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    Rosa Carmina RODRIGUEZ; Alexis E. Agostini; Raymond U. Arroyo; Carl C. Christensen; Ernesto L. Cruz; Manuel Q. Cruz; Shirley Y.M. Cummins; Linda T. Kuailani; Roy Lynch; Rafael A. Martinez; Albert E. Miller; Julia Q. Norman; Hildamar Ortiz; Reginald Kenalio Puana; Ivan O. Puig; Cynthia Jean Romney; Victor L. Rosario; Celia A. Ruiz; Joel A. Tutein, Plaintiffs, Appellants, v. UNITED STATES of America; The United States Office of Personnel Management; Beth F. Cobert, Acting Director of the United States Office of Personnel Management, Defendants, Appellees.
    No. 15-2178
    United States Court of Appeals, First Circuit.
    March 24, 2017

      Adam H. Chames, with whom Christin J. Jones, Dallas, TX, Thurston H. Webb, Atlanta, GA, and Kilpatrick Townsend & Stockton LLP were on brief, for appellants.
    Stephanie R. Marcus, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Rosa E. Rodríguez-Vé-lez, United States Attorney, and Marleigh D. Dover, Attorney, Appellate Staff, Civil Division, United States Department of Justice, were on brief, for appellees.
    Before HOWARD, Chief Judge, DYK, and THOMPSON, Circuit Judges.

       Of the Federal Circuit, sitting by designation.

   DYK, Circuit Judge.

Plaintiffs challenge the Office of Personnel Management’s (“OPM”) regulations that exclude cost-of-living allowances (“COLAs”) from the calculation of retirement and other benefits. These COLAs are received by federal employees working in non-foreign areas located outside the contiguous United States. Plaintiffs allege that these regulations are unlawfully discriminatory under Title VII of the Civil Rights Act of 1964, Pub L. No. 88-352, 78 Stat. 241, 253-66, and are arbitrary, capricious, and contrary to law under the Administrative Procedure Act (“APA”). The district court dismissed plaintiffs’ complaint. We affirm.

I.

Although we conclude that in many respects the merits of plaintiffs’ claims are not before us, we briefly outline the issues underlying the dispute. This case concerns the calculation of retirement and other benefits for federal employees working in non-foreign areas located outside the contiguous United States. These areas include at least Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, Hawaii, and Alaska. In addition to their normal salaries, federal employees working in these areas receive cost-of-living allowances, or COLAs, calculated based on “living costs substantially higher than in the District of Columbia.” 5 U.S.C. § 5941(a)(1). Congress first provided for such payments (then called “additional compensation”) in 1948, and Congress provided the President with authority to issue regulations governing the payments.

Pursuant to that congressional authority, on September 16, 1948, President Truman issued Executive Order 10,000, 13 Fed. Reg. 5453. In the order, President Truman delegated authority to the United States Civil Service Commission (“CSC”) (predecessor of OPM) to prescribe regulations. 13 Fed. Reg. at 5455. On December 30, 1948, the CSC promulgated the regulations at issue in this case. See Territorial Post Differentials and Territorial Cost-of-Living Allowances, 13 Fed. Reg. 8725 (1948).

The 1948 CSC regulations provided for COLA payments, but they stated that COLAs are not part of the “base used in computing” entitlements such as retirement benefits. 13 Fed. Reg. at 8727, § 350.6(f). This rule excluding COLA payments from basic pay for retirement purposes persists in OPM’s regulations today. 5 C.F.R. § 591.239(b). The consequence, under the regulations, is that employees receiving COLA payments earn lower retirement annuities than they would earn were the COLA payments included in their basic pay. We refer to this exclusion of COLA from base pay as the “exclusionary rule.”

Plaintiffs complain that the exclusionary rule is contrary to law because, plaintiffs assert, there is no basis for the exclusionary rule in either the statute or Executive Order 10,000. The government contends that the exclusionary rule is mandated by statute. The government explains that the statutory definition of “basic pay” for federal employees in the retirement laws explicitly excludes “allowances.” See 5 U.S.C. § 8331(3) (“ ‘basic pay ... does not include ... allowances” under the Civil Service Retirement System (“CSRS”)); see also id. § 8401(4) (incorporating the CSRS definition of “basic pay” into the Federal Employees’ Retirement System (“FERS”)). The current statute governing COLA payments refers to those payments as “allowances.” Id. § 5941(a)(1). Therefore, the government reasons, COLAs are allowances and must be excluded from basic pay. The government also notes that COLAs are exempt from federal income tax. See 26 U.S.C. § 912(2).

Plaintiffs do not agree that COLAs are “allowances” within the meaning of the retirement laws. Plaintiffs argue that when COLAs were established in 1948, Congress referred to them as “additional compensation” rather than “allowances.” See 5 U.S.C. § 118h (1952). Plaintiffs contend that no interpretive significance should be attributed to the United States Code’s 1966 recodification, when Congress in the COLA statute replaced the terminology “additional compensation” with the “allowances” terminology. See H.R. Rep. No. 89-901, at 117 (1965) (“The word ‘allowances’ is substituted for ‘additional compensation’ as a more apt term and for consistency.”). Plaintiffs argue that the 1966 recodification was not intended to introduce substantive changes and, thus, the COLA statute’s mere change in terminology introducing the label “allowances” in 1966 cannot justify the exclusionary rule.

Plaintiffs further complain that the rule also unlawfully discriminates against COLA payment recipients, many of whom are minorities that make up significant populations in COLA areas. Plaintiffs contend that “today, federal employees in COLA areas are the only class of federal employees in the United States whose regular compensation for normal working hours in their place of permanent residence is not included in their retirement base.” Plaintiffs’ Br. 11-12.

II.

Plaintiffs are a group of 19 current and former federal employees working in the non-foreign COLA areas. Plaintiffs filed a class action complaint in the United States District Court for the District of Puerto Rico challenging the exclusionary rule on behalf of a putative class of similarly situated current and former employees and surviving spouses of such employees. Plaintiffs named the United States, OPM, and the Director of OPM (collectively, “the government”) as defendants. The complaint, as later amended, seeks a declaratory judgment that the exclusionary rule is arbitrary, capricious, and contrary to law under the APA and that the rule unlawfully discriminates against protected minorities in COLA areas in violation of Title VII, 42 U.S.C. § 2000e-16. With respect to the discrimination claims, the complaint alleges both that the rule is the product of discriminatory intent (“disparate treatment” claim) and that it improperly and adversely impacts minorities (“disparate impact” claim).

On August 20, 2015, upon the government’s motion, the district court dismissed plaintiffs’ amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The court first held that the disparate impact claim was barred by the safe harbor provision of Title VII, which provides that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation ... to employees who work in different locations” absent an intention to discriminate because of protected status. 42 U.S.C. § 2000e-2(h). The court next determined that plaintiffs had failed to administratively exhaust their disparate treatment claim before OPM. Finally, the court held that the nondiscrimination claims were precluded by the Civil Service Reform Act of 1978 (“CSRA”), which required plaintiffs to pursue their claims at the Merit Systems Protection Board (“MSPB”), with appeal to the Federal Circuit.

Plaintiffs appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III.

We review a district court’s dismissal for lack of subject matter jurisdiction and for failure to state a claim de novo. McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). We “accept! ] the plaintiffs’ well-pleaded facts as true and in-dulg[e] all reasonable inferences to their behoof.” Id.

There is no contention that plaintiffs have failed to administratively exhaust their disparate impact claim, as opposed to their other claims. The question is whether the district court correctly held that this claim is barred by the safe harbor provision of 42 U.S.C. § 2000e-2(h). Answering this question requires first determining whether § 2000e-2(h) is a definitional provision that encompasses disparate impact for both private employers and the federal government, or — as plaintiffs argue — an affirmative defense that only applies to private employers.

It is, thus, necessary to an understanding of the Title VII provisions applicable to the federal government to understand the provisions applicable to private employers — provisions that pre-date the federal employment, provisions. The Supreme Court interpreted the Title VII provisions applicable to private employers to prohibit employment policies creating a disparate impact in Griggs v. Duke Power Coy 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Griggs, the Court explained that “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id. at 481, 91 S.Ct. 849. Under Title VII, a claim for disparate impact covers “practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities.” Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).

However, not all employer actions that have a disparate impact are unlawful. Section 2000e-2(h) provides a safe harbor for employers that compensate their employees differently depending on the location of employment. It provides, in relevant part,

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment ... to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.

Id. (emphasis added). This section does not preclude claims of intentional discrimination, but it does preclude claims of disparate impact. Candelario Ramos v. Baxter Healthcare Corp. of Puerto Rico, 360 F.3d 53, 62 (1st Cir. 2004). In Candelario Ramos, this court explained that “different treatment in different locations is permissible absent an intent to discriminate.” Id at 61. The court also explained that § 2000e-2(h) does not merely provide a defense to disparate impact claims, but it instead serves to define unlawful discrimination. See id. at 62. Differences in compensation depending on location of employment, by itself, is not unlawful discrimination. The court concluded:

The subsection itself is not surprising. Location is often a proxy for differences in cost and other competitive circumstances; and while Congress could have made those circumstances a separate defense, the difficulties of showing that a difference in pay precisely correlated with a difference in cost would be formidable. In effect, different locations are simply a safe harbor in cases where there is no intentional discrimination.

