source: Caselaw Access Project

author: JON O. NEWMAN, Circuit Judge:

license: Public Domain

text:
    Christopher STEVENS, Plaintiff-Appellee-Cross-Appellant, v. RITE AID CORPORATION, dba Rite Aid Pharmacy, aka Eckerd Corporation, dba Rite Aid, Defendant-Appellant-Cross-Appellee.
    Docket Nos. 15-277(L), 15-279(Con), 15-3491(xap)
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: October 6, 2016
    Decided: March 21, 2017

      Allyson N. Ho, Morgan, Lewis & Bocki-us LLP, Dallas, TX (John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas, TX, Michelle Seldin Silverman, Morgan, Lewis & Bockius, Princeton, NJ, on the brief), for Appellant-Cross-Appellee Rite Aid Corporation.
    Janet D. Callahan, Hancock Estabrook, LLP, Syracuse, NY (Daniel B. Berman, Robert C. Whitaker, Robert J. Thorpe, Hancock Estabrook, LLP, Syracuse, NY, on the brief), for Appellee-Cross-Appel-lant Christopher Stevens.
    Before: NEWMAN, LYNCH, and DRONEY, Circuit Judges.
   JON O. NEWMAN, Circuit Judge:

This appeal and cross-appeal concern a pharmacist who suffers from trypanopho-bia — fear of needles. The pharmacy where he was employed discharged him because he could not comply with a company policy that required pharmacists to administer immunization injections to customers. That action precipitated a suit under the Americans with Disabilities Act (“ADA”), 42 U.S.Ci §§ 12101 et seq. and similar state law. Rite Aid Corporation (“Rite Aid”), the employer, appeals from the January 27, 2015, judgment entered by the District Court for the Northern District of New York (Thomas J. McAvoy, District Judge) awarding Christopher Stevens, the pharmacist, substantial damages after a jury trial. Rite Aid also appeals and Stevens cross-appeals from the District Court’s September 23, 2015, post-trial order. That order dismissed the plaintiffs failure-to-accommodate claim, granted a new trial unless plaintiff agreed to a remittitur (later accepted), substantially granted plaintiffs claims for interest, and denied defendant’s motion for judgment as a matter of law on plaintiffs wrongful discharge and retaliation claims.

Background

In 2011, Rite Aid, and other large pharmacy chains, started requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the healthcare market. In April 2011, Rite Aid revised its job description to require pharmacists to hold a valid immunization certificate and included a reference to immunizations in the list of “essential duties- and responsibilities” for pharmacists.

Before his termination in August 2011, Stevens worked in upstate New York as a full-time pharmacist for Rite Aid and its predecessor pharmacies for 34 years. He was responsible for handling medications and counseling customers regarding their medications. In March 2011, Stevens received an e-mail from his district manager, William Spink, informing him that Rite Aid was going to require all pharmacists to give immunization injections to customers.

Stevens obtained a note from his treating physician, Dr. Mark Warfel, stating that Stevens is “needle phobic and cannot administer immunization by injection. Stevens wrote a letter to Spink explaining that his trypanophobia causes him to experience “lightheadedness, paleness, and a feeling that I may faint” and that, as a result he “would never even consider trying to become an immunizing pharmacist.” Stevens also stated that he believed his condition was a covered disability under the ADA, and requested that Rite Aid provide him with a reasonable accommodation.

In May, William Farley, a Rite Aid Human Resources manager; faxed Stevens a list of questions for his doctor to answer regarding Stevens’ needle phobia, including how the phobia would manifest itself if Stevens were to administer immunizations by injection and whether there were any accommodations that would enable Stevens to perform injections. Dr. Warfel’s response stated that if Stevens were to administer an injection, “[h]e would become diaphoretic, hypotensive and probably faint. Vagal response.” Dr. Warfel further advised that Stevens could not safely administer an injection, since the likelihood that he would faint would be “unsafe for the patient and Mr. Stevens.”

In August, Rite Aid officials told Stevens that the ADA did not apply to trypa-nophobia, that Rite Aid was not required to accommodate Stevens, and that Stevens would lose his job unless he successfully completed immunization training. Stevens later told Spink that he would not be able to complete the training. On August 23, a Rite Aid official gave Stevens a termination letter, informing him that he was being terminated for refusing to perform customer immunizations, which were an essential function of his job.

At trial, Dr. Warfel testified that Stevens suffers from trypanophobia and that, when faced with needles, his heart rate increases and he becomes lightheaded, dizzy, and anxious. Frank Dattilio, a Board Certified Clinical and Forensic Psychologist, testified that Stevens’ condition causes his sympathetic nervous system to react when faced with a needle, resulting in heightened blood pressure, syncope (fainting), heightened feelings of anxiety, and loss of concentration that can linger after exposure to needles.

Richard Mohall, Rite Aid’s Senior Director of Clinical Service, testified that Rite Aid wanted its customers to have “the ability to come into Rite Aid any time the pharmacy was open, any day[,] any time[,] and receive an immunization.” Traci Burch, Rite Aid’s Vice-President of Labor Relations and Employment Counsel, testified that Rite Aid had decided that “immunizing was going to be a requirement for all of our pharmacists across the country, so anyone who couldn’t perform that essential job function wouldn’t be able to be a pharmacist.”

Following trial, the jury awarded Stevens back-pay damages of $485,633.00, front-pay damages of $1,227,188.00 to cover a period of 4.75 years, and non-pecuniary damages of $900,000, later reduced to $125,000 when Stevens agreed to a remitti-tur. Judgment was entered on January 27, 2015.

On September 23, 2015, the District Court entered an order denying Rite Aid’s post-trial motion for judgment as a matter of law on Stevens’ wrongful termination and retaliation claims, ordering a remitti-tur, which Stevens accepted, and dismissing Stevens’ failure-to-accommodate claim.

Rite Aid appeals from the judgment and the post-judgment order, and Stevens cross-appeals from the post-judgment order.

