cannot obtain information about the political donations of the organization. But violations of the New York statutes do not prevent a mortgagor from obtaining information about the satisfaction of his mortgage. The mortgagor already knows that he has discharged his contractual obligation. The violations instead prevent other people from obtaining that information because public records would still report a mortgage on the unencumbered property.

The New York statutes are more like the statute at issue in Spokeo, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq, which required that credit reporting agencies “ ‘follow reasonable procedures to assure maximum possible accuracy of consumer reports.” Spokeo, 136 S.Ct. at 1545 (quoting 15 U.S.C. § 1681e(b)). Spokeo explained that a violation of the Act will not always cause a consumer to suffer a concrete injury. See id. at 1550. Unlike a statute that confers a right to truthful information to a plaintiff, a violation of the Act alone might not “cause harm or present any material risk of harm.” Id. As we have explained in other contexts, the violation of a legal right alone does not satisfy the concrete injury requirement. See Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015) (explaining, in the context of the Telephone Consumer Protection Act, that “where a statute confers new legal rights on a person, that person will have Article III standing to sue where the facts establish a concrete, particularized, and personal injury to that person as a result of the violation of the newly created legal rights”).

The panel opinion adhered to the requirement of a concrete injury under Article III, as explicated in Spokeo. It held that Nicklaw’s complaint failed to allege that he suffered a concrete injury when the New York statutes were violated and that he failed to allege a risk of any future harm. CitiMortgage remedied Nicklaw’s earlier risk of harm when it recorded the certificate of discharge two years before he filed his complaint. Because the panel opinion is correct, we agree with our decision not to rehear this appeal en banc.

MARTIN, Circuit Judge,

dissenting from the denial of rehearing en banc:

I asked the members of this Court to rehear the panel opinion in Nicklaw v. CitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016). I dissent from the Court’s decision to let the panel’s decision stand as our precedent. Roger Nicklaw’s satisfaction of his mortgage was not recorded by Citi-Mortgage within the time limit set by New York law. The New York statutes at issue here give property owners the right to have truthful information posted about their property. The New York legislature set up this system to address the serious harms that can befall property owners when satisfaction of their mortgages is not timely recorded. These harms include clouded titles, which can affect a person’s ability to get credit and make it difficult to transfer even unencumbered real estate.

Mr. Nicklaw alleged that CitiMortgage violated New York law, that he suffered these material risks of harm from Citi-Mortgage’ s inaction, and that as a result, CitiMortgage was liable to him for statutory damages. According to the Supreme Court’s standing jurisprudence, these allegations are enough to give Mr. Nicklaw Article III standing. Indeed the Supreme Court’s most recent decision on Article III standing, Spokeo, Inc. v. Robins, 578 U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), demonstrates that Mr. Nicklaw has met the injury-in-fact requirement. But this Court’s panel decision misreads Spok-eo as well as Mr. Nicklaw’s allegations. And in doing so, the opinion may close the door to other litigants with statutory claims like Mr. Nicklaw. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Mr. Nicklaw is entitled to have his day in court, and I dissent to this Court’s decision to turn him away.

I.

Mr. Nicklaw sold his New York home. He used the proceeds to satisfy the balance he owed CitiMortgage on that property’s mortgage. Once the balance had been satisfied, New York law required Ci-tiMortgage to file a certificate of discharge with the county clerk within 30 days. N.Y. Real Prop. Law § 275(1); N.Y. Real Prop. Acts. Law § 1921(1). This certificate of discharge acts as public notice that Mr. Nicklaw satisfied his mortgage. See id. The same New York law imposes liability on the mortgage holder if it does not timely make the required filing. Id. The amount of that liability increases over time: $500 after 30 days; then $1,000 after 60 days; and topping out at $1,500 after 90 days. Id. Because CitiMortgage did not record the satisfaction of Mr. Nicklaw’s mortgage for 107 days, it owed him $1,500 under New York’s penalty provision. See id.

