author: TARANTO, Circuit Judge.

text:
    John D’AGOSTINO, Appellant v. MASTERCARD INTERNATIONAL INCORPORATED, Appellee
    2016-1592, 2016-1593
    United States Court of Appeals, Federal Circuit.
    Decided: December 22, 2016

      RobbRt GREenspoon, Flachsbart & Greenspoon, LLC, Chicago, IL, argued for appellant. Also represented by Joseph Carl Drish.
    Eliot Damon Williams, Baker Botts LLP, Palo Alto, CA, argued for appellee. Also represented by Robert C. Sohein-feld, New York, NY.
    Before TARANTO, LINN, and STOLL, Circuit Judges.
   TARANTO, Circuit Judge.

This case involves method claims of two patents that disclose processes for generating limited-use transaction codes to be given to a merchant by a customer for the purchase of goods and services, an objective being to enhance security for the customer by withholding the customer’s credit card number from the merchant and using the transaction code to complete the transaction instead. In two inter partes review proceedings, the Patent Trial and Appeal Board of the United States Patent and Trademark Office decided that the disputed claims are unpatentable for anticipation and obviousness. Because the Board’s decisions rest qn an unreasonable claim interpretation, we vacate the decisions and remand for further proceedings.

I

John D’Agostino owns U.S. Patent Nos. 7,840,486 and 8,036,988. The ’988 patent is a continuation of the ’486 patent. Both patents disclose methods of effecting secure credit-card purchases by minimizing merchant access to, credit card numbers. ’988 patent, abstract; ’486 patent, abstract. The written descriptions of the two patents are materially identical.

MasterCard International Incorporated filed two petitions with the PTO requesting inter partes review of the two patents under 35 U.S.C. ch. 31. Regarding the ’988 patent, the Board, as delegee of the PTO Director, 37 C.F.R. §§ 42.4, 42.108, instituted a review of claims 1-10, 15-25, 27-33, and 35-38 for anticipation by U.S. Patent No. 6,422,462 to Cohen and of claims 11-14, 26, and 34 for obviousness over Cohen and U.S. Patent No. 5,826,243 to Musmanno (IPR2014-543). Regarding the ’486 patent, the Board instituted a review of claims 1-15 and 22-30 for anticipation by Cohen and of claims 16-21 for .obviousness over. Cohen and Musmanno (IPR2014-544). After conducting the reviews, the Board cancelled all of the reviewed claims as unpatentable on the grounds on which it instituted review. MasterCard Int’l Inc. v. D’Agostino, 2015 WL 5159950 (P.T.A.B. Aug. 31, 2015) (’988 Decision); MasterCard Int’l Inc. v. D’Agostino, 2015 WL 5159951 (P.T.A.B. Aug. 31, 2015) (’186 Decision). The Board’s two final written decisions are materially identical for present purposes, so we hereafter cite only the ’988 Decision.

As relevant here, the claims fall into two categories—those which involve “limiting a number of transactions to one or more nierchants,” i.e., a “one or more merchants limitation,” ’988 patent, col. 8, lines 66-67; and those which involve “limiting] transactions to a single merchant,” ie., a “single merchant limitation,” id., col. 11, lines 12-13. It being undisputed that the former are unpatentable if the latter are unpatentable, the Board relied only on the “single merchant” claims in its decisions, holding them unpatentable and, solely on' that ground, also holding the “one or more merchants” claims unpatentable. ’988 Decision at *8. We therefore address only the “single merchant” claims.

Claim 21 is representative of the “single merchant” claims:

21. A method for implementing a system for performing secure credit card purchases, the method comprising:
a) receiving account information from an account holder identifying an account that is used to make credit card purchases;
b) receiving a request from said account holder for a transaction code to make a purchase within a payment category that at least limits transactions to a single merchant, said single merchant limitation being included in said payment category prior to any particular merchant being identified as said single merchant;
c) generating a transaction code utilizing a processing computer of a custodial authorizing entity, said transaction code associated with said account and reflecting at least the limits of said payment category, to make a purchase within said payment category;
d) communicating said' transaction code to said account holder;
e) receiving a request to authorize payment for a purchase using said transaction code;
f) authorizing payment for said, purchase if said purchase is within said payment category.

’988 patent, col. 11, lines 5-27.

After construing the single-merchant limitation, which is step (b) in representative claim 21, the Board found that Cohen meets the single-merchant limitation through an embodiment that limits credit-card transactions to a particular chain of stores. ’988 Decision at *8. The Board also found that Cohen discloses the step of defining and designating the “payment category” before the transaction code is generated. Id. at *9-10. The Board’s unpatentability reasoning for both anticipation, and obviousness relies critically on those two rulings; the Board did not rely on any independent alternative grounds for its decisions.

Mr. D’Agostino appeals under 35 U.S.C. §§ 141(c) and 319. We have jurisdiction to review the Board’s decisions under 28 U.S.C. § 1295(a)(4)(A).

II

The Board permissibly applied the broadest reasonable interpretation standard in this inter partes review proceeding. See Cuozzo Speed Techs., LLC v. Lee, — U.S. —, 136 S.C.t. 2131, 2142, 195 L.Ed.2d 423 (2016); 37 C.F.R. § 42.100(b). “There being no dispute here about findings or evidence of facts extrinsic to the patent, .., we conduct a de novo review of the Board’s determination of the broadest reasonable interpretation of the claim language.” Straight Path IP Grp., Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1360 (Fed. Cir. 2015). “The protocol of giving claims their broadest reasonable interpretation ... does not include giving claims a legally incorrect interpretation.” In re Skvorecz, 580 F.3d 1262, 1267 (Fed. Cir. 2009). Instead, “claims should always be read in light of the specification and teachings in the underlying patent,” In re Switco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010); the Board “should also consult the patent’s prosecution history in proceedings in which the patent has been brought back to the agency for a second review,” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015).

