author: CLAY, Circuit Judge.

text:
    SeTara TYSON, Plaintiff-Appellee/Cross-Appellant (15-1465 & 15-1468), v. STERLING RENTAL, INC., dba Car Source, Defendant-Appellant/Cross-Appellee (15-1465 & 15-1468), Al Chami; Rami Kamil, Defendants-Appellees (15-1468).
    Nos. 15-1465/1468
    United States Court of Appeals, Sixth Circuit.
    Argued: August 4, 2016
    Decided and Filed: September 2, 2016

      ARGUED: Ziyad Eased, Eased Law, PLLC, Troy, Michigan, for Appellant/Cross-Appellee in 15-1465 and 15-1468 and for Appellees in 15-1468. Deepak Gupta, Gupta Wessler PLLC, Washington, D.C., for Appellee/Cross-Appéllant. ON BRIEF: Ziyad Eased, Eased Law, PLLC, Troy, Michigan, for Appellant/Cross-Ap-pellee in 15-1465 and 15-1468 and for Ap-pellees in 15-1468. Deepak Gupta, Gupta Wessler PLLC, Washington, D.C., Ian B. Lyngklip, Lyngklip & Associates, South-field, Michigan, for Appellee/Cross-Appel-lant.
    Before: BOGGS, CLAY, and SUTTON, Circuit Judges.
   OPINION

CLAY, Circuit Judge.

In this case arising out of the sale of an automobile, Defendants Sterling Rental, Inc., dba Car Source (“Car Source”), Al Chami, and Rami Eamil appeal from the district court’s order granting Plaintiff SeTara Tyson summary judgment on her claim that Defendants violated the Equal Credit Opportunity Act (“ECOA” or “the Act”), 15 U.S.C. § 1691 et seq., by changing the terms of her credit arrangement without providing a written notice setting forth the specific reasons. Plaintiff cross-appeals, arguing that the district court erred by: (1) holding that, private parties may not obtain injunctive relief under the ECOA; and (2) granting Defendants’ motion for summary judgment as to Plaintiffs claims for conversion on the basis that such claims are barred by Michigan’s economic loss doctrine.

For the reasons set forth below, we AFFIRM the district court’s grant of summary judgment' in favor of Plaintiff on her ECOA claim; we REVERSE the district court’s determination that injunctive relief was not available to Plaintiff under the ECOA, and we REMAND for an initial determination of whether such relief is warranted; and we REVERSE the district court’s grant of summary judgment in favor of Defendants on Plaintiffs statutory conversion claims and REMAND for further proceedings on those claims.

BACKGROUND

Factual History

On August 10, 2013, Plaintiff purchased a used 2006 Chevrolet Cobalt from Car Source for $8,525.00. Plaintiff could not afford to pay that price outright, but she was able to put $1,248 towards a down payment with the help of a grant from the state of Michigan. Defendants told Plaintiff that she had been approved for financing of the remainder of the vehicle’s purchase price. To aid in the preparation of a financing agreement, Plaintiff provided Car Source salesman Rami Kamil with copies of her two most recent pay stubs, as well as a recent bank statement. With these documents in hand, Kamil entered Plaintiffs financial information — including the date she began working at her job, her year-to-date earnings, and the fact that she received paychecks every two weeks- — • into a computer program called “CAPS” provided to Car Source by non-party Credit Acceptance Corporation (“CAC”). Using the data entered by Kamil, CAPS calculated that Plaintiffs monthly income was approximately $1,817.38.

The parties do not dispute that this estimate of Plaintiffs monthly income was incorrect. In fact, Plaintiffs pay stubs indicated that her actual income was closer to $900 per month. CAC’s designated representative, Jon Lun, later testified at deposition that based on his knowledge of the CAPS software, it appeared that Kamil had entered Plaintiffs information into the program incorrectly. Lun opined that had Kamil used CAPS correctly, the information on Plaintiffs pay stubs would have accurately estimated her monthly income. For his part, Kamil asserted during deposition that Plaintiff told him she was paid about $900 every two weeks; thus, he had no reason to question CAPS’s estimate that Plaintiffs monthly income was $1,817.38.

Kamil thereafter used CAPS to “structure” a financing agreement by setting the price of the vehicle, the amount of Plaintiffs down payment, the APR, and the amount of monthly payments. Kamil stated that he structured the agreement so that Plaintiffs monthly payments would stay below a certain dollar amount, calculated by CAPS, that was a set percentage of Plaintiffs estimated monthly income. According to Kamil, so long as Plaintiffs monthly payments stayed below that specified amount, the financing agreement would be “funded” by CAC. Kamil explained that after a financing agreement was structured by Car Source, Car Source would assign the agreement to CAC, which would then “fund” the agreement by paying Cai' Source an advance. However, in the event the terms of the financing agreement were not acceptable to CAC, CAC would not issue an advance and would only collect monthly payments. In that scenario, the purchaser’s monthly payments would go towards a “pool” of loans assigned to CAC, and Car Source would receive profits on a “zero-advance” agreement only after CAC had been reimbursed for the advances paid to Car Source on all the agreements in the pool.

Kamil testified that in addition to maximizing the chance of receiving an advance on Plaintiffs financing agreement, he structured the agreement with the goal of keeping Plaintiffs monthly payments near the maximum amount allowed by CAC. Keeping the payments high, he explained, would help to covfer his credit risk. With these goals in mind, Kamil manipulated the APR on the loan until CAPS’s calculations suggested that ideal terms had been achieved. Under those terms, which were based on the incorrect estimate of Plaintiffs income and her $1,248 deposit, the APR on Plaintiffs loan was set at 24.49%.

When the terms of Plaintiffs financing agreement had been finalized, Kamil used the CAPS software to generate two physical documents: a Retail Installment Contract (the “RIC”) and a “multi-state application” for credit from CAC (the “credit application”). On the first page of the two-page credit application, Plaintiffs monthly income was listed as $1,817.38. The second page of the application stated that by signing, Plaintiff was “certifying] that the above information is complete and accurate.” (R. 83-1, PagelD 310.) Plaintiff signed the document, but the parties dispute whether the first page of the credit application was attached at that time. Plaintiff also signed the RIC, which contained the material terms of the financing agreement and listed Car Source as the “Creditor-Seller.” (R. 33-2, PagelD 312.) Notably, the RIC contained a clause automatically assigning the contract to CAC upon execution. Finally, Plaintiff signed an “RD-108” form prepared by Car Source, which operated to register Plaintiffs title to the vehicle with Michigan’s Secretary of State. After the paperwork had been signed, Plaintiff received the keys to the car and a receipt; she left the dealership in her new car that day.

The precise circumstances surrounding what happened next are disputed by the parties. It is undisputed, however, that Plaintiff drove her car back to Car Source on August 12, 2013 — two days after the sale — in response to a phone call from Kamil. When Plaintiff arrived at the dealership, a Car Source employee told her that the RIC would need to be modified. It seems that during those two intervening days, CAC informed Car Source that it would not be paying an advance on the financing agreement due to the discrepancy in Plaintiffs monthly income. Plaintiff was given an invoice stating that under her. new financing agreement, she- would need to put an additional $1,500 towards a down payment. Plaintiff declined to sign the new agreement and ultimately left the Cobalt with Car Source.

Plaintiff paints a more troubling picture of that day’s events. She asserts that she returned to Car Source on August 12, 2013, after Kamil called and told her that her car required a new GPS unit, and that without the unit her car might shut off without warning. She was also informed that Car Source had a new contract for her to sign, under which she would make lower monthly payments. Plaintiff testified that she traveled to the dealership and parked outside; she entered the showroom and gave her keys to a Car Source employee. At that point, she was asked to produce her copy of the RIC. When Plaintiff responded that she had not brought her copy, the employee began “yelling and swearing” at her. Plaintiff states that a porter then retrieved the personal belongings in the Cobalt and “dumped them” at her feet. According to Plaintiff, she was told that if she wanted her car back, she would have to make an additional payment of $1,500.

Importantly, it is undisputed that Plaintiff was never provided with written notice explaining why the terms of her credit arrangement had been or needed to be changed. In fact, Kamil testified at deposition that Car Source never “issue[s] adverse action notices” informing customers that “they’ve been denied credit and telling them why.”

Procedural History

Plaintiff filed suit against Defendants in federal district court on August 14, 2013— two days after leaving her car with Car Source. Her complaint alleged that she was entitled to damages and injunctive relief for, inter alia: (1) Car Source’s failure to provide an adverse action notice as required under the ECOA, 15 U.S.C. § 1691(d); and (2) Defendants’ conversion of the vehicle under Michigan common law and Mich. Comp. Laws § 600.2919a. After the completion of discovery, the parties filed cross-motions for summary judgment. The district court granted Plaintiffs motion as to her claims brought under the ECOA, holding that undisputed evidence in the record established Car Source’s status as a “creditor” subject to the ECOA’s adverse action notice requirement, and that Car Source admitted that it never issues such notices. However, the district court denied Plaintiffs request for an injunction, holding that as a matter of law, equitable relief is not available to private parties under the ECOA. The court also partially granted Defendants’ motion and dismissed Plaintiffs claims for conversion, holding that such claims were barred by Michigan’s “economic loss doctrine.” The court denied the parties’ motions for reconsideration.