On July 16, 2013, Mr. Nicklaw filed a class-action complaint against CitiMort-gage in federal court in the Southern District of Florida. On August 23, 2013, Citi-Mortgage made an offer of judgment to Mr. Nicklaw pursuant to Rule 68. Even though Mr. Nicklaw refused this offer, Ci-tiMortgage relied upon its offer to render his case moot before it could be certified as a class action. Our precedent allowed this at the time. However, a short time after Mr. Nicklaw turned down the offer of judgment, both this Court and the Supreme Court rejected the practice of mooting class actions in this way. See Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 703-04 (11th Cir. 2014); Campbell-Ewald Co. v. Gomez, 577 U.S. -, 136 S.Ct. 663, 666, 193 L.Ed.2d. 571 (2016).

Based on this change in the law, Mr. Nicklaw brought his case again. Since the identical facts of Mr. Nicklaw’s two cases were due to be evaluated under evolving legal rules, his second case raised interesting questions about collateral estoppel and issue preclusion. Then, before this Court had a chance to resolve these questions, the Supreme Court ruled in Spokeo. Citing Spokeo, CitiMortgage asked the panel to dismiss Mr. Nicklaw’s appeal for lack of subject-matter jurisdiction. CitiMortgage argued Mr. Nicklaw did not have standing because he could not demonstrate injury-in-fact under the standard the Supreme Court articulated in Spokeo. The panel adopted CitiMortgage’s argument, and dismissed Mr. Nicklaw’s case.

II.

Article III of the Constitution limits the power of the federal courts to decide cases and controversies. U.S. Const. Art. III § 2. The Supreme Court has said that a plaintiff must meet three minimum requirements in order to bring a case in federal court: injury-in-fact, causation, and re-dressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). When pleading his case, a plaintiff must make “general factual allegations of injury resulting from the defendant’s conduct.” Id. at 561, 112 S.Ct. at 2137. As his case proceeds, however, the plaintiff must point to specific facts in support of those allegations in order to survive summary judgment. Id.

The panel decided Mr. Nicklaw’s case based on the injury-in-fact requirement. As I mentioned, the Supreme Court’s most recent guidance on this requirement came in Spokeo. Spokeo is a “people search engine” that aggregates various databases to accumulate a host of information about anyone who is the subject of a search. Spokeo, 136 S.Ct. at 1544. Thomas Robins sued Spokeo, alleging it had violated his rights and the rights of others under the Fair Credit Reporting Act of 1970 (“FCRA”), 15 U.S.C. § 1681 et seq., because Spokeo gathered and disseminated information about them that was not true. Id. The FCRA requires accuracy in consumer reports, and when these requirements are violated, the reporting agency is made liable for actual damages or statutory damages of $100 to $1,000 per violation; costs of the action and attorney’s fees; and possible punitive damages. Id. at 1545. Mr. Robins said Spokeo wrongly reported he was married, had children, was in his 50’s, had a job, was relatively affluent, and held a graduate degree. Id at 1546. The Ninth Circuit ruled that Mr. Robins had standing. Id at 1544-45. But the Supreme Court sent the case back to the Ninth Circuit, saying that court had been incomplete in its analysis of Mr. Robins’s injury-in-fact. Id. at 1545. Specifically, the Supreme Court said the Ninth Circuit failed to analyze Mr. Robins’s alleged injury for concreteness. Id

In the process, the Spokeo Court made several important observations about standing. For example, the Court explained that injury-in-fact is a constitutional requirement and legislation granting the right to sue cannot overcome the requirement for a plaintiff who would not otherwise have standing. Id at 1547-48. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. at 2136). For an. injury to be concrete, it must be “de facto; that is, it must actually exist.” Id. (quotation omitted). Thus, the injury must be real. Id at 1548-49. But at the same time it can be intangible — like an injury to free speech or free religious exercise. Id at 1549.

The Supreme Court told us that when we decide whether an intangible injury is concrete, we must consider both history and legislative judgments. Id. For example, a legislative body may decide to elevate intangible harms, previously deemed inadequate to confer standing, into legally cognizable injuries. Id. On the one hand, a legislative judgment that a “bare procedural violation” constitutes an injury does not create concreteness. Id. On the other, any real harm or “risk of real harm” stemming from that legislative judgment can satisfy the concreteness requirement. |d. In this regard, the Supreme Court said “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id. The Court pointed to libel, slander, and its ruling in FEC v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (recognizing a violation of a statutory right to information as a sufficient injury-in-fact for Article III standing), as examples. See id.

