author: SOUTER, Associate Justice.

text:
    MAINE COUNCIL OF the ATLANTIC SALMON FEDERATION; Natural Resources Council of Maine; Kennebec Valley Chapter of Trout Unlimited; and Maine Rivers, Plaintiffs, Appellants, v. NATIONAL MARINE FISHERIES SERVICE (NOAA FISHERIES); Brookfield Renewable Services Maine, LLC; Brookfield Power U.S. Asset Management, LLC; Brookfield White Pine Hydro, LLC; Merimil Limited Partnership; and Hydro-Kennebec, LLC, Defendants, Appellees.
    No. 16-2155
    United States Court of Appeals, First Circuit.
    June 7, 2017

      Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy, LLC, Portland, ME, and Charles Owen Verrill, Jr., Washington, DC, were on brief, for appellants.
    Kevin W. McArdle, Attorney, U.S. Dep’t of Justice, Env’t & Natural Resources Div., with whom Ellen J, Durkee and Robert P. Williams, Attorneys, U.S. Dep’t óf Justice, Env’t & Natural Resources Div.; John C. Cruden, Assistant Attorney General; and John P. Almeida, Attorney Advisor, U.S. Department of Commerce, National Oceanic and Atmospheric Administration, were on brief, for appellee National Marine Fisheries Service.
    Matthew W. Morrison, with whom Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, was on brief, for appellees Brookfield Renewable Services Maine, LLC; Brookfield Power U.S. Asset Management, LLC; Brookfield White Pine Hydro, LLC; Merimil Limited Partnership; and Hydro-Kennebec LLC.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and STAHL, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SOUTER, Associate Justice.

This appeal is from the district court’s dismissal for lack of jurisdiction of an action brought by the Plaintiff-Appellants under the Administrative Procedure Act (APA). They sought review of two biological opinions issued to the Federal Energy Regulatory Commission (FERC) by the National Marine Fisheries Service evaluating requested modifications of licenses to operate hydropower dams. We affirm.

I.

Defendant-Appellees power companies (Brookfield Renewable Services Maine, LLC; Brookfield Power U.S. Asset Management, LLC; Brookfield White Pine Hydro, LLC; Merimil Limited Partnership; and Hydro-Kennebec, LLC) sought to modify the terms of existing licenses to operate four hydropower dams on the Kennebec River in Maine, which are subject to licensing by FERC, acting under the Federal Power Act, 16 U.S.C. § 791a et seq. Because the river is a traditional waterway for spawning Atlantic salmon, a protected species under the terms of the Endangered Species Act, FERC was required to obtain biological opinions (called BiOps) from the Fisheries Service, on whether operating the dams under the proposed license modifications would jeopardize survival of the salmon species or degrade its environment. See 16 U.S.C. § 1536(a)(2), (b)(3); 50 C.F.R. § 402.14(a), (g), (h). The Fisheries Service found no jeopardy to the species from the proposed modifications and no threat of degradation. It did, however, find that the changes proposed would result in the incidental “taking”- of individual fish among the protected population. See 16 U.S.C. § 1538(a)(1)(B) (prohibiting the “take” of an endangered species); id. § 1532(19) (defining “take” to include “harm” and “kill”). Consequently, it issued ah “incidental take statement,” setting forth measures to minimize the take and providing a safe harbor for those (including FERC and its employees) who act in accord with such measures and whose actions might otherwise violate the Endangered Species Act. See id. § 1536(b)(4), (o)(2); 50 C.F.R. § 402.14(i).

The BiOps, with their incidental take statements, drew immediate objection from the Plaintiff-Appellants environmental organizations participating in the licensing proceedings (Maine Council of the Atlantic Salmon Federation, Natural Resources Council of Maine, Kennebec Valley Chapter of Trout Unlimited, and Maine Rivers). They challenged the statements in this district court action against the Fisheries Service and the power companies, brought under the provisions of Section 10 of the APA, 5 U.S.C. §§ 701-706, claiming that the BiOps were arbitrary and capricious agency actions, id. § 706(2)(A), which violated Section 7 of the Endangered Species Act, 16 U.S.C. § 1536. While the case was pending, FERC granted the license modifications by orders adopting the terms of the BiOps. The district court then dismissed the case for lack of subject matter jurisdiction, relying on section 313(b) of the Federal Power Act, 16 U.S.C. § 825Z(b), which vests jurisdiction of appeals from such FERC orders in the courts of appeals. This appeal followed, as did the Appellants’ filing for review of the FERC orders in the United States Court of Appeals for the District of Columbia.

We agree with the district court that time and events have eliminated whatever claims of district court jurisdiction to review the BiOps the Appellants might have raised, whether sound or not, when this action was filed. So far as the appeal concerns the BiOp with respect to the Hydro-Kennebec dam affecting Waterville, Win-slow, and Benton, Maine, the action is moot by virtue of the terms of the BiOp itself, which expired on December 31, 2016. As for the BiOp addressing the other three dams, FERC’s decision to modify the licenses by terms that incorporated that BiOp changed the relevant facts as alleged when the district court action was filed.

Once issued, the FERC order was unquestionably subject to the Federal Power Act’s provision for direct appellate jurisdiction of the courts of appeals, 16 U.S.C. § 825Z(b). The Supreme Court has made it clear that the jurisdiction provided by § 825Z(b) is “exclusive,” not only to review the terms of the specific FERC order, but over any issue “inhering in the controversy.” City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). Thus, the United States Court of Appeals for the District of Columbia, where the Appellants have filed their petition for review of FERC’s orders, has exclusive jurisdiction over the attacks on the BiOps, on two separate and independently sufficient grounds: as it was free to do, FERC incorporated the BiOps in its own orders, and the BiOps were by any measure “inher[ent]” in the statutory process for consideration of the license modifications. The Appellants accordingly have nowhere else to go but to the courts of appeals, where they are afforded the opportunity to litigate just what they claimed in their attempt to proceed in the district court.

The Appellants try to avoid this conclusion by pressing two arguments, neither of which avails them. They say, first, that the scope of appeal under § 825Z(b) is narrower than the review that would be afforded on a district court action under the APA: that the reach of the court of appeals goes only as far as considering whether FERC was arbitrary or capricious in accepting the BiOps as recommended by the Fisheries Service, whereas in review under the APA the district court could examine the BiOps directly for arbitrariness or capriciousness on the part of the Fisheries Service in issuing them. The former, they say, is not an “adequate” counterpart of the latter. See 5 U.S.C. § 703 (providing that “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute,” so long as that specified review proceeding is not “inade-qua[te]”); id. § 704 (authorizing judicial review of final agency action under the APA where there is “no other adequate remedy in a court”).

The argument for inadequacy fails. Not only have the Appellants found no case with reasoning that supports them, but the cases that have considered the scope of review in a court of appeals under the special Power Act provision have come down against the Appellants’ argument, seeing no good reason to read “limited” into the Supreme Court’s understanding of “exclusive” jurisdiction. See City of Tacoma v. FERC, 460 F.3d 53, 76 (D.C. Cir. 2006); Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911-12 (9th Cir. 1989); City of Tacoma v. Nat’l Marine Fisheries Serv., 383 F.Supp.2d 89, 92-93 (D.D.C. 2005); Idaho Rivers United v. Foss, 373 F.Supp.2d 1158, 1161 (D. Idaho 2005). The first of these cases is, of course, from the court in which the Appellants have filed their appeal of the FERC orders. In any event, their argument is simply precluded here by the Fisheries Service’s agreement that the scope of any court of appeals review of the BiOps will be what the APA would provide in a district court if the Fisheries Service’s BiOps could be challenged directly there. That agreement was unequivocally confirmed in open court by the Fisheries Service’s counsel in arguing this case.

