author: KAREN LeCRAFT HENDERSON, Circuit Judge: GRIFFITH, Circuit Judge,

text:
    Manu KENNEDY, Appellant v. Muriel BOWSER, Mayor of Washington, District of Columbia, et al., Appellees
    No. 15-7143
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 6, 2016
    Decided December 9, 2016

      Richard T. Seymour, Washington, DC, and Shannon C. Leary, Silver Spring, MD, argued the cause for the appellant. Gary M. Gilbert, Silver Spring, MD, was on the briefs.
    P. David Lopez, General Counsel, Equal Employment ' Opportunity Commission, Jennifer S. Goldstein, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, and Philip M. Kovnat, Attorney, were on the brief for amicus curiae Equal Employment Opportunity Commission in support of the appellant.

      Stacy L. Anderson, Senior Assistant Attorney General, Office of the Solicitor General, argued the cause for the appellees. Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were with her on the brief.
    Before: HENDERSON and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   Concurring opinion filed by Circuit Judge GRIFFITH.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Manu Kennedy was a fireman with the District of Columbia (District) Fire and Emergency Medical Services Department (Department). He had a beard. Department policy required him to shave it. Because of a medical condition, however, he could not do so without discomfort and infection. He asked the Department to accommodate his condition. The Department refused. Kennedy sued, alleging 28 counts of discrimination. As relevant here, he alleged disability discrimination under the Americans with Disabilities Act of 1990 (ADA) and related statutes, arguing that his condition was a “disability” as defined by the ADA Amendments Act of 2008 (Amendments Act or Act). The district court dismissed eight counts resting on that definition. It later denied reconsideration. Kennedy appeals the latter order on an interlocutory basis under 28 U.S.C. § 1292(b).

Section 1292(b) provides an appellate court with jurisdiction to review an interlocutory order only “if application is made to it within ten days after the entry of the order[.]” Kennedy did not satisfy that condition. He filed a notice of appeal in the district court two days after the court denied reconsideration. But he waited several weeks before filing his application in this Court. He does not dispute that his application was late and therefore inadequate under section 1292(b). Instead he contends that the notice of appeal and the order denying reconsideration, both of which were transmitted to this Court within the statutory period, serve the same purpose as an application and can be treated as such. We disagree. Even assuming the “functional equivalent” of an application satisfies section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure — an issue we do not decide — the notice and order here do not meet that description. Absent a timely application, we lack jurisdiction. Carr Park, Inc. v. Tesfaye, 229 F.3d 1192, 1194 (D.C. Cir. 2000) (per curiam). Accordingly, and for the reasons below, we dismiss Kennedy’s appeal.

I. BACKGROUND

Kennedy attempts to appeal the dismissal of several claims. We therefore “accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in [his] favor.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). Because we do not — indeed cannot — pass upon the merits, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), we recite the facts and procedural history only as necessary to provide context for dismissing the appeal.

A. Alleged Discrimination

In 2001, the Department implemented a policy prohibiting beards. The policy was meant to ensure that every firefighter’s respirator fit properly. Kennedy began working for the Department in 2002 and complied with the policy for several years. He did so even though he suffered from pseudofolliculitis barbae, a condition that can cause ingrown hairs, irritation, sores and infection from shaving.

By May 2008, Kennedy had an infected spot on his face that did not heal because of his close shaving. His dermatologist told him that he needed to maintain facial hair of at least one-eighth inch. Kennedy followed his physician’s recommendation and in July 2008 arrived at' work with a beard. He gave the Department documentation of his physician’s opinion and sought an accommodation for his condition. The Department denied his request and temporarily suspended him.

In September 2008, the Congress passed the Amendments Act, Pub. L. No, 110-325, 122 Stat. 3553, “to broaden the definition of a disability” under the ADA, 42 U.S.C. §§ 12101 et seq. Nurriddin v. Bolden, 818 F.3d 751, 757 n.4 (D.C. Cir. 2016) (per curiam); compare 42 U.S.C. § 12102(2) (1990) (earlier definition), with Amendments-Act § 4(a), 122 Stat. at 3555-56 (expanded definition). The Congress found that courts had unduly “narrowed the broad scope of protection intended to be afforded by the ADA”- and “incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities!)]” Amendments Act § 2(a)(4), (6), 122 Stat. at 3553, The Act took effect on January 1, 2009. Amendments Act § 8, 122 Stat. at 3559.

In 2009 through 2018⅛ between absences owing to suspension, stress and depression, Kennedy continued to work at the Department. But because he had a beard — and even though he had passed a “fit test” demonstrating that he could safely wear a respirator over it — the Department limited him to office duty, training and fire inspections, At least twice after January 1, -2009, Kennedy sought an' accommodation permitting him to work— bearded — full time in the field. The Department either denied the requests or did not act on them. Kennedy resigned .in May 2013.

B, Kennedy’s Complaint

In September 2013, Kennedy filed suit against the District, the Department and several officials. The district court dismissed from the suit all defendants except the District. The. complaint alleged 28 counts of discrimination. At issue here are eight counts that allege violations of 42 U.S.C. § 1983 (Counts 6, 9 and 13); the District of Columbia Human Rights Act of 1977, D.C. Code §§ 2-1401.01 et seq. (Counts 10 and 14); and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (Counts 22, 23 and 24). Those eight counts rest on Kennedy’s claim that his condition, pseudofolliculitis barbae, is a disability within the meaning of the ADA.

C. District Court’s Dismissal op Counts and Certification op Appeal

In March 2015, the district court dismissed those eight counts. It recognized that, before it could determine whether Kennedy had alleged facts sufficient to stave off dismissal, it had to decide whether the Amendments Act applied. It held that the Act did not apply and that “the pre-amendment liability standards govern this case.” Mem. Op, 9, Dkt. No. 21 (Mar. 20, 2015). In reaching its conclusion, the court emphasized that’ the Act “did not become effective until January 1, 2009, and it does not have retroactive effect.” Id. at 7 (citing Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936 (D.C. Cir. 2009)). In the court’s view, applying the Act’s expanded definition of a disability even to the Department’s post-enactment failures to accommodate Kennedy’s condition gave the Act retroactive effect because the Department’s conduct related back to the 2008 request for an accommodation. The court then held that Kennedy’s condition did not meet the pre-2009 definition of a disability. It did not address whether his condition is a disability under the expanded definition.

In April 2015, Kennedy moved the district court to reconsider its decision. Alternatively, he asked the court to amend its March 2015 order by certifying it for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

On November 16, 2015, the district court denied reconsideration but certified for immediate appeal “the issue of whether the [expanded] definition of ‘disability’ applies to Kennedy’s complaints_” Mem. Op. & Order 9, Dkt. No. 30 (Nov, 16, 2015). The court concluded that the issue is “⅛ controlling question of law”’; “‘there is substantial ground for difference of opinion’ ” about it; and an interlocutory appeal “ ‘may materially advance the ultimate termination of the litigation.’ ” Id. (quoting 28 U.S.C. § 1292(b)). In acknowledging substantial ground for difference of opinion, the court pointed especially to guidance from the United States Equal Employment Opportunity Commission (EEOC) that the Amendments Act “ “would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) ,.. after January 1, 2009.’ ” Id. at 6 (quoting EEOC, Questions and Answers on Final Rule Implementing ADA Amendments Act of 2008, http://www.eeoc.gov/laws/ regulations/ada_qa_finaLrule.cfm) (emphasis supplied by district court). And in concluding, that an interlocutory appeal materially- advanced the litigation, the court noted that “an eventual reversal .,. after the parties fully litigate the remaining counts would likely require reopening discovery on the issues of disability and reasonable accommodation, resulting in significant but avoidable, costs and delays.’’ Id. at 7.

D. Kennedy’s Attempt to Perfect Appeal

Section 1292(b) requires the appellant to file an application for peimission to appeal with the appellate court within ten days after entry of the order from which the appeal is taken. Under Federal Rule of Appellate Procedure 5, which implements section 1292(b), “[a] notice of appeal need not be filed.” Fed. R. App. P. 5(d)(2).

Notwithstanding those provisions, Kennedy filed a notice of appeal in district court on November 18, 2015, two days after the order denying reconsideration. The next day, November 19, the district court transmitted the notice and the order to this Court. Kennedy did not file an application in this Court until December 30, 2015, several weeks after the ten-day deadline had passed. In early January 2016, the District filed an opposition asking that the application be denied as untimely. The application was referred to the merits panel.

