author: TATEL, Circuit Judge:

text:
    SAFARI CLUB INTERNATIONAL and National Rifle Association of America, Appellants v. Sally JEWELL, In her official capacity as Secretary of the Department of the Interior, et al., Appellees
    No. 15-5170
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 19, 2016
    Decided December 6, 2016

      Douglas S. Burdin argued the cause for appellants. With him on the briefs were Christopher A. Conte, Michael T. Jean, Anna M. Seidman, and Jeremy E, Clare.
    Erika B. Kranz, Attorney, U.S. Department of Justice, argued the cause for ap-pellees. With her on the brief were John C. Cruden, Assistant Attorney General, and Matthew Littleton and Meredith L. Flax, Washington, DC, Attorneys.
    Anna E. Frostic was on the brief for amici curiae The Humane Society of the United States, et al. in support of appel-lees.
    Before: ROGERS and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   TATEL, Circuit Judge:

Although the African elephant is protected under both domestic and international law, the Interior Department’s Fish and Wildlife Service has long allowed American hunters who shoot Tanzanian elephants to repatriate their trophies because, according to the Service, doing so “would not be detrimental to the survival of the species.” 50 C.F.R. § 23.61(a). In 2014, however, the Service changed course and indefinitely suspended issuance of import permits due in part to a “significant decline in Tanzania’s elephant population.” 2014 Non-Detriment Finding, at Deferred Appendix 123. Two organizations representing hunters challenged the suspension in district court as substantively and procedurally flawed. Because no member of either group had applied for a permit, the court dismissed the case for lack of final agency action and for failure to exhaust administrative remedies. For the reasons set forth below, we reverse.

I.

The Fish and Wildlife Service, part of the U.S. Interior Department, is tasked with regulating the import of species protected under the Convention on International- Trade of Endangered Species- of Wild Fauna and Flora (CITES), Mar.. 3, 1973, 27 U.S.T. 1087, which includes African elephants, or Loxodonta africana, from Tanzania. See, e.g,, CITES art. 111(3) & App’x I; 16 U.S.C. §§ 1537a-1539; 50 C.F.R. §§ 17.11, 17.22. Among its duties, the Service determines whether and under what conditions hunters may receive permits to import “sport-hunted trophies,” which “means a whole dead animal or a readily recognizable part or derivative of an animal.” 50 C.F.R. § 23.74(b).

The Service’s permitting scheme is somewhat intricate, but because it has faced many legal challenges, the particulars have been thoroughly described in numerous opinions of this court. See, e.g., Marcum v. Salazar, 694 F.3d 123, 124-25 (D.C. Cir. 2012). An abridged summary will do here.

For threatened species, like African elephants, the Service must ensure that two conditions are satisfied before it may grant a permit. First, the Service’s Division of Scientific Authority must find that the “import'will be for purposes which are not detrimental to the survival of the species.” CITES art. III(3)(a); see 50 C.F.R; § 23.61. This determination is known as a “non-detriment” finding. Second, the Service’s Division of Management Authority must find—the “enhancement” finding— “that the killing of the trophy animal will enhance the survival of the species.” 50 C.F.R. § 17.40(e)(6)(i)(B), For example, sport hunting might enhance the survival of a species where it causes no measurable impact on its population and where “revenues generated by sport hunting[ ] ha[ve] the potential to provide conservation benefits to the species.” January 3, 2014, Information Memorandum, at Deferred Appendix 122.

For the African elephant, along with a handful of other species, the Service makes annual, blanket non-detriment and enhancement findings that cover all applications filed for sport-hunted trophies “taken” during that year. Although the Service had long granted permits for sport-hunted Tanzanian elephant trophies—meaning it had consistently made positive non-detriment and enhancement findings—it reversed course in 2014. On February 21 of that year, the Division of Scientific Authority completed its non-detriment finding for trophies taken during calendar year 2014. Acknowledging its history of finding sport hunting non-detrimental to the survival-of Tanzanian elephants, the Division explained that it could no longer do. so given the availability of more current information demonstrating a significant .decline in elephant populations. The Division, of Management Authority soon followed suit, concluding that it could no longer find that sport hunting would enhance the survival of the species. As a result, the Service announced a “suspension -on imports of sport-hunted African elephant trophies taken in Tanzania .. ._ during calendar year 2014.” See April' 4, 2014, Press Release, at Deferred Appendix 161.

, Challenging the Service’s suspension, two industry groups, Appellants Safari Club International and the National Rifle Association (collectively, “Safari Club”), filed suit on behalf of their members, which include disappointed elephant hunters, several of whom had planned hunts in Tanzania for the fall of 2014. In its second amended complaint, Safari Club alleged that the Service’s decisionmaking suffered from three flaws. First, it asserted that the 2014 non-detriment'and enhancement findings were legislative rules requiring notice-and-comment rulemaking (Count VI). Second, it claimed that the Service failed to justify its decision to require an enhancement finding for African elephants (Count VII). And third, it alleged that the Service’s non-detriment finding rested on an incorrect standard (Count VIII).

The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6). Bypassing the Service’s argument that Safari Club lacked Article III standing, the court concluded that the non-detriment and enhancement findings were not final agency action and that, by failing to apply for an import permit, Safari Club’s members had failed to exhaust their administrative remedies. See Safari Club International v. Jewell, 76 F.Supp.3d 198, 207-08 (D.D.C. 2014).

