text:
    UNITED STATES of America, Plaintiff-Appellee v. Derek Edward BENEDICT, Defendant-Appellant United States of America, Plaintiff-Appellee v. Lyle Robert Carpenter, Defendant-Appellant
    No. 14-3412, No. 15-1014
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 29, 2017
    Filed: May 1, 2017
    Rehearing and Rehearing En Banc Denied June 8, 2017

      Counsel who represented the appellant Benedict was Tom Dunnwald of Minneapolis. Counsel who represented appellant Carpenter was Mark D. Nyvold of Fridley, MN.
    Counsel who represented the appellee was James Lackner, AUSA, of Saint Paul, MN.
    Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
   MURPHY, Circuit Judge.

Appellants Derek Benedict and Lyle Carpenter were convicted by a jury of conspiracy and burglarizing various drug stores in Minnesota and Iowa where they stole pharmaceutical products and cash from safes, registers, and ATMs. They now appeal their convictions and their sentences imposed by the district court. We affirm.

I.

A.

From 2009 to 2012, Derek Benedict and Lyle Carpenter were involved in a series of commercial burglaries, conspiring at various times with six other people: Jason Mussehl, Julia Julien, Tim Kielb, Cher Mayotte, Jennifer Stanley, and Jonathan Quast. Jason Mussehl was involved in burglaries for over 25 years, which were his primary source of income. He knew Benedict from elementary school and met Carpenter in 2009. Mussehl’s half brother was Jonathan Quast, and Mussehl dated both Julia Julien and Jennifer Stanley. Additional members of the conspiracy were Tim Kielb and his girlfriend, Cher May-otte.

The group’s burglaries focused on the theft of money and pharmaceuticals from businesses they investigated as potential targets, where they would first look for motion sensors and locate any alarm systems. They would then return at night to break into a targeted building, often cutting a hole in the roof near an alarm which they proceeded to disarm. At other times they entered a building by knocking down an exterior wall or by prying open the front door and disabling any alarm before a signal could be sent. Once an alarm was disabled, the burglars would leave the location for a half hour or more to ensure that they had not been detected. One of the group was tasked with waiting outside in the vicinity of a targeted business to watch for any law enforcement personnel. After being satisfied that they had not been detected, the burglars would reenter the store, drill open safes and ATMs, and carry away their contents. The burglars working inside a store would communicate by two way radio with their confederate remaining outside. Carpenter specialized in drilling into safes and ATM machines, a task at which he excelled. Benedict served as driver and kept watch outside for any approaching police.

On October 4, 2009, Carpenter, Mussehl, Tim Kielb and Jennifer Stanley burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house of a friend. After breaking into the machine and obtaining its contents, the burglars disposed of the machine in the Mississippi River. Later that month, Benedict, Carpenter, Mussehl, and Stanley burglarized a Walgreens store in Robbinsdale, Minnesota. Then the same four burglars broke into a Golden Valley Walgreens in November and a South Minneapolis Wal-greens in December.

Carpenter went to prison after he was convicted of a different crime, but Mussehl continued to burglarize Walgreens stores. Benedict wanted to participate in these burglaries, but Mussehl turned him down. When Carpenter was released from prison in 2012, he again joined in burglaries with Benedict and Mussehl. On July 15, 2012, Benedict and Carpenter, together with Mussehl, Kielb, Cher Mayotte, and Julia Julien, burglarized a pharmacy in Bloom-ington, Minnesota (Bloomington Drug). The burglars took both money and pharmaceuticals. Carpenter, Mussehl, Kielb, and Mayotte next committed a burglary at a gas station in Prior Lake, Minnesota on August 19, 2012. They removed an ATM belonging to South Metro Federal Credit Union and transported it in Mussehl’s truck to a friend’s garage, where they broke into it. Four days later, Carpenter, Mussehl, Kielb and Quast burglarized a Walgreens store in Circle Pines, Minnesota.

On September 9, 2012, Benedict, Carpenter, Mussehl and Julien burglarized a Walgreens store in Des Moines, Iowa. Benedict again kept watch outside the store, and Carpenter and Mussehl entered the building. Later that day, Benedict bought an Infiniti using his share of the proceeds from the burglary.

By early 2013, coconspirator Tim Kielb had been arrested and began to cooperate with law enforcement agents. He used a recording device to capture several discussions with Benedict and Carpenter about burglaries. In February of that year, police found a glove at the site of an Aldi Foods store in Blaine, Minnesota, which had been burglarized by entering through the roof. A DNA swab of the Aldi glove linked to a predominate profile that matched to Lyle Carpenter. On June 9, 2013, Carpenter was arrested while burglarizing a Super America gas station. He was apprehended along with a crowbar, sledgehammer, mask and two way radio.

B.

Benedict and Carpenter were jointly charged with conspiracy to commit bank burglary, bank larceny, and interstate transportation of stolen property, conspiracy to steal controlled substances, bank larceny, burglary involving controlled substances, and interstate transportation of stolen property. The ten count indictment also charged Carpenter on additional substantive charges of bank burglary, bank larceny, credit union burglary, and burglary involving controlled substances. Benedict and Carpenter were the only two defendants to proceed to trial; each of the other coconspirators pled guilty. In addition to testimony from numerous law enforcement officials and others, the government called coconspirators Mussehl, Julien, Kielb, Stanley, and Mayotte to testify and describe their own roles in the conspiracy, as well those of Benedict and Carpenter. Coconspirator Jonathan Quasi was additionally called to testify about the burglary he committed with Carpenter in Circle Pines, Minnesota.

Benedict moved to sever, but severance was denied. He also sought to have an expert witness testify to the subject of the untrustworthiness of coconspirator testimony, but his request was untimely and rejected by the district court. Both men were convicted of all charged crimes. At sentencing the district court concluded that both Benedict and Carpenter were career offenders. They were sentenced accordingly: Carpenter to 210 months with $272,561 ordered in restitution, and Benedict to 150 months with $199,007 ordered in restitution. The two defendants now appeal their convictions and sentences.

II.

Benedict makes three claims relevant only to his case: that he was improperly denied a severance, that he should have been permitted to present expert testimony, and that the evidence was insufficient to convict him of the charged offenses.

Benedict moved for a severance. Federal law favors joint trial for individuals charged in the same indictment, and there is a “strong” presumption against severing properly joined cases. United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996). A denial of a motion to sever is only reversed when a defendant has shown an abuse of discretion resulting in severe prejudice. United States v. Young, 701 F.3d 1235, 1238 (8th Cir. 2012). To prevail on such a claim a defendant must show prejudice to a specific trial right or that a joint trial would not enable the jury to make “a reliable judgment about guilt or innocence.” United States v. Dierling, 131 F.3d 722, 734 (8th Cir. 1997) (internal quotation marks omitted). Varying strength in the evidence against each defendant does not require a severance. Id.

Benedict and Carpenter were indicted together for their participation in the same conspiracy, and their cases were properly joined. See Delpit, 94 F.3d at 1143. Benedict argues however that some of the evidence focused solely on Carpenter, including a video of Carpenter being arrested while burglarizing a Super America store and evidence about a glove matching Carpenter’s DNA profile which had been found outside a burglarized Aldi Foods store. This evidence is not sufficient to show that the jury could not have made a reliable judgment about Benedict’s guilt or innocence because of the district court’s limiting jury instructions that each defendant “is entitled to have his case decided solely on the evidence which applies to him,” and that the jury “must give separate consideration to the evidence about each individual Defendant.” This trial was not the “unusual case” in which the efficiency of joinder would have been outweighed by difficulty for the jury to analyze separately the evidence against each individual defendant. See United States v. Martin, 777 F.3d 984, 995 (8th Cir. 2015).

Benedict next claims that the district court erred by rejecting his request to permit expert testimony from Dr. Jeffrey Neuschatz. While Benedict contends this amounted to the denial of his right to defend himself and therefore is subject to de novo review, a court’s exclusion of expert testimony is appropriately reviewed for abuse of discretion. United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004). The district court’s decision was based on Benedict’s failure to make disclosures required under Federal Rule of Criminal Procedure 16(b)(1)(C). That rule requires a defendant, upon the government’s request, to provide a summary of proposed testimony describing “the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed. R. Crim. P. 16(b)(1)(C). Five days before trial was to begin, Benedict first indicated his intention to call Dr. Neuschatz. The district court permitted the disclosures to be made at that time, but they were not. Then on December 11, the court prohibited its introduction under Rule 16(d)(2)(C), and Benedict offers no argument on appeal about the disclosure issue. We conclude the district court did not abuse its discretion by excluding evidence for that reason. See United States v. Holmes, 670 F.3d 586, 599 (4th Cir. 2012) (concluding district court did not abuse its discretion in excluding expert testimony after required Rule 16(b)(1)(C) disclosures were not made).

