author: ED CARNES, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Gabriel GARCIA-MARTINEZ, Defendant-Appellant.
    No. 14-15725
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 01/11/2017

      Francis D. Murray, Yvette Rhodes, Michelle Thresher Taylor, Arthur Lee Bentley, III, U.S. Attorney’s Office, Tampa, FL, Michael C. Bagge-Hernandez, U.S. Attorney’s Office, Fort Myers, FL, for Plaintiff-Appellee.
    Adeel Bashir, Federal Public Defender’s Office, Tampa, FL, Tracy N. DaCruz, The DaCruz Law Firm, PLLC, Rosemary Cak-mis, Donna Lee Elm, Federal Public Defender’s Office, Orlando, FL, Russell K. Rosenthal, Federal Public Defender’s Office, Fort Myers, FL, for Defendant-Appellant.
    Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and ROSENBERG, District Judge.

       Honorable Robin L. Rosenberg, United States District Judge for the Southern District of Florida, sitting by designation.

   ED CARNES, Chief Judge:

■Jose Gabriel Garcia-Martinez pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2) and was sentenced to 36 months imprisonment. He appeals his sentence, contending that the district court erred by applying a 16-level enhancement under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) (2014) for reentering the United States after having been deported for a “crime of violence.” His purported “crime of violence” was a Florida conviction for second degree burglary of a dwelling.

I.

In 2009 Garcia-Martinez, a Mexican citizen who was in the United States illegally, was convicted in Florida of second degree burglary of a dwelling under Florida Statute § 810.02(3). Florida defines burglary as “[entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein ... or ... [n]otwithsand-ing a licensed or invited entry, remaining in a dwelling, structure, or conveyance” with the intent to commit an offense or a forcible felony. Fla. Stat. § 810.02(1)(b). As relevant to this case, a second degree burglary is one in which:

in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;
(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains....

Id. § 810.02(3)(a)-(b). Florida defines a “dwelling” as “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curti-lage thereof.” Id. § 810.011(2) (emphasis added).

After his Florida conviction for second degree burglary of a dwelling, Garcia-Martinez was removed from the United States in 2010 and ordered not to enter, attempt to enter, or be in the United States for the rest of his life. Despite his removal, on June 16, 2014 immigration agents found Garcia-Martinez in a Florida jail after he had been arrested for battery. He was charged with and pleaded guilty to illegal reentry after deportation.

The presentence investigation report, using the 2014 version of the United States Sentencing Guidelines (which is also the version that we use in this appeal), assigned a base offense level of 8 under § 2L1.2(a), a 16-level increase under § 2L1.2(b)(1)(A)(ii), and a 3-level reduction for acceptance of responsibility, yielding a total offense level of 21. The PSR explained that the 16-level increase under § 2L1.2(b)(1)(A)(ii) was warranted because Garcia-Martinez’s Florida conviction for second degree burglary of a dwelling counted as a crime of violence.

The district court, over Garcia-Martinez’s objection, concluded that based on the facts described in the PSR, Garcia-Martinez’s charging document, and his state court judgment, Garcia-Martinez’s conviction counted as a crime of violence under § 2L1.2. The court adopted the PSR without change, meaning that Gareia-Mar-tinez faced an advisory guidelines range of 41 to 51 months imprisonment, but the court varied downward and imposed a sentence of 36 months imprisonment.

II.

We review de novo whether a defendant’s prior conviction is for a “crime of violence” under § 2L1.2(b)(1)(A)(ii). United States v. Estrada, 777 F.3d 1318, 1321 (11th Cir. 2015). Section 2L1.2(b)(1)(A)(ii) states that the court must increase the defendant’s offense level by 16 levels “[i]f the defendant previously was deported ... after ,.. a conviction for a felony that is ... a crime of violence.”

The commentary to § 2L1.2 defines a “crime of violence” as:

[A]ny of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). “[A] felony conviction qualifies as a crime of violence under § 2L1.2 if either (1) the defendant was convicted of one of the enumerated offenses; or (2) the use, attempted use, or threatened use of physical force was an element of the offense.” United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). We refer to the first part of the definition as the enumerated offenses clause and the second part as the elements clause. Because it is clear that a Florida conviction for second degree burglary of a dwelling does not count under § 2L1.2’s elements clause, see Fla. Stat. § 810.02(3), the decisive question is whether it counts under § 2L1.2’s enumerated offenses clause.

To answer that question, we use the framework the Supreme Court has set out for determining whether a conviction under a state or federal statute counts as a predicate offense for purposes of the Armed Career Criminal Act (ACCA). The ACCA calls for an enhanced sentence when a defendant has three or more convictions for crimes that qualify as predicate offenses. 18 U.S.C. § 924(e)(1). One type of qualifying offense is a “violent felony.” Id. § 924(e)(2)(B)(ii). Although § 2L1.2 defines a crime of violence for guidelines enhancement purposes differently from how the ACCA defines a violent felony, we have used the framework for determining whether a conviction qualifies under the ACCA to decide whether one qualifies under § 2L1.2. See, e.g., United States v. Ramirez-Flores, 743 F.3d 816, 820-21 & n.2 (11th Cir. 2014); United States v. Ramirez-Garcia, 646 F.3d 778, 782-83 (11th Cir. 2011); United States v. Krawczak, 331 F.3d 1302, 1306 (11th Cir. 2003). We do so again in this case.

The first step is to determine the generic definition of the enumerated offense. See Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Then the court must use the “categorical approach” to compare the statute under which the defendant was convicted to the generic offense. Id. at 599-602, 110 S.Ct. at 2158-60. In doing that a court may look at only the elements of the statute of conviction and not at the underlying facts of the offense. Id.; cf. United States v. Gundy, 842 F.3d 1156, 1161 (11th Cir. 2016) (“[F]ocusing on the elements of the statute of conviction is, and always has been, the essential principle governing ACCA cases.”). If the statute’s elements are the same or narrower than those in the generic definition, the statutory offense qualifies. Taylor, 495 U.S. at 599,110 S.Ct. at 2158; Descamps v. United States, 570 U.S. -, 133 S.Ct. 2276, 2283,186 L.Ed.2d 438 (2013).

A conviction cannot categorically qualify as a predicate offense if the conviction was for violating a statute that is broader than the generic definition of the enumerated offense. Descamps, 133 S.Ct. at 2283; Gundy, 842 F.3d at 1162. If that is the situation, the court must decide whether it is appropriate to use what is called the “modified categorical approach” and look at “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). It is appropriate to use the modified categorical approach only if the statute at issue is “divisible,” or “comprises multiple, alternative versions of the crime.” Descamps, 133 S.Ct. at 2284; accord Mathis, 136 S.Ct. at 2249 (describing a divisible statute as one that “list[s] elements in the alternative, and thereby define[s] multiple crimes”). If the statute is “indivisible,” meaning that it “sets out a single (or ‘indivisible’) set of elements to define a single crime.... no conviction under that law could count as [a] ... predicate.” Mathis, 136 S.Ct. at 2248-49.

A.

While § 2L1.2 counts “burglary of a dwelling” as a predicate offense, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), the ACCA counts “burglary” as a predicate offense, 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor the Supreme Court held that the generic definition of burglary, as used in the ACCA, is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. at 599, 110 S.Ct. at 2158. But that definition is not the end of our inquiry because, unlike the ACCA, § 2L1.2 specifies that the offense must be “burglary of a dwelling.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added); see United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013) (“We disagree that Taylor’s strict definition of ‘generic burglary’ automatically dictates the Guidelines’ definition of ‘burglary of a dwelling.’”); United States v. Rivera-Oros, 590 F.3d 1123, 1129 (10th Cir. 2009) (“[S]ince the Supreme Court’s decision in Taylor was based on the ACCA’s language and purpose, we conclude that Taylor’s definition of generic burglary does not dictate the result in this case.”); United States v. Murillo-Lopez, 444 F.3d 337, 344-45 (5th Cir. 2006) (stating that the Supreme Court’s formulation of generic burglary in Taylor is “instructive” but “does not strictly apply to the specific offense ‘burglary of a dwelling’ as used in the Guidelines”).

So we face this question: What is the generic definition of a dwelling? In United States v. Ray, 245 F.3d 1256, 1257 (11th Cir. 2001), we followed the Third Circuit’s decision in United States v. McClenton, 53 F.3d 584 (3d Cir. 1995), to hold that a hotel guest room counts as a dwelling under the guidelines. The McClenton decision relied in part on the definition given in the sixth edition of Black’s Law Dictionary. 53 F.3d at 587. That definition of dwelling is “a building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” Dwelling, Black’s Law Dictionary (6th ed. 1990). Our circuit and the Third are not the only two to have used that definition. The First, Fifth, Sixth, Eighth, and Tenth Circuits have also used it, or a substantially similar definition from a later edition of Black’s Law Dictionary. Ramirez, 708 F.3d at 303; United States v. McFalls, 592 F.3d 707, 712-14 (6th Cir. 2010); Rivera-Oros, 590 F.3d at 1131-32; Murillo-Lopez, 444 F.3d at 345; United States v. Graham, 982 F.2d 315, 316 (8th Cir. 1992).