The parties thereafter agreed to resolve all remaining claims by stipulation, and the district court entered an order to that effect. The parties timely appealed.

DISCUSSION

I. Standard of review

We review a district court’s grant of summary judgment de novo. Little v. BP Expl. & Oil Co., 265 F.3d 357, 361 (6th Cir. 2001). A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of material fact is genuine so long as “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “The district court, and this Court in its review of the district court, must view the facts and any inferences reasonably drawn from them in the light most favorable to the party against whom judgment was entered.” Kalamazoo Acquisitions, L.L.C. v. Westfield Ins. Co., Inc., 395 F.3d 338, 342 (6th Cir. 2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

II. Plaintiffs claims under the ECOA

Originally enacted in 1974, the ECOA prohibits creditors from discouraging or discriminating against any credit applicant “with respect to any aspect of a credit transaction ... on the basis of race, color, religion, national origin, sex or marital status, or age.” 15 U.S.C. § 1691(a); see also RL BB Acquisition, LLC v. Bridgemill Commons Dev. Grp., LLC, 754 F.3d 380, 383 (6th Cir. 2014) (“Congress enacted [the] ECOA in 1974 to eradicate credit discrimination waged against women, especially married women whom creditors traditionally refused to consider for individual credit.” (internal quotation marks omitted)), In 1976, Congress amended the ECOA to include a provision requiring creditors to provide applicants with written notice of the specific reasons why an adverse action was taken in regards to their credit. See 15 U.S.C. § 1691(d)(2)-(3); see also Treadway v. Gateway Chevrolet Oldsmobile Inc., 362 F.3d 971, 975 (7th Cir. 2004). The Senate report accompanying the 1976 amendment indicates that in addition to further discouraging discriminatory practices, the notice requirement is intended to provide consumers with a “valuable educational benefit” and to allow for the correction of possible errors “[i]n those cases where the creditor may have acted on misinformation or inadequate information.” S. Rep. No. 94-589, at 4 (1976).

Notwithstanding these purposes, our analysis of the ECOA’s notice requirement must begin with the statutory text. Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Under 15 U.S.C. § 1691(d)(2) and (3):

(2) Each applicant [for credit] against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by—
(A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; .or
(B) giving written notification of adverse action which discloses (i) the applicant’s right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of the person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises the applicant of his right to have the statement of reasons confirmed in writing on written request.
(3) A statement of reasons meets the requirements of this section only if it contains the specific reasons for the adverse action taken.

“Adverse action” is thereafter defined in § 1691(d)(6) as “a denial or .revocation of credit, a change in the terms of an existing credit arrangement, or a refusal to grant credit in substantially the amount or on substantially the terms requested.”

In this case, the parties do not dispute that Plaintiff fits the definition of an applicant who suffered an adverse action such that she was entitled to notice under § 1691(d). It is also undisputed that Car Source provided no such notice in this case — indeed, Kamil testified that Car Source never issues ECOA notices. Rather, the parties primarily dispute whether, in this instance, Car Source acted as a “creditor” under the Act and was therefore required to provide notice. And, as an ancillary matter, Plaintiff argues that the district court erred by holding that she could not obtain injunctive relief under the ECOA as a matter of law. We address these issues in turn.

A. Car Source is a “creditor” for the purposes of the ECOA’s notice requirement

The subsection of the ECOA defining “creditor” can be divided into three clauses, which state that for the purposes of the Act, a creditor is:

any person who regularly extends, renews, or continues credit;
any person who regularly arranges for the extension, renewal, or continuation of credit; or
any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.

15 U.S.C. § 1691a(e). Although the statutory language of the ECOA presents these clauses as a single, cohesive definition for “creditor,” the clauses are treated differently by the regulations promulgated under the Act by the Consumer Financial Protection Bureau (“CFPB”). See 15 U.S.C. § 1691b(a) (granting the CFPB authority to promulgate regulations “to carry out the [ECOA’s] purposes”). Those regulations are collectively known'as Regulation B. 12 C.F.R. § 1002.1(a).

Importantly, Regulation B distinguishes clause [2] by stating that persons qualifying as “creditors” under that clause — that is, those who merely arrange for credit by referring applicants to lenders' — are considered “creditors” solely for the purposes of the ECOA’s prohibitions on discrimination and discouragement. See 12 C.F.R. § 1002.2®. Under Regulation B, in other words, “creditors” who act as mere middlemen between applicants and lenders have no affirmative obligation to provide applicants with notice stating the reasons for any adverse action. Id.; see also Treadway, 362 F.3d at 978-80. As a result, Regulation B limits the class of creditors who are required to provide such notices to “person[s] who, in the ordinary course of business, regularly participate[ ] in a credit decision, including setting the terms of the credit;” also included are “a creditor’s as-signee, transferee, or subrogee who so participates.” 12 C.F.R. § 1002.2®; see also 12 C.F.R. Pt. 1002, Supp. I, cmt. 2ffi~2 (March 2003) (explaining that creditors “who do not participate in credit decisions” are subject only to the Act’s discrimination and discouragement provisions).

Viewing the record evidence in the light most favorable to Car Source, see Kalamazoo Acquisitions, L.L.C., 395 F.3d at 342, we agree with the district court that Car Source is a “creditor” subject to the ECOA’s notice requirement. There is no dispute that Car Source is, at the very least, a “person who regularly arranges for the extension, renewal, or continuation of credit,” such that it qualifies as a “creditor” under the statutory definition of that term. See 15 U.S.C. § 1691a(e). The deposition testimony of Rami Kamil likewise establishes that Car Source is a “creditor”, required to provide notice under Regulation B’s definition of that term because Car Source “regularly participates in [the] credit decision” by “setting the terms of the credit.” 12 C.F.R. § 1002.2®. Indeed, Kamil agreed that Car Source “structure[s]” customers’ financing agreements by determining “how much to charge them ... [a]nd how much interest ... [a]nd how big the payments are.” (R. 44-2, Kamil Dep., PagelD 670-71, 687) Jon Lun similarly agreed that when Car Source is preparing a financing deal that will ultimately be assigned to CAC, “the terms of the deal are totally up to” Car Source. (R. 41-10, Lun Dep., PagelD 512-13.)

Defendants’ primary argument on appeal is that Car Source served as a mere middle-man between Plaintiff and CAC, and that CAC was the true “creditor” with responsibility for providing Plaintiff with notice of any adverse action. We find this argument unavailing. Both Kamil and Lun testified that CAC’s only role in the transaction was to determine whether it would pay Car Source an “advance” on Plaintiffs financing agreement, the terms of which were set by Car Source. The consequences of CAC’s determination regarding an advance fell entirely on Car Source — under any circumstance, CAC would collect payments under the terms set by Car Source, and Plaintiff would be none the wiser. When CAC informed Car Source that no advance would be issued on Plaintiffs financing deal, it was Car Source’s sole decision to react by presenting Plaintiff with an ultimatum that effectively changed the terms of her existing credit arrangement. See 15 U.S.C. § 1691(d)(6). When coupled with its regular participation in credit decisions, Car Source’s unilateral decision to take that adverse action triggered an obligation to provide Plaintiff with a written statement of its specific reasons for doing so. See id. § 1691(d)(2).

Notably, this conclusion comports with the Seventh Circuit’s reasoning in Tread-way, upon which the district court in this case relied. See 362 F.3d at 978-81. In Treadway, the defendant car dealership argued that it was not a “creditor” subject to the ECOA’s notice requirement because it merely declined to forward the plaintiffs credit application to any lenders after determining she was not creditworthy. Id. at 974. After analyzing Regulation B and its accompanying comments, the court- in Treadway concluded, as we do above, that the regulation typically operates to exempt middle-man “creditors” from the ECOA’s notice requirements. Id. at 979-80 (citing 12 C.F.R. Pt. 1002, Supp. I, cmt. 2ffi-2, and 68 Fed. Reg. 13155 (March 18, 2003)). Nevertheless, the court determined that under certain circumstances, creditors purporting to be mere middle-men may still be required to provide notice of an adverse action. Id. (“[TJhere is a continuum of participation in a credit decision.... At some point along the continuum, a party becomes a creditor for purposes of the notification requirements of the Act.” (internal quotation marks omitted)). After noting several ways in which the defendant dealership regularly “participated” in credit decisions, the court emphasized that the dealership essentially denied the plaintiffs credit application — i.e., took the adverse action — by declining to refer the application to any potential lenders. Id. át 980-81. On those bases, the court held that the dealership was subject to the ECOA’s notice requirement. Id. at 981.

Although the facts of this case are distinguishable from those of Treadway, we agree with Treadway insofar as it held that any “creditor” — middle-men included — that regularly participates in credit decisions and takes an adverse action with regard to a credit application bears the burden of providing notice under the ECOA. As discussed above, there is no question that Car Source fits that bill because Car Source, not CAC, makes the credit decisions and its ultimatum “change[d] ... the terms of [Plaintiffs] existing credit arrangement.” 15 U.S.C. § 1691(d)(6).. Thus, regardless of whether Car Source is a middle-man creditor subject to Treadway’s “continuum” analysis, we would hold that Car Source is subject to the ECOA’s notice requirement.