The district court also concluded that the subject of the proffered expert testimony was improper. Dr. Neuschatz, the proffered expert, had authored an article entitled The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. 137 (2008). His article warned that mock jurors provide “undue weight to confession evidence when rendering guilt decisions.” Id. at 138. In his affidavit filed in the district court, Dr. Neuschatz claimed that “[wjithout expert assistance, jurors’ abilities to assess the veracity of a witness’s testimony are extremely limited.” Benedict argues on appeal that the testimony would have been proper and necessary to demonstrate the unconscious impact of live testimony and “the substantial bias of testimonial evidence from any source on a listener.” It is however “plain error to admit testimony that is a thinly veiled comment on a witness’ credibility.” Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 884 (8th Cir. 1998). Moreover, “[wjeighing evidence and determining credibility are tasks exclusive to the jury.” Id. at 883. The district court did not abuse its discretion by declining to admit Dr. Neuschatz’s testimony.

Benedict also challenges the sufficiency of the evidence. He argues that there was not corroborated evidence to show he acted with a purpose in common with the other members of the conspiracy. We review such a challenge de novo, examining the evidence in the light most favorable to the government, resolving eviden-tiary conflicts in the government’s favor, and granting all reasonable inferences which support the verdict. United States v. Casteel, 717 F.3d 635, 644 (8th Cir. 2013). Benedict’s coconspirators testified that he had participated in a conspiracy to commit burglary and the other charged offenses. The testimony of coconspirators alone is sufficient to support a conviction for conspiracy unless it is “incredible or insubstantial on its face.” United States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008) (internal quotation marks omitted). The eoeonspirator testimony introduced in this case was credible and supported by other evidence. Contrary to Benedict’s complaint that there was not sufficient corroborating evidence, much of the cocon-spirator testimony was corroborated. Jason Mussehl for example testified that Benedict told him that he purchased an Infiniti with the proceeds of their burglary of a Walgreens store in Des Moines. The government then introduced the title to the particular car.

Benedict also relies upon Mussehl’s testimony that for a period of time Benedict unsuccessfully sought to participate in burglaries with Mussehl. Benedict claims this shows he was not part of a single conspiracy. Mussel’s full testimony, however, shows that Benedict engaged in numerous burglaries with the group of coconspirators. Benedict’s claim that the evidence does not show his participation in a conspiracy is flatly contradicted by the trial record. We conclude that the evidence was sufficient to sustain his convictions.

III.

Carpenter makes one claim relevant only to his case, arguing that restitution was wrongly imposed under the Mandatory Victim Restitution Act (MVRA). We review such questions of law de novo. United States v. Senty-Haugen, 449 F.3d 862, 865 (8th Cir. 2006). Carpenter maintains that corporations are not victims under the Mandatory Victims Restitution Act because they are not “persons” within the meaning of the statute. The MVRA requires that a district court shall order a defendant to make restitution in cases “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B). “Victim” is defined in the statute to mean “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” Id § 3663A(a)(2).

Although “person” is not defined in the MVRA, the Dictionary Act defines “person” to include corporations “unless the context indicates otherwise.” 1 U.S.C. § 1. Carpenter does not dispute that the corporations here were harmed as a result of his conduct, but claims that the context here shows corporations do not fit within the statutory definition of person since “it would have been easy” to provide in the text of the MVRA that “ ‘persons’ includes corporations.” This argument overlooks the statutory scheme and the Dictionary Act itself. See 1 U.S.C. § 1.

The government adds that the context within the MVRA itself indicates that corporations are eligible to be considered victims within the meaning of the act. Section 3663A(c)(l)(A)(ii) extends the MVRA to crimes such as bank fraud under 18 U.S.C. § 1344, which covers defrauding “a financial institution.” Id. § 1344(1). Such an inclusion would make no sense if the MVRA were intended to exclude corporations from its definition of victim. Carpenter’s limited definition is inconsistent with our prior MVRA decisions which have not applied the statute only to natural persons. See Senty-Haugen, 449 F.3d at 865 (concluding that “the IRS is an eligible victim under the MVRA”); see also United States v. Engelmann, 720 F.3d 1005, 1014 (8th Cir. 2013) (rejecting the argument that bad actions by financial institutions made them ineligible for victim status under the MVRA).

Carpenter claims that the district court erred in ordering $53,729 in restitution to the targeted stores for sums of money taken from safes and cash registers during the burglaries, as opposed to money taken from ATMs. He claims these sums represent money taken during the commission of state law crimes for which restitution is not appropriate. We look to the “scope of the indictment to determine whether an award” is eligible to be included in a restitution order. United States v. Ramirez, 196 F.3d 895, 900 (8th Cir. 1999) (internal quotation marks omitted). A district court also has “discretion to order restitution for all the victims” of a criminal scheme, whether or not the particular losses are “specifically named in the indictment.” Id. at 899. Carpenter’s argument rests in part on his claim that “no [flederally-charged conspiracy existed here to steal the store’s own property and money,” an assertion which is contradicted by the record. Carpenter was indicted and convicted of Interstate Transportation of Stolen Property, 18 U.S.C. § 2314, which requires transportation of money worth $5,000 or more, knowing it to have been stolen, and conspiracy to commit the same. Moreover, the indictment in this case specifically charged the taking of money from Walgreens safes and transporting it from Iowa to Minnesota.

Even if the conspiracy charged in the indictment had not included the stolen property charge, the restitution order for payments to the burglarized stores was proper under the plain language of the MVRA. That act requires that restitution be made to every victim. 18 U.S.C. § 3663A(a)(2). A victim is defined as:

a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

Id. The stores were clearly victims, because they were harmed as “a result of the commission of an offense for which restitution may be ordered,” id., namely, conspiracy to commit bank burglary, bank larceny, and interstate transportation of stolen property, as well as conspiracy to steal controlled substances. The taking of money from the safes was also specific “criminal conduct” which Carpenter and his co-conspirators undertook “in the course of the scheme, conspiracy, or pattern.” Id. We conclude that the district court did not err in its imposition of restitution for the victim stores.

rv.

A.

Both defendants challenge an evidentiary stipulation which established jurisdictional elements of the charged offenses, including the stipulation that certain Walgreens stores which had been burglarized were used in part as a bank, that certain ATMs were owned by a bank insured by the FDIC or by a credit union insured by the National Credit Union Administration, that Bloomington Drug was registered with the FDA, and that the stolen drugs contained FDA controlled substances. Benedict and Carpenter now claim they did not knowingly and voluntarily agree to the admission of their stipulation. Our review is for plain error because the defendants did not object to the stipulation before the district court. Martin, 777 F.3d at 993.

We recently rejected a very similar argument in Martin. There, as here, the defendants did not object to an evidentiary stipulation in district court, yet claimed on appeal that it had not been knowingly made. 777 F.3d at 993. We noted there that a defendant is ordinarily bound by an agreed upon stipulation “[ujnless the defendant indicates objection at the time the stipulation is made.” Id (internal quotation marks omitted). Martin also reaffirmed our circuit rules that 1) an inquiry as thorough as that provided for in Federal Rule of Criminal Procedure 11 is not required when stipulating to an element of an offense, and 2) a stipulation is knowingly and voluntarily made when signed by the defendant and “entered in open court in the presence of the defendant.” Id. (internal quotation marks omitted).

Appellants now emphasize what they see as the sole difference between Martin and their case: in Martin the stipulation was signed by the defendant, while here the stipulation was signed only by defense counsel. This argument fails. The stipulation was read verbatim in open court in the presence of appellants and defense counsel represented that they did not object to its admission. Appellants are bound by their stipulation, and it was not plain error for the district court to accept it. See 777 F.3d at 993.

B.

At sentencing both Benedict and Carpenter received enhancements under the sentencing guidelines for being career offenders as defined in U.S.S.G. § 4B1.1 (2014). A defendant is a career offender under U.S.S.G. § 4Bl.l(a) (2014) if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

A “crime of violence” includes any offense punishable by imprisonment for more than one year that “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2014). The “or otherwise” clause is referred to as the residual clause. See United States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016). A career offender’s offense level is determined in part by referencing the statutory maximum penalty of the crime of violence conviction in the instant case. U.S.S.G. § 4B1.1(b) (2014).

Before turning to defendants’ arguments, we note that in 2015 the Supreme Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The residual clause in that statute is identical to the residual clause in U.S.S.G. § 4B1.2(a)(2) (2014). Nevertheless, the Court recently held that the residual clause in the guidelines is not unconstitutionally vague because the guidelines are not subject to vagueness challenges. Beckles v. United States, — U.S. —, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). Although the Sentencing Commission removed the residual clause from U.S.S.G. § 4B1.2(a)(2) in 2016, see U.S.S.G. app. C, amend. 798, we apply it here because both of these defendants were sentenced in 2014. See Lawin, 779 F.3d at 781.

