author: LYNCH, Circuit Judge.

text:
    BLOCK ISLAND FISHING, INC., Plaintiff, Appellee, v. Jamie ROGERS, Defendant, Appellant.
    No. 16-1267
    United States Court of Appeals, First Circuit.
    December 23, 2016
    Jonathan E, Gilzean, with whom David F. Anderson and Latti & Anderson LLP, Boston, MA, were on brief, for appellant.

      Thomas J. Muzyka, with whom Kirby L. Aarsheim and Clinton & Muzyka, P.C., Boston, MA, were on brief, for appellee.
    Before LYNCH, LIPEZ, and BARRON, Circuit Judges.
   LYNCH, Circuit Judge.

This case involves rulings of some significance to seamen and their employers in this circuit, as well as for summary judgment practice. Jamie Rogers, a seaman, was injurfed on October 3, 2013, on the vessel F/V HEDY BRENNA. Admiralty law entitles seamen who become injured during the course of their service at sea to recover “maintenance and cure” payments from their employers. Block Island Fishing, Inc., is the owner and operator of the fishing vessel. Having made some maintenance and cure payments to Rogers and believing it had overpaid, Block Island brought this suit against Rogers to dispute the duration and amount of maintenance and cure payments that it owed.

Block Island then moved for summary judgment on the ground that its maintenance and cure duties terminated on July 31, 2014. It supported its motion with record evidence showing that Rogers had returned to work as a commercial fisherman on another fishing vessel in July.

The district court rejected July 31 as the proper date of termination. But it went beyond the issue raised by Block Island’s summary judgment motion and found November 18, 2014 as the date on which Block Island’s obligations ended. That was the date on which a doctor, but not Rogers’ primary care physician, found that Rogers no longer needed follow-up care.

The district court also noted that injured seamen are generally entitled to maintenance and cure payments only in the amount of their actual living expenses, but it reserved for a jury to determine the exact sum that Block Island owed Rogers, along with other issues not resolved at the summary judgment stage. Relatedly, the district court held on summary judgment that Block Island had overpaid Rogers by calculating its maintenance and cure payments using figures that overestimated Rogers’ actual living expenses. It further ruled that Block Island could offset the sum of overpayment against any damages award that Rogers- might win at trial. We affirm in part and vacate,and remand, in part.

As to the exact date. on which Block Island’s maintenance and cure obligations ended, the district court erred by sua sponte replacing Block Island’s proposed date (July 31) with its own (November 18) without giving Rogers sufficient notice or opportunity to make Lis case against the new date. A summary judgment order is premature where the nonmoving party lacked “notice and a reasonable time to respond” to the' grounds on which that motion would be granted. Fed. R. Civ. P. 56(f).

We agree with the district court’s implicit recognition that injured seamen like Rogers can generally recover only reasonable expenses through maintenance and cure payments, and that it will be the factually, exceptional case, where the seaman’s actual expenses are not reasonable. Whether this case presents such exceptional circumstances is an issue for the jury. Finally, as a matter of first impression, we adopt the ruling of the Fifth Circuit in Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723 (5th Cir. 2013), and hold that Block Island may offset any overpayment against Rogers’ potential damages award, but may not sue for the sum in an independent action. See id. at 726-28.

I.

“Because our review of a grant of summary judgment is de novo, we, like the district court, are obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Although there are numerous dates at issue, the core of the dispute involves (1) when Block Island’s maintenance and cure obligations terminated, and (2) the amount, if any, of the maintenance and cure owed. Block Island takes the position that it overpaid Rogers based on an inflated rent amount that it believed Rogers to be paying when, in fact, Rogers had found less expensive housing. Rogers takes the position that special circumstances dictate that actual expenses are not the appropriate measure here.

A. Rogers’ Injury and His Various Residences from 2013 to 2014

In August 2013, Rogers and his family moved into a single-family home in Bristol, Rhode Island. He paid the first month’s rent of $1,600, which included utilities, but he cannot remember paying rent in subsequent months. In September 2013, Rogers joined the crew of the F/V HEDY BREN-NA, a commercial fishing vessel owned and operated by Block Island. For a fishing trip in which he' participated that month, Rogers was paid $2,892 in his catch share for the trip.

On October 3, 2013, during another fishing voyage, Rogers fell off the top bunk while sleeping and injured himself. Three days later, upon returning from the voyage, Rogers was diagnosed with a fractured rib and received medical treatment. In October 2013, Block Island paid Rogers $1,752.37 in catch share from the October 3 voyage and $475 in maintenance. On November 1, 2013, Block Island supplemented that amount with an additional $175 in maintenance and $1,857.78 in lost wages. The total sum paid from Block Island to Rogers over this period equaled $4,260.15.

In November 2013, Rogers and his family were evicted from the Bristol apartment and moved to a less expensive apartment in Fall River, Massachusetts. He paid $625 in monthly rent, excluding utilities, for the new Fall River apartment. On November 4, 2013, Rogers’ treating physician, Dr. Christian Campos, gave him a “fit for duty” slip and cleared him to return to work as a fisherman “without restrictions.”

Rogers’ health worsened in December, however, when he was diagnosed with pneumonia and was hospitalized for three weeks. Rogers attributes the pneumonia to his rib injury. Block Island learned about Rogers’ condition and hospitalization on December 19,2013.

On February 20, 2014, Dr. Campos reported that Rogers’ condition was improving and that Rogers could “increase his level of physical activity as tolerated without restrictions” while staying on pain medication. On March 17, 2014, Dr. Campos completed another examination and once again advised Rogers to continue to “increase his level of physical activity as tolerated without restrictions.”

In March 2014, Rogers moved to Sparta, Tennessee, where he lived with his brother. Rogers paid his brother $800 per month as rent. Finally, in May or June 2014, Rogers purchased a 38-foot boat for $2,500 and lived on that boat before returning to Fall River in June.

On June 19, 2014, Rogers’ primary care physician, Dr. Melanie Cardoza, examined Rogers for pain in his lower back and left leg. During this examination, Rogers told the doctor that he had returned from a fishing trip the previous day and that he was planning to embark on another fishing trip the next day. The conversation demonstrated that Rogers had been working as a fisherman in June. Dr. Cardoza’s examination of Rogers’ chest and lungs revealed “normal excursion with symmetric chest walls and quiet, even and easy respiratory effort with no use of accessory muscles.”

By July 2014, Rogers was working on, and was physically fit to captain, another fishing vessel, the KELLY ANN. But Dr. Campos examined Rogers in August 2014 and provided him with a letter stating that he was not yet fit to return to work as a commercial fisherman.

On November 18, 2014, Dr. Campos examined Rogers again and found that “his condition had improved to the point that no ‘further formal follow-up’ was necessary.” At oral argument, Rogers’ counsel clarified that although Dr. Campos had discharged Rogers from his care on November 18, he had “transferrfed] all follow-up care to his primary care physician, Dr. Cardoza, who was also treating Rogers for his illness and injury.”

B. Communications Between Parties Regarding Maintenance and Cure

In January 2014, after learning about Rogers’ pneumonia and hospitalization the previous month as recounted above, Block Island hired Neil Stoddard of Marine Safety Consultants to investigate Rogers’ demand for maintenance and cure. From that point, almost a year of correspondence ensued between Stoddard and Danny Alberto, a paralegal employed by Rogers’ counsel, regarding the rate of maintenance and cure owed to Rogers.

In a letter dated January 9, 2014, Stod-dard requested medical records from Rogers’ counsel to support Rogers’ claim of ongoing medical treatment. On January 24, 2014, Alberto responded to Stoddard’s letter and requested that Block Island pay Rogers $72 per day in maintenance and cure. Alberto cited the following as Rogers’ monthly expenses: $1,600 for rent, $119.25 for gas, $61.28 for electricity, and $862.50 for food, based on the U.S. Department of Agriculture’s Moderate Cost Plan for a person of Rogers’ age living in a four-person family home.

Upon Stoddard’s objection that Alberto had provided only “cash receipts” with “nothing on them to identify them as a rent payment,” Alberto mailed Stoddard a copy of the Bristol lease on March 27, 2014. (Rogers had vacated the Bristol home in November 2013.) This lease indicated that the monthly $1,600 rent included utilities. When Stoddard discovered that Rogers had moved to the Fall River apartment, and he further objected to the $72 daily rate demanded by Alberto, Alberto responded that “he had provided ‘all of Mr. Rogersf] living expenses and all of his medical records’ ” and warned that he would'pursue punitive damages on Rogers’ behalf if Block Island did not begin making the requested maintenance and cure payments. At some point during this exchange, Alberto also provided Stoddard with two utility invoices that reflected two different addresses in Fall River.

In late June, Block Island paid $68,891.41 in cure to Rogers’ health care providers. Then, on July 23, 2014, Block Island sent Rogers a maintenance check for $10,800.06—based on a daily rate of $63.26—covering the period from October 2013 to April 23, 2014, “the date of his last treatment record received.” The $63.26 rate was calculated based on Rogers’ $1,600 monthly rent for his" Bristol home and $279.80 per month in food. As the Bristol lease reflected that utilities were included, Block Island did not account for electricity and gas bills in calculating the maintenance and cure rate.

On July 25, 2014, Alberto sent Stoddard a copy of Rogers’ Fall River lease, which reflected a monthly rent of $625 excluding utilities. (Rogers had vacated this apartment in March 2014.) After another threat from Alberto that he would seek punitive damages if Block Island did not provide additional maintenance of $72 per day, Block Island sent Rogers a second check for $11,956.14, based on a daily rate of $63.26. .

II.

On November 25, 2014, Block Island filed a complaint against Rogers in the U.S. District Court for the District of Massachusetts. Block Island sought a declaratory judgment on the amount of retroactive maintenance owed to Rogers (Count I), on whether it had any continuing obligation to pay maintenance and cure, and on whether it was entitled to reimbursement for overpayments resulting from Rogers’ failure to provide accurate and timely information about his living expenses and medical treatment (Count II). On March 6, 2015, Rogers filed a counterclaim alleging negligence under the Jones Act, 46 U.S.C. § 30104 (Count I), unseaworthiness (Count II), continuing maintenance and cure (Count III), negligent or intentional failure to provide maintenance and cure (Count IV), and lost wages (Count V).'

