author: MANION, Circuit Judge.

text:
    DND INTERNATIONAL, INC., Petitioner, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.
    No. 14-3755
    United States Court of Appeals, Seventh Circuit.
    Argued September 24, 2015
    Decided December 15, 2016

      David L. LaPorte, Attorney, LaPorte & Associates, Flossmoor, IL, for Petitioner.
    Katherine Twomey Allen, Matthew M. Collette, William Ernest Havemann, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondent.
    Before MANION, ROVNER, and HAMILTON, Circuit Judges.
   MANION, Circuit Judge.

DND International is a trucking company whose operations were frozen in April 2014 when the Federal Motor Carrier Safety Administration (FMCSA) declared DND an imminent hazard and gave it only a few hours to pull its trucks off the road. This case started with a tragic accident on an unlit road on the night of January 27, 2014, when driver Renato Velasquez of DND International crashed his semi-truck into two emergency vehicles and another semi which were stopped on an. Illinois highway. An Illinois Toll Authority employee was killed and a police officer was seriously injured. As a result of this tragedy, the FMCSA immediately revoked Velasquez’s commercial-driving privileges.

The FMCSA then opened a company-wide investigation into whether DND’s drivers were following federal, regulations designed to keep exhausted drivers off the roads. This investigation went on for approximately two months, and it appears to have been quite thorough. It entailed many interviews, examination of. records, verification of statistics, and a number of interactions among FMCSA personnel. In fact, at the conclusion of the investigation, the Field Administrator of the Midwestern Service Center, Darin Jones, in consultation with the FMCSA Director of Enforcement, legal counsel, and FMCSA headquarters, spent one full week reviewing all relevant information to ensure all the results were accurate before he made his decision to issue an imminent-hazard out-of-service order, also known as an IHOO-SO.

Significantly, all during the two-month investigation DND was permitted to continue normal operations. It was later determined that during the two-month period there were two or three minor problems, but otherwise the company operated fully and efficiently without incident. Nevertheless, on April 1, 2014, the FMCSA issued an IHOOSO without warning, directing DND to immediately halt its trucking operations nationwide. This was not an order telling the company it must conclude all deliveries and not dispatch new deliveries or pickups. Rather, trucks were ordered to immediately stop within eight hours, no matter where the trucks were, • and no matter what loads were in the process of being delivered.

DND petitioned for administrative review of the IHOOSO. In response, an administrative law judge (ALJ) opened a hearing nine days after the freeze order issued and rendered his decision after another six days. The ALJ'ultimately found that the IHOOSO should not have been issued, and he revoked it, noting that the IHOOSO was an effective “death penalty” to this small company.' As best we can tell from the record and from the oral argument, the company has ceased doing business during the pendency of this action. The sudden halt to the company’s operations put the company out of business. As shown below, this petition for review does not focus on the irretrievable damage suffered by DND, but rather seeks to correct a decision of an assistant administrator that upheld the ALJ grant of relief to DND. As a result, the case is moot and this court lacks the jurisdiction to provide DND any relief. Thus, we dismiss the petition for review for want of Article III standing.

I. Background

On January 27, 2014, DND driver Rena-to Velasquez was passing through DuPage County, Illinois on Interstate 88 when he crashed into a semi-truck and two emergency vehicles with their lights flashing. In the resulting compliance review, the FMCSA found that Velasquez was driving more hours than federal regulations allow. The review also disclosed that during the week before the accident, Velasquez falsified his duty-status log four times. He was declared an imminent hazard to the public on February 10, 2014, and ordered to immediately stop commercial driving.

Although DND’s other drivers were allowed to continue operating, the FMCSA’s compliance review was not limited to Velasquez. The agency found that some other DND drivers had similar violations from driving more hours than allowed or falsifying duty-status logs. Duty-status logs should reflect where drivers are located at a given time. These are strict-liability regulatory violations. False records can thus reflect intentional wrongdoing; they can also result inadvertently when a driver is relying on his imperfect memory to report when and where he drove. The FMCSA examines these records because,, by tracking driving hours and locations, the government intends to keep exhausted truckers off the road.

The FMCSA’s company-wide compliance review showed several regulatory violations among DND drivers as' a group. Three times, DND drivers drove more hours than allowed. And three times, duty-status logs were inaccurate. The FMCSA did not find these violations merited the “critical” safety rating, which would have required DND to halt operations.

Instead, as a result of its compliance review, the FMCSA issued the “conditional” safety rating to DND on March 21. This particular type of safety rating allowed DND to continue its trucking operations. This rating also issued 54 days after the Interstate 88 accident that triggered the FMCSA’s compliance investigation. On March 21, the agency met with DND, which initiated changes. On March 28, DND sent the agency an email stating that it was installing electronic on-board recorders (EOBRs) in every single one of its commercial vehicles. EOBRs are integrated into truck engines and automatically generate duty-status records, which means that DND drivers have no way to falsify reports on how many hours they are driving, when, and where. EOBRs are also a technology that the FMCSA recommends to reduce fatigued driving.

Thus, by all accounts, the safety risk that DND posed was, by the end of March, substantially resolved by cooperation between DND and the FMCSA. The offending driver had been removed. DND was under investigation, and it was initiating additional safety protocols. Further, the company had operated for three months without incident.

Yet on April 1, the FMCSA suddenly issued an imminent-hazard order against DND. DND had, in the view of the FMCSA, been operating for three months since the incident as an imminent hazard. The FMCSA had expressly determined that DND did not have “adequate” safety management controls in place, and allowed the company to operate. Then, on April 1, it reiterated this same conclusion, and issued the order.

This order was served at 2:38 PM on April 1. DND was allowed exactly eight hours to halt operations and report the location of every DND truck to an FMCSA administrator. DND had 30 to 35 trucks on the road that day. In the words of the ALJ, this order amounted to a “death penalty” for DND, a small operation that still has not recovered. In addition to citing the log-falsification violations, this IHOOSO stated that DND had a record of unsafe driving in the six months preceding the order. While DND drivers had some problems, this was their record: one seatbelt violation, one lane-change ticket, and two speeding tickets over 2.7 million miles driven by many drivers. To say the least, these violations were rare.

Further, the FMCSA field administrator claims that he had already decided to issue the imminent-hazard order over a week before April 1st, and he used this week to confer with his enforcement-director, legal counsel, and headquarters. After parking its trucks as ordered, DND contacted legal counsel and on April 4 petitioned for review of the imminent-hazard order. The ALJ determined that agency review was statutorily required within 10 days. She ruled that the triggering date was April 4, when DND served its petition, so she ordered that a hearing and decision both happen by April 14. On April 8, DND told the ALJ that it would not waive the “ten-day statutory requirement that [it receive] a decision within the ten days.” The ALJ set a hearing to begin on April 10 and end on April 14, with an ALJ ruling on the IHOOSO scheduled to issue on April 14.

DND’s case, was then reassigned to a separate ALJ, who opened an administrative hearing on April 10. It continued on April 11,14, and 15, with a weekend break. Due to administrative facility-use limits, the hearing ended at 5 PM each day, and there was no option to continue over the weekend. On April 14, the ALJ asked DND to grant a one-day waiver of the April , 14 deadline, and the company agreed. On April 15, DND asked the ÁLJ for a decision that day, but the judge was not ready to rule.

. The next day, April 16, the ALJ issued a 66-page decision, which found in DND’s favor on both the procedural and substantive issues. First, regarding procedural rights, the FMCSA argued that review of the imminent-hazard order must only start within 10 days. On this issue, the ALJ wrote that the law requiring an ALJ decision on an FMCSA freeze order “has been settled since ... 1997. We are bound by the case law of the Department.” According to his decision, long-standing DOT precedent required a decision on the freeze order within 10 days. Second, the ALJ also ruled for DND on its substantive rights, by rescinding the imminent-hazard order as improperly issued. Among his other findings, the ALJ concluded that the FMCSA field administrator’s “testimony contradicted most of the allegations” in the IHOOSO he issued.

As it had won all the relief it requested, DND had neither method nor motive to appeal this ALJ order. The FMCSA did appeal, however, to its Assistant Administrator, As he wrote in his final decision, the FMCSA appealed these distinct issues: (1) the ALJ’s finding “that the imminent hazard statute, due process, and the Administrative Procedure Act (APA) required the Agency to complete a formal administrative review no longer than 10 days after issuance of -an. imminent hazard order,” and (2) the ALJ’s decision to rescind the freeze order. The FMCSA sought different relief on each issue: it wanted a removal of the 10-day deadline requirement for IHOOSO review and requested reinstatement of the IHOOSO issued against DND.

Six months after the ALJ’s order, the Assistant Administrator overturned the ALJ ruling on the 10-day deadline, while upholding the decision to rescind the IHOOSO, Based on the Assistant Administrator’s readings of Section 521 and the Fifth Amendment, he concluded that DND was only entitled to a post-deprivation hearing which began within 10 days of its request for review. Yet, he concluded, the IHOOSO was improper on the merits, because the Field. Administrator failed to prove that DND’s operation constituted an imminent hazard.

In practice, none of this affected the substantive rights of DND, which had already received all the relief to which it was entitled on April 16. At this point, the dispute and ruling of the Assistant Administrator might be best characterized as intra-agency decision-making. Yet, it is this decision which is before the court, on a petition for review pursuant to 49 U.S.C. § 521(b)(9), which authorizes this court to review .final orders on a substantial evidence. standard. Today we dismiss this case for lack of standing.

II. Discussion

The parties extensively disputed whether or not the FMCSA had a statutory obligation to start or also to decide whether an IHOOSO was properly issued within ten days. This is a serious issue which certainly affects the ability of companies to freely operate. And, in this case, there is no doubt that delay on the part of the agency appears unjustified and particularly damaging. Nevertheless, we must always ensure that we have jurisdiction over any case.