We note two limits on our review and ruling here. First, we separately address only the “single merchant” claims because the Board relied entirely on those claims for its decisions as to all ’claims. Second, as to Cohen, we consider only the portion, concerning a chain of stores, on which the Board relied. We reject the Board’s bases of decision and remand. The Board on remand may consider other issues, e.g., as to Cohen and as to the “one or more merchants” claims, that the parties have preserved.

A

The single-merchant limitation clearly requires a separation in time between the communication of one piece of information and the communication of another. The authorizing entity, in being asked for a transaction code, is told that the number of merchants to be covered by that code is one (no more, no less): a “payment category that at least limits transactions to a single merchant” is communicated to the authorizing entity. Critically, though, the “single merchant” must not be identified to the authorizing entity at that time: “said single merchant limitation being included in said payment category prior to any particular merchant being identified as said single merchant.” Only later is the “particular merchant” identified, and the “particular merchant” is identified “as said single merchant.” Identification of a particular merchant may take place, for example, at the subsequent step (f), when the transaction with that merchant is authorized; but it does not take place at the earlier step, when the transaction code for a defined payment category is requested. At that earlier step, the account holder sets the number of authorized merchants at one without identifying the one.

The specification refers to this process as one among several embodiments. “The payment category may also include a mul-ti-transaction authorization wherein more than one purchase may be made from one or a plurality of different merchants, each of which may or may not be identified by the customer and pre-coded in association with the transaction code.” ’988 patent, col. 8, lines 18-22 (emphases added).

The prosecution history reinforces the evident meaning of the single-merchant limitation as requiring limiting, to one, the number of merchants that may use the transaction code, without identifying the merchant. In responding to a non-final rejection, Mr. D’Agostino distinguished the Langhans prior art as involving a list of identified approved merchants, stating: “There is no disclosure in Langhans et al. that limits a transaction to a single merchant prior to any particular merchant being identified as the single merchant.” J.A. 1427 (emphasis in original); see also J.A. 1366 (“[CJomparing merchant information transmitted in an authorization request against vendor data stored in an approved vendor list and determining if a particular vendor is on an approved vendor list does not teach a single merchant limitation being included in a payment category prior to any particular merchant being identified as said single merchant.”) (emphases in original). And in a reexamination of the ’988 patent, Mr. D’Agostino' said the following in distinguishing Cohen:

[Limiting to a particular store or chain of stores is not the same as limiting to a single merchant. A particular store or. chain of stores limitation is an identity, limitation whereas a single merchant limitation is a numerical limitation. That is, the only way a particular store or chain or stores limitation can be made is by identifying that store or chain of stores from other stores or chain of stores. Conversely, a single merchant limitation is not related to the particular identity of any store or chain of stores, rather it is a numerical limitation that limits use to only one merchant. Stated differently, a particular store or chain of stores limitation is limited to only the identified store or chain of stores, whereas a single merchant limitation is not limited by way of identity.

J.A. 2333-34. In the present appeal, this material is relevant as reinforcing the evident meaning of the claim language at issue, whether or not it would meet standards for disclaimer or disavowal. See Cordis Corp. v. Medtronic AVE, Inc., 339 F.3d 1352, 1359 (Fed. Cir. 2003)1

The single-merchant limitation thus requires, simply, that, when the transaction code is requested, the request limits the number of authorized merchants to one but does not then identify the merchant, such identification occurring only later. This is the claim-construction position that Mr. D’Agostino urged before the Board. See, e.g., J.A. 5486, 5490, 8417. Contrary to MasterCard’s contention, the doctrine of waiver does not preclude Mr. D’Agostino from making any of the arguments he has made to us—e.g., offering a new analogy, changing the emphasis on or ways of describing sources of support—in “defending the original scope of [his] claim construction.” Interactive Gift Express, Inc. v. CompuServe Inc., 256 F.3d 1323, 1346 (Fed. Cir. 2001).

The Board departed from or misapplied the above-stated clear meaning when— whether as a matter of claim construction or as a matter of application to Cohen, see ’988 Decision at *6, *8 (making point in both ways)—it concluded that the claim limitation covers a situation in which the customer first seeks a transaction code for an identified “chain of stores” and, later, picks a specific store within that chain. ’988 Decision at *8, The Board stated its point by way of an example it deemed within the claim: the customer could designate the “Target” chain of stores when obtaining a transaction code and only later choose a specific Target store at which to use such a code to obtain authorization of a purchase. Id.', id. at *9 (“[A] ‘single merchant’ can be the chain of stores, whereas the ‘particular merchant’ is a single store of that chain of stores.”). The Board read Cohen as disclosing such a scenario and thus teaching the claim limitation at issue (for anticipation and obviousness). Id. at *8-*9.

The decisive problem with the Board’s conclusion is that this scenario necessarily falls outside the single-merchant limitation. If Target is more than one merchant, then telling the authorizing entity to limit transactions to Target is not limiting the number of merchants (whose transactions are to be authorized) to one—and the Target scenario is for that reason outside the initial clause of the claim limitation. If Target instead is one merchant, then telling the authorizing entity to limit transactions to Target is not withholding the identity of the particular merchant—and the Target scenario is for that reason outside 'the second clause of the claim limitation. Either way, the chain store example fails to satisfy a claim requirement.

The only way to avoid that straightforward logic would be to separate “single merchant” (in the first clause) from “particular merchant” (in the second clause). But, as we have discussed, the, claim language of the single-merchant limitation does not allow that separation. Indeed, the second clause speaks expressly of “any particular merchant being identified as said single merchant.”