Safari Club appeals, arguing that the Service’s decision to suspend import permits—including the two 2014 findings— was final, and that its members had no obligation to exhaust administrative remedies. The Service defends the district court’s dismissal for lack of finality and exhaustion, adding that Safari Club lacks standing and that its claims are moot. Our review is de novo. See Cohen v. United States, 650 F.3d 717, 722 (D.C. Cir. 2011) (reviewing de novo questions of subject matter jurisdiction and failure to state a claim).

II.

The parties devote the bulk of their briefing to finality and exhaustion, but this puts the cart before the horse, for we must begin with our 'own jurisdiction. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (“[Ejvery ■ federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that -of the lower .courts in a cause under review....” (citation and internal quotation marks omitted)). To determine whether we and the district court have Article III jurisdiction, we must decide whether Safari Club has standing and whether its claims are moot. See, e.g., Worth v. Jackson, 451 F.3d 854, 857 (D.C. Cir. 2006) (explaining that standing and mootness, along with ripeness, define the constitutional bounds of our subject-matter jurisdiction). .

A.

To demonstrate Article ■ III standing, plaintiffs must “establish, as an ‘irreducible constitutional minimum,’ that they, face ‘injury in fact’ caused by the challenged conduct and redressable through relief sought from the court.” Shays v. Federal Election Commission, 414 F.3d 76, 83 (D.C. Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed,2d 351 (1992)). An organization, like Safari Club, has Article III standing if one of its members has standing. See Summers v. Earth Island Institute, 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L,Ed.2d 1 (2009) (“[Ojrganizations can assert the standing of their members.”). The Service argues that Safari Club lacks .standing because none of its members filed a permit application, meaning that the Club’s injury stems from its members’ inaction rather than from any decision by the Service. For its part, Safari Club insists that seeking- a permit would have been futile given that the Service had determined and publicly announced that no permits would issue for Tanzanian elephants killed in 2014. According to the Service, however, futility can never excuse a nonapplieant’s failure to seek a permit, adding that even were there a futility exception, Safari Club has failed to show futility here. We disagree with the Service on both counts.

It is true that “a plaintiff must generally ... submit to a [government] policy to establish standing” to challenge it. Grid Radio v. FCC, 278 F.3d 1314, 1319 (D.C. Cir. 2002) (citation and internal quotation marks omitted). In the context of applications for government benefits, however, “ ‘[t]his threshold requirement ... may be excused ... where a plaintiff makes a substantial showing that the application for the benefit ... would have been futile.’ ” Id. (quoting Prayze FM v. FCC, 214 F.3d 245, 251 (2d Cir. 2000)); see United States v. Decastro, 682 F.3d 160, 161, 164 (2d Cir. 2012) (recognizing futility exception for nonapplicant for firearm permit but finding no futility on summary-judgment record). Even our decision in Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991), on which the Service itself relies, supports the existence of a futility exception. There, we held that a nonapplicant lacked Article III standing because the summary-judgment record contained no “evidence relating to the asserted ‘futility’ of applying” for government employment. Id. at 57 (emphasis added); accord id. at 62 (D.H. Ginsburg, J., concurring) (“A non-applicant would also have standing ... to challenge as unlawful a policy ... that has the effect of disqualifying her and rendering her application pointless.”).

But does the record here show that submitting an application would have been futile? The Service says no, relying heavily on a statement from its non-detriment finding that if an applicant includes in its submission “new or additional information showing that elephant management practices by the Government of Tanzania have led to the sustainability of its elephant population on a nation-wide basis, these applications should be referred to the Division of Scientific Authority for consideration on a case-by-case basis.” 2014 Non-Detriment Finding, at Deferred Appendix 123. In the Service’s view, this caveat saves the day by leaving open the possibility that applicants might have obtained a 2014 permit.

On closer examination, however, this possibility was illusory given the definitive nature of the Service’s non-detriment and enhancement findings. Based on its review of the best biological information available as of February 2014, see 50 C.F.R. § 23.61(f), the Service found that Tanzanian elephants were suffering a “significant decline” in population, “primarily due to poaching.” 2014 Non-Detriment Finding, at Deferred Appendix 123. Largely for that reason, the Service concluded that the “additional killing of elephants, even if legal, is not sustainable and will not support effective elephant population recovery efforts in Tanzania.” Id. at 133. Given this, an internal agency memorandum directed that “if an import permit application [for 2014] is received, the application will be denied.” Targeted Communications Strategy, at Deferred Appendix 137. True, in later years the Service might change its mind if it “reeeive[s] information that indicates a significant improvement for elephants in Tanzania.” April 4, 2014, Letter from Bryan Arroyo, Assistant Director of International Affairs, to Hon. Lazaro Nya-landu, Tanzanian Minister of Natural Resources, at Deferred Appendix 223-24. That, however, hardly casts doubt on the conclusion that seeking a permit in 2014 would have been entirely futile.