Article III of the Constitution limits the jurisdiction of the federal courts to deciding “cases” and “controversies,” and the requirement of an actual controversy must exist not merely at the initiation of the action, but throughout all stages of the litigation. Kingdomware Techs., Inc. v. United States, — U.S. —, 136 S.Ct. 1969, 1975, 195 L.Ed.2d 334 (2016); Chafin v. Chafin, — U.S. —, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013); Milwaukee Police Ass’n v. Bd. of Fire & Police Comm’rs of City of Milwaukee, 708 F.3d 921, 929 (7th Cir. 2013). In order to meet that requirement, “a litigant must show (1) that she has ‘suffered a concrete and particularized injury that is either actual or imminent’; (2) ‘that the injury is fairly traceable to the defendant’; and (3) ‘that it is likely that a favorable decision will redress that injury.’ ” Milwaukee Police Ass’n, 708 F.3d at 926 (quoting Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007)). “Plaintiffs must demonstrate a ‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

Because DND already received all of the relief it sought — the rescission of the imminent hazard order and the notice of revocation — DND is not subject to any ongoing injury that this court is equipped to remedy. In fact, in its request for relief in this petition for review, DND does not even seek any relief related to itself. First, DND “asks that this Court hold that 49 U.S.C. § 521(b)(5)(A) requires that, within 10 days of the issuance of an IHOOSO, an ALJ issue an Initial Decision, after a review conducted pursuant to § 554 of the Administrative Procedures Act.”

That request is merely for an advisory opinion that would only affect future regulated entities. Perhaps because it is no longer operating, DND has never sought declaratory relief in this matter; its argument for what must occur within 10 days was one of the two grounds on which it sought to have the imminent hazard order rescinded, not the basis for any additional form of relief. Milwaukee Police Ass’n, 708 F.3d at 926 (“federal courts are prohibited from rendering advisory opinions; they cannot divine on ‘abstract dispute[s] about the law.’ ”) (quoting Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct 576, 175 L.Ed.2d 447 (2009)).

And, to the extent the Assistant Administrator erred in his analysis, that hypothetical error did not affect the substantive rights of DND on appeal from the decision of the ALJ. The appeal from the ALJ to the Assistant Administrator is best characterized as internal agency process, a system by which the agency itself works out its own, internal view about the contours of the law. Indeed, there seems no real reason that DND needed to have been privy to the decision of the Assistant Administrator at all.

Once the IHOOSO was lifted, there was no longer any ongoing injury redressable by this court. Certainly, in “exceptional,” limited circumstances we recognize an exception to mootness doctrine where injuries are “capable of repetition, yet evading review” Spencer v. Keruna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). In this case, however, the limited exception is inapplicable. If DND’s complaint is that at the time of the action, an IHOOSO is in effect and the agency is dragging its heels in violation of the statutory deadline, DND can sue to compel a decision by the agency. If the complaint is that DÑD reasonably anticipates the agency to do something it contends violates the statutes, DND can sue for declaratory relief to clarify agency duties. In other words, there is nothing here that evades review.

Another way of approaching the defect in this case is by asking what it is DND alleges that the agency did wrong. Since this is a petition for review of an agency decision. DND does not, and need not, allege that the missed deadline materially harmed it. Rather, in the action before us what DND in effect alleges is that the legal reasoning of the Assistant Administrator itself harms DND; that the FMCSA exceeded its statutory deadline to issue a decision, and then issued a correct decision, but based upon faulty reasoning.

It is certainly true that in completing its IHOOSO review on April 16, the agency exceeded its ten-day statutory deadline by five days. Pursuant to 49 U.S.C. § 521(b)(5)(A), DND was entitled to “opportunity for review ... not later than 10 days after issuance of [an imminent-hazard] order.” The corresponding regulation uses essentially identical language to require 10-day review. See 49 C.F.R. § 386.72(b)(4). Although the agency observed at oral argument that meeting a 10-day deadline can be difficult, the challenge of honoring deadlines that protect enjoined parties’ rights is hardly unique to this situation. The agency could opt to continue hearings beyond its 5 PM closing time in urgent cases like this or otherwise adjust its practices to satisfy the statutory deadline. With this extraordinary power, even if complying with the statute is challenging for the agency, it is absolutely vital to ensure that the procedural mandates for IHOOSO review are honored. Reviewing a shut-down of an overland shipping company is not something an agency should slow-walk.

To the extent DND complains that the IHOOSO could come at any time during an open investigation, it has a real concern that should not be minimized. Open investigations — placing companies or state governments into essentially agency receivership — can impose heavy costs on business. To the extent these open investigations are reasonable results of scarce resources, broad agency mandates, and managerial practices of the executive branch, they are unreviewable by the federal courts. But sometimes agency delay is not reasonable, and this is not to say that “arbitrary and capricious” agency action is unreviewable.

It might be that the Assistant Administrator was wrong about the statutory requirements of 49 U.S.C. § 521(b)(5)(A). Perhaps the plaintiffs legal theory is correct. But when the Assistant Administrator construed that-statute, DND was not affected by his decision either way. It was a party to that agency decision only on paper. Had the company remained in business and recovered from the regulatory burden, it would have been free to operate.

Accordingly, this case is dismissed for want of Article III standing.

      . If DND’s complaint (something which appears quite plausible on the facts of this case) is that the agency was acting arbitrarily in its issuance of an IHOOSO, and that DND was damaged by this, DND has an available cause of action in the form of a Bivens claim. Bivens v. Six Unknown Names Agents of Federal Bureau of Narotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This is certainly a high bar; if DND alleged financial damage in addition to the bare statutory violation, it might have had its day in court.

      . The FMCSA urges that DND waived its 10-day deadline at least until April 15. The party affected by an imminent-hazard order can consent to extending the statutory timeline, as DND did here. DND agreed on April 14 to extend the deadline by one day, in response to the ALJ’s prompting. But even that new deadline was missed. Further, DND was operating under the review structure established by the agency, and the agency chose to start the 10-day clock when DND petitioned, rather than starting the clock when it issued the IHOO-SO. Thus, even if we apply a one-day extension, April 12 should have been the last date for the AU to complete his review.

      . Again, to the extent DND claims that the company-wide IHOOSO was arbitrary or capricious, or some sort of unlawful targeting by the agency, DND might have an available Bivens cause of action,


source: Caselaw Access Project

author: EASTERBROOK, Circuit Judge.

license: Public Domain

text:
    ERIEM SURGICAL, INC., Plaintiff-Appellant, v. UNITED STATES of America and John Koskinen, Commissioner of Internal Revenue, Defendants-Appellees.
    No. 14-3540
    United States Court of Appeals, Seventh Circuit.
    Argued November 1, 2016
    Decided December 16, 2016

      Elliot S. Wiczer, Attorney, Wiczer & Sheldon, LLC, Northbrook, IL, for Plaintiff-Appellant.
    Marion E.M. Erickson, Attorney, Department of Justice, Tax Division, Appellate Section, Washington, DC, for Defendants-Appellees.
    Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Micrins Surgical, Inc., went out of business on March 13, 2009, without paying all of its taxes. Eriem Surgical, Inc., was incorporated the same day, purchased Mic-rins’ inventory, took over its office space, hired its employees, used its website and phone number, and pursued the same line of business: the sale of surgical instruments. Bernhard Teitz, the president and 40% owner of Micrins, continued to play a leading role in Eriem, though its sole stockholder is Carol Teitz, Bernhard’s wife. Eriem uses “Micrins” as a.trademark. (Bernhard asserts that he owns this mark and licensed it to Eriem.) The Internal Revenue Service treated Eriem as a continuation of Micrins and collected almost $400,000 of Micrins’ taxes from Er-iem’s bank accounts and receivables.. Er-iem responded with this wrongful levy suit under 26 U.S.C. § 7426(a)(1). After a bench trial, the district judge concluded that Eriem is indeed a continuation of Micrins and that the levy therefore is valid.

The Supreme Court has never decided ’whether state or federal law governs corporate successorship when the dispute concerns debts to the national government. One might infer from United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), that federal law controls but generally absorbs state law, unless it is hostile to national interests. But, a generation after Kimbell Foods, the Supreme Court noted a conflict among the circuits on the subject and postponed its resolution, in an opinion that did not cite Kimbell Foods. See United States v. Bestfoods, 524 U.S. 51, 63 n.9, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The next year the Court held in Drye v. United States, 528 U.S. 49, 120 S.Ct. 474, 145 L.Ed.2d 466 (1999), that in tax cases state law determines the taxpayer’s rights in property that the IRS seeks to reach, while federal law determines which of those rights the IRS can collect on. Neither Eriem nor the IRS contends that the Internal Revenue Code says anything about corporate successorship, so it seems best to apply state law. (Eriem has not contended that it would fare better under federal law — if there is any on this subject.)

The district court concluded that Bernhard has been running Eriem, which is conducting the same business as Micrins notwithstanding Carol’s ostensible ownership and the change of focus from instruments used in health care to instruments used by cosmetic surgeons.. Eriem insists that Carol is the real as well as the ostensible owner, that the switch to instruments for cosmetic surgery marks a substantial change' of business, and that it is irrelevant that Eriem bought all of Micrins’ assets, hired its workers, occupies the same premises, and uses the Micrins trademark, website, phone number, and email address. But under Illinois law, which uses a multi-factor balancing standard to determine successorship, see Steel Co. v. Morgan Marshall Industries, Inc., 278 Ill.App.3d 241, 214 Ill.Dec. 1029, 662 N.E.2d 595 (1996), these contentions are matters for the trier of fact. The district court’s conclusion that Eriem is still conducting the Micrins business is not clearly erroneous. That successorship is the “ultimate issue” does not make it less a finding of fact. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986).

