author: TÁTEL, Circuit Judge:

text:
    Matthew August LEFANDE, Appellant v. DISTRICT OF COLUMBIA, Appellee
    No. 15-7055
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 16, 2016
    Decided November 8, 2016

      Matthew August LeFande, pro se, argued the cause and filed the briefs for appellant.
    Carl J. Sehifferle, Assistant Attorney General, Office of the Attorney General for the District-of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliK-han, Deputy Solicitor General.
    Before: TATEL and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.
   TÁTEL, Circuit Judge:

Matthew LeFande served as a police reserve officer with the Metropolitan Police Department for fifteen years until the department fired him for making harsh and accusatory statements to his superiors in emails with his co-workers cc’d. Alleging that the emails constitute protected speech, LeFande argues that his termination violated the First Amendment. The district court disagreed, as do we. Under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), LeFande’s emails enjoy no First Amendment protection because his interest in sending them is outweighed by the police department’s interest in promoting office harmony and efficiency.

I.

The Metropolitan Police Department (MPD) is fortified by a corps of volunteers, called police reserve officers (PROs), who assist full-time officers with their law-enforcement duties. See D.C. Code § 5-129.51. Appellant Matthew LeFande served as a PRO for fifteen sometimes tumultuous years from 1993 until 2008, when the MPD fired him.

For our purposes, the relevant events begin in 2006, when LeFande, who holds a law license, represented a class of PROs in a suit against the District of Columbia. In that suit, known as the Griffith suit, plaintiffs alleged that an MPD regulation infringed on PRO collective-bargaining rights and violated principles of procedural due process in disciplinary actions. Griffith v. Lanier, No. 06-01223, 2007 WL 950087 (D.D.C. Mar. 28, 2007). The district court dismissed that case, id. at *4, and we affirmed, Griffith v. Lanier, 521 F.3d 398, 404 (D.C. Cir. 2008).

In January 2008, just before LeFande appeared before this court for oral argument in Griffith, the MPD fired him. In response, LeFande again sued the District, this time under 42 U.S.C. § 1983, alleging, as relevant here, that the MPD terminated him for prosecuting the Griffith suit in "violation of his First Amendment rights. The district court granted the District’s motion to dismiss, ruling that LeFande’s speech—his prosecution of the Griffith suit—did not relate to a matter of public concern and therefore merited no First Amendment protection. LeFande v. District of Columbia, No. 09-00217, 2009 WL 8747515, at *4 (D.D.C. June 25, 2009). Reversing, we concluded that the Griffith suit did implicate a matter of public concern and remanded for the district court to conduct the remaining First Amendment analysis. LeFande v. District of Columbia, 613 F.3d 1155, 1161-62 (D.C. Cir. 2010).

On remand, the District moved for summary judgment, arguing that the MPD would have fired LeFande even absent his prosecution of the Griffith suit because of a series of emails he sent to his superiors with his co-workers cc’d. The relevant emails—their precise language is central to the issue before us—can be grouped into three sets.

First, on March 26,- 2007, LeFande sent three emails pertaining to the PRO leadership’s response to a disturbance in Georgetown. In the initial email, LeFande wrote that the PRO force would “be better off knocking Officer Plante [a sergeant] over on his side and rolling him towards the crowd than asking him to lead us. as a unit.” In the next email, LeFande proclaimed that his superiors were “suffering from full-blown delusions of adequacy.” And in his last email of the day, LeFande wrote that his superiors were “planning on ... standing-around.there until the crowd thins out in Georgetown” and suggested that they “write [themselves] a nice after action report- [and] [m]aybe even give [themselves] some medals.” LeFande sent the first email directly to certain superiors and circulated it to a listserv of PROs. The record does not indicate who received the other two emails.

LeFande sent a second set of two emails on January 18 and 19, 2008, each of which concerned PRO Commander Charles Brown’s request for a list of PRO members who were also serving as Conservators of the Peace in- Virginia (another volunteer law-enforcement position). In his first of the two emails, LeFande wrote:

Please explain why you want this information and what you intend to do with it. Absent some special authority that MPD will confer to these people by virtue of the office they hold in Virginia, or this information being used to advocate for same, I can’t understand why it is any of your business. It doesn’t appear you have done- anything with this information since the last time you asked. Why should we continue to provide it to you?

Brown responded that the list would allow him to “better handle problems that may arise” and has “helped [him] stop or minimize disciplinary actions against Reserve Officers.” LeFande shot back:

Your track record demonstrates to the contrary. You are, more often than not, the most immediate cause of arbitrary and unwarranted disciplinary actions against Reserve Officers. You certainly are responsible for the' recent arbitrary promotions process in which you promoted a cadre of persons to your personal liking regardless of their lack of qualifications. You failed to utilize the promotion exams and merit selection process required under law so that you could capriciously exclude those critical of your perpetual incompetence, Similarly, you are personally responsible for the arming of certain Reserve Officers, including yourself, who are wholly unfit to carry firearms or who are in fact, legally disqualified from doing so. It appears to me that you are now on the hunt for more reasons to discredit and prejudice those more capable than you. You do not need a list of conservators. Instead, the police department needs a written policy in place that reflects these conservators’ status as duly appointed law enforcement officers for Virginia and identifies them as exempt from firearms regulations both under District of Columbia and Federal law. If there is any question as to a conservator’s status, their state issued identification credentials will give cursory confirmation of their status, which can be further confirmed by queries to the appropriate agencies. Absent any other cause for you having this information, I believe it is inappropriate for you to maintain any such list.

LeFande copied the full PRO listserv on these emails.

LeFande sent and cc’d his final email on January 25, 2008, in response to Brown’s request that the PROs submit questions in advance of a meeting with an MPD Assistant Chief, so that he could “be properly briefed.” LeFande wrote:

Briefed by who? You? Why even bother? You must be pretty nervous about this meeting for you to do something as contrived and clumsy as try to filter out the questions ahead of time. The whole point of this process is to spring on him all the dumb stuff you have been doing to the Corps all these years and make him squirm. Hopefully he will be embarrassed enough to finally force you to resign. Come to think of it, let’s forward this little email to him. [email address omitted] ... Oh yeah, you suspended me without cause for doing that nine months ago and haven’t reinstated me since. Let’s add that to the email too.

As evidence that it feed LeFande because of these emails, the District pointed to the MPD’s memorandum requesting his termination, which stated that the emails “dismiss[ ] authority and undermine[ ] the credits of official[s’] rank and deter[ ] the cohesive working relationships of [Reserve Corps] members.” The memo also emphasized that, “[a]s the tone, tenor, content, and distribution of Reserve Officer Le-Fande’s e-mails make[ ] clear, he is a disruptive force within the Reserve Corps, and his blatantly insubordinate behavior cannot help but to diminish respect for Reserve Corps officials and undermine morale within the Corps.”

The district court denied the District’s summary-judgment motion, concluding that the District had failed to prove as a matter of law that the MPD would have fired LeFande even absent his prosecution of the Griffith suit. While a jury could “find that the MPD terminated LeFande for his tendency to air complaints to the entire listserv[], or for the tone of the emails,” the court explained, it could also deem these justifications pretextual. LeFande v. District of Columbia, No. 09-217, slip op. at 10 (D.D.C. Feb. 11, 2014) (order denying defendant’s motion for, summary judgment). And because LeFande’s emails “likely constitute protected speech,” the court thought summary judgment particularly inappropriate. Id. at 11.

In response to that ruling, LeFande moved for summary judgment, asserting that his emails warranted First Amendment protection as a matter of law. The district court, despite its previous statement that LeFande’s emails “likely constitute protected speech,” denied that motion. Relying on Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the court concluded that LeFande’s emails were unprotected because he sent them “pursuant to his official duties.” LeFande v. District of Columbia, No. 09-217, slip op. at 1-2 (D.D.C. Nov. 14, 2014) (order denying plaintiffs motion for summary judgment).

Having denied the parties’ summary-judgment motions, the district court held a pretrial conference. 'There, LeFande explained that he had no evidence to present at trial and maintained that the only remaining issue was a legal one, i.e., whether his emails merit First Amendment protection. Because the District agreed, the district court instructed it to move to dismiss, which it did. Although LeFande never opposed the motion, he expressly reserved his right to appeal. The district court accordingly dismissed the case with prejudice, and LeFande filed this appeal.

II.

Before addressing the merits, we must consider the District’s argument that we lack appellate jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“The requirement, that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’, and is ‘inflexible and without exception.’.” (quoting Mansfield, C. & L. M. Railway Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884))). Under 28 U.S.C. § 1291, appellate courts have jurisdiction to review the final decisions of district courts. And when reviewing a final decision, they have authority to review the interlocutory orders that preceded it based on the principle that such orders merge into the final decision. See Ciralsky v. CIA, 355 F.3d 661, 668 (D.C. Cir. 2004) (“Our jurisdiction over [the] final decision extends as well to the interlocutory rulings that preceded it_”).

