text:
    PAROS PROPERTIES LLC, Plaintiff-Appellant, v. COLORADO CASUALTY INSURANCE COMPANY; Ohio Security Insurance Company, Defendants-Appellees.
    No. 15-1369
    United States Court of Appeals, Tenth Circuit.
    Filed August 29, 2016

      Mark D. Changaris (Kathleen T. Alt and George V. Berg, Jr., with him on the brief), Berg Hill Greenleaf & Ruscitti, LLP, Boulder, Colorado, for Plaintiff-Appellant.
    Brian J. Spano (Lyndsay K. Arundel, with him on the brief), Lewis Roca Ro-thgerber LLP, Denver, Colorado, for Defendants-Appellees.
   HARTZ, Circuit Judge.

I. INTRODUCTION

A mudslide destroyed a commercial building (the Building) in Boulder, Colorado, owned by Paros Properties LLC (the Owner) and insured under a policy (the Policy) issued by Colorado Casualty Insurance Company (the Insurer). The Owner filed an insurance claim but the Insurer denied payment because damage from mudslides is excluded from policy coverage. The Owner then filed a state-court suit seeking payment under the Policy and damages for bad-faith breach of the insurance contract. It argued that the mudslide caused the building to explode, bringing the incident within the scope of an explosion exception to the Policy’s mudslide exclusion. The Insurer removed the action to federal court, which granted summary judgment to the Insurer. On appeal the Owner argues (1) that the district court lacked subject-matter jurisdiction because the Insurer’s removal from state court was untimely and (2) that the district court erred on the merits in holding that there was no coverage. We have jurisdiction under 28 U.S.C. § 1291. We hold that the notice of removal was too late. But because the district court correctly ruled on the merits and the jurisdictional requirements were satisfied at that time, we affirm the judgment below rather than burden the state court and the parties by requiring relitigation.

II. BACKGROUND

Torrential rainfall hit Boulder in September 2013. On the night of September 12 a violent flow of water, mud, and debris thundered down a hillside into the Building, causing extensive damage. The Owner submitted an insurance claim but the Insurer denied it after a brief inspection. It explained in a letter: “The inspection revealed that there was a Mudslide that caused the damage to your buildings. Damages caused by Mudslides or Mudflows are specifically excluded under your policy.” Aplt. App., Vol. 2 at 268.

The Owner retained counsel to challenge the denial. Counsel hired an engineer, who inspected the Building on October 15, 2013, and (after a site inspection a year later) issued a report on his findings on November 3, 2014. According to the report, “The debris laden flow impacted the south elevation of the structure, causing a sudden reaction of the wall structure.” Report of Edward L. Fronapfel, Supp. Aplee. App., Vol. 1 at 65. The impact caused the property to “split into two separate structures along a north-south wall line. The eastern portion laterally displaced to the northeast, while the western portion laterally displaced to the northwest. The roof structure collapsed where the building separation occurred due to the sudden loss of the bearing walls.” Id. at 73. The Owner demolished the building on October 23, 2013.

On October 24, 2013, counsel for the Owner sent a letter to the Insurer claiming wrongful denial of coverage. It stated that the “force of the mudslide caused [the Owner’s] building, literally, to explode,” Aplt. App., Vol. 4 at 631, and that the resultant damage was therefore compensa-ble under the explosion exception to the mudslide exclusion in the Policy. It also accused the Insurer of failing to conduct a full and reasonable investigation of the Owner’s claim before denying coverage and, somewhat oddly given the budding’s demolition, requested that the Insurer “complete its investigation into the facts and circumstances surrounding the loss to the ... Building.” Id. at 634. On November 14, the Insurer, which had not been advised of the demolition, informed the Owner that it would continue to investigate the claim and had scheduled an engineer to inspect the site the next morning. When the engineer arrived, he saw that the Building had been demolished.

On January 29, 2014, the Owner’s attorney sent an email to the Insurer with “further explanation of the amounts of the losses suffered by our client.” Aplt. App., Vol. 4 at 625. The email indicated that the Building loss exceeded $1.1 million. (The policy limit was $907,600.) The record contains no indication that the Insurer responded to this email.

On February 26, 2014, the Owner filed its suit in Colorado state court. The complaint alleged “catastrophic damage to the Property and its contents” and claimed damages relating to cleanup, reconstruction, and loss of income and use. Complaint, Aplt. App., Vol. 1 at 21 ¶ 19. It did not quantify the damages other than to say that “[t]he amount in dispute is more than $15,000.” Id. at 20 ¶ 6. It also referenced, but did not attach, correspondence sent “[o]n or about January 30, 2014.” Id. at 23 ¶ 31. On appeal the Owner claims that this was a reference to its January 29 email tallying losses exceeding $1.1 million.

On April 23, 2014, in its initial damages disclosures under Colorado Rule of Civil Procedure 26(a)(1)(C), the Owner claimed to be “in the process of calculating specific damage amounts” and listed the amount of all damages as “TBD.” Aplt. App., Vol. 1 at 30. Two days later, the Owner served its first supplemental disclosures, enumerating damages exceeding $1.3 million. Id. at 32-33. Three days after that, the Insurer removed the case to the United States District Court for the District of Colorado. The Owner moved that court to remand, but the court denied the motion and later granted summary judgment to the Insurer.

III. TIMELINESS OF REMOVAL A. General Principles

The Insurer was served with the complaint on February 26, 2014, and filed its notice of removal on April 28, 2014. Under the federal removal statute the notice ordinarily must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). This deadline was clearly not met. The Insurer relies, however, on an escape hatch. Under another provision of the removal statute, “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3). Most courts, including this one, have consistently interpreted the term other paper broadly to include state-court filings and discovery. See, e.g., Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072, 1079 (10th Cir. 1999) (30-day clock triggered by deposition testimony); DeBry v. Transamerica Corp., 601 F.2d 480, 488-89 (10th Cir. 1979) (clock not triggered by ambiguous deposition testimony); 14G Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 3731, at 524 (“The federal courts have given the reference to ‘other paper’ an expansive construction and have included a wide array of documents within its scope.”) And this position has now been codified in 28 U.S.C. § 1446(c)(3)(A).

The Insurer points out that it could not remove the case to federal court under diversity jurisdiction (it is not disputed that the Owner and the Insurer are citizens of different states) unless the amount in controversy was at least $75,000, see 28 U.S.C. § 1332(a) (requirements for diversity jurisdiction); id. § 1441(a) (requirements for removal), and it contends that the initial complaint left in doubt whether the Owner’s claim equaled or exceeded $75,000. It says that it was not put on notice until April 25, when the Owner disclosed its damages computation of over $1.3 million.

The question before us, then, is when could the Insurer “first ... ascertain[ ] that the case [was] one which [was] or [had] become removable.” Id. § 1446(b)(3). In particular, could the Insurer have ascertained removability from the complaint itself and, if not, could it have done so from some “other paper” it received before the Owner disclosed its damages computation?

This circuit has been very strict in assessing whether the grounds for removal are ascertainable. We require a specific allegation that damages exceed the federal jurisdictional amount of $75,000. The 30-day clock does not begin to run until the plaintiff provides the defendant with “clear and unequivocal notice” that the suit is removable. Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir. 1998). In Akin federal jurisdiction hinged upon whether exposure to a toxic substance occurred within a federal enclave. See id. at 1034. The complaint alleged “injuries sustained ‘while working at’ Tinker Air Force Base.” Id. at 1035. We held that this allegation “did not provide unequivocal notice of the right to remove” because the -phrase while working at was ambiguous; it could have been a “geographical modifier” (meaning the exposure occurred on the base) or a “durational modifier” (exposure occurred during the time the plaintiffs were employed by the base). See id.