According to Eriem, the district judge made a legal error by failing to give dis-positive significance to the change of ownership. Bernhard owned only 40% of Micrins’ stock; he claims to own none of Eriem’s, but even if all of his wife’s shares are imputed to him the difference between 40% ownership of Micrins and 100% of Eriem means that they just cannot be the same business. Eriem contends that under Vernon v. Schuster, 179 Ill.2d 338, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997), any change in ownership prevents treating one firm as another’s successor. But that’s not what Vernon said and is not how it has been understood.

There was a substantial change of ownership in Steel Co., in addition to the fact that a former stockholder was replaced by his spouse as stockholder of the new firm, and the court held that this did not prevent treating the new firm as the old one’s successor when all other considerations pointed that way. We read Vernon (as did Steel Co.) as holding that a complete change of ownership prevents a finding of successorship, not that complete identity of ownership is essential to successorship. The district court’s conclusion that Carol Teitz serves as a proxy for her husband means that there has not been a complete change of ownership; this, too, was a conclusion of Steel Co.

We could imagine an argument that, because Bernhard owned only 40% of Mic-rins’ stock, Eriem should be liable for only 40% of its taxes. But Eriem has taken an all-or-none stance; it is unwilling to concede owing the Treasury a penny. Given a choice between all and none, the district court did not commit either a legal or a factual error in electing “all.”

Affirmed


author: WILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jamie GOLDEN, Defendant-Appellant.
    No. 16-1232
    United States Court of Appeals, Seventh Circuit.
    Argued September 19, 2016
    Decided December 16, 2016

      Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana, IL, Greg-gory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.
    Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
   WILLIAMS, Circuit Judge.

Shortly after Jamie Golden was released from prison, the government petitioned for revocation of his supervised release. While in jail pending the conclusion of revocation proceedings, Golden was involved in a prison fight in which he repeatedly battered a fellow inmate. As a result, the district judge found that he had committed an aggravated battery — a Grade A violation of his supervised release — and revoked his release. '

On appeal, Golden claims that the district judge erroneously concluded that an aggravated battery had occurred, and that even if it had, it did not constitute a Grade A violation. We disagree. Golden unquestionably battered the other inmate, and because it occurred on public property (a county jail), the battery was aggravated. And the Grade A label was appropriate, since Golden’s conduct qualifies as a “crime of violence” under the U.S. Sentencing Guidelines.

Golden also claims that the district judge failed to make the requisite factual findings that supported the duration and conditions of his newly imposed supervised release. But Golden waived this argument by asking for the duration he ultimately received and by affirmatively withdrawing his objections to the conditions he now challenges. So we affirm the district judge’s revocation of Golden’s initial supervised release and her imposition of new supervised-release conditions.

I. BACKGROUND

Jamie Golden was convicted of conspiring to distribute cocaine in violation of federal law and served approximately eight years in prison. In the weeks following his release from prison,. Golden allegedly stole $1500 from the gas station where he was working, repeatedly failed to report to the federal probation office, and failed to submit to two drug tests. This prompted the office to petition the district judge to revoke his supervised release. The judge issued an arrest warrant, and Golden was arrested.

While detained at the Sangamon County Jail pending a revocation hearing, Golden and several other inmates attacked a fellow inmate named Louis Brown, who was allegedly bullying others. In a videotaped recording of the attack, Golden can be seen throwing Brown to the ground twice and repeatedly punching and kicking Brown in or near his head.

In the wake of this incident, the State of Illinois charged Golden with aggravated battery and mob action, which the probation office incorporated into a supplemental revocation petition. After holding a revocation hearing, the district judge found that Golden had committed both aggravated battery and mob action, concluded that both offenses were Grade A violations of his supervised release, and sentenced Golden to 42 months’ imprisonment and three years of supervised release with various conditions. This appeal followed,

II. ANALYSIS

A. No Abuse of Discretion in Revoking Golden’s Supervised Release

On appeal, Golden maintains that the district judge erroneously concluded that he committed aggravated battery -and mob action, and that even if he did, neither violation constitutes a Grade A violation of his supervised release. We review the district judge’s revocation for abuse of discretion and any related factual findings for clear error, United States v. Preacely, 702 F.3d 373, 375 (7th Cir. 2012), and the district judge’s interpretation of the U.S. Sentencing Guidelines de novo, United States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 2011).

1. Golden Committed Aggravated Battery

As a condition of his release from prison, Golden was barred from “commit[ting] another federal, state or local crime.” The government bore the burden of establishing that Golden violated the terms of his supervised release by committing such an offense, and a preponderance of the evidence was necessary for the district judge to agree. 18 U.S.C. § 3583(e)(3); see also, e.g., United States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014). According to the government, Golden committed two state law crimes: aggravated battery and mob action. In Illinois, a battery occurs if an individual unjustifiably “causes bodily harm to an individual” or “makes physical contact of an insulting or provoking nature” with another. 720 Ill. Comp. Stat. 5/12-3. A battery can be aggravated if, among other things, it causes “great bodily harm” or is committed on “public property.” 720 Ill. Comp. Stat. 5/12-3.05(a)(1), (c).

The district judge did not abuse her discretion in concluding that Golden committed an aggravated battery by battering Brown on public property. Golden concedes that he committed a battery, and that he did so on public property — -a county jail. Nevertheless, he claims that the public-property path to aggravated battery is unavailable because the government somehow failed to prove that the Sangamon County Jail is public property.

This argument has no merit. The proposition is so obvious that a detailed discussion of it by the parties would have been a waste of time. Cf. People v. Messenger, 396 Ill.Dec. 764, 40 N.E.3d 417, 423 (App. Ct. 2015) (“This court has found no decision that characterizes a county jail as anything other than public property. We see no reason to rule that a county jail is not public property under the aggravated battery statute or that it is, per se, an issue subject to reasonable dispute.”); People v. Hill, 409 Ill.App.3d 451, 351 Ill.Dec. 85, 949 N.E.2d 1180, 1183-84 (2011) (“[T]he [county] jail was property owned by the government and thereby constituted public property.”); People v. Childs, 305 Ill. App.3d 128, 238 Ill.Dec. 490, 711 N.E.2d 1151, 1159-60 (1999) (“Because this conduct occurred on public property, [a county jail,] it constitutes aggravated battery.”).

In defense of his position, Golden asserts that private companies such as Corrections' Corporation of America operate certain detention centers in the United States. However, he has not suggested that any such company operates any county jail in Illinois, nor has he attempted to explain under what circumstances such an operation can convert carceral property from “public” to “private.” Golden also claims, incorrectly, that the district judge failed to find that the Sangamon County Jail was a public property — she did, albeit implicitly — and even if the judge had failed to do so, that would not preclude us from reaching the same conclusion on appeal. See United States v. Thomas, 934 F.2d 840, 843 (7th Cir. 1991) (“Under longstanding doctrine, an appellate court may affirm on any ground that finds support in the record.”); cf. Messenger, 396 Ill.Dec. 764, 40 N.E.3d at 423 (“The Illinois courts ... have regularly sanctioned the use of judicial notice to establish an element of the offense.”).

Because the district judge did not err in concluding that Golden committed aggravated battery by battering Brown on public property, we need not consider the government’s alternative claim that Golden committed aggravated battery by causing Brown “great bodily harm.” Nor must we determine whether the district judge abused her discretion in finding that Golden committed mob action, since, as explained below, the aggravated battery finding alone was sufficient to revoke Golden’s supervised release.

2. Aggravated Battery Is Grade A Violation

Golden argues that assuming he committed aggravated battery, this offense did not constitute a Grade A violation of his supervised release so a revocation of his supervised release was not required. A Grade A violation has occurred when an individual has committed “conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that ... is a crime of violence.” U.S.S.G. § 7B1.1(a)(l). The occurrence of a Grade A violation mandates revocation and typically results in a longer term of imprisonment than a Grade B or C violation. Id. §§ 7B1.3(a)(1), 7B1.4(a).

On appeal, Golden apparently concedes, correctly, that aggravated battery is punishable by at least one year in prison. See 720 Ill. Comp. Stat. 5/12-3.05(h); 730 Ill. Comp. Stat. 5/5-4.5-40(a). Instead, Golden maintains that aggravated battery is not a “crime of violence” under the U.S. Sentencing Guidelines. In doing so, Golden rightly focuses on the elements clause. Aggravated battery is not an enumerated offense under the Guidelines, and the Guidelines’ residual clause is off limits. See United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc). Golden claims that the elements clause, too, is not relevant because aggravated battery under Illinois law encompasses conduct that is both violent and non-violent. See United States v. Evans, 576 F.3d 766, 767 (7th Cir. 2009) (per curiam).

Critically, Golden’s argument assumes that the categorical approach applies — i.e., that we must examine the elements of the generic aggravated-battery offense without regard to Golden’s actual conduct. But that approach is squarely foreclosed both by the Guidelines themselves and by our case law. See U.S.S.G. § 7B1.1 App. Note 1 (“The grade of violation does not depend upon the conduct that is the subject of the criminal charges ... of which the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant’s actual conduct.”); United States v. Trotter, 270 F.3d 1150, 1155 (7th Cir. 2001) (“Application Note 1 tells the district judge to consider what the person on supervised release did, rather than what crimes he has been charged with.”).