The Service also argues that any harm to Safari Club’s members is speculative because hunters might fail to “kill[] any elephants to import.” Appellee’s Br. at 38; see Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (injury must be “actual or imminent, not ‘conjectural’ or ‘hypothetical’ ” (citation omitted)). But Safari Club is not arguing that its members are injured only when stopped at the border, trophy in tow. Instead, it claims an antecedent injury: the inability to obtain a permit in the first place. “We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury.” See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007), aff'd sub nom. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Because the de facto permit denial gives Safari Club Article III standing, we need not address its alternative theory for standing, namely that by requiring hunters to submit “new and additional information” with their applications, see 2014 Non-Detriment Finding, at Deferred Appendix 123, the Service increased the hunters’ regulatory burden and cost of compliance. See, e.g., CropLife America v. EPA, 329 F.3d 876, 883-84 (D.C. Cir. 2003). And because Safari Club’s member hunters, and therefore Safari Club, have standing, we have no need to determine whether other individuals represented by Safari Club, including guides, outfitters, and conservationists, have likewise suffered harm on account of the Service’s decision. See Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009) (“ ‘[I]f one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to. the merits of the case.’” (quoting Railway Labor Executives’ Association v. United States, 987 F.2d 806, 810 (D.C. Cir. 1993))).

B.

We turn next to the Service’s argument that the case has become moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable'interest in the outcome.’” Already, LLC v. Nike, Inc., — U.S. -, 133 S.Ct. 721, 726-27, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (per curiam). The Service argues that because the challenged findings pertain only to 2014, and because none of Safari Club’s members killed an elephant during that year, “[n]either this Court nor the district court can afford Safari Club any relief with respect to the 2014 findings.” Appellee’s Br. at 25. This argument suffers from two fatal flaws.

First, the relief Safari Club seeks extends well beyond the two 2014 findings. Although the second amended complaint does challenge the now-expired 2014 findings (Count VI), it also speaks more broadly to whether the Service may require an enhancement finding at all (Count VII), -as well as to whether it employed an incorrect standard when making its non-detriment finding (Count VIII). “It is well-established that if a plaintiff challenges both a specific agency -action and the policy that underlies that action,” as Safari Club does in Counts VII and VIII, “the challenge to the policy is not necessarily mooted merely because the challenge to the particular agency action is moot.” City of Houston v. Department of Housing & Urban Development, 24 F.3d 1421, 1428 (D.C. Cir. 1994).

We applied that principle to a situation nearly identical to the one we face here in Defenders of Wildlife v. Endangered Species Scientific Authority, 659 F.2d 168 (D.C. Cir. 1981). There, the plaintiff challenged the Service’s non-detriment findings for export of bobcats for a specific year. See id. at1 175. Even though the hunting season for that year had long passed, we concluded that the case was not moot because the plaintiffs “more broadly ... attacked] the standards federal agencies apply in approving bobcat exports.” Id. Because Safari Club likewise “more broadly” challenges the standards by which the Service, makes its elephant findings—Counts VII and VIII—those counts are similarly not moot.

Count VI, in which Safari Club alleges the Service failed to conduct notice- and-comment rulemaking for its 2014 findings, presents a different issue because Safari Club concedes that claim is moot but nonetheless argues that it falls.within the narrow exception for quick-burning disputes that are “capable of repetition, yet evading review.” Kingdom/ware Technologies, Inc. v. United States, — U.S. -, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016) (citation and- internal, quotation marks omitted). Specifically, although expiration of a government policy ordinarily moots a challenge to it, the controversy remains live if “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Id. (citation and internal quotation marks omitted).

Defenders of Wildlife once more guides our path. Although the relevant bobcat-hunting season had passed by the time the case reached this court, we nonetheless deemed the dispute capable of repetition yet evading review. See Defenders of Wildlife, 659 F.2d at-175. As we explained, because the findings were both made and expired within a single hunting season, the window for litigating a challenge to the agency’s decision was far too short. See id. Moreover, since the Service made clear that it would “apply[] the same criteria and ... seek[ ] essentially the same types of information ... in developing advice for the 1980-81 season,” the plaintiff would have been subject to the same action again. See id. (citation and internal quotation marks omitted).

We see little to distinguish this case from Defenders of Wildlife. Here, as there, the findings “expire by [their] terms within a year,” Appellee’s Br. at 30, and the Service nowhere indicates that it will change the criteria by which they are made.

The Service nonetheless maintains that future challenges to the findings “will not evade review because there is no time limit for importing a trophy killed in a certain year.” Id. at 29-30. By this, we assume the Service means that a hunter could have traveled abroad without a permit in 2014, shot an elephant, attempted to repatriate the trophy in a later year, and then challenged the Service’s refusal to issue a permit. But Safari Club’s alleged injury derives from the Service’s refusal to issue á permit in 2011, and the purpose of that permit, as Safari Club argues and the Service concedes, is to give advanced assurance to hunters that if they invest in a hunting trip—“$100,000 for [a] hunt[,] ... $10,000 for [a] plane ticket[,] ... $50,000 in trophy fees[,] ... and $50,000-70,000 in taxidermy costs,” Decl. of Walter Allen Tarpley, at Deferred Appendix 179—they will be allowed to return with trophies. See id. (“If I am unable to import my elephant trophy, I will not participate in the elephant portion of the hunt.”); Decl. of Timothy Van Norman, Chief of Permits Branch, Division of Management Authority, at Deferred Appendix 200 (“By applying [for a permit] before traveling, the hunter can, in many cases, make adjustments to their hunting trip, if desired, based on the FWS determination on whether a permit can be issued.”). Because Safari Club is unable to fully litigate a challenge to the findings underlying the suspension without taking on risk that the permitting scheme is designed to avoid, the controversy evades review. See LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998) (controversy must be “by its very nature short in duration, so that it could not, or probably would not, be able to be adjudicated while fully live.” (citation and internal quotation marks omitted)). ■■ ■

III.