Id. (citation omitted).

The Supreme Court has also made clear that, as to seniority plans, § 2000e-2(h) is “a provision that itself ‘delineates which employment practices are illegal and thereby prohibited and which are not.’ ” Lorance v. AT & T Techs., Inc., 490 U.S. 900, 908, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), superseded on other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, sec. 112, 105 Stat. 1071, 1078-79 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 758, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)); see also NAACP, Detroit Branch v. Detroit Police Officers Ass’n, 900 F.2d 903, 908 (6th Cir. 1990) (explaining that under Lorance, § 2000e-2(h) “has been regarded as a definitional provision”). Plaintiffs argue that the key language of Lorance (quoted above) is in-apposite because that case addressed only the seniority plan provision of § 2000e-2(h) and not the location-based safe harbor provision, and that the location-based safe harbor is an affirmative defense.

However, we see no reason to read these two portions of § 2000e-2(h) differently or to regard the location-based safe harbor as an affirmative defense. To the extent that circuit cases before Lorance treated § 2000e-2(h) generally as an affirmative defense, we think they are no longer good law after Lorance. Nor is it significant that certain provisions of the Equal Pay Act, which bear some resemblance to several provisions in § 2000e-2(h), have been characterized as affirmative defenses. See Washington Cty. v. Gunther, 452 U.S. 161, 168-69, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Rodriguez v. Smithkline Beecham, 224 F.3d 1, 6 (1st Cir. 2000).

The relevant legislative history of the 1964 Act also shows that Congress intended § 2000e-2(h) to explain what is not unlawful discrimination. See 110 Cong. Rec. 12,723 (June 4, 1964) (Statement of Sen. Humphrey) (explaining that the provision “makes clear that it is only discrimination on account of race, color, religion, sex, or national origin, that is forbidden by the title. The [provision] does not narrow application of the title, but merely clarifies its present intent and effect.”); see also Am. Tobacco Co. v. Patterson, 456 U.S. 63, 73 n.11, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982).

This distinction between defining the scope of liability and providing an affirmative defense is pertinent to whether the provision applies to the federal government. Plaintiffs’ central argument is that, even if the location-based safe harbor provision limits liability in the private sector, it is inapplicable to the federal government. Plaintiffs reason that the section applies to “employers,” and Title VII excludes the federal government from the definition of “employer.” See 42 U.S.C. § 2000e(b) (“The term ‘employer’ ... does not include ... the United States.... ”). This court previously assumed, without explanation, that § 2000e-2(h) applies to the federal government. Cartagena v. Sec’y of Navy, 618 F.2d 130, 134-35 (1st Cir. 1980) (per curiam). We now confirm that this is so and provide further explanation.

As originally enacted in 1964, Title VII did not apply to the federal government. See Civil Rights Act of 1964, Pub. L. No. 88-352, § 701(b), 78 Stat. 241, 253; Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). This was accomplished by excluding the federal government from the definition of “employer.” As a result, each of the substantive provisions of Title VII prohibiting employment discrimination — as well as the safe harbor provision of § 2000e-2(h)— applied at that time only to non-government “employers.”

In 1972, Congress extended Title VII coverage to federal employees. See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 11, 86 Stat. 103, 111-13 (codified as amended at 42 U.S.C. § 2000e-16). Rather than simply amend the definition of “employer” to include the United States, Congress created an entirely new section of Title VII specifically (and only) applicable to federal employment. See 42 U.S.C. § 2000e-16. It provided in general that

All personnel actions affecting employees or applicants for employment ... in executive agencies ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.

§ 717(a), 86 Stat. at 111 (codified as amended at 42 U.S.C. § 2000e-16(a)).

Through the 1972 Act, Congress intended to “accord[ ] ‘Aggrieved (federal) employees or applicants ... the full rights available in the courts as are granted to individuals in the private sector under title VII.’” Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (quoting S. Rep. No. 92-415, at 16 (1971)). Thus, “[i]n general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government.” Morton v. Mancari, 417 U.S. 535, 547, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).

It is undisputed that the 1972 amendment made the prohibition on disparate impact discrimination applicable to federal employers. Because, as we have described above, the definition of disparate impact discrimination is determined, in part, by the safe harbor provision at issue here, § 2000e-2(h), the safe harbor provision necessarily applies equally to federal employers. In other words, because § 2000e-2(h) limits the scope of liability, rather than providing an affirmative defense, the 1972 amendments incorporating disparate impact liability necessarily included the location-based safe harbor.

Plaintiffs make much of the fact that in 1972 and the years following, Congress incorporated by reference into the provision governing federal employment (§ 2000e-16) several private-sector provisions of Title VII, but chose not to incorporate the safe harbor provision of § 2000e-2(h). See 42 U.S.C. § 2000e-16(d), (f). For example, § 2000e-16(d) now provides, “[t]he provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in eases involving nonpublic parties.” The incorporated sections relate only to enforcement procedures. The failure to incorporate the substantive provisions into § 2000e-16 in the years after 1972 hardly suggests that Congress intended that the substantive standards applicable to private employees would not apply to federal employees given that was the central purpose of the 1972 amendments.

Plaintiffs argue that more recent amendments to Title VII also support their position. Plaintiffs point out that in 1991, Congress amended Title VII again, this time, among other things, to define and insert a new term, “respondent,” which includes the federal government in certain newly enacted provisions of § 2000e-2. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 104, 105 Stat. 1071, 1074. As amended, § 2000e defines “respondent” in relevant part as “an employer ... or Federal entity subject to section 2000e-16 of this title.” 42 U.S.C. § 2000e(n). But Congress did not amend the safe harbor provision of § 2000e-2(h) to include “respondents.” Plaintiffs suggest that this inaction evidences congressional intent that the safe harbor not apply to the federal government. We disagree. Plaintiffs’ inference hardly follows since Congress in 1991 did not amend any other existing subsections of § 2000e-2 to include the term “respondent,” and those subsections generally have been held to apply with equal force to federal employers in keeping with the purposes of the 1972 amendment. Adopting plaintiffs’ argument would mean that the substantive provisions applicable to private employers would not apply to the federal government, a position inconsistent with established authority.

We hold that the rule set forth in § 2000e-2(h) applies to discrimination claims brought against the federal government. Because plaintiffs conceded that their disparate impact claim would be precluded by this rule if it applies in this case, we affirm the district court’s dismissal of the disparate impact claim.

IV.

The next question is whether the district court correctly dismissed plaintiffs’ intentional discrimination (disparate treatment) claim for lack of administrative exhaustion. It is settled that a federal court will not entertain employment discrimination claims brought under Title VII unless administrative remedies have first been exhausted. Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009). The requirement of administrative exhaustion serves to “provide the employer with prompt notice of the claim and to create an opportunity for early conciliation.” Id. It is equally settled that an exhaustion requirement applies to federal employees as well as private sector employees. 42 U.S.C. § 2000e-16(c); Green v. Brennan, — U.S. —, 136 S.Ct. 1769, 1775, 195 L.Ed.2d 44 (2016); Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st Cir. 2011).

In the federal employment context, the exhaustion requirement demands that, as a prerequisite to filing suit in district court, a federal employee “seek relief in the agency that has allegedly discriminated against him.” Brown, 425 U.S. at 832, 96 S.Ct. 1961. This means that a complainant must first file a formal complaint with the Equal Employment Opportunity (“EEO”) office of the allegedly discriminating agency. See 29 C.F.R. § 1614.106(a). The complaint “must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint.” Id. § 1614.106(c).

A later civil action in district court is limited to the allegations of discrimination first presented in the EEO complaint. Velazquez-Ortiz, 657 F.3d at 71 (“The fact that a complainant has filed an EEO complaint does not open the courthouse door to all claims of discrimination.”); Morales-Vallellanes v. Potter, 339 F.3d 9, 18 (1st Cir. 2003) (“[Plaintiffs] Title VII cause of action is limited to those discrimination and retaliation allegations in his amended complaint that were previously the subject of a formal EEO complaint.”). “This exhaustion requirement is no small matter; it ‘is a condition to the waiver of sovereign immunity’ and thus ‘must be strictly construed.’ ” Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47-48 (1st Cir. 2014) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).

Plaintiffs here do not dispute these general requirements or that OPM here is the relevant agency to which they needed to submit their allegations of discrimination. Rather, they contend that they satisfied the exhaustion requirements as to their disparate treatment claim.

The problem is that plaintiffs raised in their EEO complaint to OPM only a claim for disparate impact, and not disparate treatment. At the heart of a claim for disparate treatment is a showing of the defendants’ “discriminatory intent or motive.” Ricci, 557 U.S. at 577, 129 S.Ct. 2658; see also Ray v. Ropes & Gray LLP, 799 F.3d 99, 112-13 (1st Cir. 2015). Plaintiffs’ various filings with the OPM EEO office repeatedly and explicitly alleged that the exclusionary rule has a discriminatory adverse impact on protected minorities. For example, the addendum to each complaint has an entire section entitled, “The Agency’s Exclusionary Rule Has a Disparate Impact on Racial and Ethnic Minorities in Violation of the Civil Rights Act.” J.A. 528. There is no discussion of discriminatory intent in that section or elsewhere in the addendum.