The Appellants’ second argument for preserving an opportunity to challenge the BiOps directly in the district court goes to timing. To be adequate, an appeal must not only cover relevant substantive ground, but be available in a timely fashion, which the Appellants deny that court of appeals review provides: here, they say, APA review in the district court was readily invoked, whereas access to the court of appeals had to wait for the necessary action by FERC, amounting to 164 days from the date of the BiOp in the case of the Hydro-Kennebec dam, and 1035 days with respect to the BiOp for the three other dams. During those time periods, the Appellants contend, the incidental take statements could have allowed harm to occur. But we need not decide whether a sufficiently long, ongoing delay could render the review provided by § 825ü(b) inadequate. In the present case, FERC has acted and a petition for review is pending in the United States Court of Appeals for the District of Columbia. Not only is review in that court adequate in these circumstances, it is probably the Appellants’ quickest route to resolving their challenge to the BiOps.

Finally, Appellants contend that their position finds support in Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 637 F.3d 259 (4th Cir. 2011). In Dow, the Fourth Circuit held that a BiOp issued by the Fisheries Service to the Environmental Protection Agency was reviewable in district court under the APA. Id. at 261. “[DJeferring judicial review of the [BiOp] until the EPA acts,” the court said, “would not provide the [plaintiffs] adequate review of the [BiOp].” Id. But this case is not the same, for FERC, unlike the EPA in Dow, has acted on the BiOps in question, and a petition for review of that action is pending in the United States Court of Appeals for the District of Columbia.

II.

The judgment of the district court dismissing this action for lack of jurisdiction is affirmed.

      . The National Marine Fisheries Service has been renamed NOAA Fisheries. We follow the parties' lead and use the former title, which applied when the biological opinions were issued.

      . Section 8251(b) provides, in relevant part: Any party to a proceeding under this chapter aggrieved by an order issued by [FERC] in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of [FERC] upon the application for rehearing, a written petition praying that the order of [FERC] be modified or set aside in whole or in part.... Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.

      . At argument, counsel for the Fisheries Service stated that “[s]ince the biological opinion was adopted into the FERC order, it’s an inherent part of that order, so in exercising its jurisdiction over ... plaintiffs’ petition in this case, the D.C. Circuit can review not only FERC's reliance on the biological opinion, but the substantive validity of the biological opinion itself.” Oral Argument 20:15-21:00. Although the Fisheries Service made clear that its concession came with the “caveat” that the Fisheries Service might not be granted intervenor status in the case pending before the United States Court of Appeals for the District of Columbia, that condition is no longer of concern, since the request to intervene has been granted. See Order, Maine Council of the Atlantic Salmon Fed, v. FERC, No. 17-1003 (D.C. Cir. Mar. 3, 2017) (order granting the Fisheries Service’s motion to intervene); Motion of the Department of Commerce for Leave to Intervene, Maine Council of the Atlantic Salmon Fed. v. FERC, No. 17-1003 (D.C. Cir. Feb. 2, 2017) (the Fisheries Service's unopposed motion to intervene).

      . The Supreme Court’s decision in U.S. Army Corps of Engineers v. Hawkes Co., -U.S. -, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016), is also inapposite. In that case, there was no reasonable alternative procedure by which the aggrieved party could seek review of the agency action in question. If an aggrieved party did not wish to obtain judicial review by risking civil and criminal penalties for defying the agency’s determination, the proposed alternative, which had not been invoked, could be "arduous, expensive, and long.” Id. at 1815.


source: Caselaw Access Project

author: TORRUELLA, Circuit Judge.

license: Public Domain

text:
    Bernardino SANTOS-RODRÍGUEZ, G.S.G.; F.A.S.G.; Gregory Santos; Milagros López, Plaintiffs, Appellants, v. SEASTAR SOLUTIONS, f/k/a/ Teleflex Canada Ltd., Defendant, Appellee, Raúl Viera-Torres; Marcelo Colón-Torres; Cooperativa de Seguros Múltiples de Puerto Rico; Unknown Engines Manufacturer Corp.; Unknown Controls Manufacturer Corp.; Unknown Distributor Corp.; John Doe; Richard Roe; Insurance Companies X, Y and Z; Sea Fox Boat Company, Inc.; Yamaha Motor Manufacturing Corporation of America, Defendants.
    No. 15-2171
    United States Court of Appeals, First Circuit.
    June 8, 2017

      Carlos A. Del Valle-Cruz, Mayaguez, PR, with whom Humberto Guzmán-Rodrí-'guez and Guzmán & Rodríguez were on brief, for appellants.
    Salvador J. Antonetti-Stutts, with whom Aura Montes-Rodríguez, Christian Echa-varri-Junco, San Juan, PR, Nayuan Zouairabani, Hato Rey, PR, and O’Neill & Borges LLC were on brief, for appellee.
    Before TORRUELLA, THOMPSON, and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Plaintiff Bernardino Santos-Rodríguez (“Santos”) was injured in a boating accident when a corroded rod end that was part of the boat’s steering mechanism failed. Santos and several relatives sued Defendant Seastar Solutions (“Seastar”), the manufacturer of the boat’s steering mechanism, alleging a design defect and a failure to warn. Santos appeals from the district court’s grant of summary judgment in favor of Seastar. We affirm.

I. BACKGROUND

A. Factual Background

1. The Boating Accident

On June 25, 2010, Santos was riding in a twin-engine boat in a bay near Guayama, Puerto Rico. Raúl Viera-Torres (“Viera”) owned the boat, which was equipped with a hydraulic steering system manufactured in 2002 by Seastar (then known as Teleflex Canada Ltd.). The rod connecting the steering system to the right motor had a ball-joint at the end, which broke while the boat was in motion, resulting in a loss of steering and ejecting Santos from the boat. Santos sustained extensive injuries, resulting in paraplegia. None of the other plaintiffs, all relatives of Santos, were in the boat. Subsequent examination revealed that the rod end failed because of corrosion.

2. The Instruction Manual and the Boat’s Maintenance

The steering system’s instruction manual (the “Manual”) informed owners that “[b]i-annual inspection [of the steering system] by a qualified marine mechanic is required” and instructed them to “[e]heck fittings and seal locations for leaks or damage and service as necessary.” The Manual did not include a specific warning about corrosion of the rod end.

The boat’s owner, Viera, acquired it second-hand. He did not perform maintenance on the boat, did not keep a maintenance log or request maintenance documentation from the previous owner, and did not read the Manual or any of the warnings affixed to the steering system. Viera hired third-party mechanics to maintain the boat, but none of those mechanics ever brought the corroded rod end to Viera’s attention.

B. Procedural History

On June 14, 2012, Santos and four relatives filed the operative complaint, claiming diversity jurisdiction and, in the alternative, maritime jurisdiction. On March 13, 2015, the district court granted summary judgment to Seastar. It first ruled that federal maritime law, rather than the substantive law of Puerto Rico, applied to the plaintiffs’ claims. The district court then determined that the plaintiffs’ expert did not identify a specific design defect in his expert report. In doing so, the district court ruled that the expert’s deposition testimony that Seastar had used a type of stainless steel that was prone to corrosion in marine environments was inadmissible because it was not raised in the expert’s report. The district court also ruled that Santos could not show causation on his failure-to-warn claim because there was no evidence that Viera or any person maintaining the boat had ever looked at the Manual or the steering system’s warning labels. Finally, the district court dismissed claims by Santos’s relatives, which were contingent on Santos’s claims. The district court denied the plaintiffs’ motion to alter or amend the judgment on September 8, 2015.

The plaintiffs timely appealed both orders.

II. ANALYSIS

“We review orders for summary judgment de novo, assessing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party’s favor.” Bingham v. Supervalu, Inc., 806 F.3d 5, 9 (1st Cir. 2015). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The plaintiffs claim that the district court erred by applying federal maritime law, rather than the substantive law of Puerto Rico. We need not address this choice-of-law issue, however, because even under the law of Puerto Rico, the plaintiffs have not created a triable issue of fact on their claims for either a design defect or a failure to warn.

