author: WALLACH, Circuit Judge.

text:
    Armando Sandoval LUA, Yadira Sandoval, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee
    2016-1313
    United States Court of Appeals, Federal Circuit.
    Decided: December 15, 2016

      Sean H. Colon, Sean H. Colon, Inc., Woodland, CA, argued for plaintiffs-appellants.
    Regina S. Moriarty, Tax Division, United States Department of Justice, Washington, DC, argued • for defendant-appellee. Also represented by Richard Farber, Caroline D. Ciraolo.
    Before PROST, Chief Judge, WALLACH and CHEN, Circuit Judges.
   WALLACH, Circuit Judge.

Armando Sandoval Lua and Yadira Sandoval (together, “the Sandovals”) appeal from the decision of the U.S. Court of Federal Claims (“Claims Court”) granting summary judgment in favor of the United States (“Government”) as to certain tax refunds claimed by the Sandovals. See Sandoval Lua v. United States, 123 Fed. Cl. 269, 277 (2015), We affirm.

Background

In 2006, the U.S. Internal Revenue Service (“IRS”) opened an audit of the Sandovals’ tax return for the 2004 fiscal year. Appellee’s Suppl. App. (“SA”) 3. The IRS later expanded this' audit to include the 2003 and 2005 fiscal years. SA 44. The Sandovals met with an IRS agent several times and went over the proposed adjustments to the Sandovals’ taxable income and, thus, outstanding tax liability owed, for the 2003 and 2004 fiscal years. SA 44-47. During this process, the Sandovals signed two key documents; in Form 4549, they waived their right to a notice of deficiency for the years 2003 and 2004, and in Form 872, they consented to extend the statute of limitations period for the 2003 fiscal year through December 31, 2008. SA 34, 36-37. The Sandovals hired representation and obtained audit reconsideration, SA 42, 46.

On reconsideration, the IRS assessed deficiencies for the 2003 and 2004 fiscal years in the amounts of $60,274 and $87,566, respectively. SA 3, 9. IRS agents thereafter continued to meet and confer with the Sandovals’ representative ⅛ the following months to prepare amended returns for 2003 and 2004. SA 46-47.

The Sandovals filed amended tax returns in June 2008 for the amounts owed that they considered to be “substantially correct,” and requested abatements that roughly totaled the outstanding amounts assessed but not paid. SA 58, 59-77 (2003 amended tax return), 78-95 (2004 amended tax return); see also SA 156 at 58:6-7 (deposition of Ms. Sandoval in which she states that they sent checks to the IRS that were “an estimate of — only of the money that we owed”). The returns included two checks and an.accompanying letter from their representative stating that the checks were to be applied to the Sandovals’ income tax liability for 2003 and 2004, and that “any overpayment” should be contributed to other years’ outstanding amounts due. SA 58. The IRS granted a substantial portion of the requested abatements, such that these checks and overpayment credits satisfied the Sandovals’ tax deficiencies in full from 2003 and 2004. SA 4, 10.

In 2010, the Sandovals filed a second set of amended returns for 2003- and 2004 seeking a full refund of funds remitted plus amounts applied as overpayments from other tax years, totaling approximately $101,000. Appellants’ Suppl. App. 27-69, The IRS denied the claims for refund and denied appeal in 2012. SA 140-49, 151-52.

The Sandovals filed suit in the Claims Court seeking the same relief. The Sando-vals contended that they were entitled to the remitted funds on any of the following grounds: (1) they withdrew consent to assessment without notice of deficiency and never received subsequent notice; (2) the 2008 funds were applied after the three year statute of limitations for assessment had expired; or (3) the 2008 funds were given- as refundable, deposits rather than as tax payments. The Claims Court granted summary judgment in favor of the Government and denied a cross-motion for summary judgment, finding that as a matter of law the Sandovals were not entitled to the claimed refunds. Sandoval Lua, 123 Fed.Cl. at 277.

The Sandovals subsequently filed this appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012).

Disoussion

This court “review[s] the Claims Court’s grant of summary judgment de novo.” Amergen Energy Co. v. United States, 779 F.3d 1368, 1372 (Fed. Cir. 2015). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(a); Consol. Edison Co. v. Richardson, 232 F.3d 1380, 1383 (Fed. Cir. 2000). “We view the evidence in a light most favorable to the non-movant ... and draw all reasonable inferences in its favor.” SunTiger, Inc. v. Sci Research Funding Grp., 189 F.3d 1327, 1334 (Fed. Cir. 1999).

I. The Claims Court Properly Granted Summary Judgment to the Government

A. Appellants Consented to Assessment Without Notice of Deficiency

The Sandovals primarily argue that the 2003 and 2004 assessed deficiencies are invalid because they “impliedly or constructively” withdrew their consent to waive the required notice of deficiency before the assessment, and the Government then failed to attach a notice within the statute of limitations period. Appellants’ Br. 43. The Government counters that this is a case in which the Sandovals “effectively admitted they had not reported all of their income on their original returns for 2003 and 2004, [and now believe that] they are entitled to a refund of the additional taxes that they reported on the amended returns and remitted to the IRS in June 2008.” Appellee’s Br. 25. We agree with the Government.

The IRS generally may not assess or collect income taxes until it issues a notice of deficiency. See I.R.C. §§ 6212(a), 6213(a) (2012). Nevertheless, a taxpayer may waive the right to a notice of deficiency by signing a waiver and filing it with the IRS at any time. Id. § 6213(d). “A duly executed IRS Form 4549 is a proper waiver of the deficiency notice requirements.” Perez v. United States, 312 F.3d 191, 197 n.23 (5th Cir. 2002) (citation omitted); see Robert E. McKenzie, 1 Representation Before the Collection Division of the IRS § 3:148 (Thomson Reuters ed., 2016). A taxpayer may withdraw the waiver and opt for the requirement of a notice of deficiency accompanying an assessment at any time until “such waiver has been acted upon by the district director and the assessment has been made in accordance with its terms.... ” Treas. Reg. § 301.6213-1(d) (2016).

The Sandovals claim that their request for audit reconsideration in the form of a letter and a phone call in early-November 2007 impliedly or constructively withdrew their Form 4549 waiver. Appellants’ Br. 37. In fact, there is no mention of withdrawal or waiver in either the letter or the Sandovals’ description of the phone call to the IRS. SA 46, 62. The Sandovals have presented no legal authority that audit reconsideration is indicative of or synonymous with waiver withdrawal. They have offered no authority to suggest that courts have entertained a theory of constructive or implied withdrawal. Without proof of withdrawal Of the waiver, the IRS properly denied the Sandovals’ refund request as a matter of law;

The Sandovals further argue that the Government conceded the issue of withdrawal at a status conference held in April 2014. Appellants’ Br. 37. The Claims Court succinctly stated that it “ha[d] never understood [Gjovernment’s counsel to have waived this issue.” Sandoval Lua, 123 Fed. Cl. at 274 (citation omitted).

We agree with the Claims Court that the record does not support the Sandovals’ argument and that there is no genuine dispute about this material fact. See SunTiger, Inc., 189 F.3d at 1334 (explaining that no genuine dispute as to a material fact exists if no record evidence supports the nonmoving party’s argument). At no point did the Government concede that the Sandovals withdrew their consent. We do not find that the Government conceded to a withdrawal of the waiver of- notice of deficiency here.

B. The 2004 Assessment Limitations Period Had Not Expired

The Sandovals next argue that their June 2008 remittance for the 2004 year was not timely, because it did not fall within three years of the return filing. Appellants’ Br. 45. Because the remittance was not timely, the Sandovals argüe that they should be refunded that amount remitted. Id. We agree with the Claims Court’s finding that there is no genuine dispute of material fact on this issue. Sandoval Lua, 123 Fed.Cl. at 276.

As a general rule, all taxes “shall be assessed within 3 years after the return was filed.... ” I.R.C. § 6501(a). If a taxpayer “omits from gross income an amount properly includible therein” and “such amount is in excess of 25 percent of the amount of gross income stated in the return,” the assessment and collection period is extended to six' years. Id. § 6501(e)(1)(A)(i).