- Having assured ourselves of our jurisdiction* we turn to the Service’s arguments relating to finality and exhaustion.

The Service argues that because the hunters failed to apply for a permit, it “has not yet been given an opportunity to render a final decision regarding an import permit,” meaning “theré is no final decision for this Court to review.” Appellee’s Br. at 49. Under the Administrative Procedure Act, an agency action is final if it meets two conditions. First, it must “mark the consummation of the agency’s decisionmaking process,” ie., it is not “merely tentative or interlocutory.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation and internal quotation marks omitted). Second, “the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id, (citation and internal quotation marks omitted). The finality inquiry “is a ‘pragmatic’ and ‘flexible’ one.” National Association of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1279 (D.C. Cir. 2005).

As to the first factor, the Service argues that its two findings were tentative, “predicate” determinations “subject to amendment based on new information.” See Ap-pellee’s Br. at 13, 50-51. We disagree. As explained above, supra Part II.A, the findings represented the agency’s final decision that no permit would issue for the 2014 calendar year. See, e.g., Targeted Communications Strategy, at Deferred Appendix 137 (noting that the 2014 findings operated to “prohibit import of sport-hunted elephant trophies from Tanzania”). In addition, the content of the two findings reveals a considered determination, based on a thorough examination of recent biological studies, elephant population data, Treaty reports, and official documents from the Tanzanian government. The “possibility” that the Service “may revise [its decision] ... based on ‘new information’ ... is a common characteristic of agency action, and does not. make an otherwise definitive decision nonfinal.” U.S. Army Corps of Engineers v. Hawkes Co., — U.S. -, 136 S.Ct. 1807, 1814, 195 L.Ed.2d 77 (2016). In short, the suspension was not a “moving.target,” but a “final and binding determination.” See Franklin v. Massachusetts, 505 U.S. 788, 798, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).

The definitiveness' of the Service’s position also leads inexorably to the conclusion that Safari Club’s “rights ... have been determined.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (citation and internal quotation marks omitted). For all practical- purposes, the findings represented a de facto denial of permits for any Safari Club member wishing to import sport-hunted elephant trophies from Tanzania for 2014—that is, a “result .¡. that ... directly affect[s] the parties.” Franklin, 505 U.S. at 797, 112 S.Ct. 2767.

Contrary to the Service, nothing in National Mining Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014), requires a different result. There, we held that the challenged agency action—an Environmental Protection Agency guidance—was not final because it amounted to nothing more than a recommendation that petitioners were “free to ignore.” Id. at 252 (internal quotation marks omitted). To be sure, we recognized that “parties may feel pressure to voluntarily conform their behavior” to agency guidance where it seems “the writing is on the wall.” Id. at 253. For the petitioners in that case, however, the writing was not on the wall. Here it is. The Service has made abundantly clear that it would grant no permits for 2014. See supra Part II.A.

The Service’s final argument— that Safari Club failed to exhaust its administrative remedies—is absurd. The remedies of “reconsideration” and “appeal” that the Service points to are available only to those who apply for a permit and have it denied. See 50 C.F.R. § 13.29(a) (persons who “may request reconsideration” include “[a]n applicant for a permit who has received written notice of denial”); id. § 13.29(e) (“A person who has received an adverse decision [following a] request for reconsideration may submit a written appeal.”). In this case the Service had nothing to “reconsider,” as Safari Club never sought, nor was obliged to seek, a permit for 2014.

Insisting that Safari Club nonetheless failed to exhaust its administrative remedies, the Service cites our decision in Marcum v. Salazar, 694 F.3d 123 (D.C. Cir. 2012). There, after the Service denied import permits for Zambian elephant trophies, see id. at 124-25, hunters brought near-simultaneous challenges to the permit denials in two separate forums: one administratively before the Service and another before the district court, the latter of which granted summary judgment to the government without realizing that the hunters’ administrative appeals remained pending, see id. at 125-26. Because the district court “unknowingly decided the case without the full administrative record before it,” we concluded that the matter was unripe. Id. at 129. But we did not hold that applicants faced with a total ban on permits must nonetheless seek a permit and then challenge the agency’s preordained denial in administrative proceedings.

IY.

For the foregoing reasons, we reverse and remand to the district court for further proceedings consistent with this opinion.