The District insists that we lack jurisdiction to review the denial of Le-Fande’s summary-judgment motion because the district court dismissed Le-Fande’s case for failure to prosecute. See Fed, R, Civ. P. 41(b) (allowing dismissal “[i]f the plaintiff fails to -prosecute or to comply with these rules or a court order”). Despite the general rule that interlocutory orders merge into the final, decision, our sister circuits disagree about whether they can review interlocutory orders after a dismissal for failure to prosecute. Compare, e.g., John’s Insulation, Inc. v. L. Addison & Associates, 156 F.3d 101, 105-07 (1st Cir. 1998) (declining review), with Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 179 (2d Cir. 1990) (permitting review). This circuit has yet to weigh in on the question, and we need not do so now since we reject the District’s premise that the dismissal here was triggered by a failure to prosecute.

Although the district court failed to ground its order in a Federal Rule of Civil Procedure, the circumstances surrounding the dismissal—specifically, the pretrial conference—convince us that it rested not on Rule 41(b), but rather Rule 41(a)(2), which allows a court to dismiss an action “at the plaintiffs request ... on- terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). At the pretrial conference, LeFande took the position that only legal issues remained at stake and accordingly asked the district court to dismiss the case so he could seek immediate review of the summary-judgment denial. See Pretrial Conference Tr. 3 (Apr. 28, 2015) (“We’re only left with the matter of law of whether [LeFande’s] speech was protected speech.”); id. at 6 (“We agree to [the case] being dismissed. We just want to reserve our rights for appeal.”).-The district court agreed to facilitate this request, saying it would try to “tee [the case] up properly for plaintiff to take [his] appeal.” Id. at 6. Though the District ultimately moved for dismissal, it was LeFande who initially “requested]” the dismissal, which the district court granted on “terms [it] considered] proper.” See Fed. R. Civ. P. 41(a)(2). The dismissal therefore qualifies as a Rule 41(a)(2) voluntary dismissal.

The District nonetheless contends that LeFande bears sole responsibility for the case not going to trial, assuring us that it had “intended to proceed with the trial and present its own evidence.” Appellee’s Br. 17. This is an odd assertion given-what actually transpired at .the pretrial conference. Not only did the District agree that no factual issues remained contested, see Pretrial Conference Tr. 5 (responding “[n]o” when asked by the district court whether any facts were in dispute), but, as noted above, it also moved to dismiss the case, id. at 6 (“We move to dismiss.”). The District’s argument, moreover, completely ignores that the dismissal here bears no resemblance to dismissals for failure to prosecute, which are prompted by plaintiffs’ egregious and dilatory conduct, such as flouting court orders. See Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167-68 (D.C. Cir. 1990). LeFande did nothing of the sort, as he merely voiced his preference to appeal immediately rather than proceed to trial.

For these reasons, we shall construe the district court’s order as a Rule 41(a)(2) voluntary dismissal with prejudice—an ap-pealable final decision under 28 U.S.C. § 1291 because it completely ends the litigation on the merits. See Blue v. District of Columbia Public Schools, 764 F.3d 11, 17 (D.C. Cir. 2014). And since the denial of LeFande’s summary-judgment motion merges into that final decision, it too is reviewable. See Public Citizen v. United States District Court for the District of Columbia, 486 F.3d 1342, 1345 (D.C. Cir. 2007) (holding that a summary-judgment denial may be reviewed “where it is accompanied by a final order disposing of all issues before the district court” (quoting Jones-Hamilton Co. v. Beazer Materials & Services, Inc., 973 F.2d 688, 694 n.2 (9th Cir. 1992))).

With our statutory jurisdiction established, the only remaining question is whether we have Article III jurisdiction. Although the parties never address this issue, courts must always assure themselves that they have constitutional jurisdiction. See Steel Co., 523 U.S. at 101-02, 118 S.Ct. 1003. Article III appellate jurisdiction over voluntary dismissals with prejudice is a largely uncharted doctrinal area, though the Supreme Court will soon hear a case concerning the issue. See Microsoft Corp. v. Baker, — U.S. -, 136 S.Ct. 890, 890-91, 193 L.Ed.2d 783 (2016) (mem.) (granting certiorari). In that case, the parties disagree about whether appellate courts can review a denial of class certification after the named plaintiffs voluntarily dismiss their claims with prejudice given Article Ill’s requirement that the plaintiff remain adverse to the defendant “at all stages of review, not merely at the time the complaint is filed.” Campbell-Ewald Co. v. Gomez, — U.S.-, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). Without speaking to the unique context of class actions—which is unnecessary in this case—we think that Article III jurisdiction exists to review the voluntary dismissal with prejudice here.

The Supreme Court last addressed the reviewability of voluntary dismissals in United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). There, the Court held that the plaintiff, the government in that case, could obtain review of an interlocutory ruling by voluntarily dismissing the case with prejudice because “[w]hen the Government proposed dismissal ..., it had lost on the merits [due to the interlocutory ruling] and was only seeking an expeditious review.” Id. at 680-81, 78 S.Ct. 983. In other words, the government had never “consented] to a judgment against [it], but only that, if there was to be such a judgment, it should be final in form instead of interlocutory.” Id. at 681, 78 S.Ct. 983 (quoting Thomsen v. Cayser, 243 U.S. 66, 83, 37 S.Ct. 353, 61 L.Ed. 597 (1917)). The same is true here. When the district court denied LeFande’s summary-judgment motion and concluded that his emails deserve no First Amendment protection, LeFande effectively lost on the merits: after all, he claimed only that firing him based on those emails violated the First Amendment. LeFande’s voluntary dismissal with prejudice, then, served solely as a means to facilitate immediate review of a case-dispositive interlocutory ruling.

Procter & Gamble therefore governs and, although the Court there did not speak in terms of Article III adverseness, it necessarily found Article Ill’s strictures satisfied because it reviewed the plaintiffs appeal. Accordingly, because LeFande’s voluntary dismissal with prejudice followed a case-dispositive interlocutory ruling, we have Article III jurisdiction. Accord OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1356-58 (11th Cir. 2008) (holding that voluntary dismissals with prejudice following caserdispositive rulings are reviewable); Laczay v. Ross Adhesives, 855 F.2d 351, 354-55 (6th Cir. 1988) (same). And as a result, the broader question whether Article III appellate jurisdiction exists over all voluntary dismissals with prejudice, even those that do not follow case-dispositive interlocutory rulings, is not implicated.

We can easily dispose of the District’s final two jurisdictional objections. First, our holding poses no threat to “the longstanding policy against piecemeal litigation.” Appellee’s Br. 18 (quoting Franklin v. District of Columbia, 163 F.3d 625, 629 (D.C. Cir. 1998)). Of course, reviewing cases that plaintiffs have voluntarily dismissed without prejudice could jeopardize that policy given that plaintiffs would suffer no adverse consequences from dismissing after an interlocutory ruling and pursuing an appeal. See Robinson-Reeder v. American Council on Education, 571 F.3d 1333, 1340 (D.C. Cir. 2009) (discussing how permitting dismissals without prejudice to “generate an appealable judgment” would “weaken the policy against ‘piecemeal appeals’ ”). But where, as here, the plaintiff voluntarily dismisses the case with prejudice, he wagers his entire case on prevailing on appeal—thereby creating a disincentive against this practice. See, e.g., Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir. 2011) (“[When a] plaintiff wager[s] her entire claim on being proved right about [an interlocutory ruling], considerations of judicial economy justify] immediate appellate review.”).

Second, the District claims that because “we are powerless to review a challenge to the legal sufficiency of evidence that was rejected at summary judgment and not brought again in a [post-trial] Rule 50 motion,” see Feld v. Feld, 688 F.3d 779, 781 (D.C. Cir. 2012), we also lack authority to review the summary-judgment denial here. We disagree. Where a case proceeds to trial, the trial record supersedes the earlier summary-judgment record and renders the summary-judgment denial moot. Id. at 782. But where, as here, no trial takes place—and hence no further facts are developed—nothing has superseded the summary-judgment record and therefore nothing prevents our review.

Having confirmed our constitutional and statutory jurisdiction to review the district court’s" voluntary dismissal with prejudice, as well as the summary-judgment denial that preceded it, we turn to the merits.

III.

The district court denied Le-Fande’s summary-judgment motion, concluding that his emails enjoy no First Amendment protection. We review this summary-judgment denial de novo, drawing all inferences in favor of the District as the nonmovant. See Public Citizen, 486 F.3d at 1345. Summary judgment is proper only when there is “no genuine issue of any material fact,” or when “the movant is clearly entitled to prevail as a matter of law.” Id. (quoting Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1290 (9th Cir. 1982)).

We use a four-element test to determine whether a public employee has established a claim of retaliation in violation of his First Amendment rights. For the employee to prevail: (1) he must have spoken as a citizen on a matter of public concern; (2) his interest in speaking on matters of public concern must outweigh the government’s interest in promoting efficiency; (3) his protected speech must have been a substantial or motivating factor in prompting the retaliation; and (4) the government must be unable to show that it would have reached the same decision absent the protected speech. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir.2007). The first two elements involve questions of law; the second two implicate questions of fact. Id.