Carpenter argues that he is not a career offender because none of his “instant offense[s] of conviction” qualify as crimes of violence. The relevant elements of Carpenter’s conviction for burglary involving controlled substances are “without authority, enter[ing] or attempt[ing] to enter, or remaining] in, the business premises or property of a person ... with the intent to steal.” 18 U.S.C. § 2118(b). These elements closely track those of generic burglary, which are “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We have concluded “that any generic burglary is a crime of violence under the ‘otherwise involves’ residual provision in U.S.S.G. § 4B1.2(a)(2).” United States v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009). We need not decide the question of whether burglary involving controlled substances qualifies as a generic burglary in this case because Carpenter’s “offense was clearly a ‘crime of violence’ under the” residual clause itself. See United States v. Cantrell, 530 F.3d 684, 695 (8th Cir. 2008).

To determine whether an offense qualifies as a crime of violence under the residual clause, we use the “categorical approach,” which requires us to “consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), overruled by Johnson, 135 S.Ct. at 2563. A prior conviction qualifies as a crime of violence under the residual clause if it “(1) ‘presents] a serious potential risk of physical injury to another,’ and (2) [is] ‘roughly similar, in kind as well as degree of risk posed,’ to the offenses listed in § 4B1.2(a)(2).” United States v. Watson, 650 F.3d 1084, 1092 (8th Cir. 2011) (quoting United States v. Boyce, 633 F.3d 708, 711 (8th Cir. 2011)).

We first analyze whether the risk posed by burglary involving controlled substances is “roughly similar, in kind as well as degree of risk posed,” by its closest enumerated offense analog — -here, burglary. See Watson, 650 F.3d at 1092 (quoting Boyce, 633 F.3d at 711). The main risk posed by burglary arises “from the possibility of a face-to-face confrontation between the burglar and a third party— whether an occupant, a police officer, or a bystander — who comes to investigate.” Cantrell, 530 F.3d at 695 (quoting James, 550 U.S. at 203, 127 S.Ct. 1586). That risk applies equally here because to be convicted of burglary involving controlled substances, a person must enter “the business premises or property of a person ... with the intent to steal.” See 18 U.S.C. § 2118(b).

Having determined that the risk of burglary involving controlled substances is “roughly similar, in kind as well as degree of risk posed,” to generic burglary, we next analyze whether it “presentfs] a serious potential risk of physical injury to another.” See Watson, 650 F.3d at 1092 (quoting Boyce, 633 F.3d at 711). We conclude that the answer to that question is affirmative because any violation of the statute creates a risk of a violent confrontation between the burglar “and the occupant, the police, or another third party.” See Cantrell, 530 F.3d at 696. We thus affirm Carpenter’s classification as a career offender because his conviction for burglary involving controlled substances qualifies as a crime of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2) (2014).

Benedict argues that he is not a career offender because his two prior convictions for third degree burglary, Minn. Stat. § 609.582, subd. 3 (1995), and for aiding and abetting third degree burglary, id. (2004), are not crimes of violence. A person commits third degree burglary in Minnesota if he “enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building.” Minn. Stat. § 609.582, subd. 3 (1995); accord id. (2004). We have concluded that Minnesota’s third degree burglary statute is not a violent felony under the enumerated clause of the ACCA because its definition is broader than generic burglary. United States v. McArthur, 850 F.3d 925, 937-40 (8th Cir. 2017). Benedict’s prior conviction for third degree burglary qualifies as a crime of violence under the residual clause of the guidelines, however, for the same reason that Carpenter’s instant conviction qualifies. A person who commits third degree burglary creates a risk of a violent confrontation between himself “and the occupant, the police, or another third party.” See Cantrell, 530 F.3d at 696. Benedict’s conviction for aiding and abetting third degree burglary also qualifies as a crime of violence under the residual clause because application note 1 to U.S.S.G. § 4B1.2 (2014) provides that “[f]or purposes of this guideline — ‘Crime of violence’ ... include[s] the offense[ ] of aiding and abetting.” We thus affirm Benedict’s classification as a career offender because his prior convictions for third degree burglary qualify as crimes of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2) (2014).

V.

The district court did not err by holding a joint trial for these coconspirators, accepting an evidentiary stipulation, or excluding expert witness testimony. Nor did the trial court err by requiring restitution. The evidence was also more than sufficient to convict Benedict. Because appellants’, burglary convictions qualify as crimes of violence under the residual clause of the guidelines, we affirm their career offender status and sentences. The judgments of the district court are affirmed.

      . The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota.

      . Since Benedict was sentenced in October 2014 and Carpenter was sentenced in December 2014, we look to the 2014 version of the guidelines. See United States v. Lawin, 779 F.3d 780, 781 (8th Cir. 2015) (per curiam).

      . Although James analyzes the ACCA, not the guidelines, "[t]he definition of ‘crime of violence’ in U.S.S.G. § 4B 1.2(a) is nearly identical to the definition of 'violent felony’ in 18 U.S.C. § 924(e)(2)(B),” and we see no reason to treat them differently here. United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011) (alteration in original) (quoting United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir. 2009)).


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    JaQuan BRADFORD, Plaintiff-Appellant v. Christopher PALMER; Richard Shults, Defendants Ilona Avery; Joan Gerbo, Defendants-Appellees Revae Gabriel; Deb Wilkins, Defendants Robert Hendricks; Deborah Hanus, Defendants-Appellees Charles Krogmeier; Sally Titus; Jeanne Nesbit, Defendants
    No. 16-1767
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 11, 2017
    Filed: May 1, 2017
    Counsel who presented argument on behalf of the appellant was Jeffrey M. Lip-man, of West Des Moines, IA. The following attorney(s) appeared on the appellant brief; Marc Harding, of Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Gretchen Rraemer, AAG, of Des Moines, IA.
    Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
   MURPHY, Circuit Judge.

Plaintiff JaQuan Bradford was civilly committed to the Iowa Juvenile Home for over two years as a child in need of assistance. He later brought this action against employees of the home for allegedly violating his constitutional rights. The district court granted summary judgment to defendants based on qualified immunity. Bradford appeals, and we reverse and remand.

I.

JaQuan Bradford was civilly confined at the Iowa Juvenile Home between the ages of 12 and 14. He had a history of severe behavioral problems, including assaulting others, and these problems continued while he was at the home. A juvenile court supervised his stay and received regular reports on it. Bradford alleges that he was kept in seclusion for significant periods of time while he was at the home.

After reaching the age of majority, Bradford brought this action against employees of the home for allegedly violating his constitutional rights by housing him in prolonged solitary confinement, failing to educate him, and allowing him to be sexually abused. Defendants moved for summary judgment. The district court decided that defendants were entitled to qualified immunity because Bradford could “not prove and has not produced any evidence that defendants should have been aware of a breach of a clearly established law regarding [his] stay at [the home] while at the same time the juvenile court, sitting in regular review proceedings, was finding nothing wrong regarding [his] stay” at the home. Summary judgment was granted to defendants, and Bradford appeals.

II.

We review the “grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmov-ing party and making every reasonable inference in his favor.” McPherson v. O’Reilly Auto., Inc., 491 F.3d 726, 730 (8th Cir. 2007). Summary judgment is warranted “if the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id

A government official is entitled to qualified immunity from personal liability unless “the facts shown by the plaintiff make out a violation of a constitutional or statutory right” and “that right was clearly established at the time of the defendant’s alleged misconduct.” Winslow v. Smith, 696 F.3d 716, 730-31 (8th Cir. 2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). A court may take up these questions in either order. Id. at 731. Qualified immunity thus “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

The district court held as a matter of law that defendants were entitled to qualified immunity because “the juvenile court, sitting in regular review proceedings, was finding nothing wrong” with Bradford’s confinement at the home. The juvenile court, however, could only have approved the conditions of his confinement if it had been informed about them. The parties agree that the juvenile court supervised Bradford’s confinement under Iowa Code § 232.95. That provision only requires the juvenile court to review the duration of a child’s commitment. It does not establish that the juvenile court knew the conditions in which Bradford was being held.

The reports submitted to the juvenile court also do not show that it was actually made aware of the conditions of Bradford’s confinement. The strongest indication that Bradford was being held in prolonged seclusion was a report that stated he was “back to living full-time in the Support Unit.” Another report stated that he had lived in the support unit for the past couple months.” Because these reports did not describe the conditions Bradford encountered while in the support unit, they do not show that the juvenile court had been informed that he was being held in seclusion. On this record, the juvenile court’s supervision of Bradford’s commitment does not establish that defendants are entitled to qualified immunity.

The district court addressed only the fact of juvenile court supervision in determining that defendants were entitled to qualified immunity, and its opinion does not contain sufficient detail to allow us to review whether defendants are entitled to qualified immunity. See O’Neil v. City of Iowa City, 496 F.3d 915, 918 (8th Cir. 2007). Although defendants claim that summary judgment is appropriate for other reasons, we remand for the district court to address these issues in the first instance. See Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir. 2014); Warmus v. Melahn, 110 F.3d 566, 569 (8th Cir. 1997).

III.