For that reason, the Board’s chain-store, construction and/or finding for purposes of meeting the single-merchant claim limitation, for both anticipation and.obviousness purposes, must be set aside. Because the decisive aspect of the Board’s reasoning is contrary to the claim as reasonably construed, we need not and do not discuss other statements made by the Board en route to its conclusion, some of which MasterCard declines to defend. In leaving those aspects of. the Board’s decisions unaddressed, we are not implicitly approving them. Nor, as we have already noted, are we deciding whether aspects of Cohen other than the chain-store discussion might satisfy the single-merchant claim limitation or whether the “one or more merchants” limitation might call for a different analysis from that which' governs the single-merchant limitation. In noting that these questions are not being decided here, we do not suggest answers one way or another;

B

Mr. D’Agostino also challenges the Board’s decisions on a separate ground. The Board agreed that “the claims require designating/selecting a payment category before the generation of the transaction code,” and it found that Cohen meets that requirement. ’988 Decision at *9. Mr. D’Agostino argues that Cohen does not disclose defining and designating the payment category before the transaction code (in Cohen, the credit card number) is generated. We reject that argument.

Substantial evidence supports the Board’s finding as to Cohen in this respect. It is clear that, in at least one embodiment, Cohen discloses the user providing “what the single use or the customized credit card number is to be used for” in the same telephone call in which the customized card is .requested. Cohen,, col. 3, lines 50-53. Cohen also discloses that “the limited use nature of the card (either in a general sense or the specific limitations) .,. may ... be printed on the card.” Id., col. 3, lines 22-26; see also id., col. 3, lines 63-66 (“With respect to the customized card, the cards can ... be preset for certain uses,... ”). Those passages support the finding that Cohen teaches, among other things, that the limitations have been defined and designated before the card is generated. Although , Mr. D’Agostino argues that the printing of the physical credit card does not necessarily occur simultaneously with the generating of the credit card number, he provides no citations to the record to suggest that the card number is genérated before the card is printed. The evidence before the Board thus permitted the Board’s finding, on this issue. See In re Jolley, 308 F.3d 1317, 1320 (Fed. Cir. 2002) (“If the evidence in record will support several reasonable but contradictory conclusions, we will not find the Board’s decision unsupported by substantial evidence simply because the Board chose one conclusion over another plausible alternative.”).

Ill

For the foregoing reasons, we vacate the Board’s claim construction and its findings of anticipation and determinations of obviousness. We remand for further proceedings not inconsistent with this opinion.

Costs awarded to Mr. D’Agostino.

VACATED AND REMANDED

      . For example, although the Board seemed uncertain "how transactions are limited to a single merchant, without identifying any particular merchant,” ’988 Decision at *6, MasterCard has recognized at least one way: the customer specifies, as the single merchant, the next merchant seeking authorization with the transaction code. See Oral Arg. at 27:30-29:00. MasterCard also has correctly declined to defend the Board’s apparent understanding of Mr, D’Agostino’s remarks about scenarios involving Target and McDonald’s made in the imprecise back-and-forth discussion at oral argument before the Board. Id. at *8.


source: Caselaw Access Project

author: WILLIAMS, Senior Circuit Judge:

license: Public Domain

text:
    JUDICIAL WATCH, INC., et al., Appellants v. John F. KERRY, In His Official Capacity as U.S. Secretary of State, et al., Appellees
    No. 16-5015
    Consolidated with 16-5060, 16-5061, 16-5077
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 4, 2016
    Decided December 27, 2016

      John J. Vecchione, Fairfax, VA, argued the cause for appellants. With him on the briefs were Alfred J. Lechner Jr., Daniel Z. Epstein, R.- James Valvo III, and James F. Peterson, Washington, DC.
    Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for ap-pellees. With him on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Matthew M. Col-lette.
    Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   WILLIAMS, Senior Circuit Judge:

Secretary of State Clinton used private email accounts during her time at the State Department. As a result, some emails were not preserved in government recordkeeping systems. Although the current Secretary (with the help of the National Archivist) has made efforts to recover those emails, neither the Secretary nor the Archivist has asked the Attorney General to initiate enforcement proceedings, as provided for in the Federal Records Act. Because those officials would not refer the matter to the Attorney General on their own, appellants Judicial Watch and Cause of Action Institute (henceforth the “appellants” except where a distinction is necessary) sued for agency action unlawfully withheld in violation of § 706(1) of the Administrative Procedure Act. The district court dismissed their suits as moot. Judicial Watch, Inc. v. Kerry, 156 F.Supp.3d 69 (D.D.C. 2016). But since the current Secretary and Archivist have neither asked the Attorney General " for help nor shown that such a request could not lead to recovery of additional emails, the suits were not moot. Accordingly, we reverse and remand for further proceedings.

* * *

The Federal Records Act-“governs the creation, management and disposal of federal records.” Armstrong v. Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Due to the importance of maintaining federal records (which are generally accessible to the public through the Freedom of Information Act), the act strictly limits the circumstances under which records can be removed from federal custody or destroyed. 44 U.S.C. § 3105(1). If the relevant agency head becomes aware of “any actual, impending, or threatened unlawful removal ... or [ ] destruction of [agency] records,” he or she “shall notify the Archivist ... and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of [those] records.” 44 U.S.C. § 3106(a). If the agency head fails to “initiate an action for such recovery or other redress within a reasonable period of time,” “the Archivist shall request the Attorney General to initiate such an action” and shall notify Congress of that request. Id. § 3106(b). Although there may be ambiguities in § 3106(a)’s mandate to “initiate action through the Attorney General,” our decision in Armstrong made clear that § 3106 encompasses at least a duty to “ask the Attorney General to initiate legal action.” 924 F.2d at. 295. For present purposes that is enough, as it appears that the judicial relief appellants now seek is an order requiring the current Secretary and the Archivist to do just that. .

After news of the former Secretary’s private accounts broke, the State Department began taking steps to recover her emails. Through various letters to her counsel, the Department asked the former Secretary to provide copies of her work-related emails. In response to those letters, the former Secretary produced (in hard copy) roughly 55,000 pages of emails from the private server account. And upon learning that the FBI had taken custody of Clinton’s private server and a thumb drive containing electronic copies of the emails she had previously produced, the Department also asked the FBI to provide it with a copy of those records.