II. ANALYSIS

Kennedy argues that we have jurisdiction under section 1292(b). He does not dispute that, because his application to this Court was untimely, it did not itself satisfy the statute or Rule 5. Fed. R. App. P. 5(a)(2) (“The petition must- be filed within the time specified by the statute or rule authorizing the appeal — ”); see Fed. R. App. P. 26(b)(1) (“[T]he court may not extend the time to file ... a petition for permission to appeal_”). He contends, however, that his notice of appeal and the order denying reconsideration — both of which were transmitted to this Court within the statutory period — are the “functional equivalent” of a timely application. Appellant’s Reply Br. 8; see Appellant’s Br. 4-5. We disagree.

Section 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b).

Rule 5 effectuates and augments the statute. Rule 5(a)(1) provides in part that “a party must file a petition for permission to appeal[,]” which petition “must be filed with the circuit clerk[.]” Rule 5(b)(1) lists the required “[cjontents of the [pjetition” as follows:

■ (A) the facts necessary to understand the question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment complained of and any related opinion or memorandum, and
(ii) any order stating the district court’s permission to appeal or finding that the necessary conditions are met.

Finally, Rule 5(b)(2) provides that “[a] party may file an answer in opposition or a cross-petition within 10 days after the petition is served.”

We have not previously addressed whether a notice of appeal, accompanied by the order certifying an appeal, can satisfy section 1292(b) and Rule 5 if the documents are transmitted to this Court'within the statutory period. In Carr Park, Inc. v. Tesfaye, 229 F.3d 1192 (D.C. Cir. 2000) (per curiam), we broadly stated that “[failure to file the petition for permission to appeal within the 10-day period provided by the statute deprives us of jurisdiction over the appeal.” Id. at 1194. No notice of appeal was filed there, see Tesfaye v. Carr Park, Inc., 1:99-cv-02561 (D.D.C.), and we therefore had no occasion to decide the question we confront today.

Our sister circuits have taken divergent approaches to the application requirement. Some have “strictly construed” the requirement. Milbert v. Bison Labs., Inc., 260 F.2d 431, 436 (3d Cir. 1958) (en banc); see also, e.g., Lynch v. Johns-Manville Sales Corp., 701 F.2d 44, 45 (6th Cir. 1983) (per curiam) (requiring “strict compliance”). Other courts áre somewhat more flexible. Analogizing to United States Supreme Court precedent interpreting Federal Rule of Appellate Procedure 3, see Smith v. Barry, 502 U.S. 244, 247-50, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-18, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the latter courts have held or at least suggested that they do not require strict compliance if a “functional equivalent” serves as the application, see, e.g., In re Turner, 574 F.3d 349, 351-54 (7th Cir. 2009) (Rule 5); Blausey v. U.S. Tr., 552 F.3d 1124, 1130-31 (9th Cir. 2009) (per curiam) (Rule 5); Estate of Storm v. Nw. Iowa Hosp. Corp., 548 F.3d 686, 687-88 (8th Cir. 2008) (per curiam) (section 1292(b) and Rule 5); Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231-32 (11th Cir. 2007) (Rule 5); Casey v. Long Island R.R. Co., 406 F.3d 142, 145-46 (2d Cir. 2005) (section 1292(b) and Rule 5); Aucoin v. Matador Servs., Inc., 749 F.2d 1180, 1181 (5th Cir. 1985) (section 1292(b) and Rule 5).

We need not choose between the competing approaches here. Even under the more flexible approach, the documents the district court transmitted to this Court were not equivalent to an application. See Torres, 487 U.S. at 315-16, 108 S.Ct. 2405 (“Permitting imperfect but substantial compliance with a technical requirement is not the same as waiving the requirement altogether as a jurisdictional threshold.”). The baseline requirement is that the “party must file a petition for permission to appeal ... with the circuit clerk_” Fed. R. App. P. 5(a)(1) (emphasis added). The only thing Kennedy filed within the statutory period was the notice of appeal. Because the notice was not directed to this Court and did not request permission to appeal, it nowise functioned as an application. See Main Drug, 475 F.3d at 1232 (notice of appeal and application for permission to appeal “are fundamentally different” in terms of “function”); Aucoin, 749 F.2d at 1181 (notice of appeal “misfires in function”); cf. Casey, 406 F.3d at 146 (merits brief filed in court of appeals before section 1292(b)’s ten-day deadline was functional equivalent of application).

Nor do we have any business rewriting Rule 5 to permit a would-be appellant to enlist the district court.to serve as his proxy by the latter’s transmitting the notice of appeal and the order under review as a rough substitute for an application. The district court’s order explained why, in the court’s view, the case met the statutory criteria for certification. Mem. Op. & Order 9, Dkt. No. 30 (Nov. 16, 2015) (court concluded that Amendments Act issue was “ ‘a controlling question of law as to which there is substantial ground for difference of opinion’ ” and that ‘an immediate appeal ... may materially advance the ultimate termination of the litigation’ ”) (quoting 28 U.S.C. § 1292(b)) (ellipses supplied by district court). To repeat, however, the Rule requires that a party file the petition, Fed, R. App. P. 5(a)(1), which means that the party must explain “why the appeal should be allowed and is authorized by a statute or rule[,]” Fed. R. App. P. 5(b)(1)(D). Because the Rule demands the applicant’s advocacy, transmission of the district court’s views does not suffice. The Supreme Court has all but stated as much. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (“[E]ven if the district judge certifies the order under § 1292(b), the appellant still has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.”) (internal quotation omitted). '

Section 1292(b)’s discretionary nature reinforces our conclusion. 28 U.S.C. § 1292(b) (if district court certifies appeal, appellate court “may thereupon, in its discretion, permit an appeal to be taken .., ”). The legislative history compares the áppellate court’s discretion under section 1292(b) to the Supreme Court’s discretion to grant or deny certiorari under 28 U.S.C. § 1254(1). S. Rep. No. 85-2434, at 3 (1958) (appellate court “may refuse to entertain such an appeal in much the same manner that the Supreme Court today refuses to entertain applications for writs of certiora-ri”). In other words, we “may deny the appeal for any reason, including docket congestion,” Coopers & Lybrand, 437 U.S. at 475, 98 S.Ct. 2454, and we are not limited to the statutory criteria that govern the district court’s certification decision, Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en bane). It follows that the district court, in certifying an appeal, may not ordinarily discuss all of the considerations bearing on “why the appeal should be allowed[.]” Fed. R. App. P. 5(b)(1)(D). That is the applicant’s task, a necessary part of which is persuading us that there is no prudential impediment to our interlocutory review. See, e.g., Garcia v. Johanns, 444 F.3d 625, 636-37 (D.C. Cir. 2006) (declining under section 1292(b) to review claim “benefitfing] from further development in the district court”); 16 Charles Alan Wright et al„ Federal PRACTICE AND PROCEDURE: JURISDICTION AND Related Matters § 3929, at 447-52 & nn.51, 54-58 (3d ed. 2012) (citing cases denying or withdrawing permission to appeal for various prudential reasons).

In short, neither the notice of appeal nor the district court’s order performed the required adversarial functions. The notice was pro forma. The order (properly) addressed only the statutory criteria with no reference to prudential considerations that might stay our hand until final judgment. Additionally, Kennedy’s failure to file a bona fide application within the statutory period deprived the District of an opportunity to respond promptly. Under Rule 5(b)(2), the District was entitled to “file an answer in opposition or a cross-petition within 10 days after the petition [was] served.” If Kennedy were right that he effectively petitioned this Court on November 19, 2015 — the day the notice and the order were transmitted — the District’s answer would have been due on November 30. Yet the District could not have known the clock was ticking because Kennedy had not served an application on it. At oral argument, Kennedy emphasized that the District was able' to address jurisdiction throughout the pendency of the appeal, including at the merits stage. Oral Arg. Recording 3:53-5:37. But the point of the ten-day deadlines for both the application and the answer is to ensure a fast and focused process for deciding, before merits briefing, whether we review the matter at all. Aucoin, 749 F.2d at 1181 (timely application “permits a near-contemporaneous assessment by the trial and appellate courts of the need for immediate appellate review” and “inform[s] the appellate court in a manner which allows it promptly to respond”); see also S. Rep. No. 85-2434, at 3 (application requirement is “protection against delay”). Kennedy’s untimeliness thwarted that threshold process.

The notice of appeal and the order transmitted to this Court on November 19, 2015, were not the functional equivalent of an application for permission to appeal and the application that Kennedy filed on December 30, 2015, was untimely under 28 U.S.C. § 1292(b). Because a timely application is a “condition precedent[]” to appellate jurisdiction, Milbert, 260 F.2d at 435; see Carr Park, Inc., 229 F.3d at 1194, we dismiss the appeal.

So ordered.