Likewise, the supporting memorandum submitted by plaintiffs to OPM makes clear that plaintiffs asserted only a claim for disparate impact. The memorandum includes a section entitled, “OPM’s Salary Decisions Result in a Disparate Impact in Violation of 42 U.S.C. § 2000e-16,” but does not contain any discussion of discriminatory intent. J.A. 594-95. It explains that “[i]n this case, discrimination is occurring by reason of the ‘disparate impact’ of the agency’s actions on protected minorities.” Id. at 594, 129 S.Ct. 2658. It points out that “[a] party need not show any intent or motive to discriminate” to make out a case for disparate impact. Id It explains that “[w]hile there may be no discernible intent to discriminate against these minorities, the effect of exclusion statistically falls on racial minorities without any justifiable reason. This practice therefore has a disparate impact on these, racial minorities.” Id. at 595, 129 S.Ct. 2658 (emphasis added). Elsewhere throughout the 58-page memorandum, plaintiffs refer repeatedly to the exclusionary rule’s “disparate adverse impact” or effect. See J.A. 546, 568, 575, 589, 591.

Not only does the memorandum omit any allegation that OPM acted with discriminatory intent, but also it posits that when the CSC promulgated the rule excluding COLAs from the retirement base, “the agency simply acted in haste and erred as a result.” J.A. 578-79. This suggests that plaintiffs were not alleging intentional discrimination.

Although plaintiffs’ submissions are sprinkled with general allegations that the exclusionary rule “discriminates against protected minorities, in violation of 42 U.S.C. § 2000e-16,” they contain no specific allegations of intentional discrimination. E.g. J.A. 524. The closest plaintiffs come to alleging intentional discrimination appears in one sentence in the memorandum that ambiguously states that the agency’s rules and practices “discriminate against employees in non-foreign areas and have a disparate adverse impact on racial and ethnic minorities in violation of 42 U.S.C. § 2000e-16.” J.A. 546 (emphasis added). Any reasonable person reviewing plaintiffs’ materials in their overall context would have understood that plaintiffs alleged only a disparate impact claim.

Nor can a disparate impact allegation somehow encompass an intentional discrimination claim on the theory that the agency would have investigated intent in connection with the disparate impact claim. See Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31-32 (1st Cir. 2009) (“[T]he scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the ... investigation could reasonably be expected to uncover.”) (citation omitted); Fantini, 557 F.3d at 27; Jorge v. Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005). Courts have contrasted claims of disparate treatment and disparate impact as involving different facts and evidence, and given the significant differences between those theories, other circuits have held that an administrative charge raising one theory generally does not exhaust the other. We reach the same conclusion.

Plaintiffs alternatively argue that they raised intentional discrimination in a statement later filed with the EEOC (but not with OPM in the first instance). The district court held that this statement does not satisfy the exhaustion requirement. We agree.

Federal employees pursuing a class complaint of discrimination, as plaintiffs do here, are subject to an administrative exhaustion procedure that differs in some respects from the procedures governing individual complaints. See generally 29 C.F.R. § 1614.204. But even with respect to class complaints, the complainant must submit his allegations to the allegedly discriminating agency. The complainant must file the class complaint “with the agency that allegedly discriminated.” Id. § 1614.204(c)(2). The class complaint “must identify the policy or practice adversely affecting the class as well as the specific action or matter affecting the class agent.” Id. § 1614.204(c)(1). Plaintiffs did not satisfy this requirement with respect to their disparate treatment claim.

But plaintiffs point out that, after the agency EEO office receives a formal class complaint, the agency forwards the complaint and other materials to the EEOC, where the complainant has a limited opportunity to elaborate on his allegations. Id. § 1614.204(d)(1). Here, OPM forwarded plaintiffs’ class complaint materials to the EEOC on June 19, 2013. On January 15, 2014, the EEOC requested that the parties submit briefing as to whether plaintiffs met the certification requirements for a class complaint (such as commonality, numerosity, etc.). In response, plaintiffs filed with the EEOC a “Statement in Support of Class Certification,” in which they alleged for the first time that “[t]he acts and omissions of OPM ... were based at least in part on discriminatory intent by the agency and its predecessor, the [CSC].” J.A. 640, 643. Plaintiffs assert that this was sufficient for exhaustion. We disagree. Plaintiffs were required to present their claims in the first instance to the agency alleged to have engaged in discrimination.

Plaintiffs rely on several non-federal-sector district court cases which suggest that later EEOC filings might be sufficient to exhaust, even if the initial EEOC charge was incomplete. But these cases do not excuse presenting the claim first to the relevant agency in the federal employer context.

In sum, plaintiffs failed to exhaust their claim for disparate treatment with the OPM EEO Office, and their later filings to the EEOC did not cure this flaw. Accordingly, the district court properly dismissed the disparate treatment claim.

V.

Finally, the district court held that plaintiffs’ nondiscrimination challenges were precluded by the CSRA. These nondiscrimination claims seek .a declaratory judgment that the exclusionary rule is arbitrary, capricious, and contrary to law under the APA. See 5 U.S.C. § 706.

As an initial matter, the government and the district court suggest that, because the relevant OPM regulations were published more than six years prior to the date on which plaintiffs filed their complaint in district court, the court lacks jurisdiction over plaintiffs’ non-discrimination challenges because those challenges are barred by the six-year statute of limitations applicable to APA claims. See 28 U.S.C. § 2401(a); Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d 21, 34 (1st Cir. 1998).

While this may be true for procedural challenges, the statute of limitations does not require that a substantive challenge to a regulation alleging that an agency exceeded its constitutional or statutory authority be brought within six years after the regulation is adopted when the challenge arises (1) in response to application of the regulation to the challenger; or (2) after the agency denies a plaintiffs petition to amend or rescind a regulation. See Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997); Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Reg. Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990). Because plaintiffs assert that the regulation is invalid as applied to them, their challenge is not barred by the fact that the challenge was brought later than six years after the regulation was adopted.

A.

“The CSRA established a comprehensive system for reviewing personnel action taken ágainst federal employees.” United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988); see also Roth v. United States, 952 F.2d 611, 614 (1st Cir. 1991). This framework provides the exclusive mechanism for challenging adverse personnel actions in federal employment. In general, an aggrieved federal employee or applicant may appeal to the MSPB. 5 U.S.C. § 7701(a). Subject to limited statutory exceptions, the appellant may then petition for review of the MSPB’s decision to the Federal Circuit. Id. § 7703(b)(1)(A).

A federal employee generally may not pursue alternative routes of judicial review, such as by filing a civil action in district court under the APA. The Supreme Court has recognized the primacy of the CSRA administrative review process starting at the MSPB and culminating in judicial review at the Federal Circuit. In Fausto, the Court explained that “[a] leading purpose of the CSRA was to replace the haphazard arrangements for administrative and judicial review of personnel action, part of the ‘outdated patchwork of statutes and rules built up over almost a century1 that was the civil service system.” 484 U.S. at 444, 108 S.Ct. 668 (quoting S. Rep. No. 95-969, at 3 (1978)). Given the remedies provided at the MSPB and on appeal to the Federal Circuit, “Congress intended to deny such employees an additional avenue of review in district court.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 132 S.Ct. 2126, 2134, 183 L.Ed.2d 1 (2012).

This court has likewise recognized that “[t]he legislative history of the CSRA establishes beyond dispute that Congress intended that statute to provide an exclusive procedure for challenging federal personnel decisions.” Roth, 952 F.2d at 615 (quoting Berrios v. Dep’t of Army, 884 F.2d 28, 31 (1st Cir. 1989)); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989) (noting that “the Court ... has jealously guarded [the] CSRA against inconcinnous judicial incursions”).

These limitations apply as well to retirement claims, which are first reviewed by OPM and thereafter by the MSPB and the Federal Circuit. The CSRA and the statutory retirement systems (such as the CSRS and FERS) are overlapping statutory schemes that “speciffy] the benefits to which federal employees and their survivors are entitled, and provide[ ] a reticulated remedial regime for beneficiaries to secure review — including judicial review— of benefits determinations.” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005); see also Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 771-75, 792, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (“Sections 1295(a)(9) and 7703(b)(1) together appear to provide for exclusive jurisdiction over MSPB decisions in the Federal Circuit, and do not admit any exceptions for disability retirement claims.”).

This statutory regime provides that OPM “shall adjudicate all claims” regarding retirement benefits. 5 U.S.C. § 8347(b) (CSRS); accord id. § 8461(c) (FERS). After OPM renders a final decision, the statutes provide for review of OPM benefits determinations by the MSPB. Id. §§ 8347(d)(1) (CSRS), 8461(e)(1) (FERS). Employees dissatisfied by the decision of the MSPB may petition for review in the Federal Circuit. Id. § 7703(b)(1). The consequence of this extensive remedial framework is that generally the plaintiff must pursue retirement benefits claims first at OPM, then at the MSPB, and finally at the Federal Circuit.