Using the Black’s Law Dictionary definition of dwelling, generic burglary of a dwelling under § 2L1.2 is both narrower and broader than generic burglary under the ACCA. It is narrower because a conviction for burglary of a building or structure like a store, which would qualify as a violent felony under the ACCA, would not qualify as a crime of violence under § 2L1.2 because a store is not a dwellmg. At the same time, it is broader because a conviction for burglary of something like a houseboat, which would not count as a violent felony under the ACCA because a vessel is not a “building or structure,” see Taylor, 495 U.S. at 599, 110 S.Ct. at 2158-59, would count as a crime of violence under § 2L1.2 since a houseboat is an “enclosed space which is used or intended for use as a human habitation, home or residence.”

The Ninth Circuit has rejected the Black’s Law Dictionary definition of dwelling for guidelines purposes. United States v. Wenner, 351 F.3d 969, 973 (9th Cir. 2003). Instead, it has held that burglary of a dwelling under the guidelines should be defined using “the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling,” id. which “must involve a building or other structure,” id. at 972 (quotation marks omitted). But Taylor was, of course, an ACCA case, not a guidelines case. The Fourth Circuit has also construed burglary of a dwelling under the guidelines to mean generic burglary, as defined in Taylor, “with the additional requirement that a burglary qualifying as a ‘crime of violence’ must involve a dwelling.” United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012). Under the Fourth Circuit’s definition, a dwelling cannot be a “boat, motor vehicle, or other enclosure that is excluded from the definition of generic burglary.” United States v. Henriquez, 757 F.3d 144, 147 (4th Cir. 2014).

We are not convinced by the Fourth and Ninth Circuits’ reasoning. Instead, we find the reasoning of the Third and Tenth Circuits more persuasive. The Tenth Circuit in its Rivera-Oros decision pointed out that the Sentencing Commission chose to make burglary of a dwelling a crime of violence because of its “heightened concern for the harms associated with residential burglaries,” 590 F.3d at 1132, because “residential burglaries pose an increased risk of physical and psychological injury,” id. at 1130 (quotation marks omitted). As that court explained, “burglary [of a residence] is ... ‘a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature.’” Id. (quoting 4 William Blackstone, Commentaries *223); see also id. (“[T]he unique wounds caused by residential burglary are independent of the size or construction of the dwelling. They are the same for the mansion house and the boarding house, the tract home and the mobile home.”). And, as the Third Circuit pointed out in McClenton, with burglary of a dwelling “there is a much greater possibility of confronting the resident and a substantial risk that force will be used and that someone will be injured, than if one burglarized a building that was not intended for use as habitation, such as an office building after office hours or a warehouse.” 53 F.3d at 588.

That reasoning is true of dwellings, including vessels and conveyances, if they are used or intended for use for human habitation, as much as it is for dwellings like houses. For those reasons, we reject the Fourth and Ninth Circuits’ position in favor of the position of the Third Circuit and the five others that agree with it. We reiterate more explicitly our earlier decision in Ray: A generic dwelling is “a building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” See 245 F.3d at 1257 (incorporating McClenton, 53 F.3d at 587).

B.

With the generic definition of “dwelling” in mind, we apply the categorical approach to Florida’s statute setting out the elements of second degree burglary of a dwelling. We have already said in one decision that Florida burglary of an unoccupied dwelling does not categorically qualify as a crime of violence under a different guideline’s enumerated offenses clause because Florida includes curtilage in its definition of dwelling. Matchett, 802 F.3d at 1196-97. The parties disagree about whether that statement is a holding (meaning we are bound to follow it) or dicta (meaning we are not bound by it). We need not decide one way or the other, because Florida’s definition of a dwelling makes its burglary of a dwelling offense broader than the generic definition under § 2L1.2.

Florida defines a dwelling as:

[A] building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.

Fla. Stat. § 810.011(2) (emphasis added). The Florida Supreme Court has said that “some form of an enclosure [is required] in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So.2d 1038, 1044 (Fla. 1995).

The United States Supreme Court has decided that Florida’s definition of dwelling takes its burglary offense outside the generic definition of burglary under the ACCA. In James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586, 1599, 167 L.Ed.2d 532 (2007), overruled on other grounds by Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the Court said that “the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure.” (Emphasis in original). But the James decision was based on the generic definition of burglary under the ACCA, which requires entry into or remaining in a building or structure, while generic burglary of a dwelling under § 2L1.2 requires only entry into or remaining in a dwelling, which can include non-buildings and non-structures.

Although we conclude that the James decision does not bind us in the guidelines context, we come to the same conclusion it did: Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage— defined in Florida as an enclosure around a residence — is not categorically “used or intended for use as a human habitation, home or residence” because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure. See Henry v. State, 707 So.2d 370, 373 (Fla. 1st DCA 1998) (holding that curtilage of a structure, which is treated the same as curtilage of a dwelling, includes outbuildings located within the curtilage).

We are not the first circuit to reach this conclusion. The First and the Fifth Circuits have also held that Florida’s definition of dwelling takes its burglary of a dwelling offense outside the generic definition of burglary of a dwelling. The First Circuit has explained that “[gjeneric burglary of a dwelling requires the dwelling be an enclosed space used or designed for human habitation. Under Florida’s definition of burglary of a dwelling, the building or conveyance must be designed for lodging at night, but the curtilage does not.” Ramirez, 708 F.3d at 304. It held that Florida’s inclusion of curtilage in its definition of dwelling makes it broader than generic burglary of a dwelling under the guidelines. Id. Similarly, the Fifth Circuit has reasoned that “[bjecause the curtilage is the grounds around the dwelling and is not the dwelling itself, we cannot hold that [the defendant] was convicted of the enumerated offense of ‘burglary of a dwelling.’ ” Gomez-Guerra, 485 F.3d at 304.

We hold that Florida’s inclusion of curti-lage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Garcia-Martinez’s conviction for second degree burglary of a dwelling is not categorically a crime of violence under § 2L1.2.

C.

Because a Florida conviction for second degree burglary of a dwelling is not categorically a crime of violence, the outcome of this appeal comes down to whether the district court correctly used the modified categorical approach to determine if Garcia-Martinez was convicted of generic burglary of a dwelling. The answer to that question depends on whether the Florida statute defining the crime of second degree burglary of a dwelling lists alternative elements, making it divisible, or instead lists “various factual means of committing a single element,” making it indivisible. Mathis, 136 S.Ct. at 2249.

The Florida Supreme Court has already answered that question for us. It has held that “[tjhere is no crime denominated burglary of a curtilage; the curtilage is not a separate location wherein a burglary can occur. ... Entry onto the curtilage is, for the purposes of the burglary statute, entry into the structure or dwelling.” Baker v. State, 636 So.2d 1342, 1344 (Fla. 1994). The dwelling and the curtilage are not alternative elements. Under the Florida statute, entering onto or remaining in the curtilage of a dwelling is just a different means of committing the crime of burglary of a dwelling. A jury need not agree whether a defendant entered a structure or instead entered curtilage surrounding a structure. See id.; Mathis, 136 S.Ct. at 2249. All that a jury must decide, under Florida law, is whether a defendant entered a dwelling, which is a term that encompasses both structures and curtilage. See Baker, 636 So.2d at 1344. Thus, the locational element of Florida burglary of a dwelling is indivisible. And because that locational element — the residence plus its curtilage — is broader than the generic definition of a dwelling, Florida’s second degree burglary of a dwelling offense is non-generic.

The district court erred in applying the modified categorical approach to find that Garcia-Martinez’s conviction counted as a crime of violence under § 2L1.2. We vacate his sentence and remand for resen-tencing.

D.

On remand the district court must calculate Garcia-Martinez’s advisory guidelines range using the same guidelines that were in effect at his previous sentencing. See 18 U.S.C. § 3742(g)(1) (stating that where a case is remanded because the district court incorrectly applied the guidelines, “the court shall apply the guidelines issued by the Sentencing Commission ... that were in effect on the date of the previous sentencing of the defendant prior to the appeal. ...”); see also United States v. Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005). We vacate Garcia-Martinez’s sentence and remand with instructions to resentence him using the 2014 sentencing guidelines.

VACATED AND REMANDED.

      . Garcia-Martinez also contends that his sentence is unconstitutional because the statutory maximum penalty was increased from 2 years to 20 years based on a conviction not charged in the indictment. As he concedes, however, that argument is foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

      . Because Garcia-Martinez was convicted of second degree burglary, we do not consider whether a Florida conviction for first degree burglary would count as a crime of violence under § 2L1.2’s elements clause.

      . The distinction between burglary under the ACCA and burglary of a dwelling under the sentencing guidelines is also the reason why our recent decision in United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016), does not resolve this appeal. In Esprit we held that "Florida’s burglary statute creates a single indivisible crime that includes non-generic burglary," meaning that "no conviction under Florida's burglary statute ... can serve as an ACCA predicate offense.” Id. at 1241. But the question in this case is whether a conviction for burglary of a dwelling under Florida law can serve as a § 2L1.2 crime of violence, which is defined differently from violent felony in the ACCA.