But because neither the current Secretary nor the Archivist asked the Attorney General to initiate an enforcement action, appellants sued to compel that request. The district court, citing the Armstrong opinion’s statement that private litigants may bring suit “if the agency head or Archivist does nothing - while an agency official destroys or removes records in contravention of agency guidelines and directives,” 924 F.2d at-295 (emphasis added), reasoned that a plaintiffs ability to “compel a referral to the Attorney General ... is limited to. those circumstances in which an agency head and Archivist have taken minimal or no action to remedy the removal or destruction of federal records.” Judicial Watch, 156 F.Supp.3d at 76. Since the State Department and Archivist had made a .“sustained effort” to recover the missing emails, the district court concluded that there was no “dereliction of duty” and dismissed the suits as moot. Id. at 77. Appellants timely appealed.

* * *

Although the Federal Records Act does not contain an express or implied private right of action, Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 148-150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Administrative Procedure Act permits a claim “that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004); 5 U.S.C. § 706(1). The recovery provisions of the Federal Records Act fit that bill because they “leave [the agency head and Archivist] no discretion to determine which cases to pursue.” Armstrong, 924 F.2d at 295. While nothing in § 3106 prevents the agency from first attempting its own remedial measures (rather than immediately rushing to the Attorney General), id. at 296 n.12, the statute “requires the agency head and Archivist to take enforcement action” through the Attorney General if those efforts are unsuccessful, id. at 295. We therefore held in Armstrong that if “the agency head does not initiate an enforcement action [through the Attorney General] ‘within a reasonable period of time,’ the Archivist ‘shall request the Attorney General to initiate such an action.’ ” Id. (citing § 3106). Armstrong involved a threatened destruction of records, so we framed the case in those terms, saying that, if the agency head and the Archivist do not take the required “action to prevent the unlawful destruction or removal of records ..., private litigants may sue under the APA to require them to do so.” Id. at 296 n.12. .

As the district court’s dismissal relied exclusively on its finding of mootness, and not on a possible claim that the “reasonable period of time” referred to in Armstrong had not run, we focus on mootness. Where the plaintiff has recovered all it has sought, no court action can provide further relief and the ease is moot. Conser vation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013). In considering possible mootness we assume that the plaintiffs would be successful on the merits. See Doe v. Harris, 696 F.2d 109, 114 n.7 (D.C. Cir. 1982); see also City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (standing). The mootness inquiry here is straightforward. Appellants sought the only relief provided by the Federal Records Act—an enforcement action through the Attorney General. But nothing the Department did (either before of after those complaints were filed) gave appellants what they wanted. Instead of proceeding through the Attorney General, the Department asked'the former Secretary to return her emails voluntarily and similarly requested that the FBI share any records it obtained. Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder—e.g., by following the statutory mandate to seek action by the Attorney General—might not bear more still. It is therefore abundantly clear that, in terms of assuring government recovery of emails, appellants have not “been given everything [they] asked for.” Noble v. Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008). Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.

Of course the actions taken by the Department and the FBI might have mooted appellants’ claims by securing custody of all emails that the Attorney General could have recovered in an enforcement action. After all, the FBI now has custody of the former Secretary’s server and a thumb drive with electronic versions of the emails that were previously provided to the State Department in hard copy. If appellants had only, sought emails from- the server account, a mootness argument based on the recovery of the server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. During -her first- weeks in office, she continued using the Blackberry account she had.used as a Senator. Only in March of 2009 did she switch to the private email account hosted on the server in her New York home.

The complaints here sought to ensure recovery all of the former Secretary’s work emails, including those on the Blackberry account. Specifically, Judicial Watch’s complaint demanded the recovery of any emails that Secretary Clinton “sent and received ... to and from the personal email accounts of State Department employees.” Judicial Watch Compl. ¶ 6. Similarly, appellant Cause of Action Institute sought all emails Clinton “made or received in her capacity as Secretary of State or in connection with the transaction of public business,” and further alleged that the Federal Records Act did not permit her to “maintain emails on a private server or use a private email account” under these circumstances. Cause of Action Compl. ¶¶ 37-38. See also Cause of Action Opp. at 21-24 & Judicial Watch Opp. at 2 for references to the Blackberry emails in the oppositions to the motion to dismiss. At best, the FBI’s possession of the server (plus various electronic and hard copies of related emails) addresses only part of those broad requests—i.e., emails from the home server account. Because the complaints sought recovery of emails from all of the former Secretary’s accounts, the FBI’s recovery of a server that hosted only one account does not moot the suits. See Schnitzler v. United States, 761 F.3d 33, 37, 39 (D.C. Cir. 2014). While the case might well also be moot if a referral were pointless (e.g., because no imaginable enforcement action by the Attorney General could lead to recovery of the missing emails), the record here provides no factual support for finding mootness on that basis. See Noble, 525 F.3d at 1232.

We now want to step back and explicitly consider the district court’s reasoning. As we mentioned above, the court relied on language relating to circumstances where the “agency head or Archivist does nothing” while an official unlawfully removes or destroys records. 156 F.Supp.3d at 76 (quoting Armstrong, 924 F.2d at 295) (emphasis added). The district court saw that language as eliminating judicial review as soon as the agency head or Archivist took some action' to recover the missing record—here, indeed, “a sustained effort” (id. at 77) yielding a very substantial harvest. While the district court’s view is a plausible reading of that sentence in Armstrong, it does not account for the rest of the opinion. In the preceding sentence, we explained that the entire enforcement scheme assumes that the agency head (or Archivist) will actually refer cases to the Attorney General—as the statute requires—and we said that if he does not “there will be no effective way to prevent the destruction or removal of records.” Armstrong, 924 F.2d at 295. That passage alone makes clear that when records go missing, the something required by the statute is a referral to the Attorney General by the agency head and/or the Archivist. Indeed, the remainder of the opinion took pains to stress that the statute “requires the agency head and Archivist to take enforcement action” through the Attorney General whenever they became aware of records being unlawfully removed or destroyed. Id. And we said that that those mandatory enforcement provisions “leave no discretion [for the agency] to determine which cases to pursue.” Id. While we recognized that sometimes an agency might reasonably attempt to recover its records before running to the Attorney General, id. at 296 n.12, we never implied that where those initial efforts failed to recover all the missing records (or establish their fatal loss), the agency could simply ignore its referral duty. That reading would flip Armstrong on its head and carve out enormous agency discretion from a supposedly mandatory rule. Plainly we understood the statute to rest on a belief that marshalling the law enforcement authority of the United States was a key weapon in assuring record preservation and recovery.