Block Island moved for summary judgment on its counts for declaratory judgment, and on Counts III and IV of Rogers’ counterclaim. Block Island also sought $13,027.80, the amount by which it had allegedly overpaid Rogers.

The district court granted in part and denied in part Block Island’s motion. First, as to its demand for reimbursement for. its overpayment, the district court agreed with Block Island’s premise that it, had overpaid Rogers because his actual expenses were lower than what Block Island believed them to be: “The undisputed evidence is that Rogers vacated the Bristol apartment [with $1,600 monthly rent] in November of 2013, and that his monthly rent since leaving Bristol has not exceeded $800. It is also undisputed that in calculating the daily maintenance due[,] Block Island relied on the $1,600 monthly rent figure and that an overpayment resulted.” Nonetheless, the court relied on the Fifth Circuit’s opinion in Boudreaux to rule that, despite the overpayment, Block Island could not seek affirmative recovery of maintenance and cure payments that it had already made. See 721 F.3d at 726-28. But the court did allow Block Island to offset the sum of overpayment, to be determined by a jury, against any damages award that Rogers might win at trial.

The district court then denied Block Island’s , summary judgment motion as to Count IV of Rogers’ counterclaim, which alleged that “Block Island negligently or intentionally failed to promptly provide maintenance and cure prior to November 3, 2014.” “[A]s with most issues of negligence,” the court explained, “the issue of the provision of prompt and- proper maintenance and cure is a matter for the jury.”

With regard to Block Island’s summary judgment request for declaratory relief “establishing a specific date'upon which its maintenance and cure obligations to Rogers came to an end,” the district court rejected Block Island’s proposed date of July 31, 2014 but sua sponte supplied its own date of November 18, 2014 to ultimately grant summary judgment in Block Island’s favor. The court noted that “[o]n this issue, the relevant question before the court is not whether Rogers returned; to work as a fisherman (which could be explained by necessity as well as by cure).” Accordingly, although Rogers had been working on the KELLY ANN in July 2014, that fact was not dispositive of whether Rogers had reached the point of maximum medical recovery, as Block Island had argued. . - . ,

The district court then turned to November 18, 2014—the date on which Dr. Campos had found that Rogers’ health had so improved that he required no more follow-up visits—as the date on which Rogers had reached maximum medical recovery and thus was no longer entitled to maintenance and cure. The court observed that while Rogers protested that he continued to have trouble breathing and to experience pain at the site of his injury, Rogers “offer[ed] no medical evidence that contradict[ed] his own doctor’s evaluation that he had achieved the maximum feasible recovery as of November 18, 2014.” On that basis, the court granted Block Island’s summary judgment motion as to Count III (continuing maintenance and cure) of Rogers’ counterclaims.

The. court, lastly denied Block Island’s request for attorney’s fees.

Rogers’ interlocutory appeal, permissible in admiralty cases under 28 U.S.C. § 1292(a)(3) and our circuit’s case law, followed. See Doyle v. Huntress, Inc., 419 F.3d 3, 6-7 (1st Cir. 2005); P.R. Ports Auth. v. Barge Katy-B, 427 F.3d 93, 100-01 (1st Cir. 2005); Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Vessel, 833 F.2d 1059, 1063-64 (1st Cir. 1987).

III.

We review de novo the entry of summary judgment. Hannon v. Beard, 645 F.3d 45, 47 (1st Cir. 2011).

A. District Court’s Duty to Give Notice Before Entering Summary Judgment on Grounds Not Stated in the Motion

Rogers’ primary argument on appeal is that the district court erroneously entered summary judgment on a ground that Block Island had “never briefed, argued, or raised,” thus depriving Rogers of due notice or-opportunity to contest that ground. We agree.

Under Federal Rule of Civil Procedure 56(f), a district court may grant a summary judgment motion on grounds not raised by the moving party, but may do so only “[ajfter giving notice- and a reasonable time to respond” to the opposing party. Fed. R. Civ. P. 56(f). Our circuit has established two criteria that a ‘district court must meet before entering summary judgment sua spontei First, “discovery [must be] sufficiently advanced that the parties have enjoyed a reasonable opportunity to glean .the material facts.” Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996) (citations omitted). Rogers does not claim that he did not have a reasonable opportunity for discovery.

Second, the district court must “first give[ ] the targeted party appropriate notice and a chance to present its- evidence on the essential elements of the. claim or defense.” Id. “Notice, in this context, has two aspects: the summary judgment target is entitled to know both the grounds that the district court will consider and the point at which her obligation to bring forth evidence supporting the elements of her claim accrues.” Rogan v. Menino, 175 F.3d 75, 79. (1st Cir. 1999) (citing Berkovitz, 89 F.3d at 31).

Here, Block Island sought summary judgment explicitly and only on the ground that its maintenance and cure obligations terminated on July 31, 2014 because Rogers had resumed his job as a commercial fisherman by that point. According to Block Island, Rogers’ return to work signaled that it need not make further payments because “[m]aintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship’s service; and it extends during the period when he is incapacitated to do a seaman’s work and continues until he reaches maximum medical recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962).

While the district court rejected the July 31, 2014 date and the return-to-work theory, it independently, and without notice to Rogers, determined that November 18, 2014 should be the date on which Block Island’s maintenance and cure obligations ended, based on a theory of maximum medical recovery. November 18 is the date on which Dr. Campos advised that Rogers no longer required follow-up care from him. .

As a threshold matter, the district court correctly noted the well-established law that a fishing vessel must ‘continue to make maintenance and' cure payments until the point of maximum medical recovery—that is, the point at which an injured seaman’s “condition has stabilized and further progress ended short of a full recovery.” Whitman v. Miles, 387 F.3d 68, 72 (1st Cir. 2004) (quoting In re RJF Int’l Corp. for Exoneration from or Limitation of Liab., 354 F.3d 104, 106 (1st Cir. 2004)). As a matter of summary judgment law, we hold that the district court nonetheless erred when it substituted a new date and ground for summary judgment without first notifying Rogers and giving him an opportunity to dispute this new date and ground.

The court’s decision to grant summary judgment based on the November 18 date, notwithstanding the fact that Block Island’s summary judgment motion had focused exclusively on July 31, deprived Rogers of the opportunity to argue and present evidence that he had not yet reached maximum medical recovery as of November 18. Indeed, Rogers suffered prejudice as a result of the district court's failure to provide notice of the ground on which it would enter summary judgment. Had he known that maximum medical recovery would be an issue at summary judgment,-Rogers says that he would have submitted additional evidence (already, in his possession) of further treatment with Dr. Cardoza, his primary care physician, after November 18. In light of the lack of notice afforded to Rogers, the district court acted prematurely when it concluded that Rogers had. “offer[ed] no medical evidence that contradict[ed] [Dr. Campos’s] evaluation that he had achieved the maximum feasible recovery as of November 18, 2014.”

Although Block Island concedes that it briefed only the July 31, 2014 date and return-to-work theory, it argues that the district court committed no error in entering summary judgment based on- the November 18 date because Rogers had been “fully aware” that maximum medical recovery would be a central issue throughout this case. Block Island contends that Rogers had “a reasonable opportunity to glean the material facts” on that issue during discovery. But this argument misses the point. Rogers had no reason to know that he would face fhe issue at summary judgment. The district court has a duty to notify the nonmoving party of the stage in the litigation at which his “obligation to bring forth evidence supporting the elements of [his] claim accrues.” Rogan, 175 F.3d at 79. That Rogers knew he would need to dispute that he had reached maximum medical recovery at trial, is not the same as knowing that the issue would be decided at summary judgment.

B. Calculating the Amount of Maintenance and Cure Payments

Rogers also complains that the district court erred when it allegedly ruled that the amount of Rogers’ maintenance and cure recovery is capped at the actual living expenses that he incurred. We understand differently the district court’s statements on the law governing the calculation of maintenance and cure.

We do not read the district court’s statements on this point as a ruling that limited, as a matter of law, Rogers’ maintenance and cure recovery to his actual living expenses. First, the district court stated that an overpayment had resulted in the specific context of determining “whether the court can—or should—do anything about the maintenance overpayment in a restitutionary sense.” That is, recognition of the overpayment immediately preceded the court’s ruling that Block Island could not affirmatively seek to recover any amount of overpayment but rather could only offset it against any damages that Rogers might win at trial.

Second, our reading is bolstered by the fact that, in the same summary judgment opinion, the district court refused to decide whether Block Island had unduly delayed making maintenance and cure payments to Rogers, an issue that is material to establish whether Block Island’s negligence contributed to Rogers’ move from the Bristol home to a series of less expensive residences. The court reserved this issue for the jury, noting that “as with most issues of negligence, the issue of the provision of prompt and proper maintenance and cure is a matter for the jury.” By assigning the decision to the jury, the court left open the possibility that the jury might find that Block Island did negligently delay in paying Rogers. This finding might, in turn, impact the amount of maintenance and cure to which Rogers is entitled.

In this circuit, as in numerous sister circuits, the norm is to award an injured seaman maintenance and cure payments in. the amount of his actual living expenses. See, e.g., Johnson, 333 U.S. at 50, 68. S.Ct. 391 (affirming circuit court’s decision to reject injured seaman’s claim for maintenance and cure because “there [wajs ample evidence ... that petitioner had incurred no expense or liability for his care and support at the home of his parents”); Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587 (5th Cir. 2001) (“A seaman is entitled to the reasonable cost of food and lodging, provided he has incurred the expense.” (emphasis added)); Barnes v. Andover Co., L.P., 900 F.2d 630, 641 (3d Cir. 1990) (“Because maintenance is intended to substitute for the food and lodging that a seaman enjoyed at sea, it is established that the seaman is entitled only to expenses actually incurred. Thus, if a seaman is not charged for hospitalization or lives with his family without incurring any expense or liability for his care, no maintenance is due.” (citations omitted)).