The parties spill much ink debating whether LeFande spoke “pursuant to his official duties.” See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes_”). We need not decide this question, however, because even if Le-Fande spoke as a citizen on a matter of public concern, his claim falters on the second element. See, e.g., Rock v. Levinski, 791 F.3d 1215, 1219 (10th Cir. 2015) (skipping the first element of the employee-speech analysis and resolving the claim based on the Pickering balancing test); see also Bowyer v. District of Columbia, 793 F.3d 49, 53 (D.C. Cir. 2015) (“On de novo review, we may affirm the district court’s judgment on a different theory than used by the district court.”).

That element, according to Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), requires weighing LeFande’s interest “as a citizen, in commenting upon matters of public concern” against the MPD’s interest “as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. 1731. The Supreme Court has set forth several factors to consider in conducting this test, such as “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), moreover, the Court made clear that a government employer can intervene before an employee’s speech actually disrupts the functioning of an office. “[W]e do not see the necessity,”'the Court explained, “for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Id. at 152, 103 S.Ct. 1684.

The facts of Connick are instructive in balancing the interests in this case. There, the government fired an Assistant District Attorney who had distributed a “questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” Id. at 141, 103 S.Ct. 1684. In sustaining the employee’s termination, the Court explained that it owed “a wide degree of deference to the employer’s judgment” that the .employee .had committed “an act of insubordination which, interfered with working relationships.” Id. at 151-52, 103 S.Ct. 1684. That said, the Court acknowledged that a “stronger showing” of interference with the employer’s operation “may be necessary - if the employee’s speech more substantially involved matters of public concern.” Id. at 152, 103 S.Ct. 1684.

Here, as explained above, the MPD set forth its rationale for terminating Le-Fande in its “Request for Removal” memorandum. That document states that Le-Fande’s emails. “dismiss[ ] authority and undermine[ ] the credits of officials’] rank and deter[ ] the cohesive working relationships of [Reserve Corps] members.” It concludes that, “[a]s the tone, tenor, content, and distribution of ,. LeFande’s emails makes clear, he is a disruptive .force within the Reserve Corps, and his blatantly insubordinate behavior cannqt help but to diminish respect for Reserve Corps officials and undermine morale within the Corps.” Under Connick, we must afford such determinations “a wide degree of deference.” 461 U.S. at 152, 103 S.Ct. 1684. Moreover, as we have emphasized, “there may be a stronger governmental interest in regulating the speech of police officers than in regulating the speech of other governmental employees,” in light of the “special degree of trust and discipline required in a police force.” O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998). With this deferential framework in mind, and viewing the facts in the light most favorable to the District as the nonmovant, we now subject each of LeFande’s emails to the Pickering balancing test.

In LeFande’s March 26, 2007 emails, he ridiculed his superiors’ handling of a disturbance in Georgetown, writing that the department would be better off “knocking [a sergeant]- over on his side and rolling him towards the crowd than asking him to lead [the PRO] unit,” and that his superiors “suffer[ed] from full-blown delusions of adequacy” and' should “give [themselves] some medals.” In our view, these statements about the inadequacy of office leadership, like the survey question in Connick relating to employees’ confidence in their supervisors, have the “likely result [of] ... precipitating] a vote of no confidence” in LeFande’s superiors. As such, LeFande’s statements “carr[y] the clear potential for undermining office relations.” Connick, 461 U.S. at 152, 103 S.Ct. 1684. In addition, because those statements expressly disrespect LeFande’s superiors, they go further to “impair[] discipline,” Rankin, 483 U.S. at 388, 107 S.Ct. 2891, than did the implicitly derisive survey questions in Connick. To be sure, Le-Fande’s March 26 emails may implicate matters of public concern to a greater extent than the questionnaire in Connick since they relate to public, safety as opposed to matters of internal office policy. But given the “special degree of trust and discipline required in a police force,” O’Donnell, 148 F.3d at 1135, LeFande’s speech-related interests in sending these emails cannot outweigh the fact that their “disruptive force” (the MPD’s description) threatens workplace efficiency.

LeFande’s January 18 and 19, 2008 emails must be read together since they amount to a single response to Commander Brown’s request for a list of PROs also serving as Virginia ¡Conservators of the Peace. In his January 18 email, Le-Fande wrote that he failed to “understand why [the requested information] is any of your business,” demanding to know “[w]hy should we continue to provide it to you ... [given that] [i]t doesn’t appear you have done anything with [it] since the last time you asked[?]” After Brown explained why ■he needed the information, LeFande still refused to comply. Instead, in his January 19 email, he launched a slew of attacks against Brown, charging, among other things: “[y]ou certainly are responsible for the recent arbitrary promotions process in which you promoted a cadre of persons to your personal liking regardless of their lack of qualifications”; “you ... capriciously exclude those critical of your perpetual incompetence”; “you are personally responsible for the arming of certain Reserve Officers, including yourself, who are wholly unfit to carry firearms”; and “you are now on the hunt for more reasons to discredit and prejudice those more capable than you.” LeFande cc’d the PRO listserv.

It goes without saying that resisting a superior’s routine request for information both “impairs discipline” and “interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388, 107 S.Ct. 2891. Viewing the record in the District’s favor, as we must, we do not think that the requested information was particularly sensitive or that the request was unwarranted or burdensome. If police department leadership faced opposition from employees after every routine request, the machinery of law enforcement would grind to a halt.

More fundamentally, when we consider the “manner” and “context” of these emails, id. they read more as personal attacks on Brown than as proposals for improving departmental policy. LeFande’s repeated use of the word “you” in reference to Brown himself, as well as his harsh and accusatory tone—“perpetual incompetence,” “capriciously exclude,” “wholly unfit”-—scapegoat Brown instead of targeting general policies in a way that might foster meaningful reform. Not only are such personal attacks on supervisors likely to jeopardize employee confidence in office leadership and impair overall discipline, but they are also just the type of “act of insubordination” (the MPD called it “blatantly insubordinate behavior”) that employers have wide latitude to address before actual office disruption occurs. See Connick, 461 U.S. at 151-52, 103 S.Ct. 1684; Graziosi v. City of Greenville, 775 F.3d 731, 740-41 (5th Cir. 2015) (holding that a police officer’s posts on the local Mayor’s public Facebook page criticizing departmental leadership failed the balancing test because they “smack[ed] of insubordination” (quoting Nixon v. City of Houston, 511 F.3d 494, 499 (5th Cir. 2007))).

It is true that, on a more general level, the subject of these emails—police personnel policy and public safety—is one of public concern. See LeFande, 613 F.3d at 1161 (“[W]e reject the proposition that a personnel matter per se cannot be a matter of public concern, even if it may seriously affect the public welfare.”). But “[wjhen a government employee personally confronts his immediate superior,” the Court has emphasized, “the [employer’s] institutional efficiency may be threatened not only by the content of the employee’s message but also by the manner, time, and place in which it is delivered.” Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415 n.4, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). Here, LeFande’s personal and inflammatory confrontation of Brown, combined with the visibility of the emails, could well frustrate the police department’s ability to ensure a functional force.

A similar analysis applies to Le-Fande’s January 25, 2008 email. There, LeFande responded to Brown’s request for questions in advance of a briefing with the Assistant Chief as follows; “Briefed by who? You? Why even bother? You must be pretty nervous about this meeting for you to do something as contrived and clumsy as try to filter out the questions ahead of time. The whole point of this process is to spring on [the Assistant Chief] all the dumb stuff you have been doing to the Corps all these years and make him squirm. Hopefully he will be embarrassed enough to finally force you to resign.” Le-Fande’s caustic words—“clumsy,” “dumb,” “contrived”—undercut Brown’s authority by flouting his request and ridiculing him in an open forum. For the reasons just mentioned, such personal attacks hurled at a superior can subvert office discipline and efficiency. LeFande assures us that he was seeking to blow the whistle on an official obfuscating his wrongdoings: See Oral Arg. Rec. 5:50-:59. Perhaps so. But, and again viewing the .facts most- favorably to the District, we see nothing in Brown’s request for questions—which he justified as necessary to allow for more thorough aiid timely answers—that even hints at an illicit motive. As a result, this email falls far short of cutting to the heart of “public concern,” Pickering, 391 U.S. at 568, 88 S.Ct. 1731, and the MPD’s interest in containing overt hostility toward its leadership outweighs any speech-related interest Le-Fande had in sending the email.

In conclusion, none of LeFande’s emails survives the Pickering balancing test. The First Amendment protects public-employee speech only so much. In this case, it does not require the MPD to tolerate Le-Fande’s hostile and accusatory words.

IV.

For the foregoing reasons; we affirm the district court’s dismissal of the case and denial of LeFande’s summary-judgment motion.