      . For example, tee tenth edition defines a "dwelling-house” as used in criminal law as:
      [a] building, a part of a building, a tent, a mobile home, or another enclosed space that is used or intended for use as a human habitation. The term has referred to connected buildings in the same curtilage but now -typically includes only tee structures connected either directly with the house or by an enclosed passageway. Often shortened to dwelling.
      Dwelling-house, Black's Law Dictionary (10th ed. 2014); see also Rivera-Oros, 590 F.3d at 1131-32 (discussing the ninth edition definition).

      . We have held that Florida burglary of a dwelling categorically counts as a crime of violence under the career offender sentencing guideline, U.S.S.G. §§ 4B1.1, 4B1.2. United States v. Matchett, 802 F.3d 1185, 1197 (11th Cir. 2015); United States v. Davis, 881 F.2d 973, 976 (11th Cir. 1989). But those decisions are not dispositive in this case because they involved § 4B1.2, which has a residual clause that covers offenses that would not count under the enumerated offenses or elements clauses. Compare U.S.S.G. § 4B1.2 cmt. n.1, with id. § 2L1.2 cmt. n.1(B)(iii). Their results were based on that residual clause. Matchett, 802 F.3d at 1197; Davis, 881 F.2d at 976. Section 2L1.2, by contrast, does not have a residual clause.


source: Caselaw Access Project

author: HULL, Circuit Judge:

license: Public Domain

text:
    Pamela CAVER, Christine Grandison, Dexter Grandison, Plaintiffs-Appellants, v. CENTRAL ALABAMA ELECTRIC COOPERATIVE, Defendant-Appellee.
    No. 15-15207
    United States Court of Appeals, Eleventh Circuit.
    January 12, 2017

      Oscar M. Price, IV, Christian & Small, LLP, Lucas Carrington Montgomery, Montgomery Ponder, LLC, BIRMINGHAM, AL, Joel Connally, Strength & Con-nally, LLC, MONTGOMERY, AL, James E. Fleenor, Jr., Wilson Franklin Green, Fleenor & Green, LLP, TUSCALOOSA, AL, John Bradford Boyd Hicks, Stone Granade <& Crosby, PC, BAY MINETTE, AL, Christine Burns Segarra, Stone Gra-nade & Crosby, PC, DAPHNE, AL, Brian P. Strength, Brian P. Strength Attorney at Law, TUSKEGEE, AL, Rickman E. Williams, III, Pitts Williams & Jones, SELMA, AL, for Plaintiffs-Appellants.
    Dennis R. Bailey, J. Evans Bailey, Richard McConnell Freeman, Jr., J. Theodore Jackson, Jr., Rushton Stakely Johnston & Garrett, PA, MONTGOMERY, AL, for Defendant-Appellee.
    Ann Ashton Holmes Ott, Edward M. Price, Jr., Farmer Price Hornsby & Weatherford, LLP, DOTHAN, AL, Ami-cus Curiae for PEA RIVER ELECTRIC COOPERATIVE INC., WIREGRASS ELECTRIC COOPERATIVE, INC.
    Robert E. Poundstone, IV, Phillip Henry Butler, George R. Parker, Bradley Ar-ant Boult Cummings, LLP, MONTGOMERY, AL, Marc James Ayers, Bradley Arant Boult Cummings, LLP, BIRMINGHAM, AL, Amicus Curiae for PIONEER ELECTRIC COOPERATIVE, INC., DIXIE ELECTRIC COOPERATIVE.
    Christina M. Schwing, Lawrence J. Hamilton, II, Laura Beard Renstrom, Holland & Knight, LLP, JACKSONVILLE, FL, Amicus Curiae for FLORIDA ELECTRIC COOPERATIVES ASSOCIATION.
    Before TJOFLAT and HULL, Circuit Judges, and MENDOZA, District Judge.

       Honorable Carlos Eduardo Mendoza, United States District Judge for the Middle District of Florida, sitting by designation.

   HULL, Circuit Judge:

Plaintiff Pamela Caver and others, on behalf of members of Defendant Central Alabama Electric Cooperative (“CAEC”), brought a putative class action against CAEC, alleging that CAEC wrongfully had refused to pay out “excess revenues” in cash to its members. CAEC supplies electricity to rural communities in Alabama. The federal government loans substantial capital to CAEC and highly regulates CAEC’s operations and provision of government-subsidized electricity to rural customers.

Defendant CAEC removed this case to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The district court denied Plaintiff Caver’s motion to remand the case back to state court.

Subsequently, the district court granted CAEC’s motion to dismiss the complaint. The district court pointed out that when CAEC’s revenues exceed its operating costs and other expenses, CAEC does credit each members’ capital account with the cooperative. The district court held that CAEC’s distribution of excess revenues to its members by making credits to their capital accounts, as opposed to making cash payments, complied with Alabama state law. After thorough review and with the benefit of oral argument, we affirm the district court’s ruling on both issues.

I. JURISDICTION BACKGROUND

As background to the jurisdiction issue, we review the extensive interrelationship between the federal government and Defendant CAEC.

A. History of Rural Electrification

In 1935, during the Great Depression, President Franklin D. Roosevelt, through an executive order, created the Rural Electrification Administration (“REA”) “[t]o initiate, formulate, administer, and supervise a program of approved projects with respect to the generation, transmission, and distribution of electric energy in rural areas.” Exec. Order No. 7037. The following year, Congress passed the Rural Electrification Act of 1936 (the “RE Act”). 7 U.S.C. § 901. By passing the RE Act, Congress affirmed the creation of the REA and authorized the REA to make loans “for rural electrification and the furnishing of electric energy to persons in rural areas.” Pub. L. No. 74-605, 49 Stat. 1363; accord 7 U.S.C. § 902(a).

The federal government thus initiated this program of rural electrification. Specifically, the program was formulated and supervised by the REA, and all projects required REA approval. The President and Congress’s objective in creating the REA “was to provide electricity to those sparsely settled areas which the investor-owned utilities had not found it profitable to service. To this end REA makes long-term low-interest loans to approved nonprofit cooperatives.” Salt River Project Agric. Improvement & Power Dist. v. Fed. Power Comm’n, 391 F.2d 470, 473 (D.C. Cir. 1968); see also City of Stilwell v. Ozarks Rural Elec. Coop. Corp,, 79 F.3d 1038,1041 (10th Cir. 1996) (explaining that the REA “was created by the [RE Act] to provide financing to power suppliers as an inducement to provide economical electric power to rural America”).

“In response to the RE Act and its precursor Executive Branch order, cooperative electrical systems were formed to seek government subsidized loans and deliver electricity to rural consumers.” In re Cajun Elec. Power Coop., Inc., 109 F.3d 248, 252 (5th Cir. 1997). In 1939, Alabama passed the Electric Cooperative Act, which provides for the creation of cooperative, nonprofit membership corporations “for the purpose of supplying electric energy and promoting and extending the use thereof.” Ala. Code § 37-6-2. Other states approved similar legislation, and by 1968 there were “nearly 1,000 rural electric cooperatives which own and operate electric systems financed by the United States, acting through REA, pursuant to the Rural Electrification Act of 1936.” Salt River Project, 391 F.2d at 472.

B. Federal Loans and Regulation

Defendant CAEC, like other rural electric cooperatives, receives substantial loans from the federal government, specifically the United States Department of Agriculture Rural Utilities Services (“RUS”). The RUS is the successor to the REA.

The latest loan agreement between CAEC and RUS is dated February 2, 2009. The loan agreement limits CAEC’s discretion to make “Distributions” to its members. The loan agreement defines “Distributions” to mean to “declare or pay any dividends, or pay or determine to pay any patronage refunds, or retire any patronage capital or make any other Cash Distributions, to its members, stockholders or consumers.” Loan Agreement Art. 1.

Under the loan agreement, CAEC cannot pay patronage refunds, or retire any patronage capital, or make any cash distributions to its members if doing so would cause its equity to fall below 30% of its total assets, as follows:

Limitation on Distributions.
Without the prior written approval of RUS, [CAEC] shall not in any calendar year make any Distributions (exclusive of any Distributions to the estates of deceased natural patrons) to its members, stockholders or consumers except as follows:
(a) . Equity above 30%. If, after giving effect to any such Distribution, the Equity of [CAEC] shall be greater than or equal to 30% of its Total Assets; or
(b) Equity above 20%. If, after giving effect to any such Distribution, the Equity of [CAEC] shall be greater than or equal to 20% of its Total Assets and the aggregate of all Distributions made during the calendar year when added to such Distribution shall be less than or equal to 25% of the prior year’s margins.
Provided however, that in no event shall [CAEC] make any Distributions if there is unpaid when due any installment of principal of (premium, if any) or interest on any of its payment obligations secured by the Mortgage, if [CAEC] is otherwise in default hereunder or if, after giving effect to any such Distribution, [CAEC’s] current and accrued assets would be less than its current and accrued liabilities.

Loan Agreement § 6.8.