Plaintiffs contend that their claims are outside the scope of this remedial scheme because their challenge is to an agency regulation and not to individual benefits determinations. However, in a case similar to this one, the District of Columbia Circuit recognized that the CSRA precludes review of agency actions involving retirement benefits, even if those actions have broad application. In Fornaro, a group of federal law enforcement officers and firefighters brought an action in district court seeking declaratory relief compelling OPM to grant them greater retirement annuities. 416 F.3d at 65. The plaintiffs argued that CSRA preclusion did not apply because their claims asserted “a collateral, systemwide challenge to OPM policy.” Id. at 67. Writing for the court, then-Judge Roberts held that the CSRA’s “remedial provisions are exclusive,” id. at 66, and “[a]llowing an alternative route to relief in the district court because plaintiffs frame their suit as a systemwide challenge to OPM policy would substitute an entirely different remedial regime for the one Congress intended to be exclusive,” id. at 68.

It does not make any difference that this case includes a challenge to an OPM regulation rather than a policy and that the MSPB has determined that it does not have jurisdiction to review substantive challenges to OPM regulations. In Elgin, the Supreme Court held that the CSRA review scheme was the exclusive route for discharged federal employees to contest their removal despite the fact that their petitions challenged the constitutionality of a statute. See 132 S.Ct. at 2131, 2136. The petitioners argued “that the CSRA review scheme provides no meaningful review of their claims because the MSPB lacks authority to declare a federal statute unconstitutional.” Id at 2136. Without deciding whether the MSPB, in fact, lacks such authority, the Court explained that the constitutional issue could be “meaningfully addressed” in the Federal Circuit, “an Article III court fully competent to adjudicate petitioners’ claims.” Id. at 2137. If the CSRA requires MSPB exhaustion of challenges to federal statutes, it certainly also requires MSPB exhaustion of challenges to agency regulations, at least where the claim arises as part of a challenge to a specific agency determination applicable to the plaintiffs rather than to the adoption of the regulation in the first instance.

B.

Plaintiffs attempt to escape the preclusive effect of the CSRA by arguing that they have brought a “mixed case” involving both discrimination and non-discrimination claims. Typically a “mixed case” is one “in which an employee challenges as discriminatory a personnel action appealable to the MSPB.” Kloeckner v. Solis, — U.S. —, 133 S.Ct. 596, 602, 184 L.Ed.2d 433 (2012). Under 5 U.S.C. § 7702, a federal employee can bring a mixed case in district court without following the MSPB route. “A federal employee bringing a mixed ease ... may first file a discrimination complaint with the agency itself’ (here, the OPM EEO office) and “[i]f the agency decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner, 133 S.Ct. at 601; see also 5 U.S.C. § 7702(a)(2).

The government contends that, in contrast to cases involving employment actions, the mixed case framework does not excuse a claimant from exhausting nondiscrimination claims for retirement benefits through the MSPB before proceeding to district court, relying on Kerr v. Jewell, 836 F.3d 1048, 1057 (9th Cir. 2016). In Kerr, the Ninth Circuit held that Whistle-blower Protection Act (“WPA”) claims involved in a mixed case could not be heard in district court where the complainant had not first presented those claims to the MSPB. Id. Kerr relied in large part on the fact that the allegedly retaliating agency declined jurisdiction to decide a WPA claim. See id. at 1056.

Here, OPM plainly had authority to render a decision on the non-discrimination claims, even if particular issues (e.g., the challenge to OPM regulations) lie outside of OPM’s jurisdiction. See Lisanti v. Office of Pers. Mgmt., 573 F.3d 1334, 1340 (Fed. Cir. 2009) (holding that OPM could entertain an employee’s benefits claim challenging the employing agency’s interpretation of “basic pay” under the CSRS because the CSRS is “a statute that OPM itself is required to administer”). Also, OPM did not decline to exercise jurisdiction. We need not decide whether the government’s view is correct in the WPA context. Kerr has no application to situations such as here where the agency has jurisdiction to render a decision on the benefits claims in the first instance and has not declined jurisdiction.

Nonetheless, plaintiffs cannot bring a mixed case suit involving nondiscrimination claims in district court unless there has been a “personnel action appealable to the MSPB.” Kloeckner, 133 S.Ct. at 602. The statute requires that a mixed case include “an action which the employee or applicant may appeal to the [MSPB].” 5 U.S.C. § 7702(a)(1)(A), (a)(2)(A). The regulations likewise define a “mixed case complaint” with an EEO office as “a complaint of employment discrimination filed with a federal agency ... related to or stemming from an action that can be appealed to the [MSPB].” 29 C.F.R. § 1614.302(a)(1). This does not mean that an employee must actually appeal the action to the MSPB, but he must identify an action that could be appealed to the MSPB. If there is such an appealable action, it is possible to bypass the MSPB and file a mixed case in district court as explained above. But here, it is clear that plaintiffs never secured an action appeal-able to the MSPB.

In the context of retirement benefits claims, in general, an employee may appeal to the MSPB only an OPM final decision on an application for benefits. See 5 C.F.R. §§ 831.110, 841.308. A final decision by OPM is a written decision that is either designated as final by OPM, see id. §§ 831.109(f)(2), 841.307, or a reconsideration decision issued by OPM after its initial decision, see id. §§ 831.109(f)(1), 841.306(e). See Keira v. Merit Sys. Prot. Bd., 396 Fed.Appx. 703, 704 (Fed. Cir. 2010) (per curiam).

Plaintiffs identify three OPM actions that, they contend, were appealable to the MSPB: (1) OPM’s initial failure to respond to plaintiffs’ benefits claims, which plaintiffs styled as applications for benefits; (2) OPM’s issuance of a Final Interview Letter terminating EEO counseling on May 17, 2013; and (3) the failure of OPM’s EEO office to make a final decision within 120 days of the filing of plaintiffs’ formal class complaint. But none of these actions constitutes a final decision from OPM on any application for benefits, and therefore, plaintiffs have not secured a final decision from OPM that “the employee or applicant may appeal to the [MSPB].” 5 U.S.C. § 7702(a)(1)(A), (a)(2)(A).

Plaintiffs first argue that OPM initially failed to respond to their benefits claims, styled as applications for benefits, “regarding the unlawful discrimination and miscalculation of annuities.” Plaintiffs’ Reply Br. 23. They assert — in a single sentence and with no citation to authority— that “OPM’s failure to respond to any of [plaintiffs’ attempts to address their claims constituted a rejection of those claims.” Id But such a failure to respond does not amount to a final decision under the applicable regulations, see 5 C.F.R. §§ 831.109(f), 841.306(e), 841.307 (requiring a final decision from OPM to be in writing), though OPM’s failure to respond may sometimes be considered an appeal-able action. Because plaintiffs eschewed any effort to meaningfully develop the argument that OPM’s initial failure to respond constituted a rejection of plaintiffs’ claims (or to support that argument with any authority), we need not consider it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[Ijssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

Second, plaintiffs argue that the Final Interview Letter terminating counseling sent by an OPM Senior EEO Specialist was an OPM action appealable to the MSPB. Once again, however, we disagree. The OPM letter was not an OPM decision on plaintiffs’ benefits claims — let alone a final decision — under the applicable regulations. See 5 C.F.R. §§ 831.109(c), (f), 841.305(a), 841.306(e), 841.307. For one thing, the letter did not purport to address plaintiffs’ non-discrimination claims. Instead, the EEO specialist was clearly addressing plaintiffs’ discrimination claims: “Management’s response into the allegations of discrimination was that the issues are a matter of law and the ‘statutes allow for no discretion on the part of OPM. In the absence of discretion, there can be no improper discrimination.’ ” J.A. 976 (emphasis added and omitted). Indeed, the letter was sent along with the notice informing plaintiffs of their right to file a formal discrimination complaint with OPM’s EEO office in accordance with 29 C.F.R. § 1614.105(d).

Third, plaintiffs suggest that their later filing of a formal EEO class complaint (described above in Part IV) gave rise to an OPM action appealable to the MSPB. Plaintiffs argue that under 5 U.S.C. § 7702(e)(2), the OPM EEO office’s failure to resolve plaintiffs’ administrative class complaint within 120 days is an action (or inaction) that is appealable to the MSPB. To be sure, an employee may appeal a mixed case complaint originally filed with an agency EEO office to the MSPB (or pursue the claims in district court) if the agency EEO office fails to resolve the complaint within 120 days. 5 U.S.C. § 7702(e)(1)(A), (2). But this framework requires the existence of a valid mixed case complaint in the first place — i.e., an administrative complaint alleging some other agency action that is within the MSPB’s appellate jurisdiction. The statute and regulations are clear that in order to be a “mixed case complaint,” an EEO complaint must identify some agency action that is appealable to the MSPB. There was no such action here.

Because plaintiffs did not obtain a final decision from OPM regarding their applications for benefits, they had no basis for bypassing the MSPB and filing their nondiscrimination claims in district court as a mixed case.

VI.

In sum, the district court properly concluded that- plaintiffs’ disparate impact claim is barred by the location-based safe harbor provision of 42 U.S.C. § 2000e-2(h); that plaintiffs have not exhausted their administrative remedies as to their disparate treatment claim; and that plaintiffs’ non-discrimination claims were precluded by the CSRA. Accordingly, we affirm.

AFFIRMED.

      . These cost-of-living allowances, which are based on differences in geographic location of employment, are distinct from "cost-of-living adjustments" (also confusingly known as "COLAs”), which are annual adjustments to federal employment pay schedules based on inflation. See Beer v. United States, 696 F.3d 1174, 1177 (Fed. Cir. 2012) (en banc). The cost-of-living adjustments are not at issue in this case.