The Sandovals paid a remittance in June 2008, SA 58, and they do not dispute that their amended returns of $138,032 for fiscal year 2003 and $183,862 for fiscal year 2004 are substantially more than 25% of their originally reported returns of $52,023 and $51,848, respectively, SA 14, 24 (adjusted gross incomes originally reported), 59, 78 (adjusted gross incomes as amended). The Sandovals also have offered no evidence to suggest that I.R.C. § 6501(e)(l)(A)(ii), which contains an exception for amounts omitted from gross income that were nevertheless adequately disclosed, would apply. Accordingly, the applicable statute of limitations for the 2004 tax year assessment expired in April 2011, i.e., six years from the date the Sandovals filed their original tax return, and the Sandovals’ payments in June 2008 were timely.

C. The 2008 Remittances Were Appropriately Considered as Tax Payments

The Sandovals further argue that the IRS improperly designated the 2008 remittances as payments, rather than deposits. Appellants’ Br. 41-42. Internal Revenue Code § 6603(a) provides that a “taxpayer may make a cash deposit with the [IRS] which may be used by the [IRS] to pay any tax ... which has not been assessed at the time of deposit. Such a deposit shall be made in such a manner as the [IRS] shall prescribe.” The IRS’s Revenue Procedure explains that a deposit shall be accompanied with a “written statement” designating the deposit as such, and that any undesignated remittance “will be treated as a payment and applied by the [IRS] against any outstanding liability for taxes, penalties!,] or interest.” Rev. Proc. 2006-18, 2005-13 I.R.B. 798 § 4.01(1)-(2) (2005).

Prior to the adoption of the statutory definition of “deposit” in 2004, courts used a test of “circumstances” to determine whether remittances were deposits or payments. In New York Life Insurance Co. v. United States, we adopted the circumstances test and found that, when the party reserved the right to seek return of the remittance, a remittance made under protest following a notice of deficiency was a deposit as a matter of law upon the IRS’s failure to assess the deficiency within the statute of limitations. 118 F.3d 1563, 1559-60 (Fed. Cir. 1997).

The Sandovals argue that the Government is equitably estopped from applying Revenue Procedure 2005-18 and that the New York Life circumstances test should be used instead. Appellants’ Br. 41. According to Appellants, equitable estoppel applies because the Government “consistently and vehemently argued” that its November 2007 assessments were correct, which induced Appellants to remit funds they claim were not owed. Id. The Sandovals further argue that the 2008 remittances constitute “deposits” under the New York Life circumstances test. Id. at 40.

We find both of the Sandovals’ arguments unavailing. Appellants must show “affirmative misconduct [as] a prerequisite for invoking equitable estoppel against the [G]overnment....” Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000) (emphasis added) (citation omitted). The Sandovals have made no showing of misconduct in this case.

We agree with the Claims Court that the Sandovals “offer no evidence that their 2008 remittance^] complied with the terms of ... Revenue Procedure [2005-18].” Sandoval Lua, 123 Fed.Cl. at 277. Because the funds were received after 2004, the New York Life circumstances test does not apply and I.R.C. § 6603 controls. The remittances accompanied amended tax returns with tax liabilities in excess of $96,000, which followed a November 2007 deficiency assessment. SA 58-59 (cover letter acknowledging amended tax liabilities for 2003 and 2004 totaling $96,446.63). Their accompanying letter requested that the IRS apply the payments to outstanding tax liabilities for 2003 and 2004 fiscal years and any additional years with liability in the event of overpayment. SA 58. The letter did not designate the remittances as deposits, as Revenue Procedure 2005-18 requires. They were tax payments, not deposits.

D. The Sandovals Waived Their Additional Arguments

The Sandovals contest the Claims Court’s rejection of two additional arguments that (1) satellite reimbursements (from Mr. Sandoval’s occupation as a satellite dish installer) cannot constitute “income” as defined by statute, Appellants’ Br. 41; and (2) the Form 4549 was signed under duress, id. at 38-39. We agree with the Claims Court that the Sandovals waived these arguments under the substantial variance rule.

Internal Revenue Code § 7422(a) provides that, to bring suit against the United States for the recovery of income taxes, a taxpayer must have timely filed a- refund claim in the manner prescribed by regulation. Treasury Regulation § 301.6402-2(b)(1) specifies that refunds will only be granted on one or more of the grounds set forth in a. timely-filed claim and that the claim “must set forth in detail each ground upon which a credit or a refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.”

We have interpreted this statute and regulation as stating a “substantial variance” rule that bars taxpayers from bringing new claims or facts not alleged in the refund application to a court in which suit for refund is sought. See Cencast Servs., L.P. v. United States, 729 F.3d 1352, 1366 (Fed. Cir. 2013); see also Lockheed Martin Corp. v. United States, 210 F.3d 1366, 1371 (Fed. Cir. 2000) (explaining background and reasoning behind the “substantial variance” rule). For a theory, claim, or fact supporting the application for refund to be admissible in a suit, we ask “whether there [wa]s a substantial variance from a timely filed claim.” Computervision Corp. v. United States, 446 F.3d 1855, 1364 n.8 (Fed. Cir. 2006) (citation omitted).

We agree with the Claims Court that, having failed to argue that the satellite réimbursements were not income or that they signed Form 4549 under duress in the initial refund application, the Sandovals’ introduction of these arguments would be a “substantial variance” from the initial claims. Sandoval Lua, 123 Fed.Cl. at 274 n.12. Therefore, these arguments were waived and were appropriately not considered.

Conclusion

We have considered the Sandovals’ remaining arguments and find them unpersuasive. Accordingly, the decision of , the U.S. Court of Federal Claims is

AFFIRMED

      . Deficiencies for the 2005 fiscal year were assessed and later disputed and resolved in the U.S. Tax Court. See Sandoval Lua v. Comm’r, T.C.M. (CCH) 2011-192 (2011).

      . The IRS applied overpayment credits of $4,390 and $1,800 to the 2003 tax year, and $1,900.37 and $718.19 to the 2004 tax year. SA 3-4, 10. By the time the IRS granted the abatements, the Sandovals had overpaid their tax liabilities for 2003 and 2004. The IRS later issued a refund of $1,123.67 to the San-dovals. SA 5.

      . The Sandovals also characterize their withdrawal of Form 4549 as "express[]” in one instance. Appellants’ Br. 21.

      , More specifically, the Sandovals argue that they believed that the case had been "closed” (i.e., "assessed”), such that withdrawal was no longer available on November 1, 2007 and, thus, they requested the only available option of reconsideration. Appellants' Br. 13-14. Because the case was not officially closed until November 26, 2007, the Sandovals also argue that the Government should have understood the reconsideration request to serve as a proxy for the withdrawal of Form 4549. Id. at 25, 36-37. They further claim that, without official closure of the case, "there was no support for audit reconsideration.” Id. at 27. However, the procedures for requesting audit reconsideration are not material to this case; we have no evidence to indicate that audit reconsideration is equivalent to waiver withdrawal.

      . See The American Jobs Creation Act of 2004, Pub. L. No. 108-357, § 842, 118 Stat. 1418, 1598-1600,


source: Caselaw Access Project

author: WILKINS, Circuit Judge:

license: Public Domain

text:
    Reuven GILMORE, individually, as the Administrator of the Estate of Esh Kodesh Gilmore and as natural guardian of plaintiffs Eliana Gilmore and Dror Gilmore, et al,, Appellants v. PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, also known as Palestinian National Authority, also known as Palestinian Authority, et al., Appellees
    No. 14-7129
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 14, 2016
    Decided December 13, 2016

      Kent A. Yalowitz, New York, NY, argued the cause for appellants. With him on the briefs were Robert J. Tolchin and Meir Katz, New York,-NY.
    Mitchell R. Berger, Washington, DC, argued the cause for appellees The Palestinian Authority and Palestine Liberation Organization. With him on the brief were Pierre H. Bergeron, Cincinnati, OH, John A. Burlingame, Alexandra E. Chopin, and Gassan A. Baloul, Washington, DC.
    Before: GRIFFITH and WILKINS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
   WILKINS, Circuit Judge:

Esh Kodesh Gilmore (“Gilmore”), a United States national, was killed in a shooting attack in Jerusalem on October 30, 2000. His family members and estate (collectively, “Appellants”) filed suit against the Palestinian Interim Self-Government Authority (“PA”) and the Palestine Liberation Organization (“PLO”) (collectively, “Appellees”)- asserting claims under the Anti-Terrorism Act, 18 U.S.C. § 2333, and related common law theories.

After years of litigation, the District Court granted summary judgment in favor of Appellees. Appellants challenge the judgment, along with the vacatur of Appel-lees’ defaults and the denial of Appellants’ motion to compel the production of intelligence materials. Appellees challenge the District Court’s denial of a motion for judgment on the pleadings for lack of personal jurisdiction. We have jurisdiction to review the final decisions of the District Court under 28 U.S.C. § 1291. For the reasons set forth below, we affirm each of the District Court’s challenged orders.