A loan agreement with RUS, such as CAEC’s, “imposes certain restrictions and controls on the borrowers ’and gives RUS ... the right to approve or disapprove certain actions contemplated by the borrowers.” 7 C.F.R. § 1717.600(a). RUS’s regulations contain the same restriction on distributions as the loan agreement. 7 C.F.R. § 1717.617. Among other things, the loan agreement and regulations allow RUS, at certain times: (1) to set standards for property maintenance; (2) to set accounting standards; (3) to inspect the utility system, the books, and documents of every kind; (4) to regulate power requirement studies; (5) to regulate long-range engineering and construction plans, as well as design and construction standards; (6) to approve plans and specifications for construction; and (7) to set contract bidding requirements. See generally 7 C.F.R. § 1717.600, et seq.; 7 C.F.R. § 1718, app. A. The loan agreement and the regulations also require CAEC, in certain situations, to seek RUS approval: (1) to extend its electric system; (2) to hire a general manager; (3) to enter into certain contracts; (4) to merge or sell portions of its business or assets; (5) to make distributions to its members; or (6) to take on additional debt. See generally § 1717.600, et seq.; § 1718, app. A. In addition to these federal regulations and restrictions, Alabama law also regulates CAEC’s operations as discussed below.

C. Alabama Code § 37-6-1, et seq.

Alabama state law authorizes the creation of rural electric distribution cooperatives, such as Defendant CAEC, and regulates them. Ala. Code § 37-6-1, et seq. As a cooperative, Defendant CAEC is prohibited from making a profit on business conducted with the members. Ala. Code §§ 37-6-2, 37-6-20.

The difference between CAEC’s revenues and operating costs and other expenses is considered “margins” or “excess revenues” that belong to its members as “patronage capital.” Loan Agreement § 6.8; CAEC Bylaws § 8.02; Ala. Code § 37-6-20. Defendant CAEC must account for the patronage capital that belongs to its members. CAEC Bylaws § 8.02. CAEC’s members each have an account in his or her name that reflects a credit or debit for each year the member was or continues to be a CAEC member.

The particular Alabama statute at issue in this case is § 37-6-20 of the Alabama Code, which provides for the “Disposition of excess revenues” by an electric cooperative such as CAEC. Specifically, § 37-6-20 provides that the “excess revenues” of CAEC should be distributed, “as, and in the manner, provided in the bylaws,” either by “patronage refunds” or “rate reductions,” as follows:

[“Excess revenues”] shall be distributed by the cooperative to its members as, and in the manner, provided in the bylaws, either as patronage refunds prorated in accordance with the patronage of the cooperative by the respective members paid for during such fiscal year or by way of general rate reductions, or by combination of such methods. Nothing contained in this article shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.

Ala. Code § 37-6-20 (emphasis added).

CAEC’s bylaws provide that (1) CAEC shall account, on a patronage basis, for all revenue amounts received in excess of operating costs and expenses chargeable against the furnishing of electricity and (2) CAEC shall pay by credits to a capital account for each patron all such amounts in excess of operating costs and expenses, as follows:

Patronage Capital in Connection with Furnishing Electric Energy.,.. In order to induce patronage and to assure that the Cooperative will operate on a not-for-profit basis the Cooperative is obligated to account on a patronage basis to all its patrons, members and nonmembers alike, for all amounts received and receivable from the furnishing of electric energy in excess of operating costs and expenses properly chargeable against the furnishing of electric energy. All such amounts in excess of operating costs and expenses at the moment of receipt by the Cooperative are received with the understanding that they are furnished by the patrons, members and non-members alike, as capital. The Cooperative is obligated to pay by credits to a capital account for each patron all such amounts in excess of operating costs and expenses.

CAEC Bylaws § 8.02. In addition, the bylaws explain that these capital account credits should be treated as though they had been paid in cash: “All such amounts credited to the capital account of any patron shall have the same status as though they had been paid to the patron in cash in pursuance of a legal obligation to do so and the patron had then furnished the Cooperative corresponding amounts for capital.” Id. The bylaws also provide that the bylaws themselves constitute a contract between CAEC and each member. Id.

Pursuant to its bylaws, Defendant CAEC accounts for and distributes the patronage refund owed by crediting each member’s individual capital account for the member’s portion of the excess revenues. Although it distributes the patronage refund to the members’ capital accounts, CAEC does not actually pay out that money in cash for years. Sometimes those payouts come as late as thirty years after the credits are earned and when the members to whom they are owed can no longer be found. According to Caver, CAEC had accrued a total amount of patronage capital exceeding $24 million as of 2013.

Plaintiff Caver alleges that Defendant CAEC violated Alabama Code § 37-6-20, as well its own bylaws, by not paying out its excess revenues in cash to its members annually. Based on CAEC’s alleged violation of Alabama law and its bylaws, Caver’s complaint seeks a declaratory judgment and injunctive relief (Count 1) and alleges a claim for breach of contract (Count 2). The merits issues on appeal revolve around the interplay between Alabama state law, CAEC’s bylaws, and CAEC’s federal loan agreement with RUS. However, as a threshold matter, we first must address whether the district court had jurisdiction to decide this case.

II. JURISDICTION ANALYSIS

Defendant CAEC removed this case to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). That statute allows removal of any civil action against any officer of the United States, or “any person acting under that officer,” “for or relating to any act under color of such office,” as follows:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1) (emphasis added). Because CAEC is not a federal officer or agency itself, CAEC must satisfy a three-pronged test to determine whether it may effect removal. First, CAEC must show that it is a person within the meaning of the statute who acted under a federal officer. § 1442(a)(1). Second, CAEC must show that it performed the actions for which it is being sued under color of federal office. Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996); Florida v. Cohen, 887 F.2d 1451, 1453 (11th Cir. 1989). Stated another way, CAEC must show “a causal connection between what the officer has done under asserted official authority and the action against him.” Magnin, 91 F.3d at 1427 (quotation marks omitted). Third, CAEC must raise a colorable federal defense. Id.; Cohen, 887 F.2d at 1453-54.

This “statute’s ‘basic’ purpose is to protect the Federal Government from [state] interference with its ‘operations.’ ” Watson v. Philip Morris Cos., 551 U.S. 142, 150, 127 S.Ct. 2301, 2306, 168 L.Ed.2d 42 (2007). “This statute is an incident of federal supremacy and is designed to provide federal officials with a federal forum in which to raise defenses arising from their official duties.” Cohen, 887 F.2d at 1453.

A. “Acting Under”

The first question for federal officer removal is whether CAEC was a person “acting under” a federal officer when it took the actions complained of in this case. The parties do not debate that CAEC is a person within the meaning of the statute. Rather, they dispute whether CAEC was fulfilling a basic governmental task, or assisting the government in doing so, and thus “acting under” an officer of the United States.

The phrase “acting under” is broad and thus we “liberally construe” this portion of § 1442(a)(1). Watson, 551 U.S. at 147, 127 S.Ct. at 2304-05. The Supreme Court in Watson held that a private tobacco company, although highly regulated, was not “acting under” a federal officer. Id. at 15S, 157, 127 S.Ct. at 2308, 2310. The Supreme Court explained that a “private person’s ‘acting under’ must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at 152, 127 S.Ct. at 2307. In other words, the private person must help federal officers fulfill a basic governmental task that the government otherwise would have had to perform. Id, at 153-54, 127 S.Ct. at 2308.

In Watson, the tobacco company was using the government’s required method to test its cigarettes before it sold the cigarettes to the public for its own profit. Id, at 146, 127 S.Ct. at 2304. By using that testing method, the tobacco company was “simply complying” with federal law, which does “not” bring a private person within the scope of § 1442(a)(1). Id. at 152, 127 S.Ct. at 2307. Similarly, the mere fact that the federal government regulates a private entity does not satisfy the statutory basis for removal under § 1442(a)(1). Id, at 153, 127 S.Ct. at 2308. Instead, the relationship between the private person and the federal officer must be one of “subjection, guidance, or control.” Id. at 151, 127 S.Ct. at 2307 (quotation marks omitted).

As recounted above, rural electric cooperatives, such as CAEC, are highly regulated by the federal government. Salt River Project, 391 F.2d at 473. “Through its lending authority REA exercises extensive supervision over the planning, construction and operation of the facilities it finances.” Id. REA, however, is not a “classic public utility regulatory body” but instead is a “lending agency” that regulates. Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 386, 103 S.Ct. 1905, 1913, 76 L.Ed.2d 1 (1983) (discussing the scope of REA’s regulations). Any loans made by RUS must conform to the agency’s regulations and the RE Act. 7 C.F.R. § 1710.100.

Although these federal regulations alone are not enough to satisfy the federal officer removal statute, they do demonstrate the close and extensive relationship between CAEC and RUS, as well as RUS’s significant level of control over CAEC’s operations. In addition to their obligation to comply with extensive federal regulations, rural cooperatives such as CAEC must also assist RUS with accomplishing its duties or tasks in order to utilize the federal officer removal statute.

Consistent with the historical background discussed earlier, “rural electric cooperatives are something more than public utilities; they are instrumentalities of the United States. They were chosen by Congress for the purpose of bringing abundant, low cost electric energy to rural America.” Ala. Power Co. v. Ala. Elec. Coop., Inc., 394 F.2d 672, 677 (5th Cir. 1968) (internal quotation marks omitted). Although Alabama Power Co. involved a power company seeking judicial review of a loan to rural electric cooperatives, its recognition of the role and purpose of rural cooperatives in the federal system is instructive.