      . See Independent Offices Appropriations Act of 1949, Pub. L. No. 80-491, § 207, 62 Stat. 176, 194 (1948); Supplemental Independent Offices Appropriations Act of 1949, Pub. L. No. 80-862, § 104, 62 Stat 1196, 1205 (1948); see also 5 U.S.C. § 5941(a) ("[T]he allowance is paid only in accordance with regulations prescribed by the President....'').

      . Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 512-13.

      . The portion of § 2000e-2(h) relating to seniority plans is contained in the same clause as the location-based safe harbor; the clause provides in relevant part, "it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, ... or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.”

      . See Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1013 (11th Cir. 1982).

      . This is not to suggest that every aspect of § 2000e-2(h) defines the offense. It may be that the "Bennett Amendment,” a separate portion of § 2000e-2(h), provides an affirmative defense. The Bennett Amendment provides, "[i]t shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29.” § 2000e-2(h). Unlike the location-based safe harbor, the Bennett Amendment cross-references 29 U.S.C. § 206(d), which as noted above includes four provisions that have been described as affirmative defenses under the Equal Pay Act.

      .Title VII also applied to employment agencies, labor organizations, and various types of training programs. See generally 42 U.S.C. § 2000e-2.

      . See Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir. 2012) ("It is well-established that [42 U.S.C. § 2000e-16(a)] legislated for federal employees essentially the same guarantees against ... discrimination that previously it had afforded private employees. Thus, the general provisions of Title VII apply with equal force in both private and federal-sector cases.” (quotation marks and citations omitted) (ellipses in original)); Mlynczak v. Bodman, 442 F.3d 1050, 1057 (7th Cir. 2006) ("[T]he substance of the federal employee’s right in [§ 2000e-16(a)] is the same as the more familiar rights assured to all other employees.... ”); Larson on Employment Discrimination § 63.02 (2015) (explaining that § 2000e-16(a) "has usually been interpreted by the courts to mean that substantive Title VII standards applicable to private employment were intended to apply to federal workers”); see also Morales-Vallellanes v. Potter, 605 F.3d 27, 35-36 (1st Cir. 2010) ("Unlike its private-sector counterpart, Title VII does not contain an express antiretaliation provision applicable to the federal government as employer. Nonetheless, we have assumed that the antiretaliation provision applicable to private employers operates to prohibit retaliation in the federal sector.” (citation omitted)).

      . The specific incorporation of certain procedural aspects of the private-sector Title VII sections into the federal provision was necessary because § 2000e-16 deviated from Title VII’s procedural scheme. Through § 2000e-16, Congress created "an exclusive, pre-emp-tive administrative and judicial scheme for the redress of federal employment discrimination.” Brown, 425 U.S. at 829, 96 S.Ct. 1961; see also 42 U.S.C. § 2000e-16(b) (permitting the Equal Employment Opportunity Commission ("EEOC”), inter alia, to promulgate regulations providing for appropriate remedies); id. § 2000e-16(c) (providing the right to file a civil action following administrative review procedures specific to federal employees).

      . See also J.A. 800 (Formal EEO Class Complaint of Rosa C. Rodriguez: “The agency’s failure to include COLA in the retirement base discriminates against the large numbers of racial and ethnic minorities employed in non-foreign areas. Such discrimination has been unlawful since 1964. This discrimination was compounded in 1990, when the locality pay program was enacted. By continuing to exclude COLA from the retirement base, while locality pay is included, OPM has increased the discrimination which previously existed.”). The EEO complaints filed by other class members in the record include similar language.
      For background, in 1990 "locality pay” was established and made available to federal employees working within the contiguous United States. See Federal Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, § 529, 104 Stat. 1389, 1427 (1990). Like COLAs, locality pay is compensation that employees receive due to higher costs of living in certain geographic areas. See 5 U.S.C. § 5304(d)(1). But locality pay is different from COLAs for benefits purposes. Unlike COLAs, locality pay is included in "basic pay” for purposes of retirement calculations, 5 U.S.C. § 5304(c)(2)(A).
      In 2009, Congress created a transition program to make locality pay available to federal employees living in COLA areas. Non-Foreign AREA Retirement Equity Assurance Act, Pub. L. No. 111-84, tit. XIX, subtitle B, §§ 1911-19, 123 Stat. 2190, 2619-27 (2009). There is no contention that the 2009 Act affects this appeal.

      . See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 n.5, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes.”); Jones v. City of Boston, 752 F.3d 38, 46 (1st Cir. 2014) ("Notably, a disparate impact claim can succeed even where the employer did not intend to discriminate. This distinguishes the disparate impact cause of action from the more traditional disparate treatment approach to proving discrimination.” (citation omitted)).

      . See Abdus-Shahid v. Mayor and City Council of Baltimore, No. 15-2181, - Fed. Appx. -, -, 2017 WL 35725, at *7 (4th Cir. Jan. 4, 2017) (disparate treatment charge did not exhaust disparate impact); Burgis v. N.Y. City Dep't of Sanitation, 798 F.3d 63, 71 (2d Cir. 2015) (same); Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (same); Diersen v. Walker, 117 Fed.Appx. 463, 465-66 (7th Cir. 2004) (same); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir. 1984) ("Any investigation of whether [plaintiff's] application was rejected as the result of disparate impact would not have encompassed her subsequent claim that when she reapplied to the program she was subjected to intentional sex discrimination.”); but cf. Gomes v. Avco Corp., 964 F.2d 1330, 1334-35 (2d Cir. 1992) (disparate treatment allegation exhausted disparate impact claim where disparate treatment allegation was based on instances of alleged differential treatment related to a facially neutral rule).

      . To be sure, the regulations appear to contemplate that in some instances the EEOC may remand to the agency for consideration of new allegations. See 29 C.F.R. § 1614.204(d)(3) (explaining that if an allegation was not previously discussed with the counselor, and the agent provides a satisfactory explanation for this omission, the "administrative judge shall refer the allegation to the agency for further counseling” before consolidating the allegation with the class complaint); id. § 1614.204(d)(4) (explaining that if the agent provides information that "contains new allegations outside the scope of the complaint, the administrative judge shall advise the agent how to proceed on an individual or class basis concerning these allegations”). No such remand occurred here, and none was requested.

      . See Benbow v. State Univ. of N.Y.-New Paltz, No. 1:11-CV-0870 LEK/CFH, 2014 WL 1871863, at *4 (N.D.N.Y. May 8, 2014) ("A plaintiff may exhaust her claims not only in her initial administrative charge, but also in subsequent submissions to the EEOC.”); Huda v. Lockheed Martin, No. CIV. A. 07-9090, 2008 WL 191300, at *3 (E.D. La. Jan. 22, 2008).

      . See Latham v. U.S. Postal Serv., 2012 MSPB 20, ¶ 18, 117 M.S.P.R. 400 (2012), superseded on other grounds by regulation, Practices and Procedures, 80 Fed. Reg. 4489, 4496 (Jan. 28, 2015) (codified at 5 C.F.R. § 1201.57(a)(4), (b)), as recognized in Lojewski v. U.S. Postal Serv., AT-0353-16-0069-I-1, 2016 WL 5939682, at ¶ 18 (M.S.P.B. Oct. 11, 2016), and Kingsley v. U.S. Postal Serv., 2016 MSPB 21, ¶ 10, 123 M.S.P.R. 365 (2016).

      . Plaintiffs argue that the MSPB has broad jurisdiction to review any OPM actions “affecting the rights or interests of an individual or of the United States under” the federal retirement laws. 5 U.S.C. §§ 8347(d), 8461(e). Contrary to plaintiffs’ suggestion, these statutes do not provide broad MSPB jurisdiction untethered to the regulations providing for MSPB review of a "final decision” of OPM. See Poole v. Dep't of Army, 2012 MSPB 32, ¶ 10, 117 M.S.P.R. 516 (2012).

      . The MSPB "has recognized a limited exemption to” the final-decision jurisdictional rule and "has found this exception applicable where it appeared that OPM had no intention of issuing a reconsideration decision or other further decision in tlje case” or "where OPM ‘improperly failed to respond to [a claimant’s] repeated requests for a decision.’ ” Keira, 396 Fed.Appx. at 705 (quoting McNeese v. Office of Pers. Mgmt., 61 M.S.P.R. 70, 74 (1994)).

      . We have no occasion in this case to address the application of the appealability requirement of a mixed case under 5 U.S.C. § 7702(a)(l)-(2) in circumstances where, although OPM has not issued a final decision on an application for benefits, the MSPB would determine that it has jurisdiction to entertain an appeal under the limited exception to the final-decision rule. See supra note 17. We therefore express no opinion on this issue.

      .Because plaintiffs failed to raise the issue in their brief, we need not decide whether the OPM letter constituted an implicit denial of their benefits claims. See Adkins v. Office of Pers. Mgmt., 2006 MSPB 351, ¶¶ 9-10, 104 M.S.P.R. 233 (2006) (concluding that MSPB had jurisdiction to review OPM’s implicit denial of a claim for retirement benefits); cf. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009) (explaining the "implicit denial” rule applicable to veterans benefits determinations).


source: Caselaw Access Project

author: THOMPSON, Circuit Judge.

license: Public Domain

text:
    Brian and Melissa FARIA, Plaintiffs, Appellants, v. HARLEYSVILLE WORCESTER INSURANCE COMPANY, Defendant, Appellee.
    No. 16-1060
    United States Court of Appeals, First Circuit.
    March 24, 2017

      John B. Harwood, with whom McKinnon & Harwood LLC, Pawtucket, RI, was on brief, for appellants.
    Kevin J. Holley, with whom Gunning & LaFazia, Inc., Warwick, RI, was on brief, for appellee.
    Before LYNCH, LIPEZ, and THOMPSON, Circuit Judges.
   THOMPSON, Circuit Judge.