But the rule remains that an injured seaman may recover reasonable expenses beyond the amount that he actually incurred, even if it is the exceptional case where the seaman’s reasonable expenses will exceed his actual expenses. See, e.g., McMillan v. Tug Jane A. Bouchard, 885 F.Supp. 452, 463-67 & n.13 (E.D.N.Y.1995) (holding that injured seaman was entitled to maintenance and cure payments even though he had paid no rent, after factfinding at trial that the seaman had involuntarily moved in with friends and family because his employer had refused to pay him maintenance), abrogated on other grounds by Hicks v. Tug PATRIOT, 783 F.3d 939 (2d Cir. 2015); cf. Vaughan v. Atkinson, 369 U.S. 527, 530-31, 533, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (holding that injured seaman was entitled to attorney’s fees and to his wages earned as taxi driver without offset, after factfinding that his employer had negligently remained “si-len[t,j neither admitting nor denying” its duty to pay maintenance and eure for two years). Rogers argues that this case presents just this kind of exceptional circumstance because Block Island’s delayed maintenance and cure payments forced him to vacate the Bristol home and seek cheaper housing. That fact-bound determination, however, is one for the jury. To the extent that the district court could be understood as having ruled otherwise, any such ruling would be error.

C. Method of Recovery for Any Overpayment

Finally, both parties seek affirmance of the district court’s decision that although Block Island cannot affirmatively sue to recover any maintenance and cure payments that it has already made to Rogers, it can offset any overpayment (the exact amount of which should be determined at trial) against any damages that Rogers may win.

The district court properly relied on Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723 (5th Cir. 2013). There, the Fifth Circuit faced a similar question— namely, whether a Jones Act employer, upon establishing that it overpaid an injured seaman, is “automatically entitled to a judgment against the seaman for benefits already paid.” Id, at 725. The court answered this question in the negative, observing that allowing for such affirmative recovery would disturb a central policy of admiralty law; which seeks to “achieve[] a fair reconciliation between protecting seamen in the wake of debilitating on-the-job injury and ensuring that shipowners can protect themselves from liability for sums attributable to concealed preexisting injuries.” Id. at 728. By denying the availability of affirmative recoveries but allowing for offset-against the injured seaman’s damages award, the court in Boudreaux strove to strike the proper balance. We agree with Boudreaux’s sound rule, as well as the rationale animating it.

We thereby adopt the Fifth Circuit’s approach in Boudreaux that “once a shipowner pays maintenance and cure to the injured seaman, the payments can be recovered only by offset against the seaman’s damages award—not by an independent suit seeking affirmative recovery.” Id. at 728.

IV.

We affirm the district court’s ruling that Block Island may offset any overpayment that occurred against any damages that Rogers may win at trial.

We vacate the ruling that Block Island’s maintenance and cure obligations terminated on November . 18, 2014, and remand for further proceedings not inconsistent with this opinion. The district court did not provide Rogers with sufficient notice and opportunity to contend otherwise before entering summary judgment. No costs are awarded.

      . In vacating the district court’s decision on the end date of Block Island's maintenance and cure obligations, we note that we need not and do not reach the question of whether a lack of notice before a summary judgment ruling could ever be per se sufficient for a vacatur absent a further showing of prejudice. Here, there is sufficient evidence in the record to demonstrate that Rogers was prejudiced by the district court’s premature summary judgment ruling on the end-date issue. The end date of the obligation to pay maintenance and cure, in turn, affects the issue of the total amount of maintenance and cure owed, and that, in turn, affects the issue of whether there has been an overpayment.

      . Rogers’ argument that the district court imposed such a cap presumably comes from two places in the summary judgment opinion. First, while recounting the governing law applicable to the dispute, the district court cited Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468 (1948), and noted that a seaman is "entitled to recover maintenance only for his actual living expenses.” Then, the district court listed the following three propositions as "undisputed" for the purposes of the summary judgment motion: (1) that Rogers vacated the Bristol apartment with $1,600 monthly rent in November 2013; (2) that Rogers’ rent since leaving Bristol has not exceeded $800 per month; and (3) "that in calculating the daily maintenance due[,] Block Island relied on the $1,600 monthly rent figure and that an overpayment resulted.”


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    José Antonio RIVERA-RIVERA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
    No. 15-1921
    United States Court of Appeals, First Circuit.
    December 23, 2016

      Eric Alexander Vos, Federal Public Defender, and Hector L. Ramos-Vega, First Assistant Federal Public Defender, on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martinez, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, SELYA and BARRON, Circuit Judges.
   SELYA, Circuit Judge.

Where a case hinges on a credibility call, the battle is almost always won or lost in the trial court. This case—in which a convicted defendant turned federal habeas petitioner recalls the critical events differently than his quondam lawyer—illustrates the point. Although the record has some ragged edges, we discern no clear error in the magistrate judge’s decision to credit the lawyer’s version of events. According ly, we affirm the denial of relief under 28 U.S.C. § 2255.

I. BACKGROUND

The pertinent facts and the travel of the ease may be swiftly chronicled. In May of 2008, petitioner-appellant José Antonio Rivera-Rivera was charged, along with over 100 codefendants, in connection with a sprawling drug-trafficking enterprise operating in and around Ponce, Puerto Rico. Specifically, the petitioner was charged in counts one through five and count seven. Count one charged him with conspiracy to possess with intent to distribute a supermarket of controlled substances. See 21 U.S.C. §§ 841(a)(1), 846. Counts two through five charged him with possession with intent to distribute heroin, cocaine base, cocaine, and marijuana, respectively, in or near a protected location. See id. §§ 841(a)(1), 860. Count seven sought related criminal forfeitures. See id. § 853, The government’s theory of the case was that the petitioner was a “runner,” meaning that he supervised retail sellers’ day-to-day activities, supplied them with drugs for distribution, and collected proceeds.

The petitioner surrendered to the authorities in mid-2008, and the' district court appointed Raymond Rivera-Esteves as his attorney. He was thereafter released on bail pending trial. •

On January 19, 2010, the petitioner tendered a straight guilty plea. The parties stipulated that the quantity of drugs for which he was accountable amounted to fifty grams of cocaine base. On May 7, 2010, the district court convened a sentencing hearing. The court explained the benefits of the safety valve option to the petitioner. See 18 U.S.C. § 3553(f); USSG § 5C1.2. The petitioner declined to seek such an adjustment. The court proceeded to sentence him to a ten-year term of immurement (the statutory minimum).

Shortly after the court pronounced sentence, the petitioner shifted gears and told Rivera-Esteves that he was interested in the safety valve after all. Rivera-Esteves moved to correct the sentence, see Fed. R. Crim. P. 35, but the court denied the motion, concluding that the charges to which the petitioner had pleaded precluded-him from receiving a shorter sentence. The petitioner appealed, but to no avail: we rejected his argument that a retroactive application of the Fair Sentencing Act of 2010 entitled him to a sentence reduction. See United States v. Rivera-Rivera, No. 10-1817 (1st Cir. Dec. 22, 2011) (unpublished order).

In November of 2012, the petitioner moved pro se to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. His pro se motion raised three claims, all premised on ineffective assistance of counsel. The parties consented to proceed before a magistrate judge, see id. § 636(c)(1), who ordered the government to respond to the petitioner’s motion. In due course, the magistrate judge set an evidentiary hearing limited to the petitioner’s third claim: that his then-attorney (Rivera-iEsteves) never told him about a nine-year plea offer. At the same time, the magistrate judge appointed the Federal Public Defender to represent the petitioner.

Both the petitioner and his former attorney, Rivera-Esteves, testified at the hearing. They told conflicting tales.

The petitioner testified that he was always willing to plead guilty because he recognized that the evidence against him was strong. He added, though; that communication with -his attorney was poor, that they only met in person three times or so, and that they talked mostly by telephone. Rivera-Esteves, the petitioner said, never informed him that the- government had offered a nine-year plea bargain. Rather, the only plea discussions that the petitioner had with Rivera-Esteves involved the likelihood that they could convince the government to extend an offer of either twelve or fourteen years.

The following chronology was developed at the hearing. The petitioner appeared in court on January 19, 2010, for the anticipated commencement of his trial. He testified, however, that he did not know that his trial was scheduled to begin; Rivera-Esteves simply called him the day before and instructed him to be in court. The petitioner thought that he was going to attend a meeting about a possible plea deal.

The petitioner added that he and his attorney had never met to prepare for trial. When he learned that trial was in the offing, the petitioner entered a straight guilty plea rather than face an unexpected trial.

The petitioner testified that he first suspected that he had been offered a plea deal shortly after sentencing (while he was being held in custody at a facility in Guayna-bo, Puerto Rico). There, he came across several of his coconspirators, including other runners. Many of their sentences were less onerous than his.

The parties stipulated that the prosecutor had extended a nine-year plea offer to Rivera-Esteves, acting on the petitioner’s behalf, on March 18, 2009, with an expiration date of March 23, 2009. The petitioner testified that his first definite knowledge of the nine-year plea offer came when he read the government’s response to his section 2255 motion. 'The petitioner alleged that he would have accepted the offer had he known of it.

Rivera-Esteves also testified. Although he could not remember many of the details about the petitioner’s case given the passage of years between the dates of the critical events and the date of the eviden-tiary hearing, he recalled that he had discussed the' nine-year plea offer with the petitioner no fewer than six or seven times. He testified that he strongly encouraged the petitioner to accept the offer, but the petitioner spurned his advice and insisted on seeking a more favorable deal or (if none was available) going to trial. Rivera-Esteves could not remember if he had communicated the plea offer to the petitioner before March 23, 2009, but he recalled continuing to encourage the petitioner to consider the offer beyond that date because it was his understanding that there would still be an opportunity to secure those terms.