Quite simply the REA was designed to guide and control the process of bringing electricity to sparsely populated rural areas that would not otherwise receive electricity. Congress and the President designed a system by which the REA would accomplish these goals by loaning money to state entities, which would carry out these objectives under the REA’s close supervision. The federal government, using low-interest loans, funds its objective of providing rural electricity through these cooperatives such as CAEC. These rural electric cooperatives exist to provide a public function conceived of and directed by the federal government.

CAEC therefore helps assist or carry out the duties of RUS and works closely with RUS to fulfill the congressional objective of bringing electricity to rural areas that would otherwise go unserved. In other words, CAEC assists the RUS by “performing] a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.” Watson, 551 U.S. at 154, 127 S.Ct. at 2308; see also Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (“ ‘Acting under’ covers situations ... where the federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete.”); Bennett v, MIS Corp., 607 F.3d 1076,1088 (6th Cir. 2010) (concluding that company satisfied the “acting under” requirement when “in the absence of a contract with” the company, the government “itself would have had to perform” the task). In this sense, CAEC, a non-profit entity funded in part by federal loans, is closer in kind to a federal contractor performing work on behalf of the government than a private business working for its own ends. See Ruppel, 701 F.3d at 1179, 1181 (concluding that a corporation that supplied the Navy with turbines satisfied the “acting under” requirement); Bennett, 607 F.3d at 1086-88 (holding that a private mold remediation firm, removing mold from an airport, “act[ed] under” a federal officer).

Others courts, in addition to the district court in this case, have concluded, for the same reasons as those discussed here, that rural electric cooperatives are “acting under” a federal officer. See, e.g., Cessna v. Rea Energy Coop., Inc., No. 3:16-42, 2016 WL 3963217, at *5 (W.D. Pa. July 21, 2016) (“In light of the unusually close and detailed regulatory and contractual relationship between [Rea Energy Cooperative] and RUS, and in accordance with the liberal construction of 28 U.S.C. § 1442(a)(1), the Court finds that [Rea Energy Cooperative] was acting under a federal office.”) (internal quotation marks omitted). We find the reasoning of Cessna persuasive and agree that CAEC is “acting under” a federal officer for purposes of § 1442(a)(1) based on the long history of RUS’s control over CAEC and direction of the federal government’s rural electrification program dating back to the Great Depression.

B. Causal Connection

The second question for federal officer removal is whether there is a causal connection between Plaintiff Caver’s claims and an act of Defendant CAEC that forms the basis of those claims. Magnin, 91 F.3d at 1427; Cohen, 887 F.2d at 1453-54. In other words, we must determine whether that act was taken under color of law. Magnin, 91 F.3d at 1427; Cohen, 887 F.2d at 1453-54. Section 1442(a)(1) provides that removable^ claims must be “for or relating to any act” under color of federal office. 28 U.S.C. § 1442(a)(1). The phrase “relating to” is broad and requires only “a ‘connection’ or ‘association’ between the act in question and the federal office.” In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila., 790 F.3d 457, 471 (3d Cir. 2015). “The hurdle erected by this requirement is quite low_” Isaacson v, Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008).

The acts that Caver challenges relate to actions of CAEC in not making cash distributions of patronage capital. In its Notice of Removal, CAEC claims: (1) that the loan agreement with RUS prohibited it from making distributions of patronage capital if doing so would cause its equity to fall below 80% of its total, assets and (2) that if CAEC made the distributions sought by Caver, doing so would reduce CAEC’s equity on assets to zero percent, resulting in a breach of the loan agreement. CAEC claims this accumulation of equity from patronage capital contributions “directly resulted from CAEC’s compliance with express RUS federal loan requirements to maintain equity at above 30% of assets before any capital cash distributions to members.”

These allegations, if true, would establish that the acts for which CAEC is being sued — failure to make distributions of patronage capital — occurred because of CAEC’s performance of its duties and loan agreement with RUS. We therefore conclude that there is a causal nexus between Caver’s claims and CAEC’s conduct. See Isaacson, 517 F.3d at 138 (“According to their theory of the case, the Government knew that Agent Orange contained dioxin, and the Government controlled the method of formulation. The action that Plaintiffs challenge, the production of dioxin, naturally would have occurred during the performance of these government-specified duties.”); Cessna, 2016 WL 3963217, at *7 (finding the causal nexus requirement satisfied when the rural electricity cooperative’s allegations in the notice of removal stated that RUS forbade the actions that the plaintiffs sought); Sparks v. Cullman Elec. Coop., No. 3:15-CV-387-MHH, 2016 WL 927032, at *2 n.5 (N.D. Ala. Mar. 11, 2016) (“To establish a causal connection between what the cooperatives have done based on federal authority and the conduct that gives rise to this action, the electric cooperatives must show that the plaintiffs’ claims arise from the electric cooperatives’ performance of the cooperatives’ contracts with the [Tennessee Valley Authority].”).

C. Colorable Federal Defense

The third question for federal officer removal is whether Defendant CAEC has raised a colorable federal defense. Magnin, 91 F.3d at 1427; Cohen, 887 F.2d at 1453-54. Our Court gives this portion of § 1442(a)(1) “a broad reading so as to encompass ‘all eases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.’ ” Cohen, 887 F.2d at 1454 n.4 (quoting Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S.Ct. 1813,1816, 23 L.Ed.2d 396 (1969)). Federal officer removal is thus an exception to the well-pleaded complaint rule, as “the federal-question element is met if the defense depends on federal law.” Jefferson Cty. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 2075, 144 L.Ed.2d 408 (1999). The colorable federal “defense need only be plausible; its ultimate validity is not to be determined at the time of removal.” Magnin, 91 F.3d at 1427. The law does not require that the removing defendant virtually win his case before it can be removed. Acker, 527 U.S. at 431, 119 S.Ct. at 2075. Indeed, a core purpose of federal officer removal is to have the validity of the federal defense tried in federal court. Id.

Here, CAEC has claimed that it performed the acts forming the basis of Plaintiff Caver’s state action pursuant to the RUS loan agreement and federal regulations. Before the district court, CAEC raised the defense of conflict preemption based on the RUS loan agreement and federal regulations. Conflict preemption occurs when state law actually conflicts with federal law because it is impossible to comply with both the state and federal requirements or because the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 486 (11th Cir. 2015) (quoting English v. Gen. Elec. Co. 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990)), cert. denied, — U.S.-, 136 S.Ct. 1655, 194 L.Ed.2d 765 (2016).

CAEC has an unusually close and detailed regulatory and contractual relationship with RUS dating back to 1939, and that relationship controls almost all of CAEC’s actions. If Plaintiff Caver is correct that the Alabama statute requires the $24 million in equity held in the capital accounts to be paid out in cash annually to its members, CAEC asserts that the Alabama statute would then conflict with RUS’s regulations and loan agreement provisions about equity retention. For example, the federal regulations do not allow distribution of excess revenues if doing so would result in CAEC’s remaining equity being less than 30% of its remaining assets. CAEC claims that it can prove such a financial barrier exists under federal law, which would lead to a conflict between federal and state law.

We therefore conclude that CAEC’s preemption defense is plausible and satisfies the lenient colorable federal defense requirement for removal under § 1442(a)(1). See Tenn. ex rel. City of Cookeville v. Upper Cumberland Elec. Membership Corp., 256 F.Supp.2d 754, 758 (M.D. Tenn. 2003) (finding a colorable federal defense of preemption by RUS sufficient under § 1142(a)(1)), aff'd sub nom. City of Cookeville v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380 (6th Cir. 2007).

The Supreme Court’s decision in Arkansas Electric Cooperative expressly left open the possibility that a valid rule of the REA affecting rural power cooperatives could preempt state law or state regulation of those cooperatives, as follows:

There may come a time when the REA changes its present policy, and announces that state rate regulation of rural power cooperatives is inconsistent with federal policy. If that were to happen, and if such a rule was valid under the Rural Electrification Act, it would of course pre-empt any further exercise of jurisdiction by the Arkansas PSC. Similarly, as Arkansas already recognizes, the PSC can make no regulation affecting rural power cooperatives which conflicts with particular regulations promulgated by the REA. Moreover, even without an explicit statement from the REA, a particular rate set by the Arkansas PSC may so seriously compromise important federal interests, including the ability of the AECC to repay its loans, as to be implicitly pre-empted by the Rural Electrification Act.

461 U.S. at 388-89, 103 S.Ct. at 1915 (citations omitted). While in Arkansas Electric Cooperative the Supreme Court ruled that the REA’s published policy did not preempt the state’s regulation of wholesale rates, the Supreme Court explicitly stated that a valid REA regulation could preempt state law. Id at 385-89, 103 S.Ct. at 1913-15. In this case, CAEC has pointed to a RUS regulatory rule concerning equity levels and distribution of patronage capital that it contends preempts state law. We need not, and do not, determine the merits of that position at this time, as we are confident that CAEC’s argument is at least colorable and should be tried in federal court.

For the foregoing reasons, we conclude that CAEC properly removed this case under the federal officer removal statute, § 1442(a)(1), and the district court had subject matter jurisdiction to hear the case.