For these reasons we reverse and remand for more thorough review of defendants’ motion for summary judgment.


author: ARNOLD, Circuit Judge.

text:
    Elaine ROBINSON; Helen Psaras; Rebecca Couture; Vanesa Ford; Georgia Lee Harlan; Claire A. Holmes; Tina Loomis; Juana Miles; Deloris Mitchell; Himilce Negron; Carol L. Qualls; Rhonda Robinson; Harriet L. Scott; Charlotte L. Shaw; Susan M. Simcox; Linda C. Tanguay; Violet E. Wyers; Kim Diling; Rebekah McDonald; Socorro Perez; Cynthia Weddle; Mary Higdon; Yolanda Baker; Priscilla Billingslea; Yiona Bryant; Diane Ezell; Janet Gallo; Ladessa Lewis; Quynh Nguyen; Isabel Power; Denise Proulx; Sharon Wheelehan; Patricia Herrera; Carol Henriques; Linda Christner; Rita Probst; Patricia Johnson; Lois Morton; Sharon Bowers; Henrietta Eatman; Sharon Murdock; Mildred Watley; Delayne Wharton; Patricia Trotman; Gladys Bates; Helen Courtney; Myrtle White-Royes; Carol Peterson; Elena Barnovics; Victoria Elleman; Eleftheria Karamihalis; Linda L. Jackson; Gladys F. Brent; Mary Robinson; Martha Farr; Eliza Taylor; Rose Rush-Gaswirth; Ardell R. Martinez; Carol A. Moran; Lou Anne Box; Barbara L. Kuikahi; Elizabeth A. Parks-McDonald; Willie Williams; Clara Yarborough, Plaintiffs-Appellees v. PFIZER, INC., Defendant-Appellant Washington Legal Foundation; American Tort Reform Association; Missouri Organization of Defense Lawyers; Chamber of Commerce of the United States of America; Pharmaceutical Research and Manufacturers of America, Amici on Behalf of Appellant(s) National Consumer Law Center; National Association of Consumer Advocates; Public Justice; American Association for Justice, Amici on Behalf of Appellee(s)
    No. 16-2524
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 5, 2017
    Filed: May 1, 2017

      Counsel who presented argument on behalf of the appellant was Mark Cheffo, of New York, NY. The following attorney(s) appeared on the appellant brief; Mark C. Hegarty, of Kansas City, MO., Booker T. Shaw, of St. Louis, MO., Lincoln Davis Wilson, of New York, NY., Douglas B. Maddock, Jr., of Kansas City, MO.
    Counsel who presented argument on behalf of the appellee was Andrea Bierstein, of New York, NY. The following attorney(s) appeared on the appellee brief; Trent B. Miracle, of Alton, IL., Eric Johnson, of Alton, IL.
    Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
   ARNOLD, Circuit Judge.

Elaine Robinson is one of 64 women from 29 states who sued Pfizer in a Missouri state court, asserting state-law claims that arose from Pfizer’s manufacture and sale of the drug Lipitor, which they allege causes diabetes. Pfizer removed the ease to federal district court, maintaining that the case lay within its diversity jurisdiction even though the face of the complaint revealed that six of the plaintiffs are citizens of New York where Pfizer is also a citizen. Complete diversity of citizenship, and thus federal subject-matter jurisdiction, therefore appeared to be lacking. See Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224, 1227 (8th Cir. 2015). But Pfizer defended the removal by urging the district court to ignore the plaintiffs who are not Missouri citizens when ruling on the diversity issue because those plaintiffs had been fraudulently joined or procedurally misjoined in the ease. In support, Pfizer contended that those plaintiffs could not acquire personal jurisdiction over Pfizer in Missouri state court for incidents that did not arise out of or relate to Pfizer’s contacts in Missouri, and so complete diversity of citizenship did exist after all.

The plaintiffs asked the district court to remand the case to state court and to award them costs and attorney’s fees under 28 U.S.C. § 1447(c), arguing that Pfizer had removed the case “in bad faith and ... only to delay the administration of justice and waste the Court’s time and resources” and had engaged in a “pattern of procedural abuse and continued disregard for binding Eighth Circuit precedent and, more importantly the time and resources of this District.” The district court granted the motion to remand, but, more important for present purposes, it awarded the plaintiffs $6200 of their requested $14,800 in attorney’s fees. In doing so, the district judge noted that several cases in her district, some of which involved Pfizer as a defendant, had already rejected the contentions that Pfizer advanced to justify removing the case. So, the court concluded, “[i]n light of these repeated admonishments and remands to state court for six years, defendant can no longer argue that its asserted basis for seeking removal to federal court in these circumstances is objectively reasonable.”

We do not ordinarily have occasion to rule on the propriety of district court remand orders because they are not reviewable on appeal or otherwise. See 28 U.S.C. § 1447(d). Parties can, however, appeal an order awarding attorney’s fees for improper removal under § 1447(c), see Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000), which provides that a remand order “may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The Supreme Court has held that these appeals turn on whether the removing party had an objectively reasonable basis for removing the case. Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). Pfizer appeals the district court’s order awarding attorney’s fees and maintains that its removal was in fact objectively reasonable. As part of our consideration of whether removal was objectively reasonable, Pfizer and several amici curiae request that we address Pfizer’s arguments for removal to help lower courts (particularly in the Eastern District of Missouri) resolve removal issues because many similar pharmaceutical actions have been filed and will otherwise continue to be filed in the Missouri state court involved here. Pfizer and these amici maintain that a decision on the diversity-jurisdiction issue could help end, as one amicus puts it, the “hub of litigation tourism” that the Missouri state court has become.

After Pfizer filed its notice of appeal, the plaintiffs filed a satisfaction of judgment in the district court asserting that they “disclaimed any interest in collecting” the attorney’s fee award and that “full and complete satisfaction of said judgment or order is hereby acknowledged.” They then filed a motion to dismiss the appeal as moot, which Pfizer opposed.

Pfizer contends that we should deny the motion to dismiss because the plaintiffs filed it too late. Our rules provide that, “Except for good cause or on the motion of the court, a motion to dismiss based on jurisdiction must be filed within 14 days after the court has docketed the appeal.” 8th Cir. R. 47A(b). Although the plaintiffs did not move to dismiss the appeal until 20 days after it was docketed, the case did not present a mootness issue until they filed the satisfaction of judgment, and they filed their motion to dismiss only six days after that. We think that in these circumstances the plaintiffs had good cause for filing the motion to dismiss more than 14 days after docketing. More important, regardless of our Rule 47A(b), we cannot decide a moot case. So we turn to the merits of the motion.

Under Article III, an actual controversy must exist at all stages of review, and if intervening circumstances moot the controversy, the case must be dismissed. See Campbell-Ewald Co. v. Gomez, — U.S. —, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). A case becomes moot when it becomes impossible for the court to grant any effectual relief. See id.

For the reasons that follow, we feel constrained to agree with the plaintiffs that the filing of the satisfaction of judgment has mooted the appeal. We cannot relieve Pfizer of an obligation to pay the fee award because that obligation has already been extinguished, and we cannot order the plaintiffs to refund the fee award because Pfizer has not paid it. It follows that all the court can do at this point is give Pfizer an advisory opinion on the propriety of its removal, and it goes without saying that advisory opinions are not within our Article III power. See Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015).

Relying on Perkins v. General Motors Corp., 965 F.2d 597 (8th Cir. 1992), Pfizer insists that the plaintiffs’ disclaimer of the award does not moot the case because the mere existence of the order appealed from harmed Pfizer’s reputation. In Perkins, a party and her attorney appealed a district court order refusing to vacate a sanctions order and also sought a writ of mandamus ordering the district court to lift the sanctions. The appellants argued that the district court lost jurisdiction to enforce the order when the parties settled the case, but we rejected that contention even though, as part of the parties’ settlement, the appellee had agreed not to collect the monetary sanctions. We explained that, though the appellee moved for sanctions, “it was the district court that imposed them. Appellants are entitled to bargain with adversaries to drop a motion for sanctions, but they cannot unilaterally bargain away the court’s discretion in imposing sanctions and the public’s interest in ensuring compliance with the rules of procedure.” Id. at 599-600.

We conclude that Perkins is beside the point because we do not believe that the district court’s award of attorney’s fees in this circumstance can reasonably be called a sanction or could have discernibly harmed Pfizer’s reputation. Although the plaintiffs’ rather vivid motion for fees contained a lot of accusatory language directed at Pfizer and maintained that Pfizer had engaged in sanctionable conduct, we think it is important that the district court did not take the bait: The court’s order merely held, applying Martin, that Pfizer’s removal was not objectively reasonable in light of repeated admonitions in similar cases involving similar issues. This is not much of a rebuke, barely more than a statement that Pfizer had simply erred as a matter of law.

Pfizer maintains that every attorney’s fee award under § 1447(c) is a sanction capable of harming a party’s reputation. That argument is untenable. The statute is neutral with respect to a party’s behavior; it does not remotely suggest that every attorney’s fee award under § 1447(c) can be described as a sanction or that the party removing the case has acted in a reprehensible way. The Supreme Court more than intimated as much in Martin, where it consistently referred to this portion of § 1447(c) as a “fee-shifting” statute. 546 U.S. at 139-40, 126 S.Ct. 704. In deciding when a court should award attorney’s fees under § 1447(c), moreover, the Martin Court expressly rejected the proposition that fees should be awarded only when the removal was “frivolous, unreasonable, or without foundation.” Id. at 138—39, 126 S.Ct. 704. Had it adopted that standard, we might be more inclined to say that an attorney’s fee award under § 1447(c) is categorically a sanction, but instead the Martin Court adopted a much more anodyne standard. At least one other court has expressly held, we think correctly, that § 1447(c) is not a sanctions rule but merely a fee-shifting statute. See Garbie, 211 F.3d at 410.