I.

Gilmore was a private security guard at an East Jerusalem branch office of the National Insurance Institute of Israel. On October 30, 2000, he was shot and killed while on duty. The State of Israel has not prosecuted or convicted anyone in connection with the shooting.

Appellants filed suit against Appellees and individual defendants on April 18, 2001. Appellees “failed to plead or otherwise defend th[e] action,” so default was entered against them on December 20, 2001. J.A. 85. A month and a half later, Appellees moved to vacate the default. Ap-pellees and individual defendants also moved to dismiss, arguing (1) the suit was a politically-motivated attack on the PA and therefore non-justiciable, (2) “Palestine [was] a state under U.S. and international law” and therefore Appellees were entitled to sovereign immunity, and (3) “[p]ersonal ^jurisdiction [was] [Hacking [ojver the [individual [defendants.” J.A. 85.9-85.31. The District Court vacated the default “in light of the strong preference in this jurisdiction for rulings on the merits.” J.A. 86. For-a variety of reasons, however, the District Court did not rule on the motion to dismiss until March 7, 2006, when it granted the motion as to the individual defendants but denied the motion as to Appellees.

After the ruling, Appellees failed to file a timely answer. The District Court again entered default against Appellees on January 29, 2007.. Over the summer of 2007, the District Court held damages hearings at which Gilmore’s family testified. On November 15, 2007, Appellees moved to vacate the second default and filed an answer. In a declaration submitted with the motion, the PA’s Prime Minister, Salam Fayyad, explained that he “became aware” of a letter from U.S. Secretary of State Condoleezza Rice, which encouraged Ap-pellees to “respond to U.S. legal proceedings in a good faith and a timely manner.” Decl. of Salam Fayyad ¶ XI, J.Á. 130. Prime Minister Fayyad assured the District Court that he “instructed new counsel that [Appellees] will participate fully in this and other litigation, in a cooperative manner, including complete participation in the discovery process.” Id. ¶ 13, J.A. 130. On December 28, 2009, the District Court vacated the second default and, to mitigate prejudice to Appellants, ordered Appellees to: (1) reimburse Appellants for attorneys’ fees and costs incurred as a result of the default, (2) stipulate that Appellants “need not testify again and that their testimony from the damages hearing may be read into the trial record,” and (3) post a $1 million bond. J.A. 155-174.

Following years of discovery, Appellees submitted a privilege log to Appellants on March 4, 2013. The log disclosed twenty-five pages of material generated by the PA’s intelligence agency, the General Intelligence Services (“GIS”), which were withheld under the state-secrets and law-enforcement privileges. Appellants moved to compel the production of those materials, arguing principally that Appellees should produce the GIS materials, and alternatively that the District Court should “conduct an in camera review of the documents to determine whether any privileges apply.” J.A. 240-258. At a status conference, Appellees argued that ex parte briefing would need to accompany in camera review because it would be “very difficult for [the District Court] -to review the documents and reach an assessment of them without additional information that should not be disclosed publically or to [Appellants].” Mot. Hr’g Tr. 14:19-24, J.A. 296. The District Court subsequently ordered Appellees to file, sealed and ex parte, the GIS materials and “an explanatory Memorandum of those documents, not to exceed 10 pages.” J.A. 282. On June 6, 2013, following in camera review aided by Appel-lees’ ex parte briefing, the District Court denied Appellants’ motion to compel the production of the twenty-five pages of GIS materials. The District Court also denied Appellants’ motion to unseal the memorandum submitted ex parte by Appellees.

Appellees subsequently moved for summary judgment, arguing that at the close of fact discovery, Appellants had no admissible evidence linking Gilmore’s murder to any particular person, let alone Appellees. Appellants argued that Gilmore was killed by Muhanad Abu Halawa (“Halawa”), a deceased former soldier in the PA’s security apparatus known as “Force 17,” and that Appellees were vicariously liable for Halawa’s actions. In support of that theory, Appellants proffered the following evidence:

• Two statements published online by the Israel Ministry of Foreign Affairs;
• A passage from a non-fiction book entitled The Seventh War, which recounted a prison interview that implicated Halawa;
• A statement by one of Halawa’s associates, which was written and signed while in the custody of Israeli police;
• The testimony of Halawa’s colleague during the trial of Halawa’s supervisor; and
• An expert report authored by a former intelligence officer of the Israel Defense Forces.

The District Court declared this evidence inadmissible, and granted Appellees’ motion for summary judgment.

II.

Appellees urge this Court to “affirm the judgment below on the alternative ground that the court below lacked personal jurisdiction over [them].” Appellees’ Br. at 52. We address this argument first. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L,Ed.2d 210 (1998)) (“[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction).”). We conclude that Appellees have waived their challenges to personal jurisdiction.

“It is ’ elementary that a defense of ... lack of personal (as opposed to subject matter) jurisdiction is waived unless the defense is asserted by a pre-answer motion (i.e., Rule 12(b)) or in a responsive pleading, i.e., the answer or a timely amendment thereto.” Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) (en banc) (citing Fed. R. Civ. P. 12(h)(1), and 5C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1388 (2d ed. 1969)).

In their pre-answer motion, Appellees argued that “Palestine [was] a state under U.S.- and international law” and, therefore, they were entitled to sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”). J.A. 85.24. Appellees now raise á constitutional personal-jurisdiction defense, which they argue was preserved by their invocation of the FSIA. At oral argument, Appellees insisted that “a sovereign immunity challenge is a challenge to both personal jurisdiction and subject matter jurisdiction,” and a “substantial jurisdictional challenge” should not be deemed waived just “because the motion said ‘sovereign immunity’ and did not articulate the words ‘personal jurisdiction.’ ” Oral Arg. at 22:50-23:45.

This argument is foreclosed by Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990). In Foremost-McKesson, Iran went a step further than Appellees: it expressly argued that “[b]ecause under the FSIA personal jurisdiction cannot exist unless there is subject-matter jurisdiction, ... the Court also lacks personal jurisdiction,” id. at 453; in other words, Iran did “articulate the words ‘personal jurisdiction.’ ” This Court, however, rejected Iran’s argument because statutory and constitutional grounds for personal jurisdiction are different — a court must have both to hear a case. Accordingly, we held that a “defense resting on personal jurisdiction involving] a statutory claim” does not preserve “the separate constitutional ground for a claim of lack of in personam jurisdiction.” Id. This reasoning .applies with equal force here: in their 2002 motion to dismiss, Appellees’ “only defense resting on personal jurisdiction involved” the FSIA and, therefore, they have waived “the separate constitutional ground for a claim of lack of in personam jurisdiction.” Id.

Appellees also argue that their personal-jurisdiction defense was not, “available” to them until the Supreme Court’s decision in Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). “[A] party is only required to consolidate Rule 12 defenses and objections that are ‘then available to the party.’ ” 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1388 (3d ed. 2014) (quoting Fed. R. Civ. P. 12(g)). A defense is “available” unless “its legal basis did not exist at the time of the answer or pre-answer motion, or the complaint does not contain facts sufficient to indicate that a defense was possible.” Chatman-Bey, 864 F.2d at 813 n.9 (citations omitted). At the time of Appellees’ pre-answer motion in 2002, the “legal basis” for their personal-jurisdiction defense did exist; there was no Supreme Court or in-circuit precedent rendering the personal-jurisdiction defense “for all practical purposes impossible for the defendants to interpose.” Id. In other words, the defense was “available” at the time.

An examination of the Second Circuit’s recent decision in Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016) illustrates the point. Second Circuit precedent “permitted general jurisdiction on the basis that a foreign corporation was doing business through a location branch office in the forum.” Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (citations omitted). The PA and PLO were arguably “doing business through a location branch office.” See Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 51-52 (2d Cir. 1991) (noting that the PLO owned a building in Manhattan that it used as an office). Consequently, in the Second Circuit, the “legal basis” for the PA and PLO’s personal-jurisdiction defense arguably “did not exist at the time” while this precedent was controlling. See Chatman-Bey, 864 F.2d at 813 n.9. In Daimler, the Supreme Court “expressly cast doubt on” that Second Circuit precedent. Gucci, 768 F.3d at 135. Accordingly, the Second Circuit held that the PA and PLO “did not waive or forfeit their objection to personal jurisdiction” because the objection was not “available” before Daimler. Waldman, 835 F.3d at 328.