Inasmuch as Rivera-Esteves could not plot a precise timeline, the magistrate judge allowed him to refer to his Criminal Justice Act (CJA) voucher, see 18 U.S.C. § 3006A(d), to refresh his recollection. Rivera-Esteves cautioned, though, that not all of his interactions with the petitioner were set out in the voucher; instead, the voucher reflected only those interactions for which he had decided to bill. Pertinently, the voucher contained entries for telephone calls on both February 18 and February 23, 2009. These entries specifically noted that the petitioner and Rivera-Es-teves had discussed a plea offer. Rivera-Esteves explained that these entries “probably’ signified that the government had made the nine-year plea offer verbally before transmitting the written offer in mid-March. Rivera-Esteves filed a motion for change of plea on February 23, 2009. The next day, however, he asked that the motion be stricken from the record. At the evidentiary hearing, he explained that he had filed the initial motion to “take[ ] advantage of the plea offer that was extended,” but moved to strike it after a telephone conversation with the petitioner and his family during which the petitioner declared that he did not want to accept the plea offer.

The voucher further reflected that, on March 19, 2009—the day after the government extended the nine-year plea offer in writing—Rivera-Esteves made several telephone calls to the petitioner’s home. He was apparently unable to get in touch with the petitioner. The next communication memorialized in the voucher (a telephone call that transpired on March 23, 2009) indicates that Rivera-Esteves spoke to the petitioner about a plea offer. The voucher notes that the petitioner requested to meet with Rivera-Esteves on March 30 to discuss the offer, and Rivera-Esteves filed a motion for an extension of time to conclude plea negotiations on March 23, 2009. The district court granted this motion.

There is no indication in the record that a meeting ever took place on March 30, but Rivera-Esteves testified that he and the petitioner met at a later date to discuss both the plea offer and the strength of the government’s case. Rivera-Esteves also testified that at some point he made a counteroffer to the government of seven or eight years, but the prosecutor would not budge. Rivera-Esteves stated that, faced with the government’s intransigence, the plan was to go to trial.

On the day the trial was set to commence, however, the petitioner had a change of heart and decided to plead guilty. The government was no longer disposed to settle for a nine-year prison term; it insisted on a straight guilty plea (although it did express a willingness to stipulate to the quantity of drugs for which the petitioner would be held responsible). The petitioner, agreed to enter such a plea. The district court’s acceptance of the plea and its imposition of the ten-year sentence followed.

■At the conclusioh of the evidentiary hearing, the magistrate judge took the matter under advisement. He subsequently-denied the petitioner’s section. 2255 motion in a written rescript. He found Rivera-Esteves’s version of events to be generally “consistent and credible.” In this regard, the magistrate judge made eight crucial findings, which we quote below:

(1) there was a 9-year plea offer made by the government; (2) said offer was communicated by counsel Rivera-Esteves to petitioner on at least 6 or 7 occasions; (3) petitioner made a counteroffer of 7, or possibly even 8, years of imprisonment; (4) the government rejected the 7-8 year counteroffer; (5) petitioner failed to accept the 9-year offer within the deadline set by the government, prompting the government to withdraw said offer; (6) on the day that the trial was scheduled to begin, petitioner changed his mind and decided to enter a guilty plea, but by that time, the government was not interested in pursuing any plea agreements; (7) petitioner decided to enter a straight plea, but consciously rejected the safety valve option after being warned by both counsel Rivera-E sieves and the court about the benefits of the safety valve; (8) soon after the sentencing hearing was over petitioner seemed to regret his decision regarding the safety valve, but by that time, the sentence had already been imposed.

Based on these findings, the magistrate judge denied the section 2255 motion. The petitioner subsequently requested and received a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). This timely appeal ensued.

II. ANALYSIS

We begin our analysis with a peek at the legal landscape. Under 28 U.S.C. § 2255, an individual in federal custody may request that the sentencing court vacate, set aside, or correct a sentence imposed in violation of federal law. See Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002). To this extent, section 2255 functions as “a surrogate for the historic writ of habeas corpus.” Id. A claim of ineffective assistance of counsel, rooted in the Sixth Amendment, may be raised by means of a section 2255 motion. See Casiano-Jiménez v. United States, 817 F.3d 816, 819-20 (1st Cir. 2016); United States v. Mala, 7 F.3d 1058, 1062-64 (1st Cir. 1993).

To prevail on a claim of ineffective assistance of counsel, a petitioner must “show that counsel’s performance was deficient.” Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In other words, the petitioner must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The petitioner also must show that he was prejudiced by counsel’s deficient representation. See Ouber, 293 F.3d at 25.

A defense attorney in a criminal case has an obligation to keep his client apprised of plea offers made by the government. See Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). The failure to inform a client of a plea offer ordinarily constitutes ineffective assistance of counsel. See id.; United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991) (per curiam). To show that prejudice resulted from such substandard performance, the petitioner “must demonstrate a reasonable probability' [that he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel” and “that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 132 S.Ct. at 1409. Finally, the petitioner must adduce facts indicating a reasonable probability that the prosecution would not have withdrawn the plea offer and that the district court would have imposed sentence in accordance with the terms of the offer. See id.

Where, as here, á petitioner appeals the denial of a section 2255 motion following an evidentiary hearing, we review the district court’s legal conclusions de novo and its findings of fact for. clear error. See Casiano-Jiménez, 817 F.3d at 820. Clear error is a demanding standard: as we have said, “a party challenging a trial court’s factual findings faces a steep uphill climb.” Ferrara v. United States, 456 F.3d 278, 287 (1st Cir. 2006). The climb is steeper still when “the challengéd findings hinge on the trier’s credibility determinations,” to which a reviewing court must afford great deference. Id.; see Casiano-Jiménez, 817 F.3d at 820.

Mindful of the stringency of this standard, we have made it pellucid that when the factfinder chooses between two plausible but competing views of the evidence, the factfinder’s choice cannot be clearly erroneous. See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990). In the last analysis, then, we will disturb a trial court’s factual findings only if we form a definite and firm conviction that those findings are incorrect. See Pike v. Guarino, 492 F.3d 61, 75 (1st Cir. 2007); Ferrara, 456 F.3d at 287; see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 5.Ct. 525, 92 L.Ed. 746 (1948).

Against this backdrop, we turn to the particulars of the case at hand. The magistrate judge was confronted with two diametrically opposed accounts. He saw and heard the principals and rested his decision on a determination that Rivera-Es-teves’s version of the salient events was more credible than the petitioner’s version.. The record, considered as a whole, provides adequate support for the magistrate judge’s appraisal.

Although the attorney was unable to recall some details concerning his handling of the petitioner’s case, he was able to pinpoint several important contacts. He remembered discussing the nine-year plea offer with the petitioner on at least six or seven occasions. In an effort to put flesh on these bones, he identified dates in February of 2009 on which the two men discussed an impending plea offer (albeit one that had not yet been reduced to writing). Similarly, Rivera-Esteves identified pertinent conversations in March: he recalled that—on the day after the government extended the written plea offer—he made several telephone calls to the petitioner’s home. He succeeded in reaching the petitioner on March 23, 2009 (the day the offer was set to expire). As he recalled it, the petitioner was not amenable to accepting the offer.

The record further supports Rivera-Es-teves’s version of events because it shows contemporaneous court filings and CJA voucher entries referencing plea negotiations. The first of these court filings—a motion for change of plea—was filed on February 23, 2009. The second—a motion to strike the original motion—was filed the next day. These two motions fit seamlessly into Rivera-Esteves’s narrative (i.e., that he had been discussing a plea offer with the petitioner and had urged him to accept it), and the record offers no other coherent explanation for why such motions would have been filed.

So, too, the last motion—a motion for extension of time to conclude plea negotiations—was filed on March 23, 2009, after the attorney’s receipt of the government’s written plea offer. This filing lends credence to Rivera-Esteves’s testimony that he called the petitioner about that offer.

Faced only with supporting evidence in the form of court filings, we would be hard-pressed to say that the magistrate judge’s decision to credit Rivera-Esteves’s testimony was clearly erroneous. See Ruiz, 905 F.2d at 508. Here,' however, there is more: the conclusion suggested by the court filings is reinforced by the CJA voucher, which also references plea negotiations at various points. Those entries, made long before the petitioner brought his section 2255 motion, add weight to Rivera-Esteves’s version of events.

Let us be perfectly clear. The testimony at the evidentiary hearing was ragged, and it is "troubling that Rivera-Esteyes had so blurred a memory of his communications with the petitioner. But several years had passed between the critical events and the evidentiary hearing, and the petitioner’s testimony, like the attorney’s testimony, was not a model of precision. Moreover, it is difficult to square the petitioner’s claim that he never knew of any plea offer with either the court filings or the CJA voucher. ....

In the end, the deferential standard of review persuades us that we must honor the magistrate judge’s choice between imperfect . alternatives. Cf. Chen v. Holder, 703 F.3d 17, 24 (1st Cir. 2012) (stating that because the “trial judge sees and hears the witnesses at first hand and is in a unique position to evaluate their credibility,” we should honor his or her “on-the-spot judgments”); Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991) (explaining that an appellate court “ought not to disturb supportable findings, based on witness credibility, made by a trial judge who has seen and heard the'witnesses at first hand”). A supportable reading of the record is that plea negotiations broke down because the petitioner held out for a better deal that never materialized.

To sum up, the magistrate judge heard conflicting testimony and made a reasonable (though not inevitable) determination regarding credibility. On this scumbled record, there is no principled way in which we can find that determination to be clearly erroneous. See Ruiz, 905 F.2d at 508.

III. CONCLUSION

We need go no further. For the reasons elucidated above, the judgment is

Affirmed.