Defendants’ remaining arguments are similarly unpersuasive. Defendants contend, for example, that Car Source’s status as a “creditor” is somehow affected by its use of CAC’s copyrighted CAPS software and template contracts when preparing Plaintiffs financing agreement. This argument finds no support in either common sense, or the statutory or regulatory definitions of “creditor.” See 15 U.S.C. § 1691a(e); 12 C.F.R. §1002.2®. The ECOA would be a paper tiger if creditors could insulate themselves from liability simply by using a third party’s copyrighted forms or software when preparing a credit application. Nor do Defendants provide any authority to support their argument that their obligation to provide notice was affected by Plaintiffs actions (e.g., allegedly abandoning her car on Car Source’s lot) after Defendants took the adverse action. Finally, we note that the arguments made by Defendants for the first time in their reply brief — most of which range from legally irrelevant to potentially frivolous— are waived. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010) (observing that this Circuit has “consistently held ... that arguments made to us for the first time in a reply brief are waived”).

Based on the above, we conclude that the district court did not err by granting Plaintiffs motion for summary judgment on her claim under the ECOA.

B. Injunctive relief is available to private parties under the ECOA

Although the district court granted Plaintiffs motion for summary judgment on her ECOA claim, the court denied Plaintiffs request for injunctive relief on that claim after concluding that such relief is not available to private parties under the ECOA. In support of this conclusion, the court cited 12 C.F.R. § 1002.16(b)(4), which states:

On referral, or whenever the Attorney General has reason to believe that one or more creditors have engaged in a pattern or practicé in violation of the [ECOA] or this part, the Attorney General may bring a civil action for such relief as may be appropriate, including actual and punitive damages and injunc-tive relief.

As Plaintiff notes, however, this regulatory provision does not have the effect of limiting the availability of injunctive relief to the Attorney General. More importantly, the statutory provision governing the types of relief available to private parties under the ECOA explicitly states that “[u]pon application by an aggrieved applicant, the appropriate United States district court or any other court of competent jurisdiction may grant such equitable and declaratory relief as is necessary to enforce the requirements imposed under [the Act].” 15 U.S.C. § 1691e(c) (emphasis added). As the emphasized language suggests, the ECOA provides applicants for credit— i.e., private parties — with the right to seek equitable relief.

Although we review the denial of equitable relief under a deferential abuse of discretion standard, Anchor v. O’Toole, 94 F.3d 1014, 1025 (6th Cir. 1996), we have held that “[a]n abuse of discretion occurs when the district court ... improperly applies the law.” Balsley v. LFP, Inc., 691 F.3d 747, 761 (6th Cir. 2012) (internal quotation marks omitted). Because the district court denied injunctive relief based on an incorrect understanding of the controlling law, remand is necessary so that the court may exercise its discretion and evaluate the appropriateness of such relief in the first instance.

III. Plaintiffs conversion claims

Plaintiffs complaint alleges that Defendants’ “repossession” of her vehicle after the sale constituted conversion at common law and a violation of Michigan’s statutory conversion law, Mich. Comp. Laws § 600.2919a. Under Michigan common law, conversion is defined as “any distinct act of dominion wrongfully exerted over another’s personal property.” Trail Clinic, P.C. v. Bloch, 114 Mich.App. 700, 319 N.W.2d 638, 640 (1982). Michigan’s statutory conversion law, on the other hand, states:

(1) A person damaged as a result of ... the following may recover 3 times the amount of actual damages sustained, plus costs and reasonable attorney fees:
(a) Another person’s stealing or embezzling property or converting property to the other person’s own use.
(2) The remedy provided by this section is in addition to any other right or remedy the person may have at law or otherwise.

Mich. Comp. Laws § 600.2919a. As recently explained by the Michigan Supreme Court in Aroma Wines & Equipment, Inc. v. Columbian Distribution Services, Inc., 497 Mich. 337, 871 N.W.2d 136, 145-46 (2015), § 600.2919a creates a cause of action wholly separate from the traditional tort of conversion — and although the statute comes with the added benefit of treble damages and a fee-shifting provision, it requires the plaintiff to prove that the defendant converted the property to his or her “own use.” Id. át 146-48.

Below, the district court held that all of Plaintiffs conversion claims were barred under Michigan’s “economic loss doctrine.” That common-law doctrine’s “basic premise is that economic losses that relate to commercial transactions are not recoverable in tort.” Quest Diagnostics, Inc. v. MCI WorldCom, Inc., 254 Mich. App. 372, 656 N.W.2d 858, 861 (2002). The district court reasoned that because Plaintiffs claims concern conversion of a vehicle acquired via a contract of sale, she is barred under the economic loss doctrine from seeking damages “under a corresponding tort action.” (R. 43, PagelD 586.) Plaintiffs arguments on appeal focus exclusively on Michigan’s statutory conversion law. She argues, for example, that the language of § 600.2919a(2) reflects the Michigan Legislature’s express intent that a cause of action for statutory conversion should remain available “in addition to any other right or remedy the person may have,” including those that sound in contract law. She also notes that Michigan adheres to the general maxim that statutes override conflicting common law rules. See, e.g., Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728, 732 n.8 (1994) (“Obviously, if there is a conflict between the common law and a statutory provision, the common law must yield.”). Defendants’ briefing provides no argument defending the district court’s ruling on Plaintiffs conversion claims.

We ultimately agree with Plaintiff that the district court erred in applying the economic loss doctrine to bar her statutory conversion claims. However, we base our conclusion on the fact that the doctrine does not apply under the circumstances of this case.

The origins and purposes of Michigan’s economic loss doctrine have been expounded upon at length. See, e.g., Detroit Edison Co. v. NABCO, Inc., 35 F.3d 236, 239-41 (6th Cir. 1994); Quest Diagnostics, 656 N.W.2d at 861-63; Neibarger v. Universal Coops., Inc., 439 Mich. 512, 486 N.W.2d 612, 615-18 (1992). For our purposes, it is sufficient to note two of the doctrine’s central tenets. First, the doctrine is premised on the idea that barring tort claims arising from a commercial transaction is appropriate where the risks giving rise to those claims were anticipata-ble and subject to the contractual bargaining process. Quest Diagnostics, 656 N.W.2d at 864 (“In order for the economic loss doctrine to bar recovery in tort, there must be a transaction that provides an avenue by which the parties are afforded the opportunity to negotiate to protect their respective interests.”); see also Neibarger, 486 N.W.2d at 615 (“Contract principles ... are generally more appropriate for determining claims for consequential damage that the parties have, or could have, addressed in their agreement.”); Llewellyn-Jones v. Metro Prop. Grp., LLC, 22 F.Supp.3d 760, 778 (E.D. Mich. 2014) (“The doctrine is animated by the idea that tort remedies should not bail out parties who could have anticipated losses caused by failed performance and negotiated an appropriate response.”).

Thus, the doctrine is classically used to bar recovery for product liability claims arising from a purchased good’s failure to live up to the buyer’s expectations:

Rational economic actors bargaining at arms length, in deciding both the extent of the seller’s liabilities and the purchase price, should consider the possibility that the product will not perform properly. ... As a result, the buyer or the seller or both will then spread the cost of this contingency out, as a cost of doing business, in the form of higher prices.

Detroit Edison Co., 35 F.3d at 240; see also Metro. Alloys Corp. v. Considar Metal Mktg., Inc., No. 06-12667, 2007 WL 2874005, at *5 & n.6 (E.D. Mich. Sept. 25, 2007) (collecting cases and opining that “the applicability of [Michigan’s] economic loss doctrine[] appears to be limited to efforts to recover ‘for economic loss caused by a defective product’ ” (emphasis omitted) (quoting Neibarger, 486 N.W.2d at 618)). Conversely, Michigan courts have declined to apply the doctrine to bar claims for fraud in the inducement because such fraud cannot reasonably be anticipated and accounted for in the bargaining process. See Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc., 209 Mich.App. 365, 532 N.W.2d 541, 545 (1995) (noting that fraud in the inducement undermines “the ability of one party to negotiate fair terms and make an informed decision”).

The second relevant tenet of the doctrine is a necessary corollary to the first: tort claims are barred under the doctrine only where the duty alleged to have been violated by the defendant is implicated by the relevant contract. See Neibarger, 486 N.W.2d at 615-16 (observing that the economic loss doctrine originates from the desire to reconcile overlapping duties arising from contractual relationships and tort law); Sherman v. Sea Ray Boats, Inc., 251 Mich.App. 41, 649 N.W.2d 783, 788 (2002) (citing Rinaldo’s Constr. Corp. v. Mich. Bell Tel. Co., 454 Mich. 65, 559 N.W.2d 647, 658 (1997), for the proposition that Michigan’s economic loss doctrine evolved out of the state’s more general common law rule prohibiting recovery in tort for violation of a duty imposed by a contract). We have explained that under Michigan law, “[n]ot all tort claims ... are barred by the existence of a contract. Rather, Michigan courts must inquire whether the legal duty allegedly violated by a defendant arises separately and distinctly from a defendant’s contractual obligations.” DBI Invs., LLC v. Blavin, 617 Fed.Appx. 374, 381 (6th Cir. 2015) (internal brackets and quotation marks omitted); see also Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895, 898 (1956) (“[I]f a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.” (quoting W. Prosser, Handbook of the Law of Torts, § 33 at 205 (1st ed. 1941))).