III. MOTION TO DISMISS: MERITS

Having concluded federal jurisdiction exists, we now address whether the district court erred in dismissing Plaintiff Caver’s complaint. The district court held that CAEC’s method of distributing excess revenues through patronage capital accounts satisfies the requirements of Alabama Code § 37-6-20 and CAEC’s bylaws. That statute provides, in relevant part, that excess revenues “shall be distributed by the cooperative to its members as, and in the manner, provided in the bylaws, either as patronage refunds ... or by way of general rate reductions, or by combination of such methods.” Ala. Code § 37-6-20 (emphasis added).

On appeal, as she did in the district court, Caver argues that CAEC must annually distribute “patronage refunds” in the form of an annual cash payment to its members. Caver contends that CAEC’s allocation of “credits” to members’ capital accounts does not constitute a refund because CAEC’s members cannot access the credits. Caver describes § 37-6-20 as having a “plain statutory requirement that excess revenue be distributed through refund or rate reduction, not ‘crediting' and withholding.”

Section 37-6-20 does not speak with the clarity that Caver wishes, and nowhere does that section require a cash payment, much less an annual one. Indeed, the statute does not even define the term “patronage refund” or the word “distributed.” Rather, the statute states plainly that the manner of distribution, whether by patronage refund or rate reduction, “shall” be done “as, and in the manner, provided in the bylaws.” CAEC’s bylaws provide such an express manner for distribution. In the bylaws, CAEC treats its excess revenues as furnished by the patrons to CAEC and credits each patron’s capital account for their proportional share of the excess revenues. Those credits are later retired as directed by CAEC’s Board of Trustees. CAEC’s bylaws thus use capital account credits as the manner for distributing patronage refunds.

Telling too, the relevant portion of the statute does not use the words “cash” or “pay.” Nor does the statute expressly forbid CAEC from using methods other than a cash payment to make the required distributions. Other clauses in § 37-6-20 indicate when CAEC must “pay” something rather than “finance” or “provide” for a fund or a reserve. § 37-6-20. For patronage refunds, the statute only says that the excess revenues shall be distributed “as, and in the manner, provided in the bylaws.” Id. Nothing in the statute imposes the specific requirement that all patronage refunds be made in a cash manner. Caver offers no persuasive reasoning, such as a statutory, textual basis, for why a refund or distribution must be in a cash payment as opposed to a capital account credit. Instead, the statute allows each rural electric cooperative’s bylaws to specify the “manner” in which the cooperative makes distributions through patronage refunds, in effect giving each rural electric cooperative a measure of discretion in carrying out the statutory directives.

The reasoning of at least two Alabama appellate decisions, though both are tax cases and the reasoning is dicta, support a rejection of Caver’s reading of § 37-6-20. In the first case, the Aabama appellate court thoroughly reviewed § 37-6-20 and a rural electric cooperative’s system of making refunds to patrons through capital account credits and approved the use of those credits, which created “an obligation to the member against the assets of the cooperative.” State v. Pea River Elec. Coop., 434 So.2d 785, 786 (Ala. Civ. App. 1983). In a subsequent tax case decided over a decade later, the Alabama appellate court, relying in large part on Pea River, again thoroughly examined § 37-6-20 and the use of capital account credits for refunds and found that § 37-6-20 “mandates that a cooperative return any excess advances to its members and allows those returns to be made in the form of patronage credits.” State Dep’t of Revenue v. Mon-Cre Tel. Coop., Inc., 702 So.2d 179, 182 (Ala. Civ. App. 1997). While these cases did not involve direct challenges to the use of capital account credits (as opposed to cash payments), their reasoning lends credence to CAEC’s position in this case. Both Alabama appellate decisions, dating back to 1983, approved the use of capital account credits to distribute patronage refunds.

Based on the foregoing Alabama law, we must reject Caver’s claims that CAEC must distribute patronage refunds only in the form of annual cash payments. Caver’s argument assumes, without support, that a refund must be paid in cash. Section 37-6-20 contains no such cash payout requirement. While § 37-6-20 requires that excess revenues be distributed, Caver’s claims ignore how § 37-6-20 provides that the manner of distribution of patronage refunds is determined by a cooperative’s bylaws. To be clear, our narrow holding here is that § 37-6-20 does not require CAEC to distribute patronage refunds only in a cash payment manner. Caver’s complaint therefore fails to state a viable claim because cash payments are not required by the statute, and therefore there is no statutory violation, no breach of contract, and no basis for injunctive relief.

IV. CONCLUSION

For the reasons contained herein, we affirm the district court’s denial of Plaintiff Caver’s motion to remand and grant of Defendant CAEC’s motion to dismiss.

AFFIRMED.

      . The record contains only limited excerpts of CAEC’s loan agreement with RUS. Caver, however, cites to the model loan agreement contained in the federal regulations as reflecting the terms of CAEC’s contract with RUS. The model loan agreement generally contains the restrictions discussed herein and requires compliance with all relevant laws and regulations. See 7 C.F.R. § 1718, app. A.

      . When considering a motion to dismiss, infra Part III, we take the complaint’s factual allegations as true and construe them in the light most favorable to the plaintiffs. Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008), For this reason, we rely on Caver’s operative complaint for the facts of this case.

      . Section 37-6-20 defines "excess revenues” as those revenues for any fiscal year in excess of the amount necessary to (1) "defray expenses of the cooperative and of the operation and maintenance of its facilities during such fiscal year”; (2) "pay interest and principal obligations of the cooperative coming due in such fiscal year”; (3) "finance or to provide a reserve for the financing of, the construction or acquisition by the cooperative of additional facilities to the extent determined by the board of trustees”; (4) "provide a reasonable reserve for working capital”; (5) "provide a reserve for the payment of indebtedness of the cooperative maturing more than one year after the date of the incurrence of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year”; and (6) "provide a fund for education in cooperation and for the dissemination of information concerning the effective use of electric energy and other services made available by the cooperative.” Ala. Code § 37-6-20.

      . The bylaws are only quoted in CAEC’s Motion to Dismiss, but the district court properly considered them without converting the motion to dismiss into a motion for summary judgment because the document is central to Caver’s claim, and the authenticity of that portion of the bylaws is undisputed. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).

      . "[W]e review de novo a district court’s denial of a motion to remand a state-court action because it implicates subject-matter jurisdiction.” Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1283 (11th Cir. 2015), cert. denied, — U.S. —, 136 S.Ct. 1158, 194 L.Ed.2d 174(2016).

      . Magnin and Cohen did not address the first prong because there was no debate in those cases that the relevant parties were officers of the United States for purposes of § 1442(a)(1). See Magnin, 91 F.3d at 1428 (involving a Federal Aviation Authority designated manufacturing inspection representative); Cohen, 887 F.2d at 1454 (involving a Deputy Marshal and other federal agents). Magnin and Cohen therefore addressed only the two "prerequisites” of a causal connection and a colorable federal defense. See Magnin, 91 F.3d at 1427; Cohen, 887 F.2d at 1453-54.

      . This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

      . In 2011, Congress amended § 1442(a)(1) to add the phrase "or relating to,” which was intended to broaden the scope of acts that allow a federal officer to remove a case to federal court. In re Commonwealth's Motion, 790 F.3d at 471-72.

      . We review the district court’s grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) de novo, using the same standard as the district court. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004).

      .Caver directs our attention to several Alabama trial court decisions that have denied motions to dismiss in allegedly similar cases. Only one of those decisions provides any reasoning, which we find unpersuasive. Harkless v. Dixie Elec, Coop., No. CV 2012-900073 (Ala. Cir. Ct. Oct. 18, 2012). In that case, the defendant cooperative apparently argued that § 37-6-20 “does not require a refund of 'excess revenues.' " Id at 3. Instead of arguing that it does not need to refund excess revenues at all, CAEC presents a stronger argument in this case — that it is providing patronage refunds through patron capital credits, which is the manner of distribution provided for in the bylaws.

      . We also find Caver’s reliance on a Tennessee statute similar to § 37-6-20 unpersuasive for the reasons stated in the district court’s order.

      . In light of this conclusion, we need not address CAEC’s other defenses, including whether the bylaws can waive a patron’s statutory right to receive a cash payment or whether RUS regulations in fact preempt § 37-6-20.


author: REYNA, Circuit Judge.

text:
    Andre WALKER, Plaintiff-Appellant v. HEALTH INTERNATIONAL CORPORATION, a Florida Corporation, HSN Inc., a Delaware Corporation, HSN Interactive LLC, a Delaware Corporation, Defendants-Appellees
    2015-1676
    United States Court of Appeals, Federal Circuit.
    Decided: January 6, 2017

      Ramon PizaRro, Law Office of Ramon L. Pizarro, Denver, CO, argued for plaintiff-appellant.
    Daniel P. Dietrioh, Burr & Forman LLP, Tampa, FL, argued for defendants-appellees. Also represented by Ryan Mark Corbett.
    Before REYNA, HUGHES, and STOLL, Circuit Judges.
   REYNA, Circuit Judge.

Andre Walker appeals from the final judgment of the United States District Court for the District of Colorado awarding sanctions for Walker’s vexatious actions in continuing to litigate after the parties settled all claims. ECF No. 192 (Apr. 27, 2015 final judgment awarding attorneys’ fees as sanctions). Defendants Health International Corporation, HSN Inc., and HSN Interactive LLC (collectively, “HSN”) claim that Walker’s appeal is itself frivolous and move for an award of damages and double costs under Federal Rule of Appellate Procedure 38. App. Dkt. 57. We affirm the district court’s judgment. Additionally, we find Walker’s appeal to be frivolous, both as filed and as argued, and grant HSN’s motion for sanctions.