Discussion

We review de novo a district court’s grant or denial of judgment as a matter of law under Rule 50. See Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (denial); Norville v. Staten Island University Hospital, 196 F.3d 89, 94 (2d Cir. 1999) (grant). In doing so, we apply the same well established standard as the district court: “Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to. permit a reasonable juror to find in h[is] favor.” Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir. 1998).

The ADA prohibits discrimination in employment against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A “qualified individual” is defined as one who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). In other words, employers may not discriminate against people with disabilities that do not prevent job performance, but when a disability renders a person unable to perform the essential functions of the job, that disability renders him or her unqualified. Accordingly, one of the elements of a claim under the ADA is that an employee was “qualified to perform the essential functions of his job, with or without reasonable accommodation.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citation and internal quotation marks omitted).

Essential function. In evaluating whether a particular job function is “essential,” this Court considers “the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.” McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (citing Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997)); see also 29 C.F.R. § 1630.2(n)(3). Courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position,” Shannon v. New York City Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003) (citation and internal quotation marks omitted), but “no one listed factor will be dispositive.” Stone, 118 F.3d at 97. Courts must conduct “a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.” McMillan, 711 F.3d at 126.

In this case, the evidence, required to be viewed in the light most favorable to Stevens, compels a finding that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination. Rite Aid personnel testified, without contradiction, that the company made a business decision to start requiring pharmacists to perform immunizations in 2011. The evidence established that the company carried out this policy by revising its job description for pharmacists to require immunization certification and licensure, as necessary depending on the state where the pharmacy is located, and including immunizations in the list of “essential duties and responsibilities” for Rite Aid pharmacists. Rite Aid’s in-house counsel testified that Rite Aid terminated another pharmacist with needle phobia because, like Stevens, he failed to undergo Rite Aid’s immunization training program, further demonstrating that the company deemed administering immunizations to be an essential function of its pharmacists.

None of Stevens’ arguments undermines the conclusion that immunization injections were an essential function of his job. He points out that Rite Aid’s revised job description did not specifically state that pharmacists were required to administer immunizations by injection, but there was no evidence that immunizations were administered by alternative means. Although Rite Aid pharmacists spent relatively little time performing customer immunizations when the new policy was first put in place in 2011, there was no evidence that the policy was not fully implemented thereafter.

It is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia. Nevertheless, his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence.

Reasonable accommodation. We next consider whether there was a reasonable accommodation that would have enabled Stevens to perform the essential job function of administering immunization injections. It is important to bear in mind that the issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens’ arguments appear to suggest, he could perform his other duties as a pharmacist. “A reasonable accommodation can never involve the elimination of an essential function of a job.” Shannon, 332 F.3d at 100.

A reasonable accommodation may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).

Granting Rite Aid’s post-trial motion to dismiss Stevens’ failure-to-accommodate claim, the District Court correctly concluded that Stevens “failed to prove that a reasonable accommodation existed at the time he was terminated, or that he would have accepted an identified accommodation if offered.” At trial, Stevens claimed there were four accommodations that Rite Aid could have offered him. None validly supported his claim.

First, Stevens suggested that Rite Aid could have offered him desensitization therapy, but he points to no authority in support of the theory that employers are obligated to offer employees medical treatment as a reasonable accommodation under the ADA. Indeed, that theory has been rejected by district courts in this Circuit. See, e.g., Emerllahu v. Pactiv, LLC, No. 11-CV-6197(MAT), 2013 WL 5876998, at *4 n.2 (W.D.N.Y. Oct. 30, 2013); Desmond v. Yale-New Haven Hospital, Inc., 738 F.Supp.2d 331, 351 (D. Conn. 2010). Furthermore, Stevens failed to show that he would have undergone desensitization therapy had it been made available to him.

Stevens also suggested that he could have been transferred to a pharmacy technician position. However, Rite Aid’s Vice-President of Labor Relations and Employment testified without contradiction that Rite Aid offered Stevens another position, such as a pharmacy technician position, that would not require administering immunizations, and Stevens offered no evidence that he requested, considered, or was open to a position as a pharmacy technician.

Stevens’ suggestions that Rite Aid could have either hired a nurse to give immunization injections for him or assigned him to a dual-pharmacist location do not propose true accommodations. Those steps would be exemptions that would have involved other employees performing Stevens’ essential immunization duties. Rite Aid was not required to grant Stevens these exemptions. See Shannon, 332 F.3d at 100 (reasonable accommodation does not require elimination of an essential function). Moreover, as the District Court noted, Stevens failed to show that a vacant position at a dual-pharmacist store existed at the time of his termination.

Where the employee’s disability is known to the employer, “[t]he ADA envisions an ‘interactive process’ by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (citation omitted). “Nevertheless, an employee may not recover based on his employer’s failure to engage in an interactive process if he cannot show that a reasonable accommodation existed at the time of his dismissal.” McElwee v. County of Orange, 700 F.3d 635, 642 (2d Cir. 2012) (citation omitted). Because Stevens failed to present any evidence suggesting the existence of a reasonable accommodation at the time of his termination, he cannot recover based on Rite Aid’s failure to engage in an interactive process, even if such a failure occurred.

Conclusion

Because performing immunization injections was an essential job requirement and Stevens presented no evidence of a reasonable accommodation that would have allowed him to perform immunizations at the time of his dismissal, no juror could reasonably conclude that Stevens was “qualified to perform the essential functions of his job, with or without reasonable accommodation.”

On the appeal, we reverse the District Court’s post-trial denial of Rite Aid’s motion for judgment as a matter of law on Stevens’ federal and state law wrongful termination and retaliation claims; on the cross-appeal, we affirm the District Court’s dismissal of Stevens’ failure-to-accommodate claim. We remand for entry of a revised judgment in favor of Rite Aid.

      . According to testimony at trial, a person must be licensed by New York to practice as a pharmacist. However, a pharmacist need not obtain an immunization certificate to be licensed in New York. Rather, immunization certification is a separate, optional process for New York pharmacists.

      . At trial, Dr. Warfel and Stevens explained that “diaphoretic’' refers to sweating, "hypo-tensive” refers to a drop in blood pressure that can cause lightheadedness or fainting, and "vagal response” refers to fainting.