As for the Spokeo case itself, the Court observed that Congress “plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk.” Id. at 1550. The Court went on to point out that not every violation of those procedures was enough to show concreteness. Id. By way of example, the Court said something on the level of an incorrect zip code would not be enough for a concrete harm. Id. But other types of false information can suffice. See id. at 1550 & n.8. Acting on this distinction, the Court remanded Mr. Robins’s case for the Ninth Circuit to finish its analysis of whether his injury was sufficiently concrete. Id. at 1550. Justice Thomas concurred, adding his thoughts about how the public-private rights distinction played into this analysis. See id. at 1550-54 (Thomas, J., concurring). He wrote that “[i]f Congress has created a private duty owed personally to [a plaintiff] to protect his information, then the violation of the legal duty suffices for Article III injury in fact.” Id. at 1554. Justice Ginsburg, joined by Justice Sotomayor, dissented, not because she disagreed with the Court’s reasoning, but because she would have held that Mr. Robins had sufficient injury based on the record already before the Supreme Court. See id. at 1554-56 (Ginsburg, J., dissenting). She wrote that “[f]ar from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market.” Id. at 1556. This, she thought, was enough to give Mr. Robins standing. Id-

Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), is another case helpful for evaluating whether Mr. Nicklaw has standing. In Havens Realty, the Court examined whether a “tester plaintiff’ met the injury-in-fact requirement for standing in a Fair Housing Act lawsuit. See id. at 366-75, 102 S.Ct. at 1118-22. This “tester plaintiff’ was employed to see how Havens Realty interacted with her, and whether Havens was unlawfully steering potential tenants on the basis of their race. The tester plaintiff was not actually going to rent or purchase a home or apartment, but instead she posed as a renter or purchaser so she could collect evidence of unlawful steering practices. Id. at 373, 102 S.Ct. at 1121. The Court held that despite the plaintiffs pretend status, “the actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Id. (quotation omitted and alteration adopted). The Court concluded that the Fair Housing Act “establishes an enforceable right to truthful information concerning the availability of housing” and a tester who received false information “suffered injury in precisely the form the statute was intended to guard against, and therefore ha[d] standing.” Id. at 373-74, 102 S.Ct. at 1121.

III.

We must faithfully apply the Supreme Court’s precedent to the facts of Mr. Nick-law’s case. For the reasons that follow, I don’t think the panel did so. Although Spokeo was made up of three separate opinions, all eight Justices agreed that alleging a FCRA violation with a risk of real harm was sufficient to meet the Article III standing requirements. See Spokeo, 136 S.Ct. at 1549 (“[T]he risk of real harm [can] satisfy the requirement of concreteness. ... In other words, a plaintiff in such a case need not allege any additional harm beyond the one [the legislature] has identified.”); id. at 1553 (Thomas, J., concurring) (“A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.”); id. at 1554 (Ginsburg, J., dissenting) (“The Court acknowledges that [the legislature] has the authority to confer rights and delineate claims for relief where none existed before.”); see also id. at 1556 (finding “inaccurate representations” in violation of a statute that could affect someone’s “fortune in the job market” to meet the injury-in-fact requirements). The same reasoning applies here. Like the FCRA, the New York statutes at issue in Mr. Nicklaw’s case required CitiMortgage to provide truthful information about him to the public. These statutes were crafted in response to a real risk of harm. And Mr. Nicklaw has alleged that he suffered that real risk of harm as a result of CitiMort-gage’s inaction that violated these statutes. In that way he properly alleged injury-in-fact to meet Article III standing requirements.

A.

The New York legislature identified and elevated the intangible harm alleged by Mr. Nicklaw in this case. The legislature made it unlawful to fail to timely record the satisfaction of a mortgage. N.Y. Real Prop. Law § 275(1); N.Y. Real Prop. Acts. Law § 1921(1). It also made those who violate this requirement liable for damages. Id. It seems worth mentioning that the sponsors of these statutes emphasized the “serious issues that can arise” when these filings are not timely, and pointed to the difficulties that can ensue for both consumers and financial institutions when title is mistakenly clouded. See Bellino v. JPMorgan Chase Bank, 209 F.Supp.3d 601 (S.D.N.Y. 2016). These concerns resulted in the statutory scheme that provides for penalties that escalate as the unreported mortgage satisfaction persists over time. N.Y. Real Prop. Law § 275(1); N.Y. Real Prop. Acts. Law § 1921(1).