No similar precedent existed in this Circuit and, therefore, the “legal basis” for Appellees’ personal-jurisdiction defense did exist at the time; the defense was “available.” See Chatman-Bey, 864 F.2d at 813 n.9. Therefore, Appellees waived their personal-jurisdiction defense by failing to assert it in their pre-answér motion.

III.

We next turn to the District Court’s vacatur of two defaults, whieh we review “for abuse of discretion, keeping in mind the federal policy favoring trial over default judgment.” Whelan v. Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995).

Appellants argue that Appellees were “essentially unresponsive” prior to the entry of two defaults, and that “should have been the end of the [District Court’s] inquiry.” Appellants’ Br. at 31-32. The Federal Rules of Civil Procedure delineate the standards governing the entry and vacatur of defaults and default judgments. See Fed. R. Civ. P. 55(a) (entering defaults), 55(b) (entering default judgments), 55(c) (vacating defaults), 60(b) (vacating default judgments). In H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C. Cir. 1970), this Court articulated the policy reasons for allowing default judgments: “when the adversary process has been halted because of an essentially unresponsive party...., the diligent'party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights.” Id. at 691; see 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2681 (3d ed. 2016) (discussing H.F. Livermore as an “apt expression” of the “policy reasons for allowing default judgments”). However, the rationale for entering default judgments does not govern the analysis for vacating defaults; this Court has never held that when a defendant has been “essentially unresponsive,” courts are forbidden from vacating defaults.

Rather, district courts may vacate “an entry of default for good cause.” Fed. R. Civ. P. 55(c). The “good cause” standard “frees a court ... from the restraints of Rule 60(b) [conditions for vacating default judgments] and entrusts the determination to the discretion of the court.” 10A Charles A. Wright, Arthur R. Miller & Mary K, Kane Federal Practice and Procedure § 2694 (3d ed. 2016). “[E]xercise of that discretion entails consideration of whether (1) the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense was meritorious.... ” Keegel v. Key W. & Caribbean Trading, 627 F.2d 372, 373 (D.C. Cir. 1980) (citations omitted).

Following the Keegel framework, the District Court first found that Appellees’ defaults were willful. Second, it found that vacatur would cause prejudice to Appellants, but mitigated the prejudice by requiring Appellees to: (a) reimburse Appellants for attorneys’ fees and costs incurred as a result of the default, (b) stipulate that Appellants “need not testify again and that their testimony from the damages hearing may be read into the trial record,” and (c) post a $1 million bond. J.A. 155-174. Third, the District Court found that Appellees raised “meritorious” defenses. For the purposes of vacating defaults, “[defendants’ allegations are meritorious if they contain even a hint of a suggestion which, proven at trial, would constitute a complete defense.” Keegel, 627 F.2d at 375 (internal quotation marks and citations omitted). Appellees satisfied this modest requirement. Even when a default is willful, a district court does not necessarily abuse its discretion by vacating a default when the asserted defense is meritorious and the district court took steps to mitigate any prejudice to the non-defaulting party. See, e.g., Whelan, 48 F.3d at 1258-59 (affirming the vacatur of a default as to most claims, despite “the record suggesting] intentional delay”).

Appellants argue that the District Court abused its discretion by considering factors other than those articulated in Keegel. Rule 55(c)’s “good cause” determination is a balance of the equities, Whelan, 48 F.3d at 1259-60, that is guided principally — but not exclusively — by the Keegel factors. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (observing that in addition to the Keegel factors, “[o]ther relevant equitable factors may also be considered”). The “good cause” standard is designed to empower courts to consider the equities that specially arise in a given case. See 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane Federal Practice and Procedure § 2696 (3d ed. 2016) (“Rule 55(c) is addressed to the trial court’s discretion, which is exercised in light of all the circumstances of the individual situation .... ”). Accordingly, the District Court properly credited the equitable considerations raised by the foreign defendants in this case, and did not abuse its discretion merely because those considerations fell outside the Keegel framework. The District Court ultimately determined that upon consideration of all the factors — those articulated in Keegel and not — this matter was best resolved on the merits, which is hardly a remarkable conclusion. See Keegel, 627 F,2d at 375 (“[C]ourts ... universally favor trials on the merits.” (internal quotation marks and citations omitted)).

In light of the “federal policy favoring trial over default judgment,” Whelan, 48 F.3d at 1258, we conclude the District Court did not abuse its discretion in finding “good cause” to vacate Appellees’ defaults.

IV.

We turn to consider the District Court’s denial of Appellants’ motion to compel the production of purportedly privileged materials, based on in camera review with the assistance of ex parte briefing.

Following years of discovery, Appel-lees submitted an untimely privilege log to Appellants. The log disclosed the existence of twenty-five pages of materials generated by the PA’s intelligence agency, but withheld those materials as privileged. At Appellants’ suggestion, the District Court reviewed the intelligence materials in camera. In response, Appel-lees explained to the District Court that it would be “very difficult ... to review the [intelligence materials] and reach an assessment of them without additional information that should not be disclosed publically or to [Appellants].” Mot. Hr’g Tr. 14:19-24, J.A. 296. Consequently, the District Court ordered Appellees to submit ex parte “an explanatory Memorandum of those documents, not to exceed 10 pages.” After reviewing the twenty-five pages of intelligence materials in camera with the assistance of the ex parte memorandum, the District Court concluded that the documents offered no relevant information that was not already in Appellants’ possession.

A.

Appellants argue that by deciding the motion based on in camera review with the assistance of the ten-page ex parte memorandum, the District Court violated Appellants’ Fifth Amendment due process rights.

The Supreme Court “has approved the practice of requiring parties who seek to avoid disclosures of documents to make the documents available for in camera inspection, and the practice is- well established in the federal courts.” United States v. Zolin, 491 U.S. 554, 569, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (citations omitted).

However, ex parte proceedings should be employed to resolve discovery disputes only in extraordinary circumstances. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986) (Ginsburg, R.B., J.) (“Only in the most extraordinary circumstances does our precedent countenance court reliance upon ex parte evidence to decide the merits of a dispute.”), “The openness of judicial proceedings serves to preserve both the appearance and the reality of fairness in the adjudications of United States courts.” Id. at 1060-61. Nevertheless, “communications between a judge and one party are not per se deprivations of the due process rights of the opposing party — ” Clifford v. United States, 136 F.3d 144, 149 (D.C. Cir. 1998) (citation omitted).

In Clifford, this Court catalogued some of the circumstances in which ex parte submissions have been permitted:

Ex parte submissions are permissible to determine whether documents sought by a party enjoy a privilege against discovery, see In re Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. Unit B 1981); cf. Kerr v. United States Dist. Court, 426 U.S. 394, 405, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), ‘to prevent frustration of a statutory purpose to limit access to Government papers,’ In re Taylor, 567 F.2d 1183, 1188 (2d Cir. 1977), or ‘to resolve fears of intimidation of a witness,’ In re Paradyne Corp., 803 F.2d [604][,] 612 [ (11th Cir. 1986) ].

136 F.3d at 149; see also Abourezk, 785 F.2d . at 1060-61 (listing similar exceptions).

These “extraordinary circumstances” share a common feature: the need for secrecy in light of the substantial adverse consequences of disclosure. Here, Appellants sought intelligence materials generated in the midst of a geopolitical conflict. The District Court was tasked with evaluating the discoverability of those materials, which would have been challenging without proper context. In light of the sensitive nature of the disputed materials and the foreign policy implications of disclosure, this case presents one of the “extraordinary circumstances” in which it was not improper for the District Court to consider a ten-page ex parte explanatory memorandum. See Abourezk, 785 F.2d at 1060-61.

B.

Appellants also challenge the substance of the District Court’s decision to deny their motion to compel. “We review district court rulings on discovery matters solely for abuse of discretion, reversing only if the party challenging the decision can show it was clearly unreasonable, arbitrary, or fanciful.” Bowie v. Maddox, 642 F.3d 1122, 1136 (D.C. Cir. 2011) (internal quotation marks and citations omitted).

Appellants first argue that Appellees waived any privileges and, in the alternative, that no privilege protects the intelligence materials in dispute. We need not address whether Appellees properly invoked any privileges over the intelligence materials because the District Court acted within its discretion under Federal Rule of Civil Procedure 26(b). Under Rule 26(b), the scope of discovery is defined, in part, by “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R, Civ. .P, 26(b)(1). Indeed, “[o]n motion or on its own, [a] [district] court must limit the frequency or extent of discovery otherwise allowed ... if it determines that ... the discovery sought is unreasonably cumulative or duplicative. ...” Fed. R. Civ, P. 26(b)(2)(C). “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly....” Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).