A. Santos Cannot Prove That Any Failure to Warn Caused. His Injuries

Under Puerto Rico law,

[a] plaintiff alleging failure to warn must prove[:] “(1) the manufactiirer knew, or should have known of the risk inherent in the product; (2) there were no warnings or instructions, or those provided were inadequate; (3) the absence of warnings made the product inherently dangerous; [and] (4) the absence of adequate warnings or instructions was the proximate cause of plaintiffs injury.”

Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 276 (1st Cir. 2003) (quoting Aponte Rivera v. Sears Roebuck, 44 P.R. Offic. Trans. 6, 144 D.P.R. 830 (1998)). The district court ruled that Santos had not shown causation because it was uncontested that Viera did not read the Manual, and there was no evidence that Santos himself, the mechanics who maintained the boat, or the boat’s previous owner ever read the Manual or that anyone communicated the warnings in the Manual to Viera.

Here on appeal, the plaintiffs briefly summarize evidence that the Manual did not include any warnings about corrosion of the rod end and their expert’s conclusion that the rod end was corroded and that this “caused loss of control of the steering of the boat,” leading to the accident and Santos’s injuries. They then assert, without citation, that “[u]nder Puerto Rico law, this is sufficient to raise a genuine issue of material fact.” This argument does not address the district court’s conclusion that “no evidence has been brought [to] the court’s attention from which the trier of fact could reasonably infer that the omission of additional warnings caused Santos’s damages.” Unless someone read the Manual, no warnings in it could have prevented Santos’s injuries. Thus, even assuming that the Manual did not contain “adequate warnings or instructions,” that cannot be “the proximate cause of [Santos’s] injury.” Cruz-Vargas, 348 F.3d at 276; see Ramírez v. Plough, Inc., 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d 167, 177 (1993) (“Plaintiffs mother, who administered the [drug] to plaintiff, neither read nor obtained translation of the product labeling. Thus, there is no conceivable causal connection between the representations or omissions that accompanied the product and plaintiffs injury.”); Massok v. Keller Indus., Inc., 147 Fed.Appx. 651, 660 (9th Cir. 2005) (applying California law) (“[The plaintiff] admits that he did not read the warnings and so the sufficiency of [the manufacturer’s] warnings is therefore irrelevant. [The plaintiffs] claim based on failure to warn is without merit.”).

B. Santos Cannot Prove That Any Design Defect in the Steering Rod Caused His Injuries

To prove a products liability claim under Puerto Rico law, Santos must show that: “(1) [Seastar’s] equipment has a defect, in any of its modalities; (2) the defect existed when the product left [Seastar’s] control; (3) [Seastar] is in the business of selling this type of product; (4) the defect was the adequate cause of [Santos’s injuries]; and (5) [Viera] use[d] the product in a manner that was reasonable and foreseeable by [Seastar].” Rodríguez-Méndez v. Laser Eye Surgery Mgmt. of P.R., Inc., 195 D.P.R. 769, translation at 23-24 (June 15, 2016). In Rodríguez-Méndez, the plaintiff developed an eye issue after he received laser eye surgery, and he sued .the manufacturer of the surgical equipment for selling a defective product. 1M at 3. After discovery, the manufacturer moved for summary judgment, arguing, among other things, that the plaintiff had not identified a specific defect in the surgical equipment. Id. at 5. The court of first instance denied summary judgment, but the Puerto Rico Supreme Court reversed and ordered dismissal. Id. at 25. It determined that the plaintiffs reliance on the presence of metal particles in his eye was insufficient “to establish that [the surgical] equipment suffered] from a manufacturing defect [or] was defectively designed.” Id. at 24. Rather, the plaintiffs evidence established only “that it is not normal to fin[d] metal particles in one’s eye,” and that showing was “deficient and insufficient” to survive summary judgment. Id. at 23.

Here, the plaintiffs’ expert reported that the rod end was corroded and that this corrosion “was the main cause for the failure of the subject hydraulic steering cylinder rod end.” No admissible evidence shows that the corrosion was because of some defect in the product’s design. In fact, the plaintiffs’ expert report focuses almost exclusively on whether the Manual included adequate warnings; it does not address whether the product was properly designed.

The plaintiffs assert that the rod end “failed to perform as safely as an ordinary consumer would expect” and that their expert “reported that the product’s design was subject to corrosiveness.” Their expert report, however, stated only that Seastar was “required to warn against all foreseeable hazards ... associated with the subject hydraulic steering cylinder rod end’s interchangeability, corrosiveness, preventive maintenance, and the risks associated with its failure.” It does not say that the rod end’s design made it particularly susceptible to corrosion.

The plaintiffs’ real argument is that the rod end failed, and that this is sufficient evidence of a design defect. This is precisely the type of showing rejected in Rodriguez-Méndez, where the plaintiffs’ only evidence was that something was wrong—he had metal in his eye. 195 D.P.R. 769, translation at 23. Here, the plaintiffs’ only showing is that something was wrong—the rod end failed. Thus, the plaintiffs did not present evidence that Seastar’s design of the rod end was defective.

C. The Plaintiffs’ Derivative Claims Cannot Survive

As Santos’s four family members admit, their claims under Article 1802 of the Puerto Rico Civil Code—Puerto Rico’s general tort statute—are derivative of Santos’s claims, and so if his “claim fails, so too do[ ] the relative[s’] derivative claimfs].” González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 320 (1st Cir. 2009). Because the district court properly granted summary judgment on Santos’s underlying claims, his relatives’ derivative claims cannot succeed.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment. The parties shall bear their own costs.

Affirmed.

      .“[T]he Supreme Court of Puerto Rico has consistently relied upon California Supreme Court precedent when considering issues raised by the doctrine of strict product liability.” Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 55 (1st Cir. 1998) (citing Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 25 (1st Cir. 1998)).

      . All citations are to the certified translation filed by Seastar at Docket No. 69, Exhibit A.

      . At his deposition, the plaintiffs' expert testified that Seastar used a type of stainless steel that "is not a good selection for [a] marine environment,” rather than a less-corrosive type of stainless steel. But the district court ruled that that testimony was inadmissible because it constituted a new theory not addressed in the plaintiffs' expert report. On appeal, the plaintiffs "rely ... simply on the expert report, and do without the deposition testimony.”

      . The plaintiffs cite to Pérez-Trujillo v. Volvo Car Corp. (Sweden), 137 F.3d 50, 55 (1st Cir. 1998), for the proposition that “the malfunction itself is circumstantial evidence of a defective condition.” This fails, first, because it is contrary to Rodriguez. Second, Pérez-Trujillo was a manufacturing defects case, in which the defendant argued that its product could not have malfunctioned in the way described. But an eyewitness directly observed the product malfunction—an airbag deploying under normal driving conditions—and the Court stated that “direct observation of the malfunction itself is circumstantial evidence of a defective condition.” Id. (emphasis added).