Huffman, 194 F.3d 1072, is similar. The plaintiffs leased space to operate a retail furniture store, but the defendant landlord failed to fix a leaking roof for a number of months. See id. at 1075. The lessees filed a complaint containing numerous allegations from which the defendant might well have surmised that damages exceeded the jurisdictional floor: that the “constant problem with the roof leaking made it almost impossible to carry on a business,” that it “was impossible to avoid or prevent the moldy, damp, smelly atmosphere of the store,” and that “[c]ustomers complained and often left quickly without taking time to browse or really shop the furniture items because of these intolerable conditions.” Id. (internal quotation marks omitted). Further, the complaint sought actual and punitive damages. Id. at 1077. But as to dollar amount the complaint said only that the plaintiffs sought “in excess of $10,000.” Id. at 1077 (internal quotation marks omitted). We ruled that based on the complaint, the defendant “could only guess as to whether the claim exceeded $75,000” and that the complaint therefore failed to put the defendant on notice of removability. Id. The 30-day clock was not triggered until the store owner’s deposition testimony that the plaintiffs sought more than $300,000. See id. at 1079.

DeBry, 601 F.2d 480, illustrates that our strict standard also applies to notice provided after the complaint. We considered whether the plaintiffs deposition testimony gave notice that he was a citizen of Utah (for purposes of establishing diversity of citizenship). The complaint alleged that he had been a citizen of Utah until June 1972. See id. at 481-82. He testified that after “mov[ing] to California [from Salt Lake City] the first part of July of 1972,” he had “returned [to Salt Lake City] in August of [1974] and purchased a unit.” Id. at 495. We held that this testimony did not give notice. Because the plaintiff “did not say that he had permanently moved,” the defendant did not “learn with certainty” from the deposition that the plaintiff was a citizen of Utah. Id. at 488-89.

Our strict rule is justified by important practical considerations. Litigation concerning when the defendant realized or should have realized the amount in controversy or the like can expend considerable resources of the court and the parties. And the expenditure is wholly unnecessary. Any time the plaintiff wishes to start the 30-day clock, it can provide the defendant with an unambiguous notice of what is being claimed. For similar reasons, other circuits have held that they will not inquire into a defendant’s subjective knowledge or what the defendant should have inferred from an investigation or a review of its files. See, e.g., Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (“[T]he removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought.... Requiring a defendant to read the complaint and guess the amount of damages that the plaintiff seeks will create uncertainty and risks increasing the time and money spent on litigation.”); Foster v. Mut. Fire, Marine & Inland Ins. Co., 986 F.2d 48, 54 (3d Cir. 1993), overruled on other grounds by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (“[T]he relevant test is not what the defendants purportedly knew, but what [the plaintiffs] documents said.”); Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997) (“[W]e will not require courts to inquire into the subjective knowledge of the defendant, an inquiry that could degenerate into a mini-trial regarding who knew what and when.... [The grounds for removal must] be apparent within the four corners of the initial pleading or subsequent paper.”); Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 399 (5th Cir. 2013) (seeking to “promote efficiency by preventing courts from expending copious time determining what a defendant should have known or have been able to ascertain at the time of the initial pleading” and to “avoid encouraging defendants to remove cases prematurely for fear of accidentally letting the thirty-day window to federal court close when it is unclear that the initial pleading satisfies the amount in controversy”); Graiser v. Visionworks of Am., Inc., 819 F.3d 277, 285 (6th Cir. 2016) (“[A] defendant is not required to search its own business records or perform an independent investigation into a plaintiffs indeterminate allegations to determine removability.” (internal quotation marks omitted)); Walker v. Trailer Transit, Inc., 727 F.3d 819, 825 (7th Cir. 2013) (requiring “specific and unambiguous notice that the case satisfies federal jurisdictional requirements and therefore is removable. Assessing the timeliness of removal should not involve a fact-intensive inquiry about what the defendant subjectively knew or should have discovered through independent investigation.”); In re Willis, 228 F.3d 896, 897 (8th Cir. 2000) (per curiam) (“[T]he thirty-day time limit of section 1446(b) begins running upon receipt of the initial complaint only when the complaint explicitly discloses the plaintiff is seeking damages in excess of the federal jurisdictional amount.”); Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 886 (9th Cir. 2010) (“We adopted this bright-line approach to avoid the spectre of inevitable collateral litigation over whether defendant had subjective knowledge, or whether defendant conducted sufficient inquiry.” (alterations and internal quotation marks omitted)); cf. Romulus v. CVS Pharm., Inc., 770 F.3d 67, 80 (1st Cir. 2014) (“The timeliness inquiry is limited to the information in the plaintiffs’ papers.... The defendant has no duty to perform significant investigation of its own data to ascertain removability.”).

We now turn to the specifics of this case.

B. Application to this case

The Owner relies on two sources to establish that the Insurer should have ascertained the amount in controversy more than 30 days before it filed its notice of removal: (1) an email sent before suit was filed and (2) the civil cover sheet filed with the complaint. We first address the email.

1. Presuit email

On January 29, 2014, the Owner’s counsel sent an email to the Insurer setting forth an assessment of the losses suffered from destruction of the Building. The assessment, which totaled almost $1.2 million, arose from damage to the building, lost rental income, and debris removal. We first consider whether the email can be considered an “other paper” and then whether it would suffice to provide notice as part of the complaint.

A written demand from counsel may be an “other paper” under § 1446(b)(3) “from which it may first be ascertained that the case is one which is or has become removable.” Several circuit courts have 'so held. See Romulus, 770 F.3d at 78; Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 (9th Cir. 2007); Addo v. Globe Life & Ace. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000). See generally Wright & Miller, Federal Practice and Procedure § 3731, at 524, 545 (“The federal courts have given the reference to ‘other paper’ an expansive construction and have included a wide array of documents within its scope ... [including] correspondence between the parties and their attorneys or between the attorneys.”). But those cases have involved only postsuit demands. This limitation makes sense because the statutory language clearly does not contemplate “papers” submitted before the complaint was filed. After all, the removal clock under § 1446(b)(3) starts ticking upon receipt of the “paper,” so the time for removal after receipt of a presuit paper could well expire before service of the complaint and would never extend beyond the time permitted by § 1446(b)(1)' — which is 30 days after service of the complaint or summons. We agree with the other circuits to have considered the matter that a presuit communication is not an “other paper.” See Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992) (“By its plain terms the statute requires that if an ‘other paper’ is to trigger the thirty-day time period of the second paragraph of § 1446(b), the defendant must receive the ‘other paper’ only after it receives the initial pleading.”); Carvalho, 629 F.3d at 885-86 (same).

Perhaps, however, presuit demand could provide adequate notice if it were incorporated into the complaint. The Owner points out that its complaint contains the allegation that “[o]n or about January 30, 2014, [Owner] followed up with [the Insurer] again to provide updated information regarding [the Owner’s] damages.” Complaint, Aplt. App., Vol. 1 at 23 ¶ 31. But this reference fails for two reasons. First, there is ambiguity about the date. The allegation in the complaint refers to an email sent “on or about January 30,” which is not a “clear and unequivocal” reference to an email actually sent on January 29. Second, the email does not communicate a demand. It sets forth alleged damages without stating how much the Insurer must pay. Indeed, the total damages asserted in the email exceed the policy limits, so the Owner was presumably not seeking payment of all the listed damages. Also, if the Owner’s claim was limited to the loss caused by an explosion resulting from the mudslide, the claim would not include property damage caused by the mudslide alone.