So ordered.


source: Caselaw Access Project

author: EDWARDS, Senior Circuit Judge:

license: Public Domain

text:
    NTCH, INC., Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Verizon, Intervenor
    No. 15-1145
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 9, 2016
    Decided November 15, 2016

      Donald J. Evans argued the cause for appellant. With him on the briefs was Ashley Ludlow.
    Maureen K. Flood, Counsel, Federal Communications Commission, argued the cause for appellee. With her on the brief were Jonathan B. Sallet, General Counsel, David M. Gossett, Deputy General Counsel, and Jacob M. Lewis, Associate General Counsel. Richard K. Welch, Deputy Asso-date General Counsel, entered an appearance.
    Catherine E. Stetson argued the cause for intervenor. With her on the brief were Mary Helen Wimberly, Washington, DC, William H. Johnson, and Katharine R. Saunders, Arlington, VA.
    Before: PILLARD, Circuit Judge, and EDWARDS and RANDOLPH, Senior Circuit Judges.
   EDWARDS, Senior Circuit Judge:

This appeal involves challenges to two orders—referred to herein as the “Memorandum Order” and the “Reconsideration Order”—issued by the Federal Communications Commission (“FCC” or “Commission”). In these orders, the Commission approved the transfer of radio spectrum licenses to Verizon Wireless (“Verizon”), a national telecommunications company, granted Verizon forbearance from a statutory provision, and refused to initiate proceedings to revoke other licenses held by Verizon. Appellant NTCH, Inc., a company that provides wireless phone and internet services, challenges these orders. Verizon has intervened in support of the FCC.

The FCC administers the Communications Act of 1934 (the “Act”). 47 U.S.C. §§ 151 et. seq. As part of its duties, the Commission oversees the assignment and sale of radio spectrum licenses. 47 U.S.C. § 310(d). “Spectrum” is “[t]he range of electromagnetic radio frequencies used in the transmission of sound, data, and television,” and is crucial to cell -phone companies. See Glossaey op Tblecommunioations Terms, https://www.fec.gov/general/ glossary-teleeommunications-terms (last visited Oct, 18, 2016). Section 310- of the Act limits who may hold spectrum licenses, and bars or restricts ownership for companies with certain levels of foreign control. In 2012, the Commission issued a “Forbearance Order” detailing when and how it would refrain from applying ■ section 310(b)(3).

In late 2011, a number of companies seeking to sell spectrum licenses petitioned the FCC to approve the transfer of their licenses to Verizon. . The Commission sought public comment on these applications, eventually grouping them together for consideration. In the Memorandum Order, the agency approved a “Spectrum Assignment,” authorizing a series of license assignments between various entities, with the greatest share going to Verizon. The agency found that the Spectrum Assignment promised significant public interest benefits, but also threatened some detriments. However, the Commission determined that the potential harms could be offset, and approved the arrangement subject to several conditions. Because Verizon was then governed by section 310(b)(3), the Commission also granted Verizon prospective forbearance from that subsection.

NTCH petitioned for reconsideration and claimed, for the first time, that Verizon had illegally obtained hundreds of spectrum licenses between 2000 and 2012 in violation of section 310(b)(3). NTCH argued that the Commission had unlawfully granted retroactive forbearance under section 310(b)(3) to cover this up, and that proceedings to revoke those, licenses must be initiated. NTCH also claimed that the FCC had failed to follow its own standards in granting Verizon prospective forbearance. The FCC rejected all of these claims in the Reconsideration Order.

NTCH now appeals to overturn the FCC’s orders. It asserts that the FCC unlawfully granted Verizon retroactive forbearance, that the agency should be required to initiate show cause license revocation proceedings against Verizon, and that the agency’s grant of prospective section 310(b)(3) forbearance violated its own procedures. Additionally, NTCH argues that the Commission’s approval of the Spectrum Assignment should be overturned because it is not in the public interest.

We reject NTCH’s claims. The FCC’s decision not to initiate proceedings to revoke Verizon’s licenses is not subject to judicial review. Furthermore, any questions about the licenses Verizon obtained before the Spectrum Assignment are not properly before the court. NTCH’s challenge to the FCC’s grant of prospective forbearance is moot because no foreign entity now has any ownership of Verizon. Finally, the Commission’s determination that the Spectrum Assignment was in the public interest was reasonable and therefore survives arbitrary and capricious review.

I. Background

A. Section 310(b) and Verizon’s Ownership Structure

Section 310 places restrictions on who may own radio licenses, including spectrum licenses. At issue in this case are sections 310(b)(3) and (b)(4). These provisions state that

No broadcast or common carrier ... license shall be granted to or held by—
(3) any corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or them representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country;
(4) any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.

47 U.S.C. § 310(b)(3), (4).

The Commission has interpreted section 310(b)(3) to bar possession of a radio spectrum license by an entity in which aliens hold more than a twenty-percent interest, including indirectly through an intervening, U.S.-organized entity that itself does not own more than fifty-percent of that licensee. Request for Declaratory Ruling Concerning the Citizenship Requirements of Sections 310(b)(3) and (If) of the Commc’ns Act of 193*J, as amended, 103 F.C.C. 2d 511, 520-22 ¶¶ 16-19 (1985). Section 310(b)(4) bars possession of spectrum licenses where aliens hold more than twenty-five percent interest in a U.S.-organized entity that does control a licensee, but only if the Commission determines that refusing ownership would serve the public interest. 47 U.S.C. § 310(b)(4). In 2012, the Commission issued an order detailing the circumstances in which it would forbear from applying section 310(b)(3), and the procedures it would follow in doing so. In the Matter of Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees Under Section 310(b)(1) of the Commc’ns Act of 1931, as Amended, 27 FCC Red. 9832 (2012).

In 2000, the FCC granted Bell Atlantic (Verizon’s predecessor-in-interest) and Vo-dafone (a foreign company) permission to jointly assign their -wireless licenses to Célico, a U.S.-organized company that does business under the name “Verizon Wireless.” In re Applications of Vodafone AirTouch, PLC and Bell Atlantic Corp., 15 FCC Red. 16507 (2000). Vodafone initially owned a controlling share in Verizon. Consequently, the FCC evaluated Verizon’s eligibility to hold licenses under § 310(b)(4).

At some point after this, however, Voda-fone’s ownership of Verizon became non-controlling. At that point, Verizon’s eligibility to own spectrum licenses should have shifted from being governed by section 310(b)(4) to being controlled by section 310(b)(3)’s absolute prohibition. But between 2000 and 2012, when the Commission granted Verizon forbearance, Verizon obtained a significant number of licenses. In -2014, Verizon bought out Vodafone’s interest. As a result, Verizon is now wholly owned by a domestic corporation, and no part of section 310(b) applies to it.

B. The Spectrum Assignment and NTCH’s Challenge

In late 2011, the Commission received a number of' applications from companies seeking to assign spectrum licenses to Verizon. These transfers would have resulted in Verizon significantly increasing its spectrum holdings in markets across the country. The Commission sought and received public comment on these proposals, and consolidated them for its consideration. NTCH opposed the transfers, asserting that it would harm the public interest.

On August 21, 2012, the Commission adopted its Memorandum Order approving the Spectrum Assignment. In the Matter of Applications of Cellco P’ship d/b/a Verizon Wireless and SpectrumCo LLC and Cox TMI, LLC for Consent to Assign AWS-1 Licenses, 27 FCC Red. 10698, 10699 ¶ 6 (2012). It determined 'that the assignments of spectrum licenses to Verizon would, overall, be in the public interest, so long as conditions were imposed to mitigate potential threats to the public interest. These threats included the dangers of Verizon “warehousing” the spectrum, thereby foreclosing competitor access and leaving the spectrum unused. Id. at 10723-24 ¶ 68. The Commission was also aware that the assignments might increase Verizon’s market dominance and harm competition. Id. at 10711 ¶ 31. To allay these concerns, Verizon committed to quickly develop and make use of the spectrum it would receive, and agreed to transfer a significant amount of spectrum to T-Mobile. Id. at 10743-44 ¶¶ 121-22.

The Commission also addressed the issue of “roaming.” All wireless carriers are required to provide phone service to people who are outside of their home markets. See Reexamination of Roaming Obligations of Commercial Mobile Radio Serv. Providers, 22 FCC Red. 15817, 15818 ¶ 1 (2007). To achieve this, providers must negotiate deals with one another in order to ensure continuous service to customers. The Commission does not set the prices that carriers may charge each other for this service, however.

In the Memorandum Order, the FCC acknowledged that small carriers had, in the past, experienced difficulty negotiating roaming arrangements with Verizon, and that the transfer would further enlarge a national telecommunications company that has “little incentive” to negotiate favorable roaming deals with smaller competitors. 27 FCC Red. at 10730 ¶ 84, 10742-43 ¶ 120. To address this problem, the FCC required Verizon to agree to comply for five years with a newly adopted rule requiring carriers to offer roaming arrangements, on commercially reasonable terms and conditions, even if that rule was overturned on appeal. Id. at 10743. ¶ 121. Finally, because Verizon would have been barred from holding licenses under section 310(b)(3), the Commission granted it forbearance from that section.