      . The plaintiffs also assert that because Santos was an invitee, he was not responsible for the boat’s maintenance. Thus, they reason, if “the accident was attributable to the owner’s negligence in maintenance, and not to its design,” it was Seastar's burden to cross-claim against Viera. The plaintiffs cite no authority for the proposition that Seastar could be liable for Viera’s negligence after he purchased the steering system, and Rodriguez-Méndez forecloses this possibility. 195 D.P.R. 769, translation at 24 (holding that the manufacturer would not be liable if the doctor "departed from the reasonable use of the sur- . gical machinery or did not give the require[d] maintenance”).


author: PER CURIAM.

text:
    Rachel C. WILLIAMS, on behalf of herself and others similarly situated, Plaintiff, Appellant, v. AMERICAN HONDA FINANCE CORPORATION, Defendant, Appellee.
    No. 16-1275
    United States Court of Appeals, First Circuit.
    June 8, 2017

      John Roddy, with whom Elizabeth Ryan, Bailey & Glasser LLP, Boston, MA, Steven R. Striffler, and Law Office of Steven R. Striffler, Boston, MA, were on brief, for appellant.
    Stuart T. Rossman, National Consumer Law Center, Boston, MA, and Jennifer P. Nelson on brief for National Consumer Law Center, amicus curiae in support of appellant.
    Eric S. Mattson, with whom Daniel R. Thies, Sidley Austin LLP, Chicago, IL, Tracy M. Waugh, and Wilson Elser Mos-kowitz Edelman & Dicker, LLP, Boston, MA, were on brief, for appellee.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   PER CURIAM.

American Honda Finance Corporation (“Honda”) loaned Rachel Williams money to buy a car. After Williams defaulted on the debt by failing to repay the loan as agreed, Honda repossessed the vehicle and sent Williams two notices in connection with its efforts to sell the car and collect any deficiency owed on the loan, a pre-sale notice and (after selling the car at auction) a post-sale notice.

Williams thereupon filed this putative class action, claiming that each of the two notices violated the Uniform Commercial Code and Massachusetts consumer protection laws. Williams faults the pre-sale notice because instead of saying that the credit due to her in calculating the deficiency would be the “fair market value of the car,” the notice used terms such as “money received from the sale (after paying our costs),” “auction proceeds,” and “proceeds of sale.” She also faults the post-sale notice because it calculated her deficiency obligation by reference to the auction proceeds, which she contends do not represent the fair market value of the car.

The outcome of this case hinges entirely on questions of Massachusetts law concerning which the Massachusetts courts have not spoken. Therefore, even though the parties have not requested it, we certify three questions to the Massachusetts Supreme Judicial Court pursuant to Massachusetts Supreme Judicial Court Rule 1:03. See Fortin v. Titcomb, 671 F.3d 63, 66 (1st Cir. 2012). Some context for those questions, along with the questions themselves, follows.

I.

Honda financed Williams’s purchase of a Honda Accord in 2007. Four years later, Williams defaulted on her loan. After repossessing the car, Honda sent Williams the first notice that is the subject of this appeal. It stated:

We have [your vehicle] because you broke promises in our agreement, and we will sell it at a private sale sometime after October 11, 2011.
The money received from the sale (after paying our costs) will reduce the amount you owe. If the auction proceeds are less than what you owe, you will still owe us the difference. If we receive more money than you owe, you will receive a refund, unless we must pay it to someone else. If you would like a written explanation on how the amount you owe was determined, or need additional information about the sale, please send your request to the address below.
You can get the property back at any time before we sell it by paying the full payoff amount, including our expenses. As of today, the payoff amount is $13,366.78, which is subject to change due to the addition of applicable fees and/or finance charges.

After Williams failed to make the payoff, Honda retained an auction company to grade the vehicle’s condition and the cost of repairing any damage. It then consulted the so-called “Black Book,” a periodically published trade manual that provides estimated values for automobiles. Based on the vehicle’s condition and the Black Book data, Honda set a floor price of $8700, below which Honda would not accept an offer. It then sold the car at an auction open only to licensed dealers, receiving $8900.

Honda then sent Williams the second notice that is the subject of this appeal. It stated as follows:

On October 27, 2011 [the 2007 Honda Accord] was sold at a Private Sale.... The above referenced personal property was sold for $8,900.00. The following is the balance on your contract:
If a TOTAL DEFICIENCY AMOUNT is shown above, the TOTAL DEFICIENCY AMOUNT IS NOW DUE AND OWING TO AMERICAN HONDA FINANCE CORPORATION.
Please remit the amount shown above immediately to the address shown below.
Should you have any questions or need assistance, please contact us at [telephone number].

In filing this putative class action, Williams alleges that the two letters Honda sent to her (and the similar letters it sent to other consumers) render Honda liable under Massachusetts General Laws chapter 106 (“UCC”), sections 9-614(4) and 9-614(5) or section 9-611, and chapter 93A. To support this claim, she points to Massachusetts’s Motor Vehicle Retail Installment Sales Act (“MVRISA”), Mass. Gen. Laws ch. 255B, § 20B, which the parties agree provides that the credit due a consumer debtor upon sale of a repossessed motor vehicle is the “fair market value” of the car, which is presumptively the car’s “retail value” in a deficiency proceeding.

Resolving this claim requires that we reconcile the provision of a safe-harbor form of notice under UCC section 9-614 with MVRISA’s mandate concerning the credit due upon sale of the car. To assist us in deciding this case, we therefore certify to the Massachusetts Supreme Judicial Court the following three questions:

1. Whether the “fair market value” of collateral under Massachusetts General Laws chapter 255B, section 20B, is the fair market retail value of that collateral?
2. Whether, and in what circumstances, a pre-sale notice is “sufficient” under UCC section 9-614(4) and (5), and “reasonable” under UCC section 9-611(b), where the notice does not describe the consumer’s deficiency liability as the difference between what the consumer owes and the “fair market value” of the collateral, and the transaction is governed by MVRISA?
3. Whether, and in what circumstances, a post-sale deficiency explanation is “sufficient” under UCC section 9-616 where the deficiency is not calculated based on the “fair market value” of the collateral, and the transaction is governed by MVRISA?

The Clerk is directed to forward to the Massachusetts Supreme Judicial Court, under the official seal of this court, a copy of the certified questions and this opinion, along with copies of the briefs and appendices filed by the parties. We retain jurisdiction over this issue pending resolution of these certified questions.


author: KAYATTA, Circuit Judge.

text:
    Todd MCKEAGUE, Plaintiff, Appellant, v. ONE WORLD TECHNOLOGIES, INC.; Ryobi Technologies, Inc.; Home Depot U.S.A., Inc., Defendants, Appellees.
    No. 16-2148
    United States Court of Appeals, First Circuit.
    June 8, 2017

      Alfred Paul Chamberland, Law Office of Alfred Chamberland, Easthampton, MA, Robert Gerard LaFlamme, and Law Office of Robert G. LaFlamme, Northampton, MA, on brief for appellant.
    Anthony Y. Agudelo and Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA, on brief for appellees.
    Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

This appeal arises out of a civil case in which the plaintiffs two lawyers did nothing to prosecute the plaintiffs claims within generous deadlines, received a second chance, and then failed to oppose a pending motion for summary judgment. On such a record, we find that the district court did not abuse its discretion in failing to grant yet another reprieve.

I.

Todd McKeague suffered injuries to his hand while using a table saw. In late 2014, he sued the three defendants, claiming that they were responsible for a defect in the design of the saw that proximately caused his injuries. Defendants removed the suit to federal court. In April of 2015, the parties filed a discovery plan that the district court approved and adopted as an order under Federal Rule of Civil Procedure 16(b). The plan required the parties to complete fact discovery by December 31, 2015. It further required plaintiff to serve expert disclosures by January 29, 2016, and it required defendants to serve expert disclosures by March 11, 2016. Expert depositions were to be taken by April 29, 2016. After the case was assigned to a new judge, the court modified the order slightly to require that all discovery requests be served by December 31, 2015, with fact discovery to be completed within sixty-five days. The court also set May 31, 2016, as the deadline for filing summary judgment motions, and June 30, 2016, as the response date. Trial was scheduled for September 19, 2016. All in all, this was plenty of time within which to conduct pretrial proceedings in ordinary course.