Jury selection is a fundamental step in our legal process, and when juror-screening mechanisms do not function as they are meant to, we end up faced with situations such as the one in this case: a post-verdict discovery that an individual served as a juror when he should not have cleared preliminary procedural hurdles due to a prior felony conviction prompted a new-trial motion challenging the jury’s verdict. But even though this individual slipped through the qualification cracks, his inclusion is not fatal to the jury’s verdict. We conclude that the district court properly denied the new-trial motion.

The Case

In March 2012, Brian Faria was injured in a car accident, which he claimed was caused by a reckless highway driver who cut him off. Eventually, Mr. Faria and his wife (collectively, “the Farias”) brought a lawsuit against their insurance carrier, Harleysville Worcester Insurance Company (“Harleysville”), claiming that Harleys-ville had incorrectly denied coverage under the uninsured motorist provision of his automobile insurance policy. Litigation proceeded in the normal course, and, ultimately, the case was slated for a jury trial.

A prospective juror by the name of John R. Rieger (“Mr. Rieger”) was randomly selected for jury service, and he received a juror qualification form by mail. When completing his form, Mr. Rieger selected ‘Tes” in response to a question asking whether he had ever been convicted of a crime for which punishment could have been more than one year in prison. Following the form’s instructions, Mr. Rieger elaborated in the “Remarks” section: he represented that the date of the offense was “Feb. 1995,” the date of the conviction was “2000-2001,” and he served eighteen months of the four-year sentence imposed. He also selected “Yes” in response to the question “Were your civil rights restored?” and specifically wrote “Voting Rights.” As per the qualification form’s instructions, he returned it to the clerk of court, however, he did not sign (under penalty of perjury) and date the form as required.

Fast-forward to voir dire on August 4, 2015, at which point counsel for the Farias asked the summoned panel, amongst other things, whether “anyone [had] served as a juror in another case, whether it be criminal or civil?” He also asked them questions designed to ferret out their knowledge of personal injury claims, such as whether any of them, or anyone they personally knew, had made such a claim. And continuing with questioning centered on civil litigation, he asked whether “anyone, any relative, children, husbands, uncle, aunts that are very close to you, any of them been a Plaintiff or a Defendant in a case?” Mr. Rieger remained silent in response to these questions.

When the jury was empaneled on August 4, 2015, it included Mr. Rieger. Trial began on August 24, 2015, and the jury’s unanimous verdict, announced — yes—by foreperson Rieger, was for Harleysville.

But twelve days later, the Farias filed a motion for a new trial'after learning that Mr. Rieger had been convicted in Rhode Island state court of assault with a dangerous weapon in 1997, and he had been sentenced to fifteen years’ imprisonment, with four years to serve, as well as an eleven-year suspended sentence that would run concurrently with probation. And due to his state court appeal, his sentence was not executed until March 23, 2001, meaning he was on a suspended sentence and probation at the time he served on the jury. The Farias contended that Mr. Rieger was not qualified to serve on the jury under 28 U.S.C. § 1865(b)(5).

■ Ruling on the new-trial motion, the district court found that following his conviction, Mr. Rieger’s civil rights had not been fully restored and, therefore, he was not qualified to serve. But it also found that the Farias “arguably waived [their] right to challenge [Mr. Rieger]’s service” because they did not follow the proper procedure for contesting his service, nor did they seek to obtain a copy of the qualification forms which disclosed Mr. Rieger’s conviction, despite having “ample time to learn something about the members of the jury either through the questionnaires or otherwise.” Reluctant, however, to dispose of the case on waiver, the district court turned to the fairness of the trial and whether any prejudice resulted from Mr. Rieger’s inclusion. The district court concluded that the questions asked during voir dire focused on the potential jurors’ experiences in civil matters, and there were no questions about anything to do with the criminal justice system. From this, the district court concluded that Mr. Rieger’s silence in response to the questions during voir dire “was appropriate and did not amount to a dishonest nondisclosure.” The district court went on, “[Mr. Rieger] told the truth about his record in his questionnaire,” and saw “no reason to believe that [Mr. Rieger]’s representation was anything other than a mistaken belief that because his voting rights were restored upon his release from prison that all of his civil rights were restored at that time.”

The district court denied the new-trial motion, concluding that the Farias had not shown that Mr. Rieger’s “service deprived [them] of a fundamentally fair trial,” and that “the jury was impartial” and the Fari-as “had a fair trial.” The Farias timely appealed and we take the arguments in turn.

Standard of Review

“Generally, motions for a new trial are committed to the discretion of the district court.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). Abuse of discretion occurs when our appellate review reveals that the district court erred in its legal rulings or clearly erred in its factual findings. Sampson v. United States, 724 F.3d 150, 161 (1st Cir. 2013); see also United States v. Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010) (explaining that “ ‘abuse of discretion’ is used as well to embrace mistakes on abstract issues of law (reviewed de novo) and errors of fact (for which clear error is the customary test)”). Elaborating on that standard, we have noted that “[w]here the [new-trial] motion rests on a challenge to the qualification of a juror, our standard of review is highly deferential because ‘the district court is closer to the action and has a better “feel” for the likelihood that prejudice sprouted.’ ” United States v. Nickens, 955 F.2d 112, 116 (1st Cir. 1992) (quoting United States v. Uribe, 890 F.2d 554, 562 (1st Cir. 1989)). Further, “[a] trial court’s findings on issues of juror credibility and honesty are determinations ‘peculiarly within a trial judge’s province’ and are accorded great deference.” Amirault v. Fair, 968 F.2d 1404, 1405 (1st Cir. 1992) (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).

The System: Jury Selection and Service Act, Jury Selection Plan, and Juror Qualification Forms

Before we address the parties’ arguments, a general primer on the jury selection system in place at the time of the Farias’ trial would be useful. To put matters in context, the Farias tell us the system broke down when the clerk, on the basis of Mr. Rieger’s juror qualification form, allowed the statutorily ineligible felon-juror to slip through the cracks onto this jury. Here’s how the system works.

The Jury Selection and Service Act, 28 U.S.C. §§ 1861-1878 (JSSA) directs the District Court of Rhode Island to create a Jury Selection Plan (the “Jury Plan”). See U.S. D. Or. D.R.I., Jury Selection Plan (Oct. 2013) (hereinafter Jury Plan). In accordance with the Jury Plan, a master jury wheel is created by selecting names at random from the voter registration lists as maintained by the Secretary of State of Rhode Island. Id. §§ 6(a)-(c). Names are randomly drawn from the master jury wheel, and the individuals selected receive juror qualification forms. Id. §§ 7(a), (b).

The qualification forms are designed to screen prospective jurors to ensure that every juror summoned meets the requirements of § 1865(b)(5) of the JSSA, which, in pertinent part, explains that any person is qualified to serve on a jury unless he “has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.” Jury Plan, § 9(e). In this way, the forms serve as a gate-keeping tool.

The Jury Plan explains:

A judicial officer, upon his or her own initiative or upon recommendation of the Clerk, or the Clerk under supervision of the Court, shall determine solely on the basis of the information provided on the juror qualification form, and other competent evidence, whether a person is unqualified for, or exempt, or to be excused from jury service.

Jury Plan, “Qualification Phase.” And “[t]he Clerk shall enter by electronic means or manually such determination in the space provided on the juror qualification form.” Id. § 9. So, under the Jury Plan, the clerk or a “judicial officer” reviews the completed forms and determines (on the basis of the information provided on those forms) whether a prospective juror is qualified to serve. A person determined to be unqualified is not placed on the “qualified jury wheel” and is, therefore, not subject to summons.

Section 1864 of the JSSA addresses deficient juror qualification forms:

In any case in which it appears that there is an omission, ambiguity, or error in a form, the clerk or jury commission shall return the form with' instructions to the person to make such additions or corrections as may be necessary and to return the form to the clerk or jury commission within ten days.

28 U.S.C. § 1864.

Had the clerk scrutinized Mr. Rieger’s qualification form more carefully, he or she would have observed the gaps in information (omissions of conviction date, nature of offense, the name of the court where Mr. Rieger was convicted, the parameters of the sentence imposed, the status of the full restoration of Mr. Rieger’s civil rights, and Mr. Rieger’s failure to sign the form), and returned the form to Mr. Rieger to be corrected and returned.

Meanwhile, as for challenging the jury selection process, the JSSA provides guidance:

In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury.

Id. § 1867(c). Arid, with respect to how qualification forms may be requested, the JSSA provides:

The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this section.... The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion.

Id. § 1867(f).

For its own part, the Jury Plan explains that “[t]he contents of records or papers used by the Clerk in connection with the jury selection process shall not be disclosed, except pursuant to this Plan or upon order of the Court.” Jury Plan, § 15(b)(1). Therefore, under certain circumstances, the JSSA and the Jury Plan provide litigants a mechanism — a motion to the court — for seeking the release of the juror qualification forms. The Farias did not file such a motion.