Together, these tenets indicate that the economic loss doctrine was inappropriately applied in this case. Defendants do not dispute that execution of the RD-108 and the RIC resulted in transfer of title to the vehicle to Plaintiff and assignment of Car Source’s lien on the vehicle to CAC; nor do they dispute that delivery of the vehicle to Plaintiff terminated Car Source’s possessory interest. Because Defendants’ contractual duties regarding title, possession, and delivery had effectively terminated by the time Plaintiff returned to Car Source on August 12, 2013, it cannot be said that her conversion claims are based on Defendants’ violation of a duty arising under the contract of sale. Moreover, post-delivery repossession by a non-lien-holding seller is not the sort of risk typically anticipated by buyers in the ordinary course of bargaining for a commercial transaction. Thus, Plaintiff could not reasonably have been expected to bargain against the possibility that Defendants would repossess the vehicle without any legal authority, which is what occurred under Plaintiffs version of disputed facts.

In coming to the contrary conclusion, the district court relied on the allegation in Plaintiffs complaint that Defendants’ “actions in taking possession of the vehicle [were] wil[l]ful or intentional, and in derogation of [t]he contract of sale.” (R. 32, PagelD 282-283 (emphasis added).) The court held that this allegation conclusively established that “plaintiffs conversion claims are simply a restatement of the duties defendants owed her under the contract.” (R. 48, PageID 766.) Notwithstanding the fact that Plaintiffs complaint clearly differentiates between her conversion claims and her claims based on Defendants’ contractual duties, the district court erred by treating this conclusory allegation as a settled matter of fact for the purposes of summary judgment. See, e.g., Gooden v. Memphis Police Dep’t, 67 Fed. Appx. 893, 895 (6th Cir. 2003) (“Concluso-ry allegations, speculation, and unsubstantiated assertions are not evidence.... ”). As discussed above, the facts borne out in discovery establish that by the time Plaintiff returned to Car Source, Defendants’ duties regarding possession of the vehicle no longer emanated from the contract of sale; rather, at that point in time, Defendants’ duty to refrain from wrongfully exerting dominion over Plaintiffs vehicle emanated from the policies underlying the tort of conversion.

Based on the above, we conclude that the district court erred by granting Defendants’ motion for summary judgment as to Plaintiffs claims for statutory conversion.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s grant of summary judgment in favor of Plaintiff on her ECOA claim; we REVERSE the district court’s determination that injunctive relief was not ■ available to Plaintiff under the ECOA, and we REMAND for an initial determination of whether such relief is warranted; and we REVERSE the district court’s grant of summary judgment in favor of Defendants on Plaintiffs statutory conversion claims and REMAND for further proceedings on those claims.

      . The district court’s order also granted summary judgment to Plaintiff on two additional claims that she brought under Michigan’s Motor Vehicle Sales Finance Act ("MVSFA”), Mich. Comp. Laws §492.101 et seq., and the Michigan Credit Reform Act ("MCRA”), Mich. Comp. Laws §445.1851 et seq. However, Defendants’ briefing before this Court does not identify those claims as issues presented for review; nor does Defendants’ briefing provide any argument on those claims. Thus, any challenges to the district court's grant of summary judgment to Plaintiff on her MVSFA and MCRA claims are deemed forfeited. See Fed. R. App. P. 28(a) (stating that an appellant's brief must include "a statement of the issues presented for review” and argument on those issues); Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir. 1995) ("We consider issues not fully developed and argued to be waived.”).

      . Defendants’ briefing argues at length that a genuine dispute exists with regard to whether Plaintiff "lied” when she signed the credit application stating that her monthly income was $1,817.38. But this dispute, assuming it exists, is relevant only insofar as it is material to Plaintiff’s claim under the ECOA's notice requirement. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (defining the facts "material” to summary judgment analysis as those “that might affect the outcome of the suit under the governing law”). To the extent Defendants argue the alleged dispute is material because lying on her credit application would disqualify Plaintiff from entitlement to notice, this argument finds no support in the text of the- ECOA or its implementing regulations. See, e.g., 15 U.S.C. § 1691a(b) (defining an "applicant” entitled to protection under the Act without reference to the truth of the information supporting her application for credit); 12 C.F.R. § 1002.2(e) (same); 12 C.F.R. § 1002.2(f) (defining an “application” triggering the Act’s protections without reference to the truth of the information contained therein). Defendants’ reliance on Lewis v. ACB Business Services, Inc., 135 F.3d 389 (6th Cir. 1998), in support of their argument is likewise unavailing: that case's pronouncements concerning “frivolous or nuisance disputes” and creditors’ discretion have nothing to do with the effect of an allegedly untruthful credit application on the applicability of the ECOA. See id. at 406. We therefore conclude that this alleged dispute is immaterial.

      . Under Defendants' version of the facts, upon Plaintiff’s return to Car Source in response to Kamil’s phone call, Plaintiff was told that her three options were: (1) maintain the current terms of her existing financing agreement and be sued for "lying” on her credit application; (2) exchange the Chevrolet Cobalt for a less expensive vehicle; or (3) keep the Chevrolet Cobalt and put an additional $1,500 towards a down payment. Kamil testified that he was not willing to allow Plaintiff to maintain the terms of the existing financing agreement without any adverse consequences. Defendants do not appear to dispute that presenting Plaintiff with these options constituted an "adverse action” under the Act.

      . As Tyson’s counsel acknowledged at oral argument, Tyson is appealing only the statutory conversion claims, not the common law conversion claim. Tyson thus forfeits the corn-mon law conversion argument on appeal. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009).

      . Notably, dealerships in Car Source’s position sometimes require buyers to sign so-called "spot delivery” or "conditional delivery” agreements to protect against the possibility that the buyers' applications for credit will not be approved for financing. See, e.g., Givens v. Van Devere, Inc., No. 5:11CV666, 2012 WL 4092738, at *1-2 (N.D..Ohio Sept. 17, 2012) (describing a "conditional delivery agreement” signed by the plaintiff car buyer which contained a provision stating: "if either I or the Dealership is unable to obtain third party financing approval or assignment of the contract/lease, ... I and/or the Dealership may cancel the purchase/lease contract and I must immediately return the vehicle to the Dealership”). Without commenting upon the enforceability or propriety of such agreements under Michigan or federal law, we note that no such conditional delivery agreement appears in the record for this case. Thus, in any event, delivery of the vehicle to Plaintiff appears to have rendered the sale final.


source: Caselaw Access Project

author: SUTTON, Circuit Judge. COLE, Chief Judge,

license: Public Domain

text:
    IN RE: 2016 PRIMARY ELECTION. Hamilton County Board of Elections (16-3350); Ohio Secretary Of State (16-3352); Butler County Board of Elections (16-3357), Appellants.
    16-3350
    16-3352
    16-3357
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: September 6, 2016

      Nos. l:16-mc-00005 — Susan J. Dlott, District Judge; Timothy S. Black, District Judge.
    COUNSEL, ON BRIEF: Roger S. Gates, Butler County Prosecutor’s Office, Hamilton, Ohio, David T. Stevenson, Cooper D. Bowen, Hamilton County Board of Elections, Eric E. Murphy, Stephen P. Carney, Peter T. Reed, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Rachel S. Bloomekatz, Gupta Wessler PLLC, Columbus, Ohio, for Arnica Curiae.
    Before: COLE, Chief Judge, and SILER and SUTTON, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

A revealing difficulty with this matter is what to name it. At the district court, the caption read “IN RE: 2016 Primary Election.” That’s all the court could say because the matter arose out of an anonymous phone call to the district court clerk’s office. The caller complained about an accident in the Cincinnati area that might make it difficult for voters to reach the polls before they closed at 7:30 p.m. on March 15, 2016, the date of Ohio’s primary election. The clerk’s office relayed the phone call to one of the judges of the district court, apparently no longer in the courthouse, who orally directed the clerk to enter the following order to keep polling locations in four counties open for an extra hour:

This matter is before the court upon an oral complaint requesting that the polling locations within the counties of Butler, Clermont, Hamilton and Warren be extended for one hour due to Interstate 1-275 being closed for hours due to a fatal accident. The request is hereby GRANTED and the Secretary of State is hereby ordered to keep the polling locations within the counties of Butler, Clermont, Hamilton and Warren open until 8:30 p.m.

R.l at 1.

No complaint preceded the district court’s order on the docket. No complaint materialized after. Lacking a plaintiff, the caption read: “IN RE: 2016 Primary Election.” Id. There was no plaintiff to name in the caption because no one identified himself or herself during the phone call to the clerk’s office — or after. There was no defendant to name because there was no complaint, though the Secretary of State presumably felt like a defendant once he received the order.

Concerned that the district court never had jurisdiction over this anonymous complaint and eager not to be subject to similar last-minute election orders of this sort again, the Ohio Secretary of State timely appealed the order. The boards of elections of two of the counties covered by the district court’s order, Hamilton County and Butler County, filed appeals as well. Those captions, too, use “In re” nomenclature because no plaintiff yet exists to name as the appellee.

We appointed Rachel Bloomekatz to defend the order as an arnica curiae and to brief our authority to review it. She has admirably handled that task. Court-appointed counsel together with the lawyers for the State have filled in some of the details of what happened based on newspaper accounts that neither side disputes.