NTCH petitioned for reconsideration on September 24, 2012. It asserted, for the first time, that the Commission had imper-missibly allowed Verizon to acquire and retain hundreds of licenses between 2000 and 2012, in violation of section 310(b)(3). NTCH thus pressed for the agency to initiate an investigation into Verizon’s license acquisition and ownership. NTCH also claimed that the FCC had improperly granted retroactive forbearance to Verizon in an attempt to rectify the licensing mistakes made between 2000 and 2012. Finally, NTCH claimed that the FCC failed to follow its own procedures in granting prospective forbearance.

Two and a half years later, the Commission issued its Reconsideration Order denying NTCH’s claims. In the Matter of Applications of Cellco P’ship d/b/a Verizon Wireless and SpectrumCo LLC and Cox TMI, LLC for Consent To Assign AWS-1 Licenses, 30 FCC Red. 3953 (2015). The Commission held that it had followed its own forbearance procedures, and that the issue was moot in any event because Verizon had bought out Vodafone’s ownership interest in 2014. Id. at 3954 ¶4, 3956-57 ¶¶ 10-11. In the alternative, the Commission held that the licenses obtained by Verizon, prior to the Memorandum Order were not at issue, and that NTCH had not demonstrated why its argument regarding Verizon’s ineligibility to obtain those licenses could not have been raised sooner. Id. at 3957 ¶ 12. Finally, the FCC declined to initiate show cause revocation proceedings against Verizon. Id. at 3957-58 ¶ 13.

NTCH now appeals from the Memorandum Order and the Reconsideration Order, advancing three claims. First, NTCH contends that, because the FCC granted Verizon hundreds of spectrum licenses in violation of section 310(b)(3), and unlawfully granted Verizon retroactive forbearance to justify these prior illegal actions, the Commission should institute revocation proceedings. Second, NTCH asserts that the FCC violated its own procedures in granting Verizon prospective forbearance, which must be reversed. Finally, NTCH argues that the FCC’s approval of the Spectrum Assignment was not in the public interest and, therefore, must be undone.

II. Analysis

A. Standard of Review

The Commission’s orders are subject to reversal if they are arbitrary and capricious. 5 U.S.C. § 706(2)(A). To survive arbitrary and capricious review, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotes and citation removed). A court may not “substitute its judgment for that of the agency,” but must instead evaluate whether the agency’s decision considered relevant factors and whether it reflects a clear error of judgment. Id.

B. The Commission’s Refusal to Initiate Revocation Proceedings and its Alleged Grant of Retroactive Forbearance Are Not Reviewable

NTCH claims that the FCC should have initiated proceedings to revoke all of Verizon’s licenses issued since 2000 because they were allegedly obtained in violation of section 310(b)(3). It also claims that the Commission unlawfully granted Verizon retroactive forbearance from section 310(b)(3) in order to validate and rectify this mistake. We address these allegations together because the requested remedy is the same: that the Commission be ordered to initiate show cause revocation proceedings against Verizon under 47 U.S.C. § 312.

We reject NTCH’s demand for two reasons. First, the Commission’s decision not to initiate revocation - proceedings is discretionary and thus unreviewable. Although there is a “basic presumption of judicial review” of agency action, Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), section 701(a)(2) of the Administrative Procedure Act (“APA”) bars judicial review of agency actions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Court made it clear “that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” The Court then went on to hold that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Id. at 832, 105 S.Ct. 1649.

The Commission’s decision not to initiate revocation proceedings “was equivalent to a decision not to commence an enforcement action” and, thus, presumptively un-reviewable. Drake v. F.A.A., 291 F.3d 59, 70 (D.C. Cir. 2002). Issuing a show cause order is the first step towards addressing a violation of section 310(b). See 47 U.S.C. § 312(a)(2), (c). The FCC’s refusal to do so was thus a decision not to pursue an enforcement action under the Act, and is presumed unreviewable. See Chaney, 470 U.S. at 831-32, 105 S.Ct. 1649.

This conclusion is reinforced by the terms of the Act. Section 312(a) provides, in seven instances, that “[t]he Commission may revoke any station license.” 47 U.S.C. § 312(a) (emphasis added). Generally, “[w]hen a statute uses a permissive term such as ‘may’ rather than a mandatory term such as ‘shall,’ this choice of language suggests that Congress intends to confer some discretion on the agency.” Dickson v. Sec’y of Defense, 68 F.3d 1396, 1401 (D.C. Cir. 1995). The simple point here is that the Act “provides the agency broad discretion in enforcement decisions,” N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209, 1215 (D.C. Cir. 1993), and requires the conclusion that the FCC’s decision here is not reviewable. See Starr v. FCC, No. 96-1295, 1997 WL 362730, at *1 (D.C. Cir. May 20, 1997) (per curiam) (stating that enforcement decisions under 47 U.S.C. § 312(a) are committed to agency discretion by law).

NTCH attempts to rebut this presumption of unreviewability, but its arguments fail. NTCH asserts that section 312(a) of the Act provides manageable standards by which to evaluate any Commission action taken pursuant to its authority to initiate show cause proceedings. This argument misses the point. Merely because the statute indicates situations with respect to which the agency mew/ take enforcement actions does not mean that the agency must act in all such situations. Section 312(a) merely states that for each of the cited situations the Commission “may” act to revoke a license, clearly leaving the ultimate decision to the Commission’s discretion. Nothing in the statute requires the agency to initiate an enforcement action.

NTCH also points to two prior Commission decisions that it argues require the Commission to initiate revocation proceedings here. In the Matter of Mario Loredo, 11 FCC Rcd. 18010 (1996); In the Matter of KOZN FM Stereo 99, Ltd., 59 Rad. Reg. 2d (P & F) 628 (1986). But these decisions do not rebut the conclusion that the FCC has full discretion to decide whether to initiate revocation proceedings. Instead, they are merely examples of occasions when the FCC has invoked its enforcement authority.

In summary, the Commission’s decision not to initiate revocation proceedings against Verizon was committed to the agency’s discretion, and NTCH has not rebutted the presumption of unreviewability. Chaney, 470 U.S. 821, 105 S.Ct. 1649.

NTCH’s claims contesting the FCC’s refusal to initiate revocation proceedings and its alleged grant of retroactive forbearance also fail because the matter of Verizon’s previously-obtained licenses is not properly before the court. The licenses already held by Verizon were not at issue in the FCC’s proceedings below. NTCH did not contest Verizon’s eligibility to hold the licenses until it filed a Petition for Reconsideration. And NTCH’s claims regarding these licenses are rooted in two innocuous sentences in the Memorandum Order, in which the Commission stated:

We note that our action today removes any uncertainty as to whether the current foreign ownership of Verizon Wireless, as a common carrier licensee, complies with our foreign ownership policies. We find that Verizon Wireless is qualified under the foreign ownership provisions of Section 310(b) of the Communications Act to hold, in its own right, its current common carrier licenses and the common carrier licenses it is being assigned in the applications being approved today.

27 FCC Red. at 10766-67 ¶ 177.

The forgoing statement is dicta, however, entirely unnecessary to the Commission’s resolution of the issues that were before it and resolved by the Memorandum Order. It is certainly apparent that the Memorandum Order had the effect of putting to rest any uncertainty about the legality of Verizon’s existing licenses; but this did not mean that the legality of the licenses was an issue in the Spectrum Assignment proceeding. See US West v. FCC, 778 F.2d 23, 27-28 (D.C. Cir. 1985) (dismissing appeal to FCC order where challenged language was dicta).

In short, we dismiss NTCH’s revocation and retroactive forbearance claims because the Commission’s refusal to initiate show cause revocation proceedings is unreviewable under Chaney. Furthermore, any licenses held by Verizon prior to the Spectrum Assignment were not the subject of the proceedings below, and so NTCH’s challenge is not properly before us.

C. NTCH’s Prospective Forbearance Challenge is Moot

NTCH asserts that the Commission’s grant of section 310(b)(3) forbearance to Verizon must be overturned because the agency failed to follow its own procedures. We dismiss this claim because it has been mooted by intervening events.

Federal courts are authorized to adjudicate only “actual, ongoing controversies” that are within the jurisdiction of the court. Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). A live controversy must exist at all stages of judicial review, not only when a complaint is filed. See Friends of the Earth v. Laidlaw Env. Servs., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “If events outrun the controversy such that the court can grant no meaningful relief, the [claim] must be dismissed as moot.” McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 55 (D.C. Cir. 2001). That is exactly what has happened with NTCH’s claim that the Commission’s grant of section 310(b)(3) forbearance violated its own procedural requirements.

As discussed above, section 310(b)(3) bars entities in which aliens have more than a 20% indirect, non-controlling interest from owning spectrum licenses. At the time of the Memorandum Order, Vodafone had a 45% ownership interest in Verizon, and so Verizon’s authority to hold radio licenses was governed by section 310(b)(3). In 2014, however, Verizon bought out Vo-dafone’s interest. Verizon is now wholly owned by a domestic company, and so there is no longer any alien ownership issue.

As a result, the court “can grant no meaningful relief’ to NTCH. Id. at 55. Even if we were to find that the Commission violated its own procedures and wrongly granted Verizon forbearance, there would be no consequences whatsoever. On remand, the agency could not reevaluate the question of forbearance because section 310 no longer applies to Verizon.