Golden notes, in response that the Ninth Circuit has declared that the categorical approach should apply. See United States v. Willis, 795 F.3d 986, 992 (9th Cir. 2015). However, that opinion is not controlling and conflicts with at least two of our sister circuits. See id. at 993 n.5. (citing United States v. Carter, 730 F.3d 187, 192 (3d Cir. 2013); United States v. Cawley, 48 F.3d 90, 93 (2d Cir. 1995)). Perhaps more importantly, Golden makes no attempt to explain why we should jettison Trotter in favor of Willis, and we decline to invent a reason for him. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2013) (observing the well-recognized principle that underdeveloped arguments are waived on appeal).

Turning to Golden’s actual conduct, the videotape of the incident and witness testimony establish that Golden repeatedly punched, kicked, and body slammed Brown. So Golden clearly “use[d] ... physical force against the person of another,” U.S.S.G. § 4B1.2(a)(l), and, in doing so, committed a Grade A violation of his supervised release.

B. Golden Waived Any Objections to Duration and Conditions of Supervised Release

Golden also argues that thé district judge erred in imposing a three-year duration of supervised release and four of the various conditions. We review a sentence “imposed following revocation of a defendant’s supervised release to ascertain whether it was plainly unreasonable,” based on 18 U.S.C, § 3583, which largely incorporates the factors listed in 18 U.S.C. § 3553(a). United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007) (citation and internal quotation marks omitted).

However, we need not reach the merits of Golden’s claim. Golden specifically requested the three-year duration of supervised release he received. That constitutes waiver. See United States v. Cary, 775 F.3d 919, 927 (7th Cir. 2015) (“By asking for the very condition the court subsequently imposed, [the defendant] waived any argument against it.”). So, too, with regard to the conditions themselves, since Golden informed the judge that if she imposed the conditions that were circulated to the parties prior to the revocation hearing — which included the same four conditions that he challenges on appeal— Golden would withdraw his prior objections. See United States v. Schrode, 839 F.3d 545, 555 (7th Cir. 2016) (affirmative withdrawal of an objection to conditions of supervised release constitutes waiver).

III. CONCLUSION

The judgment of the district court is Affirmed.

      . Although the Defendant’s legal name is Jamie Golson, the district court proceedings and the appeal were both captioned under the name "Jamie Golden.” We will refer to him by the latter name to minimize any confusion.


author: LOKEN, Circuit Judge.

text:
    CITY OF OZARK, ARKANSAS, a municipal corporation, Plaintiff-Appellee v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellant
    No. 16-1186, No. 16-1187
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: December 19, 2016

      Counsel who presented argument on behalf of the appellant was Jeremy M. Ber-man, of Omaha, NE. The following attorneys also appeared on the appellant brief; Robert S. Shafer, of Little Rock, AR., Jamie Huffman Jones, of Little Rock, AR.
    Counsel who presented argument on behalf of the appellee was Andrew Mikeal Taylor, of Little Rock, AR. The following attorney also appeared on the appellee brief; Tasha C. Taylor, of Little Rock, AR.
    Before LOKEN, GRÜENDER, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

The City of Ozark, Arkansas sued Union Pacific Railroad Company in state court seeking an order requiring Union Pacific to restore a public at-grade rail crossing or, alternatively, allowing the City to condemn Union Pacific’s land across that public crossing. Union Pacific removed the action, and the parties filed cross motions for summary judgment. The district court granted the City summary judgment and a permanent injunction, rejecting Union Pacific’s contention that the Interstate Commerce Commission Termination Act (“ICCTA”) grants the Surface Transportation Board (“STB”) exclusive jurisdiction over the City’s claims. “[P]reemption is not at issue,” the court ruled, because the crossing was unlawfully closed. City of Ozark, Ark. v. Union Pac. R.R., 149 F.Supp.3d 1107, 1116 (W.D. Ark. 2015).

Union Pacific appeals this preemption ruling, an issue we review de novo. See Keller v. City of Fremont, 719 F.3d 931, 937 (8th Cir. 2013), cert. denied, — U.S. —, 134 S.Ct. 2140, 188 L.Ed.2d 1125 (2014). We conclude that ICCTA’s express preemption provision, 49 U.S.C. § 10501(b), applies to this dispute. We.further conclude Union Pacific has made a strong showing that the remedy the City seeks would “impede rail operations or pose undue safety risks,” the STB’s governing preemption standard. See Maumee & W. R.R. & RMW Ventures, LLC, Fin. Dkt. No. 34354, 2004 WL 395835, at *2 (S.T.B. Mar. 2, 2004). We therefore remand to the district court with instructions to rule on Union Pacific’s motion to dismiss the City’s amended complaint for lack of jurisdiction unless the City obtains a ruling from the STB that it lacks or declines exclusive jurisdiction over this dispute.

I.

The City of Ozark sits on a bend in the Arkansas River. Union Pacific owns and operates railroad tracks on a right of way running. east-west between the City and the river, a mainline track and a long side track used to store rail cars and to place local trains that “meet” a train on the main track. Before 1970, an at-grade crossing (“the Crossing”) allowed Ozark residents to access a small neighborhood south of the tracks that included several houses, a horse barn, a lumber company, and the City’s dump. In the late 1960’s, most of this neighborhood was flooded when the Army Corps of Engineers constructed the McClellan-Kerr Arkansas River Navigation System.’ This reduced use of the area south of the tracks to sporadic recreation, but some residents continued to use the Crossing, and Union Pacific locomotives continued to sound their horns when approaching it. By 2001, at least one Ozark resident had complained about the train whistles. Ozark’s Mayor contacted Union Pacific, which agreed — no doubt readily-— to remove the Crossing at its own expense. The Mayor informed Ozark City Council members. No member objected, but the Council did not pass an ordinance vacating a public street. See Ark. Code Ann. § 14-301-304(a) (1987). Union Pacific closed the Crossing in 2001.

Some years later, the City formulated plans to develop land along the Arkansas River, including construction of a marina or dock to encourage boaters to stop in Ozark, and recreational trails near and along the river, The City urged Union Pacific to reinstall the Crossing-at its expense. When Union Pacific refused, the City filed this action alleging that Union Pacific must restore the public Crossing it had unlawfully closed by not properly vacating a public street.

The City moved for partial summary judgment, seeking (i) a declaratory judgment that the Crossing was a public easement and Union Pacific violated Ark. Code Ann. § 14-301-301(a) by closing the Crossing without the ordinance required by § 14 — 301—304(a); (ii) an order requiring Union Pacific to reinstall the Crossing; and (iii) a permanent injunction barring Union Pacific from interfering with the City’s use of the Crossing. See Ozark, 149 F.Supp.3d at 1111. Union Pacific moved for summary judgment, arguing that ICCTA preempts the City’s state law claims and asserting the affirmative defenses of laches, waiver, and estoppel. Both parties submitted extensive evidence regarding the impact of restoring the Crossing on railroad operations and safety, as well as argument on the preemption issue.

After a lengthy summary judgment hearing, the district court granted judgment in the City’s favor. The court first ruled that the Crossing was a public easement over Union Pacific’s tracks and that Union Pacific violated Ark. Code Ann. § 14-301-301(a) by removing the Crossing without an ordinance vacating the public street as required by § 14-301-304(a). See id. at 1112-15. The court rejected Union Pacific’s ICCTA preemption defense, explaining:

At first blush, it may appear that the ICCTA is germane here, as reopening the Crossing to the public would certainly impact rail operations in some manner, due in part to Union Pacific’s use of a side track it installed at the area of the Crossing after 2001. However, preemption is not at issue because the Crossing was not closed legally to begin with.... Union Pacific’s lack of legal authority to close the Crossing is the controlling factor.

Id. at 1116. The court ordered Union Pacific to restore the Crossing “to its pre-2001 condition” at Union Pacific’s expense. Id. at 1120. It concluded the City’s alternative condemnation claim was moot. Id at 1111 n.2.

On appeal, Union Pacific argues that we must remand because the district court erred when it failed to apply the governing, fact-intensive ICCTA preemption test.

II.

Congress enacted ICCTA in 1995, replacing the Interstate Commerce Commission with the STB. “ICCTA repealed much of the economic regulation previously conducted by the ICC and by state railroad regulators working in conjunction with the ICC.” Iowa, Chicago & E. R.R. v. Washington Cty., 384 F.3d 557, 559 (8th Cir. 2004). To further the goal of limited state regulation of interstate rail transportation, Congress included a broadly worded preemption provision, codified at 49 U.S.C. § 10501(b):

(b) The jurisdiction of the [STB] over—
(1) transportation by rail carriers, and the remediés provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services,, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or. facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

Union Pacific is a “rail- carrier.”' See § 10102(5). “Transportation” is broadly defined to include, “property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail.” § 10102(9).

There has been extensive litigation before the STB and state and federal courts addressing the scope of ICCTA’s preemption provision. The STB has held that § 10501(b) applies to three types of state statutes, regulations, and judicial remedies. First, “any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations” is preempted. Second, “there can be no state or local regulation of matters directly regulated by the [STB]—such as the construction, operation, and abandonment of rail lines.” These two types of state regulation are “facially” or categorically preempted. Third, “[f]or state or local actions that are not facially preempted, the section 10501(b) preemption analysis requires a factual assessment of whether that action would have the effect of preventing or unreasonably interfering with railroad transportation,” CSX Transp., Inc., Fin. Dkt. No. 34662, 2005 WL 1024490, at *2-3 (S.T.B. May 3, 2005). The STB calls this third category “as-applied” preemption, but it is part of the agency’s interpretation of the express preemption statute. This court and other circuits have approved the STB’s approach as a reasonable, permissible interpretation of 49 U.S.C. § 10501(b). See Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1144-45 (8th Cir. 2015) (collecting cases).