Around 4:30 p.m. on March 15, a car plunged off the Combs-Hehl Bridge into the Ohio River. See, e.g., Kate Murphy & Mallorie Sullivan, Officials ID man recovered from car that fell into Ohio River, Cincinnati Enquirer (Mar. 27, 2016, 8:49 PM), http://cin.ci/lMvOR5j. The Combs-Hehl Bridge is mostly on the Kentucky side of the Kentucky-Ohio border, but many commuters use its eastbound lanes to return to Ohio in the evening. See Am. Br. 6-7. “The eastbound lanes of the bridge were closed for almost six hours, which caused a major traffic backup on I-275 toward Ohio.” Car falls off Cincinnati bridge and into Ohio River, NBC26 (Mar. 16, 2016, 4:58 AM), http://bit.ly/29xLDwU.

According to newspaper reports, the district court judge was attending a “law school dinner in downtown Cincinnati” when she received a phone call from the clerk’s office around 7:00 p.m. Dan Horn, Judge: Stranded drivers ‘wanted to vote’, Cincinnati Enquirer (Mar. 16, 2016, 5:19 PM), http://cin.ci/29K9Y10. The judge later told the Cincinnati Enquirer that the clerk’s office told her that unidentified “stranded motorists who couldn’t.get to the polls to vote” were “askfing] if there was anything the court could do to help.” Id. She agreed to help.

She directed a clerk’s office employee to call the Secretary of State’s Office to let them know that the court would enter an order extending the polling hours from 7:30 to 8:30 p.m. To ensure consistency across the State, Ohio requires all polls not located on an island to close their lines at 7:30 p.m. on election day. See Ohio Rev. Code § 3501.32(A). The phone call from the clerk’s office went to the cell phone of Assistant Secretary of State Matthew Damschroder, who oversees elections on behalf of the Secretary of State. He missed the call, which came in at 7:28 p.m. The clerk’s office employee left him a voice-mail, which he noticed right away. Yet by the time Damschroder had finished listening to the 43-second voicemail, the Ohio polls had closed — a minute or so earlier. During the next hour, state and local election officials, reluctant to defy the order of a federal judge, scrambled to comply with the oral order and the subsequent written order by trying to reopen the pertinent polling locations. They managed to comply in part: “[S]ome polls were open and others were not.” Appellants’ Br. 18.

The district court eventually docketed the matter on March 30, 2016. The Ohio Secretary of State and intervenors Hamilton County Board of Elections and Butler County Board of Elections (all told, the State) timely appealed.

The appeal presents (at least) two jurisdictional questions: Did the district court have jurisdiction to issue its order at the outset given the anonymous nature of the phone call and the absence of a named plaintiff or a John Doe plaintiff? And is there still jurisdiction over the order given that the election has come and gone and the dispute may be moot?

We have authority over both jurisdictional issues. As to the first question, we always have “jurisdiction on appeal ... for the purpose of correcting the error of the lower court in entertaining the suit” in the first place — in this instance due to the potential absence of a claimant with standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). As to the second question, we have jurisdiction to decide whether a dispute has become moot or whether it is capable of repetition yet evading review. See Murphy v. Hunt, 455 U.S. 478, 483-34, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

Federal law does not provide any order of battle in this setting. It simply “does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). All that matters is that courts must decide jurisdictional issues before merits issues. Deciding one jurisdictional issue before another “makes no assumption of' law-declaring power.” Ruhrgas, 526 U.S. at 584, 119 S.Ct. 1563 (quotation omitted). That gives us discretion to address jurisdictional issues “in any sequence we wish,” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc), including by resolving the “eas[y]” rather than the more “difficult” jurisdictional issue. Ruhrgas, 526 U.S. at 586, 119 S.Ct. 1563; see Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (same).

The standing issue in our estimation is the easier of the two issues to resolve. “Federal courts,” it bears repeating, “are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Before they may act, they must ensure their power to act.

One elemental precondition for acting is a “ease[]” or “controversfy],” U.S. Const, art. Ill, §2. And one elemental precondition for meeting the case-or-controversy requirement is a claimant with standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There is no plaintiff with standing if there is no plaintiff. Until someone comes forward as a plaintiff by name or as a John Doe plaintiff (with an adequate description of his circumstances to ensure he has a concrete interest in a live dispute), there is no plaintiff with standing. See Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). To permit plaintiff-less complaints is to permit the federal courts to issue advisory opinions and non-advisory orders in all manner of circumstances prompted by all manner of anonymous phone callers. A system that permits relief to be granted in connection with a plaintiff-less complaint is as close as we will ever come to permitting “ghosts that slay.” Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002,1008 (1924).

Nor is it enough just to have an identified individual claimant. A complaint must link the claimant to the entities or individuals being asked to do something. In this instance, that meant the district court at a minimum needed four plaintiffs, one registered to vote in each of the four covered counties but who had not yet voted. Otherwise, there was no concrete and redressable injury, no case or controversy, and no authority to order the relevant election board to do anything. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.

Plaintiff-less complaints are no less problematic when the court denies relief on the merits. How will the court inform an anonymous plaintiff of the order? How will the caller know whether or when to appeal? One question leads to another. And the answers to all of them counsel in favor of standing by the Article III requirements that establish when federal courts have power to act and when they don’t.

The arnica urges us to resolve the case on mootness, not standing, grounds. In support, she cites Allen v. Mansour, 928 F.2d 404 (6th Cir.1991) (table disposition), for the proposition that “standing in the district court need not be addressed first to determine the proper disposition.” Am. Br. 18-19. True enough. But that does not show we lack authority to resolve this case on standing grounds. As we explained in Allen, mootness “is akin to saying that, although an actual case or controversy once existed, changed circumstances have intervened to destroy standing.” Allen, 928 F.2d at *1. All we do here is exercise our discretion to address the threshold jurisdictional question because we don’t want to leave the false impression that there was “Article III standing at the outset of the litigation.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). There was not.

The mootness inquiry also is not free from doubt and indeed is not even amenable to resolution on this barest of records. Review of a district court decision is not moot when the situation is “capable of repetition, yet evading review.” Kentucky v. United States ex rel. Hagel, 759 F.3d 588, 595 (6th Cir. 2014) (quotation omitted). “Challenges to election laws quintessential[ly] evade review because the remedy sought is rendered impossible by the occurrence of the relevant election.” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 452-53 (6th Cir. 2014) (quotation omitted). For this reason, the evading-review requirement is “somewhat relaxed in election cases” even if “the challenging parties do not have cognizable legal interests” by the time the case reaches us. libertarian Party of Mich. v. Johnson, 714 F.3d 929, 932 (6th Cir. 2013) (quotation omitted). No one could plausibly think that the Ohio officials were in a position both to comply with the district court’s order and to obtain appellate review of that order within the hour. At a minimum, there is an evading-review problem.

What of a capable-of-repetition problem? The arnica suggests that the circumstances underlying this dispute — a sort of 100-year flood — are not likely to happen again anytime soon. Maybe so. But that’s only if one defines the case in the most specific, of ways — as about a traffic accident on a bridge on the Kentucky side of the Ohio River that interfered with getting to some polls. But if one looks at the problem as being about anonymous phone calls claiming that traffic accidents or weather-related problems are preventing voters from getting to the polls, it’s easy to see the problem arising again.

In the face of an absent and anonymous claimant and the merest of records, moreover, it is impossible to say that this complaining party would not be subjected to the same action again. See Chirco v. Gateway Oaks L.L.C., 384 F.3d 307, 309 (6th Cir. 2004). It’s tilting at windmills to try to define the complaining party. Was it a registered voter from the Buckeye State? A party operative? A poll worker? Or just a concerned citizen? If it was a concerned citizen or a party operative, it’s easy to see similar anonymous phone calls that seek poll-hour extensions in the future — whenever anything gets in the way of some people voting by 7:30 p.m. on election day. If it was one voter seeking to exercise his or her right to vote that day, then the situation is less likely to repeat itself. But who can know what happened here? A plaintiff-less complaint not only creates an Article III standing problem, but it also makes it impossible to answer the mootness capable-of-repetition question. The arnica and the dissent offer no answer to this point.

The district court judge, we realize, was in a difficult spot. She was out of the office. It was late. She had little time to act. All of this presumably led her to err on the side of protecting people’s right to vote. But none of this explains why the clerk’s office or the court couldn’t answer the phone call with the most natural of questions: “Who is it?” And none of this allowed the court to sidestep the Article III limitations on our power.

For these reasons, we vacate the district court’s preliminary injunction and remand the matter for dismissal for lack of subject matter jurisdiction.

SUTTON, J., delivered the opinion of the court in which SILER, J., joined, and COLE, C.J., joined in part. COLE, C.J., (pp. 8-10), delivered a separate opinion concurring in part and dissenting in part.

COLE, Chief Judge,

concurring in part and dissenting in part.

CONCURRING IN PART AND DISSENTING IN PART

Ohioans went to the polls on March 15, 2016. That evening, just hours before voting was to conclude, a “fatal accident” shut down traffic on Interstate 275 near Cincinnati. An “oral complaint” then came before the Southern District of Ohio “requesting that the polling locations within the [affected] counties of Butler, Clermont, Hamilton and Warren” remain open for an additional hour. (Id.) The district court, concerned that voting in those four counties would be adversely impacted, granted the request and ordered the Ohio Secretary of State to “keep th[ose] polling locations ... open until 8:30 p.m.” (Id.) He obliged.