Defendants thereupon propounded discovery, serving interrogatories and document requests and deposing plaintiff, all well within the deadlines. Inexplicably, plaintiff served no discovery before the December 31, 2015, deadline. Instead, in early February of 2016, and without leave of the court, plaintiff belatedly served written discovery requests. Plaintiffs counsel prevailed upon defendants to assent to a motion to extend the discovery deadline nunc pro tunc, but then never filed the motion.

Worse yet, apparently plaintiffs counsel did not at the outset retain an expert in this design-defect product-liability case in which plaintiff concedes an expert is required in order to get to trial. See Triangle Dress, Inc., v. Bay State Serv., Inc., 356 Mass. 440, 252 N.E.2d 889, 891 (1969); Esturban v. Mass. Bay Transp. Auth., 68 Mass.App.Ct. 911, 865 N.E.2d 834, 835-36 (2007). But see Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954, 957 (1978) (“[I]n eases in which a jury can find of their own lay knowledge that there exists a design defect which exposes users of a product to unreasonable risks of injury, expert testimony that a product is negligently designed is not required.”). In his initial disclosures under Federal Rule of Civil Procedure 26(a)(1) filed on June 12, 2015, plaintiff identified Dr. Stephen Gass, David Fanning, and David Fulmer (the cofounders of a table saw manufacturer in Oregon) and Darry Robert Holt (a mechanical engineer) as possible expert witnesses who could testify about the safe design of table saws and the likelihood that defendants knew of safer alternative designs for the saw that plaintiff alleged injured him, but plaintiff noted in his disclosure that he had “not retained any expert witness as of the date of this filing.” In an interrogatory answer served four months later on October 26, 2015, plaintiff added another name to the list, stating that he might call as an expert witness an engineer named Richard Montifusco. Plaintiffs counsel, however, did not retain Montifusco or any of the other four possible experts at that time. The final expert disclosure deadline under the scheduling order came and went with no expert designation by plaintiff. Even when defendants subsequently and timely designated then-own expert, plaintiffs lawyers were nowhere to be found, seemingly content to make no effort at a counter-designation. Nor was this merely a problem of not filing something; plaintiffs lawyers had retained no expert to designate.

Plaintiffs counsel’s cumulative neglect came to a head when defendants timely and predictably filed a motion for summary judgment on May 31, 2016. Citing Enrich v. Windmere Corp., 416 Mass. 83, 616 N.E.2d 1081, 1084 (1993), and a handful of other cases, defendants argued in their motion, among other things, that the absence of any expert testimony was fatal to plaintiffs case given that the table saw functioned properly and suffered from no defect obvious to any layperson.

Plaintiffs counsel thereupon threw themselves (or, rather, threw plaintiff) on the mercy of the court, asking that instead of granting the well-grounded motion for summary judgment, the court reopen discovery, set a new expert-disclosure deadline for the plaintiff, order defendants to respond to plaintiffs untimely discovery, and push back the date by which plaintiff needed to oppose the summary judgment motion. To the likely annoyance of the diligent defendants, the district court granted the delinquents all they sought. The net effect was to swap the order of production, allowing plaintiff to designate an expert after defendants had already done so, and after reviewing defendants’ summary judgment motion. In other words, plaintiff received both mercy and some arguable advantage. Presumably, the district court decided that any prejudice to defendants was minimal, enough so to favor an outcome driven by the merits rather than by plaintiff’s counsel’s neglect. In its words, the district court was “reluctant to excuse [plaintiffs counsel’s] neglect, but [was] unwilling to effectively prevent Plaintiff from pursuing his case solely because of [it].” The indulgence was complete, granting plaintiff all the time requested, and more, and without any sanction. Having evaded the potential consequences of their remarkable inattention to their client's case, plaintiffs lawyers unfortunately stayed their irresponsible course. The new, extended deadline for filing an opposition to the long-pending motion for summary judgment came and went without anything— even a new motion for extension-—being filed on plaintiffs behalf. On August 10, 2016, two days after the new deadline passed, the district court dismissed the case for failure to prosecute and failure to comply with scheduling orders.

Twelve days after the case was dismissed—yes, twelve, not one or two—■ plaintiff moved for reconsideration. He argued he had timely retained an expert, but that the expert needed more time to review a large number of documents received from defendants on August 2, 2016, and that the documents should have been delivered by defendants on August 1, 2016. Unimpressed, the district court denied the motion for reconsideration. This appeal followed.

II.

Confronted with repeated failures to comply with its scheduling orders, the district court had considerable discretion in deciding what to do. Cf. Freeman v. Package Mach. Co., 865 F.2d 1331, 1341 (1st Cir. 1988). Perhaps it could have granted yet another extension, although that might have caused one to wonder if the court’s orders meant anything at all. Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st Cir. 2004) (“[T]he judicial process depends heavily on the judge’s credibility. ... If he or she sets a reasonable due date, parties should not be allowed casually to flout it or painlessly to escape the foreseeable consequences of noncompliance.” (quoting Méndez v. Banco Popular, 900 F.2d 4, 7 (1st Cir. 1990))). The district court certainly could have imposed a monetary sanction on plaintiff or counsel. See Jones v. Winnepesaukee Realty, 990 F.2d 1, 5-6 (1st Cir. 1993) (approving monetary sanctions levied pursuant to Rule 16(f) of the Federal Rules of Civil Procedure, where sanctioned litigants repeatedly defied court orders). The question posed by this appeal is whether the district court also had the discretion to dismiss the case. For the following reasons, we hold that it did.

We have previously held that when a litigant fails to comply with court deadlines after having already been once granted a reprieve from such a failure, and in the absence of a good excuse, a district court’s discretion in setting a sanction is broad enough to include dismissal. Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002). But see García-Pérez v. Hosp. Metropolitano, 597 F.3d 6, 9 (1st Cir. 2010) (per curiam) (vacating dismissal where district court contributed to case’s extremely lethargic pace and did not clearly communicate deadlines to litigants who failed to meet them). Here, plaintiffs counsel tried to excuse the ultimate failure by claiming that his expert did not have enough time to review documents and form an opinion. Plaintiffs counsel, however, provided zero support for this bald assertion. Moreover, the record shows that it took until August 2, 2016, for defendants to produce the full complement of documents only because plaintiffs counsel repeatedly neglected to send back a protective order, and that plaintiffs counsel did not even send the documents produced on August 1 and 2 to plaintiffs expert until August 13, after the court had entered its order dismissing the case. The expert, too, formed an opinion within six days and made no claim to the district court that he needed to do much other than look at information and materials that had long been available and in the hands of plaintiffs counsel. Compare Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44-45 (1st Cir. 2007) (finding dismissal inappropriate where plaintiffs “offered legitimate reasons” for delays and “promptly informed” defendants when it appeared they would likely miss a deadline), with Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d 34, 39 (1st Cir. 2012) (approving entry of default against party that willfully ignored deadlines and provided no reasonable excuse for its malfeasance).

The district court acted well within its discretion in dismissing the instant case, especially when one considers that the court’s dismissal order simply ended a case that just as easily could have ended had the court chosen to rule on the unopposed, long-pending summary judgment motion. At the time the case was dismissed, defendants’ non-frivolous motion for summary judgment was pending, and plaintiff had neither submitted opposition to defendants’ motion nor moved for an enlargement of time to do so. Plaintiff essentially asks us to find that a district court abuses its discretion unless it not only delays ruling on an unopposed motion for summary judgment, but also sua sponte extends the deadline for responding to such a motion when the plaintiff himself is silent. Such a proposed rule makes no sense in light of our decisions stating that a district court may refuse even a proper request for more time to oppose summary judgment if the request is not timely. See Pina v. Children’s Place, 740 F.3d 785, 794 (1st Cir. 2014) (noting that a litigant can move for more time under Rule 56(d) where he can show that he “cannot present facts essential to justify [his] opposition,” Fed. R. Civ. P. 56(d), but such motion need only be granted when “timely” and “authoritative,” because “Rule 56(d) is designed to minister to the vigilant, not to those who slumber upon perceptible rights” (quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 45 (1st Cir. 1998))); cf. Ramos-Peña v. New P.R. Marine Mgmt., Inc., 2 Fed.Appx. 19, 22 (1st Cir. 2001) (per curiam) (unpublished opinion) (finding no abuse of discretion in district court’s refusal to reconsider denial of motion for extension of time to submit opposition to opponent’s motion for summary judgment).