      . The safety valve provision, created by statute and incorporated into the sentencing guidelines, allows a sentencing court to disregard an otherwise mandatory minimum sentence if the defendant meets certain criteria. See United States v. Marquez, 280 F.3d 19, 20, 22 (1st Cir. 2002). The purpose of the provision is “to mitigate the harsh effect of mandatory minimum sentences on certain first offenders who played supporting roles in drug-trafficking schemes.” United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000).

      . At the evidentiary hearing, the petitioner’s appointed counsel withdrew the other two claims originally asserted in the section 2255 motion. Consequently, those claims are not before us.

      . The magistrate judge took judicial notice of the other runners’ sentences. By and large, those sentences were shorter than the sentence that the petitioner received.

      . We use the term "voucher" to include both the voucher itself and the associated voucher paperwork The voucher materials contained in the record do not reflect a date of preparation. The last date that appears on the voucher worksheet, however, is in October of 2010.

      . Neither side introduced evidence of any other plea offer extant during the February-March time frame.

      . To be sure, the record is silent as to whether Rivera-Esteves told the petitioner that the plea offer would expire on March 23, if not accepted. But that is not the petitioner’s complaint. Rather, he asserts that Rivera-Esteves did not inform him at all about the government’s nine-year plea offer.


text:
    German Donaldo RIVERA-COCA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-1115
    United States Court of Appeals, First Circuit.
    December 30, 2016

      llana Etkin Greenstein, Boston, MA, and Macias & Greenstein, LLC on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Eric W. Marsteller, Senior Litigation Counsel, Office of Immigration Litigation, Rachel L. Browning and Juria L. Jones, Trial Attorneys, Office of Immigration Litigation, on brief for respondent.
    Before KAYATTA, SELYA and BARRON, Circuit Judges.
   SELYA, Circuit Judge.

The petitioner, German Donaldo Rivera-Coca, is a Honduran national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA), which denied his application for asylum and withholding of removal. Concluding, as we do, that the BIA’s order is supported by substantial evidence, we deny the petition.

I. BACKGROUND

We rehearse the facts as recounted by the petitioner and then limn the travel of the case. The petitioner owned a small accounting firm in Puerto Cortes, Honduras, which frequently did business with that nation’s Liberal Party (though the petitioner states that he is not politically inclined and does not support any particular political party). Early in 2011, the petitioner discovered political propaganda posters supporting the rival National Party displayed on the walls and windows of his office. He tore down the posters but they soon reappeared.

After the petitioner removed the posters a second time, three or four men, dressed in clothing typically worn by National Party activists, came to his office and assaulted him. The petitioner says that he reported the matter to the police and that he sought medical treatment. He asserts that, despite his report, the police never investigated the matter.

A few days later, the petitioner discovered that the posters were once more in evidence. He removed them but, shortly thereafter, he started receiving threats. We briefly describe the threats. The petitioner testified that a handwritten note was delivered to his office and—although the original note was never produced—he claimed that it said that he “had to be very careful” and that those who do not respect “the blue ones” regret it. The petitioner did not report this message to the police.

One evening in March of 2011, a stranger dressed in what the petitioner described as typical National Party attire (a white shirt and blue jeans) approached the petitioner on the street. The stranger told the petitioner that he was “going to die if [he did not] join [them].” Once again, the petitioner did not report this threat to the police.

The petitioner’s family also became involved: on a few unspecified occasions, National Party activists told the petitioner’s wife that they knew where her husband lived and where he was. In addition, caravans of cars bearing National Party flags stopped in front of the family’s home. The occupants of the cars shouted, “I know who you are and I know who you’re dealing with.”

Concerned about the situation, the petitioner took his family to his mother-in-law’s house (five or six hours away). Despite this relocation, caravans of cars continued to appear. Men shouted from the cars, “Never mind where you go. Never mind where you are. We know where you are.”

The petitioner decided to flee to the United States. Leaving his family in Honduras, he entered the United States without documentation in May of 2011. He was apprehended and questioned by Border Patrol agents. He told the agents that he intended to live and work in the United States for two years and that he did not fear returning to Honduras. But during an interview some months later, the petitioner changed his tune, saying that he in fact feared persecution and was afraid to return to Honduras.

In due course, the Department of Homeland Security initiated removal proceedings, charging that the petitioner was present in the United States without legal sanction. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). The petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). He argued that he had a well-founded fear of persecution based on his recent experiences in Honduras.

After a merits hearing, an immigration judge (IJ) denied the petitioner’s requests for relief and ordered his removal. In doing so, the IJ noted several inconsistencies in the petitioner’s testimony and expressed serious doubts about his credibility. The IJ went on to find that the petitioner’s testimony was not “otherwise credible,” that is, that the petitioner had not overcome the inconsistencies in his testimony through readily available corroborating evidence and, thus, had failed to carry his burden of proving eligibility for relief.'

The IJ did not stop there but, rather, used both a belt and suspenders. She held that even if the absence of corroborating evidence was overlooked and the petitioner’s testimony was deemed fully credible, the mistreatment that he allegedly suffered did not rise to the level of past persecution. By the same token, that mistreatment did not justify a well-founded fear of future persecution. She added that no probative evidence showed that the petitioner was likely to be targeted should he be repatriated, especially given the recent election (2013) of a new president in Honduras and the ascension to power of a new administration.

With this preface in place, the IJ ruled that the petitioner was not entitled to asylum, withholding of removal, or CAT protection. The petitioner countered by appealing to the BIA. He asseverated that the IJ committed clear error in evaluating his credibility, in requiring corroborating evidence, in concluding that past persecution had not been demonstrated, and in concluding that no well-founded fear of future persecution existed.

The BIA dismissed the petitioner’s appeal. Its- reasoning was relatively narrow: it affirmed the IJ’s holding that, even presuming the petitioner to be credible, he had not .carried either his burden of explaining the lack of corroborating evidence or of showing that what he had experienced rose to the level of persecution. Re-latedly, it affirmed the IJ’s ruling that the petitioner had not demonstrated an objectively reasonable basis to support his claim of a well-founded fear of future persecution.

This timely petition for judicial review followed. See 8 U.S.C. § 1252(a).

II. ANALYSIS

In this venue, the petitioner challenges the denial of his claims for asylum and withholding of removal. He does not challenge the denial of his CAT claim. We limit our analysis accordingly and treat the CAT claim as waived. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010).

In the immigration context, judicial review normally focuses on the decision of the BIA, which constitutes the agency’s final order. See Wan v. Holder, 776 F.3d 52, 55 (1st Cir. 2015). But where, as here, the BIA merely adds its gloss to the IJ’s findings and conclusions, we treat the two decisions as a unit and review'them together. See id. at 55-56.

We start with the petitioner’s asylum claim because a claim for withholding of removal “imposes a ‘more stringent burden of proof on an alien than does a counterpart claim for asylum.’” Morgan v. Holder, 634 F.3d 53, 60 (1st Cir. 2011) (quoting Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)). Thus, if the petitioner “fails to establish a well-founded fear of persecution sufficient to ground an asylum claim, a counterpart claim for withholding of removal ... necessarily fails.” Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).

Absent any material error of law—and we discern none here—our review of a refusal to grant asylum is aimed at determining whether the agency’s denial is supported by substantial evidence in the record. See Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). In the course of that review, we must accept the agency’s findings of fact, including its credibility determinations, as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). Consequently, the agency’s fact-based determination that an alien is not entitled to asylum must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

' Of course, the agency’s rulings of law are reviewed de novo. See Da Silva, 394 F.3d at 5. In this context, however, courts must afford some deference to the BIA’s reasonable interpretations of statutes and regulations relating directly to immigration matters. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); see also Ahmed, 611 F.3d at 94 (explaining that the BIA is afforded “a measure of respect” with regard to its interpretations of immigration statutes).

To qualify for asylum, an alien must carry the burden of establishing that he is a “refugee” within the meaning of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1158(b)(1); see also id. § 1101(a)(42)(A) (defining “refugee” as any person outside his home country who is unable or unwilling to return due to persecution or a well-founded fear of future persecution). An alien may carry this burden either by proving past persecution based on “race, religion, nationality, membership in a particular social group, or political opinion,” or by proving a well-founded fear of future persecution based on one of these five, protected grounds. Id. § 1101(a)(42)(A); see 8 C.F.R. § 208.13(b); see also Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005), superseded in unrelated part by 8 C.F.R. § 1240.26(i), as recognized in Ivanov v. Holder, 736 F.3d 5, 20 (1st Cir. 2013). If the alien succeeds in showing that he has suffered past persecution, a rebuttable presumption arises that he will suffer future persecution as well. See Palma-Mazariegos v. Gonzales, 428 F.3d 30, 34 (1st Cir. 2005).

An alien may satisfy his burden of proving entitlement to asylum “by [his] own testimony if that testimony is specific and credible.” Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008). This allocation of the burden of proof has consequences: if the alien’s testimony is not itself compelling, the “absence of easily obtainable corroborating documentation can be the final straw.” Id. Indeed, Congress has specifically allowed IJs to require corroboration even to support otherwise credible testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Soeung v. Holder, 677 F.3d 484, 488 (1st Cir. 2012). If the IJ “determines that the applicant should provide [corroborating evidence], such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain [it].” 8 U.S.C. § 1158(b)(1)(B)(ii). A failure either to provide readily available corroborating evidence or to offer a compelling explanation for such a failure can be fatal to an asylum claim. See Soeung, 677 F.3d at 487-88; Chhay, 540 F.3d at 6.

In the case at hand, the IJ rested her decision on two independently sufficient grounds. First, she ruled that the petitioner’s testimony did not suffice to carry his burden of proof because she had serious doubts about his truthfulness and the petitioner failed to produce corroborating evidence to overcome these doubts. Second, the IJ ruled that, even if she overlooked her doubts about the petitioner’s credibility and the lack of corroborating evidence, the mistreatment that he experienced' did not rise to the level of persecution. She added that with past persecution not proven, the record (unaided by any presumption) failed to show a well-founded fear of future persecution..