NTCH asserts that the “voluntary cessation” exception to mootness applies, but that exception has no play in this case.

As a general rule, a defendant’s “voluntary cessation of allegedly illegal conduct does not deprive [a court] of power to hear and determine the case.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 [99 S.Ct. 1379, 59 L.Ed.2d 642] (1979). Voluntary cessation will only moot a case if “there is no reasonable expectation ... that the alleged violation will recur” and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id.

EdwaRds, Elliott, & Levy, Federal Standards of Review—Review op District Court Decisions and Agency Actions 135 (2d ed. 2013).

The act of “voluntary cessation” to which NTCH points is Verizon’s purchase of Vodafone’s ownership interest, but NTCH is challenging the FCC’s grant of forbearance to Verizon. The FCC did not “voluntarily” terminate that grant. Rather, Verizon’s -intervening action nullified the FCC’s forbearance determination. This situation does not give rise to the voluntary cessation exception to mootness. See Am. Bar Ass’n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (no voluntary cessation where intervening legislation nullified challenged policy statement, because the agency had not acted voluntarily). .

D. The Commission’s Approval of the Spectrum Assignment Was Not Arbitrary and Capricious

1. NTCH has standing to challenge the Spectrum Assignment.

As an initial matter, Verizon argues that NTCH does not have standing to challenge the FCC’s approval of the Spectrum Assignment. We disagree. “To satisfy the requirements of Article III standing in a case challenging government action, [NTCH] must allege an injury in fact that is fairly traceable to the challenged government action, and it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004) (internal quotes and citation removed). NTCH has satisfied these requirements.

NTCH contends that the Spectrum Assignment will foster an anticompetitive telecommunications environment because it grants Verizon a vast swath of spectrum to the potential detriment of smaller competitors. NTCH asserts, for example, that under the Spectrum Assignment, it will-be more difficult for it to negotiate reasonable roaming arrangements because Verizon holds a disproportionate share of market power. These plausible allegations suffice to show injury to achieve standing under Article III. Indeed, the FCC acknowledged these potential dangers to competition in its Memorandum Order. 27 FCC Red. at 10730 ¶ 84,10742-43 ¶ 120.

NTCH’s asserted injury is also causally related to the Commission’s approval of the Spectrum Assignment because that decision granted Verizon a significant amount of spectrum in a large number of markets. Finally,: redressability is satisfied because a decision reversing the Commission’s approval of the Spectrum Assignment would likely lead to Verizon holding fewer spectrum licenses, or the FCC imposing new conditions on the Spectrum Assignment. A party need not demonstrate with certainty that its injury will be redressed, and standing is not defeated by the possibility that an agency might ultimately wield its discretion in a way that does not fix a party’s alleged injury. FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998).

Because NTCH has articulated an injury that is traceable to the Commission’s order and might be redressed by a favorable decision from the court, it has met the requirements of Article III so as to achieve standing to challenge the Spectrum Assignment.

2. The FCC’s approval of the Spectrum Assignment survives arbitrary and capricious review.

NTCH’s argument that the Spectrum Assignment must be reversed because it is arbitrary and capricious lacks merit. The agency acted reasonably, fairly considered the evidence and arguments before it, and adequately explained its rationale. We therefore reject NTCH’s challenge.

Under section 310(d) of the Act, the Commission may approve assignments of licenses upon finding that “the public interest, convenience, and necessity will be served thereby.” 47 U.S.C. § 310(d). While the Act itself does not define how the FCC should decide what is in the “public interest,” the Supreme Court has stated “that Congress had granted the Commission broad discretion in determining” this, so long as the agency’s determination “is based on consideration of permissible factors and is otherwise reasonable.” FCC v. WNCN Listeners Guild, 450 U.S. 582, 594, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981) (internal quotation marks and citation omitted). To that end, we will uphold the Commission’s application of the Act’s “public interest” standard unless we find it to be arbitrary and capricious. Transp. Intelligence, Inc. v. FCC, 336 F.3d 1058, 1064 (D.C. Cir. 2003). In making this assessment, we “evaluate the agency’s rationale at the time of decision.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990).

The Memorandum Order reflects a reasonable consideration of the evidence, arguments, and issues presented to the Commission. Following its investigation of the issues, the Commission found that approving the Spectrum Assignment would benefit the public interest in a number of ways. Most importantly, the Commission determined that the Spectrum Assignment would enable the development of a large amount of fallow spectrum.

SpectrumCo held the lion’s share of the licenses that were transferred to Verizon. SpectrumCo was formed in 2006, and in 2007 it purchased a significant number of spectrum licenses. The company never entered the telecommunications business, however, and so its holdings had not been utilized in any way. The Commission determined that the Spectrum Assignment would provide “significant public interest benefits” by allowing the development of this neglected resource. It also found that the Spectrum Assignment would result in more efficient use of existing spectrum holdings. This, in turn, would benefit both carriers and consumers, as it would enable the companies involved to expand and develop their networks and serve their customers’ growing demands.

As part of its analysis, however, the FCC identified three potential risks. First, the agency was concerned that the concentration of spectrum with Verizon would harm competition. Second, the FCC was also concerned that Verizon might warehouse the spectrum, leaving it unused and foreclosing competitor access. Finally, the FCC determined that the transfer might hurt smaller carriers, like NTCH, who are dependent upon other companies to provide roaming capability. The Commission observed that granting Verizon more spectrum would further empower “a nationwide provider that has little incentive” to negotiate roaming arrangements with “competitors with less than national footprints.” 27 FCC Red. at 10730 ¶ 84.

To mitigate these potential harms, the Commission imposed three conditions to its approval of the Spectrum Assignment. To address the concern over spectrum concentration, the FCC required Verizon to divest a significant number of licenses to T-Mobile. In addition to limiting Verizon’s overall and location-specific spectrum holdings, the Commission determined that this would enable T-Mobile to develop its own technology and infrastructure, enabling it to expand the coverage of its network. Second, the Commission remedied the prospect of Verizon hoarding the spectrum by requiring it to follow a timeline for the spectrum’s rapid development and use.

Finally, the FCC addressed the issue of roaming in two ways. It required Verizon to agree to abide by the agency’s then-new data roaming rule requiring providers to offer roaming arrangements on commercially reasonable terms. At the time of the Memorandum Order, Verizon was challenging the legality of the data roaming rule before this court. See Cellco P’ship v. FCC, 700 F.3d 534 (D.C. Cir. 2012) (upholding the rule). Verizon agreed to abide by it, however, even if it were overturned on appeal. In addition, the FCC found that the transfer of spectrum to T-Mobile would eventually allow T-Mobile to be a roaming alternative to Verizon.

After examining the evidence before it and imposing these conditions,- the Commission reasonably determined that the Spectrum Assignment would, overall, serve the public interest.

In challenging the Commission’s approval of the Spectrum Assignment, NTCH does not address the bulk of the Commission’s analysis, instead focusing solely on the Commission’s finding that the Spectrum Assignment could further harm the ability of smaller carriers to obtain data roaming agreements from Verizon. In claiming that the FCC did nothing to ameliorate this problem, NTCH makes two primary arguments.

First, NTCH claims that the data roaming rule had already failed to compel Verizon to offer reasonable roaming rates, and so it was irrational for the Commission to think that requiring Verizon to abide by it would fix the problem. This is an unfair criticism of the rule, however, which had only been in effect for eleven months when the Commission approved the Spectrum Assignment.- See 76 Fed. Reg. 63561-01 (Oct. 13, 2011). We “evaluate the agency’s rationale at the time of decision.” Pension Benefit Guar. Corp., 496 U.S. at 654, 110 S.Ct. 2668. At the time of decision, it was too early to declare the rule ineffective, especially considering that it was- unclear whether the rule would survive legal challenge. The terms of the rule are facially reasonable and the underlying rationale for the rule makes sense.

NTCH next argues that Verizon’s divestment of spectrum to T-Mobile could do nothing to resolve the problem because companies that are able to roam on-Verizon’s network are not able to roam on T-Mobile’s network. The two are incompatible. Specifically, Tr-Mobile uses the “Global System for Mobile Communications” (“GSM”) protocol, whereas Verizon (and NTCH) use the “Code Division Multiple Access” (“CDMA”) protocol. Therefore, according to NTCH, T-Mobile could not serve as a roaming alternative for those carriers who had been having difficulty-negotiating agreements with Verizon.

This argument appears to raise a legitimate concern, but the issue is not properly before us. Section 405(a) of the Act states that the FCC must be “afforded [an] opportunity to pass” on all arguments made to a court. 47 U.S.C. § 405(a). NTCH admits that it did not explicitly raise with the FCC its argument about the incompatibility of CDMA and GSM carriers. It is true that our precedent construing section 405(a) does not require an argument to be brought up with specificity, but only reasonably “flagged” for the agency’s consideration. Time Warner Entm’t. Co. v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1998). The question here is “whether a reasonable Commission necessarily would have seen the question raised before us as part of the case presented to it.” Id. We think not.