With this statutory scheme in mind, we move on to our discussion.

Waiver

Before addressing the Farias’ challenge to the district court’s ruling, we must first determine whether, as Harleysville has contended here and below, it has been waived. In arguing waiver, Harleysville points out that in Uribe, a case involving a post-trial allegation of juror bias arising out of a felon’s service on a jury, we noted that, although convicted felons may be statutorily barred from serving as jurors, the JSSA does not present a constitutional bar to their service. 890 F.2d at 561. Instead, we found that “the right to exclude felons must be affirmatively invoked; the [JSSA] establishes strict procedural requirements for challenging ineligible jurors.” Id. We also said that a party “must assert his rights ‘before the voir dire examination begins, or within seven days after [a party] discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.’” Id. (quoting § 1867(a)); see also § 1867(e) (stating that procedures prescribed by statute comprise “exclusive means” for challenging jurors “not selected in conformity with the provisions of [the JSSA]”). In Uribe, we reasoned that because a felon-juror divulged his prior conviction on his qualification form, and because the forms are available to counsel “upon motion, prior to empanelment, ... [the litigant] seemingly waived the point.” 890 F.2d at 561; see also § 1867(f) (explaining that records used by the clerk in connection with jury selection may be released for the parties to use in preparing a motion under subsection (a), (b), or (c)).

Harleysville says the same goes for the Farias, who arguably committed the same procedural misstep as did the Uribe litigant. Although Mr. Rieger disclosed his conviction on his juror qualification form, the Farias did not try to get a copy of that form before empanelment began or between the completion of voir dire (August 4) and the trial’s start date (August 20). And because they failed to follow the procedures prescribed in the JSSA and Jury Plan, the Farias, Harleysville contends, waived any challenge to Mr. Rieger’s inclusion on this jury.

The Farias see things differently on the waiver front. Relying on United States v. Schneider, 111 F.3d 197 (1st Cir. 1997), they maintain that our court has clearly backed away from the strict raise-it-or-waive-it rule we seemingly announced in Uribe. In Schneider, we observed that Uribe “stopped just short of a definitive finding that the Rhode Island federal juror selection plan permitted such [unfettered litigant access] to jury questionnaires.” Schneider, 111 F.3d at 204 (citing Uribe, 890 F.2d at 561). We went on, “[n]either the statute nor the Rhode Island plan are crystal clear about access to questionnaires,” and we questioned whether such forms could be used “solely to aid in the voir dire process.” Id. (citing Jewell v. Arctic Enters., Inc., 801 F.2d 11, 13 (1st Cir. 1986)). Given the uncertainty of their access to the forms, the Farias tell us that, absent some reason to believe the clerk had completely failed in his or her duty to properly screen prospective jurors, they had no reason to suspect a potential problem with Mr. Rieger. See id. (noting that the complaining party may have moved to gain access to a juror questionnaire, but “before trial he had no basis for such a motion”).

The district court found Harleysville’s waiver argument persuasive, but given our post-Uribe pronouncements, opted not to decide the new-trial motion on that basis. For that same reason, we likewise do the same. Because, even assuming the Farias could have accessed Mr. Rieger’s qualification form at some point prior or subsequent to his selection on their jury panel, their claims nonetheless fail on the merits. We therefore turn our attention to the remainder of the arguments.

The Parties’ Analytical Frameworks

The parties take very different views of the analytical lenses through which the remaining issues should be assessed, and we set forth their arguments in some detail. In advancing their claims, the Farias implore us to be guided by what they contend is the Supreme Court’s analysis in McDonough, 464 U.S. 548, 104 S.Ct. 845. There, after a district court denied a motion for a new trial in a product liability case, the Tenth Circuit reversed, reasoning that the failure of a juror to respond affirmatively to a voir dire question about a family member’s injury from an exploding tire, had “prejudiced the [defendants’] right of peremptory challenge,” and a new trial was necessary. Id. at 549, 104 S.Ct. 845. Subsequently, the Supreme Court reversed the Tenth Circuit, holding that a party is not entitled to a new trial unless the juror’s failure to disclose denied the other side its right to an impartial jury. Id. But in so ruling, the Court announced “a binary test” that the filer of a new-trial motion based on juror dishonesty must satisfy: (1) “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire,” and (2) the party must “then further show that a correct response would have provided a valid basis for a challenge for cause.” Jd. at 556, 104 S.Ct. 845.

The Farias maintain that once they satisfy this binary test — and they claim they have done so — they have met their McDonough burden for obtaining a new trial. Initially, they do acknowledge that McDonough dealt with juror misinformation given during voir dire rather than during the juror qualification process, but they say it is a difference without a distinction since juror .qualification forms “serve[] the same purpose as collecting information from voir dire — to dismiss unqualified jurors.” “Part and parcel” of screening, they say. As such, the Farias assert they have met McDonough’s first prong (juror answered a material question dishonestly) given that Mr. Rieger lied on his qualification form about the circumstances of his conviction and about the restoration of his civil rights, and further lied through his silence at voir dire when asked if he had ever been a defendant in a case. As the Farias see it, Mr. Rieger is a man who made a “concerted effort to conceal his criminal history” because he was bound and determined — for whatever reason — to sit on this jury, and he deceitfully lied in an effort to achieve that ambition. As such, they contend the district court clearly erred in finding Mr. Rieger’s answers and omissions honest mistakes.

As for McDonough’s second prong (a juror’s correct answer would be the basis for a for-cause challenge), the Farias argue that, had Mr. Rieger provided truthful responses to the questions he was asked both in his juror qualification form and during voir dire, he clearly would have been excused if challenged because he was ineligible to serve. Therefore, in their view, because they have satisfied the Mc-Donough binary test, the district court’s inquiry should have ended. Accordingly, they say the district court abused its discretion (by erring as a matter of law) in not granting them a new trial.

Harleysville, naturally, sees things differently. Harleysville first argues that the Farias’ “part and parcel” theory doesn’t fly; the test announced in McDonough has nothing to do with qualification forms, but rather applies only to questions asked during voir dire. Harleysville draws a distinction between the two procedures: juror qualification forms serve a gate-keeping function, helping the clerk’s office determine who is statutorily eligible to serve on a jury (able to speak and understand English, of age, a citizen of the U.S., and the like), but voir dire safeguards litigants’ right to a fair and impartial trial and is a tool to be used to make sure jurors do not harbor biases for or against the parties. See, e.g., Sampson, 724 F.3d at 163-64 (voir dire aims to uncover potential bias or prejudice harbored by prospective jurors); Correia v. Fitzgerald, 354 F.3d 47, 52 (1st Cir. 2003) (explaining that voir dire’s purpose is to make sure jurors “do not harbor biases for or against” the litigants). This court, says Harleysville, has applied McDonough only in those instances where potential juror dishonesty has been alleged at the voir dire stage, see, e.g., Sampson, 724 F.3d at 163; Crowley v. L.L. Bean, Inc., 303 F.3d 387, 407 (1st Cir. 2002), and as such, the Farias should not be allowed to extend McDonough’s holding to qualification forms.

And, Harleysville continues, even if we were to extend McDonough’s reach to include juror qualification forms, the Farias still miss the mark because they cannot satisfy the two-prong test, either with the qualification form answers or with Mr. Rieger’s silence during voir dire. On Mc-Donough’s first step, as applied to the qualification form, Harleysville contends that Mr. Rieger’s qualification form answers were not dishonest; and he provided information in response to those questions which actually outed his felon status. He even tried to avoid jury service, noting on his qualification form that he “wish[ed] to be excused” due to his felony conviction. Mr. Rieger’s answers, says Harleysville, suggest he is the polar opposite of the determinedly deceitful person the Farias make him out to be. And although Mr. Rieger did indicate on his qualification form that, yes, his civil rights had been restored — which the Farias say amounts to deliberate deceit — Harleysville points out that Mr. Rieger’s voting rights (which he specifically cited on his qualification form) had indeed been restored, meaning Mr. Rieger was not answering dishonestly, or at least not purposefully so. Harleysville also says the Farias fall short on step one of McDonough as applied to voir dire: they argue that the questions asked at voir dire by both sides did not target prior criminal convictions or prior connections to the criminal justice system. And, Harleysville tells us, Mr. Rieger’s silence in response to the subject questions, all of which, as we noted earlier, were aimed at uncovering any jury bias relative to personal injury claims, was appropriate.

Because the Farias cannot surmount McDonough’s first step, Harleysville argues that we need not reach step two. But it explains the Farias would lose on that front as well: McDonough was focused on whether a nondisclosure by a juror owed specifically to bias, but here, the for-cause challenge to Mr. Rieger would have been based on his § 1865(b)(5) statutory ineligibility, not bias. Accordingly, the Farias have not shown that his inclusion — while not in conformity with the statute — impacted the fundamental fairness of the trial, which it asserts is at the heart of the McDonough • ruling. The district court, Harleysville says, did not err.