The New York legislature unambiguously created a right to have truthful information reported about the title to one’s property. When a mortgage 'holder does not promptly report that its mortgage has been satisfied, the title to the property is clouded. Mortgages are the biggest debt many people ever take on in their lives. And several federal courts that have examined the issue have concluded that a mortgage holder who does not record the satisfaction of a mortgage can seriously impact a person’s credit, as well as his ability to sell his then-unencumbered property. See Bellino, 209 F.Supp.3d at 606; Jaffe v. Bank of Am., 197 F.Supp.3d 523, 528 (S.D.N.Y. 2016); Zink v. First Niagra Bank, 206 F.Supp.3d 810, 816-18 (W.D.N.Y. 2016). For Mr. Nicklaw, both the history and legislative judgment support a finding that he has a concrete injury. Cf. Spokeo, 136 S.Ct. at 1549. Respect for history and the legislature, rooted in part in a concern for the separation of powers, informs my approach to this case. Legislatures are better equipped to identify intangible harms that confer Article III standing.

Mr. Nicklaw suffered a material risk of a concrete harm. Much like the plaintiffs in Havens Realty, Akins, and Spokeo, Mr. Nicklaw had the right to truthful information. When misinformation about his property remained of public record, he suffered a serious risk of real harm to his credit as well as the marketability of his property. This is not like the mere incorrect zip code mentioned in Spokeo. See 136 S.Ct. at 1550. Rather, mistaken information that a mortgage encumbers a property can result in a readily identifiable harm. The panel opinion points to the fact that two years before Mr. Nicklaw brought suit, his risk of harm had passed because CitiMortgage had (finally) recorded his mortgage as satisfied. See Nicklaw, 839 F.3d at 1002-03. But this misses the point. There is no requirement that Mr. Nicklaw actually suffer harm. Instead he only had to face a real risk of it. Spokeo, 136 S.Ct. at 1549; see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (standing requires that the plaintiff “personally has suffered some actual or threatened injury” (quotation omitted) (emphasis added)).

B.

The panel concluded that Mr. Nicklaw “allege[d] neither a harm nor a material risk of harm that the district court could remedy.” Nicklaw, 839 F.3d at 1003. The panel said Mr. Nicklaw “allegfed] only that CitiMortgage recorded the certificate late and nothing else.” Id. (emphases added). But my reading of the record paints a much different picture.

In his complaint, Mr. Nicklaw alleged he faced the harm the statute was enacted to protect against. The Supreme Court told us in Spokeo that “a plaintiff in such a case need not allege any additional harm beyond the one [legislatively] identified.” 136 S.Ct. at 1549. As the panel put it, all Mr. Nicklaw needed to allege was “a material risk of harm that the district court could remedy.” Nicklaw, 839 F.3d at 1003. And he did. Mr. Nicklaw alleged that, untimely reports of satisfaction of mortgages can “disrupt the entire system for transferring residential property” and “can also frustrate landowners who need a marketable title to complete a property sale.” Compl. ¶ 9. He also alleged that the statutory time limits for recording when a mortgage has been satisfied “are crucial mechanisms by which New York State ensures that the acquisition and transfer of real property occurs with efficiency and reliability.” Id. ¶ 3. Then Mr. Nicklaw explained in his complaint that his fully paid-off mortgage was not properly shown to be satisfied in the public record for 106 days (nearly one-third of a year). Id. ¶¶ 11-16. Thus, Mr. Nicklaw both alleged and suffered the risk of harm he identified in his complaint. Notably, in response to CitiMortgage’s motion to this Court — the first time Mr. Nicklaw’s standing was questioned — he responded by again identifying and alleging this injury. He said the relevant injury was “the deprivation of mortgagors’ rights to have the public record cleared of encumbering mortgages bearing their names in a timely manner.” And in case this wasn’t clear enough, Mr. Nicklaw specifically pointed out that his right to a timely certificate of discharge was violated which caused a concrete injury because he had an encumbered mortgage improperly recorded in the public record. Mr. Nicklaw argued that in light of Spokeo, he had Article III standing. He also pointed to several other federal courts that reached this conclusion on identical claims.