The District Court examined the twenty-five pages of intelligence materials and concluded, as to the “likely benefit” of the proposed discovery, that the “documents had no, great significance” to Appellants’ claims. Then, it concluded that the proposed discovery would “undermine important interests”, of Appellees, quoting Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). Appellants argue that the District Court erred because Societe Nationale applies only to sovereign states and that the Palestinian Authority is not one. But, that is beside the point; imposition on the “important interests” of Appellees is properly weighed as a “burden” under Rule 26(b), without regard to whether any party is a sovereign. See In re Sealed Case (Medical Records), 381 F.3d 1205, 1215-18 (D.C. Cir. 2004) (reversing an order granting a motion to compel because the district court failed to weigh privacy interests as a “burden” under Rule 26). The District Court, determining that .the “burden” of discovery outweighed the “likely benefit” and discharging its duty to limit “unreasonably cumulative” discovery, exercised its “broad discretion [under Rule 26] to tailor discovery narrowly....” See Crawford-El, 523 U.S. at 598, 118 S.Ct. 1584.

Having reviewed the twenty-five pages of foreign intelligence materials, we conclude the District Court’s decision was not “clearly unreasonable, arbitrary, or fanciful,” and therefore not an abuse of discretion. See Bowie, 642 F.3d at 1136.

y.

Finally, we turn to the District Court’s grant of summary judgment in Appellees’ favor, which was entirely predicated' -on rulings that deemed Appellants’ evidence inadmissible hearsay.

“Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).

“[W]e review a trial court’s evidentiary rulings for abuse of discretion and even if we find error, we will not reverse an otherwise valid judgment unless appellants] demonstrate[ ] that such error affected [their] substantial rights.” Bowie, 642 F.3d at 1134 (citation omitted). The District Court ruled that Appellants’ evidence was inadmissible hearsay and “sheer hearsay ... counts for nothing on summary judgment.” Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal quotation marks and citations omitted). “While a nonmovant is not required to produce evidence in a form that would be admissible at trial, the evidence still must be capable of being converted into admissible evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (emphasis in original).

“[E]xcept in the extraordinary situation of plain error, no error can be claimed if at the time of the judge’s ruling the counsel had made no offer of proof that would have fulfilled the condition[s] [of admissibility].” United States v. Burnett, 890 F.2d 1233, 1240 (D.C. Cir. 1989) (citing Fed. R. Evid. 103(a)(2), (d)); see also 5 Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 103.20[5] (2d ed. 2013) (“In making an offer of proof, counsel must be careful to articulate every ground on which the evidence is admissible, since a ground not identified at trial will not provide a basis for reversal on appeal.”). The requirements to articulate grounds for admissibility and to support those grounds with an offer of proof are especially pertinent where, as here, the proponent made little effort to assist the District Court in making the evidentiary rulings.

A.

The District Court excluded two web pages from the Israel Ministry of Foreign Affairs website, which Appellants characterized as “Israeli government reports identifying Force 17 and Abu Halawa as having executed the murder [of Gilmore], [which] are admissible under [Federal Rule of Evidence] 803(8)[ ].” J.A. 733.

“A record or statement of a public office” is admissible if “it sets out ... factual findings from a legally authorized investigation[ ] and ... the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8). “Rule 803(8)[ ] is to be applied in a commonsense manner, subject to the district court’s sound exercise of discretion....” In re Korean Air Lines Disaster, 932 F.2d 1475, 1481 (D.C. Cir. 1991) (quotation marks and citation omitted).

At the top of each web page was the banner for the Israel Ministry of Foreign Affairs and the author of each page was identified only as “IDF [Israel Defense Forces] Spokesman.” The first page offered background on Force 17, including an assertion that it was responsible for “[a] shooting attack in Jerusalem, in which a security guard was killed and another wounded (30 October).” J.A. 728. The second page announced the targeted killing of Halawa, who purportedly “took part in” Gilmore’s, murder. J.A. 729. The pages offer no information explaining who made the findings or how they were made.

Before the District Court, Appellants rested on a bare, one-sentence assertion that the web pages were admissible under Rule 803(8), but offered no further explication of how the pages conveyed “factual findings from , a legally authorized investigation,” Fed,. Ri Evid. 803(8). Without more, the District Court did not abuse its discretion by ruling that the two pages were not admissible under Rule 803(8). See In re Korean Air Lines Disaster, 932 F.2d at 1481.

B.

The District Court excluded excerpts from a non-fictiori book entitled The Seventh War, authored by an Israeli journalist, Avi Issacharoff (“Issacharoff’), who conducted an interview with a Palestinian prisoner, Karim Aweis (“Aweis”). The book excerpt offered the following account: “Ha-lawa told Aweis that he wanted to announce to the media that he assumed responsibility for the East Jerusalem attack [killing Gilmore] on behalf of a new military wing of Fatah.” J.A. 727.

This is triple hearsay: (1) Halawa’s statement to Aweis, (2) Aweis’s statement to Issacharoff, and (3) Issacharoff s written account. In order to be admissible, “each part of the combined statements [must] conform[] with an exception to the rule [against hearsay].” Fed. R. Evid. 805. The District Court ruled that Halawa and Aweis’s statements were inadmissible.

Appellants argue that Aweis’s statement was a party admission because Aweis was purportedly an “employee” of the PA. A statement is not hearsay if “[t]he statement is offered against an opposing party and ... was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). At the time of his statement, Aweis was serving six life sentences in prison, but was receiving payments from the PA’s Ministry of Prisoners and was purportedly continuing to receive military promotions. “Ordinarily, an agency relationship arises only where the principal has the right to control the conduct of the agent with respect to matters entrusted to the agent....” Atrium of Princeton, LLC v. NLRB, 684 F.3d 1310, 1315 (D.C. Cir. 2012) (internal quotation marks, alterations, and citations omitted); see also Restatement (Third) of Agenoy § 1.01 cmt. c (Am. Law Inst. 2006) (“The common law of agency ... encompasses the employment relation — ”). Appellants did not offer any evidence that, at the time of Aweis’s statement, Appellees still “ha[d] the right to control [his] ... conduct.” Therefore, the District Court did not abuse its discretion by concluding that Aweis’s statement was not a party admission.

Since it was not an abuse of discretion to exclude Aweis’s statement, it was also not an abuse of discretion to exclude the passage from The Seventh War, which recounted Aweis’s statement. See Fed. R. Evid. 805 (“[E]ach part of the combined statements [must] conform[ ] with an exception to the rule [against hearsay].”).

C.

The District Court excluded, the statement made by Mustafa Maslamani (“Mas-lamani”) while he -was in the custody of Israeli police. Maslamani wrote and signed a statement that read: “I myself, [Halawa,] and [one other person] were in a coffeehouse in Ramallah and the three of us were talking ... and ... Hallawa [sic] [said that] he perpetrated terrorist attacks,” including the one that killed Gilmore. J.A. 149.

Appellants argued that this statement was admissible .as a statement against interest. Assuming, without deciding, that Maslamani was “unavailable,” Appellants must still demonstrate that a “reasonable person in the declarant’s position” would think the statement, “expose[d] the declarant to civil or criminal liability.” Fed. R. Evid. 804(b)(3); accord United States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998). “The rationale of the statement against interest exception is that a reasonable person will not make a damaging statement against himself or herself unless it is true.” 5 Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.06[4][c] (2d ed. 2013).

Maslamani’s statement did not expose him to liability; he inculpated Halawa for Gilmore’s murder while exculpating himself. Appellants argue that Maslamani’s statements indicated his knowledge of and association with the criminal activities of Force 17, which exposed him to liability. However, Rule 804(b)(3) “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.” Williamson v. United States, 512 U.S. 594, 600-01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994); see also Fed. R. Evid. 804 advisory committee’s note to Exception (3) (“[A] statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.”). Therefore, the District Court did not abuse its discretion by concluding that Maslamani’s statement did not “expose [him] to civil or criminal liability[,]” Fed. R. Evid. 804(b)(3), and was not admissible under Rule 804(b)(3).

D.