2. Civil Cover Sheet

The Owner also alleges that the Insurer was on notice of the amount in controversy because of the civil cover sheet filed in state court with the complaint. For cases seeking $100,000 or less, Colorado uses a simplified procedure with detailed early disclosures and limited discovery. See C.R.C.P. 16.1. So that the court can determine whether the procedure applies, civil complaints (except in certain types of excluded cases not present here) must be accompanied by a civil cover sheet indicating whether the amount in controversy exceeds $100,000. See C.R.C.P. 16.1(b)(3). In this case the Owner checked the box indicating that the suit sought more than $100,000.

If the cover sheet is not considered part of the “initial pleading” under § 1446(b)(1), it is at least properly considered an “other paper” under § 1446(b)(3). The question is whether its content provides adequate notice.

We previously declined to decide in an unpublished opinion whether a defendant could support its removal notice by reference to a plaintiffs check mark on the Colorado civil cover sheet. See Warner v. CitiMortgage, Inc., 533 Fed.Appx. 813, 816 (10th Cir. 2013). But at least one federal district judge in Colorado has determined that the cover sheet is notice that starts the removal clock. See Henderson v. Target Stores, Inc., 431 F.Supp.2d 1143, 1144 (D. Colo. 2006) (civil cover sheet is an “other paper” that put the defendant on notice that the amount in controversy exceeded $75,000). We think that view is sound. There is no ambiguity in the cover sheet. And we see no reason not to credit an assertion by an officer of the court on a matter of significant consequence in the state proceeding (whether or not simplified procedures will apply). Because the Insurer’s notice of removal was filed more than 30 days after it received the cover sheet, the notice was untimely.

That does not, however, end the matter. Although the district court should have remanded the case to state court, a lot of water has now flowed under the bridge. Must we now order that the litigation start anew in state court? The Supreme Court tells us no. In Caterpillar Inc. v. Lewis, 519 U.S. 61, 64, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), a unanimous Supreme Court declared that “a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered.” In that case the federal district court (erroneously) denied a motion to remand a removed case when the parties were not completely diverse; the nondiverse parties later settled and the case proceeded to trial and judgment. See id. at 64, 117 S.Ct. 467. The Supreme Court ruled that the defective removal did not require that the judgment be vacated. Untimeliness is a “statutory flaw,” not a “jurisdictional defect.” Id. at 73, 117 S.Ct. 467 (emphasis omitted). And “[ojnce a diversity case has been tried in federal court,” the Court wrote, “considerations of finality, efficiency, and economy become overwhelming.” Id. at 75, 117 S.Ct. 467. “To wipe out the adjudication postjudgment, and return to state court a case now satisfying all federal jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with .the fair and unprotracted administration of justice.” Id. at 77, 117 S.Ct. 467.

Here, it was clear by the time the Insurer filed its notice of removal that the amount in controversy exceeded $75,000. Although there was no trial in this case, this circuit has confirmed that the rule of Caterpillar applies not only after a trial but also when “judgment is based on ... a district court’s ruling on a dispositive motion.” Huffman, 194 F.3d at 1080. Remand to state court would therefore be improper if we upheld the summary judgment. On the other hand, the efficiency rationale of Caterpillar would disappear if we reversed the district court’s summary judgment, because the case would need to proceed anew anyway, and it might as well proceed in state court as in federal. See id. But, as we proceed to explain, we affirm the judgment below. •

IV. POLICY COVERAGE

Turning to the merits, we agree that the Owner failed to raise a genuine issue of material fact that the damage to the Building is covered by the Policy. The critical policy provision is the “Water Exclusion Endorsement,” which excludes from coverage any damage caused by the following water-based sources:

1. Flood, surface water, waves (including tidal wave and tsunami), tides, tidal water, overflow of any body of water, or spray from any of these, all whether or not driven by wind (including storm surge);
2. Mudslide or mudflow;
3. Water that backs up or overflows or is otherwise discharged from a sewer, drain, sump, sump pump or related equipment;
4. Water under the ground surface pressing on, or flowing or seeping through:
a. Foundations, walls, floors or paved surfaces;
b. Basements, whether paved or not; or
c. Doors, windows or other openings; or
5. Waterborne material carried or otherwise moved by any of the water referred to in Paragraph 1., 3., or 4., or material carried or otherwise moved by mudslide or mudflow.
This exclusion applies regardless of whether any of the above, in Paragraphs 1. through 5., is caused by an act of nature or is otherwise caused.

Supp. Aplee. Appx., Vol. 8 at 555. There is, however, an exception to this exclusion for damage from explosions:

But if any of the above, in Paragraphs 1. through 5., results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage (if sprinkler leakage is a Covered Cause of Loss).

Id. In short, the. Policy does not cover damage caused by water, but does cover damage caused by an explosion caused by water.

Although the Insurer has the burden of establishing that the Owner’s loss fell within the exclusion, see Colorado Intergovernmental Risk Sharing Agency v. Northfield Ins. Co., 207 P.3d 839, 842 (Colo. App. 2008), the Owner does not dispute that the damage was caused by a mudslide. But it makes two arguments why it is still covered: (1) the damage to the Building was not caused by surface water and is therefore not within the water-exclusion provision; (2) the Building was destroyed not by the mudslide itself, but by a resulting explosion. We are not persuaded. .

A. Surface Water

The Owner’s surface-water argument is easily resolved. The Owner relies on Heller v. Fire Insurance Exchange, a Division of Farmers Insurance Group, 800 P.2d 1006, 1007 (Colo. 1990), in which runoffs of melted snow damaged a mountain residence in Vail, Colorado. The insurance policy excluded loss caused by “flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether driven by wind or not.” Id. at 1008 n.2. The insurer denied coverage on the ground that surface water had caused the damage. See id. at 1008. The Colorado Supreme Court ruled for the plaintiffs. It defined surface water in part as water that “follows no defined course or channel.” Id. at 1009. But in that case the “path of the water had been diverted ... by three parallel trenches.... fifteen to twenty feet long, three feet wide, six inches deep, and lined with plastic sheets, rocks and tree limbs.” Id. at 1007. The court reasoned that “the runoff lost its character as surface water when it was diverted' by the trenches and therefore was not within the surface water exclusion.” Id. at 1009.

The Owner argues that, as in Heller, the water here lost its character as surface water because it “was diverted by man-made parking lots, roadways, drainpipes, and culverts on Flagstaff Mountain uphill from the Building.” Aplt. Br. at 57. This diversion seems less dramatic than the one in Heller, but the factual distinctions are of no consequence because the terms of the policies are different. In Heller the relevant exclusion was for surface water. See Heller, 800 P.2d at 1008. The exclusion here encompasses “surface water,” but it also includes “mudslide or mudflow.” Supp. Aplee. App., Vol. 8 at 555. The Owner concedes the damage to have been caused by “an avalanche of mud, rocks, and debris ... [that] careened into the Building.” Aplt. Br. at 2. The Owner does not, and could not, make any argument that the avalanche was not a mudslide. And under the Policy it makes no difference whether any water causing the avalanche had been diverted by manmade features; mudslide damage is excluded whether the mudslide “is caused by an act of nature or is otherwise caused.” Supp. Aplee. App., Vol. 8 at 555.

B. Explosion

As for the Owner’s second argument, the facts do matter. The Owner contends that the mudslide “caus[ed] the Building to violently and suddenly burst apart with a loud boom,” that is to say, caused the building to explode, thus bringing the damage within the explosion exception to the water exclusion. Aplt. Br. at 2. We disagree that demolition by an external cascade of water, mud, and debris is an explosion under the Policy.