BACKGROUND

District Court Proceedings

Andre Walker filed suit against various defendants on December 14, 2012 alleging infringement of U.S. Patent No. 7,090,627. Through discovery and motions, the case evolved until only HSN remained in the case.

On May 6, 2014, Walker and HSN, both represented by counsel, engaged in mediation. That same day, they entered into a hand-written Mediated Settlement Agreement (“Agreement”). The Agreement required that HSN pay $200,000 to Walker within thirty days. Following payment of the $200,000, Walker became obligated to deliver a release to HSN and “by joint stipulation the parties to this agreement shall dismiss all claims between them with prejudice.” J.A. 27.

On May 9, HSN filed a Motion to Stay Deadlines based on the Agreement “that resolves all claims asserted between the parties” and requested that all case deadlines be postponed for thirty days in order to effectuate the settlement. ECF No. 140. Walker opposed the motion, stating that HSN’s allegation that the Agreement resolved all claims was “simply incorrect.” ECF No. 141. He acknowledged “significant progress” but claimed that “there are significant issues that remain to be resolved, and which may require the filing of an amended complaint.” Id.

The district court denied HSN’s motion “given the apparent disagreement among the parties as to whether a final resolution of all claims has been achieved.” ECF No. 142. On May 12, HSN sought reconsideration of the denial of its motion by filing, under seal, the Agreement and a memorandum arguing that all claims were resolved under the terms of the Agreement. ECF Nos. 144-146.

A series of related motions and oppositions were filed over the next four weeks. On May 13, Walker moved to amend and file a Third Amended Complaint, which HSN opposed. ECF Nos. 147, 152. On May 16, HSN filed a Motion to Extend Deadlines, explaining that, “[p]ursuant to the Agreement, all claims asserted between the parties in this matter were resolved.” ECF No. 153. That same day, Walker filed a Motion for Order to Set Markman Hearing, ECF No. 154. On May 22, Walker opposed the filing of the Agreement. ECF No. 158. On May 29, HSN filed a Motion to Enforce Mediated Settlement Agreement. ECF No. 163. As an exhibit to its Motion to Enforce, HSN attached correspondence from Walker’s counsel acknowledging that the case was settled, but requesting additional discovery. Email from David Furtado to Daniel Dietrich (May 19, 2014), ECF No. 163-1 (“I am aware we have settled this matter. In order to complete the settlement my client wishes to receive a cd of the data the the [sic] sales figures [provided at the mediation] were created using.”). Both the HSN May 14 Opposition to the request to amend and the May 29 Motion to Enforce included eonclusory requests for attorneys’ fees and costs. ECF Nos. 152,163.

On June 2, 2014, prior to receiving any payment from HSN, Walker executed and delivered a general release of all claims against HSN. HSN’s counsel forwarded payment of the $200,000 on the same day. See Walker’s Request for Reconsideration 9, ECF No. 183 (indicating that payment was forwarded June 2, 2014). On June 6, Walker filed an Opposition to the Motion to Enforce and then, on June 13, filed a motion requesting that attorneys’ fees be denied and the case be dismissed with the district court retaining jurisdiction over the Agreement. ECF Nos. 164, 165. On June 16, HSN filed a formal Motion for Sanctions based on Walker’s “meritless filings [that] forced [HSN] to continue to litigate this matter and waste resources on a matter that has been fully resolved” and moved for dismissal with the district court retaining jurisdiction over its request for attorneys’ fees. ECF Nos. 166-168. Walker filed an Opposition to HSN’s Motion for Sanctions on June 30. ECF No. 176. The district court referred the parties to a Magistrate Judge for a status conference on the numerous pending motions. ECF No. 169. At a July 2 status conference, both parties agreed the case should be dismissed, but disagreed about whether, and over what, the district court retained jurisdiction, ECF No. 177.

On August 4, 2014, the district court dismissed all claims and found “that Plaintiffs actions have unnecessarily multiplied the proceedings at a time when the underlying claims have admittedly been resolved. These actions [were] not supported by any justifiable litigation strategy, particularly given Plaintiffs current position that the case should be dismissed.” Walker, 2014 WL 3819487, at *3. The court awarded HSN “reasonable attorneys’ fees and costs resulting from Plaintiffs vexatious actions after the filing of the Notice of Settlement (ECF No. 140)” and ordered HSN to file documentation supporting its claim for damages. Id. The court denied the remaining nine motions as moot. Id.

On August 14, Walker sought reconsideration of the district court’s grant of dismissal and, on August 22, HSN filed an Affidavit of Fees. ECF Nos. 183, 184. The district court denied the motion for reconsideration on February 6, 2015. ECF No. 187. Only thereafter, on February 16, did Walker file an Objection to the claimed fees, which HSN moved to strike as untimely. The district court agreed with HSN and struck Walker’s Objection. ECF Nos. 188-190.

On April 27, 2015, the district court entered final judgment awarding HSN $20,511.50 in attorneys’ fees because Walker’s “litigation conduct after entering into the Agreement was vexatious and had unnecessarily multiplied the proceedings.” ECF Nos. 191-192.

On May 14, Walker filed a Statement purporting to “clarify issues for appeal.” ECF No. 193. On May 21, he filed a Motion to Stay Execution of Judgment and for Waiver of Bond. ECF No. 195. On October 5, the district court granted Walker’s Motion to Stay but denied his request for a bond waiver. ECF No. 203.

Walker appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

Proceedings on Appeal

Walker appeals the district court’s April 27, 2015 Judgment Awarding Attorneys’ Fees in which the district court awarded HSN $20,511.50 in attorneys’ fees plus costs. ECF No. 192.

The parties briefed this appeal throughout the latter half of 2015. On December 7, 2015, HSN filed a Motion for Sanctions, requesting attorneys’ fees and double costs pursuant to Federal Rule of Appellate Procedure 38, which Walker opposed. App. Dkts. 57-58. Oral arguments were heard on April 4, 2016. At the conclusion of oral arguments, we ordered Walker to show cause within thirty days why we should not issue sanctions. Oral Arg. Tr. at 23:15, http://oralarguments.cafc.uscourts.gov/ default.aspx?fl=2015-1676.mp3.

The next day, we ordered HSN to file documentation supporting damages and granted Walker leave to object. App. Dkt. 72. On April 25, 2016, HSN filed documentation supporting its request of $48,482.50 in attorneys’ fees and $3,319.38 in double costs. App. Dkt. 73. On May 9, 2016, Walker filed a Notice Regarding Objections that stated in full, “Appellant has paid the full amount requested. Accordingly any objection is moot.” App. Dkt. 74. However, the parties have not indicated that they settled the dispute regarding sanctions on appeal or the underlying sanctions granted by the district court.

Discussion

I

The Supreme Court has recognized the federal courts’ inherent, equitable power to “award attorneys’ fees when the interests of justice so require.” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Such an award is within the court’s discretion when a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. (quotation marks and citations omitted).

In reviewing a district court’s fee award, we apply the law of the regional circuit, in this case the Tenth Circuit. See, e.g., Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1371 (Fed. Cir. 2002). In the Tenth Circuit, a district court may equitably award attorney’s fees when “the opponent in litigation has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Ryan v. Hatfield, 578 F.2d 275, 277 (10th Cir. 1978) (quotation marks and citation omitted). “[T]he trial court has discretion and will be reversed only in circumstances which do not show a reasonable ground for the conclusion that vexa-tiousness existed.” Id.

The court’s authority to award attorneys’ fees and costs as sanctions under Federal Rule of Appellate Procedure 38 is linked to the merits of, and the party’s conduct during, the appeal. Rule 38 provides that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” We recognize two related ways that an appeal can be frivolous under Rule 38. First, an appeal is frivolous as filed when “the judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant’s position so clear that there really is no appealable issue.” State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1578 (Fed. Cir. 1991) (quoting Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1579-80 (Fed. Cir. 1991)). Second, an appeal is frivolous as argued when “the appellant’s misconduct in arguing the appeal” justifies such a holding. Id. (quoting Romala Corp. v. United States, 927 F.2d 1219, 1222 (Fed. Cir. 1991)). Such misconduct can include manufacturing arguments “by distorting the record, by disregarding or mischaracterizing the clear authority against its position, and by attempting to draw illogical deductions from the facts and the law.” Id. at 1579.

II

District Court Proceedings

Walker first argues that the district court erred in awarding fees without “findings of subjective bad faith” and therefore must be reversed “due to the lack of factual support for the [district] court’s conclusions.” Walker Br. 11. This argument mischaracterizes clear authority. Federal courts may award damages under their equitable powers when litigants have acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Hall, 412 U.S. at 5, 93 S.Ct. 1943 (emphasis added). The district court made detailed findings that Walker’s actions after the settlement were “vexatious” and sufficient for awarding fees. Walker, 2014 WL 3819487, at *3. We find ample support in the record for the district court’s conclusion of vexatiousness. Primarily, the Agreement unambiguously resolved “all claims” and clearly dismissed the suit with prejudice upon HSN’s payment of $200,000. The district court correctly concluded that there remained no legitimate reason to continue litigation once the parties entered into a comprehensive settlement of all claims.