GRIFFITH, Circuit Judge,

concurring:

I join the court’s holding that Kennedy failed to timely file even the functional equivalent of a petition for permission to appeal under 28 U.S.C. § 1292(b) and Federal Rule of Appellate Procedure 5, Before the statutory deadline, all Kennedy did was file a notice of appeal with the district court’s clerk. And all this court received— transmitted by the district court’s clerk— was that notice, the district court’s opinion and order certifying the interlocutory appeal, and the district court’s docket sheet. These materials failed to perform two essential functions of a petition for permission to appeal: to actually request permission from this court, and to put the other party on notice of its chance to respond. See Op. at 535, 536-37; see also Fed. R. App. P. 5(a)(1) (“To request permission to appeal ... a party must file a petition for permission to appeal.”); id. (requiring “proof of service on all other parties to the district-court action”); id. 5(b)(2) (“A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.”).

I write separately to emphasize that our decision is limited to the facts at hand: a filing that fails to perform the most rudimentary functions of a proper petition. Our holding does not resolve whether more conscientious efforts might qualify as functional equivalents of petitions for permission to appeal. For instance, we do not rule out that a filing might pass muster as a functional equivalent if it adopts the district court’s reasoning by reference. But Kennedy’s filing did not even direct attention to the portion of the district court’s opinion discussing § 1292(b). Neither do we hold that a party must anticipate and address the range of prudential considerations that the appellate court might find relevant. But Kennedy failed even to ask this court to permit the appeal. Nor do we hold that a party may never use an agent to transmit a petition to the circuit court as Kennedy does not argue that he had used the district court’s clerk in that way.

One fínal note. Because, of the failure by Kennedy’s counsel to petition for permission to appeal, we are barred from addressing a merits issue that the district court thought close and important enough to certify for interlocutory review. If Kennedy still believes that issue warrants resolution, he might seek a new certification order from the district court. Our limited decision today says nothing about whether a second attempt would succeed. Cf. Marisol v. Giuliani, 104 F.3d 524, 527-28 (2d Cir. 1997) (describing a circuit split over whether.a new certification order restarts the § 1292(b) clock); 28 U.S.C. § 1292(b) (requiring both certification from the district court and permission from the appellate court).

      . Kennedy styled his motion as one to alter or amend judgment. Because the district court’s March 2015 order did not resolve all of his claims or result in a judgment, however, the court treated the motion as one seeking reconsideration. Kennedy does not claim error on that score.

      . Under section 1292(b), "appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court." Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (emphasis in original). The district court did not specify which order — the March 2015 order dismissing counts or the November 2015 order denying reconsideration — it was certifying. But because the time for appealing, the March order had expired, and because the certification was included in the November order, we conclude that the court certified the latter order. See Fed. R. App. P. 5(a)(3) ("[Tjhe district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order,’’),

      .Rule 5 "govern[s] all discretionary appeals from district-court orders, judgments, or decrees .., including] interlocutory appeals under 28 U.S.C. § 1292(b), (c)(1), (d)(1) & (2),” Fed. R. App. P. 5 advisory committee’s note to 1998 amendments.

      . Because Kennedy invokes only section 1292(b), we need not consider whether there is any alternative basis for jurisdiction. See Scenic Am., Inc. v. Dep’t of Transp., 836 F.3d 42, 53 n.4 (D.C. Cir. 2016) ("Although a party cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim that we possess jurisdiction.'').

      . November 29 was a Sunday so the due date would have been November 30. See Fed. R. App. P. 26(a)(1)(C).

      . Kennedy also urged us to treat the district court's certification of an appeal as "entry of a final judgment” under Federal Rule of Civil Procedure 54(b), at least as to the eight counts based on the ADA. Oral Arg, Recording 5:37-7:39. Because he raised that point for the first time at oral argument, we do not consider it. United States ex rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015) (“Generally, arguments raised for the first time at oral argument are forfeited.”).


source: Caselaw Access Project

author: SELYA, Circuit Judge.'

license: Public Domain

text:
    WEN YUAN CHAN, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-2112
    United States Court of Appeals, First Circuit.
    December 13, 2016

      Gregory Romanovsky, Brookline, MA, with whom Romanovsky Law Offices was on brief, for petitioner.
    Robert Michael Stalzer, Attorney, Office of Immigration Litigation, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, and Annette M. Wiete-cha, Attorney, Office of Immigration Litigation, were on brief, for respondent.
    Before BARRON, SELYA and STAHL, Circuit Judges.
   SELYA, Circuit Judge.'

This case presents a question of first impression in this circuit: when United States Citizenship and Immigration Services (USCIS) has approved an 1-130 “immediate relative” visa petition based on.an alien’s marriage to a United States citizen, does the immigration court, in a parallel removal proceeding, have jurisdiction to inquire into the bona fides of the anchoring marriage? Here, the immigration judge (IJ) answered this question in the affirmative; found the anchoring marriage to be a sham; denied the alien’s request for an adjustment of status; and entered an order of removal. The Board of Immigration Appeals (BIA) affirmed. After careful consideration, we hold that the bona fides of the anchoring marriage were properly before the immigration court and — with that foundation in place — wé conclude that the BIA’s decision is supported by substantial evidence. Accordingly, we deny the alien’s petition for judicial review.

I. BACKGROUND

Petitioner Wen Yuan Chan is a Chinese national. She entered the United States in February of 2006 on a non-immigrant visitor’s visa, Around the beginning of April, she met her husband-to-be, Sui Wah Chan, who is a citizen of the United States. Their courtship was brief: within two months, they married. Sui Wah Chan promptly filed papers with USCIS to adjust the immigration status of both the petitioner and her son so that they could become legal permanent residents (LPRs). USCIS refused to recognize the marriage, however, and rejected her application for adjustment of status in October of 2007.

On December 12, 2007, the Department of Homeland Security instituted removal proceedings against the petitioner (who, by then, had overstayed her visitor’s visa). While those removal proceedings were pending, Sui Wah Chan again asked US-CIS, by means of an 1-130 “immediate relative” visa petition, to recognize his marriage to the petitioner. USCIS approved this second 1-130 petition in October of 2008. Because removal proceedings were in progress, however, only the immigration court (not USCIS) could adjust the petitioner’s status. See 8 C.F.R. §§ 245.2(a)(1), 1245,2(a)(l)(i).

On October 28, 2010, the petitioner filed applications for an adjustment of status and a waiver of' inadmissibility in the removal proceeding. On February 14, 2013 (ironically, Valentine’s Day), the IJ held a hearing, to determine the bona fides of the petitioner’s marriage and to pass upon her pending applications. The IJ found that the petitioner’s testimony was not credible and that, based on the evidence presented, her “marriage at the timé of its inception was not bona fide.” Since the petitioner’s application for an adjustment of status was premised on the marriage, the IJ’s finding that the marriage was a sham rendered her ineligible to adjust her status.

Although the inquiry might have ended there, the IJ went on to find the petitioner inadmissible for two separate reasons. First, he concluded that she was inadmissible undeb 8 U.S.C. § 1182(a)(6)(C)© because she was attempting to procure an immigrant visa through a fraudulent marriage. Second, he concluded that she was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) due to her 2008 nolo contendere plea to a Connecticut assault charge (which the IJ found to bé a crime involving moral turpitude). Next, the IJ refused the petitioner’s request for a waiver of inadmissibility, both as a matter of discretion and because he found her ineligible for the waiver. Having announced these rulings, the IJ wrapped up the package by ordering the petitioner’s removal to China. ■

The petitioner appealed to the BIA, which affirmed ostensibly “[f]or the reasons discussed by the [IJ].” The BIA, however, added its own gloss. Like the IJ, it concluded that the petitioner “fail[ed] to establish [that] she entered into the marriage in good faith,” thus rendering her ineligible for the relief that she sought. In reaching this conclusion, the BIA explicitly rejected the petitioner’s contention that her approved 1-130 petition stripped the IJ of jurisdiction to consider whether her marriage was bona fíde. The BIA further agreed that the petitioner’s sham marriage rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). In view of this determination, the BIA saw no need to address the question of whether the petitioner was inadmissible on account of her criminal record. This timely petition for judicial review followed.

II. ANALYSIS

“Where, as here, the BIA adopts and affirms the IJ’s decision but adds reasoning of its own, we review the tiered decisions as a unit.” Ramirez-Matias v. Holder, 778 F.3d 322, 325 (1st Cir. 2015). In this case, however, we begin with a threshold matter: the government’s challenge to this court’s jurisdiction (a challenge premised on what it perceives to be the discretionary nature of the decision below).

We readily acknowledge that, in the immigration context, “Congress has heavily circumscribed federal courts’ jurisdiction over ... discretionary decisions.” Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). The government attempts to wield this principle as a shield, arguing that we lack jurisdiction to review the BIA’s decision because the BIA denied the petitioner’s application for an adjustment of status as a matter of discretion. Such a decision, the government says, is one that we are forbidden from reviewing. See 8 U.S.C. § 1252(a)(2)(B).