Mr. Nicklaw, whose case is at the pleading stage, need only make “general factual allegations of injury resulting from the defendant’s conduct.” Lujan, 504 U.S. at 561, 112 S.Ct. at 2137. Mr. Nicklaw did this with allegations proper to meet his burden here. He has Article III standing to bring his case before this Court and we should hear it.

IV.

Standing is, of course, fundamental to a person’s ability to have federal courts look at the merits of their case. And in cases like Mr. Nicklaw’s, where the legislature has acted upon the democratic will of the people to identify a harm, class actions are often the only way to be address the harm outside of a single consumer’s case. Yet without a trace of irony, the panel quotes the late Justice Scalia to imply its decision “promotes the separation of powers by preventing overjudicialization of the process of self-governance.” Nicklaw, 839 F.3d at 1001 (quotation omitted). There should be no mistake here in what our Court is doing. We are silencing the voice of the legislature by making it impossible to enforce a law enacted to address a harm it identified.

The Supreme Court took the first step in vindicating the point that plaintiffs like Mr. Nicklaw make with its ruling in Campbell-Ewald. I would like to see our Court faithfully apply the Supreme Court’s precedent now and allow Mr. Nicklaw’s claim to be heard. If left untouched, I am afraid the holding of the Nicklaw panel opinion might end the private vindication of many societal harms identified by legislatures. I dissent to what this Court has done in this regard.

      . The concurrence says I cite "no decision of the Supreme Court that holds — or even hints — that a plaintiff has standing to sue because he faced a risk of harm that never materialized and has since disappeared.” Cone. Op. at 1267. In saying so, the concurrence seems to demand that I present Supreme Court precedent addressing facts identical to those in Mr. Nicklaw’s case. But principles from Supreme Court precedent bind us even in cases not "on all fours.” Of course if the Supreme Court had already spoken to precisely the facts of Mr. Nicklaw's case, we would be left with nothing to write about today. Spokeo is important here because the entire Supreme Court agreed that a statutory violation plus the risk of a concrete harm is enough to confer standing. Our job is to apply the principles and reasoning from Spokeo to this case. And those principles and reasoning point to Mr. Nicklaw having met the requirements of Article III.


author: WILSON, Circuit Judge:

text:
    Michael ROGERS, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
    No. 15-12880
    United States Court of Appeals, Eleventh Circuit.
    (May 2, 2017)

      Richard Michael Summa, Randolph Patterson Murrell, Federal Public Defender’s Office, Tallahassee, FL, for Petitioner-Appellant.
    Bryan G. Jordan, Charles Richey McCoy, Pam Bondi, Attorney General’s Office, Tallahassee, FL, for Respondent-Appellee.
    Before WILSON and JULIE CARNES, Circuit Judges, and HALL, District Judge.

       Honorable James Randal Hall, United States District Judge for the Southern District of Georgia, sitting by designation.

   WILSON, Circuit Judge:

Michael Rogers argues, and the Secretary of the Florida Department of Corrections disputes, that Rogers’s motion under Rule 3.800(c), Florida Rules of Criminal Procedure, tolled thé time in which he could petition for federal habeas relief. Under 28 U.S.C. § 2244(d)(2), this time is tolled during the pendency of a state prisoner’s application for “collateral review.” The Supreme Court defines “collateral review” as any “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” Wall v. Kholi, 562 U.S. 545, 553, 131 S.Ct. 1278, 1285, 179 L.Ed.2d 252 (2011). Because a Rule 3.800(c) motion is an application for such judicial reexamination, we hold that Rogers’s motion tolled the time in which he could petition for federal habeas relief. We reverse the district court’s dismissal of Rogers’s petition and remand for further proceedings.

I.

Rogers was convicted of sexual battery on a minor under the age of 12 and sentenced, among other things, to life imprisonment. The conviction and sentence became final on May 12, 2010. On June 23, 2010, Rogers moved to reduce his sentence under Rule 3.800(c), which grants a Florida trial court the discretion to reduce a sentence after an appellate court’s affirmation of the legality of the sentence. The denial of the motion became final on August 9, 2011. On October 28, 2011, Rogers moved under Rule 3.850, challenging the trial court’s jurisdiction over his criminal case. The denial of the motion became final on August 5, 2013.