“In interpreting a contract, we seek to give effect to the intent and reasonable expectations of the parties.” Thompson v. Maryland Cas. Co., 84 P.3d 496, 501 (Colo. 2004) (en banc). “Accordingly, unless the parties intend otherwise, terms in an insurance policy should be assigned their plain and ordinary meaning.” Id. To comport with public policy and principles of fairness, we construe ambiguous terms in an insurance policy against the insurer. See id. at 501-02. We also “read the provisions of the policy as a whole, rather than reading them in isolation.” Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003) (en banc); see Sec. Ins. Co. of Hartford v. Houser, 191 Colo. 189, 552 P.2d 308, 310 (1976) (en banc) (interpreting an insurance-policy clause based on the purpose of the clause within the policy).

The Policy itself does not define the term explosion. But that does not mean that the term must be construed to encompass all possible meanings, even if found in the dictionary. Context matters. We would be reluctant, for example, to construe policy language to include figurative meanings. See Rhinelander v. Ins. Co. of Pennsylvania, 8 U.S. (4 Cranch) 29, 44, 2 L.Ed. 540 (1807) (“Commercial contracts have but little connection with figurative language.”). Although a football player may “explode” off the line of scrimmage, we would not construe the exception to the exclusion to include damage to a wall from someone (even someone who is 6'6" tall and weighs 330 pounds) fleeing a flash flood. Nor does it make sense to construe the term explosion in a way that would undermine the exclusion to which it is an exception. The Owner urges us to find an explosion any time an external impact transfers sufficient kinetic energy to a structure to destroy it. But the exclusion includes tidal waves, tsunamis, and mudslides, which all typically produce extreme forces that can smash anything in their paths; to adopt the Owner’s conception would be to read those exclusions out of the Policy.

What makes most sense in the present context is the classical notion of an explosion, as from a bomb or leaking gas. Such an explosion involves a buildup of internal pressure and a sudden bursting outward in all available directions. The exception would apply, for example, if a mudslide damaged a gas pipe, creating a leak of gas that was ignited and exploded. Our understanding of the term is consistent with that of other courts construing “explosion” in an insurance policy. See Pre-Cast Concrete Prods., Inc. v. Home Ins. Co., 417 F.2d 1323, 1328 (7th Cir. 1969) (“[A]n explosion occurs when the pressure inside the container exceeds the strength of the container and results in a sudden release of the pressure.”); Jersey Ins. Co. of N.Y. v. Heffron, 242 F.2d 136, 139 (4th Cir. 1957) (finding an explosion where “the roof, falling intact like a huge piston ... gradually built a compression of air ... great enough to burst the first story windows”); Commercial Union Fire Ins. Co. v. Bank of Ga., 197 F.2d 455, 457 (5th Cir. 1952) (In a bursting-fire-hydrant case, “the bursting [was] caused by excessive pressure, and the pressure [was] caused by pent-up energy.”); Bower v. Aetna Ins. Co., 54 F.Supp. 897, 898 (N.D. Tex. 1944) (“The application of a force from within the radiators which the radiators, or the pipes, could not resist, and burst, or exploded is apparently what happened.”); Sperling v. Allstate Indemnity Company, 182 Vt. 521, 944 A.2d 210, 217 (2007) (“In the absence of the release of energy through an ignitable substance, decisions require a buildup of internal pressure preceding the rupture in order to define the event as an explosion”).

To convince us that the term explosion includes causes not driven by internal pressure, the Owner points to Stone Container Corp. v. Hartford Steam Boiler Inspection & Ins. Co., 165 F.3d 1157, 1160 (7th Cir. 1999), which states in dictum that a watermelon explodes when shot through with a bullet. But that statement does not help the Owner. The court was asked to limit the term explosion to an event caused by “combustion or some other chemical reaction.” Id. at 1159. It declined, explaining that to limit explosion in that way would improperly exclude from the term’s scope an atomic bomb or “volcanic explosions, as well as the ‘explosion’ of a tire caused by a blowout, the explosion of a melon caused by a bullet....” Id. at 1160. This comment reflects a (seemingly correct) belief that the melon explodes due to some source other than combustion or chemical reaction. It does not suggest that the source is something other than a buildup of internal pressure. And that is, in fact, the case, as far as we can discern: a bullet entering a watermelon compresses the fluid within it and creates a hydrostatic shock wave through the fluid that presses in all directions against the rind until it bursts. See “Hydrostatic sliock,” available at https://en.wikipedia.org/wiki/ Hydrostatic_shock (last visited August 2, 2016); “Why do watermelons explode,” available at http://bit.ly/lqC0OfW (last visited August 2, 2016).

Given our understanding of the policy language, we must affirm the district court. The Owner does argue briefly that a buildup of internal pressure did damage the building. Drawing an analogy to the popping of an overfilled balloon, the Owner suggests “that- mud, water, and debris may have filled up the Building to the point of failure, at which time the walls burst outward in a catastrophic and sudden explosion.” Aplt. Br. at 55. The problem for the Owner is that there is no evidence to support this argument. The Owner’s own engineer found that the north-traveling mudslide displaced the building’s walls upon impact, not after filling the building with mud, See Fronapfel Report, Supp. Aplee. App., Vol. 1 at 65 (“The debris laden flow impacted the south elevation of the structure, causing a sudden reaction of the wall structure.... ”). The walls moved laterally to the north, not outward in all directions. And the roof did not burst outward as from an explosion, but rather “collapsed.” Id. at 73.

V. CONCLUSION

We AFFIRM the district court’s orders denying the Owner’s motion to remand and granting summary judgment to the Insurer. Our affirmance moots the Owner’s other arguments on appeal.

      . 28 U.S.C. § 1446(b)(1) states:
      The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

      . 28 U.S.C. § 1446(b)(3) states:
      Except as provided in subsection (c) [setting a one-year time limit, unless the plaintiff acted in bad faith to prevent removal], if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

      .28 U.S.C. § 1446(c)(3)(A) states:
      If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper' under subsection (b)(3).

      . It also suffices to allege facts from which the amount may be easily derived through arithmetic. For example, if a class-action complaint seeks $25,000 for each of 500 plaintiffs, it alleges damages of $12.5 million. But the amount must be unambiguous. Compare Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) ("[T]he statute requires a defendant to apply a reasonable amount of intelligence in ascertaining removability. Multiplying figures clearly stated in a complaint is an aspect of that duty.” (internal quotation marks omitted) (citation omitted)) with Cutrone v. Mortgage Elec. Registration Sys., Inc., 749 F.3d 137, 139 (2d Cir. 2014) (In a case under the Class Action Fairness Act requiring that the amount in controversy exceed $5,000,000, see 28 U.S.C. § 1332(d)(2), "the named plaintiffs' identification of their damages ($6,835.20) and their allegation that the potential class 'includes hundreds, and likely thousands, of persons and entities,' were not adequate to trigger the 30-day removal period.”).

      . On the other hand, a defendant need not await such unambiguous notice before filing a notice of removal. Once it reasonably believes that the jurisdictional prerequisites have been satisfied, it can properly seek removal. The plaintiff may decide not to object. But if there is a dispute, the court can resolve the parties' factual and legal conflicts. See Dart Cherokee Basin Operating Co., LLC v. Owens, - U.S. -, 135 S.Ct. 547, 553-54, 190 L.Ed.2d 495 (2014) (“If the plaintiff contests the defendant's allegation, ... both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.”). That the defendant has the right to remove does not mean the defendant has the duty to remove, which is triggered only by receipt of clear and unequivocal notice from the plaintiff.