Even though the district court dismissed the case solely on mootness grounds, the Department cross-appeals, asking us to reach the merits and hold that it satisfied its duties under the Federal Records Act. But, as is our general practice, we decline that invitation and instead remand the case so that the district court can consider the merits in the first instance (assuming the parties do not raise and the court does not perceive any other threshold, non-merits barrier). See Boose v. D.C., 786 F.3d 1054, 1059 (D.C. Cir. 2015); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (jurisdictional requirements must be met at each stage of the litigation). (Such issues of course might include mootness itself. At oral argument, the Department pointed to actions that were purportedly taken after the district court decision (some of which may still be ongoing). See Oral Arg. Recording at 23:40-24:20, 35:41-37:37. But because the Department made no attempt to supplement the record regarding those actions, we have not considered them.)

As in Armstrong, we express no opinion on whether the Attorney General’s action or inaction in response to a referral would be reviewable. 924 F.2d at 295 n.-ll. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command’s constraint on their discretion; they have raised no such argument.

* * *

The judgment of the district court is

Reversed and remanded.

      . To the extent the Department claims that the allegations forge too tenuous a link to the Blackberry emails to survive a motion to dismiss, it is free to make such a motion on remand. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Likewise, appellants would presumably also be free to flesh out their allegations through an amendment. See Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).


author: TATEL, Circuit Judge:

text:
    United States DEPARTMENT OF the AIR FORCE, Luke Air Force Base, Arizona, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent American Federation of Government Employees, Local 1547, Intervenor
    No. 15-1208
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 14, 2016
    Decided December 30, 2016

      Mark W. Pennak, Attorney, U.S. Department of Justice, argued the cause for petitioner. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Leonard Schaitman and H. Thomas Byron, Attorneys.
    Zachary R. Henige, Deputy Solicitor, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief were Fred B. Jacob, Solicitor, and Stephanie J. Fouse, Attorney.
    David A. Borer, Washington, DC, Andres M. Grajales, Brooklyn, NY, and Mark L. Vinson, Houston, TX, were on the brief for intervenor American Federation of Government Employees, Local 1547 in support of respondent. Judith D. Galat entered an appearance.
    Before: TATEL, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges.
   TATEL, Circuit Judge:

The Federal Labor Relations Authority ordered the Air Force to bargain collectively with its civilian employees over access to an on-base shoppette—a gas station and convenience store that forms part of the military’s network of commissaries and exchanges. The Air Force challenges that decision, arguing, among other things, that the issue is not a proper subject of bargaining because Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges. For the reasons set forth below, we agree and grant the Air Force’s petition for review.

I.

The Federal Service Labor-Management Relations Statute, enacted in 1978 as Title VII of the Civil Service Reform Act, governs collective bargaining in the federal workplace. The statute grants federal employees the right to collectively bargain over “conditions of employment.” 5 U.S.C. § 7102(2). Under Authority and D.C. Circuit precedent, however, employees have no right to bargain over matters that Congress has committed to an agency’s “unfettered discretion.” Illinois National Guard v. FLRA, 854 F.2d 1396, 1401 (D.C. Cir. 1988); see Patent Office Professional Association & U.S. Department of Commerce, 59 F.L.R.A. 331, 346 (Sept. 30, 2003) (holding that the Authority may not order an agency to bargain over matters within the agency’s “sole and exclusive discretion” (internal quotation marks omitted)).

The dispute here began when some 800 civilian employees of Luke Air Force Base, Arizona, represented by their exclusive bargaining agent, Local 1547 of the American Federation of Government Employees, sought access to the Base’s commissaries and exchanges—stores run by the Defense Department that sell reduced-price food and merchandise to members of the uniformed services, National Guardsmen and reservists, and certain retirees, dependents, and survivors. See 10 U.S.C. §§ 2481(a), 1061-1064. Commissaries are similar to grocery stores. See id. § 2484(a). Exchanges take a variety of forms, from department-store-like retail outlets to laundromats, gas stations, flower shops, and fast-food franchises. See Department of Defense Instruction 1330.21, Enclosure 3.1.1 (July 14, 2005). If accepted, Local 1547’s proposal would have significantly expanded shopping privileges for civilian employees, who, under existing rules, were allowed to buy only food and beverages from “any exchange food activity, if consumed on post.” See id., Enclosure 6, Table E6.T2.6.

In response, the Air Force filed with the FLRA what is known as a negotiability appeal, in which it argued that the proposal was nonnegotiable because-it lacked a connection to employee working conditions. The FLRA disagreed and ordered the Air Force to negotiate with the union. See American Federation of Government Employees, Local 1547 & U.S. Department of the Air Force, Luke Air Force Base, Arizona (“Local 15471”), 64 F.L.R.A. 642, 646-47 (Apr. 7, 2010).

The parties resumed discussions but soon reached impasse. The union brought the matter to the Federal Service Impasses Panel, which ordered the parties to participate in mediation-arbitration before an arbitrator, who the Panel empowered to issue a binding decision if the parties were unable to reach a settlement. Before mediation began, however, the union circuláted a revised proposal seeking shopping privileges only at the Base’s Shoppette, a 24-hour gas station and convenience store that sells such things as fresh and frozen food, gas, and certain health and household items. After mediation over this more limited proposal failed, the arbitrator sided with the union and ordered the Air Force to give its civilian employees access to the Shoppette.