Railroad crossing disputes are not uncommon; they arise in a variety of factual and legal contexts. The STB applies its as-applied standard to most crossing disputes, reflecting a pragmatic approach to the question whether it has exclusive jurisdiction over a particular, dispute:

[Rjoutine, non-conflicting uses, such as non-exclusive easements for at-grade road crossings, wire crossings, sewer crossings, etc., are not preempted so long as they would not impede rail operations or pose undue safety risks.... [C]ourts can, and regularly do (sometimes with input from the [STB] through referral) make determinations as to whether proposed eminent domain actions would impermissibly interfere with railroad operations.

Maumee, 2004 WL 395835, at *2. Courts agree that, although all railroad crossings affect rail transportation to some extent; “preemption claims in routine crossing cases fall into the category of as-applied preemption challenges.” Franks Inv. Co. LLC v. Union Pac. R.R., 593 F.3d 404, 413 (5th Cir. 2010) (en banc). Applying this analysis, when a state or federal court determines that the railroad has made no showing that a remedy allowing use of a particular crossing would unreasonably interfere with rail transportation, then the court may proceed to resolve the crossing dispute applying relevant state law contract, property, or condemnation principles. See id. at 415; PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 221-23 (4th Cir. 2009). However, if the court concludes that a proposed crossing easement would unreasonably interfere, then § 10501(b) grants the STB exclusive jurisdiction, and the lawsuit or condemnation proceeding must be dismissed or enjoined for lack of jurisdiction. See Union Pac. R.R. v. Chicago Transit Auth., 647 F.3d 675, 683 (7th Cir. 2011); Anderson v. BNSF Ry., 375 Ark. 466, 291 S.W.3d 586, 594 (2009); accord Harris Cty. v. Union Pac. R.R., 807 F.Supp.2d 624, 632 (S.D. Tex. 2011); TriCity R.B., Dkt. No. FD 35915, 2016 WL 5904750, at *9.(S.T.B. Sept. 12, 2016).

The district court concluded that ICCTA preemption does not apply — “is not at issue” — in this case, because the City seeks to restore a rail crossing that was closed in violation of state law. Neither the court nor the City cite authority supporting this conclusion. We emphatically disagree. Whether § 10501(b)(1) applies to preempt a state-law claim or remedy is a question of federal law that turns on congressional intent to broadly preempt state laws and remedies that interfere with “transportation by rail carriers.” The focus of the STB’s exclusive jurisdiction is interstate rail transportation, at present arid in the future. City of Lincoln v. Surface Transp. Bd., 414 F.3d 858, 861-62 (8th Cir. 2005); Tri-City, 2016 WL 5904750, at *7-8, ICCTA preemption does not depend upon the source of a state law claim. The claim is preempted if the requested remedy will, in the words of the STB’s governing test, “impede rail operations or pose undue safety risks.” Whether that interference with rail transportation arises from a public or private easement, or from opening a new crossing or restoring an abandoned crossing, is irrelevant to the federal preemption analysis. Thus, an order requiring Union Pacific to restore the Crossing “to its pre-2001 condition” because it was closed in violation of state law more than fifteen years ago is preempted if that restoration will unreasonably interfere with rail operatioris as they are conducted today or are likely to be conducted in the future. For these reasons, we agree with Union Pacific that the district court’s order must be reversed and the case remanded for a determination whether this crossing dispute is within the exclusive jurisdiction of the STB.

III.

As we have noted, the STB has encouraged courts to make the determination that a grade crossing dispute involves a “routine non-conflicting use” that is not preempted, in which case the court may proceed to resolve the crossing dispute based on applicable state law, as in Mid-Am. Locomotive & Car Repair, Inc., Fin. Dkt. No. 34599, 2005 WL 1326958, at *4 (S.T.B. Jun. 6, 2006). But in many cases, one or more of the parties involved in disputes involving crossings and other arguably non-conflicting uses have petitioned the STB for an order declaring the agency’s position on the preemption issue, and the agency has conducted Declaratory Order proceedings when appropriate. For example, in Wichita Terminal Ass’n, BNSF Ry. & Union Pac. R.R., Dkt. No. FD 35765, 2015 WL 3875937, at *2 (S.T.B. Jun. 22, 2015), the state trial court ordered the petitioning railroads to construct a crossing at a particular site, and the appellate court remanded, instructing the trial court to direct the railroads to petition the STB “to resolve any issues concerning the STB’s jurisdiction.” After receiving evidence and arguments, the STB ruled that “any Kansas court order inquiring a crossing at [that site] is federally preempted because it would unreasonably burden or interfere with interstate commerce.” Id. at *6. However, as an alternative to preempting any permanent crossing, the railroads had urged the STB to find that a current temporary crossing at another location along the interchange tracks was acceptable for a permanent crossing. On this issue, the STB ruled:

[W]e do not conclude that any crossing over the [interchange tracks] necessarily would be preempted_[Crossing disputes are generally subject to state and local law as long as the crossing location will not unreasonably interfere with railroad operations. Based on the current record, it does not appear that a court-ordered crossing at the location of the temporary crossing ... would have that same effect on interstate railroad operations. It would be reasonable for a state court, applying state law, to address those issues in light of the preemption standards discussed in this decision. Id. at *8, citing Maumee, 2004 WL 395885.

In this case, in support of its motion for summary judgment, Union Pacific submitted extensive evidence and expert opinion testimony showing that restoration of the Crossing would have significant adverse effects on current rail operations, and would pose significant safety risks to Union Pacific employees; to those traversing the Crossing, which sits on a curve in the main line track where there are limited sight lines; and to those using recreational trails on a narrow strip of land between the tracks and the river, risks that would create a danger of disastrous derailments of high-speed trains that often transport hazardous materials. The City countered with an expert who opined that the reopened Crossing “causes no more safety concerns to railroad employees or the general public than those experienced in any other small town with low volume vehicular traffic.”

Here, Union Pacific has presented concrete evidence that reopening this specific Crossing would “impede rail operations of pose undue safety risks,” evidence it failed to marshal in Franks, 593 F.3d at 415. On this record, it appears that an order reopening the Crossing is within the STB’s exclusive jurisdiction under 49 U.S.C. § 10501(b). But as the STB’s decision in Wichita Terminal illustrates, if presented the preemption issue the agency could determine that any order restoring this Crossing is preempted, or that some accommodation of the parties’ interests may be compatible with sound rail transportation, in which case state law rights and duties would come into play. Cf. Adrian & Blissfield R.R. v. Vill. of Blissfield, 550 F.3d 533, 642 (6th Cir. 2008) (whether railroad must pay for construction of non-interfering sidewalks a matter of state law). In these circumstances, it would be appropriate for the district court to defer entry of a final judicial determination whether the City’s claims are preempted if the City requests an opportunity to petition the STB for a declaratory order resolving the issue of its exclusive jurisdiction. See Wichita Term. Ass’n v. F.Y.G. Inv., Inc., 48 Kan,App.2d 1071, 305 P.3d 13, 22-23 (2013); City of Creede, Co., Fin. Dkt. No. 34376, 2005 WL 1024483 (S.T.B. May 3,2005).

Accordingly, the Judgment of the district court is reversed, the permanent injunction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

      . Whether the action was removable is not an issue on appeal, and we do not address it. See generally Elam v. K.C. So. Ry., 635 F.3d 796, 806-08 (5th Cir. 2011).


author: FISHER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Joseph Brent LOFTIS, Defendant-Appellee.
    No. 15-30262
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 7, 2016—Seattle, Washington
    Filed December 9, 2016

      Chad Spraker (argued), Assistant United States Attorney; Michael W. Cotter, United States Attorney; United States Attorney’s Office, Helena, Montana; for Plaintiff-Appellant.
    John Rhodes (argued), Assistant Federal Defender; Anthony R. Gallagher, Federal Defender; Office of the Federal Public Defender, Missoula, Montana; for Defendant-Appellee.
    Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges.
   OPINION

FISHER, Circuit Judge:

The defendant, Joseph Brent Loftis, has been charged with five counts of wire fraud. The government alleges Loftis victimized investors through false representations about his oil business. The indictment charges a broad scheme to defraud, spanning six years, several states and numerous alleged victims. Each of the five counts in the indictment pertains to a particular wire transfer in which a defrauded investor wired money to Loftis. These five uses of the wires (“charged transactions”) involve a total of three investors, and all involve the scheme as perpetrated in a single state, Montana.

As the trial approached, it became clear the government intended to offer evidence of investor victims not specifically named in the indictment, additional uses of the wires and aspects of the scheme carried out in states other than Montana (“uncharged transactions”). Loftis moved in li-mine to exclude this evidence, arguing the district court should “limit the government’s case to evidence regarding the [three] named investors and alleged criminal activity involving Montana.” He sought to bar the government from calling “witnesses other than [the three investors] from wh[om] the wired funds were received in the criminal cou[n]ts.”

The district court granted the motion in part, suggesting the evidence the government sought to introduce pertained to “other wire frauds” that would be subject to exclusion under Federal Rule of Evidence 404(b) unless the government could show the evidence was either “inextricably intertwined with the scheme Loftis employed in Montana” or admissible for one of the purposes authorized by Rule 404(b) itself. The government has appealed the court’s order, and the district court has stayed proceedings pending disposition of this interlocutory appeal.

We have jurisdiction under 18 U.S.C. § 8731, see United States v. DeCinces, 808 F.3d 785, 789-90 (9th Cir. 2015), and we affirm the district court’s order. We hold the evidence of uncharged transactions is not evidence of “other” crimes or acts under Rule 404(b), because it is evidence of part of the crime charged in the indictment — the overall scheme to defraud.