      . The expert who prepared the report testified at his deposition as follows:
      Q. There’s no evidence of any internal gases or internal pressures that caused the damage to the building, is there?
      A. When we’re talking about internal pressures to the loss of the bearing, potentially, yes. If we’re talking about like a pressure vessel, I don't believe so. We're talking pressure differentials, but we’re not talking internal pressure increase like blowing up a balloon. I didn’t see that. The walls didn't shift all outward in one blow. I believe they moved in one direction.
      Deposition of Edward Fronapfel, Aplt. App., Vol. 19 at 2297.


source: Caselaw Access Project

author: WILSON, Circuit Judge, ROSENBAUM, Circuit Judge, JILL PRYOR, Circuit Judge,

license: Public Domain

text:
    IN RE: William HUNT, Petitioner.
    No. 16-14756-J
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 07/18/2016
    Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.
   BY THE PANEL:

William Hunt seeks to file a second or successive 28 U.S.C. § 2255 motion based on Johnson v. United States. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Hunt claims that his 18 U.S.C. § 924(c) conviction for using a firearm during a crime of violence is invalid under Johnson because it arose under that section’s residual clause, which is similar to the ACCA’s residual clause. Specifically, he argues that his conviction is based on an offense — armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) — that qualifies as a crime of violence via § 924(c)’s residual clause. Hunt also asserts that his advisory United States Sentencing Guidelines (Guidelines) sentence violates Johnson because it was enhanced pursuant to the residual clause in the career offender provision of the Guidelines — a clause that is also similar to the ACCA’s residual clause. However, at this time, In re Hines forecloses Hunt’s § 924(c) claim, and United States v. Matchett forecloses his Guidelines-based claim.

Hines narrowly held that an armed bank robbery, in violation of § 2113(a) and (d), qualifies as a crime of violence under § 924(c)’s elements clause — as opposed to residual clause — if the record makes clear that the applicant “by force, violence and intimidation, did take from the person or presence of [a bank employee] monies belonging] to a federally-insured bank and that in doing so, ... assault[ed] and put in jeopardy the life of [others] by use of a dangerous weapon.” See Hines, 824 F.3d at 1337 (internal quotations marks omitted and alteration adopted). Here, the record demonstrates that Hunt’s § 2113(a) and (d) armed bank robbery conviction involved these various elements. Therefore, under Hines, the conviction is an elements-clause offense and does not implicate § 924(c)’s residual clause or Johnson.

Turning to Hunt’s Guidelines-based claim, Matchett precludes the application of Johnson to an advisory Guidelines sentence like Hunt’s. Matchett determined that the void-for-vagueness doctrine does not apply to advisory Guidelines and therefore Johnson cannot invalidate a post-Booker Guidelines sentence. See Matchett, 802 F.3d at 1193-96. At the same time, we note that the Supreme Court recently granted certiorari in Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, No. 15-8544 (U.S. June 27, 2016), which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.

Accordingly, Hunt’s application is denied without prejudice, with leave to file another application after the Supreme Court’s decision in Beckles.

APPLICATION DENIED.

WILSON, Circuit Judge,

concurring, joined by JILL PRYOR, Circuit Judge, and as to Parts 1(A) and II, ROSENBAUM, Circuit Judge:

It is a violation of due process for a court to rely on a criminal sentencing scheme “so vague that it fails to give ordinary people fair notice ... or so standard-less that it invites arbitrary enforcement.” See Johnson v. United States, 576 U.S. —, -, 135 S.Ct. 2551, 2556-57, 192 L.Ed.2d 569 (2015). Post -Booker - the touchstone of appellate review of sentences is reasonableness — an inquiry that turns on a district court’s application of the United States Sentencing Guidelines (Guidelines). That is to say, Supreme Court precedent establishes an expectation that defendants will receive reasonable sentences, and we rely on the Guidelines to determine reasonableness. Because the Guidelines drive appellate review under this sentencing scheme, fatally vague Guidelines provisions necessarily result in both “arbitrary enforcement by [courts]” and denial of “fair notice.” See id. at 2557. Therefore, vague Guidelines provisions violate the due process clause’s void-for-vagueness doctrine. The Matchett panel’s decision to the contrary is erroneous. And importantly, given the “central,” “significant role” that the Guidelines play in sentencing, see Molina-Martinez v. United States, 578 U.S.-,-, 136 S.Ct. 1338, 1341-42, 194 L.Ed.2d 444 (2016), Match-ett’s holding is unworkable. Appellate judges like myself must now review sentences that were imposed based on language that the Supreme Court has deemed “hopeless[ly] indeterminate]” — the text of the residual clause in § 4bl.2(a) of the Guidelines. See Johnson, 135 S.Ct. at 2558. Accordingly, I believe Matchett was wrongly decided.

Although Hunt’s Guidelines-based claim is currently foreclosed by Matchett, I write separately to explain why I disagree with the holding in Matchett

I

Under our post -Booker sentencing regime, appellate courts must review all sentences for reasonableness, and the Guidelines direct each step of that review. See Gall v. United, States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Consequently, “[t]he Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year.” See Molina-Martinez, 136 S.Ct. at 1342.

We are required to assess the reasonableness of a sentence in two steps. See Gall, 552 U.S. at 51, 128 S.Ct. at 597. We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range ... or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. Next, we “consider the substantive reasonableness of the sentence.” Id. In doing so, we “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Indeed, the Supreme Court has held that appellate courts may “apply a presumption of reasonableness” to a sentence within the Guidelines range, see Rita v. United States, 551 U.S. 338, 355, 127 S.Ct. 2456, 2467, 168 L.Ed.2d 203 (2007), and our court has concluded that a within-Guidelines range sentence is ordinarily reasonable, see United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).

A

Considering the “central role” of the Guidelines in this analysis, see Molina-Martinez, 136 S.Ct. at 1341, an impossibly vague Guidelines provision guarantees arbitrary enforcement of the law and denial of fair notice to the public as to what constitutes a reasonable sentence. For example, given that the first step of reasonableness review requires us to determine whether the district court properly calculated the defendant’s Guidelines range, arbitrary enforcement is a fait accompli when the defendant’s range is based on a vague provision. A defendant’s Guidelines range is dictated by which Guidelines provisions apply to the defendant. Hence, if the district court relied on a vague provision in calculating a defendant’s range, then we must interpret that provision to decide whether it actually applies to the defendant. A vague provision, however, provides no “generally applicable test” for determining its reach. See Johnson, 135 S.Ct. at 2559. Confronted with such a provision, we will be forced to rely on “guesswork and intuition,” see id. and our decisions regarding to which defendants it properly applies will be arbitrary. This means that our enforcement of the “reasonable sentence” requirement will be arbitrary. If two similar defendants simultaneously challenge a district court’s application of the provision to them, one defendant’s appeals panel could find her sentence unreasonable and vacate her sentence, while — by mere bad luck — the other defendant’s panel could affirm his sentence. Thus, despite the Guidelines being advisory, a vague Guidelines provision can give rise to arbitrary enforcement of the law and dictate the treatment of defendants.

B

Likewise, when a Guidelines provision is vague, it denies the public fair notice of the consequences of breaking the law. Because defendants have a clearly established expectation that they will receive reasonable sentences and the Guidelines serve as the foundation of the reasonableness analysis, the Guidelines provide notice as to the scope of an acceptable federal sentence. The public must look to the Guidelines to discern the types of sentence that can reasonably be imposed on them. Therefore, Matchett’s rationale for holding that the void-for-vagueness doctrine does not apply to the Guidelines — that defendants cannot “look to the Guidelines for notice” — is unconvincing. See 802 F.3d at 1194 (quoting United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012)).