Pfizer also directs our attention to a case in which we decided that a bankruptcy court had sanctioned a party when it said in an order that the party had violated an automatic statutory stay. See U.S. Through Farmers Home Admin. v. Nelson, 969 F.2d 626, 629 (8th Cir. 1992). We explained that “an adjudication that the [party] was in violation of federal law is indeed a sanction, and one that the [party] should be permitted to seek to reverse on appeal,” even where no monetary penalties were at issue. Id. But unlike Nelson, the district court here did not find that there was a violation of federal law; it merely found that the removal was not objectively reasonable. Nelson is therefore inapposite. Pfizer in addition points to occasions on which our court has referred to attorney’s fee awards under § 1447(c) as “sanctions.” See Dakota, Minn. & E. R.R. Corp. v. Schieffer, 715 F.3d 712, 712 (8th Cir. 2013); Johnson v. AGCO Corp., 159 F.3d 1114, 1116 (8th Cir. 1998). But these cases are far from holding that all attorney’s fee awards under § 1447(c) are sanctions, especially since the proper characterization of § 1447(c) awards was not actually at issue in those cases. We think that some attorney’s fee awards under § 1447(c) are not truly sanctions that could harm a party’s reputation, and we think that the award here is one of them.

Pfizer also insists that it has suffered an injury because the order at issue discourages it from removing cases in the future since a district court might now be more inclined to award attorney’s fees for an unreasonable removal. Pfizer’s argument fails because we do not think that the chilling effect Pfizer posits will materialize since Pfizer would get another chance of getting an opinion on the propriety of similar removals should a district court award attorney’s fees again. And in a case where attorney’s fees are actually at issue on appeal, Pfizer could receive a ruling on the propriety of removal that it now so earnestly seeks. The incentives are currently structured so that plaintiffs’ attorneys in these types of cases will no longer ask for attorney’s fees for fear that a pharmaceutical company like Pfizer will appeal a fee award and receive a decision that might end their lucrative procedural strategy. And Pfizer will have little difficulty with being ordered to pay relatively modest attorney’s fee awards if that gives it the opportunity to defeat the plaintiffs’ strategy for good. We therefore reject Pfizer’s contention that it will be discouraged from removing cases in the future; it is actually more likely to remove a case in the future based on these incentives. In sum, this case is moot because we cannot provide Pfizer any relief outside of an advisory opinion.

Once a case pending appeal becomes moot, federal appellate courts may dispose of the case as justice may require. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21-22, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). The established practice of federal appeals courts is to vacate the judgment or order being appealed because that “clears the path for future relitigation of the issues between the parties and eliminates a judgment.” Id. at 22, 115 S.Ct. 386. Though courts are sometimes reluctant to vacate a judgment or order being appealed when one or more of the parties caused the case to become moot, see id. at 23, 115 S.Ct. 386, those concerns are not present when the prevailing party below unilaterally moots the case. Otherwise the prevailing party could solidify a decision as precedent or create a preclusive effect without that decision be-mg subjected to appellate review. See 13C Charles Alan Wright et al., Federal Practice & Procedure § 3533.10.1 (3d ed. 2008). Given that an order of vacatur is the usual course, that all parties agree that vacatur is proper, and that vacatur would go a long way toward repairing any possible harm that Pfizer claims it suffered, we vacate the district court’s order directing Pfizer to pay attorney’s fees.

Dismissed.

      . The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.


author: COLLOTON, Circuit Judge. SHEPHERD, Circuit Judge,

text:
    Jason POWELL, Plaintiff-Appellant, v. Roxann RYAN, in her official capacity as Commissioner of Iowa Department of Public Safety; Gary Slater, in his official capacity as Fair Secretary/Manager/CEO of Iowa State Fair; D. Smith, individually and in his official capacity as Officer for Iowa State Fair Patrol; Michael Cunningham, individually and in his official capacity as Trooper for the Iowa State Patrol, Defendants-Appellees.
    No. 16-1190
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: May 2, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Nathan Kellum, of Memphis, TN.
    Counsel who presented argument on' behalf of the appellee was Jeffrey S. Thompson, AAG, of Des Moines, IA. The following attorneys also appeared on the appellee brief; David Luels Dorff, I, AAG, of Des Moines, IA., Grant Keith Dugdale, AAG, of Des Moines, IA., Jeffrey C. Pet-erzalek, AAG, of Des Moines, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

      . Commissioner Ryan is substituted for her predecessor under Federal Rule of Appellate Procedure 43(c)(2).

   COLLOTON, Circuit Judge.

This is Jason Powell’s second appeal concerning his efforts to gain an injunction against the enforcement of rules of the Iowa State Fair that forbid impeding traffic and bringing signs attached to poles and sticks to the Fair. In the first appeal, this court ruled that Powell was entitled to no more than certain narrow relief granted by the district court, because he failed to demonstrate a likelihood of success on the merits of his First Amendment claim or a threat of irreparable harm. Powell v. Noble, 798 F.3d 690 (8th Cir. 2015). The court remanded, however, for consideration of whether Powell was entitled to additional relief based on his claim under the Due Process Clause. On remand, the district court denied Powell’s request for a broader preliminary injunction, and Powell appeals. Because Powell is unlikely to succeed on his due process claim and has failed to show irreparable harm, we affirm.

I.

The Iowa State Fair is an eleven-day annual event on the Iowa State Fairgrounds that attracts more than one million visitors per year. The 435-acre Fairgrounds are owned by the State of Iowa and managed by the Iowa State Fair Board. During the 2013 Fair, Powell went to a sidewalk outside an entrance to the Fairgrounds to share a religious message. Powell held a sign attached to a pole and engaged in conversations with passersby. Patrol officers working for the Fair approached Powell and told him that he must leave the sidewalk, but that he could continue his activity across the street. Powell alleges that he asked why he must leave, and that the officers told him that he would be arrested if he did not depart. Powell crossed to the other side of the street, but left shortly thereafter.

The following day, Powell returned to the Fair and stood on a sidewalk outside a different entrance to’ the Fairgrounds while holding a sign attached to an aluminum pole. A patrol officer again told Powell that he must leave. An Iowa State Trooper then arrived and escorted Powell to a booking area inside the Fairgrounds. The trooper issued Powell an ejection notice. The notice said that Powell was ejected for the duration of the 2013 State Fair and warned him that he would be charged with criminal trespassing, a simple misdemeanor, if he returned to the Fairgrounds during the 2013 Fair.

Powell sued the Iowa Commissioner of Public Safety, the Chief Executive Officer of the Iowa State Fair, a State Fair patrol officer, and the state trooper, alleging that they violated his rights under the First Amendment and the Due Process Clause. He sought injunctive and declaratory relief and nominal damages. The officials responded that they acted based on two unwritten Fair rules governing the activities of visitors: (1) “the activity must not impede the flow of people into, out of, or within the Fairgrounds,” and (2) “if a visitor brings a sign, the sign must not be attached to any kind of pole or stick due to safety concerns with the pole or stick being used as a weapon.” In his reply brief, Powell argued that these unwritten rules are unconstitutionally vague. The district court granted narrow preliminary injunc-tive relief as to one area near the Fairgrounds where the officials conceded that Powell’s activities would not likely impede traffic, but otherwise denied relief.

Powell appealed the denial of broader relief, and this court affirmed in part but remanded for further proceedings. The court concluded that Powell was unlikely to succeed on his First Amendment claim, because the area immediately outside the Fairgrounds was a limited public forum, and the restrictions on Powell’s speech were reasonable and viewpoint-neutral. Powell, 798 F.3d at 700-02. The court said, however, that'Powell’s separate allegation that the rules violated his due process rights “still implicates speech that both parties agree is protected,” and remanded the case “for consideration of whether Powell is entitled to preliminary injunctive relief based on his due process claim.” Id. at 703-04. On remand, the district court denied the injunction, concluding that Powell was unlikely to prevail on his due process claim and had failed to demonstrate irreparable harm.

A district court considering in-junctive relief evaluates the movant’s likelihood of success on the merits, the threat of irreparable harm to the movant, the balance of the equities between the parties, and whether an injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). We review the district court’s denial of a preliminary injunction for abuse of discretion. Powell, 798 F.3d at 697.

II.

To justify an injunction in this context, Powell must establish a reasonable probability of success on his claim. Id. at 698. On remand, the district court concluded that Powell was unlikely to succeed on the merits of his due process claim, because the disputed rules did not have a chilling effect on Powell’s free speech rights. Powell responds that the district court simply relied on this court’s conclusion about his First Amendment claim and failed to analyze independently whether the Fair rules were unconstitutionally vague under the Due Process Clause.