Our Take

We believe Harleysville has the better argument. Assuming McDonough applies on all fours, it does not help the Farias’ cause. First, we do not believe the Farias meet McDonough’s first prong: they have not demonstrated that Mr. Rieger answered dishonestly. 464 U.S. at 556, 104 S.Ct. 845. The district court found that Mr. Rieger “told the truth” and his “yes” answer to the civil-rights-restoration question on the qualification form was reasonable — at most, the answer given was based on a mistaken reading of the juror qualification form’s ambiguous question (“Were your civil rights restored?”). This finding of fact was not clear error. Nor was it clear error when the district court found that the voir dire questions focused on the potential jurors’ experiences with civil matters, so Mr. Rieger’s silence following those questions likewise “was appropriate and did not amount to a dishonest nondisclosure.”

Moreover, McDonough does not assist the Farias because they misconceive the core principle of its holding. The binary test set forth in McDonough is not a be-all-end-all test to be viewed without context. Rather, the fundamental purpose of the test is to answer the crucial, overarching trial inquiry: was the juror biased and, if so, did that bias affect the fairness of the trial? Put differently, the animating principle of the McDonough test is this: “[t]he motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” 464 U.S. at 556, 104 S.Ct. 845. The Farias have failed to adequately explain how bias, if any, tainted their trial result.

We have stated that “[t]he party seeking to upset the jury’s verdict has the burden of showing the requisite level of bias by a preponderance of the evidence.” See Sampson, 724 F.3d at 166 (quoting DeBurgo v. St. Amand, 587 F.3d 61, 71 (1st Cir. 2009)). And, critically, when seeking a new trial because of a juror’s nondisclosure, a party “must do more than raise a speculative allegation that the juror’s possible bias may have influenced the outcome of the trial.” Dall v. Coffin, 970 F.2d 964, 969 (1st Cir. 1992). In such a scenario, we have required litigants to “demonstrate actual prejudice or bias,” United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir. 1990), and we have said that the burden of proof on this point “must be sustained not as a matter of speculation, but as a demonstrable reality,” Uribe, 890 F.2d at 562. See also Crowley, 303 F.3d at 408 (rejecting a new-trial motion on the basis of alleged juror bias where the movant “only speculates as to whether the juror actually is biased” and “only has alleged ‘possible bias’”). As we have said, “hints of bias [are] not sufficient,” as “only ‘[demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause.’ ” Sampson, 724 F.3d at 165 (alterations in original) (quoting McDonough, 464 U.S. at 554, 104 S.Ct. 845). Here, Mr. Rieger’s felon status, alone, does not necessarily imply bias, and accordingly his mere presence on the Farias’ jury does not, without more, demonstrate an unfair trial result. Uribe, 890 F.2d at 562.

Believing they do not need to make this showing, the Farias, as we noted, have not asserted what particular bias Mr. Rieger harbored or how that bias would have affected the fairness of the trial. Instead, they merely speculate as to the bias and prejudice that resulted. The Farias sweepingly state that Mr. Rieger’s dishonest answers “prejudiced Mr. Faria,” but offer none of the requisite analysis of discerna-ble bias or prejudice harbored by Mr. Rieger, or how that bias influenced the trial’s outcome. Crowley, 303 F.3d at 408; Dall, 970 F.2d at 969; Aponte-Suarez, 905 F.2d at 492; Uribe, 890 F.2d at 562. Thus, it cannot be said that the Farias sustained their burden of setting forth Mr. Rieger’s bias as a “demonstrable reality.” Uribe, 890 F.2d at 562.

Indeed, “[s]hort of constitutional error or some more substantial violation of the JSSA, there must at least be a plausible link between the predicate facts and the prejudice claimed before retrial can be ordered,” and, as in Uribe, “[n]one was demonstrated here.” Id. at 562. The district court did not clearly err in its finding that Mr. Rieger’s inclusion on the jury resulted in no prejudice to the Farias and did not affect the jury’s impartiality.

In closing, it is worth remembering the Supreme Court’s cautionary note in McDonough. Litigants are not guaranteed a perfect trial, McDonough, 464 U.S. at 553, 104 S.Ct. 845 (noting that “[a litigant] is entitled to a fair trial but not a perfect one”), and we do not reverse for every error that arises, id. (“We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ‘citadels of technicality,’ ” and “[t]he harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial.”).

And so, in this instance, we conclude that “the statutory violation — allowing a convicted felon to serve — did not implicate the fundamental fairness of the trial.... ” Uribe, 890 F.2d at 562. The district court did not abuse its discretion in denying a new trial.

Affirmed. Costs to Appellee.

      . We discuss the specifics of the jury selection system, including juror qualification forms, in more detail below.

      . Mr. Rieger apparently believed his answer would render him ineligible to serve; he lists his response to that question as the grounds upon which he wished to be excused.

      . How the Farias learned of Mr. Rieger's felon status is not clear — two explanations were advanced. But we do not need to resolve this mystery to reach the issues before us.

      . The parties’ arguments are examined more completely and in greater detail in the analysis to come.

      . Here, we examine the Jury Plan that was in effect in 2015, when the jury selection in this case took place.

      . Uribe was a criminal matter, hence the reliance on § 1867(a). Here, the applicable subsection is § 1867(c), relating to civil cases, which substantially mirrors subsection (a).

      . We observed in Schneider that we had not yet adopted a position on whether the Rhode Island federal juror selection plan allowed the parties to access juror questionnaires, and also noted that neither § 1867(f) nor the Jury Plan are "crystal clear about access to questionnaires.” Ill F.3d at 204. But Schneider examined a very different Jury Plan, which has since been overhauled, and the iteration in effect in 2015, as we explained in our primer, offers more instruction: "[t]he contents of records or papers used by the Clerk in connection with the jury selection process” may be disclosed "pursuant to this Plan or upon order of the Court.” Jury Plan, § 15(b)(1).
      Therefore, as noted by the district court, the Farias could have made a § 1867(c) motion to stay proceedings (either before voir dire began, or within seven days after the Farias "discovered or could have discovered, by the exercise of diligence,” the grounds for their challenge). Harleysville points out that the Farias had plenty of time between jury selection and the start of trial to do an exercise-of-due-diligence Google search of the panel members and had they done so, they would have discovered Mr. Rieger’s conviction because the Rhode Island Supreme Court’s decision affirming that conviction is the first item which pops up in the search (and as of the date of publication of this opinion, our Google search — "John R. Rieger Rhode Island” — yielded the same result). Certainly then, they could have filed an appropriate motion, says Harleysville.

      . As a catch-all, the Farias argue they were at least entitled to a hearing, and the district court's failure to conduct a hearing on the dishonesty of the answers provided by Mr. Rieger on the qualification form and also at voir dire was clear error. Harleysville counters that the district court concluded that Mr. Rieger did not provide any dishonest answers, and his silence "was appropriate and did not amount to a dishonest nondisclosure.” So a hearing is unnecessary because the Farias have not shown that the district court clearly erred. But, more to the point, Harleysville also says that the Farias never requested a hearing from the district court judge, and in fact, affirmatively represented that a hearing was unnecessary, so that matter should be deemed waived. We agree.

      . Eligibility ties into the requisite civil rights that would need to be in place under § 1865(b)(5) for a felon-juror to serve. Here, Mr. Rieger said yes, his civil rights had been restored. In actuality, while Mr. Rieger’s voting rights were restored, see R.I. Const, art. II, § 1, neither his right to sit on a jury nor his right to seek and hold office had been restored, see R.I. Gen. Laws § 9-9-1.1(c) and R.I. Const, art. Ill, § 2. See also Caron v. United States, 524 U.S. 308, 316, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998) (generally holding that civil rights are understood to include the right to vote, the right to sit on a jury, and the right to seek and hold office); United States v. Hefner, 842 F.2d 731, 732 (4th Cir. 1988); United States v. Green, 532 F.Supp.2d 211, 212 (D. Mass. 2005). On appeal, Harleys-ville does not seem to contest the statutory ineligibility of Mr. Rieger. But Harleysville does point out that Mr. Rieger clearly provided enough information to put the clerk’s office on notice of the felon status and, by extension, probable ineligibility. If the Farias had made a Schneider request for the forms, as discussed above, they would have been on notice too.

      .We note here that the Farias make no actual attempt before us to demonstrate any bias Mr. Rieger may have harbored or any prejudice they may have suffered as a result of Mr. Rieger’s juror participation in their trial. Below, the Farias told the district court that Mr. Rieger’s bias stemmed from the nature of his underlying felony, assault with a dangerous weapon, and that bias had a "strong impact on deliberations” at trial. The district court rejected this, and the Farias do not make this assertion on appeal. This is so because, in their view, prejudice is not part of the McDonough calculus: they say "while the District Court frames its argument around ’prejudice,’ the case here hinges on the McDonough test, as opposed to some overarching finding of prejudice or bias.”

      . We do note, however, that the form does not ask whether all civil rights have been restored, so Mr. Rieger’s response (“voting rights”), we think, was a fair one — that right had been restored. Once again, had the clerk sufficiently inspected the form, it would have led to the realization that certain information was not included, but, even so, Mr. Rieger had provided enough information to reveal his felon status. At a minimum, the information Mr. Rieger provided would have been cause to return the form to him for more complete responses.

      . Moreover, as we previously noted, the Fa-rias eschewed the need for an evidentiary hearing to further flesh out any of their fair trial concerns; therefore their claim that the district court erred in not holding a hearing goes nowhere.