Whatever application this principle may have in this case—a matter on which we take no view—we nonetheless have jurisdiction to review colorable constitutional and legal claims embedded in such a decision. See Ayeni v. Holder, 617 F.3d 67, 70-71 (1st Cir. 2010). In this instance, the petitioner has presented a colorable legal question: when USCIS has approved an I-130 “immediate relative” visa petition based on an alien’s marriage to a United States citizen, does an IJ, in a parallel removal proceeding, nevertheless have jurisdiction to inquire into the bona fides of the anchoring marriage before granting an adjustment of status? This question is col-orable because the answer to it is open. See Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007) (describing question as “color-able” so long as the argument advanced has “at the very least, ... some potential validity”). Thus, the question provides a hook on which our jurisdiction can be hung. See DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir. 2006); Cho v. Gonzales, 404 F.3d 96, 98-100 (1st Cir. 2005).

Assured of our jurisdiction, we turn to the BIA’s denial of the petitioner’s application for an adjustment of status. An' adjustment of status under 8 U.S.C. § 1255(a), if granted, “permits certain non-citizens to become [LPRs].” Akwasi Agyei v. Holder, 729 F.3d 6, 9 (1st Cir. 2013). The adjustment-of-status process can be initiated by an immediate relative (such as a spouse), see 8 U.S.C. § 1151(b)(2)(A)(i), through the filing of an 1-130 petition, see Neang Chea Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009). USCIS conducts an investigation, determines whether the alien is an immediate relative of the sponsor, and approves or denies the petition. See id. at 21-22. If USCIS approves an 1-130 petition, the alien may then submit an application to adjust her status either to USCIS (if removal proceedings are not pending) or to the immigration court (if removal proceedings are pending). See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)(i); Neang Chea Taing, 567 F.3d at 21. At a minimum, approval of such an application requires that the alien be “eligible to receive an immigrant visa,” be “admissible to the United States, for permanent residence,” and have “an immigrant visa ... immediately available to [her] at the time [her] application is filed.” 8 U.S.C. § 1255(a). Assuming that these threshold requirements are satisfied, the decision-maker (whether USCIS or the IJ) must then determine, in the exercise of discretion, whether to adjust the alien’s status. See id.

In the case at hand, it is undisputed that the petitioner had a visa immediately available to her, thanks to USCIS’s approval of the 1-130 petition. Thus, the dispute here reduces to whether the petitioner is eligible and admissible. In the petitioner’s view, USCIS’s approval of the 1-130. petition completes the inquiry into whether her marriage is bona fide, and the IJ may not revisit that issue. The government demurs, arguing that when removal proceedings are already in progress, US-CIS’s evaluation of the bona fides of the anchoring marriage is at most prima facie evidence, and that the ultimate resolution of the issue is for the IJ. This disagreement over the effect -of USCIS’s determination presents a purely legal question, and “[w]e review such legal questions de novo, subject to established principles of agency deference.” DaCosta, 449 F.3d at 49.

The petitioner’s assertion — that US-CIS’s approval of the 1-130 petition divests the immigration court of authority to revisit the bona fides of the anchoring marriage — does not withstand scrutiny. When an alien seeks relief from removal, the law obliges the IJ to “determine whether ... the testimony is credible [and] sufficient to demonstrate that the applicant has satisfied the applicant’s burden of proof.” 8 U.S.C. § 1229a(c)(4)(B). This obligation extends to the alien’s proof of her eligibility. See id. § 1229a(c)(4)(A)(i).

In carrying out these tasks, the IJ is empowered to “weigh the credible testimony along with other evidence of record.” Id. § 1229a(c)(4)(B). If USCIS’s approval of an 1-130 petition were accorded preclu-sive effect, the IJ’s hands would be tied and he would be prevented from fulfilling his statutory responsibility. See kt Nothing in the text or the structure of the statutory scheme permits us to truncate the IJ’s role as suggested by the petitioner.

The allocation of responsibilities envisioned by the petitioner appears even more problematic in light of the regulations. Pertinently, the regulations prescribe that when an alien has been placed in removal proceedings, “the [IJ] has exclusive jurisdiction to adjudicate any application for adjustment of status [that] the alien may file.” 8 OF JR. § 1246.2(a)(1)©; see id. § 245.2(a)(1) (reiterating USCIS’s lack of jurisdiction to adjudicate applications for adjustment of status with respect to aliens in removal proceedings). Exclusive jurisdiction — if it means anything at all — must mean the ability to assess whether the alien is eligible for relief in the first place. Stripping the IJ of authority to review an essential threshold element of an alien’s application for relief would hollow out the IJ’s exclusive jurisdiction over the adjudication of the application and, thus, would undercut the regulations.

The case law points in the same direction. Although the question presented is one of first impression in this circuit, we do not write on a pristine page. The Ninth Circuit has examined and expounded upon an identical question. See Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). In that case, the court of appeals rejected the alien’s argument that, once the 1-130 “immediate relative” petition was approved, the immigration court could no longer receive evidence questioning the bona fides of the anchoring marriage. See id. at 879 n.2. The court reasoned persuasively that, although “[t]he approved 1-130 [petition] provides prima facie evidence that the alien is' eligible” for an adjustment of status, the alien must still “prove his eligibility ... by the preponderance of the evidence” in the immigration court. Id. So viewed, an approved 1-130 petition is only a piece of evidence to be introduced before the IJ in the alien’s effort to prove eligibility for an adjustment of status. See id.

In an effort to blunt the combined force of the applicable statutory and regulatory structure and the case law, the petitioner relies on the BIA’s decision in Matter of Arthur, 20.1. & N. Dec. 475 (BIA 1992). This reliance is mislaid. For one thing, Matter of Arthur is inapposite. The decision there addressed the question of whether the BIA would grant a motion to reopen for consideration of adjustment of status where the underlying 1-130 petition was not yet adjudicated and was based on a marriage entered into after removal proceedings had commenced. See 20 I. & N. Dec. at 479. The features that distinguish Matter of Arthur from the case at hand are obvious. Here — unlike in Matter of Arthur — no motion to reopen was at issue; the anchoring marriage was entered into before removal proceedings had commenced; and the 1-130 petition. already had been approved. Trying to fit this case into Matter of Arthur’s precedential orbit is like trying to force a square peg into a round hole.

There is a second — and even more formidable — reason why Matter of Arthur does not aid the petitioner’s cause. Long before the events in this case transpired, the BIA explicitly overruled Matter of Arthur. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 257 (BIA 2002); see also Conteh v. Gonzales, 461 F.3d 45, 65 (1st Cir. 2006) (noting the BIA’s overruling of Matter of Arthur). It strains credulity to suggest that an overruled precedent should, through some mysterious alchemy, be given controlling weight.

To say more about this claim of error would be to paint the lily. We hold that when an alien in removal proceedings applies for an adjustment of status based on her marriage to a United States citizen, the IJ has jurisdiction to inquire into the bona fides of the anchoring marriage even if USCIS already has approved an 1-130 petition to the alien’s behoof. In such a situation, the approved 1-130 petition is not irrelevant. An approved 1-130 petition from USCIS shows that the alien has a visa available to her and, thus,' paves the way for the IJ to reach the issues of eligibility for adjustment of status and admissibility. See 8 U.S.C. § 1255(a); Neang Chea Taing, 567 F.3d at 21. Moreover, the approved 1-130 petition may serve as pri-ma facie evidence of the authentic character of the petitioner’s marriage (an issue relevant to her quest for. an adjustment of status). See Agyeman, 296 F.3d at 879 n.2.

Our conclusion that the IJ had jurisdiction to examine the bona fides of the petitioner’s marriage does not end our odyssey. As a fallback, the petitioner challenges the IJ’s finding that the marriage was a sham. Absent any material error of law — and we discern none here — we review such a finding only to ensure that it is supported by substantial evidence. See Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). This is a “highly deferential standard,” id. under which we cannot disturb the agency’s determination as long as it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). It follows that such a determination will stand unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The alien has the burden of proving the bona fides of an anchoring marriage by a preponderancé of the evidence. See Agyeman, 296 F.3d at 879 n.2; see also 8 C.F.R. 1240.8(d). A marriage is bona fide if “at the time that the newlyweds plighted their troth, [the alien] intended to establish a life with [her] spouse.” McKenzie-Francisco v. Holder, 662 F.3d 584, 587 (1st Cir. 2011). The record before us contains substantial evidence from which the IJ reasonably could — and did — find that the petitioner did not prove such an intent.

To begin, the couple married after an acquaintance that spanned no more than two months. Almost immediately thereafter, the petitioner moved out of state for a lengthy period of time, leaving her new husband behind. This sequence of events supports an inference that the petitioner never intended to establish a life with Sui Wah Chan. See Jing Lin v. Holder, 759 F.3d 110, 112-13 (1st Cir. 2014) (upholding determination that marriage was not bona fide based on brief courtship and lack of time spent living together).