      . Stevens' motion also concerned calculation of interest, a matter rendered moot by our disposition of this appeal.

      . Rite Aid’s initial notice of appeal in No. 15-277 states that it is appealing from the District Court’s December 30, 2014, order denying its motion to dismiss Stevens’ complaint. That appeal is improper because it purports to appeal from an unappealable pretrial order and unnecessary because Rite Aid’s notice of appeal in No. 15-279 states that it is appealing from the District Court’s September 23, 2015, judgment, and that appeal brings up for review all prior orders of the District Court that produced the judgment, see Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 178 (2d Cir. 2000). Rite Aid’s amended notice of appeal in 15-277 states that it is appealing from the District Court’s September 23, 2015, post-judgment order.

      . Stevens argues that William Spink, a Rite Aid regional manager, did not testify that immunizations were an essential function of the pharmacist's job. Spink, however, was describing the duties of a pharmacist in 2010, "about a year before the immunization program” began. His testimony cannot be construed as applying to the duties of a pharmacist when Stevens was terminated in 2011.
      Furthermore, Mohall, Rite Aid's Senior Director of Clinical Service, testified that the low immunization numbers in 2011- — when Stevens was terminated — were a product of the policy’s first year and the fact that the company was “just starting to make the public aware that [it] w[as] available [for immunizations].” He also testified that the immunization numbers "have grown tremendously and substantially” since 2011, in the realm of 100 to 200 percent each year.

      . According to testimony at trial, a pharmacy technician is a type of assistant to a licensed pharmacist. Pharmacy technicians earn substantially less money than licensed pharmacists and cannot administer immunizations.

      . Stevens' retaliation claim necessarily fails because Stevens’ inability to perform an essential function of his job was a legitimate, non-retaliatory reason for his discharge.
      Our reversal of the District Court’s denial of Rite Aid’s post-trial motion for judgment as a matter of law renders moot Rite Aid's appeal from the judgment.


author: CHIN, Circuit Judge:

text:
    Gary MINDA, Plaintiff-Appellant, Nancy Findlay Frost, Plaintiff, v. UNITED STATES of America, Defendant-Appellant.
    Docket No. 15-3964
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: December 2, 2016
    Decided: March 24, 2017

      Kathleen Pakenham, Cooley LLP, New York, NY, for Plaintiff-Appellant Gary Minda.
    Jennifer M. Rubin (Jonathan S. Cohen, on the brief), for David A. Hubbert, Acting Assistant Attorney General, Tax Division, Department of Justice, Washington, D.C., and Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant-Appellee United States of America.
    Before: LIVINGSTON, CHIN, and CARNEY, Circuit Judges.
   CHIN, Circuit Judge:

In this case, the Internal Revenue Service (the “IRS”) conducted an examination of the 2007 income tax return of.Gary Minda and Nancy Findlay Frost. The IRS prepared a report proposing changes to the return. Instead of sending the report to Minda and Frost, however, the IRS sent the report, which contained their names, social security numbers, and financial information, to the wrong person — an unauthorized, unrelated third party.

Minda and Frost brought this action below pursuant to 26 U.S.C. § 7431, which permits a taxpayer whose return or return information has been unlawfully disclosed to bring a civil action against the United States for damages. The government conceded liability and acknowledged that Min-da and Frost were entitled to $1,000 each in statutory damages for the disclosure of the report. Minda and Frost argued, however, that they were entitled to statutory damages of $1,000 not just for the disclosure of the report but for the disclosure of each item of information contained in the report. They also sought punitive damages.

The government moved for summary judgment to dismiss these additional claims. The district court granted the motion and entered judgment accordingly. For the reasons set forth below, we affirm.

BACKGROUND

A. The Facts

The facts are largely undisputed and may be summarized as follows:

In 2009, an IRS employee prepared an examination report (the “Report”) proposing changes to the 2007 federal income tax return filed by Minda and Frost. The Report contained “dozens of items of return information,” including their names, social security numbers, and detailed financial information. Compl. ¶ 10.

In or about October 2010, the IRS mailed a copy of the Report to an unrelated third party in Ohio, “Robert M.” On October 21, 2010, Robert M.’s attorney wrote to the IRS advising that the IRS had erroneously sent the Report to his client:

In the packet sent to my client [Robert MJ, there were nine (9) pages, that dealt with Income Tax Examination changes for a Gary Minda and T. Nancy Findlay Frost.... I assume you will want to resend them to the correct person. We are sending a copy of this letter to these taxpayers (with any confidential information related to my client redacted).

Compl. ¶9. The Report is eleven pages. Hence, it appears that the IRS did not send the entire Report to Robert M., but only nine of the eleven pages.

On October 26, 2010, Minda and Frost learned of the disclosure of the Report to Robert M. when they received a copy of the attorney’s letter to the IRS.

Minda complained about the unauthorized disclosure to the IRS, which then conducted an investigation. After interviewing a number of individuals, the Treasury Inspector General for Tax Administration (the “IG”) made the following findings:

• the Report, which was dated October 5, 2009, was printed the week of September 28, 2009, for review by a financial technician;

• the Report was “likely co-mingled” with a report for Robert M. dated September 28, 2009;

• the two reports were generated by different units located in different departments working different shifts and using different printers; and

• the IRS employee who made the unauthorized disclosure could not be identified.

One IRS employee speculated that the Report had been accidentally left on a printer and then gotten mixed in with Robert M.’s documents. Another IRS employee hypothesized that a “network error” might have caused the Report to print on the wrong printer.

Minda and Frost did not suffer any actual damages as a result of the unauthorized disclosure of their return information.

B. The Proceedings Below

Minda and Frost filed this action in the district court on October 24, 2012. The government answered on December 21, 2012, conceding that the IRS “by way of negligence disclosed plaintiffs’ return information to a third party,” and requesting that the district court deny all relief other than statutory damages. App. 13.