On January 31, 2014, Rogers petitioned for federal habeas relief under 28 U.S.C. § 2254. The Secretary of the Florida Department of Corrections moved to dismiss the petition for, among other reasons, untimeliness. The Secretary argued that the one-year limitations period in which Rogers could petition for federal habeas relief expired on July 27, 2011, and that Rogers’s Rule 3.800(c) motion failed to toll this limitations period. Neither party disputed the tolling effect of a Rule 3.850 motion. Thus, the parties agreed that, if the Rule 3.800(c) motion tolled the limitations period, the federal habeas petition was timely and that, if the motion did not, the petition was untimely.

Recommending that the district court grant the Secretary’s motion to dismiss, a magistrate judge stated, among other reasons, that the Rule 3.800(c) motion failed to toll the limitations period. The district court adopted the recommendation, granted the motion, and dismissed the federal habeas petition. Rogers appealed, and this court granted a certificate of appealability on one issue: “Whether Rogers’s habeas petition was untimely under [§ 2244(d)(2) ].”

II.

Under § 2244(d)(2), a state prisoner can toll the one-year limitations period for a federal habeas petition by applying for “collateral review” in state court:

The time during which a properly filed application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

The parties dispute whether a Florida prisoner’s Rule 3.800(c) motion to reduce a sentence is an application for collateral review. Rule 3.800 states:

(a) Correction. ... A court may at any time correct an illegal sentence imposed by it....
(c) Reduction and Modification. A court may reduce or modify ... a legal sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the imposition.... If review is upon motion, the trial court shall have 90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion. This subdivision shall not be applicable to those cases ... in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.

Controlling our analysis here, Kholi likewise involved “the question whether a motion to reduce [a] sentence tolls the period of limitation under § 2244(d)(2).” 562 U.S. at 550, 131 S.Ct. at 1283. Kholi reviewed a Rhode Island prisoner’s motion to reduce a sentence, which is a request under Rule 35(a), Rhode Island Superior Court Rules of Criminal Procedure:

Correction or reduction of sentence. The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed.... The court shall act on the motion within a reasonable time, provided that any delay by the court in ruling on the motion shall not prejudice the movant. The court may reduce a sentence, the execution of which has been suspended, upon revocation of probation,

(emphasis added).

After exploring the dictionary definitions of “collateral” and “review,” Kholi determined that “review” is a “judicial reexamination” and that “collateral review” is any “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” Id. at 553, 131 S.Ct. at 1285 (internal quotation marks omitted). Also, Kholi noted that § 2244(d)(2) allows tolling for the purpose of incentivizing “litigants to exhaust all available state remedies before proceeding in the lower federal courts.” Id. at 558, 131 S.Ct. at 1288 (internal quotation marks omitted). Waiting until a prisoner exhausts all available state remedies “furthers principles of comity, finality, and federalism.” Id. (internal quotations marks omitted).

Based on the definition of collateral review and the purpose of tolling, Kholi concluded that a Rule 35(a) motion to reduce a sentence tolls the limitations period for a federal habeas petition.

III.

We review de novo a dismissal of a federal habeas petition as time barred. Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1155 (11th Cir. 2014). After de novo review and in accord with Kholi, we hold that a Rule 3.800(c) motion is an application for collateral review, which tolls the limitations period for a federal habeas petition. A Rule 3.800(c) motion fits squarely within Kholi’s definition of an application for collateral review. Under Rule 3.800(c), a prisoner can move for a reduction or modification of a legal sentence. Such a motion is “outside of the direct review process” and is an application to the court for a reexamination of a sentence. See Kholi, 562 U.S. at 553, 131 S.Ct. at 1285.

Also, Kholi ’s emphasis on the “principles of comity, finality, and federalism” compels our conclusion that a Rule 3.800(c) tolls the limitations period. See id. at 558, 131 S.Ct. at 1288 (internal quotation marks omitted). Based on these principles, we must respect Florida’s choice to offer to its prisoners the remedy in Rule 3.800(c) by waiting to intervene until after a Florida court resolves an application for such remedy. A Florida court’s resolution of a Rule 3.800(c) motion might even “obviat[e] the need for” a prisoner to petition for federal habeas relief. Id.