The closest that NTCH came to making the argument was in its petition to deny the Spectrum Assignment. There, it referred to Verizon’s dominance among CDMA operators, discussed the difficulties faced by smaller CDMA carriers who must roam with Verizon, and asserted that granting Verizon more spectrum would worsen this situation. But these points were only vague allusions to NTCH’s current argument and, therefore, they do not serve to satisfy the requirements of section 405(a). The issue that NTCH now raises was never reasonably flagged for the FCC because no reference was made to T-Mobile in NTCH’s petition to deny the Spectrum Assignment.

This case does not involve a situation in which the issue could not have been raised, see Action for Children’s Television v. FCC, 906 F.2d 752, 755 (D.C. Cir. 1990); nor a situation in which it would have been futile to raise the issue, see All Am. Cables & Radio, Inc. v. FCC, 736 F.2d 752, 761 (D.C. Cir. 1984); nor a situation in which the challenged action is “patently in excess of [the agency’s] authority,” Washington Ass’n for Television and Children v. FCC, 712 F.2d 677, 682 (D.C. Cir. 1983). Therefore, because NTCH did not raise the issue in its petition to deny or in its petition for reconsideration, section 405(a) applies.

In summary, the Commission’s approval of the Spectrum Assignment reflects a reasonable consideration of relevant factors. NTCH believes that the FCC’s decision was not in the public interest, and that the remedial actions it took to mitigate the threatened public interest harms were inadequate. The Commission, in its expert judgment, disagrees. It is well understood that “[a]gency discretion is often at its ‘zenith’ when the challenged action relates to the fashioning of remedies.” Towns of Concord, Norwood & Wellesley, Mass. v. FERC, 955 F.2d 67, 76 (D.C. Cir. 1992) (quoting Niagara Mohawk Power Corp. v. Fed. Power Comm’n, 379 F.2d 153, 159 (D.C. Cir. 1967)). For the reasons enumerated above, we cannot say that the Commission’s findings and fashioned remedies are arbitrary and capricious. Accordingly, we deny NTCH’s challenge.

III. Conclusion

For the reasons stated above, we reject the claims raised by NTCH in the appeal.

So ordered.


author: KAREN LECRAFT HENDERSON, Circuit Judge:

text:
    UNITED STATES POSTAL SERVICE, Petitioner v. POSTAL REGULATORY COMMISSION, Respondent Alliance of Nonprofit Mailers, et al., Intervenors
    No. 15-1297
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 20, 2016
    Decided November 15, 2016
    David C. Belt, Attorney, United States Postal Service, argued the cause and filed briefs for the petitioner,. Stephan J. Board-man, Chief Counsel, United States Postal Service, entered an appearance.
    Daniel Tenriy, Attorney, United States Department of Justice, argued the cause for the respondent. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Attorney, David A. Trissell, General Counsel, Postal Regulatory Commission, Christopher J. Laver and Anne J. Siarnacki, Deputy General Counsels and Elisabeth S. Shellan, Attorney were with him on brief.
    David M. Levy, Matthew D. Field, Ian D. Volner, Washington, DC, Jeremiah L. Morgan and William J. Olson, Vienna, VA, were on brief for the mailer intervenors in support of the Postal Regulatory Commission.
    Before: HENDERSON and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   KAREN LECRAFT HENDERSON, Circuit Judge:

The Postal Accountability and Enhancement Act of 2006 authorizes the Postal Regulatory Commission (Commission) to regulate the rates of the United States Postal Service’s (Postal Service) market-dominant products. See 39 U.S.C. §§ 3621-29. Although annual price increases for these products are generally capped at the rate of inflation, the Commission is permitted to approve raising rates above this mark “on an expedited basis due to either extraordinary or exceptional circumstances.” Id. § 3622(d)(1)(E). In Order No. 1926, the Commission—recognizing that the Great Recession of 2008 was just such an exigent circumstance—allowed for a rate increase but also sought to calculate the extent to which decreased mail volume was “due to” the economic downturn in order to determine how long that rate increase should remain in effect. As part of its inquiry, the Commission created a “new normal” test to determine when the “extraordinary or exceptional circumstances” no longer supported a rate increase. In an earlier case, the Postal Service had petitioned this Court for review of that “new normal” test and we upheld the Commission’s approach as “well reasoned and grounded in the evidence before the Commission ... [and] comfortably pass[ing] deferential APA review.” All. of Nonprofit Mailers v. Postal Regulatory Comm’n, 790 F.3d 186, 196 (D.C. Cir. 2015). The Postal Service sought reconsideration, claiming that the Commission “altered its original decision” .by “changing the meaning and role of the ‘ability to adjust’ element of its [‘new normal’] test,” Pet’r Reply Br. 7, and, in Order No. 2623, the Commission denied that request. Because the Commission’s denial of reconsideration is unre-viewable, we dismiss the Postal Service’s petition for lack of jurisdiction. Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 n.2 (D.C. Cir. 2000).

I.

In enacting the Postal Accountability and Enhancement Act of 2006 (the Act), Pub. L. No. 109-435, 120 Stat. 3198, the Congress directed the Commission to establish a modern system for regulating the rates and classes of the Postal Service’s market-dominant products. See 39 U.S.C. §§ 3621-29. Although the Act affords the Commission some flexibility in carrying out its charge, see id. § 3622 (authorizing Commission to create “modern system for regulating rates” but also mandating that Commission account for certain “factors,” “objectives” and “requirements” in so doing), the Congress set forth a price cap for market-dominant products, generally limiting each price increase to an amount equal to the annual change in the Consumer Price Index for All Urban Consumers (CPI-U). See id. § 3622(d)(1)(A). The Act also provides “procedures whereby rates may be adjusted on an expedited basis due to either extraordinary or exceptional circumstances” without regard to the CPI-U limitation. Id. § 3622(d)(1)(E). Specifically, for this statutory “safety valve” to take effect, the Commission must And

after notice and opportunity for a public hearing and comment, and within 90 days after any request by the Postal Service, that such adjustment is reasonable and equitable and necessary to enable the Postal Service, under best practices of honest, efficient, and economical management, to maintain and continue the development of postal services of the kind and quality adapted to the needs of the United States.

Id.

The Postal Service first requested an above-CPI-U rate increase in July 2010 as it sought to make up for substantial losses resulting from the “dramatic, rapid and unprecedented decline in mail volume” caused by the Great Recession. See U.S. Postal Serv. v. Postal Regulatory Comm’n, 640 F.3d 1263, 1265 (D.C. Cir. 2011) (internal quotation marks omitted). Although the Commission agreed that “the recent recession, and the decline in mail volume experienced during the recession” qualified as an “extraordinary or exceptional circumstance,” it nonetheless denied the Postal Service’s request for an above-CPI-U rate increase because it found that the Postal Service had failed to quantify properly its losses “due to” the recession with particularity. See Postal Regulatory Commission, Order Denying Request for Exigent Rate Adjustments, Order No. 547, Docket No. R2010-4, at 3-4 (Sept. 30, 2010). This Court disagreed with the latter portion of the Commission’s analysis, finding that, although “the plain meaning of ‘due to’ mandates a causal relationship between the amount of a requested adjustment and the exigent circumstances’ impact on the Postal Service,” the Act is ambiguous as to “how close the relationship must be.” 640 F.3d at 1267-68. We remanded the case to the Commission to fill that statutory. gap, which it did in Order No. 864. See Postal Regulatory Commission, Order Resolving Issues on Remand, Order No. 864, Dkt. No. R2010-4R, at 25 (Sept. 20, 2011) (noting that “exigent rate adjustments are permitted only if, and to the extent that, they compensate for the net adverse financial impact of the exigent circumstances”).

In September 2013, the Postal Service renewed its request for an above-CPI-U rate increase, seeking a 4.3% price hike for an indefinite period of time. In Order No. 1926, the Commission granted the Postal Service’s request in part. Order No. 1926, Docket No. R2013-11. The Commission reaffirmed that the Great Recession constituted an exigent circumstance warranting a rate increase but it still disagreed with the Postal Service on the extent to which mail volume losses had been caused by the economic downturn. See id. at 44. Thus, the Commission- allowed the 4.3% above-CPI-U rate increase to remain in effect for only so long as necessary for the Postal Service to recover $2.8 billion. Id. at 181.

The rationale underlying the Commission’s decision in Order No. 1926 was twofold. First, the Commission determined that mail volume losses could not be considered “due to” the economic downturn once a “new normal” in operational levels was achieved. See id. at 83-94. The related “new normal” test, in turn, examined four factors:

(1) the disruption to a sufficient number of relevant macroeconomic' indicators demonstrate[d] a return to near historic positive trends; (2) application of the macroeconomic variables accurately projected] change, and the rate of change on Postal Service mail volumes is positive; (3) the Postal Service regained] its ability to predict or project mail volumes following an extraordinary or exceptional event; and (4) the Postal Service demonstrate[d] an ability to adjust operations to the lower volumes.