:¡{ #

In sum, the Supreme Court has held that a sentencing scheme that either “invites arbitrary enforcement” or denies “fair notice” is unconstitutional. See Johnson, 135 S.Ct. at 2556-57. As demonstrated here, a fatally vague Guidelines provision does both. For this reason, vague Guidelines provisions must be treated no differently under the due process clause than vague criminal statutes. To hold otherwise ignores the reality of sentencing post-Booker: the Guidelines are enmeshed in our case law and we heavily depend on them to fulfill our judicial duties. See Molina-Martinez, 136 S.Ct. at 1346 (“[T]he Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar. The Guidelines inform and instruct the district court’s determination of an appropriate sentence.”).

II

Turning to the specific impact of Match-ett on our appellate review process, the “hopeless indeterminacy” of the residual clause in § 4bl.2(a) makes our charge to review the reasonableness of sentences based on that clause all but impossible. See Johnson, 135 S.Ct. at 2558. As discussed above, our first step when reviewing a sentence is to determine whether the defendant’s Guidelines range was properly calculated. Accordingly, when faced with an appeal in which the district court found that the defendant qualified for a particular sentence under the residual clause, we must decide whether that frustratingly opaque clause applies to the defendant. As made clear in Johnson, this is a futile inquiry. See id. at 2560. In the face of such an unworkable task, appellate review of the defendant’s sentence is not only impracticable but also “does not comport with the Constitution’s guarantee of due process.” See id.

For these various reasons, I respectfully disagree with our decision in Matchett.

ROSENBAUM, Circuit Judge,

concurring, joined by WILSON and JILL PRYOR, Circuit Judges:

Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.’ ” Boston Legal, “Word Salad Days” (2006), http://www.imdb.com/title/tt0770843/quotes (last visited Apr. 28, 2016). Now imagine that based on the Guidelines range that that indecipherable language required, a district court sentenced a defendant to twice as much time as it otherwise would have. How could the sentencing court know that the guideline applied? How could the reviewing court know that the correct Guidelines calculation included an enhancement under that guideline? Surely doubling a defendant’s sentence based on nonsense would violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we allowed defendants to continue to be sentenced to much more severe sentences than they would otherwise receive, based on the residual clause of the career-offender guideline, a guideline that the Supreme Court has found hardly more scrutable than the hypothetical one above.

No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whether, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.

I concur in Sections I.A. and II of Judge Wilson’s well-reasoned concurrence. I agree that the Supreme Court’s decision in Johnson v. United, States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holding the Armed Career Criminal Act’s (“ACCA”) residual clause unconstitutionally vague renders the exact same language in the Sentencing Guidelines unconstitutional as well. So while we are bound by Matchett in deciding Hunt’s Guidelines claim, I write separately to explain why I believe that Matchett was incorrectly decided.

I.

In Matchett, 802 F.3d 1185, the panel reached the opposite conclusion because it held that the vagueness doctrine does not apply to the Sentencing Guidelines. 802 F.3d at 1193-95. To reach that result, the panel first described the vagueness doctrine as “resting] on [a] lack of notice.” Id. at 1194 (quoting Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988)). Then, the panel construed Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), as precluding due-process challenges to, essentially, anything having to do with sentencing under the Guidelines, based on the Supreme Court’s remark that that “[a]ny expectation subject to due process protection ... that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which invalidated the mandatory features of the Guidelines.” Matchett, 802 F.3d at 1194 (quoting Irizarry, 553 U.S. at 713, 128 S.Ct. at 2202). Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[b]eeause there is no constitutional right to sentencing guidelines ... the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194-95 (quoting Wivell, 893 F.2d at 160).

A.

The problem with the first part of the panel’s analysis — that the vagueness doctrine “rest[s] on [a] lack of notice” — is that it is incomplete. The vagueness doctrine also protects against arbitrary enforcement by judges. Indeed, in Johnson itself the Supreme Court held that the ACCA equivalent of the 13 words at issue here violated due process because it “both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557 (emphasis added).

B.

As for the second part of the panel’s analysis — that Irizarry precludes due-process challenges to all forms of sentencing error under the Guidelines — I respectfully disagree. In Irizarry, under the advisory Guidelines, a defendant was sentenced above the correctly calculated Guidelines range. 553 U.S. at 712, 128 S.Ct. at 2201. He asserted that his due-process rights had been violated because the sentencing court varied upwards from the Guidelines range without providing him with prior notice. See id. The Supreme Court rejected his argument, explaining that under the advisory Guidelines, “neither the Government nor the defendant may place the same degree of reliance on the type of ‘expectancy’ [of a given sentence] that gave rise to a special need for notice [when the Guidelines were mandatory and the sentencing court departed from them].” Id. 553 U.S. at 713-14, 128 S.Ct. at 2202.

Put simply, Irizarry stands for only the proposition that a defendant has no due-process interest in receiving a sentence within the Guidelines range. But Irizarry says nothing about whether a defendant has a due-process right to a correct and fair sentencing process under the Sentencing Guidelines. And while the Supreme Court has not expressly spoken to such a right, the Court’s recent decisions strongly indicate that the right exists.

For starters, in Molina-Martinez v. United States, 578 U.S. -, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016), the Supreme Court recently explained that a district court that “improperly calculares]” a defendant’s Guidelines range makes a “significant procedural error,” id. at 1346 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)) (quotation marks omitted) — so “particularly serious,” id. in fact, that the error generally qualifies in its own right as having “affected the defendant’s substantial rights.” Id.

And that is not surprising, given that the Supreme Court 'has established that a correct and fair sentencing process necessarily begins with the correct calculation of the Guidelines range. Gall v. United States, 552 U.S. 38, 50 & n. 6, 128 S.Ct. 586, 596 & n. 6, 169 L.Ed.2d 445 (2007). Indeed, the Supreme Court has instructed that under 18 U.S.C. § 3553(a), “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Id. at 50 n. 6, 128 S.Ct. at 596 n. 6 (emphasis added); see Peugh v. United States, 569 U.S. -, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013) (same). The correct Guidelines calculation “anchor[s] both the district court’s [sentencing] discretion and the appellate review process.” Peugh, 133 S.Ct. at 2087.

In other words, the Supreme Court has acknowledged that Congress has effectively legislated the requirement that a sentencing court start the sentencing process by first correctly calculating the Guidelines range. That makes § 3553(a) a “statute[ specifying the procedure for] fixing sentences.” See Johnson, 135 S.Ct. at 2556-57 (holding that the vagueness doctrine applies to statutes fixing sentences). So to the extent that, as a part of the statutorily mandated sentencing process, § 3553(a) requires courts in calculating the Guidelines range to use a guideline that is “so standardless that it invites, arbitrary enforcement,” the guideline must be struck down. See id. Failure to do so would render the sentencing process that § 3553(a) requires — determining the correct calculation of the Guidelines range — violative of due process because no court could reliably ascertain the correct calculation of the Guidelines range.

That is exactly the problem that the challenged language of the career-offender guideline presents. How can a sentencing court correctly calculate the Guidelines range when it is forced to apply the “hopelessly] indetermina[te]” language of the career-offender guideline? Johnson, 135 S.Ct. at 2448. Courts had “trouble making sense” of the very same words when they tried to apply them under the ACCA’s residual clause. Id. at 2559-60. The Supreme Court observed that “[n]ine years’ experience trying to derive meaning from the residual clause convince[d it] that [it] ha[d] embarked upon a failed enterprise.” Id. at 2560. This “ ‘black hole of confusion and uncertainty’ that frustrates any effort to impart ‘some sense of order and direction,’ ” id. at 2562 (quoting United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011) (Agee, J., concurring)), does not somehow magically become clearer or more meaningful because the words appear in the guideline, rather than in the ACCA.

Because of this muddle, a sentencing court cannot ascertain whether the challenged part of the career-offender guideline even applies when the guideline is raised, so the court necessarily cannot correctly calculate the Sentencing Guidelines range. As a result, the sentencing court cannot comply with the sentencing process’s virtual statutory requirement that the sentencing court first correctly calculate the applicable Guidelines range.