Powell’s complaint is that the unwritten Fair rules are too vague to provide fair notice of what conduct is prohibited and to avoid arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This court ruled in the first appeal that Powell is unlikely to succeed on a First Amendment claim, because the rules are reasonable restrictions on the time, place, and manner of speech. Given that speech covered by the Fair’s rules is properly restricted, Powell’s notice claim must be that the rules threaten to chill speech that falls outside the scope of the rules. In other words, Powell contends that the alleged vagueness of the rules leads Fairgoers to “steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.” Id. at 109, 92 S.Ct. 2294 (internal quotations omitted). We see no likelihood of success on this claim.

There is some doubt whether the vagueness doctrine applies with much force to rules of the Fair. The leading precedents concerning this doctrine involve penal statutes that chill speech with the threat of criminal punishment. See Kolender v. Lawson, 461 U.S. 352, 358-59, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Smith v. Goguen, 415 U.S. 566, 572-74, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Where potential sanctions are less severe, as in the case of civil penalties, due process requires less precision. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). The rules of the State Fair are in yet another category. A violation of the disputed rules triggers no criminal liability and no civil monetary penalty; the only sanction for violating rules of the Fair is ejection from the Fair. Criminal penalties might apply only if an ejected person commits a separate offense of trespass after receiving clear notice of his ejection. Although a more stringent vagueness tést applies when a statute interferes with the right of free speech, id. at 499, 102 S.Ct. 1186, and the doctrine has been employed to invalidate non-penal regulations that resulted in the loss of employment, see Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 603-04, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), it is not clear how the doctrine applies to rules, like those of the State Fair, that prescribe such a modest consequence for a violation. See Milestone v. City of Monroe, 665 F.3d 774, 785 (7th Cir. 2011).

Whatever level of precision might be required for Fair rules to satisfy due process, however, Powell is not likely to succeed on his claim. Powell seeks to carry signs on poles and to display them while standing on sidewalks outside entrances to the Fairgrounds. He complains that he could not have known about the rules before he was directed to discontinue his activities in 2013. But Powell seeks prospective injunctive relief, and the relevant question is whether he now has fair notice of the rules. During the 2013 Fair and in this litigation, the State has given Powell clear notice of the rules against impeding traffic and carrying signs on poles and sticks. These rules prohibit Powell’s proposed conduct. “[A] plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the [Fourteenth] Amendment for lack of notice. And he certainly cannot do so based on the speech of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 20, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).

Powell argues that the terms of the rules are insufficiently clear to satisfy the requirement of due process. But “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The phrase “impeding traffic” and the phrase “sign ... attached to ... pole or stick” are not indeterminate. A person of ordinary intelligence in Powell’s position is on fair notice that standing continuously on a sidewalk that is a thoroughfare for pedestrian traffic outside a busy Fairgrounds is contrary to a rule against impeding traffic. He is also well informed that carrying a sign on a pole violates a rule against carrying signs attached to sticks or poles. The terms of the rules are clear in their application to Powell’s proposed activities.

For similar reasons, Powell is not likely to succeed on a claim that the Fair’s rules impermissibly encourage arbitrary and discriminatory enforcement. Due process allows for the exercise of some degree of judgment in law enforcement. Grayned, 408 U.S. at 114, 92 S.Ct. 2294. The rules at issue are not standardless; they provide the requisite “minimal guidelines to govern law enforcement.” Goguen, 415 U.S. at 574, 94 S.Ct. 1242; Grayned, 408 U.S. at 113 n.22, 92 S.Ct. 2294. Powell hypothesizes that patrol officers might arbitrarily remove him from standing on a sidewalk to display signs and speak with pedestrians while allowing other Fairgoers to pause on a sidewalk to talk on a cellular telephone or consult a map. He complains that he is banned from displaying a sign affixed to a pole or stick outside the Fair while visitors are permitted to purchase and carry food on a stick within the Fairgrounds. These are not examples of discriminatory enforcement of the rules but rather pragmatic applications of the standards to disparate circumstances. Powell presented no evidence that the Fair authorities have discriminated in favor of others who are similarly situated to him based on viewpoint or other impermissible criterion.

Powell cites two circuit precedents that warrant discussion. In Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012), the court held unconstitutionally vague a criminal ordinance that forbade the display of signs “in eonsequence[ ] of which there is such a gathering of persons or stopping of vehicles as to impede either pedestrians or vehicular traffic.” Id. at 1039. The court ruled that the ordinance failed to give fair notice to a citizen who wished to display a sign on a highway overpass, because a violation depended on the reactions of third parties traveling below the overpass. As a result, the person displaying a sign could not know in advance whether the display would constitute a violation. The rules of the Fair as applied to Powell do not present the same concern. A person standing continuously on a sidewalk used for pedestrian traffic outside an entrance to the Fairgrounds is on fair notice that he could be cited for impeding traffic. If Stahl had been standing in the highway rather than on an overpass, then his case would have been quite different.

Powell also complains 'that the Fair’s rules are impermissibly vague because they are unwritten and not made explicit by well-established practice. He relies on a sentence from Families Achieving Independence & Respect v. Nebraska Department of Social Services, 111 F.3d 1408 (8th Cir. 1997) (en banc), where the court stated that “[s]o long as a policy is made explicit by ‘well-established practice,’ the fact that a policy is not committed to writing does not of itself constitute a First Amendment violation.” Id. at 1415 (internal citations and brackets omitted). The quoted sentence does not state a requirement of constitutional due process. It discusses whether an unwritten rule violates the First Amendment, and the authorities cited in support address whether a licensing statute constitutes a prior restraint on speech by giving unbridled discretion to government officials. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Lebron v. Nat’l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 658 (2d Cir. 1995). As discussed, the unwritten rules of the State Fair do not provide standardless discretion to enforcement personnel. That the rules are unwritten does not deprive Powell of fair notice prospectively, because he is now on clear notice that impeding traffic and carrying signs attached to a pole or stick is prohibited.

We also agree with the district court that Powell failed to show that he was likely to suffer irreparable harm. The loss of First Amendment freedoms constitutes irreparable injury, see Johnson v. Minneapolis Park & Recreation Board, 729 F.3d 1094, 1101-02 (8th Cir. 2013), but the State Fair rules impose no such threat. This court concluded that enforcement of the rules is not likely to infringe on Powell’s right to freedom of speech, and there is no vagueness in the rules that is likely to chill protected speech that is outside the scope of the rules.

Powell’s failure to show a likelihood of irreparable harm or a reasonable probability of success on the merits was sufficient reason for the district court to deny injunctive relief, so it is unnecessary to address other factors. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21-22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Munaf v. Geren, 553 U.S. 674, 690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). The district court also thought that its local rules and the rule against raising issues for the first time in a reply brief “support denying” Powell’s due process claim. But it is not clear whether the court definitively ruled that Powell’s claim was waived, an<] we need not address the point in any event, because we have considered Powell’s appeal on the merits. The order of the district court is affirmed.

SHEPHERD, Circuit Judge,

concurring.

Respectfully, I do not share the majority’s doubt as to the merits of Powell’s due process claim. I would instead hold that Powell has a reasonable probability of success on that claim. But I agree with the majority that Powell has failed to show irreparable harm, and I therefore concur in the judgment affirming the denial of preliminary injunctive relief.

I.

The demands of due process vary according to the nature of the challenged law. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). More clarity is required of laws that “threaten[] to inhibit the exercise of constitutionally protected rights” and also of laws that impose “criminal penalties!),] because the consequences of imprecision are qualitatively [more] severe.” Id. at 498-99, 102 S.Ct. 1186.

According to the majority, the Fair policies “trigger[] no criminal liability” because “the only sanction for violating rules of the Fair is ejection from the Fair.” I disagree. Though the policies are not codified criminal ordinances as in Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012), they are at least quasi-criminal given that Powell would not have faced arrest but for first being ejected for violating the policies. Criminal consequences are therefore rooted in noncompliance with the policies and are not unearthed merely because Powell would have had to return to the Fair to be arrested. Further, civil and regulatory laws may be quasi-criminal for purposes of the vagueness doctrine without directly imposing criminal penalties. Vill. of Hoffman, 455 U.S. at 499, 499 n.16, 102 S.Ct. 1186 (labeling as “quasi-criminal” and applying a strict vagueness analysis to a licensing ordinance for businesses that sell products designed to be used with illegal drugs); see also Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 422 (5th Cir. 2001) (applying a heightened vagueness test to a licensing regulation for medical offices that provide abortions because penalties such as substantial fines and license revocation render the law quasi-criminal); United States v. Clinical Leasing Serv., Inc., 925 F.2d 120, 122 (5th Cir. 1991) (applying a more exacting vagueness test to a federal civil statute requiring registration of manufacturers of controlled substances because the “prohibitory effect is quasi-criminal”). I would therefore hold that the Fair policies, though not outright threats to liberty, are at least quasi-criminal. Due process accordingly requires more precision of the Fair rules than of rules that do not threaten criminal punishment.