The District Court excluded the statement of Bashar Khatib (“Khatib”), Halawa’s colleague, made during the trial of their supervisor, Mahmoud Damara (“Damara”). While in the custody of Israeli police, Khatib stated that he was the driver and Halawa was the shooter in Gilmore’s murder. During the trial of Damara, Khatib testified about the custodial statements he made to the police. Later, during the deposition in this case, Khatib denied having any knowledge of Gilmore’s murder and refused to explain any purported inconsistency with his testimony at trial.

Appellants argue that, at trial, Khatib confirmed the veracity of his custodial statement and, therefore, the trial testimony is admissible as a prior inconsistent statement “because Khatib repudiated that sworn trial testimony in his deposition in this case.” A statement is not hearsay if “[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement ... is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Fed. R. Evid. 801(d)(1)(A).

Appellants try to invoke Rule 801(d)(1)(A) based on a purported inconsistency between Khatib’s deposition testimony in this case and his prior trial testimony in Damara’s Israeli trial. Appellees argue that the statement fails to meet the requirements of the hearsay exception. We need not resolve all of the intricacies of this dispute. Even assuming Rule 801(d)(1)(A) applied to this circumstance, the Rule’s requirements are not met because the District Court reasonably concluded that the statements were not inconsistent. At the Israeli trial, Khatib was asked questions about a variety of incidents and people, including Halawa, Bashir Nafa, Omar Ka’adan, and Damara. When asked about Gilmore’s murder, he repeatedly insisted that it had “no connection to us” and refused to confirm his.custodial statement regarding Halawa’s involvement. Trial Tr. at 7, J.A. 667. Khatib was then asked;. “According to what I understand from you, everything you have said about, Muhannad Abu Halawa, about Bashir Nafa, Omar Ka’adan, everything is correct but whatever is related to [Damara] is incorrect. Correct?” Id. at 8, J.A. 669. Khatib responded: “Yes.” Id.

Appellants argue that this one-word answer to a compound question is confirmation, contrary to the rest of Khatib’s testimony, of his custodial, statement implicating Halawa. The District Court found “it [was] not at all clear that ... Khatib understood himself to be affirming the truth of his prior statements implicating ... Halawa.” J.A. 866. Given the trial testimony’s lack of clarity, it was not an abuse of discretion for the District Court to conclude that Khatib’s trial and deposition testimony were not inconsistent — he continuously refused to confirm his custodial statement — and that, therefore, the trial testimony could not be admitted as a prior inconsistent statement.

E.

Finally, the District Court declined to admit the report of Appellants’ expert, Alon Eviatar (“Eviatar”). Eviatar, a former Israel Defense Forces intelligence officer and Department Head of Palestinian Affairs, examined all of the evidence described above and opined that it was “more likely than not that .,. Halawa carried out the October 30, 2000 murder of Mr. Gilmore.”

District courts are assigned “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The test of reliability is “flexible” and “the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “[T]he expert must form his own opinions by ‘applying his extensive experience and a reliable methodology’ to the inadmissible materials. Otherwise, the expert is simply ‘repeating hearsay evidence without applying any expertise whatsoever,’ a practice that allows the [proponent] to ‘circumvent the rules prohibiting hearsay.’” United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (quoting United States v. Dukagjini, 326 F.3d 45, 58-59 (2d Cir. 2002)).

The District Court found that Evi-atar did not apply “a reliable methodology” to form his opinion about the inadmissible materials. Eviatar briefly described how, “as a rule,” the strength of analyses are evaluated by: “(i) the nature and/or quality of the available information and data; (ii) the variety and diversity of the sources and/or types of information and data; and (iii) cumulative experience and knowledge and .professional instincts and intuition.” Expert Report at 13, J.A, 899. However, he did not explain how this methodology led to his opinions. It was also unclear how Eviatar’s approach differed from that of a layperson; “where the jury is just as-competent to consider and weigh the evidence as is an expert witness and just as well qualified to draw the necessary conclusions therefrom, it is improper to use opinion evidence for the purpose.” Henkel v. Varner, 138 F.2d 934, 935 (D.C. Cir. 1943). Therefore, in light of the “broad latitude” to decide how to determine reliability, Kumho, 526 U.S. at 141-42, 119 S.Ct. 1167, it was not an abuse of discretion for the District Court to deny the admission of Eviatar’s expert report.

F.

In sum, the District Court did not abuse its discretion in excluding Appellants’ evidence, The only evidence connecting Halawa — and, therefore, Appellees — to Gilmore’s murder is inadmissible hearsay. “[S]heer hearsay ... counts for nothing on summary judgment.” Greer, 505 F.3d at 1315. Accordingly, the District Court did not err in granting summary judgment in favor of Appellees. See Fed. R. Civ. P. 56(a).

VI.

For the foregoing reasons, we affirm the judgment of the District Court.

So ordered.

      . Indeed, even default judgments may be vacated when the defaulting party was, for some period of time, "essentially unresponsive.” See Fed. R, Civ. P. 60(b) (listing several conditions unrelated to responsiveness or willfulness).

      . Appellants now point to other record materials that may have supported admission under Rule 803(8). However, Appellants did not make this offer of proof to the District Court and, therefore, failed to preserve a claim of error on the basis of those materials. See Burnett, 890 F.2d at 1240 ("[E]xcept in the extraordinary situation of plain error, no error can be claimed if at the time of the judge's ruling the counsel had made no offer of proof that would have fulfilled the condition[s] [of admissibility].”).

      . Appellants now also argue that Khatib’s testimony is admissible as a. statement against interest and as former testimony, However, by not raising those grounds in the lower court' proceedings, Appellants failed to preserve the claim of error. See Fed. R. Evid. 103(a). Furthermore, Appellants make no attempt to explain how this case presents “the extraordinary' situation of plain error” that would excuse their failure. Burnett, 890 F.2d at 1240.


author: TATEL, Circuit Judge: ROGERS, Circuit Judge,

text:
    Angelene HARDAWAY and Lena Hardaway, Appellants v. DISTRICT OF COLUMBIA HOUSING AUTHORITY, Appellee
    No. 14-7144
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 7, 2016
    Decided December 16, 2016

      Dina B. Mishra, appointed by the court, argued the cause as amicus curiae in support of appellants. With her on the briefs were Steven H. Goldblatt, Washington, DC, appointed by the court, and Sarah McDonough, Student Counsel.
    Lena. Hardaway and Angelene. Harda-way, pro se, filed the briefs for appellants.
    Alex M. Chintella, Washington, DC, argued the cause for appellee. With him on the brief were Frederick A. Douglas and Curtis A. Boykin. Nicola Grey, Washington, DC, and Mashanda Y. Mosley entered appearances.
    Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
   Opinion concurring in part filed by Circuit Judge ROGERS.

TATEL, Circuit Judge:

Appellants Angelene and Lena Harda-way (“the Hardaways”) challenge the District of Columbia Housing Authority’s (“the Authority”) denial of approval for a live-in aide to care for Angelene. That denial, they, argue, violates provisions, of the Americans with Disabilities Act, 42 U.S.C. § 12132, Rehabilitation Act, 29 U.S.C. § 794, and Fair Housing Act, 42 U.S.C. § 3604(f)(1). The district court dismissed the case on standing and mootness grounds and, in the alternative, granted summary judgment. Because these rulings were erroneous, we reverse. And because the district court abused its discretion in summarily denying the Hardaways’ motion to seal certain medical records, we reverse that decision as well.

I.

Because this case arises from the district court’s grant of a motion to dismiss and, in the alternative, summary judgment, we take the factual allegations contained in the complaint as true and draw all' reasonable inferences in the Hardaways’ favor. See Information Handling Services, Inc. v. Defense Automated Printing Services, 338 F.3d 1024, 1029, 1032 (D.C. Cir. 2003). Moreover, we construe those allegations liberally given that the Hardaways filed their complaint pro se. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

Under the Department of Housing and Urban Development’s (HUD) Housing Choice Voucher Program (“the program”), eligible families receive government subsidies to pay for “decent, safe, and sanitary housing.” 24 C.F.R. § 982.1(a)(1); see also 42 U.S.C. § 1437f (authorizing HUD to administer the program). State or local government entities called public housing agencies administer the program using funds HUD provides. 24 C.F.R. § 982.1(a)(1). Once a public housing agency selects a family to participate in the program, it issues that family a voucher based on the family’s size. Id. § 982.402(a)'. A family of one, for instance, normally receives a one-bedroom voucher. The program then works in a three-step process: First, the family “select[s] and rent[s] [a] unit that meet[s] program housing quality standards”; second, the public housing agency approves the unit and tenancy; and third, the public housing agency contracts with the unit’s owner to make rent subsidy payments on the family’s behalf. Id. § 982.1(a)(2).