I

Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). But the evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Rule 404(b) applies solely to'evidence of “other” acts, not to evidence of the very acts charged as crimes in the indictment. As a leading treatise explains, “[o]ne of the key words in determining the scope of Rule 404(b) is ‘other’; only crimes, wrongs, or acts ‘other’ than those at issue under the pleadings are made inadmissible under the general rule.” 22B Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239 (1st ed. 2016). For example:

In cases where the incident offered is a part of the conspiracy alleged in the indictment, the evidence is admissible under Rule 404(b) because it is not an “other” crime. The evidence is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring an inference as to the character of the accused. Such proof can be quite time-consuming and it may be extremely prejudicial to the defendant but the court would have no discretion to exclude it [under Rule 404(b)] because it is proof of the ultimate issue in the case. To the extent that these consequences may seem unfair, this is attributable to the nature of the conspiracy charge, not to any defect in the other crimes rule.

Id. (footnotes omitted); see, e.g., United States v. Ripinsky, 109 F.3d 1436, 1442 (9th Cir. 1997) (holding evidence in question “was not evidence of ‘other crimes’ under Rule 404(b)” where it was. “direct evidence of the ongoing conspiracy charged in the indictment”), overruled on other grounds by United States v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc).

This principle applies not only to charges of conspiracy but also to any prosecution in which the “other” crime in question is in fact “an element of the crime charged.” Graham, Federal Practice and Procedure, supra, § 5239. In United States v. Smith, 685 F.2d 1293, 1294 (11th Cir. 1982), for example, the defendant was charged with four counts of mail fraud, each arising from an alleged scheme of the defendant to defraud- his insurance company by presenting fraudulent claims. At trial, the government introduced evidence of three previous fraudulent insurance claims, none, of which was alleged in the indictment. See id. Although the previous claims were uncharged transactions in the sense that they were not charged as specific executions of the scheme, the Eleventh Circuit held evidence of those transactions was admissible, without going through Rule 404(b), “to demonstrate the existence of the fraudulent scheme; an essential element of the crime.” Id. at 1295. It was “not necessary to consider whether the evidence was admissible as other crimes evidence under Rule 404(b).” Id. at 1296.

Similarly, in United States v. Swinton, 75 F.3d 374, 376 (8th Cir. 1996), the defendant was charged with seven counts of bank fraud. Each count involved a residential loan transaction on a particular property. See id. at 376-77. At trial, the government introduced evidence concerning additional property transactions in which the defendant was involved but for which he was not specifically charged. See id. at 377. The government argued “the evidence concerning the other uncharged transactions went directly to an element of the crime — the existence of a scheme or artifice” — and thus was not subject to Rule 404(b). Id. at 378. The Eighth Circuit agreed, holding “[s]uch evidence did not concern ‘other acts’ but rather acts belonging to the charged scheme.” Id. at 379. The evidence did not “implicate Rule 404(b)[,] because [it] related to the existence of a scheme, an element of the charged crime.” Id. at 379.

II

These principles apply here. “The elements of wire fraud are: (1) the existence of a scheme to defraud; (2) the use of wire, radio, or television to further the scheme; and (3) a specific intent to defraud.” United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013). The crime charged in a wire fraud prosecution therefore includes not only the specific executions of the scheme alleged as the second element of the offense but also the overall scheme alleged as the first element of the offense. As we recently explained, “the commission of ... a mail fraud or wire fraud offense necessarily includes a fraudulent scheme as a whole ..;, including additional executions of the scheme that were not specifically charged.” United States v. Lo, 839 F.3d 777, 793 (9th Cir. 2016). The uncharged transactions, therefore, are part of the charged offense — the fraudulent scheme as a whole — not “other” crimes or “other” acts evidence. Rule 404(b) thus does not preclude the government from introducing evidence of uncharged transactions to prove the first element of wire fraud — the existence of a scheme to defraud.

Ill

Because the evidence from other investors is charged conduct, the .government is not required to rely on the inextricably intertwined doctrine to avoid Rule 404(b). However, we have also “held that evidence should not be considered ‘other crimes’ or ‘other act’ evidence within the meaning of Rule 404(b) if ‘the evidence concerning the “other”, act and the evidence concerning the crime charged are inextricably intertwined.’ ” United States v. Dorsey, 677 F.3d 944, 951 (9th Cir. 2012) (quoting United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987)). This doctrine applies when the acts in question are so interwoven with the charged offense that they should not be treated as other crimes or acts for purposes of Rule 404(b).

“There are generally two categories of cases in which we have concluded that ‘other act’ evidence is inextricably intertwined with the crime with which the defendant is charged and therefore need not meet the requirements of Rule 404(b).” United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). “First, we have sometimes allowed evidence to be admitted because it constitutes a part of the transaction that serves as the basis for the criminal charge.” Id. “Second, we have allowed ‘other act’ evidence to be admitted when it was necessary to do so in order to permit, the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime; it is obviously necessary in certain cases for the government to explain either the circumstances under which particular evidence was obtained or the events surrounding the commission of the crime.” Id. at 1012-13.

In the context of mail and wire fraud, we have held that uncharged transactions that are part of an overall scheme are “part of the same transaction” as the charged transactions, such that evidence of the uncharged transactions falls under the first inextricably intertwined exception. In United States v. Mundi, 892 F.2d 817, 818 (9th Cir. 1989), for example, the defendant was charged with wire fraud arising from a broad schéme to defraud travel agencies. The indictment “named only one [travel] agency specifically,” although it also spoke of the defendant’s scheme “in terms that indicated a far wider scope of operations.” Id. at 820. At trial, the district court “allowed testimony which named several travel agencies not specifically mentioned in the indictment, and which discussed [the defendant’s] scheme with respect to them.” Id. We held the evidence was admissible notwithstanding Rule 404(b). Because the uncharged transactions were part of the overall scheme, the evidence “was ‘inextricably intertwined’ with, and ‘part of the same transaction’ as, the conduct alleged in the indictment.” Id. (quoting Soliman, 813 F.2d at 279). Similarly, in United States v. Sayakhom, 186 F.3d 928, 933 (9th Cir. 1999), the defendant was charged with multiple counts of mail fraud arising from her fraudulent sale of life insurance products through a single business entity (AAC). After the government effectively shut down AAC’s operation, the defendant began operating through a second entity (MAPS), “in order to' continue the unlawful sale of life insurance products.” Id. at 937-38. At trial, the district court allowed the government to introduce evidence regarding the defendant’s operation of MAPS. See id. at 937. Explaining that “AAC and MAPS were part of an ongoing scheme to defraud,” we held “[t]he MAPS evidence is not subject to exclusion under Rule 404(b) because it is inextricably intertwined with the indicted crimes.” Id. at 937-38 (citing Vizcarra-Martinez, 66 F.3d at 1006).

Under these authorities, even if the uncharged transactions at issue were not part of the crime charged, they would not be subject to exclusion under Rule 404(b) because they are “part of the same transaction” as the charged transactions. The inextricably intertwined doctrine, therefore, affords a second basis for concluding the evidence should not be treated as “other” crimes or “other” acts evidence under Rule 404(b).

IV

We emphasize these holdings address solely the application of Rule 404(b) to the evidence the government has said it seeks to introduce. We do not address whether the evidence may be excluded for any other reason, such as under Rule 403. We also make clear these holdings apply only when the charged and uncharged transactions can fairly be characterized as parts of a single fraudulent scheme. See Swinton, 75 F.3d at 378.

V

The extent to which the .district court properly applied these principles is not clear. On the one hand, the court appears to have applied the law correctly when it recognized “[e]vidence of other wires may be admissible to support the first, but not the second, element of wire fraud,” and when it said the evidence in dispute “maybe admissible if offered as proof of the scheme underlying” the charged transactions. On the other hand, the court may have erred when it said the evidence involving other investors pertained, to “other wire frauds” and suggested the evidence would be excluded under Rule 404(b) unless “the government can prove that the evidence is in fact inextricably intertwined with the scheme Loftis employed in Montana.” Notwithstanding some ambiguity in the district court’s ruling, we do not construe it as ruling contrary to our holding here.

ORDER AFFIRMED.

      . “We review admission of 'other crimes’ evidence for abuse of discretion; however, whether the evidence is indeed other crimes evidence we review de novo." United States v. Parks, 285 F.3d 1133, 1141 (9th Cir. 2002).

      . "It is well settled that cases construing the ‘ mail fraud and wire fraud statutes are applicable to either.” United States v. Green, 592 F.3d 1057, 1063 n.3 (9th Cir. 2010) (quoting United States v. Shipsey, 363 F.3d 962, 971 n.10 (9th Cir. 2004)).


author: THOMAS, Chief Judge:

text:
    IN RE Steven D. MOLASKY, Debtor, Augustine C. Bustos, Appellant, v. Steven D. Molasky, Appellee.
    No. 14-60080
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 17, 2016, San Francisco, California
    Filed December 12, 2016

      John M. Netzorg (argued), Las Vegas, Nevada, for Appellant,
    Todd L. Bice (argued), Jordan T. Smith, Debra L. Spinelli, and - James J. Pisanelli, Pisanelli -Bice PLLC, Las Vegas, Nevada, for Appellee.
    Before: SIDNEY R. THOMAS, Chief . Judge, and RONALD LEE GILMAN  and MICHELLE T. FRIEDLAND, Circuit Judges.

       The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation,

   OPINION

THOMAS, Chief Judge:

In this case we are asked to decide whether an intervenor can continue to litigate as the sole remaining party in a bankruptcy proceeding involving his own claim, when the original party who represented his interest, and whose adversary complaint he adopted without filing his own, was dismissed for failure to prosecute. Because we conclude that he can proceed, we reverse and remand.