The primary election has long since come and gone. Consider these ensuing events: (1) the provisional ballots at issue have been willingly counted by the County Election Boards; (2) the Secretary of State has disavowed any desire to invalidate those ballots; (3) extended voting had no effect on the outcome of any race; and (4) the election result has been conclusively certified under state law, see Ohio Rev. Code § 3513.22(A). What is more, there is no real suggestion that anyone’s “fundamental political right to vote” was trammeled, or any redressable form of harm was done to the “integrity of [the state’s] election process.” See Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (internal quotation marks omitted). Yet nearly a month after the fact, the Secretary of State filed this appeal.

Now pause to ask the following question: Is there an extant “case” or “controversy”? U.S. Const, art. Ill, § 2. Though the Secretary of State seeks review of the district court’s actions on the merits, “[m]oot questions require no answer.” Missouri, Kansas & Texas R. Co. v. Ferris, 179 U.S. 602, 606, 21 S.Ct. 231, 45 L.Ed. 337 (1900). Article III, that is, “requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999).

Beyond that general rule, courts possess wide latitude “to choose among threshold grounds for denying audience to a case on the merits.” Id. at 585, 119 S.Ct. 1563. For instance, in Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), the Supreme Court bypassed a challenge to the appellants’ standing — despite having “grave doubts” on the matter — and instead “resolve[d] the question whether there remain[ed] a live case or controversy.” Id. at 66-67, 117 S.Ct. 1055. That move was acceptable, the Court reasoned, because both questions concerned “the Article III jurisdiction of [the reviewing court] and the courts below, not ... the merits of the case.” Id. at 67, 117 S.Ct. 1055; see also Burke v. Barnes, 479 U.S. 361, 363-64, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (pretermitting issue of congressional standing and dismissing on mootness grounds).

I would do just that. As arnica has persuasively argued, the issues presented are not live, nor is there any legally cognizable interest in the outcome of this case. See Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016); Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 429 (6th Cir. 2013) (“Because the preliminary injunction here expired by its terms ..., a challenge to its issuance is moot unless a recognized exception applies.”). And the Secretary, moreover, confesses that his “sole motivation for pressing this appeal is to ensure that such an order never happens again,” an admission that seems to solicit an advisory opinion. (Appellant’s Br. at 22.) Cf. United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) (observing that the desire to “gain a useful precedent to brandish ... cannot prevent a case from becoming moot”). .

But the parties part ways in answering the ensuing question: Does this case fall within the exception for wrongs “capable of repetition, yet evading review”? Kingdomware Techs., Inc. v. United States, — U.S. -, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). That doctrine only applies in “exceptional situations,” Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), where (1) the issue’s life-span is “in its duration top short” to be fully litigated before the usual appellate process is complete, and (2) there exists a “reasonable expectation” or a “demonstrated probability” that the same parties will once again be involved in the same dispute, Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam).

The majority thinks that the mootness inquiry is not “free from doubt.” Ante, at 588. I disagree. In my view, neither prong of the exception is satisfied. First, the Secretary’s challenge to the district court’s order could have easily been resolved through a “traditionally live controversy” prior to the certification of the election results. See Honig v. Doe, 484 U.S. 305, 336, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Scalia, J., dissenting). True, “[cjhallenges to election laws” usually satisfy the evading-review prong, Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005), but the conditions for application of that “relaxed” standard do not exist here. Indeed, the Secretary purposely declined to seek reconsideration, an emergency stay, or expedited review of the injunctive order — precisely because the “provisional ballots did not change the outcome of any race.” (Appellant’s Br. at 31.) Second, the Secretary’s speculation regarding the capable-of-repetition prong does not amount to “evidence creating a reasonable expectation” that this unusual confluence of events — a fatal accident that closed a major highway artery, just hours before an election — can reasonably be expected to recur. See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); see also Lyons, 461 U.S. at 109, 103 S.Ct. 1660.

The majority likewise resolves this case on a threshold jurisdictional issue. From the majority’s vantage, the district court lacked jurisdiction because “there [was] no plaintiff with standing” below. Ante, at 588. I express no opinion on that score. But in the end, my disagreement with the majority is one of perspective: if mootness is “the doctrine of standing set in a time frame,” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973), then I elect to resolve this appeal in the present, not the past. I would simply vacate the district court’s order and remand with directions to dismiss the case as moot. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990).

For these reasons, I concur in part and dissent in part.


author: JANE B. STRANCH, Circuit Judge.

text:
    Mark Dave HILL, Petitioner-Appellant, v. Bart MASTERS, Warden, Respondent-Appellee.
    No. 15-5188
    United States Court of Appeals, Sixth Circuit.
    Argued: January 27, 2016
    Decided and Filed: September 7, 2016

      ARGUED: Eugene A. Sokoloff, Hogan Lovells US LLP, Washington, D.C., for Appellant. Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Eugene A. Sokoloff, Neal Kumar Katyal, Hogan Lovells US LLP, Washington, D.C., for Appellant. Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee.
    Before: GILMAN, WHITE, and STRANCH, Circuit Judges.
   OPINION

JANE B. STRANCH, Circuit Judge.

This case concerns a prisoner’s right to bring a successive habeas corpus petition under 28 U.SC. § 2241, challenging the misapplication of a sentence enhancement. Appellant Mark Hill contends that a career-offender enhancement was' erroneously applied to his sentence in light of subsequent caselaw establishing that his predicate offense was not a “crime of violence.” Because Hill is foreclosed from bringing a successive petition using 28 U.S.C. § 2255, he seeks to challenge his sentence under § 2241. The district court dismissed Hill’s petition. For the following reasons, we REVERSE the order of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

On March 31, 2000, Hill was arrested with four fellow conspirators outside Charleston, South Carolina, following more than a year of undercover investigation into drug-trafficking activities between Baltimore and a high-crime area of Charleston. (Presentence Report (PSR) at ¶¶ 8, 11.) Hill was charged with one count of conspiracy to possess with intent to distribute one kilogram or more of heroin and less than 500 grams of cocaine, and three counts of possession with intent to distribute less than 100 grams of heroin. Shortly after the commencement of his October 2001 trial in the District of South Carolina, Hill pleaded guilty to the lesser-included offense of conspiracy to distribute more than 100 grams of heroin. 21 U.S.C. §§ 846, 841(a); (PSR at ¶ 88.)

Hill was sentenced under the then-TOtro-datory 2001 Sentencing Guidelines Manual. His total offense level of 35 reflected a four-level enhancement for his role as an organizer or leader of the conspiracy and a two-level reduction for acceptance of responsibility. (PSR at ¶¶ 38-46.) Because Hill had two prior felony convictions in Maryland — a eontrolled-substance offense and second-degree assault — he received a further enhancement and a criminal-history category of VI as a career offender. (Id.); USSG § 4B1.1 (2001) (To qualify as a career offender, the defendant’s instant offense must be a felony that is “either a crime of violence or a controlled substance offense,” committed by one who is eighteen years or older, and the defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”). Hill was sentenced to 300 months of imprisonment based on a guideline range of 292 to 365 months. Hill appealed his sentence, which was affirmed by the Fourth Circuit. United States v. Hill, 75 Fed.Appx. 115, 116 (4th Cir. 2003) (per curiam).

Hill has brought several challenges to his sentence over the course of his incarceration. See United States v. Hill, 442 Fed.Appx. 76, 77 (4th Cir. 2011) (denying a certificate of appealability and dismissing Hill’s appeal of the district court’s order denying his motion for reconsideration of his second § 2255 habeas corpus petition); United States v. Hill, 158 Fed.Appx. 436, 437 (4th Cir. 2005) (denying a certificate of appealability and dismissing Hill’s appeal of the district court’s order granting summary judgment to the Government and denying his first § 2255 habeas corpus petition).

In May 2014, Hill filed the motion now under review, a § 2241 habeas corpus petition, in the Eastern District of Kentucky. In light of the Supreme Court’s decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and, subsequently, the Fourth Circuit’s decision in United States v. Royal, 731 F.3d 333 (4th Cir. 2013), Hill alleges that his “second degree assault conviction no longer qualifies as a ‘crime of violence’ ” and that “he is now serving an erroneous career offender sentence that violates the laws of the United States.” R. 1, PagelD 1; R. 4, PageID 52-53. Hill contends that without the enhancement, his guideline range would have been 235 to 293 months rather than 292 to 365 months. Moreover, he argues that as a career offender, he is “categorically ineligible” for subsequent retroactive amendments to the guidelines that could place his range as low as 188 to 235 months and reduce his sentence by “as many as nine years.” (Appellant Br. at 18, 22.)

Finding § 2241 inapposite to Hill’s petition because he did not claim to be “actually innocent of the underlying battery offense,” the district court denied Hill’s motion, citing our unpublished case law. R. 7, PagelD 75-76 (citing Jones v. Castillo, 489 Fed.Appx. 864, 866 (6th Cir. 2012) (per curiam)). Hill then filed a notice of appeal, R. 10, PagelD 100, which was held in abeyance pending resolution of a previously filed post-judgment motion for reconsideration, R. 9, PagelD 78. On February 27, 2015, the district court denied Hill’s motion for reconsideration and this appeal was reinstated. R. 11, Pa-gelD 108.