On December 8, 2014, the government moved for summary judgment, contending that Minda and Frost were entitled to only $1,000 each in statutory damages and that they were not entitled to punitive damages as a matter of law. Minda and Frost opposed the motion, conceding that the material facts were undisputed, but arguing that they were entitled to statutory damages for each item of information disclosed in the Report and that punitive damages were appropriate.

The district court granted the government’s motion. Minda v. United States, No. 12-CV-05339 (NG), 2015 WL 6673198 (E.D.N.Y. Oct. 9, 2015). On October 9, 2015, the district court entered judgment in favor of Minda and Frost, awarding them $1,000 each. Minda (but not Frost) appealed.

DISCUSSION

We review de novo a district court’s grant of summary judgment, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). Our task is “to determine whether the district court properly concluded that there was no genuine dispute as to any material fact, such that the moving party was entitled to judgment as a matter of law.” Myers v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016).

A. Applicable Law

Section 6103(a) of the Internal Revenue Code provides that “no officer or employee of the United States ... shall disclose any return or return information,” except to the extént disclosure is authorized under the Code. 26 U.S.C. § 6103(a)(1); see id. § 6103(c)-(p).

A “return” is:

any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

26 U.S.C. § 6103(b)(1).

As relevant here, “return information” is:

a taxpayer’s identity, the nature, source, or amount of his income, payments,, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassess-ments, or tax payments, ... or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense,

26 U.S.C. § 6103(b)(2)(A).

A “disclosure” is “the making known to any person in any manner whatever a return or return information.” 26 U.S.C. § 6103(b)(8).

If an officer or employee of the United States “knowingly, or by reason of negligence,” discloses a return or return information of a taxpayer, subject to certain exceptions that do not apply here, the taxpayer may bring a civil action for damages against the United States in district court. 26 U.S.C. § 7431(a)(1). Section 7431(c) governs damages:

In any action brought under subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the sum of—
(1) the greater of—
(A) $1,000 for each act of unauthorized inspection or disclosure of a return -or return information with respect to which such defendant is found liable, or
(B) the sum of—
(i) the actual damages sustained by the plaintiff as a result of such unauthorized inspection or disclosure, plus
(ii) in the case of a willful inspection or disclosure or an inspection or disclosure which is the result of gross negligence, punitive damages, plus
(2) the costs of the action, .plus
(3) in the case of a plaintiff which is described in section 7430(c)(4)(A)(ii), reasonable attorneys fees, except that if the defendant is the United States, reasonable attorneys fees may be awarded only if the plaintiff is the prevailing party (as determined under section 7430(c)(4)).

26 U.S.C. § 7431(c).

B. Application

As the government concedes, the IRS disclosed Minda’s return information without authorization, in violation of § 6103(a)(1). Likewise, Minda acknowledges that he did not suffer any actual damages as a result of the disclosure. Hence, two matters are presented on appeal: first, the calculation of statutory damages under § 7431(c)(1)(A), which allows “$1,000 for each act of unauthorized inspection or disclosure of a return or return information,” and, second, the availability of punitive damages under § 7431(c)(l)(B)(ii), which allows punitive damages for an inspection or disclosure that is “willful” or “the result of gross negligence.”

1. Statutory Damages

The district court concluded that Minda was entitled to statutory damages only for the act of disclosing the Report and not separately for disclosure of each item of information contained in the Report. We agree.

Section 7431(c)(1)(A) provides that an aggrieved taxpayer is entitled to statutory damages of $1,000 for “each act” of unauthorized inspection or disclosure. The word “act” is not defined in the statute, and thus it is presumed to have its ordinary meaning. Smith v. United States, 507 U.S. 197, 201, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993); see also Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012) (holding that “[w]hen a term goes undefined in a statute, we give the term its ordinary meaning,” and consulting dictionaries to determine ordinary meaning). The ordinary meaning of the word “act” is “a thing done or being done.” Webster’s Third New Int’l Diet, of the Engl. Lang., at 20 (1961). The “thing done or being done” in the statute here is the act of unauthorized inspection or disclosure — in this case a single act of disclosure, the errant mailing of the Report.

Minda argues that § 7431(c) “should be read to impose a penalty for each item of return information disclosed.” Pl.-Appellant’s Br. 7. The argument, however, ignores the plain words of the statute and would require us to read words into the statute that are not there. See Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (courts must “ordinarily resist reading words or elements into a statute that do not appear on its face”) (quoting Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997)). Section 7431(c)(1)(A) provides statutory damages “for each act ... of disclosure,” not “for each item of return information disclosed.” The word “each” modifies “act,” not “information.” The phrase “each item of return information” does not appear.

The statute also refers to “each act of ... disclosure of a return or return information.” A return, of course, will contain multiple items of information, and likewise “return information” clearly encompasses multiple items of information. Yet, § 7431(c)(1)(A) treats the disclosure of either — “a return or return information” — as one act subject to one award of statutory damages of $1,000. Minda’s contention that each item of information constitutes a separate disclosure subject to a separate award of statutory damages contradicts this language.

Finally, we note that Minda’s interpretation simply does not make sense. The Report arguably contains dozens of items of return information, as there are more than a hundred different entries. Under Min-da’s theory, each of these items would constitute a separate disclosure, and he would be entitled to more than $100,000 in statutory damages, even though he suffered no actual damages and the IRS was guilty of only one act of unauthorized disclosure. In addition, a taxpayer whose name and Social Security number were disclosed, for example, would receive more in statutory damages than one whose entire return — containing his name, Social Security number, and much more — was disclosed. Congress could not have intended such a result.