Id. at 86 (emphasis added). Second, the Commission implemented a “count once” rule in calculating mail volume losses, meaning that the Commission counted decreased mail volume only in the first year it occurred—in “subsequent years, the Postal Service [was] aware of that loss” and thus able to adjust to account for the same. Id. at 96.

Entering the fray once more, this Court reviewed the Postal Service’s challenge to -Order No. 1926 in Alliance of Nonprofit Mailers v. Postal Regulatory Commission, 790 F.3d at 189. We held that the Commission’s “new normal” test was “well reasoned and grounded in the evidence before the Commission ... comfortably passing] deferential APA review.” Id. at 196. “In other words, the Commission permissibly reasoned that just because some of the effects of exigent circumstances may continue for the foreseeable future, that does not mean that those circumstances remain ‘extraordinary’ or ‘exceptional’ for just as long.” Id. at 194. We found the logic of the Commission’s “count once” rule, however, difficult to reconcile with its explanation of the “new normal” test. See id. at 195-96. We therefore vacated the portion of Order No. 1926 setting out the “count once” rule. Id. Finally, the Court in a footnote mentioned an additional argument, reciting that “[a]t oral argument, counsel for the Postal Service argued that the ‘new normal’ analysis in the Order is also inconsistent with the Commission’s analysis of whether the rate increase was ‘necessary’ ” within the meaning of 39 U.S.C. § 3622(d)(1)(E). Id. at 196 n.3. Because the argument had not been briefed, we concluded that it was not properly before the Court, at the same time noting that the Commission was “free to consider that argument on remand.” Id.

On remand from Order No. 1926, the Commission removed the vacated “count once” rule, replacing it with a cumulative counting system for determining lost mail volume. Order No. 2623, Docket No. R2013-11R, at 28-46. Athough the Postal Service had encouraged the Commission to “accept the court’s invitation” to reconsider the “new normal” test and reconcile a perceived inconsistency between Parts IV and V of Order No. 1926, the Commission rejected the invitation, declaring that it “decline[d] to revise the ‘new normal’ analysis of Order No. 1926....” Order No. 2623, Docket No. R2013-11R, at 23. The Commission elaborated that, notwithstanding its “discretion to reopen its decisions, an exercise of that discretion is not warranted here given the interest in finality and the lack of any newly available evidence that would justify raising the issue at this late stage.” Id. at 24.

The Postal Service again petitioned this Court for review..

II.

Under ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 280, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), an agency’s decision to deny reconsideration of an earlier order is unreviewable, except insofar as the request for reconsideration is based upon new evidence or changed circumstances. Entravision Holdings, LLC, 202 F.3d at 313; accord Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997) (“[A]n agency order stating only that it is denying reconsideration is conclusive, so long as the agency has not altered its original decision.”). The new evidence or changed circumstances exceptions exist because otherwise “the petitioner will have been deprived of all opportunity for judicial consideration ... of facts which, through no fault of his own, the original proceeding did not contain.” Bhd. of Locomotive Engineers, 482 U.S. at 279, 107 S.Ct. 2360. Nevertheless, even if new evidence or changed circumstances exist, “overturning the refusal to reopen requires a showing of the clearest abuse of discretion.” Id. at 278, 107 S.Ct. 2360 (internal quotation marks omitted).

The Postal Service distinguishes Brotherhood of Locomotive Engineers, arguing that the Commission changed both the meaning and the role of the “ability to adjust” inquiry—the fourth element of Order No. 1926’s “new normal” test—in Order No. 2623. We disagree. Order No. 2623 plainly states that the “Commission declines to revisit the ‘new normal’ analysis in Order No. 1926 that was affirmed by the [Alliance of Nonprofit Mailers] Court.” Order No. 2623, Docket No. R2013-11R, at 23. Order No. 2623 contains no departure from Order No. 1926; rather, it explains its reasoning in denying reconsideration. In fact, Order No. 2623 adopts wholesale the earlier order’s findings and conclusion under the “new normal” test. JA 579-84. Simply discussing the merits of an earlier agency decision does not open a reconsideration denial to review. Bhd. of Locomotive Engineers, 482 U.S. at 280-81, 107 S.Ct. 2360 (“It would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought.”). As our Court has recognized:

That the agency discusses the merits at length when it denies a request for reconsideration does not necessarily mean the agency has reopened the proceedings— It would make no sense whatsoever to hold that when an agency offers an explanation for “affirming a prior denial,” .it has in effect reopened the proceedings and rendered a new, judicially-reviewable decision.

Fort Sumter Tours, Inc. v. Babbitt, 202 F.3d 349, 356 (D.C. Cir. 2000) (internal quotation marks omitted). According to the Postal Service, however, we should read between the lines of the Commission’s analysis, inferring substantive change behind the fagade of a denial of reconsideration. Pet’r Br. 29-34. Although we note Order No. 2623’s less than seamless language, the Commission’s ultimate disposition is nonetheless clear: it declined to reconsider the “new normal” test as set forth in Order No. 1926. See Bhd. of Locomotive Engineers, 482 U.S. at 280-81, 107 S.Ct. 2360 (“[I]t is the Commission’s formal action, rather than its discussion, that is dispositive.”).

The closest the Postal Service came to mounting a “new evidence” challenge appears on page 45 of its opening brief, where it cited the Commission’s Financial Analysis Report for 2013 to explain why it would not be too late for the Commission to “revisit the inconsistencies in [its] ‘ability to adjust’ findings.” Pet’r Br. 45. The Postal Service did not, however, finish that thought by asking us to find that the Commission’s refusal to reopen Order No. 1926 was an abuse of discretion—whether on the new evidence ground or otherwise. In fact, on pages 3-5 of its reply brief, the Postal Service rejected the notion that it was challenging the Commission’s “deni[al]” of its “request for reconsideration of’ Order No. 1926—or “the four-part test” introduced in that Order—or even the Order’s “findings” based on that test. Pet’r Reply Br. 3-5. It assured us that it did not rely on Sendra Corp. and Locomotive Engineers, precisely because both cases dealt with refusals to reconsider. Id. And it distinguished the challenges in those cases from its claim that Order No. 2623 “altered” the Commission’s earlier decision. Id. The alteration, the brief drove home, “is what the Postal Service now challenges.” Id. at 5. We conclude, then, that the Postal Service did not rely on the “new evidence” exception and that challenge is therefore forfeited. Nat’l Oilseed Processors Ass’n v. OSHA, 769 F.3d 1173, 1182 (D.C. Cir. 2014).

For the foregoing reasons, the Postal Service’s petition for review is dismissed for lack of jurisdiction.

So ordered.

      . Postal Regulatory Commission, Order Granting Exigent Price Increase, Order No. 1926, Docket No. R2013-11 (December 24, 2013) (Order No. 1926).

      . Postal Regulatory Commission, Order Resolving Issues on Remand, Order No. 2623, Docket No. R2013-11R (July 29, 2015) (Order No. 2623).

      . Whether a rate increase is “necessary” is the final inquiry the Commission undertakes before approving an above-CPI-U rate increase. See 39 U.S.C. § 3622(d)(1)(E); All. of Nonprofit Mailers, 790 F.3d at 194 (“The 'reasonable and equitable and necessary' test.,., applies only after exigent causation for a loss has been established and turns on the Postal Service’s current need to get back on its feet in the wake of the now-defined exigency.”). Focusing on recovery rather than causation, the "necessary” inquiry asks whether the Postal Service requires increased rates in order "to maintain and continue the development of postal services of the kind and quality adapted to the needs of the United States,” 39 U.S.C. § 3662(d)(1)(E), in light of the exigent circumstance's effect on the marketplace. All. of Nonprofit Mailers, 790 F.3d at 194.

      . See United States Postal Service, Initial Comments of the United States Postal Service in Response to Commission Order No. 2540, Docket No. R2013-11R, at 7 (June 26, 2015).

      . Supra at 511-12.

      . Because we do not agree with the Postal Service's claim that Order No. 2623 dilutes the "ability to adjust” prong of the "new normal” test to such an extent that it reads that prong out, see Pet’r Reply Br. 16-19, we offer no opinion on the validity of that reading of the "new normal” test.

      .Counsel for the Postal Service conceded at oral argument that Alliance of Nonprofit Mailers’s footnote discussed earlier, supra at 511-12, did not order the Commission to reconsider its "new normal” test. Oral Arg. Tr. at 4-5.

      . Had the Postal Service's brief expressly articulated that reconsideration of the “new normal” test was mandated by new evidence in the form of the Commission's Financial Analysis Report for 2013 (Financial Report), we nonetheless would have denied (but not dismissed) the petition, As noted earlier, Brotherhood of Locomotive Engineers instructs that "overturning the refusal to reopen requires a showing of the clearest abuse of discretion,” Bhd. of Locomotive Engineers, 482 U.S. at 278-79, 107 S.Ct. 2360 (internal quotation marks omitted), and the Postal Service’s claim would fall far short of that standard. Although the Financial Report appeared three months after Order No. 1926 issued, it contained no new evidence that materially differed from the evidence used by the Commission in issuing its. then-recent Order No. 1926.