II. ANALYSIS

A challenge to the validity of a federal conviction or sentence is generally brought as a habeas corpus petition pursuant to § 2255, while a petition concerning the manner or execution of a sentence is appropriate under § 2241. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Though presenting two distinct avenues for a prisoner’s challenge to his incarceration, these petitions overlap through the savings-clause mechanism of § 2255(e). Because this case concerns the interrelationship between § 2255 and § 2241, both are addressed here. We,begin with § 2255.

“Second or successive motions” under § 2255 are typically barred unless a petition (1) contains newly discovered evidence that “would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty,” or (2) is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). However, where a petitioner seeks to file a successive habeas petition but cannot meet the requirements of the § 2255(h) exception, the petitioner may look to the “savings clause” of 28 U.S.C. § 2255(e) for recourse:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Thus, where the remedy under § 2255 is inadequate or ineffective, the savings clause allows a federal prisoner to “bring a claim challenging his conviction or imposition of sentence under § 2241..” Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (per curiam). A § 2241 petition is not subject to the general rule against second or successive motions in the absence of newly discovered evidence or a new rule of constitutional law. See 28 U.S.C. § 2241. Our review of the dismissal of a § 2241 petition is de novo. Charles, 180 F.3d at 755.

The petitioner carries the burden to establish that the savings clause applies to his petition and “[t]he circumstances in which § 2255 is inadequate and ineffective are narrow.” Peterman, 249 F.3d at 461. As we have cautioned, § 2255 is not “inadequate or ineffective” merely because ha-beas relief has previously been denied, a § 2255 motion is procedurally barred, or the petitioner has been denied permission to file a successive motion. Charles, 180 F.3d at 756.

A. Successive Habeas Corpus Petitions Pursuant to § 2241

On a successive challenge to a conviction, a petitioner may test the legality of his detention under § 2241 through the § 2255(e) savings clause by showing that he is “actually innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012). Where a petitioner asserts factual innocence of his crime of conviction due to a change of law, he may show that his remedy under § 2255 is inadequate or ineffective by satisfying four conditions: (1) “the existence of a new interpretation of statutory law,” (2) “issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions,” (3) that is retroactive, and (4) applies to the petition’s merits such that it is “more likely than not that no reasonable juror would have convicted” the petitioner. Id. at 307-08.

We do not have published precedent on the issue presented here, where the target of the petition is a sentence enhancement, not a conviction. The test that applies in this factual context — set out by our sister circuits and agreed upon by the parties before us — specifies the petitioner’s burden to come within the savings clause of § 2255(e). When seeking to petition under § 2241 based on a misapplied sentence, the petitioner must show (1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect. See Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); see also Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013) (interpreting prior precedent to allow application of the savings clause “when a fundamental defect in sentencing occurred and the petitioner [has] not had an opportunity to obtain judicial correction of that defect earlier” (internal quotation marks omitted)).

The parties agree that Hill has established the first and second conditions for satisfying the requirements of the savings clause and employing § 2241. They dispute whether he satisfies the third condition. We begin with the new interpretation of statutory law.

1. Descamps v. United States

In Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the Supreme Court clarified the correct approach for determining whether state-law offenses qualify as “violent felonies” for the purpose of a sentence enhancement under the Armed Career Criminal Act (ACCA) of 1984. 18 U.S.C. § 924(e)(1). The Court foreclosed the use of the modified categorical approach for criminal statutes that consist of a single set of elements that define the crime “more broadly than the generic offense.” Descamps, 133 S.Ct. at 2283. Instead, it directed the lower courts to use the categorical approach to compare the elements of the generic crime to the elements in the statute that forms the basis of the defendant’s prior conviction. Id. at 2281-82. To the extent the statute covers a “broader swath of conduct” than the generic offense, the former cannot serve as a predicate felony for an ACCA enhancement. Id. at 2281-82.

In the same year, the Fourth Circuit applied Descamps to Maryland’s second-degree assault statute — one of Hill’s predicate felonies — and concluded it was not a “violent felony” under the ACCA because the statute defined assault more broadly than the generic crime. Royal, 731 F.3d at 342. “Maryland’s second-degree assault statute reaches any unlawful touching, whether violent or nonviolent and no matter how slight”; thus, “ ‘convictions under the statute ... cannot categorically be crimes of violence.’ ” Id. (quoting Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013)).

The Government concedes that, after Descamps and Royal, Maryland’s second-degree. assault statute no longer constitutes a crime of violence for the purpose of the career-offender enhancement. USSG § 4B1.2(a) (2001). Thus, were Hill to be sentenced today, he would not qualify as a career offender. The Government further concedes that Descamps and Royal apply retroactively. The problem lies with the third condition — whether a misapplied sentence enhancement calculated under the mandatory Sentencing Guidelines Manual constitutes a fundamental error that may be redressed in a successive habeas corpus proceeding.

2. Application of the Career-Offender Enhancement

Hill claims that, in light of Descamps and Royal, his “unlawfully imposed career offender status infected his entire sentencing proceeding with error, resulting in a sentence that was improperly divorced from his individualized criminal history and offense characteristics.” (Appellant Br. at 11.) He asserts that § 2255 is ineffective to test the legality of his sentence enhancement because § 2255(h) precludes' him from bringing an additional § 2255 petition, and that the intervening change of law requires recourse under the savings clause and § 2241.

The Government fairly concedes that “[sentencing claims are challenges to detention that are at least in theory redress-able under the savings clause” if they are “fundamental,” which it defines as “on par with a conviction for a non-existent offense or a sentence above the otherwise-applicable statutory maximum.” (Appellee Br. at 36, 38.) It argues that misapplication of the career-offender enhancement does not render Hill’s sentence “illegal” because it did not result in a sentence that exceeds the statutory maximum term of life imprisonment. Because Hill has not presented a fundamental error in his sentence, the Government concludes, he has failed to demonstrate that § 2255 is inadequate and he therefore cannot satisfy the savings clause to enable a § 2241 petition.

We agree with both parties that the district court erred in holding that § 2241 can never support a sentence challenge. We have acknowledged, albeit in dicta, that a § 2241 petition may be used to challenge the “imposition of sentence” when remedies under § 2255 are inadequate or ineffective. See Charles, 180 F.3d at 756. We also agree with the Government’s position that a habeas petition may be brought pursuant to § 2241 when a sentence exceeds the maximum prescribed by statute. To deny relief where a sentence enhancement exceeds the statutory range set by Congress would present separation-of-powers concerns. See e.g., Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (noting the importance of “the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe- punishments” in the multiple-punishments context); United States v. Penson, 526 F.3d 331, 336 (6th Cir. 2008) (vacating and remanding a sentence that exceeded the statutory maximum). The Government’s interpretation of what constitutes a fundamental defect in sentencing, however, can lead to problematic results, as discussed below. Mindful of the limitations of this “beyond the maximum penalty” approach, we examine whether § 2241 may also support a challenge to a misapplied enhancement resulting in a sentence that does not exceed the statutory maximum.

B. Application of § 2241 to Sentence-Enhancement Challenges

Lacking published precedent in our circuit directly considering a § 2241 collateral challenge to a sentence enhancement, we turn first to our related caselaw and then to cases in our sister circuits that address this issue.

Although we have yet to determine the “exact scope of the savings clause,” we have held that when a petitioner fails to identify a new case of statutory interpretation on which to base his § 2241 habeas claim, he fails to satisfy the savings clause and cannot reach § 2241. Peterman, 249 F.3d at 462 (declining to consider a co-conspirator’s sentence reduction on direct appeal as a change in the law). Peterman, relying heavily on Charles’s reasoning in the conviction (not sentencing) context, stated in dicta that the petitioners had not shown “an intervening change in the law that establishes their actual innocence.” Id. Insofar as the petitioners challenged the duration of their sentences, the opinion noted that “[cjourts have generally declined to collaterally review sentences that fall within the statutory maximum.” Id.

In the intervening years, notable cases of statutory interpretation, including Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), have revised the landscape governing what constitutes a predicate offense for the enhancement of a sentence. The Supreme Court’s instruction has provided the occasion to refine our review of challenges to misapplied enhancements. In Kirk v. United States, for example, the petitioner’s § 2255 petition argued that his classification as an armed career criminal was erroneous because “intervening case law” held that his prior conviction was not a predicate “violent felony.” We • held that the sentence enhancement “undoubtedly represents a miscarriage of justice, making relief under § 2255 appropriate.” 481 Fed. Appx. 249, 249 (2012) (per curiam). Explaining that the erroneous classification resulted in a sentence “well above the ... statutory maximum,” and thus led to a sentence that “the law cannot impose upon” the petitioner, we reversed the denial of the petition. Id. (internal quotation marks omitted) (citing with approval Narvaez v. United States, 674 F.3d 621, 628-29 (7th Cir. 2011)). Logic suggests that whether a misapplied enhancement results in a miscarriage of justice should not depend on whether the new statutory interpretation was announced before or after a prisoner filed a first § 2255 petition, when the timing of the decision invalidating the enhancement is beyond the prisoner’s control.