The testimony of both the petitioner and Sui Wah Chan buttresses this inference. The petitioner gave materially inconsistent answers regarding where she had lived during the marriage. Importantly, when asked to identify the address that she shared with Sui Wah Chan, she could not do so, claiming that she did not “know how to say the name” of the street. Nor was Sui Wah Chan’s testimony helpful to the petitioner’s cause. He had never met her son (though he had successfully sponsored the son’s visa application) and expressed his belief that the son was still living in China. In fact, the petitioner’s son had been residing in the United States for at least a year, if not more, before the date on which. Sui Wah Chan testified. The couple’s lack of familiarity with the most basic details of their allegedly shared life provides powerful evidence that they did not intend to establish a life together. See McKenzie-Francisco, 662 F.3d at 687.

There is more. Both the petitioner and Sui Wah Chan testified, in effect, that their marriage was an arrangement. Sui Wah Chan stated: “I wanted to marry her because I wanted someone ... to help me.... In return, I would help her with her green card.” The petitioner confirmed this account. The IJ and the BIA were entitled to treat their mutual admission that the petitioner had entered into the marriage to obtain an immigration benefit as evidence that the marriage was not bona fide. Cf. Rodriguez v. INS, 204 F.3d 26, 27, 28 (1st Cir. 2000) (considering an alien’s statement that he married only to obtain a green card “very powerful evidence that the original.intent was to use marriage as a device to evade the immigration laws”).

Lastly, the petitioner lacked the sort of documentary proof that might have led a factfinder reasonably to conclude that she and Sui Wah Chan intended to make a life together. See Reynoso v. Holder, 711 F.3d 199, 207 (1st Cir. 2013) (upholding a determination that marriage was not bona fide where the alien’s documentary evidence was “limited” and lacked detail). For example, despite asserting that she and Sui Wah Chan held a joint bank account, she presented no corroboration of the existence of such an account. Her only documentary proof of the sort of comingling of assets that might have suggested that they intended to establish a life together was a single year of federal income tax filings (2011), which showed that she and Sui Wah Chan filed jointly (as husband and wife) for that one year. The petitioner did not explain the absence of similar filings for the five earlier years of the marriage.

In a similar vein, the record is thin with respect to documentary evidence showing that the couple lived together during the marriage. In this regard, the petitioner’s sole proffer was a form letter from the Boston Housing Authority that listed her as a member of Sui Wah Chan’s household. The IJ and the BIA could reasonably find that isolated, form letter to constitute no proof.

To sum up, the evidence offered by the petitioner in support of the bona fides of the anchoring- marriage was weak. Given the paucity of the petitioner’s proffer, the agency’s “sham marriage” determination was consistent with the “reasonable, substantial, and probative evidence on the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812 (citation omitted). Surely, this chiaroscuro record does not compel a conclusion contrary to that reached by the IJ and the BIA. We therefore reject the petitioner’s fact-based challenge.

III. CONCLUSION

We need go no further. For the reasons elucidated above, the petition for judicial review is denied.

So ordered.

      , Elsewhere in the record, the spelling of the name "Sui Wah Chan” is inconsistent. The record does not explain these discrepancies, and we adopt the spelling employed by the IJ,

      . In a confused passage, the BIA also seems to have affirmed a decision that the IJ never made (suggesting that the IJ denied the application for an adjustment of status as a matter of discretion). In point of fact, it was the waiver of inadmissibility, not the application for an adjustment of status, that the IJ denied as a matter of discretion. Given our conclusion that the petitioner is not eligible for an adjustment of status because of her sham marriage, see text infra, any error in this regard is manifestly harmless.

      . The petitioner’s son apparently received an adjustment of status. The record contains no explanation as to why USCIS treated the mother and the son differently.

      . The petitioner also relies on the BIA’s decision in In re H-A-, 22 I. & N. Dec. 728 (BIA 1999).'That decision, however, rests on the decision in Matter of Arthur and furnishes no independent authority for the proposition that the petitioner urges,

      . To be sure, Velarde-Pacheco was itself overruled in part by Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012). That overruling, however, did not purpose to reinstate the discredited decision in Matter of Arthur and, so, is of no moment here.

      . In an earlier case, we wrote that "[o]nce classified as an immediate relative, the alien-spouse becomes eligible to seek an adjustment of his immigration status_” Naeem v, Gonzales, 469 F.3d 33, 36 n.1 (1st Cir. 2006) (dictum). That statement was addressed to a hypothetical application for adjustment of status, filed in the absence of an ongoing removal proceeding, Such an application would be made to USCIS, not to an immigration court, and would not implicate the critical question that the petitioner raises in.this case.

      . The petitioner argues that both the IJ and the BIA ignored this test and focused instead on the petitioner's motive for entering into the marriage. The record belies this argument: it makes manifest that the.IJ and the BIA laid out the correct test and proceeded to apply it.

      . "Green card” is a colloquial term for an "employment authorization card.” Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003).

      . Given this conclusion, we need not address the¡; petitioner's remaining claims of error. Those claims relate to the IJ’s findings concerning admissibility and waiver of inadmissibility — issues rendered moot by the supportable determination that the petitioner was not eligible for an adjustment of status.


author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Sergio SANTA-OTERO, Defendant, Appellant.
    No. 15-2186
    United States Court of Appeals, First Circuit.
    December 13, 2016

      Alejandra Bird López on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martinez, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

This appeal requires us once again to review the sentence that Sergio Santa-Otero has received for possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and possessing a machine gun, in violation of 18 U.S.C. § 922(o). In Santa’s prior appeal, we vacated his sentence, which at that time was for a term of imprisonment of 65 months, and remanded for resentencing. That resentencing has now occurred, and we affirm the result, which is a 60-month prison sentence.

I.

In 2013, pursuant to a plea agreement, Santa pled guilty to the two offenses: unlawful possession of a machine gun, in violation of 18 U.S.C. § 922(o), and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The plea agreement set forth the following facts.

Santa was stopped in a car by police officers while smoking a marijuana cigarette. Upon questioning by the police officers, Santa disclosed that he had a firearm and ammunition in the car. The officers recovered one loaded dock Pistol Model 27, four loaded standard size dock Pistol magazines, and two loaded high capacity magazines, containing a total of 101 .40 caliber rounds of ammunition. Santa informed the officers that the dock Pistol had a.“chip” in it such that it would fire automatically, qualifying the firearm as a “machine gun.” See 26 U.S.C. § 5845(b) (defining a machine gun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by .a single function of the trigger”). .

The plea agreement recommended a sentence within'the applicable range set by the United States Sentencing Guidelines. The guidelines range set forth in the presentence report was for a term of imprisonment of 37 to 46 months. The pre-sentence report based this range on a calculation that Santa’s total offense level was 19 and that Santa’s criminal history category was III.

The presentence report calculated the total offense level of 19 for Santa by starting with a base offense level of 22, as required by U.S.S.G. § 2K2.1(a)(3), which applies to defendants convicted of being a felon in possession of a firearm where that firearm is amachine gun. The presentence report then reduced Santa’s base offense level of 22 by two points for Santa’s acceptance .of responsibility and one additional point for. Santa’s entering a plea of guilty, thereby yielding the total offense level of 19. The presentence report labeled Santa’s criminal history category as III based on Santa’s prior convictions under Puerto Rico law for possession with intent to distribute a controlled substance, reclassified as possession of a controlled substance, and for aggravated conjugal abuse.

At Santa’s first sentencing hearing, the District Court stated that Santa had been convicted of possession with intent to distribute a controlled substance, and, based on that understanding of his criminal history, imposed a prison sentence of 65 months. On appeal, however, we agreed with Santa that the District Court had erred in characterizing Santa’s criminal history, and so we vacated the sentence and ' remanded for resentencing. United States v. Santa-Otero, 618 Fed.Appx. 6 (1st Cir. 2015).

At Santa’s sentencing hearing on remand, the parties agreed that the guidelines range for his term of imprisonment remained 37 to 46 months, because Santa’s total offense • level remained 19 and his criminal history category remained category III. The District Court imposed a sentence of 60 months imprisonment. Santa’s appeal followed.

II.

Santa appears to characterize each of his challenges to his sentence as being both procedural and substantive in nature. For procedural challenges, “we afford de novo review to the sentencing court’s interpretation and application of the sentencing guidelines, assay the court’s factfinding for clear error, and evaluate its judgment calls for abuse of discretion.” United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). For substantive challenges, “we proceed under the abuse of discretion rubric.” Id. But, however the challenges are characterized, we find no basis for vacating the sentence under the applicable standard of review.

Santa first points out that when a factor relied on to justify a variant sentence “is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must, articulate specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the guidelines calculation.” United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006). For that reason, Santa contends, the District Court erred in relying on the presence of a machine gun to justify the variance.