Like the district court, we prefer that adjudications be driven by the merits of a case rather than the neglect of counsel. See Malot, 478 F.3d at 43 (recognizing a “strong presumption in favor of deciding cases on the merits”); Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003) (citing HMG Prop. Inv’rs, Inc, v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 917 (1st Cir. 1988)) (recognizing the “salutary policy favoring the disposition of cases on the merits”). As the district court implicitly recognized, though, at some point this preference takes a backseat to the important goals of maintaining a fair and orderly adversarial process. Even schoolchildren know that changing the rules mid-course to benefit someone who flouted them creates subtle and even substantial risks of unfairness. Such changes increase uncertainty, introduce delay, raise costs, and invite further violations by others. Our case law evidences these competing considerations. On the one hand, “dismissal ordinarily should be employed as a sanction only when a plaintiffs misconduct is extreme.” Young, 330 F.3d at 81 (citing Enlace Mercantil Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317 (1st Cir. 1988)); see also Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 79 (1st Cir. 2009) (finding dismissal inappropriate where the district court levied “a fatal sanction ... for a single oversight”); Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006) (reversing dismissal where there was “no pattern of the plaintiffs repeatedly flouting court orders”). On the other hand, “disobedience of court orders, in and of itself, constitutes extreme misconduct (and, thus, warrants dismissal).” Tower Ventures, 296 F.3d at 46 (citing Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987)); see Young, 330 F.3d at 81.

The bottom line is that we grant a district court wide discretion in deciding how best to balance these considerations fairly in a particular case. See Batiz Chamorro v. P.R. Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1117 (1st Cir. 1989). The district court has a better sense of the underlying equities, the bona fides of counsel’s explanations, and the likelihood that a dispensation will make a difference. Here, given the failure of plaintiffs lawyers to prosecute his claim and their repeated flouting of reasonable deadlines, the district court demonstrated a reasonable sense of nuance in doing the necessary balancing.

Affirmed.


author: BALDOCK, Circuit Judge.

text:
    Sunday WILLIAMS, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
    No. 16-2147
    United States Court of Appeals, First Circuit.
    June 8, 2017

      Simone Bertollini, with whom Law Offices of Simone Bertollini, Cedar Grove, NJ, was on brief, for appellant.
    Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief, for appellee.
    Before LYNCH, BALDOCK, and KAYATTA Circuit Judges.

       Of the Tenth Circuit, sitting by designation.

   BALDOCK, Circuit Judge.

A little over sixteen years ago, Petitioner Sunday Williams, a Nigerian citizen by birth, attempted to secure his United States citizenship. Unfortunately, the way he did so was less than ideal: in lieu of utilizing any legal means at his disposal, he instead submitted a false application for a United States passport wherein he claimed that he was an American citizen hailing from Brooklyn. Federal authorities caught him in the act and eventually charged him with making a material false statement in a matter within the jurisdiction of the United States government in violation of 18 U.S.C. § 1001. Petitioner pleaded guilty, and the district court sentenced him to three years’ probation.

Now, nearly a decade after his probationary sentence ended, Petitioner seeks a writ of error coram nobis—“a remedy of last resort for the correction of fundamental errors of fact or law,” United States v. George, 676 F.3d 249, 253 (1st Cir. 2012)— that vacates or, at the very least, allows him to revise the factual basis of his § 1001 conviction. Such a writ obviously could not remedy the direct consequences of that conviction (i.e., his already-completed sentence). Petitioner, however, hopes it could remedy the collateral consequences he still suffers to this day. Specifically, because the underlying facts of his § 1001 guilty plea and conviction involved a false claim of United States citizenship, Petitioner is now “ineligible to receive visas and ineligible to be admitted to the United States.” See 8 U.S.C. § 1182(a)(6)(C)(ii). Further, no waiver or exception is available that could rescue him from that status. See id. Petitioner is therefore not only permanently barred from obtaining lawful permanent resident status, see id., but also subject to deportation at any moment, see M. § 1227(a)(3)(D). Vacating his conviction or revising its underlying factual basis would thus leave open the possibility that he could obtain a green card and remain in the United States.

So what is the supposed fundamental error that would justify granting Petitioner this “extraordinary” and “hen’s-teeth rare” writ? George, 676 F.3d at 253-54. In Petitioner’s opinion, it was the performance of his attorney, which he claims was constitutionally deficient under Sixth Amendment standards, during the proceedings for his long-since-passed conviction. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To be sure, such constitutionally deficient representation, if true, can function as the rock upon which a petitioner can build her coram nobis church. See United States v. Castro-Taveras, 841 F.3d 34, 36-37, 52-53 (1st Cir. 2016) (allowing a defendant to premise his coram nobis petition on a Sixth Amendment ineffective-assistance-of-counsel claim); Murray v. United States, 704 F.3d 23, 28 (1st Cir. 2013) (noting that writs of coram nobis are “meant to correct errors 'of the most fundamental character; that is, such as render[ ] the proceeding itself irregular and invalid’ ” (alteration in original) (emphasis added) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914))).

To demonstrate his attorney’s allegedly deficient performance, Petitioner first points to his change-of-plea hearing from July 29, 2004. As is relevant here, when Petitioner walked into that hearing to plead guilty, he had not yet been charged under § 1001; instead, he had been charged under 18 U.S.C. § 1542 with the crime of passport fraud. And in fact, Petitioner had filed motions to dismiss the passport fraud indictment for improper venue and to transfer the case to the Eastern District of New York, where Petitioner had actually made his false citizenship claims and where he lived at the time, from the District of New Hampshire, where his passport application had been processed and where the indictment was currently pending. The district court had initially denied both motions but changed course at the hearing after recognizing that our then-recent decision in United States v. Salinas, 373 F.3d 161 (1st Cir. 2004), mandated that venue did, in fact, lay in the Eastern District of New York. And in light of that recognition, the district court asked Petitioner whether he wished to waive venue and proceed with his guilty plea in the District of New Hampshire.

After speaking with Petitioner, Petitioner’s counsel replied that Petitioner no longer wished to “go through with this proceeding today” and wanted the case to be dismissed. In response, however, the prosecutor requested that the district court delay dismissing the case so that the United States could file a superseding indictment instead charging Defendant with making a material false statement in violation of § 1001. In the government’s view, this course of action was the most practical and expeditious route, for venue over a § 1001 indictment would still lay in the District of New Hampshire. Id. at 166-67.

Petitioner’s counsel agreed with the government’s new,' alternative suggestion. Without consulting anew with Petitioner to see whether he wanted to proceed with the government’s suggested course of action or still hoped to have the case dismissed, counsel stated that

[t]ime is important for [Petitioner] regarding immigration, what’s going to happen with that, so I suppose we don’t have an objection to a superseding indictment.

Petitioner’s counsel also observed that a superseding indictment would “avoid [Petitioner] being re-arrested.”

Although Petitioner went along with his counsel’s conduct at the time and, as we noted above, eventually pleaded guilty to the § 1001 charge, Petitioner now claims that his “[c]ounsel sua sponte changed [his] plea by agreeing to allow the government to file a superseding indictment—instead of having the charge dismissed—without asking [him] or explaining what that meant.” Because a defendant is guaranteed effective assistance of counsel during the “plea process,” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), Petitioner argues that such an action clearly amounts to unreasonable conduct under the Sixth Amendment.