When the Air Force refused to implement the arbitrator’s decision, the union filed a second negotiability appeal with the FLRA. Although the Air Force again insisted that the proposal had nothing to do with employee working conditions, it added a second argument: that the proposal was not a proper subject of bargaining because Title 10 of the U.S., Code, which governs all military operations, gives the Secretary of Defense “unfettered discretion” over commissaries and exchanges. See, e.g., Illinois National Guard, 854 F.2d at 1401. Unpersuaded, the FLRA ordered the Air Force to implement the proposal. See American Federation of Government Employees, Local 1547 & U.S. Department of the Air Force, Luke Air Force Base, Arizona (“Local 1547 II”), 67 F.L.R.A. 523, 525-30 (July 29, 2014). One member dissented, reasoning that Title 10, when “read in its entirety and in its historical context,” leaves the question of “authoriz[ing] access to military exchanges ... to the sole discretion of the Secretary of Defense.” Id. at 532-33 (Member Pizzella, Dissenting). The Air Force sought reconsideration, which the FLRA denied. American Federation of Government Employees, Local 1547 & U.S. Department of the Air Force, Luke Air Force Base, Arizona, 68 F.L.R.A. 557, 558-61 (May 13, 2015).

The Air Force petitions for review. It argues, as it did before the FLRA, that it has no duty to bargain over the Shoppette proposal because Title 10 grants the Secretary of Defense complete discretion to decide whether civilian employees may shop at commissaries and exchanges. It also argues that the Authority failed to point to any record evidence in support of its conclusion that the proposal concerns employee working conditions.

II.

We begin with the Air Force’s first argument, and because it relies on a particular interpretation of several provisions of Title 10, we think it best to proceed by first exploring the parties’ understanding of these provisions and then setting forth our own interpretation of the statute’s meaning. In doing so, we owe the Authority no deference, as we “review[ ] de novo the FLRA’s interpretation of a statute it is not charged with administering.” U.S. Department of the Air Force v. FLRA, 648 F.3d 841, 846 (D.C. Cir. 2011).

A.

The Air Force anchors its unfettered-discretion argument in 10 U.S.C. § 2481, which provides that “[t]he Secretary of Defense shall operate, in the manner provided by this chapter and other provisions of law, a world-wide system of commissary stores and a separate world-wide system of exchange stores.” Id. § 2481(a). Both systems may “sell, at reduced prices, food and other merchandise” to a closed set of military and military-related patrons—i.e., “members of the uniformed services on active duty, members of the uniformed services entitled to retired pay, dependents of such members, and persons authorized to use the system under chapter 54 of this title.” Id.; see id. § 101(a)(5) (defining “uniformed services”). Chapter 54 extends shopping privileges to members of the Guard and Reserve, along with certain retirees, dependents, and survivors. See id. §§ 1061-1064. Section 2481 also sets forth Congress’s reasons for creating these stores, explaining that they are “intended to enhance the quality of life of members of the uniformed services, retired members, and dependents of such members, and to support military readiness, recruitment, and retention.” Id. § 2481(b). As the Air Force points out, missing from section 2481’s list of authorized patrons and beneficiaries is any mention of civilian employees of the Defense Department.

The Air Force then moves to a more specific provision of Title 10, section 2484, which prescribes in subsection (b) an exacting list of goods that may be sold in commissaries: “[m]eat, poultry, seafood, and fresh-water fish,” etcetera. Id. § 2484(b), Subsection (c)(1) provides that the Secretary may add additional items to that list, so long as he notifies Congress, see id. § 2484(c)(1), and subsection (c)(2) then explains that “[n]otwithstanding [subsection (c) ](1), the Department of Defense military resale system shall continue to maintain the exclusive right to operate convenience stores, shopettes, and troop stores ... [,] ” id. § 2484(c)(2) (emphases added).

The Air Force argues that the phrase “exclusive right to operate ... shopettes,” id. means what it says: that the military has unfettered discretion to operate “sho-pettes” like the one at Luke AFB. And because, in its view, “common usage [of] the term ‘operate’ includes access determinations,” Petitioner’s Br. 33, Congress conferred “unfettered discretion”, on the military to determine who may patronize commissaries and exchanges, thereby exempting the Air Force from bargaining over the union’s proposal, see Illinois National Guard, 854 F.2d at 1402.

For its part, the Authority argues that section 2484(c)(2)’s reference to the Secretary’s “exclusive right to operate ... sho-pettes” relates not to who can patronize them, but rather only to the selection of merchandise and the setting of prices. The Authority also points out that the commissary-and-exchange provisions nowhere state that the Secretary has authority to control access “ ‘notwithstanding’ other provisions of law”—language that, according to the Authority, this court has found signals congressional intent to exempt an agency from the duty to bargain. See Respondent’s Br. 38 (quoting Colorado Nurses Association v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), superseded by statute, Department of Veterans Affairs Labor Relations Improvement Act of 1991, Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200, as recognized in National Federation of Federal Employees Local 589 v. FLRA, 73 F.3d 390, 390-91 (D.C. Cir. 1996).

B.

We agree that Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges, though for reasons that are slightly different from those offered by the Air Force. Our starting point is section 113(b) of Title 10, which gives the Secretary of Defense “the authority, direction, and control over the Department of Defense.” 10 U.S.C. § 113(b). Sections 3013, 5013, and 8013, in turn, grant the Secretaries of the Army, Navy, and Air Force “the authority necessary to conduct[] all affairs of the[ir respective] Department[s],” including the “functions [of] ... Recruiting!,] ... Administering (including the morale and welfare of personnel)!,] ... and Maintaining” . Department personnel. Id. §§ 3013(b); 5013(b); 8013(b). Those sections also authorize the Branch Secretaries to “prescribe regulations to carry out [their] functions; powers, and duties under this title,” subject only to “the authority, direction, and control of the Secretary of Defense.” Id. §§ 3013(b), (g); 5013(b), (g); 8013(b), (g).