In support of this argument, Santa points to U.S.S.G. § 2K2.1(a)(3), which provides a base offense level of 22 if the firearm that was the subject of the conviction is a machine gun, defined as “any weapon which shoots ... automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). But, the District Court did not rely solely upon Santa’s possession of the machine gun in imposing the variant sentence. The District Court cited to specific features of the ammunition that Santa possessed along with the machine gun: two loaded extended capacity magazines and four loaded standard magazines, beyond the one loaded standard magazine that was already in the machine gun. Thus, Santa’s challenge is meritless. See United States v. Davis-Torres, 661 Fed.Appx. 722, 726, 2016 WL 5115331, at *4 (1st Cir. 2016) (“The [sentencing] court also emphasized the inherent danger in carrying an AK-47 semiautomatic rifle with two high capacity magazines and 109 rounds of ammunition.... There was no abuse.”); see also United States v. Thomas, 914 F.2d 139, 144 (8th Cir. 1990) (“[T]he district court properly considered ... the nature of the firearms [defendant] possessed, and the fact that the firearms were loaded as factors not adequately taken into account by the Guidelines which warrant departure.”).

Nor do we find persuasive Santa’s contention that the District Court erred by attributing “illicit conduct” to Santa that was unsupported by a preponderance of the evidence. In support of this argument, Santa points to the colloquy at the sentencing hearing in which Santa contended that he should be sentenced within the guidelines range because he possessed the machine gun for self-defense, as he had been the victim of an attempted murder. And, he argues, in this colloquy, the District Court found—without a basis—that Santa had engaged in unlawful conduct beyond that for which he had been charged. The record shows, however, that the District Court simply rejected Santa’s contention that he was in possession of the machine gun in question for self-defense.

Santa next argues that the District Court erred by assuming, on the basis of conduct for which Santa had been charged but not convicted, that Santa’s criminal history record underrepresented his actual prior criminal activities. But, the sentencing transcript makes clear that the District Court first set aside this concern by saying “Let’s forget about that for the time -being,” and then accurately summarized Santa’s criminal history as consisting of one conviction for conjugal abuse and one conviction for simple possession of a controlled substance. Nor did the District Court bring up the issue of the potential underrepresentation of Santa’s criminal record again during the sentencing hearing. Thus, Santa’s argument here, too, fails.

Finally, Santa argues that the District Court erred in several ways by taking into account local conditions in Puerto Rico in setting the sentence. As we have previously said, “[geographic considerations can be relevant at sentencing, as ‘the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence.’ ” United States v. Ortiz-Rodriguez, 789 F.3d 15, 19 (1st Cir. 2013) (quoting United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013)). Nevertheless, “[a] sentencing judge’s resort to community-based characteristics does not relieve him or her of the obligation to ground sentencing determinations in case-specific factors. It is possible for a sentencing judge to focus too much on the community and too little on the individual.” Flores-Machicote, 706 F.3d at 24 (citation omitted).

Here, the District Court did not cross the line. Because the District Court expressly took note of the case-specific factors of Santa’s criminal history and the specific firearm and ammunition Santa possessed, the District Court sufficiently emphasized the case-specific factors relative to the community-based characteristics.

Santa does contend that the District Court erred in not specifying the sources of information it used in describing the community characteristics it took into account in making its sentencing decision, because the District Court may have relied on unreliable information. But “[a]s a general matter, ‘the sentencing authority has always been free to consider a wide range of relevant material!,]’ ” United States v. Álvarez-Núñez, 828 F.3d 52, 55 (1st Cir. 2016) (quoting Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)), including the “cumulative experience garnered through the sheer number of district court sentencing proceedings that take place day by day.” See United States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). Against this backdrop, the record provides no support for Santa’s speculative and unsupported contention.

. Santa does also contend that, in justifying the variance, the District Court wrongly relied on the fact that, under Puerto Rico law, the illegal possession of a machine gun is punishable by up to twenty-four years imprisonment. Santa contends that, by this reference, the District Court was premising the variance not on the need for deterrence in this particular community but rather, impermissibly, on that community’s hostility towards this type of conduct. But, the District Court referenced the penalty under Puerto Rico law not as a justification for the variance, but rather as a confirmation that the variant sentence was not “something that is terribly out of reality with what this kind of situation [in Puerto. Rico] is.” And Santa provides no reason for why this particular use of the penalty under Puerto Rico law for the crime constitutes an abuse of discretion by the District Court.

Similarly, we do not find persuasive Santa’s contention that the District Court erred by referencing its opinion in a different sentencing case, United States v. González-Román, 115 F.Supp.3d 271 (D.P.R. 2015), in the course of explaining the community-based need for deterrence. While some of the facts referenced in the.Gonzá-lez-Román opinion deal with matters irrelevant to Santa’s crime, other facts—such as statistics on violent crime and firearm .use—are relevant. The record provides no basis for finding that, in referring to that decision, the District Court relied on the parts of that opinion that were irrelevant to Santa.

Finally, Santa argues that by relying on the community, characteristics of Puerto Rico in justifying -the variance, the District Court violated Santa’s federal constitutional'right to equal protection of the laws. But, the District Court justified.the variant sentence on the fact that Santa committed the crime in a 'place in which there is an increased need for deterrence. And, for reasons we have given before, that is a permissible consideration in sentencing. See Flores-Machicote, 706 F.3d at 23. Thus, this challenge fails as well.

In rejecting Santa’s challenges, we are cognizant that “[t]he farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006) (omission in original) (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). And we note that here, the District Court imposed a not insubstantial variant sentence, as the sentence to a term of 60 months imprisonment was 14 months greater than the upper end of the guidelines range, which was 46 months imprisonment, as set forth in the presentenee report. Nevertheless, we find both that the District Court’s reasoning is sufficient to justify the variance and that the variance was not otherwise imposed in error.

III.

The sentence is affirmed.

      . The government contends that Santa failed to preserve some of his challenges below, and that, therefore, we must review them under the plain error standard. But, because we conclude that Santa’s challenges fail even under the standard of review that Santa asks us to apply, we need not decide whether Santa forfeited certain of his challenges below.

      . In arguing that the District Court impermis-sibly justified the variance by reference to the machine gun, Santa also points to other provisions of the sentencing guidelines that reference the number and type of firearms, possessed by a defendant. Because those other provisions do not apply to Santa, they are not "already included in the calculation of the guidelines sentencing range,” so they cannot impugn the District Court's decision to use the particular ammunition possessed by Santa to justify the variance. Zapete-Garcia, 447 F.3d at 60.

      . At the colloquy, the District Court stated: "[D]o you honestly believe that a judge cannot extrapolate from this gun and say ... what is a citizen doing with this kind of pistol, machine gun? All these magazines that we have been describing here, extended magazines, and the rounds of ammunition. Is it only for protection?” The District Court then went on to say:
      When we realize that thé fire power that he had with him is more than the fire power the Marshals have in this room together, imagine. If you ask the Marshals here to lay out their firearms and count the bullets and see what they are, nobody’s carrying an automatic firearm. Nobody’s carrying more than a [fourteen] round magazine, One magazine. And boy, do they need protection and to protect themselves. Especially in this district. I cannot accept, I cannot in good honesty accept the argument that because he had been shot once, he needed to have this automatic firearm, all these magazines, and that number of ammunition, all those ammunition to protect himself.


author: STAHL, Circuit Judge.

text:
    Robert CHASE, Plaintiff, Appellant, v. UNITED STATES POSTAL SERVICE; Michael King; and United States, as Sole Defendant on Counts III, IV, and V, Defendants, Appellees.
    No. 16-1351
    United States Court of Appeals, First Circuit.
    December 14, 2016

      Lori A. Jodoin, with whom Rodgers, Powers & Schwartz LLP, Boston, MA, were on brief, for appellant.
    Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellees.
    David Conforto and Conforto Law Group, Boston, MA, on brief for Massachusetts Employment Lawyers Association as amicus curiae.
    John Pagliaro and Martin J. Newhouse, Boston, MA, on brief for New England Legal Foundation and Associated Industries of Massachusetts as amicus curiae.
    Before BARRON, SELYA, and STAHL, Circuit Judges.
   STAHL, Circuit Judge.

The Family Medical Leave Act (FMLA) allows an employee up to twelve weeks of leave, in a twelve-month period, for a serious medical condition. 29 U.S.C. § 2612(a)(1)(D). Under the FMLA, an employee’s absence from work due to a personal health concern, or that of a spouse, child, or parent, is protected from interference and retaliation by his employer. 29 U.S.C. § 2615(a).

Appellant Robert Chase alleged that his employer, the United States Postal Service (USPS), and supervisor Michaél King, terminated him from the Brookline, Massachusetts Post Office in retaliation for taking FMLA leave. He brought interference and retaliation claims under 29 U.S.C. § 2615, arguing that King and USPS violated the FMLA by firing him while he was out of work on protected leave.