So ordered.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    MARVEL ENTERTAINMENT, LLC, as Successor to Marvel Entertainment, Inc., F.K.A. Marvel Enterprises, Inc. and as agent for members of Marvel Enterprises, Inc. and Subsidiaries Group, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    Docket No. 15-3335-ag
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: August 31, 2016
    Decided: September 7, 2016
    B. John Williams, Jr. (David W. Foster, Nathan P. Wacker, Sonja Schiller,, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C. and Chicago, Illinois, for Petitioner-Appellant.
    Deborah K. Snyder (Gilbert S. Rothen-berg, Thomas J. Clark, on the brief), Tax Division, Department of Justice, for Caroline D. Ciraolo, Acting Assistant Attorney General, and Diana L. Erbsen, Deputy Assistant Attorney General, Washington D.C., for Respondent-Appellee.
    Before: WINTER, CHIN, and DRONEY, Circuit Judges.
   PER CURIAM:

This appeal challenges an opinion and an order and decision of the United States Tax Court entered July 21, 2015 granting summary judgment for the Commissioner of Internal Revenue. The sole issue before the Tax Court, and before us on appeal, is whether petitioner-appellant Marvel Entertainment, LLC’s consolidated group must reduce its consolidated net operating loss (“CNOL”) under Internal Revenue Code § 108(b)(2)(A) by the total amount of the group’s previously excluded cancellation of indebtedness income under a “single entity” approach as opposed to determining the amount of CNOL apportionable to each member and applying § 108(b)(2)(A) on a member-by-member basis. The Tax Court applied a “single entity” approach to reduce the CNOL, finding deficiencies in income tax due for the taxable years 2003 and 2004 in the amounts of $2,144,756 and $14,453,653, respectively.

Applying de novo review, Scheidelman v. Comm’r, 682 F.3d 189, 193 (2d Cir. 2012), we affirm for substantially the reasons stated by the Tax Court in its complete and well-reasoned opinion, 145 T.C. 69 (2015).


author: PER CURIAM.

text:
    Elouise BRADLEY, Plaintiff-Appellant, v. Jennifer SABREE, et al., Defendants-Appellees.
    No. 16-1774
    United States Court of Appeals, Seventh Circuit.
    Submitted August 26, 2016
    Decided September 6, 2016
    Rehearing Denied September 23, 2016

      Elouise Bradley, Pro Se;
    Karla Z. Keckhaver, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee.
    Before MANION, ROVNER and HAMILTON, Circuit Judges.
   PER CURIAM.

Elouise Bradley appeals the dismissal of her civil-rights lawsuit alleging that employees of the Wisconsin Department of Children and Families and Lutheran Social Services played a role in the improper revocation of her license to operate a childcare center. We affirm.

This is Bradley’s third appeal from lawsuits alleging improprieties with her license revocation. See Bradley v. Wis. Dep’t of Children & Families, 528 Fed.Appx. 680 (7th Cir. 2013) (affirming dismissal of suit against department, a state agency, which is not subject to § 1983 liability); Bradley v. Sabree, 594 Fed.Appx. 881 (7th Cir. 2015) (affirming dismissal of § 1983 suit against department officials and social-service workers for failure to state a claim). In the complaint here, Bradley again alleged that her license was improperly revoked because of actions by six people— five of whom she had sued in her second suit. As she asserted, two department employees, without permission, photographed the space in her home where she operated the daycare program and was in the process of reorganizing; they then falsely accused her of child abuse and neglect and forced her to surrender her license. Bradley further alleged that an employee interviewed her adopted son without her consent and did not fix an incorrect report accusing her of child abuse. Besides the five defendants she had sued earlier, Bradley named one other state employee, Kari Kerber, who she alleged had investigated her for child neglect—thereby contributing to the daycare’s closure. All of the defendants, Bradley asserts, violated the “Federal Right to Privacy Act” (most likely referring to the Privacy Act of 1974, 5 U.S.C. § 552a), the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106(a), the Fourth and Fourteenth Amendments, the Due Process Clause, and 42 U.S.C. §§ 1983, 1985(3). The state defendants moved to dismiss the complaint as being barred by claim preclusion and for failure to state a claim.

The district court dismissed the claims against all of the defendants. The eourt first concluded that claim preclusion barred the claims against the five who had been defendants in the second lawsuit because the claims there were based on the same events as the current suit. As for the sixth defendant, Kerber, the court concluded that the complaint failed to state a claim under any constitutional provision or federal statute identified by Bradley.

On appeal Bradley does not meaningfully challenge the district court’s application of claim preclusion and instead maintains that her complaint stated a claim. But the court properly concluded that claim preclusion bars her claims here because they involved the same parties (five of the defendants, not including Kerber) as well as the same core of operative facts, and the litigation in the prior suit had resulted in a final judgment on the merits. See Bernstein v. Bankert, 733 F.3d 190, 226 (7th Cir. 2013); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 283-84 (7th Cir. 2007). Bradley does not try to clarify her claims against Kerber, the defendant who was not involved in the prior suit, and we see no basis to disturb the court’s decision that Bradley failed to state a claim against Kerber or any of the other defendants.

We have reviewed all of Bradley’s remaining contentions, and none has merit. We warn Bradley that submitting further frivolous appeals to this court may result in sanctions. See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).

AFFIRMED.