But Petitioner does not stop there. He also claims on appeal that his counsel both “fail[ed] to advise” and “affirmatively mi-sadvised” him of the immigration consequences of pleading guilty to (initially) committing passport fraud under § 1542 and (eventually) making false statements under § 1001. And since the Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that the Sixth Amendment’s guarantee of effective assistance of counsel requires an attorney for a criminal defendant to “inform her client whether his [guilty] plea carries a risk of deportation,” id. at 374, 130 S.Ct. 1473, Petitioner thus claims that his counsel’s misadvice and lack of advice necessarily made his representation constitutionally inadequate.

For example, Petitioner points to his counsel’s statement during the July 29, 2004 change-of-plea hearing that'“[t]ime is important for [Petitioner] regarding immigration.” He contends that this statement was affirmative misadvice about the immigration consequences of pleading guilty be-' cause “[h]ow the passage of time could positively or negatively affect [Petitioner’s] immigration status is difficult to understand.” Further, Petitioner averred under penalty of perjury that his counsel “repeatedly told [him] that this was a criminal case and that it had nothing to do with [his] immigration.” And, of course, lingering in the background is his counsel’s alleged omitted advice—i.e., that he and his counsel “did not discuss anything about [Petitioner’s] immigration, other than [their] initial discussion where [his counsel] told [Petitioner] that the criminal case had nothing to do with [his] immigration.”

For his third and final allegation of his counsel’s ineffectiveness, Petitioner targets his second change-of-plea hearing on October 14, 2004, during which he pleaded guilty to the superseding § 1001 charge. In the course of pleading guilty to that charge, Petitioner admitted that he made materially false statements “in connection with an application for a United States Passport” and “[i]n order to induce and secure' the issuance of a United States Passport.” He now claims, however, that his counsel should not have let him admit to such an underlying factual basis. Under Sixth Amendment standards, Petitioner argues, an effective attorney would have instead instructed him to only plead guilty to making materially false statements in connection with and for the purpose of obtaining a “travel document.”

Petitioner asserts that the choice of which phrase to use—“travel document” or “United States Passport”—is not merely a matter of semantics. By pleading guilty to making a false statement in connection with a U.S. Passport, he argues that his counsel, for all intents and purposes, allowed him to “plead guilty to facts establishing passport fraud even though the charge was no longer pending, and the facts involving a passport were not elements of the charge of making false statements.” And based on this de facto admission of passport fraud, Petitioner claims that he unwittingly admitted he had made a false claim of United States citizenship, which, as we noted above, now forever precludes him from obtaining lawful permanent resident status and subjects him to deportation at any moment. See 8 U.S.C. §§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). If, however, he had pleaded guilty to making a false statement in connection with a travel document, Petitioner notes that he would not have been admitting to a factual basis that implied a false claim of citizenship. And since, in Petitioner’s opinion, a reference to a generic “travel document” would have been more than sufficient to meet the elements of a § 1001 charge, he claims that an effective attorney should have known to use that less destructive term.

The district court, which took the first shot at Petitioner’s coram nobis petition under the authority vested to it by the All Writs Act, 28 U.S.C. § 1651(a), concluded that none of Petitioner’s three arguments for ineffective assistance of counsel were meritorious. See George, 676 F.3d at 253 (“The authority to grant coram nobis relief derives from the All Writs Act, 28 U.S.C. § 1651(a), which empowers federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.’ ”). It therefore denied him a writ of error coram nobis. Petitioner accordingly appeals and asks us to do what the district court would not.

Our jurisdiction arises under 28 U.S.C. § 1291. Trenkler v. United States, 536 F.3d 85, 95 (1st Cir. 2008). Further, “we afford de novo review to the district court’s legal conclusions and clear-error review to its findings of fact.” George, 676 F.3d at 256. Where, as here, the district court “did not conduct an evidentiary hearing and denied the writ as a matter of law,” such a standard translates to plenary review. Id. As always, we are also free to “affirm on any basis apparent in the record,” even if it would “require! ] ruling on arguments not reached by the district court or even presented to us on appeal.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n.11 (1st Cir. 2013) (second quotation quoting Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1200 (10th Cir. 2011)).

We note at the outset that Petitioner’s case presents one of the few instances where we could even consider granting a writ of error coram nobis: “[I]n its modern form, [this writ] is ordinarily available only to a criminal defendant who is no longer in custody.” Trenkler, 536 F.3d at 98. Petitioner undoubtedly satisfies that prerequisite. But his eligibility for this “remedy of last resort,” George, 676 F.3d at 253, hinges on more than the simple fact that he is no longer serving his sentence. For one thing, he must “adequately explain his failure to seek relief earlier through other means.” Murray, 704 F.3d at 29. Further, he must also “show that he continues to suffer a significant collateral consequence from the judgment being challenged and that issuance of the writ will eliminate this consequence.” Id. Finally, and as we have alluded to several times before, “he must demonstrate that the judgment resulted from a fundamental error.” Id. And even if Petitioner satisfies this tripartite test, we “retain[ ] discretion to grant or deny the writ.” Id. at 29-30. Indeed, “[t]he Supreme Court has always envisioned coram nobis as strong medicine, not profligately to be dispensed,” so we must issue this writ “only under circumstances compelling such action to achieve justice.” George, 676 F.3d at 254-55 (second quotation quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954)).

We assume for the purposes of argument that Petitioner can adequately explain why he did not seek relief from his § 1001 conviction any earlier. We also have little trouble concluding that Petitioner continues to suffer significant collateral consequences from his § 1001 conviction and that a writ of error coram nobis would remedy those consequences. As Petitioner himself noted, he cannot obtain lawful permanent resident status because the underlying facts of that conviction involved a false claim of United States citizenship, and he is therefore subject to deportation at any moment. See 8 U.S.C. §§ 1182(a)(6)(C)(ii), 1227(a)(3)(D). “Although we have not explicitly set out what comprises a continuing collateral consequence,” we believe that, whatever the definition, Petitioner’s dilemma satisfies that requirement. George, 676 F.3d at 255-56; see also Murray, 704 F.3d at 29 n.6 (noting that something “more than the mere fact of conviction is needed” to prove a continuing collateral consequence). And of course, vacating or revising the underlying factual basis of his conviction via a writ of error coram nobis would alleviate that problem.

That leaves us to determine whether Petitioner’s § 1001 conviction resulted from a fundamental error—i.e., whether his counsel was constitutionally ineffective under the Sixth Amendment. To succeed on that argument, Petitioner must first show that his counsel’s “performance was deficient,” and he must then show that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The first requirement necessitates a demonstration that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” id., and in reviewing such an allegation, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Woods v. Donald, — U.S. -, 135 S.Ct. 1372, 1375, 191 L.Ed.2d 464 (2015) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Put differently, we will find deficiency only “where, given the facts known [to counsel] at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.” Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (internal quotation marks omitted).

The prejudice requirement, meanwhile, necessitates a demonstration of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Rossetti v. United States, 773 F.3d 322, 327 (1st Cir. 2014) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Further, that probability “must be substantial, not just conceivable,” Rivera-Rivera v. United States, 827 F.3d 184, 187 (1st Cir. 2016) (quoting Hensley v. Roden, 755 F.3d 724, 736 (1st Cir. 2014)), or, stated differently, “a probability sufficient to undermine confidence in the outcome,” Mello v. DiPaulo, 295 F.3d 137, 142 (1st Cir. 2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “Hence, [Petitioner’s] Sixth Amendment claim[s] will fall short unless he can show a substantial likelihood that he would have obtained a different outcome” on his § 1001 charge. Rivera-Rivera, 827 F.3d at 187.