Walker next argues that the district court lacked authority to strike his Objection to the award of attorneys’ fees as untimely because “motions, briefs, memoranda, objections or affidavits may not be attacked by a motion to strike.” Walker Br. 14-15 (citing 2-12 Moore’s Federal Practice — Civil § 12.37 (2015)). Even if Rule 12(f) motions are not appropriate means to attack filings other than pleadings, which we need not resolve, it does not logically follow that the district court lacked authority to deny Walker’s Objection.

Walker’s Objection failed to challenge the reasonableness of the fees claimed; instead, it improperly re-raised the same arguments raised in his Response to the sanctions motion and his Motion for Reconsideration. Compare ECF No. 176, at 4 (“The Agreement recognizes that at least two additional issues needed to be resolved by the parties.”) and ECF No. 183, at 2 (“[T]he Agreement recognized that ... an additional release was still required.”), with ECF No. 188 at 7 (“Plaintiff maintains that it ... wanted that all of the requirements listed in the [Agreement] be completed.”). The district court had already considered and rejected these arguments, so it had authority to strike the Objection as “redundant.” D.C.COLO.LCivR 7.1(i). Further, because the district court already had considered the same arguments, its decision not to hear them again was not a denial of due process and did not otherwise affect Walker’s “substantial rights.” 28 U.S.C. § 2111; see also Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914) (“The fundamental requisite of due process of law is the opportunity to be heard.”); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (motions for reconsideration are “not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing”). Walker fails to persuade us that even if such error occurred, the result might have been different. See SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 892 (Fed. Cir. 1988) (“On appeal it is [Appellant’s] burden to show not only that the district court erred, but also to persuade this court that had such error not occurred the result might have been different.”). Walker’s Objection was merely an attempt to re-argue positions. The district court correctly rejected them, and reversible error cannot flow from a district court’s determination not to rehear meritless arguments.

Walker’s third argument is that the district court lacked jurisdiction because the case should have been dismissed either because of the Agreement or once the parties agreed at the status conference that the case should be dismissed. Walker Br. 16 (citing Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989) (“A voluntary dismissal by stipulation under [Fed. R. Civ. P.] 41(a)(1)(ii) is of right, cannot be conditioned by the court, and does not call for the exercise of any discretion on the part of the court.”)). Under Federal Rule of Civil Procedure 41, “the plaintiff may dismiss an action without a court order by filing ... a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(l)(A)(ii). In this case, joint stipulation of dismissal was not filed, and contrary to Walker’s position, see Walker Br. 15, the Agreement does not itself stipulate to dismissal, but instead explicitly calls for the parties to file a separate joint stipulation after a condition precedent is met. Here, the $200,000 was paid for the release. J.A. 27. In any event, after the merits of a case are dismissed, a district court retains jurisdiction over whether to grant sanctions. See, e.g., Griffen v. Oklahoma City, 3 F.3d 336, 338, 340 (10th Cir. 1993) (remanding for consideration of a sanctions motion filed after final judgment had been entered on the merits of all claims).

Proceedings on Appeal

On appeal, Walker argues that the award of fees was improper because he was the “prevailing party” in the lawsuit by compelling a “voluntary change” in HSN’s conduct. Walker Br. 12. In support, Walker cites Buckhannon Board & Care Home, Inc, v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 601, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). But Buckhannon states the opposite of Walker’s position. There, the Court explicitly rejected the so-called “catalyst theory” of attorney fee recovery Walker invokes here. 532 U.S. at 610, 121 S.Ct. 1835 (“[W]e hold that the ‘catalyst theory* is not a permissible basis for the award of attorney’s fees under the [Fair Housing Amendments Act].”). Even after HSN pointed out Walker’s mischaracterization of clear authority, he continued to press this frivolous argument and reiterated it at oral argument. See Reply Br. 23.

Walker also raises new arguments in his Reply amounting to baseless accusations against opposing counsel. Walker argues that HSN’s counsel violated Colorado Rule of Professional Conduct 1.3 by failing to immediately notify him that HSN had tendered the settlement payment to its counsel. Reply Br. 22. Walker failed to raise this argument in his opening brief, so it is waived. See Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990) (“[A]n issue not raised by an appellant in its opening brief ... is waived.”). But we address the argument to illustrate Walker’s bent to mischaracterize clear authority and to draw illogical conclusions from the law and facts.

Rule 1.3 unambiguously requires attorneys to protect their own clients’ interests. It provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Colo. R. of Profl Conduct (2014) (emphasis added). Walker argues that the rule exists to protect him, and that opposing counsel’s delay in tendering payment “was in fact vexatious” because “unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.” Reply Br. 22 (quoting Rule 1.3 cmt. [3]). Rule 1.3’s text and appended comments are antithetical to Walker’s position. See, e.g., Colo. R. of Profl Conduct R. 1.3 cmt. [1] (“[A] lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.”). HSN’s counsel satisfied the mandates of Rule 1.3 by forwarding payment within the 30-day period provided for in the Agreement, thereby diligently protecting HSN’s “interests” and HSN’s “legal position.” Id. cmt. [3]. Walker’s implausible reading is contrary to the Rule’s explicit language and leads to illogical conclusions. As such, the positions taken by Walker on appeal in the briefs and at oral argument were frivolous.

Ill

This court has long disdained the filing of frivolous appeals. “The filing of and proceeding with clearly frivolous appeals constitutes an unnecessary and unjustifiable burden on already overcrowded courts, diminishes the opportunity for careful, unpressured consideration of non-frivolous appeals, and delays access to the courts of persons with truly deserving causes.” Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1382 (Fed. Cir. 1982). Frivolous appeals waste both the public resources supplied to this court and the resources of prevailing litigants that must defend such frivolous actions.

This appeal was frivolous as filed. The record lacks any support for Walker’s attempts to frustrate the comprehensive settlement by prolonging litigation. In the absence of such support, the district court’s conclusion that Walker’s actions were vexatious provides a reasonable basis for the award of attorneys’ fees. See Finch, 926 F.2d at 1580; Ryan, 578 F.2d at 277.

Walker’s numerous mischaracterizations of clear authority in arguing the appeal also makes this case frivolous as argued. See Mor-Flo Indus., 948 F,2d at 1579. Particularly troubling are Walker’s baseless assertions of misconduct against his opposing counsel and continued misrepresentation of clear, binding Supreme Court precedent even after the distortion was pointed out by opposing counsel. The continued misrepresentation standing alone is a very serious matter that could warrant sanctions. Id. at 1580.

We do not treat such misconduct lightly for good reason. ‘Where a party blindly disregards long established authority and raises arguments with no factual foundation, .,. the judicial process has not been used, but abused, and sanctions under Rule 38 are warranted.” Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990). Attempts to mislead the court in a frivolous appeal further compound the wasted resources because the court and opposition are forced to devote extra resources to sorting through half-truths and misused legal authority in an appeal that never should have been filed in the first place. “Sanctions are awarded to compensate the victimized party for the burden of continued litigation in what long ago [was] a settled matter, as well as to discourage frivolous appeals which unnecessarily clog our docket.” Mor-Flo Indus., 948 F.2d at 1582.

In keeping with this court’s longstanding policy of enforcing Rule 38 vigorously, we exercise our discretion to impose sanctions in the full amount of HSN’s request. See Practice Note to Fed. R. App. P. 38 in Fed. Cir. Rules. We find that the unopposed fees and costs HSN requests are reasonable. See Mor-Flo Indus., 948 F.2d at 1582 (“Judges have experience in determining what are reasonable hours and reasonable fees for the work lawyers perform and may rely on that experience to set an award.”). Because of Walker’s misconduct in arguing the appeal, “we consider the attorney who wrote and signed the briefs to be equally responsible.” Id. We therefore hold Walker’s counsel jointly and severally liable for the damages we assess.

IV

The judgment of the district court is affirmed. Additionally, because there is no reasonable basis for reversal and Walker’s arguments repeatedly distort controlling law, we grant HSN’s motion for sanctions. Damages are awarded to HSN for its attorneys’ fees and double costs in the amount of $51,801.88.

AFFIRMED

Costs

Costs to HSN.

      . Citations to "ECF No.” are to the district court docket and citations to "App. Dkt.” are to the docket on appeal.

      . The district court dismissed the case on the merits prior to awarding sanctions. See Walker v. Health Int'l Corp., No. 12-CV-3256-WJM-KLM, 2014 WL 3819487 (D. Colo. Aug. 4, 2014), ECF No. 180, reconsideration denied, 2015 WL 514912 (Feb. 6, 2015), ECF No. 187.

      . This narrative does not include all filings and orders, a list of which is available in the district court docket. See J.A. 417-437,

      . The district court had authority to simply deny Walker’s Objection as untimely because it was filed more than 21 days after HSN filed its Affidavit of Fees. See ECF No. 188 (February 16, 2015); ECF No. 184 (August 22, 2014); D.C.COLO.LCivR 7.1(d).

      . This position is contrary to Mr. Walker’s position before the district court that it “should retain jurisdiction over the case for the purpose of enforcing the settlement agreement.” J.A. 60.