I

This appeal, the second in this bankruptcy proceeding, concerns Augustine Bustos’s ongoing efforts to pursue an exception-to-discharge claim under 11 U,S,C. § 523(c) against Steven Molasky, the debtor. In May 2007, a corporate entity controlled by Molasky took out a loan and executed a promissory note for $17 million in- favor of OneCap Funding Corporation (“OneCap”). Molasky also executed a Continuing Guarantee that obligated him personally on this debt, Bustos was an investor in - this ' debt instrument through OneCap; his funds accounted for $800,000 of the $17 million loaned to Mo-lasky.

The loan-servicing agreement between Bustos and OneCap provided that OneCap would represent Bustos in any court proceedings as" long as the agreement was still in effect and “while any amounts [we]re still outstanding under the Note(s).” It provided that Bustos was “not to represent [himself] in any courts unless [the] agreement is terminated.”

Molasky filed for chapter 11 bankruptcy on May 3, 2008. Under the deadline set by Federal Rule of Bankruptcy Procedure 4007(c), creditors received notice that the last day to file a complaint objecting to the discharge of a debt under 11 U.S.C. § 523(c) was August 11, 2008. In accordance with the loan-servicing agreement, OneCap filed a timely § 523 complaint on behalf of the lenders who had invested in the promissory note. In its adversary complaint, OneCap raised a claim under § 523(a)(2)(A), alleging that Molasky’s debt on the promissory note was not dis-chargeable because Molasky had knowingly made false representations on which OneCap had relied when making the loan.

A number of parties subsequently reached a settlement with Molasky in the main bankruptcy case regarding a separate group of debts that indirectly related to Bustos. As part of that settlement, the parties stipulated that Bustos would be allowed to intervene in the § 523 adversary proceeding initiated by OneCap. At a hearing on whether to approve the settlement agreement, counsel for OneCap explained that Molasky had “agreed ... that Mr. Bustos may ... file a motion to intervene in the OneCap adversary proceeding regarding the 523 claim[ ] ..., and the debtor will not raise any affirmative defenses regarding timeliness or Statute of Limitations.” Bustos’s counsel further described the agreement as providing that Bustos would “be treated as if he filed the complaint with the OneCap representatives.” Molasky’s counsel agreed with this description of the settlement terms, and the bankruptcy court approved them as part of the settlement agreement.

Bustos moved to intervene in the § 523 adversary proceeding on September 8, 2008, filing his own § 523 adversary complaint in accordance with Federal Rule of Civil Procedure 24(c). Bustos’s complaint almost exactly mirrored the portions of the OneCap complaint relating to the promissory note disputed here. Molasky did not object to Bustos’s intervention but objected to his filing this separate complaint in intervention.

Looking to the terms of the settlement agreement, the bankruptcy court allowed Bustos “to intervene in the complaint in the action brought by OneCap” under Bankruptcy Rule 7024, but it did not allow Bustos to file his own, separate complaint. In granting Bustos’s motion, the bankruptcy court ordered that Bustos be “afforded all the rights and remedies as those granted to OneCap Holding Corporation in this Adversary Proceeding insofar as they pertain to any and all of the claims of Augustine C. Bustos against the Debtor/Defandant.”

Several months later, the bankruptcy court allowed counsel for OneCap to withdraw, and no replacement counsel appeared on OneCap’s behalf at a status conference the following month. The court ordered OneCap to appear and explain why it should not be dismissed from the adversary proceeding for failure to prosecute. When OneCap did not appear at the show-cause hearing, the court “dismissed] OneCap from the proceeding” and explained that this situation “le[ft] Mr. Bus-tos ... as the lone party ... to carry the flag in this matter.”

Molasky then moved to dismiss Bustos and the adversary proceeding entirely. The motion alleged that, following One-Cap’s dismissal, “there [was] no party for Bustos to assist” as an intervenor in the action. Because Bustos had not filed his own § 523 claim, Molasky argued that Bustos could show “no independent basis for jurisdiction against Molasky.” Bustos opposed the motion to dismiss, arguing that he should be able to proceed on the basis of the OneCap complaint, which he had effectively adopted when the court allowed him to intervene but prohibited him from filing his own complaint.

After holding a hearing, the bankruptcy court granted Molasky’s motion-to dismiss. Looking to Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir. 1994), the bankruptcy court explained that an intervenor “can proceed after dismissal of [the] original party only if ... an independent basis for jurisdiction exists,” and it concluded that there was no such basis here because Bustos had not filed his own § 523 complaint. Bustos appealed to the district court, which reversed the dismissal, concluding that “[t]he adversary proceeding underlying this appeal and the bankruptcy court’s subject matter jurisdiction survived the dismissal of OneCap as a plaintiff.”

Molasky then appealed to this Court, and a three-judge panel issued a memorandum disposition vacating the district court’s order. The panel held that the bankruptcy court had correctly stated the applicable legal standard under Benavidez. Molasky v. Bustos (In re Molasky) (Molasky I”), 492 Fed.Appx. 801, 802 (9th Cir. 2012) (citing Benavidez, 34 F.3d at 830). But in applying this standard to Bustos — in light of his failure to file a timely § 523 complaint — the panel concluded that the bankruptcy court had erred in failing to consider equitable factors that might justify extending the § 523 deadline or otherwise allowing Bustos to pursue the OneCap complaint. Id. at 802-03. As an example, the panel pointed to Fasson v. Magouirk (In re Magouirk), 693 F.2d 948, 951 (9th Cir. 1982), which laid out five equitable factors that courts have previously considered in deciding whether to extend bankruptcy deadlines. Molasky I, 492 Fed.Appx. at 802-03. The panel therefore remanded “to the bankruptcy court for a determination of jurisdiction over Bustos” under Bankruptcy Rule 4007, which sets the deadline for § 523 claims. Id. at 803.

On remand, the bankruptcy court considered an intervening precedential decision from this Court, Anwar v. Johnson, 720 F.3d 1183 (9th Cir. 2013), which clarified that bankruptcy courts do not have equitable discretion to- extend the Rule 4007 deadline retroactively. In light of this intervening precedent, the bankruptcy court concluded “that equitable relief from the deadline under FRBP 4007(c) [was] not available to Bustos” and that, having “failed to timely assert a separate objection to dischargeability” before the deadline expired, Bustos could not continue to prosecute the action. On appeal, the Bankruptcy Appellate Panel (“BAP”) affirmed this decision in all respects. Bustos timely appealed to this Court. We have jurisdiction to hear his appeal under 28 U.S.C. § 158(d).

“We review decisions of the Bankruptcy Appellate Panel de novo and apply the same standard of review that the Bankruptcy Appellate Panel applied to the bankruptcy court’s ruling.” Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193, 1198 (9th Cir. 2012) (citing Americredit Fin. Srvs. v. Penrod (In re Penrod), 611 F.3d 1158, 1160 (9th Cir. 2010)). In doing so, “[w]e review conclusions of law de novo and findings of fact for clear error.” Id. (citing Countrywide Home Loans, Inc. v. Hoopai (In re Hoopai), 581 F.3d 1090, 1095 (9th Cir. 2009)). Because interpretation of a prior decision is a question of law, we “review[ ] de novo a [lower] court’s compliance with the mandate of an appellate court,” such as the bankruptcy court’s interpretation of our Molasky I decision here. United States v. Perez, 475 F.3d 1110, 1112 (9th Cir. 2007) (citation omitted),

II

Section 523 of the Bankruptcy Code provides' that certain categories of debts may not be discharged in a bankruptcy proceeding. 11 U.S.C. § 523(a). Specifically, § 523(a)(2)(A) excepts from discharge certain debts obtained through fraud or false representation. To utilize this provision, § 523(c) requires a creditor to file an exeeption-to-discharge claim in the bankruptcy court. Bankruptcy Rule 4007 sets a 60-day deadline for filing such a § 523(c) claim, beginning on the date of the first creditor meeting.

In the present case, it is undisputed that OneCap filed its § 523(c) complaint within the 60-day deadline set by Rule 4007 and that Bustos did not move to intervene or file his own complaint until after that period had passed. The primary question, then, is whether Bustos’s intervention and adoption of the OneCap complaint allow him to continue prosecuting the action even after-OneCap’s dismissal. We answer this question in the affirmative.

A

As we explained in Molasky I, our precedent establishes that.an intervenor may continue to litigate an action after the dismissal of the original party “when 1) an independent basis for jurisdiction exists, and 2) unnecessary delay would otherwise result,”' such that allowing the in-tervenor to continue “promotes judicial economy and preserves litigant resources,” Benavidez, 34 F.3d at 830-31.

Molasky I remanded for a determination of jurisdiction under the first prong of this test. 492 FedAppx. at 803. The bankruptcy court and the BAP correctly concluded that our intervening decision in Anwar precluded extension of the Rule 4007 deadline to allow Bustos to file his own complaint. That conclusion leaves open the question of whether some other source of jurisdiction might allow Bustos to continue litigating the action even without his own complaint. See Anwar, 720 F.3d at 1187; see also Willms v. Sanderson, 723 F.3d 1094, 1100 (9th Cir. 2013) (confirming Anwar's strict interpretation of Rule 4007).

The bankruptcy court and the BAP seemed to assume that the court necessarily lacked jurisdiction if the Rule 4007 deadline could not be extended to allow Bustos to file his own complaint. This assumption is not supported by precedent; our case law does not require an intervenor such as Bustos to file his own complaint in order for the court to have jurisdiction over his claim. Rather, an intervenor need not file separate pleadings “[i]f the intervenor is content to stand on the pleading an existing party has filed.” Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1188 (9th Cir. 2009) (quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1914 (3d ed. 2009)). We therefore conclude that the bankruptcy court and the BAP interpreted Molaksy I too narrowly, erroneously foreclosing the ultimate question of whether the court retained jurisdiction over Bustos without a deadline extension.