II.

Turning to the merits of the due process claim, I find no basis in the record or law to conclude that the Fair policies, unwritten and apparently non-existent prior to Powell’s trip to the Fair, satisfy the demands of due process.

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A law must give ordinary people fair notice of what conduct it forbids, and it must offer “explicit standards” for those who enforce it. Id It follows that, where lawmakers create an unwritten rule, the public must receive notice of the rule by some alternative means. Powell suggests that an unwritten rule is effectively divulged to the public when it is “made explicit by well-established practice,” i.e., the rule has a history of consistent and uniform application. He relies on Families Achieving Independence & Respect v. Nebraska Department of Social Services, where the court stated, “So long as a policy is made explicit by Veil-established practice,’ [t]he fact that a policy is not committed to writing does not of itself constitute a First Amendment violation.” 111 F.3d 1408, 1415 (8th Cir. 1997) (en banc) (alteration in original) (citation omitted) (quoting Lebron v. Nat’l R.R. Passenger Corp., 69 F.3d 650, 658 (2d Cir. 1995)).

The majority rejects Powell’s position, stating that the quoted language in FAIR “discusses whether an unwritten rule violates the First Amendment,” not due process. But in Powell I, our court relied on the same quoted language to remand for consideration of whether the unwritten policies violate Powell’s due process rights. Powell v. Noble, 798 F.3d 690, 703-04 (8th Cir. 2015). Moreover, the quoted sentence in FAIR was part of a broader discussion of the vagueness doctrine, a concept that is as entrenched (if not more) in due process as it is in the First Amendment. See Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”). Thus, while FAIR uttered its “well-established practice” requirement in the context of a First Amendment vagueness challenge, it did not foreclose imposing the same requirement when a party brings a vagueness challenge on the grounds of due process.

The disagreement over FAIR is largely academic; in my view, the record shows no previous application of the policies that would notify Fairgoers in advance of the Fair’s unwritten rules. The only evidence on this issue is the testimony of Iowa State Fair Patrol Officer Rhonda Hummel, who participated in ejecting Powell from the Fairgrounds. When asked whether Powell was the first individual to be removed from the area, Officer Hummel replied, “No. We’ve had other incidents where we’ve asked people to go across the street [because they were impeding pedestrian traffic].” R. Doc. 23, at 20-21. Hummel’s faint account, without more, does not show that the pedestrian traffic rule has been applied in any manner giving fair notice of its prohibitions.

The record in fact suggests that the Fair’s rules on traffic and signs were broadcast during this litigation in an attempt to retroactively validate Appellees’ treatment of Powell. In apprehending and ejecting Powell, officials did not identify either of the relevant policies, despite Powell’s repeated requests for an explanation as to the nature of his infraction. In the first incident, which the officer involved described as lasting “no more than half a minute,” Powell was merely told that he must leave the Fair’s property. R. Doc. 12-2, at 2-3. Similarly, the officer involved in the second incident stated, “I just told him that he needed to move on off the [Fair]grounds because being inside the area where he was at, he was on the [Fairgrounds.” R. Doc. 23, at 34. This testimony indicates that, contrary to Ap-pellees’ position, officials were not knowingly enforcing rules about traffic flow and signs on sticks when they ejected Powell. Indeed, one official testified that there was no concern about the pole attached to Powell’s sign when he was ejected. R. Doc. 23, at 35.

The lack of articulated prior application of these policies, as well as Appellees’ suspect attempt to validate Powell’s removal after the fact, leads me to conclude that Powell did not have fair notice of the unwritten policies as required by due process. The record also does not show that Appellees have adopted any “explicit standards” to assure fair enforcement of their policies. Grayned, 408 U.S. at 108, 92 S.Ct. 2294. I would therefore hold that Powell has a reasonable probability of success on his due process claim.

III.

Though I do not join the majority as to the previous matter, I agree that Powell has not shown irreparable harm. “[T]he absence of a finding of irreparable injury is alone sufficient ground for vacating the preliminary injunction.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 n.9 (8th Cir. 1981) (en banc). To establish irreparable harm, Powell must show that “the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” E.g., Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (internal quotation marks omitted).

Powell would suffer irreparable harm if the Fair policies were likely to chill protected speech. E.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion). They are not, however, because we have already concluded that the Fair policies probably do not threaten Powell’s First Amendment rights. Powell I, 798 F.3d at 702. Powell argues that we should not allow our disposition of his First Amendment claim to impact our approach to his due process claim because the claims are independent. While free speech and due process are, indeed, separate constitutional guarantees, in this case the two are inextricably linked by Powell’s own assertion that the alleged due process violation chills his speech. Thus, to the extent that Powell raises chilled speech as an injury resulting from the loss of due process, there is no basis for finding irreparable harm.

In his brief, Powell also proposes that the loss of due process, like the loss of a First Amendment freedom, is itself sufficient to establish irreparable harm. Notably, Powell cites no authority supporting his interpretation, likely because most courts to consider the issue conclude the opposite. Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (“The alleged denial of procedural due process, without more, does not automatically trigger ... a finding [of irreparable injury].”); Bauman v. Twp. of Tittabawassee, No. 14-cv-12841, 2014 WL 5499285, at *4 (E.D. Mich. Oct. 30, 2014) (“[T]he [c]ourt is not aware off ] any case where the threat of a [sic] violating a substantive due process right was considered irreparable harm....”); Barrett v. Harwood, 967 F.Supp. 744, 746 (N.D.N.Y. 1997) (“[T]he cases where courts have held that a constitutional deprivation amounts to an irreparable harm are almost entirely restricted to cases involving alleged infringements of free speech, association, privacy, or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief.”) (internal quotation marks omitted). Accordingly, I conclude that Powell’s alleged due process violation alone cannot support a finding of irreparable harm, and Powell is therefore not entitled to a preliminary injunction.

IV.

In sum, I respectfully disagree with the majority’s conclusion as to the merits of the due process claim and would instead hold that Powell has a reasonable probability of success on that claim. I nonetheless concur in the judgment to affirm the disr trict court on the ground that Powell will not suffer irreparable harm in the absence of injunctive relief.

      . The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.


author: BEAM, Circuit Judge.

text:
    Matina KOESTER; N.K., By next friend Matina Koester, Plaintiffs-Appellants v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF GREATER ST. LOUIS, Defendant-Appellee
    No. 16-1460
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: May 2, 2017
    Rehearing and Rehearing En Banc Denied July 12, 2017

      Counsel who presented argument on behalf of the appellant was Edwin C. Ernst, IV, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Colin M. Luoma, of Saint Louis, MO., Patrick Carmody, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Andrew J. Mar-tone, of Saint Louis, MO.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   BEAM, Circuit Judge.

Matina Koester appeals the district court’s grant of summary judgment in favor of the YMCA of Greater St. Louis (YMCA) in this Americans with Disabilities Act (ADA) public accommodations case. We affirm.

I. BACKGROUND

Koester’s minor child, N.K., is an individual with a disability within the meaning of Title III (the public accommodations prong) of the ADA. N.K. has Down syndrome and autism. The YMCA provides children with summer camp opportunities that are advertised as enriching, creative, recreational, and self-esteem enhancing,' and are open to children of all abilities. At summer camps, the YMCA has sole custody of the child for up to ten hours per day. The YMCA Family Handbook provides that if participating children have an Individualized Education Plan (IEP) or a behavioral management plan through the schools, a copy of that plan “must” be given to the director and reviewed before the child’s participation is authorized. The purpose of this requirement is to allow the YMCA to determine reasonable and necessary accommodations for children with disabilities.

In May 2014, Koester sought to enroll N.K. in a YMCA .summer camp and called the YMCA to inquire about the requirements for enrollment. YMCA employees informed Koester that the YMCA would need a copy of N.K’s IEP to complete the enrollment in summer camp. Koester objected to this requirement, believing that the document was highly personal and confidential and instead offered to meet with the director and discuss what accommodations would be necessary for N.K. During the phone call, YMCA employees (as best we can tell, Koester spoke to at least three YMCA employees on the phone that day) reiterated that the IEP was required for enrollment. Koester did not ultimately fill out any paperwork to have N.K. participate in the summer camp. And as we understand the record, the next contact between Koester and the YMCA was in October 2014, when counsel for Koester sent the YMCA a letter dated October 10, 2014, stating that for future summer camp participation and in lieu of providing the IEP, Koester was willing to provide additional information about N.K.’s limitations and need for aceommo- . dations from N.K’s pediatrician. The YMCA responded with a letter, dated October 17, 2014, explaining its IEP policy and describing its belief that the IEP information was necessary in a setting where the child would be in the custody of the YMCA for upwards of ten hours per day. However, in this letter, the YMCA ultimately offered an alternative to the IEP requirement. The October 17 letter indicated the YMCA would accept information from N.K’s pediatrician regarding N.K’s “socio-emotional, adaptive behavior, speech/language, fine/gross motor functioning and cognitive functioning,” along with N.K’s specific diagnosis and “information regarding the need for adaptive equipment, communication skills, dietary restrictions, behavioral concerns, toileting information, behavioral triggers, ability to interact with peers/adults and his ability to follow directions.” Nonetheless, Koester brought the current action in federal court days later, on October 20, 2014, asserting a violation of Title III of the ADA, 42 U.S.C. §§ 12181-12189. Koester alleged that the YMCA discriminated against N.K. based upon his disability by refusing to make a reasonable modification to its IEP policy and that Koester proposed to “engage in an interactive process to determine what accommodations for N.K. would be reasonable.” Upon cross motions for summary judgment, the district court granted the YMCA’s motion. The district court found that the YMCA did not discriminate against N.K., and further, that Koester’s proposed modification was not a reasonable request, and even if it had been reasonable, it would have fundamentally altered the YMCA summer camp program. Koester appeals.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011). Summary judgment is appropriate where the evidence shows no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. W. The evidence and all inferences must be viewed in the light most favorable to the nonmoving party. Id.