We find no ambiguity in the statute, and hold that the statute clearly provides an aggrieved taxpayer $1,000 in statutory damages for “each act” of unauthorized disclosure, not for each item of information disclosed. Accord Rorex v. Traynor, 771 F.2d 383, 388 (8th Cir. 1985) (limiting taxpayers to $1,000 in statutory damages where IRS employee disclosed multiple items of information in one communication); Marré v. United States, No. H-88-1103, 1992 WL 240527, at *2 (S.D. Tex. June 22, 1992) (holding that statutory damages under § 7431(c)(1)(A) would be based on number of actionable communications, and declining to “carve up each communication into separate, actionable disclosures, even where we deal, not with reiterated facts, but with distinct, though related, items of return information”), aff'd in part and vacated in part on other grounds, 38 F.3d 823 (5th Cir. 1994); Smith v. United States, 730 F.Supp. 948, 954 (C.D. Ill. 1990) (holding that taxpayer was entitled to only $1,000 in statutory damages for disclosure of one memorandum, even though memorandum contained taxpayer’s return information for multiple tax years), rev’d on other grounds, 964 F.2d 630 (7th Cir. 1992); cf. Siddiqui v. United States, 359 F.3d 1200, 1202 (9th Cir. 2004) (“The plain meaning of the language used by Congress in § 6103 supports our focus ... on the act of disclosure rather than the number of people who receive unauthorized information.”).

Finally, to the extent there is any doubt, we must resolve the matter in favor of the government. Where, as here, Congress has waived sovereign immunity, “precedent teaches ‘that the [gjovernment’s consent to be sued must be construed strictly in favor of the sovereign, and not enlarged beyond what the language requires.’ ” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)).

2. Punitive Damages

The district court held that Minda was not entitled to punitive damages as a matter of law because no reasonable jury could find, on the record presented, that the disclosure resulted from anything other than ordinary negligence. We agree.

Under § 7431(c)(l)(B)(ii), punitive damages may be recovered “in the case of a willful inspection or disclosure or an inspection or disclosure which is the result of gross negligence.” 26 U.S.C. § 7431(c)(1)(B)(ii). Minda argues that the IRS was guilty of gross negligence. In particular, he contends that “[i]t is apparent here that the IRS personnel responsible for Mr. Minda’s Audit Report completely disregarded their duty to maintain taxpayer confidentiality.” Pl.-Appellant’s Br. 17.

Gross negligence requires conduct that is “highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious the defendant must have been aware of it,” that is, “conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.” AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 454 (2d Cir. 2009) (internal quotation marks and citations omitted) (discussing common law definitions of gross negligence and reckless conduct); see also Barrett v. United States, 100 F.3d 35, 40 (5th Cir. 1996) (affirming dismissal of punitive damages claim under § 7431(c) and noting that “[cjonduct that is grossly negligent is ... marked by ‘wanton or reckless disregard of the rights of another’ ” (citation omitted)). To be grossly negligent, “ ‘the act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.’ ” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998) (citation omitted).

Minda has pointed to no evidence of aggravated conduct or the wanton or reckless disregard of his rights or conduct smacking of intentional wrongdoing. To be sure, someone at the IRS failed to exercise reasonable care, sending nine pages of the Report to the wrong person. But there is nothing in the record to suggest that this was anything other than the result of simple negligence or carelessness. On the record presented to the district court, a reasonable factfinder could conclude only that the Report inadvertently became commingled with Robert M.’s documents, and that an IRS employee then sent the package to Robert M. without realizing it contained materials relating to two other taxpayers.

The district court correctly granted summary judgment to the United States on Minda’s claim for punitive damages.

CONCLUSION

For the reasons set forth above, the judgment of the district court is AFFIRMED.

      . A subsequent Eighth Circuit case counted the verbal disclosure of six pieces of return information during an interview as six separate acts of disclosure. See Snider v. United States, 468 F.3d 500, 506, 509 (8th Cir. 2006). Even assuming arguendo that Snider was correctly decided, however, the situation here is closer to that in Rorex, where the act of disclosure was the service of a notice of levy on the taxpayers’ bank containing "confidential return information about the taxpayers.” 771 F.2d at 385.

      . Consequently, we'do not reach the government's argument that, under § 7431(c)(l)(B)(ii), a taxpayer may not recover punitive damages unless he sustained actual damages. Compare Barrett v. United States, 917 F.Supp. 493, 504 (S.D. Tex. 1995) ("The very language and structure of the statute, the coupling of actual and punitive damages under subpart (1)(B) and failure of the statutory damage? subpart, (1)(A), to mention punitive damages, would, logically, mean that punitive damages are recoverable only when actual damages have been proved.”), aff'd on other grounds, 100 F.3d 35 (5th Cir. 1996), with Mallas v. United States, 993 F.2d 1111, 1126 (4th Cir. 1993) (holding that, under § 7431(c), "a taxpayer may recover punitive damages, even where his actual damages are zero, provided those damages exceed the amount of the subsection (1)(A) damages”).


author: VANASKIE, Circuit Judge.

text:
    UNITED STATES of America v. APPLE MACPRO COMPUTER, Apple Mac Mini Computer, Apple i Phone 6 Plus, Ellular Telephone Western Digital My Book For Mac External Hard Drive, Western Digital My Book Velociraptor Duo External Hard Drive John Doe, Appellant
    No. 15-3537
    United States Court of Appeals, Third Circuit.
    Argued September 7, 2016
    (Filed: March 20, 2017)

      Keith M. Donoghue [ARGUED], Brett G. Sweitzer, Leigh M. Skipper, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, Suite 540 West Philadelphia, PA 19106, Counsel for Defendant-Appellant
    Christopher C. Walsh, Adam Schwartz, Mark Rumold [ARGUED], Andrew Crock-er, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Curiae
    Leslie Caldwell, Nathan Judish [ARGUED], Bernadette McKeon, Michelle Ro-tella, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Plaintiff-Ap-pellee
    Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges.

      (Pursuant to Rule 12(a), Fed. R. App. P.)

   OPINION

VANASKIE, Circuit Judge.

This appeal concerns the Government’s ability to compel the decryption of digital devices when the Government seizes those devices pursuant to a valid search warrant. The District Court found Appellant John Doe in civil contempt for refusing to comply with an order issued pursuant to the All Writs Act, 28 U.S.C. § 1651, which required him to produce several seized devices in a fully unencrypted state. Doe contends that the court did not have subject matter jurisdiction to issue the order and that the order itself violates his Fifth Amendment privilege against self-incrimination. For the reasons that follow, we will affirm the District Court’s order.