B

Here, the bankruptcy court retained an independent source of jurisdiction over Bustos after OneCap’s dismissal, thereby satisfying the first prong of the Benavidez test. The “independent basis for jurisdiction” prong of the test stems from the Article III necessity of ensuring continued subject-matter jurisdiction over the intervenor’s claim. Benavidez, 34 F.3d at 830; see also Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“[A]n intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon "a showing by the intervenor that he fulfills the requirements of Art. III,”). The first Benavidez prong can therefore be understood as a temporal extension of the case-or-controversy requirement, applied at the point where the intervenor is the lone remaining party.

This requirement demands higher scrutiny where the original party’s claim was dismissed on the merits or for lack of jurisdiction, but the analysis is somewhat different where the original party was dismissed for a procedural reason, such as for failure to prosecute. In such'cases, a claim joined by an intervenor may survive the dismissal of the original party if the court retains jurisdiction over the claim and the intervenor has standing to continue litigating it. See Westchester Fire Ins. Co., 585 F.3d at 1189 (holding that “the district court should not have entered a default judgment” against an intervenor based on the original party’s failure to appear).

There is no question that OneCap timely filed its § 523 complaint and that the bankruptcy court initially had jurisdiction over this claim. See Rein v. Providian Fin. Corp., 270 F.3d 895, 904 (9th Cir. 2001) (“Bankruptcy courts have exclusive jurisdiction over nondischargeability actions brought pursuant to 11 U.S.C. § 523(a)(2).... ”). The bankruptcy court, in its own words, permitted Bustos to “intervene in the complaint in the action brought by OneCap Holding Corporation.” At that point, as explained above, Bustos necessarily adopted OneCap’s complaint— he had a valid claim against Molasky and was not required to file his own § 523 complaint because he was “content to stand on the pleading an existing party ha[d] filed.” See Westchester Fire Ins. Co., 585 F.3d at 1188 (quoting 7C Wright, Miller & Kane, supra, at § 1914).

Thus, OneCap’s timely filing satisfied the Rule;4007 deadline, and Bustos is simply “treated as if he filed the complaint with the OneCap representatives,” in accordance with the parties’ settlement agreement. We note that there is no unfairness , in this, result, particularly given that Molasky expressly .agreed to waive any timeliness defense in his settlement agreement with Bustos; Molasky cannot now argue that it is too late for Bustos to pursue his oum § 523 claim that originally formed part of OneCap’s complaint. See Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002) (first citing Sargent v. Dep’t of Health & Human Servs., 229 F.3d 1088, 1090 (Fed. Cir. 2000); then citing In re Christie, 173 B.R. 890, 891 (Bankr. E.D. Tex.1994)) (explaining that the parties are bound by the terms of a settlement agreement once it is announced to the court).

Logic and equitable principles counsel the same result. In a similar case where a creditor sought to be substituted for the original party after the Rule 4007 deadline had run, the Seventh Circuit aptly recognized that the thrust of the timeliness inquiry as to § 523 claims “should fall first and foremost on whether a complaint was filed against a specific debt, not so much on who makes the complaint.” FDIC v. Meyer (In re Meyer), 120 F.3d 66, 68 (7th Cir. 1997). This approach serves Rule 4007’s purpose of ensuring that “[a]fter the 60 days are over, all the demands for non-discharge that can be made, have been made. The debtor can relax.” Id. Our Circuit has similarly recognized the need for flexibility in allowing § 523 claims to go forward despite issues requiring party substitution or other procedural adjustments, even after the deadline for filing a new claim has passed. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1092 (9th Cir. 2009). When two creditors share a claim against a debtor, there is no reason why the procedural dismissal of one creditor should divest the court of jurisdiction over the other party, when it retains jurisdiction over the claim.

Applying those principles to the current case — even if Molasky had not agreed to waive timeliness defenses — OneCap’s timely filed complaint gave Molasky notice of the § 523 claim within the time prescribed by Rule 4007. Bustos’s intervention and adoption of that complaint did not prejudice Molasky or expose him to any additional claims after the expiration of the deadline. When the bankruptcy court dismissed OneCap from the proceeding for failure to appear, it did not dismiss or otherwise adjudicate the § 523 claim itself. Thus, that claim remained live and justicia-ble.

Ultimately, the bankruptcy court’s intervention order gave Bustos “all the rights and remedies as those granted to OneCap” to adjudicate this claim. The court’s dismissal of OneCap as a party did not divest the court of jurisdiction over the § 523 claim as it pertained 'to Bustos. Bustos has therefore satisfied the “independent basis for jurisdiction” prong of the Benavidez test, and the bankruptcy court and BAP erred in concluding otherwise.

C

Bustos also satisfies the second prong of the Benavidez test. The second Benavidez prong “asks whether refusing to allow the intervenors to continue would lead to senseless delay, because a new suit would inevitably bring the parties, at a much later date, to the point where they are now.” 34 F.3d at 830-31. Benavidez also emphasized that the underlying goal of the rule is to “promote[] judicial economy and preserven litigant resources.” Id. at 831. Delay and refiling as described in Benavidez are not the only ways in which judicial resources may be wasted, and thus we understand Benavidez to counsel against other forms of judicial waste as well.

In a § 523 case, as Bustos correctly points out, creditors should be entitled to rely on their representatives to litigate the adversary proceeding on their behalf. Here Bustos has a direct financial interest in the claim initiated by OneCap on behalf of Bustos and the other investors, and he timely intervened to protect that interest. If an intervenor like Bustos cannot pursue an action initially filed by his or her representative at the point when the representative fails to prosecute the action, it creates an incentive for all of the individual creditors in a fractionalized debt instrument to hedge their bets by filing their own § 523 complaints before the 60-day deadline, just in case their representative later fails to prosecute adequately. Such an outcome could vastly increase the number of complaints filed in these cases, creating an unnecessary administrative, burden for bankruptcy courts.

This result runs counter to the Benavidez goals of “judicial economy and preservation of] litigant resources,” see 34 F.3d at 831, and would impose exactly the type of administrative burden that the Benavidez rule seeks to avoid. For these reasons, we believe the goal of judicial economy is best served by allowing a party in Bustos’s position to continue litigating the timely filed § 523 claim that is before the court. We therefore conclude that Bus-tos has satisfied this second prong of the Benavidez test.

Ill

In sum, Bustos was permitted to intervene in the action initially filed by OneCap and was “afforded all the rights and remedies as those granted to OneCap.” By adopting OneCap’s timely filed § 523 complaint, Bustos satisfied the Rule 4007 deadline and established that the court had subject-matter jurisdiction over his claim. Both precedent and common sense dictate that Bustos should be permitted to continue litigating the claim after OneCap’s dismissal on procedural grounds. Ultimately, Bustos satisfies the Benavidez test because the court retains a subject-matter jurisdiction over his claim, and allowing him to pursue the claim promotes judicial economy. Accordingly, Bustos is entitled to continue prosecuting the § 523 claim originally filed by OneCap. The bankruptcy court and BAP erred in concluding otherwise.

REVERSED and REMANDED.

      . Unless otherwise specified, all section and chapter references are to the Bankruptcy Code, 11 U.S.C. §§ 101 et seq.

      . Bankruptcy Rule 7024 incorporates Civil Rule 24 into adversary proceedings in bankruptcy.

      . At around the same time, the bankruptcy court approved a stipulation allowing another party, the W, Leslie Sully, Jr., Chtd. Profit Sharing Plan, to intervene in the OneCap adversary proceeding. The Sully Plan proceedings largely mirrored the Bustos appeals, but the Sully Plan has since voluntarily dismissed its claims against Molasky, so we do not discuss those proceedings further here.

      , This standard originally arose in the context of Civil Rule 24 intervention, but it applies equally in the bankruptcy context. Because Bankruptcy Rule 70⅞4 simply incorporates Civil Rule 24, courts apply Rule 24 jurispru- ‘ dence to intervention in bankruptcy proceedings. Educ. Credit Mgmt. Corp. v. Bernal (In re Bernal), 207 F.3d 595, 597 (9th Cir. 2000).

      . Molasky argues that the mandate from our court after the first appeal "limited the scope of remand to assessing whether there was an independent basis for jurisdiction in light of Magouirk." We do not think the mandate was so limited. But even if it were, there are exceptions to the mandate rule and to the law of the case doctrine for an intervening change in controlling authority, as Molasky concedes. See United States v. Bad Marriage, 439 F.3d 534, 537-38 (9th Cir. 2006). Under those exceptions, the intervening precedent of Anwar, 720 F.3d 1183, defeats any argument that the bankruptcy court on remand was limited by our prior decision to applying Magouirk, which Anwar overruled.

      . Although Benavidez involved a permissive intervenor, the test itself and the analysis supporting it do not draw a distinction between permissive intervenors under Civil Rule 24(b) and intervenors of right under Rule 24(a); See 34 F.3d at 830-31. Similarly, the decisions from other Courts of Appeals cited by Benavidez do not distinguish between permissive intervenors and intervenors of right. See, e.g., Arkoma Assoc. v. Carden, 904 F.2d 5, 7 (5th Cir. 1990); Horn v. Eltra Corp., 686 F.2d 439, 440 (6th Cir. 1982); Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965). Thus, while the parties dispute whether Bustos should be considered an intervenor of right or a permissive intervenor, in fact Bustos would need to demonstrate continued jurisdiction in either case. The Molasky I panel impliedly reached this conclusion when, after repeated questioning at oral argument about whether Bustos was a permissive intervenor or an intervenor of right, it ultimately concluded that the Benavi-dez test applied without reaching this question. See 492 Fed.Appx. at 802.