      , The court dismissed Bradley’s claims against the two unserved non-DCF defendants based on the belief that 28 U.S.C. § 1915(e)(2), a provision within the statute governing in forma pauperis proceedings, required it to screen complaints filed by self-represented plaintiffs, and dismiss any complaint that failed to state a claim. Although we have stated that 28 U.S.C. § 1915(e)(2) applies to fee paying plaintiffs like Bradley, see Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999), other circuits have disagreed, see Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.10 (3d Cir. 2002); Stafford v. United States, 208 F.3d 1177, 1179 n.4 (10th Cir. 2000); Benson v. O'Brian, 179 F.3d 1014, 1016-17 (6th Cir. 1999); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). We need not reconcile any possible conflict because it makes no difference in this case. The district court has authority to dismiss defective claims, and the procedural protections that we have outlined—notice and opportunity to respond, see Dawson v. Newman, 419 F.3d 656, 660 (7th Cir. 2005); Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003); Stewart Title Guar. Co. v. Cadle Co., 74 F.3d 835, 836 (7th Cir. 1996)— were satisfied by the state defendants’ motion to dismiss, and Bradley herself was able to file a response.


text:
    Donna Kay LEE, Petitioner-Appellant, v. Debra JACQUEZ, Respondent-Appellee.
    No. 12-56258
    United States Court of Appeals, Ninth Circuit.
    Filed September 6, 2016
    Before: MARY M. SCHROEDER, HARRY PREGERSON, and JACQUELINE H. NGUYEN, Circuit Judges.
   ORDER

Pursuant to the decision of the United States Supreme Court in Johnson v. Lee, — U.S. —, 136 S.Ct. 1802, 195 L.Ed.2d 92 (2016), the judgment of the district court is AFFIRMED.


author: HARTZ, Circuit Judge.

text:
    IN RE: EXPERT SOUTH TULSA, LLC, Debtor. Steven R. Rebein, Chapter 7 Trustee for Expert South Tulsa, LLC, Plaintiff-Appellant, and RE3 Development, LLC, Intervenor Plaintiff-Appellant, v. Cornerstone Creek Partners, LLC, Defendant-Appellee.
    No. 15-3190
    United States Court of Appeals, Tenth Circuit.
    December 6, 2016

      Submitted on the briefs:

    Carl R. Clark, Lentz Clark Deines PA, Overland Park, Kansas, for Intervenor Plaintiff-Appellant.
    Jonathan A. Margolies, McDowell, Rice, Smith & Buchanan, PC, Kansas City, Missouri, for Plaintiff-Appellant.
    John Henry Rule, Sidney K. Swinson, Brandon C. Bielde, GableGotwals, Tulsa, Oklahoma, and John W. McClelland, Armstrong Teasdale, LLP, Kansas City, Missouri for Defendant-Appellee.
    Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.

       After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

   HARTZ, Circuit Judge.

Expert South Tulsa (Debtor), a debtor in bankruptcy, seeks to set aside as a fraudulent transfer its own sale of real estate that was encumbered by a mortgage far exceeding the sale price. It contends that it did not receive reasonably equivalent value in exchange for the property. Perhaps it now thinks it can sell the property at a much higher price. Or it may be trying .to assist a related party that acquired the mortgage note after the sale. Regardless of its motive, we reject its claim. Because Debtor received reasonably equivalent value from the sale of the property, it cannot prevail under Oklahoma law or the fraudulent-transfer provision of the Bankruptcy Code. In particular, we reject its contention that it remained liable on the mortgage note after the sale and that the bankruptcy court therefore miscalculated the value it received.

I. BACKGROUND

Debtor is a limited liability company formed to purchase and develop property in Tulsa, Oklahoma. Part of its original funding was a $500,000 loan from the E.H. Hawes Revocable Trust (the Hawes Trust), the original intervenor in this case. The trust is for the benefit of Edwin “Trey” Hawes III (Hawes), the manager of Debtor, and his family.

In 2007 Debtor purchased a property called Memorial Commons through a loan secured by a mortgage on the property. By February 2009 the loan was in default and a foreclosure action commenced that August. Debtor did not defend the foreclosure action, opting instead to find a buyer for the property. One deal fell through in late December. But in early January 2010, Cornerstone Creek Partners, LLC (Cornerstone), made an offer of $3 million. Debtor and Cornerstone agreed to a sale of the property, contingent on delivery of free and clear title.

At the time of closing, Memorial Commons was encumbered by a $7,754,151.00 mortgage debt and other liens totaling $499,740.29. To effect the closing, the mortgagee released the mortgage and dismissed the foreclosure action with prejudice, and several lienholders dismissed their claims against the property and Debtor. No judgment was entered. Less various fees and taxes, the purchase price was distributed as follows:

1. $1,742,170.16 to the mortgagee.
2. $114,999.77 to other lienholders.
3. $686,000 to Debtor’s unsecured creditors, including $415,000 to the Hawes Trust.
4. $261,477 to Debtor.

After the closing, Hawes contacted the mortgagee multiple times to ask for an assignment of the loan to the Hawes Trust. The mortgagee expressed doubt that the debt was still enforceable but eventually transferred the loan to the Hawes Trust without recourse or warranties as to its validity. Why the Hawes Trust wanted the mortgage note is unclear; but Cornerstone has suggested that Hawes believed that the size of the debt would provide leverage over other unsecured creditors seeking payment from Debtor’s assets. Cornerstone sold Memorial Commons for $4.4 million only 11 days after closing.