The BIA did not pass directly upon the petitioner’s credibility, but upheld the Id’s finding that the petitioner had failed to submit readily available corroborating evidence and, thus, had failed to carry his burden of proof. It also upheld the TJ’s alternate holding that the petitioner' had failed to prove persecution. We hold that substantial evidence supports the BIA’s lack-of-corroborating-evidence rationale. Because this rationale is independently sufficient to sustain the denial of asylum, we take no view of the BIA’s lack-of-pérsecution rationale.

We are bound to accept the IJ’s and the BIA’s determinations regarding the unper-suasiveness of the alien’s testimony, the availability of corroborating evidence, and the effect of not producing corroborating evidence “unless the record compels a contrary conclusion.” Chhay, 540 F.3d at 6 (citing, inter alia, Kho v. Keisler, 505 F.3d 50, 57 (1st Cir. 2007)). The record before us compels no such conclusion.

The IJ would- have been permitted to require the petitioner to produce corroborating evidence even if she had found him “otherwise credible,” as'the BIA assumed for the purpose of his appeal. See 8 U.S.C. § 1158(b)(1)(B)(ii); Soeung, 677 F.3d at 488. Here, however, the IJ identified several gaps in the petitioner’s testimony that prompted her to require additional corroborating. evidence. For example, she observed that even though the petitioner “had appeared to testify sincerely and forthrightly,” other evidence in the record called his story into serious question. For instance, the. petitioner testified that after his assault, he went to the doctor and then to the police. The-reports-that he submitted, though, indicated that he went first to the police and then to the doctor three to five days later. Moreover, the police report included no mention of any assault.

To cite another example, the IJ observed that even though the petitioner initially told Border Patrol agents that he did not fear returning to Honduras, he reversed his field a few months later. On. a different point, the IJ noted that the petitioner offered no evidence indicating that his accounting business ever existed.

The petitioner did not produce the corroborating evidence that the IJ reasonably required. See 8 U.S.C. § 1158(b)(1)(B)(ii). For example, he submitted no credible evidence proving the existence of his accounting business. Nor did he submit an affidavit or statement from his wife or mother-in-law verifying any aspect of his story. So, too, he failed to furnish the original threat letter that he claimed to have received (even though he testified that his wife had saved it).

Nor did the petitioner adequately explain his failure to supply corroborating evidence. Such evidence appears to have been readily available, given that the petitioner remained in contact with his family in Honduras and asserted that they could provide statements to support his claim. Yet, when the petitioner was asked whether he had an “affidavit or a letter from [his] wife” or mother-in-law supporting his version of the events, he simply responded: “No.”

To say more would be pointless. 'The petitioner does not argue that the IJ failed to follow proper procedures or that he was entitled to additional notice that corroboration would be required. By the same token, he does not challenge the reasonableness of the IJ’s request. And any such challenge would be fruitless: the IJ expected him to produce important items of corroboration that the petitioner himself had indicated were readily available.

The short of it is that the IJ expressed reasonable concerns about the credibility of the petitioner’s testimony and anticipated that he would supply reasonably available documentation to support his claims. In response, the petitioner stonewalled: he failed to furnish either corroborating evidence or a plausible explanation for the absence of it. We hold, therefore, that the IJ’s and the BIA’s lack-of-corroboration rationale is supported by substantial evidence in the record considered as a whole.

The petitioner’s claim of a well-founded fear of future persecution can be swiftly dispatched. To show a well-founded fear of future persecution without the benefit of any rebuttable presumption based on past persecution, see Palma-Mazariegos, 428 F.3d at 34-35, an alien must establish both that he had a genuine fear of future persecution and that an objectively reasonable basis existed for that fear. See Nikijuluw v. Gonzales, 427 F.3d 115, 121-22 (1st Cir. 2005). The petitioner might have been afraid, but he has not identified an objectively reasonable basis for that fear.

To be sure, the petitioner submitted general information about the political climate in Honduras. That evidence mentioned isolated incidents in which political dissidents were targeted by National Party activists during the period leading up to the 2013 election. Overall, though, that election was generally transparent, orderly, and credible. It resulted in the seating of a new president, and nothing in the record suggests that this new administration supports (or even tolerates) violent persecution of its opponents. Seen in this light, we have no sound basis for disturbing the agency’s determination, that the petitioner has not carried his burden of establishing a well-founded fear of future persecution. See Rodriguez-Ramirez, 398 F.3d at 123.

Based on the foregoing, we conclude that the IJ’s and the BIA’s denial of the petitioner’s claim for asylum must stand. This conclusion effectively ends our inquiry: our disposition of the petitioner’s asylum claim dooms his withholding of removal claim as well. See Amouri, 572 F.3d at 35 (noting that if the petitioner “fails to establish a well-founded fear of persecution sufficient to ground an asylum claim, a counterpart claim for withholding of removal.... necessarily fails”); Rodriguez-Ramirez, 398 F.3d at 123 (similar).

III. CONCLUSION

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

So ordered.

      . The petitioner testified that “the blue ones” was a shorthand for members of the National Party.


author: DRONEY, Circuit Judge:

text:
    BUFFALO TRANSPORTATION, INC. Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-3959-ag
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Submitted: October 6, 2016
    Decided: December 22, 2016

      Stephen F. Szymoniak, Law Office of Stephen F. Szymoniak, Williamsville, New York, for Petitioner-Appellant.'
    Andrew N. O’Malley, Trial Attorney, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Bernard A. Joseph, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. for Respondent-Appellee.
    Before: NEWMAN, LYNCH, and DRONEY, Circuit Judges.

      . Motions for summary decisions are governed by 28 C.F.R. § 68.38 (c), which provides that an AU “shall enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.” If a party raises a genuine question of material fact, then the ALJ shall hold an evidentiary hearing. Id. § 68.38 (e).

   DRONEY, Circuit Judge:

Buffalo Transportation, Inc. (“Buffalo Transportation”) petitioned pursuant to 8 U.S.C. § 1324a(e)(8) for review of a final order of the Office of the Chief Administrative Hearing Officer for the Executive Office of Immigration Review (“OCAHO”) that found it to have committed substantive violations of Section 274A(b) of the Immigration and Nationality Act (“INA”) and affirmed the imposition of fines by Immigration and Customs Enforcement of the Department of Homeland Security (“ICE”). The Administrative Law Judge (“ALJ”) found that Buffalo Transportation had not timely complied with the requirements of 8 U.S.C. § 1324a(b) and related regulations that require employers to verify that an employee is legally authorized to work in the United States through executing a Form 1-9 for each employee within three business days of hire. Buffalo Transportation petitioned this Court for review of the ALJ’s decision on the grounds that the. violations were “procedural” rather than substantive, and that ICE should have issued a warning rather than imposing fines. Buffalo Transportation also contends that the fines imposed were unreasonably high. We agree with the ALJ’s determination of liability and adjustments of ICE’s original fine amounts, and therefore DENY the petition for review.

BACKGROUND

Buffalo Transportation is located in Buffalo, New York, and provides transportation services to individuals for medical appointments. On August 22, 2013, ICE notified Buffalo Transportation of a scheduled audit of its Forms . 1-9 to occur on August 28, 2013. At the audit, ICE found that six of the completed Forms 1-9 .had technical or procedural errors and allowed Buffalo Transportation to correct those errors. ICE also found, however, that all 54 of the completed Forms 1-9 were not created within three business days of the employees’ hiring dates, and that Buffalo Transportation did not properly retain completed Forms 1-9 for 84 former employees. On March 14, 2014, ICE served Buffalo Transportation with a Notice of Intent to Fine in the amount of $794.75 per violation (for a total of $109,675.50) which it calculated using the regulatory scheme at 8 C.F.R. § 274a.l0(b)(2) and its own internal guidelines. These guidelines set the base and maximum fines for various types of violations and adjust the fines for aggravating and mitigating circumstances. See ICE, Fact Sheet: 1-9 Inspection Overview, available at https://www. ice.gov/factsheets/i9-inspection (last visited Oct. 11, 2016).

' After receiving the Notice of Intent to Fine, Buffalo Transportation requested a hearing before an ALJ, as permitted by 5 UiS.C. § 554. Both Buffalo Transportation and ICE submitted briefing and evidence in support of their motions for a summary decision. The ALJ granted in part both Buffalo Transportation’s and ICE’s motions for summary decision. The ALJ found Buffalo Transportation to have committed 81 violations for not retaining the Forms 1-9 for former employees for the proper time period (the later of three years from date of hire, or if terminated, one year from termination) and 54 violations for current employees for Forms 1-9 not prepared within three business days of hire. The ALJ also determined that the fines assessed by ICE were excessive, and adjusted the penalty to $600 per violation for the former employees and $500 per violation for the current employees. Thus, the total fine that the ALJ assessed was $75,600. In making these adjustments to ICE’s fines, the ALJ considered Buffalo Transportation’s financial situation as well as other mitigating factors pursuant to 8 C.F.R. § 274a.10 (b)(2)(i)-(v). See J.A. 45.

DISCUSSION

I. Standard of Review

We review an order of the OCA-HO issued pursuant to 8 U.S.C. § 1324a under the arbitrary and capricious standard. 8 U.S.C. § 1324a(e)(8); see Alaska Dep’t of Envtl. Conservation v. E.P.A., 540 U.S. 461, 496-97, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (applying arbitrary and capricious standard when the statute itself does not specify a standard for judicial review of agency action). We review an agency’s factual determinations under the substantial evidence standard, N.Y. & Atl. Ry. Co. v. Surface Transp. Bd., 635 F.3d 66, 71 (2d Cir. 2011) (citations omitted), while we review an agency’s determinations on questions of law de novo, see Nwozuzu v. Holder, 726 F.3d 323, 326 (2d Cir. 2013) (citations omitted).