And, as Judge Wilson notes, the confusion only grows on appeal. Determining whether a sentence imposed by a district court was procedurally reasonable requires appellate courts to first ascertain whether the district court correctly calculated the applicable Guideline range. But we are no more skilled in applying “hopeless[ly] indeterminate]” language than district courts.

C.

Finally, with regard to the third part of the Matchett panel’s analysis — that the Sentencing Guidelines cannot be challenged as vague because no constitutional right to sentencing guidelines exists — I again respectfully disagree. True, “legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). But legislatures cannot, as Matchett would apparently hold, cabin the sentencing discretion of judges by mandating that they calculate a defendant’s sentence using unconstitutionally vague language.

This would be another case entirely if sentencing judges could choose to wholly disregard the unconstitutionally vague career-offender guideline in calculating sentences. They cannot. Instead, district courts must begin the sentencing process by correctly calculating a defendant’s Guidelines range. Peugh, 133 S.Ct. at 2083. Under Matchett, that means that Congress has essentially required district courts to apply unconstitutionally vague language in sentencing defendants. But it could not do that. Due process may not require sentencing guidelines, but it does prohibit Congress from requiring judges to apply unconstitutionally vague language in correctly calculating a defendant’s sentence under any guidelines it chooses to enact.

II.

At bottom, statutorily, courts are required to begin every sentencing by correctly calculating the Guidelines range. Yet the Supreme Court has recognized that courts cannot reliably know whether the challenged language of the career-offender Guideline applies in any given case. As a result, they cannot possibly know whether a correct calculation of the Guidelines range should or should not include such an enhancement. 'But in Matchett, we nonetheless required sentencing courts to impose the enhancement and ourselves to uphold it, anyway. Trying to divine meaning from the word salad that is the challenged portion of the career-offender guideline guarantees an arbitrary and unfair sentencing process in violation of due process. For this reason, I respectfully disagree with our holding in Matchett.

JILL PRYOR, Circuit Judge,

concurring, joined by WILSON and ROSENBAUM; Circuit Judges:

The Supreme Court has told us that it violates the Constitution’s guarantee of due process to fix a sentence based on a person’s having committed a prior violent felony defined as “involv[ing] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (containing the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”)); Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (striking the residual clause as unconstitutionally vague). This definition of “violent felony,” the Supreme Court said, is “so shapeless a provision” that any attempt “to derive meaning from” it necessarily will be “a failed enterprise.” Johnson, 135 S.Ct. at 2560.

Since the Supreme Court decided in Johnson that this language is unconstitutionally vague, we have repeatedly misinterpreted and misapplied that decision. We have made the most errors in the- context of the Sentencing Guidelines. The Sentencing Guidelines’ career offender enhancement, just like the ACCA, applies when a defendant sentenced in federal court has been convicted of three violent felonies. U.S.S.G. §§ 4B1.1, 4B1.2(a)(2) (amended 2016). Just like the ACCA, which lengthens a defendant’s maximum sentence of 10 years’ imprisonment to a minimum sentence of 15 years, the career offender enhancement has the effect of significantly increasing a defendant’s sentence. Sometimes, as a result of a defendant’s status as a career offender, his sentence more than doubles. Hundreds of applicants have asked this Court for the opportunity to request relief from the district court because they were subject to a much higher sentence due to 13 words the Supreme Court has held to violate an individual’s constitutional rights. But we nonetheless must deny these individuals the opportunity to even bring their claims to the district court’s attention because this Court has erected barriers to relief despite the Supreme Court’s unambiguous holding ' in Johnson.

II.

In throwing up these sorts of barriers, this Court consistently got it wrong. For starters, shortly after Johnson was decided, a panel of this Court limited severely the reach of that ruling by making relief unavailable to any inmate who previously had filed a motion to vacate his sentence under 28 U.S.C. § 2255. See In re Rivero, 797 F.3d 986 (11th Cir. 2015). The Supreme Court explained over a decade ago that a new substantive rule of constitutional law is retroactively applicable to cases under review in habeas proceedings. Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (applying Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). The Rivero panel acknowledged that in Johnson the Supreme Court announced a new substantive rule of constitutional law. 797 F.3d at 989.

But the panel refused to apply Johnson retroactively for two separate, newly formulated reasons. First, the panel held that Johnson could not be retroactively applicable, even to ACCA cases like Johnson itself, because “Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.” Id. at 991. And second, the Rivero panel held that for Johnson’s rule to be retroactively applicable to the career offender enhancement in the sentencing guidelines, under which Gilberto Rivero had been sentenced, the Supreme Court must also have held specifically that the guidelines are subject to vagueness challenges (which it had not). Id.

The Rivero panel’s holdings contradicted what the Supreme Court had already told us about retroactivity principles. And the panel provided no basis in Supreme Court precedent to justify these two newly minted barriers to relief for those sentenced based upon language the Supreme Court had just told us was unconstitutionally vague. As to the first holding, the Supreme Court previously implicitly rejected the idea that the prospect of Congressional intervention could limit the retroactive applicability of a new substantive rule. As to the second holding in Rivero, nothing in the Supreme Court’s body of retroactivity law so much as hinted at a requirement beyond what Justice O’Connor described in Tyler v. Cain: “[I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review.” 533 U.S. 656, 668-69, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (O’Connor, J., concurring); see In re Holladay, 331 F.3d 1169, 1172-73 (11th Cir. 2003) (applying Justice O’Connor’s test to hold that the' Supreme Court had “made” the rule announced in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), barring the execution of intellectually disabled persons, retroactively applicable). Although the Rivero panel acknowledged that Justice O’Connor’s retroactivity test applied, it failed to employ the test as Justice O’Connor constructed it.

Nonetheless, because of Rivero, from August 2015 until April 2016 we denied relief to every inmate whose Johnson-based request to file a-second or successive § 2255 motion we decided. We even continued to deny inmates the opportunity to seek relief after the Supreme Court accepted certiorari in a case in which it would decide the issue of Johnson's retro-activity. See Welch v. United States, — U.S.-, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016) (granting petition for certiorari).

In Welch, the Supreme Court told us that we were wrong to hold that the rule announced in Johnson did not apply retroactively. 136 S.Ct. 1257, 1268 (2016). Welch was a case from our Circuit. Mr. Welch had filed a first § 2255 motion before Johnson was decided, challenging his ACCA sentence, which was based on the residual clause of that statute. Id. at 1263. The district court denied Mr. Welch relief, and he sought a certificate of appealability (“COA”) from this Court. Id. Even though he notified our Court that Johnson was pending in the Supreme Court and requested that his motion be held pending the Supreme Court’s decision, his motion for a COA was denied. Id. “Less than three weeks later,” the Supreme Court observed in overruling us on Johnson’s retroactivity, “this Court issued its decision in Johnson.” Id. We had denied Mr. Welch any opportunity for relief knowing that Johnson soon would be decided.

The Supreme’ Court in Welch flatly rejected this Court’s Rivero holding that Johnson’s, rule was not retroactive. It noted that it had already rejected the argument that its decisions might not be retroactively applicable if Congress could “enact a new version of the residual clause that imposes the same punishment on the same persons for the same conduct, provided the new statute is precise enough to satisfy due process.” Id. at 1267; see Rivero, 797 F.3d at 991 (relying upon this reasoning). The “clearest example” the Court pointed out, was its prior decision in Bousley, which held a new rule to be retroactive “even though Congress could -(and later did) reverse [the rule announced in] Bailey by amending the statute.” Welch, 136 S.Ct. at 1267 (emphasis added); see supra note 3.