In March 2010 a creditor who had not received any of the sale proceeds filed in the United States Bankruptcy Court for the District of Kansas (apparently Debt- or’s principal place of business at the time) an involuntary petition placing Debtor in Chapter 7 bankruptcy, which was converted to Chapter 11 a few weeks later. Debtor brought this adversary proceeding in September 2011, seeking to avoid the sale of Memorial Commons to Cornerstone on the ground that it did not receive reasonably equivalent value for the property. The bankruptcy court granted summary judgment against Debtor, and the Tenth Circuit Bankruptcy Appellate Panel (BAP) affirmed.

II. DISCUSSION

Although' this is an appeal from a BAP decision, see 28 U.S.C. § 158(d)(1), “we review only the' Bankruptcy Court’s decision.” In re Alderete, 412 F.3d 1200, 1204 (10th Cir. 2005). We treat the BAP as a subordinate appellate tribunal whose rulings may be persuasive but are not entitled to deference. Matters of law are reviewed de novo, and factual findings (which are made only by the bankruptcy court, not by the BAP) are reviewed for clear error. See In re Brown, 108 F.3d 1290, 1292 (10th Cir. 1997). The parties agree that state-law- issues are governed by Oklahoma law.

Debtor brings two claims of fraudulent or constructively fraudulent transfer against Cornerstone. Both require that a transfer of property by Debtor have been for less than reasonably equivalent value. Under 11 U.S.C. § 554(b) the bankruptcy trustee has the power to avoid a transfer if it is voidable by a creditor under “applicable law,” which may be state law. See Kupetz v. Wolf, 845 F.2d 842, 845 n.2 (9th Cir. 1988). Debtor relies on Oklahoma’s Uniform Fraudulent Transfer Act, which permits a creditor to void a transfer as fraudulent if the debtor did not “receiv[e] a reasonably equivalent value in exchange for the transfer ... and the debtor was insolvent at that time.” 24 Old. St. Ann. § 117(A) (emphasis added). Similarly, the trustee may avoid a transfer under 11 U.S.C. § 548(a)(1)(B) if the debtor (1) transferred “an interest ... in property” within two years before the filing of the bankruptcy petition; (2) received less than a “reasonably equivalent value” in exchange for the transfer; and (3) was insolvent at the time of the transfer or became insolvent as a result of the transfer. 11 U.S.C. § 548(a)(1)(B) (emphasis added). Although both § 544(b) and § 548(a) speak in terms of a “trustee” having the power to avoid a transfer, 11 U.S.C. § 1107 allows a debtor-in-possession, such as Debtor here, to take such action. See 5 Collier on Bankruptcy ¶ 548.02[1] (Alan N. Resnick & Henry J. Sommers eds., 16th ed.).

Because fraudulent-transfer statutes are for the protection of unsecured creditors, we measure the value received in terms ok the effect on those creditors. See In re Northern Merchandise, Inc., 371 F.3d 1056, 1059 (9th Cir. 2004) (“[T]he primary focus of Section 548 is on the net effect of the transaction on the debtor’s estate and the funds, available to the unsecured creditors.”); Rubin v. Mfrs. Hanover Trust Co., 661 F.2d 979, 992 (2d Cir. 1981) (noting “the statutory purpose of conserving the debtor’s estate for the benefit of creditors”); In the Matter of Ohio Corrugating Co., 70 B.R. 920, 927 (Bankr. N.D, Ohio 1987) (“The rationale of-the fraudulent transfer provision of the Code is to preserve the assets of the estate.”); see generally In re Image Worldwide, Ltd., 139 F.3d 574, 577 (7th Cir. 1998) (“[T]he [Uniform Fraudulent Transfer Act] is a uniform act, and it derived the phrase ‘reasonably, equivalent value’ from 11 U.S.C. §■ 548(a)(2)-.Thus, we can look to interpretations of ‘reasonably equivalent value’ from § 548 cases .... for assistance in predicting what an [Oklahoma] court would do.” (citations omitted)). Value therefore encompasses more than just the cash exchanged in-the transaction; it includes “satisfaction .... of .a present .or antecedent debt of the debtor.” 11 U.S.C. § 548(d)(2)(A); accord 24 Okl. St. Ann. § 115(A) (“Value is given for a transfer or an obligation if, in exchange for the.transfer or obligation, ... an antecedent debt is secured or satisfied.”). When such a debt is extinguished, the remaining creditors benefit because the satisfied creditor is no longer competing for the debtor’s property.

In support of its claim, Debtor contends that Memorial Commons was worth $4.99 million at the time of Cornerstone’s purchase (a value we can assume to be correct, because Debtor cannot prevail even if the value was that high), yet Cornerstone paid only $3 million. The bankruptcy court rejected the argument largely because Debtor benefited from not only the $3 million but also from release of the more than $6 million it would still owe on .the mortgage loan. Debtor responds that its obligation on the note was not released. Since it is obvious that Debtor received at least reasonably equivalent value for the property if the obligation was released (the amount due on the note, $7.75 million, is more than reasonably equivalent to $4.99 million), we now examine whether there was a release.