In March 2013, the Montgomery County, Maryland Housing' Opportunities Commission (“the Commission”) selected An-gelene Hardaway to participate in the program. Based on a medical form provided by Angelene’s doctor, the Commission determined that Angelene has a disability and requires a live-in aide to care for hér. Because -HUD regulations mandate that “[a]ny live-in aide (approved by the [public housing agency] to reside in the unit to care for a family member who is disabled ...) must be counted in determining the family unit size,” the Commission issued Angelene a two-bedroom voucher, rather than a one-bedroom voucher. Id. § 982.402(b)(6). Lena Hardaway, Ange-lene’s sister, served as Angelene’s live-in aide.

Two months after being selected for the program, Angelene decided to move to the District of Columbia. Federal law requires that program vouchers be portable: once a family secures voucher assistance in one jurisdiction, it has a right to receive such assistance if it moves to another. See 42 U.S.C. § 1437f(r)(1); 24 . C.F.R. § 982.353(b). Relying on this guarantee, Angelene obtained a two-bedroom voucher from the Authority on June 6, 2013, and Angelene and Lena moved into a two-bedroom apartment in the District three weeks later.

The Hardaways were soon met with disturbing news. On July 9, they received a letter from the Authority revoking Ange-lene’s right to a live-in aide and, in turn, her legal entitlement, to a two-bedroom voucher. Two days later, the Hardaways filed a complaint in district court seeking both damages and injunctive relief. In the complaint, they alleged that the Authority’s denial of Angelene’s request for a reasonable accommodation of her disability violated provisions of the.Americans with Disabilities Act, 42 U.S.C. § 12132, Rehabilitation Act,. 29 U.S.C. § 794, and Fair Housing Act, 42 U.S.C. § 3604(f)(1). The Hardaways also sought a temporary restraining order and moved to seal their complaint, all medical records, and all “nondispositive materials.” Hardaway v. DCHA, No. 13-1232, ECF No. 8, at 1 (D.D.C. Aug. 29, 2013). The district court denied both motions. See Hardaway, No. 13-1232, ECF No. 5 (D.D.C. Aug. 9, 2013) (denying temporary restraining order); Hardaway, No. 13-1232, ECF No. 10 (D.D.C. Sept. 5, 2013) (denying motion to seal).

On September 26, while the Hardaways’ case was pending, the Authority sent another letter reaffirming that Angelene’s “request for a live-in aide has been denied” on the ground that “there was no documentation submitted with [her] request to support [her] need for a reasonable accommodation.” At the same time,.however, the letter stated that “this determination will not reverse the decision of the [program] to provide [Angelene] with a two (2) bedroom voucher.”

Shortly after sending this letter, the Authority moved to dismiss or for summary judgment, asserting that the Hardaways’ complaint failed to state a claim for which relief could be granted and that their claims were moot. The district court granted the Authority’s motion, holding on its own accord that the Hardaways lacked standing because they had alleged no injury in fact. “Nothing in plaintiffs’ Complaint,” the court reasoned, “indicates that the [Authority] denied [them] access to or participation in the [program] because of Angelene’s disability.” Hardaway, No. 13-1232, ECF No. 18, slip op. at 4 (D.D.C. July 30, 2014). And because,' in the court’s view, the Authority’s September 26 letter showed that it had “acquiesced to plaintiffs’ desired living arrangement,” the court determined that the Hardaways had suffered no cognizable harm. Id. at 5. For that reason, too, it concluded that their claims were moot. Id. n.3. The court dismissed the case with prejudice, and the Hardaways appealed. In considering the issues before us, we have been ably assisted by a court-appointed amicus.

II.

We review dismissals for lack of Article III jurisdiction de novo. See LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011) (standing); Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014) (mootness). We begin with standing and then-turn to mootness,

A.

Article III standing requires, among. other things, an injury in fact, which is “ ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural, or hypothetical.’” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). As the Supreme Court has emphasized, when the plaintiff is herself “an object of [government] aetion[,] ... there is ordinarily little question that the action ... has caused [her] injury.” Lujan, 504 U.S. at 561-562, 112 S.Ct. 2130. Indeed, this court has explained that standing is “self-evident” when the plaintiff is herself “the object of the challenged agency action.” Fund for Animals v. Norton, 322 F.3d 728, 734 (D.C. Cir. 2003). Critically for this case, the standing inquiry focuses on whether the plaintiff'has demonstrated an injury “at the outset of the litigation.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (“[Standing is assessed at the time of filing....”).

Applying these principles, we think it obvious that Angelene has demonstrated injury in fact. The Hardaways’ complaint alleges that Angelene received a July 9 letter from the Authority denying her “request for reasonable accommodation.” Construed liberally, the complaint clearly refers to a rescission of Angelene’s live-in aide approval. By revoking that approval, the Authority extinguished Angelene’s legal entitlement to a two-bedroom voucher because only approved live-in aides may count toward family-unit size. See 24 C.F.R. § 982.551(h)(2) (“No other person [i.e., nobody but members of the assisted family] may reside in the unit (except for a ... live-in aide-).”); id. § 982.551(h)(4) (“If the [public housing agency] has given approval, ... a live-in aide may reside in the unit.”). As a result, Angelene instantly became vulnerable to losing both her round-the-clock care and her home. The Hardaways filed them complaint two days after receiving the letter.

At the outset of the litigation, then, the Authority had just stripped Angelene of a government benefit to which she claimed a legal entitlement. Because Angelene was thus the “object” of government action, there should have been “little question” that she suffered cognizable injury. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Said otherwise, by rescinding Angelene’s claimed statutory entitlement to a live-in aide and two-bedroom voucher, the Authority’s July 9 letter “inva[ded] ... a legally protected interest,” and that invasion was “concrete and particularized” because it denied her care and could well have led to her eviction. See Spokeo, 136 S.Ct, at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130); see also Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994) (threatened eviction is concrete and particularized harm). This analysis shows why plaintiffs have long been empowered to challenge the rescission of government benefits in federal court. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d. 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); see also Americans for Safe Access v. DEA, 706 F.3d 438, 445-46 (D.C. Cir. 2013) (holding that injury in fact, was “clearly established]” where a veteran challenged a Veterans Administration policy denying him a benefit to which he claimed an entitlement).

The district court confused standing and mootness. In granting the Authority’s motion, the district court relied on the Authority’s September 26 letter reaffirming the live-in aide denial but “acquiesc[ing]’’ to Angelene’s retention of a two-bedroom voucher. Hardaway, No. 13-1232, ECF No. 18, slip op. at 5. But, as noted earlier, the standing inquiry trains attention on whether a plaintiff has alleged cognizable injury “at the outset of the litigation.” Friends of the Earth, 528 U.S. at 180, 120 S.Ct. 693. The mootness inquiry, by contrast, asks whether events subsequent to the filing of the complaint “have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” American Bar Association v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). Because the Authority sent the September 26 letter after the Hardaways filed their complaint, it should have played no role whatsoever in the district court’s standing analysis. That analysis should have turned exclusively on the July 9 letter, in which the Authority rescinded Angelene’s live-in aide approval.

The Authority argues that even if we focus on the time of filing, the Harda-ways’ complaint alleges no injury. Yet, as we have explained, when construed liberally, the complaint alleges a rescission of Angelene’s live-in aide approval through its reference to the Authority’s “denial-of participant request for reasonable accommodation.” And without such approval, Angelene lacked a legal entitlement to a two-bedroom voucher. At the pleading stage, a plaintiffs general allegation that the government has denied or revoked a benefit suffices to show injury-in fact.

With injury in fact established, the other two requirements for standing — causation and redressability, see Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 — flow easily: Angelene’s loss of a statutory entitlement traces directly to the Authority’s July 9 letter and would be redressed were we to direct the Authority to officially approve her live-in aide request. Because we conclude that Angelene has standing to bring this action, we need not reach amicus’s alternative contention that Lena has standing to sue under the Fair Housing Act. See Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) (“For each claim, if ... standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.”).

B.

Having determined that Ange-lene had standing at the time of filing, we turn to the question of mootness. As explained already, whereas standing is measured by the plaintiffs “concrete stake” at the outset of the litigation, mootness depends on whether the parties maintain “a continuing interest” in the litigation today. See Laidlaw, 528 U.S. at 191-92, 120 S.Ct. 693. Pointing to the Authority’s September 26 letter — which stated that it would “not reverse the decision of the [program] to provide [Angelene] with a two (2) bedroom voucher” — the district court saw no such continuing interest. Again, we disagree.