Petitioner’s first allegation—that his counsel sua sponte changed his plea by allowing the government to file a superseding indictment without consulting him about it—fails for two reasons. First, we do not believe that his counsel’s decision to allow the government to file a superseding indictment was constitutionally deficient. Instead, we conclude that it was a valid, reasoned decision meant to avoid further delay. If Petitioner’s counsel had fought the government’s decision to file a superseding indictment, the district court indicated it simply would have dismissed the case without prejudice, and the government indicated that it still would have filed new charges under § 1001 in a brand new indictment. As a practical matter, this would have been the exact same scenario that Petitioner ended up facing: being charged under § 1001. The only difference is that, as Petitioner’s counsel recognized, the government would have had to re-arrest Petitioner, which would have resulted in an unnecessary delay. Because Petitioner’s counsel saw the writing on the wall and agreed with the government’s request for a superseding indictment to avoid this delay, we cannot say that this was a constitutionally deficient choice even though counsel did not discuss the matter with Petitioner.

Second, even if his counsel’s decision was constitutionally deficient, Petitioner cannot show that he suffered any prejudice. Again, the result of the proceeding would have been no different had his counsel not agreed with the government’s wish to file a superseding indictment: Petitioner eventually would have been charged under § 1001 for making a material false statement. Petitioner, however, argues that the initial result of the proceeding would have been different because the § 1542 charge for passport fraud would have been dismissed. As such, he contends that if the government chose to file a new charge under § 1001, he in turn could have filed a new motion to transfer that charge to the Eastern District of New York (an action he could not take once his attorney agreed to a superseding indictment in the District of New Hampshire). And if the district court granted that motion, Petitioner claims it would have been easier for him to defend against the charge since he would have been in his hometown and with his family. But Petitioner has provided no evidence or other compelling information suggesting that the district court would have granted any motion to transfer a new § 1001 charge to the Eastern District of New York. In fact, the record before us shows a strong likelihood that Petitioner still would have been subjected to a § 1001 charge in the District of New Hampshire. Thus, at most, the probability the district court would have granted any such motion is merely conceivable, not substantial. And even if the district court did grant his motion, there is no evidence suggesting that he could have successfully defended against a § 1001 prosecution in New York. We therefore cannot say Petitioner suffered any prejudice.

Petitioner’s second allegation of his counsel’s ineffectiveness—that his counsel failed to advise and affirmatively misadvised him of the immigration consequences of pleading guilty—also fails. For starters, under Chaidez v. United States, 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), we cannot grant Petitioner any relief for his claims insofar as they relate to his counsel’s alleged failure to advise. In Chaidez, the Supreme Court expressly held that it had “announced a new rule in Padilla,” and for that reason “defendants whose convictions became final prior to Padilla ... cannot benefit from its holding.” Id. at 1113. Further, “the Supreme Court certainly decided that Padilla’s new rule covers failure-to-advise claims.” Castro-Taveras, 841 F.3d at 43. Consequently, Plaintiff, whose judgment was entered in 2005, cannot rely on the 2010 Padilla decision to claim that his attorney was constitutionally ineffective by failing to advise him of the immigration consequences of pleading guilty.

The story is different for Petitioner’s claims that his attorney affirmatively misadvised him. Unlike failure-to-advise claims, “Padilla’s misadvice holding did not constitute a new rule” and is therefore not barred retroactively under Chaidez. Castro-Taveras, 841 F.3d at 51. Thus, as of 2005 when judgment was entered, Petitioner’s counsel could have been constitutionally ineffective under Sixth Amendment standards if he did, in fact, affirmatively misadvise Petitioner about the immigration consequences of pleading guilty. Id. (holding that at least as of 2003—two years before Petitioner’s judgment of conviction—affirmative-misadvice claims were “so embedded in the fabric of the Sixth Amendment framework that ‘all reasonable jurists’ would have agreed that Strickland applied to [those] claims” (citation omitted) (quoting Lambrix v. Singletary, 520 U.S. 518, 528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997))).

But even though we theoretically could grant Petitioner relief for his claims that his attorney misadvised him about the immigration consequences of pleading guilty, Petitioner hits another snag: although he makes this misadvice argument on appeal, he did not advance this same argument in his original coram nobis petition. In fact, his petition alleged only that his attorney failed to advise him of any immigration consequences, and Petitioner sought to assert misadvice claims only when the government moved to dismiss his petition on the grounds that Padilla ⅛ holding on failure-to-advise claims was not retroactive under Chaidez. We do not take kindly to parties who “shift[] legal theories and s[eek] to re-characterize [their] Com-plaintfe] in a way that might parry [the defendants’] blow[s].” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 85 (1st Cir. 2008). “The court, and the defendants, are entitled to rely on the plain language and the structure of the complaint in determining what claims are present there,” and “the plaintiff is not entitled to pursue ‘every legal theory that a court may some day find lurking in the penumbra of the record.’ ” Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 91 (1st Cir. 2014) (quoting Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)). “Otherwise, waiver looms.” Snyder v. Collura, 812 F.3d 46, 51 (1st Cir. 2016).

Moreover, even if we generously assume that Petitioner did not waive his affirmative-misadvice claims, Petitioner suffered no prejudice from his attorney’s alleged misadvice because the district court itself informed Petitioner that he faced immigration consequences. For instance, at his first change-of-plea hearing on July 29, 2004, while Petitioner was still charged with passport fraud, the following exchange took place:

THE COURT: Now, do you understand as a consequence of this offense it is possible that you could be deported?
[PETITIONER]: Yes, sir.

And at his second-change-of plea hearing on October 14, 2004, where Petitioner pleaded guilty to making a material false statement, a similar exchange occurred:

THE COURT: As a result of this conviction, do you understand that you could face the possibility of deportation?
[PETITIONER]: Yes, sir.

Given that the district court wisely took it upon itself to inform Petitioner of the immigration consequences of pleading guilty, we do not see a substantial likelihood that anything different would have happened had Petitioner’s counsel not (allegedly) mi-sadvised him.

Petitioner’s third and final allegation of his counsel’s ineffectiveness— that his counsel should not have let him plead guilty to facts establishing passport fraud—also fails. For one thing, under § 1001, “the government is required to prove not only that the defendant’s statements were false, but also that they were material,” United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994), which means that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed,’ ” United States v. Gaudin, 515 U.S. 506, 509, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (second alteration in original) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)). As should be obvious, the district court could not have determined whether Petitioner’s false statements had a tendency to influence a decision of the U.S. State Department’s National Passport Center if it had not known he had, in fact, submitted a false application for a United States Passport. Indeed, the district court could not have gleaned this same information had Petitioner merely admitted he had made false statements in order to obtain a generic travel document. Even more, there is no persuasive evidence that the prosecutor would have agreed to the amorphous customization of the charge even had it been sought. We therefore conclude that Petitioner’s counsel was not constitutionally ineffective by allowing him to plead guilty under § 1001 to making material false statements in order to obtain a U.S. Passport.

Accordingly, because Petitioner’s counsel was not constitutionally ineffective under the Sixth Amendment in any way, Petitioner cannot establish that his conviction under § 1001 for making a material false statement arose from any fundamental error. We therefore deny him a writ of error coram nobis on that ground alone. But we note that even if Petitioner could satisfy our tripartite test for coram nobis relief, we would exercise our discretion to deny him such a writ in any event. “[W]hen a defendant seeks to vacate a guilty-plea conviction by way of coram no-bis, red flags accompany that request” and “great caution is warranted.” George, 676 F.3d at 257-58. And given that Petitioner entered a guilty plea in this case, it “seems dubious that granting the writ w[ould] promote the interests of justice.” Id. at 260. Thus, no matter how he slices it, Petitioner remains bound by his conviction.

“A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent.” George, 676 F.3d at 251. Petitioner cannot satisfy this difficult standard. We therefore AFFIRM the district court’s denial of a writ of error coram nobis.