II. Substantive Violations

Section 274A(b) of the Immigration and Nationality Act requires employers to verify that their employees are legally authorized to work in the United States. 8 U.S.C. § 1324a(b). Regulations designate the Employment Eligibility Verification Form (“Form I-9”) for this purpose, 8 C.F.R. § 274a.2(a)(2), and employers must complete these forms within three business days of hire, id. § 274a.2(b)(1)(ii). An employer must retain these forms and provide them for inspection by ICE upon three business days’ notice for current employees, and retain forms for one year for terminated employees. Id. § 274a.2(b)(2)(i)-(ii). If an employer does not comply with these requirements, it may face civil penalties between $110 and $1,100 per individual violation. Id. § 274a.10(b)(2) (for violations prior to November 2, 2015). An employer may be “considered to have complied” with the Form I-9 requirements if there is only a “technical or procedural failure” so long as the employer made a “good faith attempt to comply.” 8 U.S.C. § 1324a(b)(6)(A). To avail itself of the good faith defense, an employer must also correct the relevant violations within ten business days of receiving notice of the technical or procedural failings. Id. § 1324a(b)(6)(B).

The Immigration and Naturalization Services (the predecessor agency to ICE) (“INS”) issued interim guidance about what constitutes a “technical or procedural violation” as opposed to a “substantive violation” for which the good faith defense would not be available. Memorandum of Paul W. Virtue, INS Office of Programs, Interim Guidelines: Section 274A(b)(6) of the INA (March 6, 1997), available at 74 Interpreter Releases 706, App. I (April 28, 1997) (“Virtue Memorandum”). ICE has continued to follow that guidance. The OCAHO has consistently relied on the Virtue Memorandum to determine that the failure of an employer to complete a Form I-9 is a substantive violation of Section 274a.2. See United States v. Anodizing Indust., Inc., 10 OCAHO 1184 (2013); United States v. Platinum Builders of Cent. Fla., Inc., 10 OCAHO 1199 (2013).

Formal adjudications and agency-promulgated rules are given considerable deference under the Administrative Procedure Act and Chevron. See Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 55 (2d Cir. 2004). An informal agency interpretation that is neither a formal adjudication nor a promulgated rule may still receive deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Such informal agency guidance receives deference “ ‘according to its persuasiveness,’ as evidenced by the ‘thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” Estate of Landers v. Leavitt, 545 F.3d 98, 107 (2d Cir. 2008) as amended (Jan. 15, 2009) (quoting United States v. Mead Corp., 533 U.S. 218, 221, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)) (internal citation omitted); see also Ketchikan Drywall Servs., Inc. v. Immigration & Customs Enft, 725 F.3d 1103, 1112-13 (9th Cir. 2013) (applying Skidmore deference to the Virtue Memorandum). We apply Skidmore deference to the Virtue Memorandum because we find it well-reasoned and thorough. It distinguishes between violations that effectively undermine immigration requirements (such as not filling out the form at all, or not including the employee’s name) and those that create small but solvable problems (such as an omitted birth date). Moreover, the agency has greater expertise “when it comes to determining which omissions are substantive and which ought to be excused.” Ketchikan, 725 F.3d at 1113. Thus, we agree with the Virtue Memorandum, and with prior decisions of the OCAHO, see, e.g., United States v. Dr. Robert Schaus, D.D.S., 11 OCAHO 1239 (2014), that failing to prepare Forms I-9 within three business days of hire is a substantive violation of the INA and its accompanjnng regulations.

The regulation clearly states that employers must have employees fill out the Form I-9, verify the employee’s documentation, and have both employee and employer sign the form within three business days of hire. Failure to prepare a Form I-9 constitutes a substantive violation,. Virtue Memorandum at 3, and necessarily includes the failure to prepare a Form 1-9 within the time allotted by the regulations—here, three business days. The ALJ correctly determined that the 54 Forms I-9 presented to ICE at the audit contained substantive violations, as there is no genuine dispute that any of the 54 forms had been completed within three business days of the employees’ hiring dates. Indeed, it appears that Buffalo Transportation only prepared.the 54 Forms I-9 for its current employees in response to ICE’s notice of inspection.

Buffalo Transportation contends that it should have been given a Warning Notice pursuant to 8 C.F.R. § 274a.9(c) before receiving the ICE Notice of Intent to Fine. The government contends that this argument is unexhausted. Even assuming that Buffalo Transportation properly raised the warning notice claim, it is without merit. The regulation permits ICE or the Department of Labor “in their discretion” to give a warning of violations. Id. It does not require ICE to do so.

Buffalo Transportation also argues that it substantially complied with the employee verification requirements by keeping each employee’s identifying documents on file. That argument is unavailing, however, because the relevant regulations explicitly reject that approach: “[Cjopying ... of [underlying documents] and retention of the copy or electronic image does not relieve the employer from the requirement to fully complete section 2 of the Form I-9.” 8 C.F.R. § 274a.2(b)(3); see Ketchikan, 725 F.3d at 1111 (rejecting the same argument).

III. Fines

Buffalo Transportation also challenges the amount of the fines imposed by the ALJ as arbitrary. ICE imposed a fine of $794.75 per violation, which it calculated using the regulatory scheme at 8 C.F.R. § 274a.10(b)(2) and its own internal guidelines, which ICE uses to set the base penalty and adjust the fine for aggravating and mitigating circumstances. See ICE, Fact Sheet: I-9 Inspection Overview, available at https://www.ice.gov/factsheets/ i9-inspection (last visited Oct. 11, 2016). The ALJ considered that Buffalo Transportation was a small business, did not act in bad faith, lacked a history of violations, and that there was no evidence that Buffalo Transportation had hired unauthorized workers as mitigating factors. The ALJ also considered Buffalo Transportation’s financial situation. In light of this evidence, Buffalo Transportation’s arguments, and the statutory and non-statutory factors— including Buffalo Transportation’s ability to pay—the ALJ reduced the fines to $600 per violation for past employees and $500 per violation for current employees.

When reviewing agency fines our inquiry is limited to whether the agency made “an allowable judgment in [its] choice of the remedy.” United States v. Int’l Bhd. of Teamsters, 170 F.3d 136, 143 (2d Cir. 1999) (internal quotation marks omitted). We conclude that the ALJ made such an allowable judgment here in determining the amount of the fines after properly assessing the various factors, including the seriousness and number of the violations.

Buffalo Transportation next argues that because the regulation provides for a broad range of allowable fines (from $110 to $1,100) and the Virtue Memorandum includes no specific guidance, the ALJ im-permissibly made an arbitrary determination as to the amounts of the fines. Buffalo Transportation also contends that other similarly-situated employers received larger reductions from ICE-imposed fines than it did. We do not find these arguments convincing. The ALJ provided well-reasoned bases for the fine amounts based on Buffalo Transportation’s specific circumstances.

* * *

For the foregoing reasons, we hold that the ALJ’s determinations regarding liability were not arbitrary and capricious and were supported by substantial evidence, and that the fines were within the ALJ’s allowable discretion. Accordingly, we DENY the petition for review.

      . A review of the Forms I-9 reflects that many of the forms were prepared immediately prior to the inspection and more than three business days from the hiring date. See, e.g., Record on Appeal at 214-15.

      . Both the relevant statute and regulations include the following factors: (i) size of the business'of the employer being charged, (ii) the good faith of the employer, (iii) the seriousness of the violation, (iv) whether or not the individual was an unauthorized alien, and (v) the history of previous violations of the employer. 8 U.S.C. § 1324a(e)(5); 8 C.F.R. § 274a.10(b)(2).


author: SHWARTZ, Circuit Judge.

text:
    Lori MOECK, In her capacity as parent and natural guarding of C.M. and A.M.; C.M. a minor; A.M., a minor v. PLEASANT VALLEY SCHOOL DISTRICT; Douglas C. Arnold, Superintendent of Schools, Pleasant Valley School District; Anthony A. Fadule, Assistant Superintendent of Schools, Pleasant Valley School District; John J. Gress, Principal, Pleasant Valley School District: Mark Getz, Wrestling Coach, Pleasant Valley School District Pleasant Valley School District, Appellant
    No. 16-2473
    United States Court of Appeals, Third Circuit.
    Submitted under Third Circuit L.A.R. 34.1(a) December 20, 2016
    (Filed: December 23, 2016)

      Michael I. Levin, Esq., Paul J. Cianci, Esq., Levin Legal Group, P.C., 1301 Masons Mill Business Park, 1800 Byberry Road, Huntingdon Valley, PA 19006, Counsel for Appellant
    Michael C. Schwartz, Esq,, Jonathan J. James, Esq., James, Schwartz & Associates, P.C., 1500 Walnut Street, 21st Floor, Philadelphia, PA 19102, Counsel for Appel-lees
    Before: SMITH, Chief Judge, McKEE and SHWARTZ, Circuit Judges.
   OPINION OF THE. COURT

SHWARTZ, Circuit Judge.

Pleasant Valley School District (the “School District”) appeals the District Court’s order denying its motions for sanctions pursuant to Fed. R. Civ. P. 11 against Plaintiffs and their counsel. Because the District Court appropriately exercised its wide discretion in concluding the motions lacked merit, and were counterproductive as they relied upon factual discrepancies that did not show the claims were patently frivolous, we will affirm.

I

This case arises out of incidents between two members of the Pleasant Valley High School (the “High School”) wrestling team, C.M. and his sister A.M., and the team’s coach, Mark Getz. Getz allegedly assaulted C.M. and discriminated against A.M. based .on her gender. Plaintiffs alleged that during a team practice, C.M. was forced to wrestle a larger student, who threw him through the gymnasium doors into the hallway and punched him, and after Getz prodded C.M. to keep wrestling, a verbal and physical altercation ensued between Getz and C.M. in which Getz lifted C.M. up and “smash[ed] his head and back into the wall.” App. 31, 54. Plaintiffs also asserted, among other things, that A.M, suffered gender discrimination through a culture of misogyny and intimidation, which allegedly included numerous sexually charged comments by Getz and the assistant coaches.