These three enumerated duties—recruiting, administering, and maintaining— appear in almost identical form in section 2481, in which Congress explained that it “intended [commissaries and exchanges] ... to support military readiness, recruitment, and retention.” Id. § 2481(b) (emphasis added). The symmetry between these purposes and the functions delineated in sections 3013, 5013, and 8013 is unmistakable, and we draw from it two basic conclusions. First, Congress intended commissaries and exchanges to advance the objectives of recruiting, administering, and maintaining the armed forces. Second, Congress gave the Branch Secretaries authority to decide how best to achieve those objectives, subject only to direction by the Secretary of Defense. See 10 U.S.C. §§ 3013(b), (g); 5013(b), (g); 8013(b); (g).

Given these legislative directives, we cannot imagine that Congress intended to empower a civilian agency like the Federal Labor Relations Authority to second-guess the military’s judgment about nonmilitary access to commissaries and exchanges. As the Supreme Court has made clear, “[i]n construing a statute that touches on” matters of internal military governance, like troop morale or discipline, “courts must be careful not to circumscribe the authority of military commanders to an extent never intended by Congress.” Brown v. Glines, 444 U.S. 348, 360, 100 S.Ct. 594 (1980), 62 L.Ed.2d 540 (citation and internal quotation marks omitted). We have taken this concern seriously in the' federal-labor-relations context, declining to require bargaining over proposals' that could potentially undermine military judgment even where the relevant statqte never expressly shields the military from bargaining. In National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988), for example, we found “unbargainable” a proposal by dual-status guard technicians that would have required civilian supervisors to attempt to “convince military officials to assign personnel in some manner other than the one they originally thought best.” Id. at 1352. Although the proposal would not have led to' civilians directly interfering-with military-management choices, and although the Technician Act “d[id] not specifically countermand the LocaFs proposal,” we concluded that it fell - outside the duty to bargain because it would “subject [military personnel decisions] to civilian influence.” Id. at 1352-53 (second emphasis added); see also American Federation of Government Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1544-46 (D.C. Cir. 1984) (rejecting a proposal requiring military leaders, to disregard National Guard technicians’ military evaluations in favor of civilian evaluations when conducting layoffs, where the statute’s purpose was “to assure that the military mission of the Guard would be carried out effectively and efficiently”).

In this case, by requiring negotiation over the Shoppette proposal, the Authority has similarly second-guessed the Secretary’s judgment in deciding how best to Use a military benefit to achieve military purposes. The panel arbitrator required civilian access to the Shoppette because, in her view, “it is illogical that it is acceptable to have civilians enter a store to buy hot dogs, but damaging to [troop] morale if they are allowed to purchase aspirin, batteries, or tissues.” Panel Arbitrator’s Decision, at Joint Appendix 23. Agreeing with the arbitrator, the Authority reasoned that nothing in Title 10 “suggests that the incremental extension of benefits ... from hot dogs to aspirin, batteries, [and] tissues ... is unlawful.” Local 1547 II, 67 F.L.R.A. at 530 (internal quotations marks omitted) (alteration in original). But the Air Force -Secretary, exercising his delegated “authority . to conduct[] all affairs of the Department” subject only to review by the Defense Secretary, 10 U.S.C. § 8013(b), decided otherwise. Contrary to both the arbitrator' and the Authority, this case is not about hot dogs and aspirin, but rather whether the military retains its unfettered authority to determine if and under what circumstances nonmilitary persons may enjoy access to commissaries and exchanges.

To be sure, in American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989), we concluded that access to a .military exchange fell within the duty to bargain. Id. at 1447. But that decision predated by fifteen years Congress’s enactment of Title 10’s commissary-and-exchange provisions which, as we have explained, vest the Secretary with sole discretion over cMlian-employee access to commissaries and exchanges. See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 651, 118 Stat. 1811, 1964-73 (2004).

The Authority nonetheless argues that the Shoppette proposal is negotiable because nothing in Title 10 expressly precludes civilian employees from bargaining over access to commissaries and exchanges. In support, it points to Illinois National Guard, in which we held that the Technician. Act gives the Army Secretary unfettered discretion to determine National Guard technicians’ work schedules because the statute provides that, “Notwithstanding [the scheduling and overtime provisions] of title 5 or any other provision of law, the Secretary concerned may .., prescribe the hours of duty for technicians.” 854 F.2d at 1401 (quoting 38 U.S.C. § 709(g)(2) (1988) (emphasis omitted)); see, e.g., National Treasury Employees Union (NTEU) v. FLRA, 435 F.3d 1049, 1051 (2006) (holding that Comptroller of the Currency had sole and exclusive discretion over bank-examiner salaries where Congress provided that the “ ‘employment and compensation of examiners .,. shall be without regard to the provisions of other laws applicable to officers or employees of the United States’” (quoting 12 U.S.C. § 481 (2006))). Since Title 10 contains no similar carve-out for commissaries and exchanges, the FLRA reasons, Congress must have intended them to be a proper subject of collective bargaining.

The Authority’s argument suffers from two flaws. First, although it is true that the Authority “consider[s] the absence of such preemptive language ... to be. a strong indication that Congress did not intend [an agency] to have unfettered discretion” over a given matter, Department of Veterans Affairs Veterans Administration Medical Center, Veterans Canteen Service, 44 F.L.R.A. 162, 164-65 (Feb. 28, 1992), neither it—nor for that matter this Court—has ever held that a statute must contain phrases like “notwithstanding any law” to place a subject outside an agency’s duty to bargain.

Second, in each of the cases cited by the Authority, the agency argued that the statute it administered—a statute that expressly addressed employment matters, such as hours, pay, and benefits, for a defined category of federal employees— exempted it from Title 5’s broadly applicable civil-service rules, including collective-bargaining requirements. See National Treasury, 435 F.3d at 1051 (interpreting statute giving the Treasury Secretary authority to employ and compensate bank examiners); Illinois National Guard, 854 F.2d at 1403 (interpreting statute giving the Army Secretary authority to set work schedules for dual-status guard .technicians); Colorado Nurses Association, 851 F.2d at 1488 (interpreting statute giving the Secretary of Veterans. Affairs authority to control hours and working conditions of medical personnel). In this case, however, the Air Force is not seeking to exempt itself from collective bargaining; it merely seeks to limit the scope of bargaining with respect to a.matter that it believes Congress has committed to its unfettered discretion.