The Seventh Circuit invoked this logic in Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013), a case where the sentence did not exceed the statutory maximum. Relying on Narvaez, a prior case involving a first-time habeas petition under § 2255 — a case we cited as authority in Kirk — the Seventh Circuit explained that:

[t]o classify an individual as belonging to a “subgroup of defendants, repeat violent offenders” is to “increase, dramatically, the point of departure of his sentence” and accordingly is “certainly as serious as the most grievous misinformation that has been the basis for granting habeas relief.” Thus, the misapplication of the sentencing guidelines, at least where (as here) the defendant was sentenced in the pre-Booker era, represents a fundamental defect that constitutes a miscarriage of justice corrigible in a § 2241 proceeding.

Id. at 587-88 (internal citation omitted) (quoting Narvaez, 674 F.3d at 629); see also Webster v. Daniels, 784 F.3d 1123, 1125-26 (7th Cir. 2015) (en banc) (vacating a prior judgment on rehearing and extending the savings clause to petitioner’s § 2241 petition based on the discovery of “new evidence that would demonstrate categorical ineligibility for the death penalty”).

In Brown, the sentencing court applied a career-offender enhancement to Brown’s sentence (for drugs and firearm possession) in light of a prior conviction of third-degree arson in Delaware; his subsequent § 2255 petition was unsuccessful. Brown, 719 F.3d at 584-85. Brown later filed a § 2241 petition challenging the enhancement because his prior offense no longer constituted a crime of violence under Begay, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490. Id. at 585. The district court dismissed the petition. The Seventh Circuit reversed, finding that Brown’s petition had satisfied the three conditions to fall within the savings-clause exception and was, therefore, properly heard under § 2241. First, Brown relied on a case of statutory interpretation (rather than a constitutional case, which would have satisfied one of the conditions for a successive challenge under § 2255(h)). Id. at 586-87. Second, the case was retroactive and could not have been invoked in his original petition. Id. Finally, the court determined that the error Brown complained of was sufficiently grave to be “deemed a miscarriage of justice,” or, put another way, a “fundamental defect” corri-gible in a habeas corpus proceeding. Id. at 586.

In response to the argument that the savings clause requires “a claim of actual innocence directed to the underlying conviction, not merely the sentence,” id. at 585, the Seventh Circuit stood on the clear' language of the savings clause, § 2255(e), id. at 588. Noting that the savings clause makes no reference to “convictions” and instead makes relief available when the “§ 2255 remedy is ‘inadequate or ineffective to test the legality of his detention,’ ” it held that for a prisoner sentenced when the guidelines were mandatory by law, “a § 2241 habeas petition raising a guidelines error ‘tests the legality of his detention.’ ” Id. (emphasis in .original). The Seventh Circuit thus found Brown entitled to relief under § 2241. Id. at 585.

The Fourth Circuit, sitting en banc, recently heard similar arguments on a split-panel decision that refused, over a well-reasoned dissent, to authorize a petition under § 2241. See United States v. Surratt, 797 F.3d 240, reh’g en banc granted (Dec. 2, 2015); see also id. at 269-76 (Gregory, J., dissenting). There, the Fourth Circuit panel had considered a successive challenge to a mandatory-minimum life sentence under 21 U.S.C. § 841 based on á number of underlying drug convictions that were later deemed not to constitute predicate offenses. Id. at 244-46. The panel majority denied the prisoner’s § 2241 petition on the basis that he had not shown actual innocence of the underlying conviction and that he could not be “actually innocent” of a sentence enhancement. Id. at 247-49. The majority left open the possibility that § 2241 could support a challenge to a sentence exceeding the statutory maximum — the position taken by the Government in this case — but found this exception inapplicable because the statutory maximum sentence authorized for Sur-ratt’s conviction was life imprisonment, which his mandatory minimum life sentence did not exceed. Id. at 255-56. Thus, Surratt was barred from seeking relief under § 2241 for a misapplied life sentence because it did not exceed the statutory maximum life sentence where he was sentenced to life imprisonment as a mandatory minimum.

Judge Gregory’s dissent anchors his reasoning on the history and text of the “Great Writ,” tracks the impact of legislation on it, and then applies those principles and Fourth Circuit precedent to determine that the majority’s holding violates them all. The core of his argument resides in the constitutional prohibition on suspension of the writ. Id. at 270 (citing U.S. Const, art. I, § 9, cl. 2). He traces the legislative actions addressing the writ, concluding that “[hjistory therefore confirms that Congress meant for the writ of habeas corpus to remain unabridged even in the face of some limits on collateral review found in § 2255, and that 'the savings clause plays a distinct and crucial role within the statute.” Id. at 270-71. Judge Gregory then analyzes the text, applying “the traditional savings clause analysis” (the analysis set out in this case above) to show why § 2255 is “inadequate or ineffective” and § 2241 is available to address a misapplied enhancement. Id. at 273-76. Woven throughout is practicality — that it begs reason to expect a prisoner to bring a claim before the intervening law is decided, id. at 274, and that the dissent’s argument would not open the floodgates because it would affect only a very small group of prisoners (eight in the Western District of North Carolina), id. at 275.

We acknowledge the wisdom of Judge Gregory’s reasoning. Surveying the authority of our sister circuits, which have split on the issue, we are persuaded by the approach outlined in the Seventh Circuit’s decision in Brown, and Judge Gregory’s dissent in Surratt, now before the Fourth Circuit en banc.

As in Brown, Hill was sentenced pre-Booker when courts were required to sentence within the guidelines range, absent specific limited circumstances. Serving a sentence imposed under mandatory guidelines (subsequently lowered by retroactive Supreme Court precedent) shares similarities with serving a sentence imposed above the statutory maximum. Both sentences are beyond what is called for by law, see Brown, 719 F.3d at 588 (explaining pre-Booker guidelines “had the force and effect of law”), and both raise a fundamental fairness issue. The facts of Hill’s case illustrate why he should not be foreclosed from “testing] the legality of his detention” using the savings clause, § 2255(e). First, the Government concedes that Des-camps and Royal apply retroactively. Second, had the career-offender enhancement been properly considered under now-applicable Supreme Court precedent, Hill would not have been treated as a career offender, and the sentencing court would have been required to impose a sentence within a lesser' range. Finally, Congress, through the Sentencing Commission, intended that prisoners in Hill’s position be eligible for certain further reductions. His characterization as a career offender wrongly renders him ineligible for that relief.

In authorizing a petition under § 2241, we reiterate that our decision addresses only a narrow subset of § 2241 petitions: (1) prisoners who were sentenced under the mandatory guidelines regime pre- United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), (2) who are foreclosed from filing a successive petition under §' 2255, and (3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement. Hill’s challenge to his misapplied career-offender enhancement is properly brought under § 2241 because he was sentenced under the mandatory Guidelines Manual; is barred from filing a successive § 2255 petition; and received the enhancement based on a prior conviction that a subsequent, retroactive change in Supreme Court jurisprudence reveals is not a predicate offense. To require that Hill serve an enhanced sentence as a career offender, bearing the stigma of a “repeat violent offender” and all its accompanying disadvantages, is a miscarriage of justice where he lacks the predicate felonies to justify such a characterization. Hill has therefore satisfied the requirements of the savings clause of § 2255(e) and his petition is properly brought under § 2241.

III. CONCLUSION

For these reasons, we REVERSE the order of the district court denying Hill’s § 2241 petition and REMAND the case for further proceedings consistent with this opinion.

      . Because Hill incorrectly filed his first § 2241 habeas corpus petition in the District of South Carolina after he had been transferred to the penitentiary in Inez, Kentucky, his petition was dismissed for lack of subject-matter jurisdiction. R. 1, PagelD 1. See 28 U.S.C. § 2243 ¶2 (“The writ [of habeas corpus] ... shall be directed to the person having custody of the person detained.”).

      . Hill was later transferred to Federal Correctional Institution-McDowell in Welch, West Virginia, and the previous warden defendant was replaced by McDowell Warden Bart Masters. R. 14, PagelD 113. The Motions panel determined that Hill’s unauthorized transfer did not deprive this court of jurisdiction to review the judgment below. Id. at 114.

      . The same approach is used to determine whether a crime constitutes a "crime of violence” for a career-offender enhancement under the sentencing guidelines or a "violent felony” under the ACCA. See United States v. Covington, 738 F.3d 759, 762-63 (6th Cir. 2014).

      . We have also held otherwise in unpublished decisions, stating that petitioners may not challenge misapplied sentence enhancements under § 2241 because such challenges do not claim actual innocence of the offense of conviction. See, e.g., Jones, 489 Fed.Appx. at 866; Brown v. Hogsten, 503 Fed.Appx. 342, 343 (6th Cir. 2012) (per curiam); Green v. Hemingway, 67 Fed.Appx. 255, 256-57 (6th Cir. 2003). For the reasons stated in this opinion, we do not find these opinions persuasive.

      . The Seventh Circuit has declined to extend the holding in Naivaez to § 2255 petitions challenging sentences where the petitioner was sentenced under the advisory Guidelines Manual post-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Hawkins v. United States, 706 F.3d 820, 822-24 (7th Cir. 2013).

      . Panels in the Eleventh and Fifth Circuits have also had occasion to consider this issue and citing concerns of finality and judicial economy, have reached a different conclu-sión. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011); In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011) (per cu-riam).