C.M., A.M., and their mother • Lori Moeck (collectively,- “Plaintiffs”) brought various federal - and state law. claims against the School District, its Superintendent, its Assistant Superintendent, the High School’s Principal (the “School Defendants”), and Getz (collectively, “Defendants”), seeking compensatory and punitive damages, injunctive relief, and attorneys’ fees and costs. Following discovery, the School Defendants and Getz filed separate motions for summary judgment. Each motion was supported by a brief and statement of undisputed material facts (“Rule 56.1 statement”).

Defendants thereafter filed two motions for sanctions. In one motion, the School Defendants asserted that discovery showed that Plaintiffs made" numerous false statements in the complaint and amended complaint, and their claims lacked merit. In the second motion, Defendants asserted that Plaintiffs’ Rule 56.1 statement contained false statements. Many of the examples Defendants cited in both motions focused on small details that have little bearing on the essence of Plaintiffs’ claims—that Getz allegedly acted in an aggressive and discriminatory manner. For-instance, Plaintiffs alleged that Getz “grabb[ed] [C.M.] by the neck and chok[ed]” him, App. 39, 62, while C.M.’s testimony disclosed that Getz grabbed him by the shirt, under his neck. Similarly, Defendants complained that Plaintiffs alleged that Getz “lifted [C.M.] onto his toes, and ran with him ... causing him to smash his head and back into the wall,” App. 31, 54, while testimony showed that Getz “speed walk[ed],” App. 113, and “put [C.M.] up on the wall,” App. 182, and that C.M.’s head “wasn’t extremely pounded,” App. 200; see also App. 1103 (comparing the representation in the brief that C.M.’s “toes were off the ground” when Getz lifted him up with C.M.’s testimony that he “was on [his] tippy-toes up against the wall,” App. 198). Plaintiffs filed motions to stay. Defendants’ Rule 11 motions until the District Court ruled on the pending summary judgment motions.

Before ruling on the summary judgment motions, the District Court denied Defendants’ Rule 11 motions. The court found “the motions meritless,” noting that these Rule 11 motions tax judicial resources and emphasizing that the truth of the allegations in a case of this sort is revealed through discovery and addressed at summary judgment or trial, not via motions for sanctions. App. 3. The School District appeals.

II

We review a district court’s order on a Rule 11 motion for abuse of discretion. Simmerman v. Corino, 27 F.3d 58, 61 (3d Cir. 1994). Thus, “ ‘we evaluate the court’s factual determinations, legal conclusions, and choice of an ‘appropriate sanction’ with substantial deference, considering not whether we would make the same precise determinations, but only whether those determinations are contrary to reason or without a reasonable basis in law and fact.’ ” Ario v. Underwriting Members of Syndicate 53 at Lloyds for the 1998 Year of Account, 618 F.3d 277, 287 (3d Cir. 2010) (quoting Simmerman, 27 F.3d at 62).

A

We first review the School District’s assertion that Plaintiffs failed to oppose the first motion for sanctions and that the District Court erred in declining to grant the supposedly unopposed motion. The School District contends that, pursuant to Middle District Local Rule 7.6, the District Court should have treated the School Defendants’ first Rule 11 motion as unopposed and thus granted the Rule 11 motion. Local Rule 7.6 provides that any party, opposing any motion other than a motion for summary judgment shall file a response within 14 days of service of. the movant’s brief and “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” M.D. Pa. Local R. 7.6. Our Court has noted that “[tjhere may be some cases where the failure of a party to oppose a motion will indicate that the motion is in fact not opposed, particularly if the party is represented by an attorney and in that situation the [local] rule may be appropriately invoked.” Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1992); see also DiPaolo v. Moran, 407 F.3d 140, 144-45 (3d Cir. 2005) (affirming grant of unopposed Rule 11 motion where no responsive pleading was filed and “the sanctions motion here did not involve obvious facial deficiencies”).

Here, the District Court correctly treated the School Defendants’ motion as opposed, Although Plaintiffs did not specifically file a brief-in opposition to that Rule 11 motion, Plaintiffs did respond by filing a motion to stay. In that motion, Plaintiffs argued that “[b]ecause much of the issues raised in .. Defendants [sic] Rule 11 motions go to the evidence ultimately before this Court, Plaintiff [sic] is seeking to place the Rule 11 motion and any proposed filing of a Rule 11 motion in suspense until after the summary judgment motions are decided.” App. 662. Plaintiffs in essence asserted that the fact-sensitive issues raised in the School Defendants’ sanctions motion would best be evaluated at the summary judgment stage and accordingly opposed consideration of the Rule 11 motion on that basis. Cf. Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990) (explaining that the local rule at issue “authorizes the court to grant applications solely on the basis of the information that the moving party puts before the court unless there is some response indicating that a genuine controversy exists concerning the right to the relief sought”). Therefore, the District Court did not abuse its discretion in declining to treat the motion as unopposed.

B

The District Court also did not abuse its discretion in denying both Rule 11 motions. Despite the School District’s argument that the District Court abused its discretion by denying the Rule 11 motions without analyzing their merits, the District Court specifically stated that it found “the motions meritless.” App, 3. The District Court, having the benefit of fully briefed summary judgment motions and a voluminous record, further explained that the factual issues identified in Defendants’ sanctions motions would be best resolved at summary judgment or trial.

In doing so, the District Court did more than what Rule 11 requires. Rule 11(c)(6) requires only that a district court explain the basis of its order when the court imposes a sanction, not when it denies sanctions. Fed. R. Civ. P. 11(c)(6) (“An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.”). While we welcome explanations for all rulings, the District Court did more than it needed to do when concluding that Defendants’ motions were “meritless.”

Our review of the record leads us to the same conclusion. Some discrepancies exist between the complaints and Plaintiffs’ submissions in opposition to Getz’s summary judgment motion, on the one hand, and facts elicited through discovery, on the other, but Plaintiffs’ pleadings have a factual basis and are not “patently unmeritorious or frivolous.” See Ario, 618 F.3d at 297 (citation omitted). Although some of the factual allegations may have been exaggerated, the record includes evidence that provided a reasonable basis for the representations in the complaints and summary judgment submissions concerning Getz’s allegedly aggressive and discriminatory behavior. See, e.g., App. 1027-35, The District Court’s conclusion that Defendants’ accusations were meritless was therefore not “contrary to reason or without a reasonable basis in law and fact.” See Ario, 618 F.3d at 287 (citation omitted). Thus, the District Court did not abuse its discretion by denying Defendants’ Rule 11 motions.

Ill

For the foregoing reasons, we will affirm.

      .Defendants also, asserted Plaintiffs' counsel falsified a document by changing the format of an e-mail from a parent of a former member of the wrestling team into a document that looked like a letter, and then sent it along with a cover letter to its author, soliciting information about Getz and misconduct at the School District. The record does not show that Plaintiffs submitted the letter or e-mail to the District Court.

      . Plaintiffs do not appeal the orders granting Defendants’ motions for summary judgment and declining to exercise supplemental jurisdiction over the state law assault and battery claim.

      . The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

      . The rale may also be invoked "if a party fails to comply with the rule after a specific direction to comply from the court.” Stackhouse, 951 F.2d at 30. The record does not indicate that the District Court instructed Plaintiffs to file a response to the School Defendants’ motion.

      . A district court has the authority to "defer its ruling” on a Rule 11 motion until “final resolution of the case.” Fed. R. Civ. P. 11, Advisory Committee's Note to 1993 Amendment. Thus, it is hard to say a party asking a court to defer such a ruling is not responding to the sanctions motion.

      . Fed. R. Civ. P. 11(b) provides:
      By presenting to the court a pleading, written motion, or other paper—whether by signing, tiling, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

      (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
      (3) the factual contentions have-evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery..;.
      Fed. R. Civ. P. 11(b)(2)—(3). If a court determines that Rule 11(b) has been violated after notice and an opportunity to respond, it "may impose an appropriate sanction on any attorney; law firm, or party that violated the rule or is responsible for the violation.” Id. 11(c)(1).

      . We have explained that the standard under Rule 11 is “stringent” because sanctions “1) are in derogation of the general American policy of encouraging resort to the courts for peaceful resolution of disputes, 2) tend to spawn satellite litigation counter-productive to efficient disposition of cases, and 3) increase tensions among the litigating bar and between [the] bench and [the] bar.” Doering v. Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988) (alterations in original) (citations and internal quotation marks omitted).

      . In addition, many of the alleged falsehoods Defendants rely upon are immaterial. For example, whether C.M.’s toes were touching the ground or not, there was evidence to support the allegation that C.M. was lifted up. See Fed. R. Civ. P. 11, Advisory Committee’s Note to 1993 Amendment (stating that "Rule 11 motions should not be made or threatened for minor, inconsequential violations of the standards prescribed by subdivision (b)”).
      Other alleged misrepresentations occurred during depositions, in response to interrogatories, and to and about health care providers, or involved counsel’s act of changing the e-mail into a document that resembles a letter. These incidents are not sanctionable under Rule 11 because they arose in the context of discovery and thus are not within the scope of Rule 11. Fed. R. Civ. P. 11(d) (stating that Rule 11 "does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37”); see also Landon v. Hunt, 938 F.2d 450, 453 (3d Cir. 1991) ("We have consistently held that Rule 11 sanctions are proper only in situations involving a signed pleading.” (citation and emphasis omitted)).

      . The District Court also did not err in noting that Defendants' Rule 11 motions were, essentially, a waste of judicial resources, and that counsel in this case "ha[d] clogged the docket with numerous motions for sanctions, motions for discovery and even a motion to disqualify counsel.” App. 4. While the focus of Rule 11 is on whether a claim is wholly without merit, and is not dictated by whether resources will be expended in deciding the motion, Rule 11 motions should conserve rather than misuse judicial resources. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 99 (3d Cir. 1988) ("Rather than misusing scarce resources, [the] timely filing and disposition of Rule 11 motions should conserve judicial energies.”). Thus, the District Court appropriately noted the history of counsels’ conduct in this case and the importance of deciding the merits of the dispute, rather than ancillary issues.