Following a bench trial, the district court held that King and the USPS did not violate the FMLA on the ground that King, as the USPS decisionmaker, did not have the requisite knowledge of the designation of Chase’s medical leave necessary to hold defendants liable under the FMLA. This appeal followed, and we AFFIRM.

I. Facts & Background

Chase worked as a letter carrier at the USPS Brookline Post Office for nearly fourteen years. During this' time, Chase never received a négative performance review nor was he subject to any disciplinary action. King, manager of the Brookline Post Office, supervised Chase from 2005 until his termination on September 30, 2011.

A.Accident and Leave of Absence

The accident leading to Chase’s leave and allegedly contributing to his termination occurred on July 21, 2010, when an elderly woman fell asleep at the wheel of her car and struck Chase’s vehicle while he was parked during his lunch break. Chase was taken to the hospital and diagnosed with a serious shoulder injury including damage to his rotator cuff. King personally went to the scene of the accident to observe the severity of the accident and injury and to prepare a report of the incident. King’s report noted Chase’s shoulder injury.

Following his injury, Chase applied for workers’ compensation, despite being discouraged from doing so by King. This request was approved. Chase also applied for and was granted FMLA leave, USPS mailed a Designation/FMLA Approval Notice to Chase and to King which stated that “[Chase’s], FMLA leave request is approved. All leave taken for this .reason will be designated as FMLA leave.” Pursuant to USPS policy, Chase opted for a continuation of pay and was fully compensated for the first 45 days of his leave, after which he received workers’ compensation benefits amounting to two-thirds of his salary, tax-free, plus health insurance. Chase’s concurrent FMLA leave lasted from July 21, 2010 to October 12, 2010, but he remained on medical leave until September 30, 2011, when he was terminated.

B, Workplace Tensions Between King and Chase

On several occasions, both' before and during the course of these events, King publicly mocked Chase and accused him of faking injuries. In September of 2006, Chase had injured his knee while on- the job and subsequently missed a week of work. At that time, in apparent response, King made an announcement over the Brookline Post Office loudspeaker, “[w]ill Bob Chase, the injury fraud specialist, please report to the office.” In August of 2010, a month after Chase’s motor vehicle accident at issue in this case, King posted a job opening on the office bulletin board advertising a position for an “injury compensation specialist.” King then made an announcement mocking Chase: “[Tjhere’s a job posted- on .the bulletin board for an[ ] injury compensation specialist since you’re the biggest fraud when it comes to injuries.” Brookline Post Office employee Maria Constantino testified. that she heard King say that Chase was faking the 2010 shoulder injury he had sustained in the car accident and heard King announce on multiple occasions, “Can I have the carrier on Route 92 [Chase] who is faking an injury come to the office, please?”

C. USPS Disciplinary Action

On September 18, 2010, while on FMLA leave, Chase was arrested with his brother and charged with possession of cocaine with intent to distribute and conspiracy to violate drug laws, in violation of Mass. Gen. Laws ch. 94C, §§ 32A(a) and 40. The arrests were publicized in a local newspaper, the Brookline Tab. After seeing the article and arrest reports, King notified his then-manager, Lori Bullen, about the arrests, saying, “[i]t would be nice if we can proceed with something.” Bullen forwarded King’s email to Labor Relations indicating that Chase was “out OWCP [on workers’ compensation] to boot.”

Following the arrest Chase and King remained in fairly regular communication. During one of these conversations, Chase notified King that’ the criminal charges would soon b& dismissed. King then turned the conversation to Chase’s medical leave and began to threaten Chase with a workers’ compensation fraud investigation if he did not return to work. Several Brookline Postal workers including Joseph DeMamb-ro, the Chief Union Steward, and another employee, Wanda Jackson, testified that King believed that Chase was faking his current shoulder injury and that King was often suspicious of employees who took medical leave.

On January 18, 2011, King and Chase spoke over the telephone for a pre-disci-plinary interview, during which they discussed how Chase’s arrest and charges might affect his job. Chase and King ceased communicating after Chase phoned King asking for help to resolve an issue related to his medical leave and King responded, “go [expletive] yourself.”

On January 27, 2011, King’s manager approved the request that Chase be issued a Notice of Removal. On the following day, Labor Relations prepared for King a Notice for “Failure to Perform Duties in a Satisfactory Manner.” King signed that Notice on February 1, 2011, and issued it to Chase. Chase was still on medical leave when he received the Notice of Removal. The dismissal notice cited Chase’s arrest and refusal to answer questions during his pre-disciplinary interview. In response to the notice, Chase filed a grievance through his union, but USPS denied the grievance and his case proceeded to arbitration pursuant to the union contract. Before the final arbitration hearing, Chase’s criminal case reached a favorable resolution when, on August 31, 2011, the conspiracy charge was dismissed outright and the charge of possession with intent to distribute was reduced to a charge of simple possession, to be dismissed upon completion of one year of pre-trial probation and random drug testing. The grievance process ultimately reached its conclusion on September 30, 2011, when the arbitrator ruled against Chase. The arbitrator issued a final written decision, affirming Chase’s removal on the grounds that USPS had shown through clear and convincing evidence that Chase had possessed a Class B illegal drug, which violated USPS policy. He was officially terminated that same day.

D. The FMLA

The FMLA provides an employee suffering from a serious injury or medical condition with up to twelve weeks of protected leave, in a twelve-month period. 29 U.S.C. § 2612(a)(1)(D). An employee is eligible for FMLA leave for each of the following reasons:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
(E) Because of any qualifying exigency ,.. arising- out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (... has been notified of an impending call or order to covered active duty) in the Armed Forces.

29 U.S.C. § 2612(a)(1). In keeping with -its comprehensive remedial purpose “to help working men and women balance the conflicting demands of work and personal life,” the FMLA should be broadly construed. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998) (quoting Price v. City of Ft. Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997)); see also Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967) (noting that “remedial legislation should be construed broadly to effectuate its purposes.”)

FMLA leave may take many forms, including an unpaid leave of absence, a paid vacation, personal leave, family leave, medical leave, or sick leave. See 29 U.S.C. § 2612(c)-(d), FMLA leave may also run concurrently with other types of paid leave such as workers’ compensation. 29 C.F.R. § 826.207(d) — (e). When making a request for leave, “the employee need not expressly assert rights under the FMLA or even mention the FMLA” for FMLA protection to attach. 29 C.F.R. § 825.302(c).

An employer may not interfere with, restrain, or deny the exercise of dr the attempt to exercise any light provided under the FMLA, nor may an employer discharge or discriminate against an individual who takes FMLA leave. 29 U.S.C. § 2615(a); see also 29 C.F.R. § 825.220(c); Hodgens, 144 F.3d at 160 n.4. Additionally, an employer may not include FMLA leave “as.a negative factor in employment actions....” 29 C.F.R. § 825.220(c). While the FMLA itself does not explicitly contain a prohibition on retaliation for taking leave, courts have interpreted the Act to have such- an implied prohibition. See Pagán-Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012).

E. Procedural History

On June 29, 2012, Chase filed his Complaint in the United States District Court for the District of Massachusetts. He alleged FMLA interference (Count I) and FMLA retaliation (Count II) in violation of 29 U.S.C. § 2615. In addition, Chase sued King for intentional interference with advantageous business relations (Count III), intentional infliction of emotional distress (Count IV), and defamation (Count V). The United States substituted itself for King for Counts III-V under the Westfall Act, 28 U.S.C. § 2679, which allows the United States to step in as defendant for one of its employees where the employee is sued for damages as a result of an alleged tort committed within the scope of his or her employment.

On August 30, 2012, USPS and King moved to dismiss all claims. Chase opposed these motions and the court took them under advisement. At the close of discovery the defendants moved for summary judgment in their favor on all claims. Chase again opposed defendants’ motions. The district court heard oral arguments on October 16, 2013. On November 4, 2013, the court granted summary judgement on all claims with the exception of the FMLA retaliation claim (Count II).

Count II proceeded to a bench trial on April 7-10, 2014. On March 1, 2016, the district court entered judgement for USPS and King, reasoning that the defendants could not have acted with retaliatory animus because King lacked the requisite knowledge that Chase’s leave was protected under the FMLA. Chase filed this appeal on March 31, 2016.

II. Discussion

We review a district court’s factual findings for clear error and its legal holdings de novo. Industria y Distribuction de Alimentos v. Trailer Bridge, 797 F.3d 141, 144 (1st Cir. 2015). We find no clear error in the district court’s finding that King reasonably believed Chase was not out on FMLA leave, and we agree with the district court that King’s knowledge was insufficient to support an FMLA retaliation claim.