Moreover, Title 10’s commissary-and-exehange provisions differ significantly from the statutes at issue in the case cited by the Authority. Those statutes all directly addressed an agency’s employment-related authority, so it makes sense that the FLRA would describe its interpretive task as “ascertaining] whether Congress has clearly expressed an intent to deprive employees of their rights under the [FSLMRS].” Respondent’s Br. 31 (emphasis added); see Colorado Nurses, 851 F.2d at 1489 (court must determine whether Congress intended to “exempt [a federal employer] from all laws governing the terms and conditions of federal employment”). Title 10’s commissary-and-exchange provisions stand on wholly different footing, as they have absolutely nothing to do with civilian employment and everything to do with creating a military benefit designed to “support military readiness, recruitment, and retention.” 10 U.S.C. § 2481(b). Given Congress’s focus on defining a military benefit, which has nothing at all to do with terms and conditions of civilian employment, it would have had no reason to include a “notwithstanding” clause exempting that benefit from “‘other laws applicable to [civilian] officers or employees of the United States.’” National Treasury, 435 F.3d at 1051 (quoting 12 U.S.C. § 481).

For all of these reasons, we hold that civilian access to commissaries and exchanges is not a proper subject of collective bargaining because Congress has vested the military with “unfettered discretion” over the matter. See Illinois National Guard, 854 F.2d at 1401. Although this is sufficient to resolve this case, we think it nonetheless helpful to consider the Air Force’s alternative argument—that the Authority failed to make any factual findings in support of its conclusion that the proposal concerns unit employee’s- conditions of employment—since that issue is likely to arise again in .cases where collective bargaining is not barred by legislation giving the agency unfettered discretion over the subject of negotiations,

III.

As the Authority has , itself explained, in evaluating whether a proposal concerns conditions of employment, .it must, among other things, determine if “the record establishes ... a direct connection between -the proposal and .the work situation or employment relationship of bargaining unit employees.” Antilles Consolidated Education Association & Antilles Consolidated School System, 22 F.L.R.A. 235, 237 (June 24, 1986). The Authority must also, as this Court has held, “point to evidence in the record establishing this link.” U.S. Department of the Air Force, Griffis Air Force Base v. FLRA, 949 F.2d 1169, 1174 (D.C. Cir. 1991). And as with all Authority fact-finding, our role is limited to ensuring that its “findings of fact [are] supported by substantial evidence on the record considered as a whole.” Pension Benefit Guarantee Corp. v. FLRA, 967 F.2d 658, 665 (D.C. Cir. 1992).

Consider a few examples. In one case, we upheld an Authority decision that declined to require the Department of Defense Dependents Schools to bargain over a proposal that would have extended into retirement a benefit allowing teachers to travel for free aboard military aircraft. Overseas Education Association, Inc. v. FLRA, 858 F.2d 769, 770, 772 (D.C. Cir. 1988). Although we recognized the clear link between free travel and working conditions for active employees, who were “called upon ... to situate themselves ... abroad,” we agreed with the Authority that nothing in the record showed that extending the free-travel benefit into “the golden years of retirement” would have had a “direct impact on an employee’s day-to-day allegiance to his or her job.” Id. at 772-73. In another case, civilian employees sought to bargain over an Air Force decision requiring them to challenge disciplinary actions, not on base, as they had been permitted to do for years, but rather before a magistrate court forty-two miles away. Griffis Air Force Base, 949 F.2d at 1171. Ruling for the employees, the Authority found a direct connection between the change in policy and the employee’s working conditions, citing record evidence showing “that the [new] policy would cause employees to expend annual leave time to travel ..., appear before the Magistrate, and prepare for trial.” Id. at 1172. Given those findings, we had little difficulty deciding that the Authority’s direct-connection conclusion rested “on firm ground.” Id. at 1174.

In its brief on appeal here, the Authority acknowledges that its obligation to “ascertain whether there is a direct connection ... is a factual determination, dependent on the record evidence in each individual case, and .reviewed for substantial evidence supporting [its] conclusion.” Respondent’s Br. at 21-22. Surprisingly, however, the Authority engaged in no such fact-finding in this case. Instead of pointing to the circumstances at Luke AFB that tie Shoppette access to employee working conditions, the Authority simply cited its earlier decision in this case for the proposition that “access to military exchange and exchange-related facilities .., concerns employees’ conditions of employment.” Local 1547 II, 67 F.L.R.A. at 525.

Of course, this would not be a problem had the earlier decision established the required factual link 'between Shoppette access and employee working conditions. But it did no such thing. Even though the Air Force insisted that conditions at Luke AFB did not justify civilian access, the Authority made no contrary findings, instead rejecting the Air Force’s arguments by simply citing its own precedent. For instance, the Air Force argued that nothing in the record supported allowing civilians to purchase groceries “not ... ready for consumption.” Local 1547 I, 64 F.L.R.A. at 646. In response, instead of describing the circumstances that, in its judgment, made it necessary for civilian employees to purchase such groceries, the Authority simply stated that its “precedent does not support finding that only proposals involving prepared foodstuffs concern conditions of employment.” Id. The Air Force also argued that civilian employees had no need to shop during non-duty hours. Id. But rather than identifying the conditions on base that warranted off-duty access to the Shoppette, the Authority simply declared that “no decisions .,. support [the Air Force’s] assertion.” Id.

We could go on and on with more examples, but we think the point is clear: the Authority has entirely failed to establish a factual link between Shoppette access and base-employee working conditions. Although our role in reviewing negotiability determinations is limited, the Authority must find facts to give us something to review. Because it failed to do so in this case, we would grant the Air Force’s petition for review on this ground were we not granting it on the antecedent ground that access to commissaries and exchanges falls outside the scope of collective bargaining.

IV.

We grant the petition for review and vacate the Authority’s order.

So ordered.