I.

During an investigation into Doe’s access to child pornography over the internet, the Delaware County Criminal Investigations Unit executed a valid search warrant at Doe’s residence. During the search, officers seized an Apple iPhone 5S and an Apple Mac Pro Computer with two attached Western Digital External Hard Drives, all of which had been protected with encryption software. Police subsequently seized a password-protected Apple iPhone 6 Plus as well.

Agents from the Department of Homeland Security then applied for a federal search warrant to examine the seized devices. Doe voluntarily provided the password for the Apple iPhone 5S, but refused to 'provide the passwords to decrypt the Apple Mac Pro computer or the external hard drives. Despite Doe’s refusal, forensic analysts discovered the password to decrypt the Mac Pro Computer, but could not decrypt the external hard drives. Forensic examination of the Mac Pro revealed an image of a pubescent girl in a sexually provocative position and logs showing that the Mac Pro had been used to visit sites with titles common in child exploitation, such as “toddler_cp,” “loli-cam,” “tor-ehildporn,” and “pthc.” (App. 39.) The Forensic examination also disclosed that Doe had downloaded thousands of files known by their “hash” values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

As part of their investigation, the Delaware County law enforcement officers also interviewed Doe’s sister, who had lived with Doe during 2015. She related that Doe had shown her hundreds of images of child pornography on the encrypted external hard drives. She told the investigators that the external hard drives included “videos of children who were nude and engaged in sex acts with other children.” (App. 40.) Doe provided the password to access the iPhone 6 Plus, but did not grant access to an application on the phone which contained additional encrypted information. Forensic analysts concluded that the phone’s encrypted database contained approximately 2,015 image and video files.

On August 3, 2015, upon application of the Government, a Magistrate Judge issued an order pursuant to the All Writs Act requiring Doe to produce his iPhone 6 Plus, his Mac Pro computer, and his two attached external hard drives in a fully unencrypted state (the “Decryption Order”). Doe did not appeal the Decryption Order. Instéad, he filed with the Magistrate Judge a motion to quash the Government’s application to compel decryption, arguing that his act of decrypting the devices would violate his Fifth Amendment privilege against self-incrimination.

On August 27, 2015, the Magistrate Judge denied Doe’s Motion to Quash and directed Doe to fully comply with the Decryption Order (the “Quashal Denial”). The Magistrate Judge acknowledged Doe’s Fifth Amendment objection but held that, because the Government possessed Doe’s devices and knew that their contents included child pornography, the act .of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination. The Quashal Denial stated that a failure to file timely objections could result in the waiver of appellate rights. Doe did not file any objections to the Quashal Denial and did not seek review by way of appeal, writ of mandamus, or otherwise.

Approximately one week after the Quashal Denial, Doe and his counsel appeared at the Delaware County Police Department for the forensic examination of his devices. Doe produced the Apple iPhone 6 Plus, including the files on the secret application, in a fully unencrypted state by entering three separate passwords on the device. The phone contained adult pornography, a video of Doe’s four-year-old niece in which she was wearing only her underwear, and approximately twenty photographs which focused on the genitals of Doe’s six-year-old niece. Doe, however, stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination. The Government remains unable to view the decrypted content of the hard drives without his assistance.

Following the forensic examination, the Magistrate Judge granted the Government’s Motion for Order to Show Cause Why Doe Should Not Be Held in Contempt, finding that Doe willfully disobeyed and resisted the Decryption Order. Based on the evidence presented at the hearing, the Magistrate Judge found that Doe remembered the passwords needed to decrypt the hard drives but chose not to reveal them because of the devices’ contents. The Magistrate Judge ordered Doe to appear before the District Court to show cause as to why he should not be held in civil contempt.

On September 30, 2015, after a hearing, the District Court granted the Government’s motion to hold Doe in civil contempt. On October 5, 2015, the District Court issued a “Supplemental Order to articulate the reasons for its September 30th Order.” (App. at 12.) The District Court noted that the Government’s prima facie case of contempt was largely, if not entirely, uncontested. While the Government presented several witnesses to support its motion, Doe neither testified nor called witnesses. He offered no physical or documentary evidence into the record and provided no explanation for his failure to comply with the Decryption Order. The District Court remanded Doe to the custody of the United States Marshals to be incarcerated until he fully complies with the Decryption Order. This timely appeal followed.

U.

We have appellate jurisdiction under 28 U.S.C. § 1291. We ordinarily exercise plenary review over the District Court’s authority to issue an order pursuant to the All Writs Act, Grider v. Keystone Health Plan Cent., Inc., 500 F.3d 322, 327 (3d Cir. 2007), and “review a district court’s decision on a motion for contempt for abuse of discretion.” Marshak v. Treadwell, 595 F.3d 478, 485 (3d Cir. 2009). However, when the party seeking review has failed to preserve the issue in the trial court, we review only for plain error. See Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007). We nonetheless exercise plenary review over challenges concerning subject matter jurisdiction. United States v. Merlino, 785 F.3d 79, 82 (3d Cir. 2015).

III.

Doe raises two primary arguments as to why he should not be held in contempt. First, he asserts that the District Court lacked subject matter jurisdiction to issue the Decryption Order under the All Writs Act. Thus, he argues that he is not in contempt of any valid order and the judgment of contempt must be vacated. Second, Doe contends that the Decryption Order violates his Fifth Amendment privilege against self-incrimination.

A.

Doe’s first challenge concerns the All Writs Act, which permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The All Writs Act does not itself confer any subject matter jurisdiction, but rather only allows a federal court to issue writs “in aid of’ its existing jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 534, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); see also In re Arunachalam, 812 F.3d 290, 292 (3d Cir. 2016) (per curiam). Therefore, a court has subject matter jurisdiction over an application for an All Writs Act order only when it has subject matter jurisdiction over the underlying order that the All Writs Act order is intended to effectuate. Additionally, a federal court may only issue an All Writs Act order “as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).