Title III of the ADA prohibits discrimination by public accommodations and provides, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). To establish a claim under Title III, the person alleging disability must show that:

(1) that he is disabled within the meaning of the ADA, (2) that the defendant is a private entity that owns, leases, or operates a place of public accommodation, (3) that the defendant took adverse action against the plaintiff that was based upon the plaintiff’s disability, and (4) that the defendant failed to make reasonable modifications that would accommodate the plaintiffs disability without fundamentally altering the nature of the public accommodation.

Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999). The parties agree that N.K. is disabled within the meaning of the ADA by virtue of his diagnoses of Down syndrome and autism. Further, the YMCA operates a place of public accommodation. At issue in this case are prongs three and four of the above test: whether the YMCA took adverse action against N.K. based upon his disability, and to a somewhat lesser degree, but one we will analyze, whether the YMCA failed to make reasonable, requested modifications to its IEP policy.

Koester argues that the YMCA’s blanket policy of requiring a child’s IEP before admitting the child to its summer camp programs is discriminatory because the IEP in effect serves to screen out children with disabilities from the YMCA summer camp programs. Discrimination is defined by the statute to include application of policies which tend to screen out disabled individuals, unless the policy is necessary to provide those services. 42 U.S.C. § 12182(b)(2)(A)(i). Furthermore, discrimination includes the failure to make reasonable modifications in policies, practices or procedures necessary to accommodate disabled individuals, unless doing so would fundamentally alter the nature of the service. Id. § 12182(b)(2)(A)(ii).

Koester argued that the YMCA did not show that providing the entire IEP, as opposed to just the portions of it relevant to the camper’s experience, was a necessity for the YMCA to provide its summer camp services. The district court found that the YMCA did not need to show necessity because the IEP requirement did not have a tendency to screen out individuals. Instead, the purpose of the IEP requirement, the district court found, was to better accommodate children with disabilities and keep all children safe. The court specifically found that the undisputed facts showed that the purpose of the IEP requirement was not to identify children with disabilities; it was to best serve children, already identified by their parents as needing special accommodations.

We are sympathetic to the argument that the YMCA likely does not need to view the entirety of a child’s IEP in order to accommodate disabled campers. In deposition testimony, the YMCA Director of Inclusion Services admitted that there was information in the IEP that was unnecessary for the YMCA to carry out its summer camp programs. At oral argument, counsel for the YMCA agreed that a redacted version of the IEP certainly would have sufficed for its purposes of accommodating children during summer camp. However, the parties did not get to that point in their interaction, and Koester did not ultimately fill out enrollment papers or take other action to sign N.K. up for summer camp.

Koester’s strongest argument is based upon an illustration in the Department of Justice’s Technical Assistance Manual for Title III of the ADA. See Klingler v. Dir., Dep’t of Revenue, State of Mo., 433 F.3d 1078, 1081 (8th Cir.), opinion supplemented on reh’g, 455 F.3d 888 (8th Cir. 2006) (ADA Technical Assistance Manuals are agency interpretations entitled to “some” deference). Section 4.1300 indicates that the ADA prohibits unnecessary inquiries into the existence of a disability. Illustration 1 to that section states:

A private summer camp requires parents to fill out a questionnaire and to submit medical documentation regarding their children’s ability to participate in various camp activities. The questionnaire is acceptable if the summer camp can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The camp, however, may not use this information to screen out children with disabilities from admittance to the camp.

ADA Title III Technical Assistance Manual at § 4.1300, Ulus. 1 (1993).

Giving this illustration some deference, we find that it ultimately does not advance Koester’s cause. While the summer camp here cannot demonstrate that each piece of information requested is needed (and in fact has conceded the opposite), there is not a scintilla of evidence that the IEP requirement screened out applicants with disabilities. Indeed, a YMCA employee indicated that Koester was the first parent to refuse to provide the IEP as part of the enrollment process for summer camp; that the IEP requirement had been in place for nearly fifteen years; and the YMCA successfully accommodates more than 700 campers with various disabilities each summer. Thus, we find the district court correctly concluded at step three of the prima facie case that Koester could not establish that the YMCA took adverse action against N.K.

The district court nonetheless went on to evaluate whether the YMCA failed to make reasonable modifications that would accommodate N.K.’s disability without fundamentally altering the nature of the public accommodation. N.K.’s accommodation claim is unusual, however, because the accommodation requested relates to the YMCA’s information requirements, rather than any particular steps the YMCA might take (or might refuse to take) to provide physical or emotional support to N.K. during his participation in the YMCA summer camp. For instance, the more typical failure-to-accommodate claim in this kind of case would be that a parent requested one-on-one support for her child and the organization refused to provide it. The district court found that Koester’s requested “accommodation” was to enroll N.K. without providing an IEP, and that such modification to the YMCA’s policies was not reasonable because it would fundamentally alter the nature of the YMCA’s programs. While we are not necessarily convinced this is the kind of accommodation Title III of the ADA contemplates, we will proceed under the assumption that Koester’s request to provide less information than the entire IEP was a request for an accommodation.

In her complaint, Koester asserts that she “offered to engage in an interactive process to determine what accommodations for N.K. would be reasonable.” In the employment context, once an employee has requested accommodation, the employer must engage in an interactive process to find reasonable accommodations for the disability, and its failure to engage in this process is evidence of the employer’s bad faith. Fjellestad v. Pizza Hut of Am., Inc. 188 F.3d 944, 951-52 (8th Cir. 1999). To show an employer failed to participate in the interactive process, the employee must show the employer knew about the disability; accommodations were requested; the employer did not make a good faith effort to assist with the accommodation requested; and the employee could have been reasonably accommodated but for the employer’s lack of good faith. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 971 (8th Cir. 2014). Again, assuming with a hefty dose of skepticism that these concepts are applicable in this Title III case, the YMCA participated in an interactive process in good faith by responding within days to Koester’s October letter. The YMCA’s letter did not cursorily adhere to its original demand for the IEP, but instead set forth the information it would need to administer its program, via a third-party source such as N.K.’s pediatrician. The interactive process ended when Koester filed suit shortly thereafter. Contrary to Koester’s arguments, the YMCA did offer to modify the policy as long as it obtained the information it deemed necessary to accommodate N.K. While she argues that she offered to engage in an individualized, interactive process, the record belies this notion; “interaction” concluded when Koester filed suit after the mutual exchange of exactly one letter. Thus, we find that Koester cannot establish the fourth step of the prima facie case because Koester filed suit before any particular or final decisions were made. Accordingly, we find that the YMCA did not unreasonably fail to accommodate N.K.

III. CONCLUSION

If the YMCA had refused to enroll N.K. based upon his disability, or if it had examined the IEP and refused to provide accommodations for camp participation based upon the information in the IEP, this might be a different case. As it is, the YMCA did not violate Title III of the ADA.

      . The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri.

      . Indeed, an electronic search of the Technical Assistance Manual, cited by Koester, contains no references to the term "interactive process” and the term "reasonable accommodation” is used only three times, to discuss analogies to or the requirements of Title I employment accommodation situations. See also Mershon v. St. Louis Univ., 442 F.3d 1069, 1078 (8th Cir. 2006) (speculating in Title III case about whether the interactive process is required in an academic setting).

      . Koester argues that the YMCA's discriminatory intent should not even be in issue, and instead, her claim should be analyzed under the “modified burden shifting analysis” of an accommodation claim — (1) that N.K. is disabled; (2) the YMCA is a place of public accommodation; and (3) the YMCA failed to reasonably modify its policies to accommodate N.K.’s disabilities, unless such modification would fundamentally alter the nature of its summer day camp. Mershon, 442 F.3d at 1076. We agree with the YMCA that Koester did not advance this theory to the district court (likely because she pleaded a discrimination cause of action).

      . The YMCA moved to supplement the record on appeal to include late-disclosed discovery evidence of other lawsuits filed by Koester. Because we find that the YMCA prevails without inclusion of the supplemental materials, we deny the motion as moot.