Arguing that a Rule 3.800(c) motion fails to toll because the motion is “a request for leniency” — not an “attack on the legality of’ a sentence — the Secretary relies on Alexander v. Secretary, Department of Corrections, 523 F.3d 1291 (11th Cir. 2008). However, a prior panel’s holding is not binding if it has been “overruled or undermined to the point of abrogation by the Supreme Court.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Published before the Supreme Court’s decision in Kholi, Alexander held that an application for collateral review must challenge the legality of a sentence. Alexander was one of many cases exemplifying a split between circuits holding that a “motion to reduce [a] sentence does not toll” and circuits holding that a “motion to reduce [a] sentence tolls.” See Kholi, 562 U.S. at 550 n.2, 131 S.Ct. at 1283 n.2. And Kholi resolved the circuit split by holding that any “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process” tolls the limitations period under § 2244(d)(2). See id. at 553, 131 S.Ct. at 1285. In other words, Kholi abrogated Alexander and similar cases by holding that an application for collateral review need not challenge the legality of a sentence. See id. The Secretary’s argument and reliance on the abrogated Alexander is misguided.

Also, arguing against the tolling effect of a Rule 3.800(c) motion, the Secretary distinguishes Rule 3.800(c) from Rhode Island’s Rule 35(a). This argument is also misguided; none of the highlighted differences prevents Kholi from applying to a Rule 3.800(c) motion. The Secretary highlights that a Florida prisoner generally cannot appeal the denial of a Rule 3.800(c) motion; that no legal standard exists governing the outcome a Rule 3.800(c) motion; and that a Rule 3.800(c) motion does not toll the limitations period for direct appeal. However, Kholi explained that collateral review constitutes any “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” 562 U.S. at 553, 131 S.Ct. at 1285. No requirement exists that an application for collateral review include the ability to appeal a trial court’s reexamination of a sentence; that a legal standard govern the reexamination; and that the tolling practices of the state influence whether a motion tolls the limitations period for a federal habeas petition.

The Secretary identifies another difference in the two states’ rules. In Rhode Island, the same subsection — Rule 35(a)— governs a prisoner’s motion to correct an illegal sentence and his motion for a reduction of a sentence. In Florida, different subsections — Rule 3.800(a) and (c) — govern these motions. The Secretary argues that, because of this difference, one of Kholi’s, reasons for holding that a Rule 35(a) motion tolls the limitations period is inapplicable to a Rule 3.800(c) motion. Kholi explained that, if a Rule 35(a) motion to correct an illegal sentence tolls the limitations period and a Rule 35(a) motion for reduction of a legal sentence does not, it would “greatly complicate the work of federal habeas courts” to have to determine which type of motion a prisoner had filed. Id. The Secretary argues that in Florida, as long as a prisoner clarifies that his motion was under Rule 3.800(c), which governs only the reduction of a legal sentence, a federal court evaluating the timeliness of the prisoner’s federal habeas petition would not need to determine what type of state motion the prisoner had filed. However, this difference between the rules is immaterial. Kholi’s concern in requiring federal courts to determine the nature of a state motion served only to supplement Kholi’s two primary reasons for holding that a motion to reduce a sentence tolls— the definition of collateral review and the purpose of tolling. And, as explained above, the primary reasons compel the conclusion that a Rule 3.800(c) motion tolls.

Finally, the Secretary argues that allowing a Rule 3.800(c) motion to toll the limitations period not only allows “criminal judgments [to be] long subject to federal habeas actions,” which “would thwart [§ 2244]’s foundation in comity,” but also “allow[s] inmates to toll the federal limitation period at will.” This argument is misguided because Rule 3.800(c) limits the number of days in which a prisoner can move for reduction of a sentence — 60 days after final judgment.

IV.

A motion under Rule 3.800(c), Florida Rules of Criminal Procedure, tolls the limitations period for a federal habeas petition. We reverse the district court’s dismissal of Rogers’s petition for federal habeas relief and remand for further proceedings.

REVERSED AND REMANDED.

      . In support of this argument, the Secretary cites an unpublished per curiam opinion, Baker v. McNeil, 439 Fed.Appx. 786, 787 (11th Cir. 2011). In this circuit, an unpublished opinion “may be cited as persuasive authority” but is "not considered binding precedent.” 11th Cir. R. 36-2; see also Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.”).