Doe contends that the Magistrate Judge did not have subject matter jurisdiction to issue the Decryption Order because the Government should have compelled his compliance by means of the grand jury procedure and not the All Writs Act. The grand jury process, however, is not the exclusive means by which the Government may collect evidence prior to indictment. See Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (allowing the Government to proceed by search warrant despite insistence that the investigation should proceed by subpoena); United States v. Educ. Dev. Network Corp., 884 F.2d 737, 743 (3d Cir. 1989) (rejecting the argument that the Government could not obtain evidence by means of a search warrant and must proceed solely by grand jury). Here, the Magistrate Judge had subject matter jurisdiction under Federal Rule of Criminal Procedure 41 to issue a search warrant and therefore had jurisdiction to issue an order under the All Writs Act that sought “to effectuate and prevent the frustration” of that warrant. United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).

In arguing that the Magistrate Judge did not have subject matter jurisdiction to issue the Decryption Order, Doe also challenges the merits of that order, contending that it was not a “necessary and appropriate means” of effectuating the original warrant as required by the Supreme Court in New York Telephone. A contempt proceeding, however, generally “ ‘does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed.’ ” United States v. Rylander, 460 U.S. 752, 756, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (quoting Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 92 L.Ed. 476 (1948)); In re Contemporary Apparel, Inc., 488 F.2d 794, 798 (3d Cir. 1973) (same). Furthermore, Doe did riot argue in the District Court that the Decryption Order was not an appropriate exercise of authority under the All Writs Act. Thus, even if the propriety of the Decryption Order was'before us, our review would be limited to plain error. Brightwell, 637 F.3d at 193. Under this framework, an appellant must show four elements: “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)).

In New York Telephone, the district court had issued an order authorizing federal agents to install pen registers in two telephones and directed the New York Telephone Company to furnish “all information, facilities and technical assistance” necessary to accomplish the installation. N.Y. Tel. Co., 434 U.S. at 161, 98 S.Ct. 364. The Company argued that neither Fed. R. Crim. P. 41 nor the All Writs Act “provided any basis for such an order.” Id. at 163, 98 S.Ct. 364. The Supreme Court, however, found that this order was “clearly authorized by the All Writs Act” as a necessary and appropriate means of effectuating the installation of the pen registers. Id. at 172, 98 S.Ct. 364.

Here, the Magistrate Judge issued a search warrant for the devices seized at Doe’s residence. When law enforcement could not decrypt the contents of those devices, and Doe refused to comply, the Magistrate Judge issued the Decryption Order pursuant to the All Writs Act. The Decryption Order required Doe to “assist the Government in the execution of the ... search warrant” by producing his devices in “a fully unencrypted state.” As was the case in New York Telephone, the Decryption Order here was a necessary and appropriate means of effectuating the original search warrant.

Doe asserts that New York Telephone should not apply because the All Writs Act order in that case compelled a third party to assist in the execution of that warrant, and not the target of the government investigation. The Supreme Court explained, however, that the Act extends to anyone “in a position to frustrate the implementation of a court order or the proper administration of justice” as' long as there are “appropriate circumstances” for doing so. Id. at 174, 98 S.Ct. 364. Here, as in New York Telephone-. (1) Doe is not “far removed from the underlying controversy;” (2) “compliance with [the Decryption Order] require[s] minimal effort;” and (3) “without [Doe’s] assistance there is no conceivable way in which the [search warrant] authorized by the District Court could' [be] successfully accomplished.” Id. at 174-175, 98 S.Ct. 364. Accordingly, the Magistrate Judge did not plainly err in issuing the Decryption Order.

B.

Doe also contends that the Decryption Order violates his Fifth Amendment privilege against self-incrimination and that this challenge is subject to plenary review. Doe raised a Fifth Amendment challenge in his Motion to Quash the Decryption Order. The Magistrate Judge denied that challenge, rejecting the argument that Doe’s Fifth Amendment privilege would be violated. Doe did not file objections to that order, nor did he seek review by way of appeal, writ of mandamus or otherwise, despite the Quashal Denial order informing Doe that failure to file a timely objection may constitute a waiver of appellate rights. Doe also did not renew this self-incrimination claim during the contempt proceedings before the Magistrate Judge and the District Judge. Instead, Doe only reasserted his Fifth Amendment claim in this appeal.

While Doe persists that his challenge to the contempt order entitles him to plenary consideration of the Fifth Amendment issue, we disagree. As noted above, it is generally the case that “a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed.” Rylander, 460 U.S. at 756, 103 S.Ct. 1548 (internal quotation marks and citation omitted).

Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Doe’s arguments fail under this deferential standard of review.

The Fifth Amendment states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V.' The Fifth Amendment, however, “does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)1 To be testimonial, a communication must either “explicitly or implicitly ... relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988).

The Supreme Court has recognized that in some instances, the production of evidence can implicate the Fifth Amendment. In Fisher, the Court stated that “[t]he act of producing evidence in response to a subpoena ... has communicative aspects of its own, wholly aside from the contents of the papers produced.” 425 U.S. at 410, 96 S.Ct. 1569. The' Court reasoned that compliance with a request for evidence may “tacitly eoncede[] the existence of the documents demanded and their possession and control by the [defendant].” Id. By “producing documents, one acknowledges that the documents exist, admits that the documents are in one’s custody, and concedes that the documents are those that the [Government] requests.” United States v. Chabot, 793 F.3d 338, 342 (3d Cir.), cert. denied, — U.S. -, 136 S.Ct. 559, 193 L.Ed.2d 430 (2015). When the production of evidence does concede the existence, custody, and authenticity of that evidence, the Fifth Amendment privilege against self-incrimination applies because that production constitutes compelled testimony.

In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411, 96 S.Ct. 1569. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production — such as the éxistence, custody, and authenticity of evidence — is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. U.S. v. Hubbell, 530 U.S. 27, 30, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000).