In our view, the mortgage loan was discharged as a matter of law. The mortgagee’s foreclosure action in state court sought not only foreclosure on the mortgage but also a judgment against Debtor for the deficiency. The mortgagee ended the. litigation by filing a dismissal with prejudice, stating that it “hereby dismisses all claims or counterclaims, against all other parties, with prejudice.” Aplt. App. at 932. This dismissal relieved Debtor of its obligations on the mortgage note. No further action by the court was necessary.

Debtor argues that the mortgagee, was not bound by the dismissal and could have pursued it to pay the deficiency. It suggests .that it and the mortgagee did not agree to release of the note and it points to Oklahoma cases stating that the effect of a voluntary dismissal with prejudice depends on what the parties agreed to. Those cases, however, do not support its position here. None allows a party that dismisses a claim with prejudice to later pursue the same claim. The issue in each was the effect of the dismissal on other parties. In Colonial Royalties Co. v. Hinds, 202 Okla. 660, 216 P.2d 958, 962 (1948), a plaintiff had dismissed with prejudice a prior suit against several defendants. In the later litigation involving those defendants (but not the original plaintiff), none was relitigating the prior dispute and nothing indicated that any had reached an agreement with regard to the dismissal with prejudice. See id. In Eaton v. Allen, 362 P.2d 93, 96-97 (Okla. 1961), the driver of a vehicle had dismissed with prejudice his claims against the other driver and that driver’s employer after reaching a settlement with their insurance carrier. When the other driver (an original defendant) then sued the original plaintiff, the court ruled that the earlier dismissal was not intended to bar the later litigation. See id. at 98-99. It said that extrinsic evidence can be considered to resolve ambiguity in a dismissal. See id. at 98.

There was no ambiguity here. The mortgagee dismissed with prejudice its claims under the mortgage and the mortgage note. That dismissal was unequivocally binding on the mortgagee. A third Oklahoma opinion cited by Debtor makes this proposition indisputable. In Winterhalder v. Burggraf Restoration, Inc., 256 P.3d 84, 87 (Okla. Civ. App. 2011), a restoration company dismissed with prejudice its small-claims case against a customer after the customer paid its bill for carpet restoration plus court costs and attorney fees in exchange for delivery of the carpet to the customer. The customer then sued the company for breach of contract, negligence, and fraud. See id. at 86. Debtor relies on the court’s ruling that, absent an agreement to release its claims, the customer was not barred from suing the company. See id. at 92. But Debtor ignores the language from the opinion that is directly on point here: “Clearly, [the company’s] dismissal with prejudice barred it from further litigating the subject .matter of its claim against the [customer].” Id. at 91. When the mortgagee here dismissed its claims with prejudice, it, too, was barred from litigating them later.

Debtor further argues, however, that there was no release of its mortgage loan in this case because the holder of the mortgage note who filed the foreclosure action, OKL 18, LLC, had transferred the note to GTMI, LLC (GTMI), before it dismissed its claims. But under Oklahoma law one who has transferred an interest in the subject matter of litigation may continue to pursue the litigation in its own name on behalf of the transferee. See 12 Okl. St. Ann. § 2025(C) (“In case of any transfer of interest, the action may be continued by or against the original party.”); see also Redcorn, Jr. v. Knox, 345 P.3d 392, 399 (Okla. Civ. App. 2014) (stating that § 2025 was based on Fed. R. Civ. P. 25(c)); 7C Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1958 (3d ed. 2016) (“The most significant feature of [Fed. R. Civ. P.] 25(c) is that it does not require that anything be done after an interest has been transferred. The action may be continued by or against the original party, and the judgment will be binding on the successor in interest even though the successor is not named.” (emphasis added)). That was the situation here. Moreover, GTMI expressly authorized the delivery and filing of the dismissal with prejudice. And it would make no sense for GTMI to permit payment to Debtor of $261,477 from the closing if Debtor would still be beholden to it for some $6 million on the note.

Finally, Debtor argues that the ex-tinguishment of its debt was not “in exchange for” the property it sold. See 11 U.S.C. § 548(a)(l)(B)(i) (trustee may avoid a transfer if debtor “received less than a reasonably -equivalent value in exchange for such transfer” (emphasis added)); 24 Okl. St. Ann. § 117(A) (transfer is fraudulent if made “without receiving a reasonably equivalent value in exchange for the transfer” (emphasis added)). It contends that all Cornerstone wanted was .for the liens to be extinguished (so it would receive clear title) and that release of the debt was therefore not part of the deal. But extinguishment of the debt was simultaneous with the rest of the deal and no reasonable factfinder could find that the extinguishment was an act of generosity divorced from the overall deal. Simply put, the sale was undoubtedly a but-for cause of the extinguishment of the debt. We have no hesitation in holding that the release of the debt was value obtained “in exchange for” the sale of the property.

In short, Debtor received more. than reasonably equivalent value from the sale of Memorial Commons and therefore both its state and federal fraudulent-transfer claims must fail.

III. CONCLUSION

We AFFIRM the decision of the Bankruptcy Appellate Panel.

      . Intervenor-Plaintiff-Appellant E.H. Hawes Revocable Trust moved to substitute RE3 Development, LLC as the successor in interest to the trust’s claims in this case. We granted the motion and substituted RE3 Development as Intervenor Plaintiff-Appellant under Fed. R.App. P. 43(b).