To make out a claim for retaliation under the FMLA, a plaintiff must show that the employer “took the adverse action because of a prohibited reason [and not for] a legitimate nondiscriminatory reason.” Hodgens, 144 F.3d at 160. In order to make out a prima facie case of retaliation, the employee “must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action.” Id. at 161 (citing Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997)). Because the employer’s intent in FMLA retaliation claims is highly relevant, an employer cannot be found to have retaliated against an employee for invoking his rights under the FMLA or taking FMLA leave unless the decisionmaker knew or should have known that the employee had invoked those rights. See Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015).

This case turns on whether there was a causal connection between the employee’s protected activity (taking FMLA leave) and the employer’s adverse employment action (termination). On appeal, Chase argues that the district court erred in determining that King did not believe that Chase was out on FMLA leave, and, therefore, cannot be held liable for retaliation under the FMLA. Chase argues King knew he was injured and knew the FMLA covered the first twelve weeks of his medical leave. Further, Chase asserts that even if King did not have direct knowledge of his FMLA leave, USPS’s institutional knowledge binds the organization. We address these arguments in turn.

A. Retaliatory Animus

Chase contends that King knew he was on FMLA leave as a result of his on-the-job motor vehicle accident and argues the district court committed clear error in holding otherwise. It is undisputed that King was aware of Chase’s injury, that he visited the scene of the accident and made a report, and that he was aware that Chase was out of work on medical leave; however, there is no evidence that King knew or should have known that Chase was out on protected FMLA-designated leave. Consequently, we find that Chase does not have a valid claim for FMLA retaliation because he failed to prove that King acted with retaliatory animus towards his FMLA leave. See Ameen, 777 F.3d at 70 (holding that to succeed on an FMLA retaliation claim, a plaintiff “must show that the retaliator knew about [his] protected activity — after all, one cannot have been motivated to retaliate by something he was unaware of.” (quoting Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013) (alteration in original))).

It is true beyond a doubt that King knew that Chase had suffered a serious injury, one that was both covered by workers’ compensation and FMLA-eligible. Indeed, the injury ultimately resulted in FMLA leave being granted. However, the case presents an unusual situation in which King also reasonably believed that Chase was out on paid workers’ compensation medical leave, rather than FMLA-desig-nated leave. For this belief, King relied on a computer program that listed Chase as either “injured on duty” or “out on workers’ compensation.” In addition to the USPS internal computer system, which made no mention of Chase having been granted FMLA leave, King also testified that he neither received nor saw the FMLA notice that was allegedly mailed to both Chase and King.

King also reasonably concluded, as the district court found, that “even though seriously injured, it would not make sense [for] Chase to take FMLA leave until — at the earliest — his paid leave expired,” Chase v. U.S. Postal Serv., 149 F.Supp.3d 195, 212 (D. Mass. 2016), because using FMLA leave concurrently with the more advantageous coverage available under workers’ compensation would be redundant. In other words, given that King “reasonably believed that the FMLA’s protections had been declined,” id. he cannot be held liable in this case for a failure to inquire further into Chase’s leave status, see, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009) (FMLA retaliation can be found where the employer “was on notice that [the employee] was inquiring about his FMLA options” and “did not fulfill its duty to inquire about whether his leave should be classified as FMLA-pro-tected”); 29 C.F.R. § 825.302(c) (“In all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee.”) (emphasis added).

Moreover, even Kang’s workplace comments over the loudspeaker and to various employees, inappropriate as they may have been in polite company, or for that matter in employee relations, support the district court’s conclusion that King actually believed that Chase was receiving workers’ compensation and had not taken FMLA leave. As the district court sustainably found, “it was the workers’ compensation leave — not the concurrent FMLA leave— which angered King and contributed to Chase’s termination.” Chase, 149 F.Supp.3d at 213. Liability for retaliation under the FMLA is restricted to actions taken out of animus towards FMLA-pro-tected leave. See 29 C.F.R. § 825.220(c) (an employer may not consider an employee’s use of FMLA leave “as a negative factor in employment actions”). Chase’s arguments, to the extent that they establish King’s animus towards Chase for taking workers’ compensation leave, are insufficient to show that King acted with any retaliatory animus in violation of the FMLA given that King had no actual or constructive knowledge that the FMLA had been invoked.

To be clear, actual knowledge on the part of an employer that a particular employee' has specifically invoked the FMLA’s statutory protections, as opposed to having taken leave for an injury or other condition which happens to be FMLA-protected, is not the sine qua nan of FMLA retaliation liability. After all, as the Department of Labor Regulations instruct, “the employee need not expressly assert rights under the FMLA or even mention the FMLA” to provide his employer with notice, 29 C.F.R. § 825.302(c), and as we noted in our first encounter with FMLA retaliation, the relevant inquiry in such cases is “whether there [was] sufficient evidence ... for a jury to conclude that [the plaintiffs] discharge was motivated by retaliation for his having availed himself of a right protected by, the FMLA, namely, the right to take medically necessary leave time.” Hodgens, 144 F.3d at 169.

However, in the case before us, not only was King oblivious to the statutory character of the leave in question, but he had a reasonable and well-founded belief that Chase had not availed himself of FMLA protection, because it would not have made sense for him to do so while he was already receiving a more beneficial package under the workers’ compensation regime. The information and records to which King was privy appeared to indicate only that Chase was receiving “paid leave [in the form of workers’ compensation], under terms more favorable than the FMLA provides,” Chase, 149 F.Supp.3d at 212. Although this case'is unusual in that the injury in question qualified Chase for FMLA leave, we do not believe that the district court clearly erred in concluding that the particular chronology and facts of this case rendered King’s belief that Chase had declined to invoke FMLA protection a reasonable one.

B. General Corporate Knowledge

'Finally, Chase argues that even if King reasonably believed that Chase was not out on' FMLA leave, USPS had “general corporate knowledge” of the FMLA designation, which binds its conduct as a matter of law. Alston v. N.Y.C. Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y. 1998). Chase’s argument is inherently flawed because precedent does not support his basic proposition that corporate or managerial knowledge can override a decisionmaker’s lack of knowledge in FMLA retaliation cases, for reasons we explain below.

In Ameen, this court declined to find retaliatory conduct because the plaintiff could not show that the decisionmaker knew that the plaintiff was engaging in protected activity, even though others in the company hierarchy did. 777 F.3d at 70 (citing Medina-Rivera, 713 F.3d at 139); see also Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006) (“[T]here must be proof that the decision-maker knew of the plaintiffs protected conduct when he or she decided to take the adverse employment action.”). Other circuits echo this decisionmaker knowledge requirement. See Henderson v. Chrysler Grp., LLC, 610 Fed.Appx. 488, 496 (6th Cir. 2015); Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 800 (11th Cir. 2000); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 n.5 (9th Cir. 1982). Based on these cases, there is no precedent to support Chase’s proposition that USPS’s general knowledge can substitute for King’s lack of knowledge for purposes of this FMLA retaliation analysis.

III. Conclusion

While .King clearly demonstrated animus towards Chase for his absence, that animus was directed exclusively towards Chase’s workers’ compensation leave, not his FMLA leave. Because King reasonably believed that Chase was not out on FMLA leave, we AFFIRM the district court’s finding that King lacked the requisite knowledge necessary to hold him liable for retaliation in violation of the FMLA. Affirmed.

      . King claims that he never received the FMLA notice and that he thought perhaps an office worker had filed the notice without first showing it to him. He testified that he believed Chase’s leave status was either "injured on duty” (IOD) or "out on workers’ compensation” (OWCP), and that he assumed that Chase was not on FMLA leave because that leave is often unpaid and he believed that employees only used FMLA leave once they had exhausted all forms of paid leave, which to his knowledge Chase had not.

      . We note that there is some tension in the ca.se law as to the appropriate causation standard to apply in FMLA retaliation cases. The currently operative Department of Labor Regulations (DOL), as indicated above, prohibit an employer from using an employee’s decision to take FMLA leave as a "negative factor” in employment actions. 29 C.F.R. § 825.220(c). We have previously held that DOL regulations interpreting the FMLA are entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See, e.g., Hodgens, 144 F.3d at 160 n.4; Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005). However, the Supreme Court has held that Title VII retaliation claims "must be proved according to traditional principles of but-for causation ... [which] requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. —, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). The district court concluded that Nassar had not changed the landscape for FMLA claims, and that the “negative factor" test promulgated by DOL continued to apply. Given that Chase is unable to prevail under even the more lenient "negative factor” test, we save for another day the question of Nassar's impact on FMLA jurisprudence with respect to the required causation standard, and take no position on the district court’s decision to grant the DOL regulations continued Chevron deference.

      . To the extent that these cases involve retaliatory actions based on statutes other than the FMLA, they are still informative because the discrimination analysis under each is highly analogous, if not identical, to that under the FMLA.