Although we have not confronted the Fifth Amendment implications of compelled decryption, the Eleventh Circuit has addressed the issue and found that the privilege against self-incrimination should apply. In that case, a suspect appealed a judgment of contempt entered after he refused to produce the unencrypted contents of his laptop and hard drives. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). The court found that “(1) [the suspect’s] decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.” Id. at 1346. The court reached this decision after noting that the Government did not show whether any files existed on the hard drives and could not show with any reasonable particularity that the suspect could access the encrypted portions of the drives. Id. Although the court did not require the Government to identify exactly the documents it sought, it did require that, at the very least, the Government be able to demonstrate some knowledge that files do exist on the encrypted devices. Id. at 1348-49.

Despite Doe’s argument to the contrary, the Eleventh Circuit’s reasoning in In re Grand Jury Subpoena does not compel a similar result here. In the Quashal Denial, the Magistrate Judge found that, though the Fifth Amendment may be implicated by Doe’s decryption of the devices, any testimonial aspects of that production were a foregone conclusion. According to the Magistrate Judge, the affidavit supporting the application for the search warrant established that (1) the Government had custody of the devices; (2) prior to the seizure, Doe possessed, accessed, and owned all devices; and (3) there are images on the electronic devices that constitute child pornography. Thus, the Magistrate Judge concluded that the Decryption Order did not violate Doe’s Fifth Amendment privilege against self-incrimination.

Unlike In re Grand Jury Subpoena, the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them. The affidavit supporting the search warrant states that an investigation led to the identification of Doe as a user of an internet file sharing network that was used to access child pornography. When executing a search of Doe’s residence, forensic analysts found the encrypted devices, and Doe does not dispute their existence or his ownership of them. Once the analysts accessed Doe’s Mac Pro Computer, they found one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation. Doe’s sister then reported that she had witnessed Doe unlock his Mac Pro while connected to the hard drives to show her hundreds of pictures and videos of child pornography. Forensic analysts also found an additional 2,015 videos and photographs in an encrypted application on'Doe’s phone, which Doe had opened for the police by entering a password. Based on these facts, the Magistrate Judge found that, for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government. The Magistrate Judge determined that any testimonial component would be a foregone conclusion. The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine. In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record. Accordingly, Doe’s challenges to the Decryption Order and Quashal Denial fail.

So, too, does Doe’s challenge to the contempt order. At the hearing on the contempt motion, Doe maintained that he could not remember the passwords to decrypt the hard drives. In a civil contempt proceeding, when a defendant raises a challenge of impossibility of compliance, “the defendant bears the burden of production.” United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). At the contempt hearing, the Government presented several witnesses to support its prima facie case of contempt. Doe’s sister testified to the fact that, while in her presence, Doe accessed child pornography files on his Mac Pro computer by means of entering passwords from memory. Further, a detective who executed the original search warrant stated that Doe did not provide his password at the time because he wanted to prevent the police from accessing his computer. Doe never asserted an inability to remember the passwords at that time. Doe presented no evidence to explain his failure to comply or to challenge the evidence brought by the Government. The District Court thus found Doe in contempt and ordered he be held in custody until he complies with the Decryption Order. The District Court did not abuse its discretion in finding Doe to be in contempt of the Decryption Order.

rv.

For the foregoing reasons, we will affirm the District Court’s order of September 30, 2015 holding Appellant John Doe in civil contempt.

      . Encryption technology allows a person to transform plain, understandable information into unreadable letters, numbers, or symbols using a fixed formula or process. Only those who possess a corresponding “key” can return the information into its original form, i.e. decrypt that information. Encrypted information remains on the device in which it is stored, but exists only in its transformed, unintelligible format. Although encryption may be used to hide illegal material, it also assists individuals and businesses in lawfully safeguarding the privacy and security of information. Many new devices ■ include encryption tools as standard features, and many federal and state laws either require or encourage encryption to protect sensitive information.

      . According to the affidavit submitted in support of the federal Government’s search warrant application, “cp” stands for "child pornography” and "pthc” stands for ""pre-teen hard core.” (App. 39.)

      .A "hash” is "[a] mathematical algorithm that calculates a unique value for a given set of data, similar to a digital fingerprint, representing the' binary content of the data to assist in subsequently ensuring that data has not been modified.” The Sedona Conference Glossary for E-Discovery and Digital Information Management 21 (Cheryl B. Harris, et al. eds., 4th ed. 2014). Hash values are commonly used in child pornography investigations. See, e.g., United States v. Ross, 837 F.3d 85, 87 (1st Cir. 2016), United States v. Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016); United States v. Thomas, 788 F.3d 345, 348 n. 5 (2nd Cir. 2015); United States v. Brown, 701 F.3d 120, 122 (4th Cir. 2012); United States v. Cunningham, 694 F.3d 372, 376 (3d Cir. 2012); United States v. Cartier, 543 F.3d 442, 444-45 (8th Cir. 2008).

      . Doe does not dispute the validity of the underlying search warrant issued by a Magistrate Judge under Fed. R. Crim. P. 41.

      . There are, of course, instances when a contempt proceeding may be the only avenue for challenging the underlying order to produce information. For example, judicial review of a grand jury subpoena may be obtained only by refusal to comply with the subpoena, with the validity of the subpoena being litigated in the ensuing contempt proceeding. See, e.g., United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971) ("[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production [to a grand jury] of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.”); In re Grand Jury Subpoena, 709 F.3d 1027, 1029 (10th Cir. 2013) (“A protesting [grand jury] witness may seek appellate review only after he refuses to obey the subpoena and is held in contempt.”).

      . In its Order explaining the contempt ruling, the District Judge observed that Doe had failed to object to the Magistrate Judge’s determination that Doe’s Fifth Amendment rights were not violated by the Decryption Order despite being warned that such failure "may constitute a waiver of appellate rights.” (App. at 15) (citing United States v. Polishan, 336 F.3d 234, 240 (3d Cir. 2003).) Thus, the District Court did not address the Fifth Amendment issue.

      . It is important to note that we are not concluding that the Government's knowledge of the content of the devices is necessarily the correct focus of the "foregone conclusion” inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is "I, John Doe, know the password for these devices.” Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion. However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe's knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.