Although the Authority’s September 26 letter refrained from revoking' Angelene’s two-bedroom voucher, it expressly reaffirmed the denial of her live-in aide request. As a result, Angelene is legally entitled to only a one-bedróom voucher. The Authority’s permission for Angelene to keep a two-bedroom voucher thus amounts to an act of administrative grace, and it retains authority to revoke that voucher at any time. Indeed, as amicus points out, by permitting Angelene to keep a two-bedroom voucher after denying her live-in aide request (and without granting an official exception based on Angelene’s handicap, see 24 C.F.R. § 982.402(b)(8)), the Authority appears to be violating HUD regulations, which allow only approved live-in aides to reside with an assisted family, see id, § 982.551(h)(2) (“No other person [i.e. nobody but members of the assisted family] may reside in the unit (except for a ... live-in aide....).”); id. § 982.551(h)(4) (“If the [public housing agency] has given approval, a ... live-in aide may reside in the unit.”). Angelene therefore continues to suffer the same injury that she sustained at the outset of the litigation: denial of a legal entitlement to a two-bedroom voucher, which renders her perpetually vulnerable to having that voucher revoked. Consequently, her claims are not moot.

Even if the Authority could lawfully allow Angelene to retain the two-bedroom voucher and assured us that it would not withdraw that accommodation in the future, Angelene’s claim would still present a live controversy. For a case to be rendered moot through the defendant’s voluntary cessation of a challenged practice, it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). “The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Id.

Here, the Authority has failed to provide any evidence that it will refrain from revoking Angelene’s two-bedroom voucher in the future. Instead, attempting to foist its burden onto the Hardaways, it argues that they have offered no evidence to prove that the Authority will rescind the voucher. Appellee’s Br. 19. This tactic ignores the Supreme Court’s command that “the party asserting mootness” must carry the “heavy burden” of proving 'mootness through cessation. Laidlaw, 528 U.S. at 189, 120 S.Ct. 693. At bottom, the Authority’s argument amounts to a meager “promise not to” revoke the voucher. See Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718, 725 (D.C. Cir. 2012), Unfortunately for the Authority, courts never permit parties to deprive them of jurisdiction through a mere “wave of [the] hand.” Id. at 724,

III.

This brings us, finally, to amicus’s argument that the district court erred in denying the Hardaways’ motion to seal their complaint, all medical records, and all non-dispositive materials. We review that denial for abuse of discretion. EEOC v. National Children’s Center, Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996).

“The starting point in considering a motion to seal court records is a strong presumption in favor of public access to judicial proceedings.” Id. That said, in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), we set forth six factors “that might act to overcome this presumption”:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

National Children’s Center, 98 F.3d at 1409 (citing [Hubbard, 650 F.2d at 317-22).

[14] In this case, the district court offered scarce explanation for its denial of the Hardaways’ motion. It failed to consider the Hubbard factors, simply stating that: “The disability is a critical fact that must be alleged and proved in order for plaintiffs to prevail. It alone is not information so sensitive that all pleadings, discovery materials, and non-dispositive motions must be filed under seal.” Hardaway, No. 13-1232, ECF No. 10, slip op. at 2, The court also incorrectly assumed that “none of the documents filed in this action is a medical record,” id. n.l, when in fact a form containing a doctor’s description of Angelene’s disability had been docketed, see Hardaway, No. 13-1232, ECF No. 1 (D.D.C, Aug. 9, 2013). By failing to weigh the six relevant factors and miseharacter-izing the record, the district court abused its discretion. See National Children’s Center, 98 F.3d at 1410 (“Without a full explanation, we are unable to review the district court’s exercise of its discretion.”).

Because we are remanding to the district court, we could instruct it to consider the Hubbard factors and decide whether to seal the relevant documents. But given the clarity of the issue, we think it best to weigh the factors ourselves. The public has no need for access to documents that describe Angelene’s disability; Angelene, the plaintiff, has objected to their disclosure; and she possesses a strong privacy interest in keeping the details of her disability confidential. For its part, the Authority conceded at oral argument that it has no objection to sealing or redacting Angelene’s medical documents. Oral Arg. Rec. 34:33-39. As a result, the single medical form currently in the record, and all future medical records describing Angelene’s disability, must be sealed. In addition, descriptions of Angelene’s disability contained in any filing — including appellate briefs and appendices — should be or remain redacted. Contrary to the concurrence’s suggestion, nothing in this opinion limits the district court’s discretion in determining whether to seal current or future documents .unrelated to Angelene’s disability.

IY.

For the foregoing reasons, we reverse the district court’s grant of the Authority’s motion to dismiss or for summary judgment, as well as its denial of the Harda-ways’ motion to seal as it pertains to medical records and descriptions of Angelene’s disability. We also grant, in part, amicus’s motion to seal appellate briefs and appendices: all descriptions of Angelene’s disability should be.or remain redacted. We remand for further proceedings consistent with this opinion.

So ordered,

ROGERS, Circuit Judge,

concurring in part. I join the court’s opinion save in two respects.

First, I concur in holding that appellant Angelene Hardaway has standing under Article III of the Constitution, and that appellants’ claims arising out of denials of requests for accommodation under the Housing Choice Voucher Program — a federally funded program administered locally by the D.C. Housing Authority, see 42 U.S.C. § 1437f(b)(l)-r-are not moot.-

Due to her disability, Angelene had received approval in February 2013 from Montgomery County, Maryland for her sister Lena to serve as her live-in aide, entitling Angelene to a two-bedroom housing voucher. When she subsequently moved to the District of Columbia, she was issued a two-bedroom voucher by the D.C. Housing Authority pursuant to the voucher program’s portability requirements. See id. § 1437f(r)(1); 24 C.F.R. §§ 982.353(b), 982.355. A month later, however, the Authority, by letter of July 9, 2013, denied Angelene’s request for a live-in aide. See Compl. ¶ 13. That letter provided grounds to find that rescission of live-in aide approval jeopardized Angelene’s entitlement to a two-bedroom apartment under the voucher program. . See 28 C.F.R. § 982.402(b)(7), This was sufficient to establish the requisite injury-in-fact under Article III, and Angelene otherwise meets the causation and redressibility requirements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The Authority’s September 26, 2013, letter, which affirmed the denial of a live-in aide but did not rescind the two-bedroom voucher, did not moot appellants’ claims. See Already, LLC v. Nike, Inc., — U.S. —, 133 S.Ct. 721, 726-27, 184 L.Ed.2d 553. (2013). That letter did not cite authority under which Angelene remained entitled to a two-bedroom unit once the Authority had disapproved her live-in aide. Neither did it indicate that Lena Harda-way qualified as a family member under 24 C.F.R. § 982.551(h)(2). Nor did it otherwise establish that Angelene’s legal entitlement to a two-bedroom apartment was unaffected by the líve-in-áide denial. It thus' appears that the Authority’s September 26 letter amounts to nothing more than “an act of administrative grace.” Op. at 979.

Because it is unnecessary, at this stage of the proceedings, for the court to decide more, and the matter has not been fully briefed, however, I would defer opining on whether appellants faced eviction or whether the Authority could lawfully acquiesce to appellants remaining in the two-bedroom apartment.

Second, I concur in holding that the district court abused its discretion in denying appellants’ motion to seal because it failed to apply the factors in United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980), and erred in finding no medical record had been filed, see Order at 2 n.1 (Sept. 5, 2013). Appellants moved to seal in part because public disclosure of Angelene’s medical records relating to her disability could adversely affect her employment prospects. Mot. to Seal at 2. In the district court, the Authority did not dispute her assertion about adverse impact on her employment prospects, and on appeal expressed no objection to such sealing, Oral Arg. Rec. 34:33-39. Regardless, notwithstanding the strong presumption that the public shall have access to judicial proceedings, see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), I concur in holding that Angelene’s medical records relating directly to her disability that are currently in the record on appeal, and the redacted portions of the joint appendix on appeal, appellee’s brief, and the opening brief filed on her behalf by amicus, should be sealed.

As regards additional sealing, the court has decided to opine regarding certain documents that may be presented in future proceedings. Op. at 980-81. I would leave that question to the district court to decide, in the first instance, upon applying the Hubbard factors, and taking into account appellants’ pro se status. See Order at 2 n.l (Sept. 5, 2013). It is not inconceivable that future distinctions may be appropriately drawn, even as to types of medical records.