Welch was an ACCA case, and it did not speak to the guidelines. But the Supreme Court issued another decision this term that fatally undermines the Rivero panel’s alternative holding too. See Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Remember, the Rivero majority acknowledged that the Johnson rule was a new substantive rule of constitutional law. 797 F.3d at 989. In Montgomery, the Supreme Court stated in no uncertain terms that “courts must give retroactive effect to new substantive rules of constitutional law.” 136 S.Ct. at 728 (emphasis added). So although the Rivero panel required that for Johnson’s rule to apply retroactively to the guidelines there be a third case holding that the guidelines could be void for vagueness, Montgomery reminded us that the inquiry is simpler. By the Rivero panel’s own analysis, the Johnson rale was a new substantive rule of constitutional law. Under Montgomery, that means the rule must be given retroactive effect. Montgomery ends the analysis there. In short, we were wrong again.

III.

Even before the Supreme Court could decide Montgomery or Welch, this Court erected yet another barrier to relief for individuals who were sentenced under the very words the Johnson Court struck as unconstitutional. In United States v. Matchett, a panel of this Court held that the rule in Johnson did not apply to individuals sentenced under the advisory guidelines because those guidelines are not subject to the Due Process Clause’s vagueness doctrine. 802 F.3d 1185, 1193-94 (11th Cir. 2015). For the reasons articulated in Judge Wilson’s and Judge Rosenbaum’s concurrences in this case, I believe Match-ett was wrongly decided. In my view, which I share with my colleagues, Match-ett’ s holding was not grounded in the Constitution, the text of the career offender guideline, or any other solid legal foundation. Rather, the Matchett panel simply decreed that the advisory guidelines, unlike the ACCA, do not “fix punishments” and therefore are not subject to the limitations of due process. Id. at 1195. But in yet another case this term, the Supreme Court underscored that “the Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar.” Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). “The Guidelines inform and instruct the district court’s determination of an appropriate sentence. In the usual case, then, the systemic function of the selected Guidelines range will affect the sentence.” Id.; see also id. at 1349 (“[The guidelines] serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence.”). By any honest reading, the guidelines fix punishments. As such, in my view, their application must comport with due process.

Matchett’s reach in this Circuit is extensive. Now, no person whose advisory sentencing guidelines range was affected by the clause the Supreme Court held to be unconstitutionally standardless in Johnson may obtain relief, no matter how long he has been incarcerated or how diligently he has tried to preserve his claims. Bewilderingly, the Matchett panel erected this barrier even though the United States — the party responsible for the continued incarceration of career offenders — agreed with Mr. Matchett that the residual clause of the career offender guideline was unconstitutionally vague in light of Johnson. See Matchett, 802 F.3d at 1194.

IV.

This Court’s penchant for deciding these fundamentally important issues in orders on requests for authorization to file — in the absence of any substantive, adversarial briefing — is frustratingly familiar. We have received over 1,800 requests for authorization to file a second or successive § 2255 motion.since Welch was decided. When an inmate makes such a request, we do not receive briefing from the parties. In nearly all of these cases, we never hear from the government. And at best, we receive a skeletal description of claims from the movant. At least as troublingly, the decisions we make are almost completely insulated from review. I believe that in light of the limited time and resources we have to grant or deny authorization and the effective finality of our decision if we deny it, we should avoid making new substantive law in this procedural context.

Unfortunately, not all of my colleagues share my'view. In fact, a panel of this Court recently extended Matchett’s holding to cover individuals sentenced when the guidelines were mandatory rather than merely advisory. See In re Griffin, No. 16-12012, 823 F.3d 1350, 2016 WL 3002293 (11th Cir. May 25, 2016). I have previously expressed my view of why this decision was deeply flawed. See In re Sapp, No. 16- 13338, 827 F.3d 1334, 1336-41, 2016 WL 3648334, at *2-7 (11th Cir. 2016) (Jordan, Rosenbaum, and Jill Pryor, concurring). This is not the only time since Johnson was decided that we have taken a previous decision of our Court and extended it in the successive § 2255 motion context without any adversarial testing or opportunity for further review. See In re Williams, Nos. 16-13013, 826 F.3d 1351, 1356, 2016 WL 3460899, *4 (11th Cir. 2016) (extending the “concurrent sentence doctrine,” a rule the Supreme Court long ago said offers nothing more than “a rule of judicial convenience,” to the second or successive § 2255 motion context); In re Hires, No. 16-12744, 825 F.3d 1297, 1301-02, 2016 WL 3342668, *4 (11th Cir. June 15, 2016) (extending the holding in Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), that a conviction under Florida’s aggravated assault statute qualifies as a violent felony to the post-Johnson context without analyzing whether it qualifies notwithstanding Johnson and other Supreme Court precedent since Turner that would bear on the issue).

Instead of blazing new trails in the second or successive § 2255 motion context, the only issue we should decide is whether, under our existing precedent, the applicant has made a prima facie showing that his sentence was based on crimes that met the ACCA’s definition of “violent felony” before Johnson but no longer do.

V.

When it comes to Matchett, we soon may be told we are wrong again. On the last day of this year’s term, the Supreme Court accepted certiorari in Beckles v. United States, No. 15-8544, — U.S.-, 136 S.Ct. 2510, 195 L.Ed.2d 838, 2016 WL 1029080 (U.S. June 27, 2016). Beckles is yet another Johnson case that originated in this Circuit. This time, the petitioner was sentenced as a career offender under the advisory guidelines rather than under the ACCA. So the Supreme Court, in deciding Beckles, the Supreme Court will decide the very issue that Matchett concerns.

If we simply asked whether, on our existing precedent, the applicant has made a prima facie showing that his sentence was based on crimes that met the definition of “violent felony” before Johnson but no longer do, we undoubtedly would be granting authorization to file second or successive § 2255 motions in more cases. At least then these many individuals who may be serving unconstitutional sentences would have a shot at meaningful review, first in the district court and then in this Court on appeal (and maybe even ultimately in the Supreme Court).

I recognize that the number of requests for authorization we have received in the wake of Johnson has been extremely taxing on our Court. We have been inundated with thousands of filings in addition to our regular court work. And I understand that published orders from this Court that categorically foreclose relief to whole groups of individuals, like Matchett and Griffin, may lessen that burden on district courts, too. But such prudential concerns are not reasons to refuse to remedy constitutional violations. As judges we are not sworn to shield district courts; rather, we are sworn to uphold the Constitution and vindicate the individual rights that the Constitution protects.

If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett. I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.

      . 576 U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

      . 824 F.3d 1334, No. 16-12454, 2016 WL 3189822 (11th Cir. June 8, 2016).

      . 802 F.3d 1185 (11th Cir. 2015).

      . Hines is an order that denied an application like Hunt’s. That means Hines, like thousands of cases post -Johnson, was decided without briefing, without the benefit of a complete record, and is not appealable. See In re McCall, 826 F.3d 1308, No. 16-12972, 2016 WL 3382006 (11th Cir. June 17, 2016) (Martin, J., concurring) (Orders like Hines "are typically based on nothing more than a form filled out by a prisoner, with no involvement from a lawyer."). Yet, Hines is binding precedent, and we follow it here. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015).

      . United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      . United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      . United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015).

      .To be clear, our review of applications like Hunt's is extremely limited. See In re McCall, 826 F.3d at 1311, No. 16-12972, (Martin, J„ concurring) ("Congress did not authorize us to decide the merits of [cases like Hunt’s] in the first instance.”). I write solely to explain why I believe Matchett was wrongly decided. I do not opine on the merits of Hunt’s claims.

      . In fact, the Supreme Court recently concluded that, "[i]n the usual case ... the systemic function of the selected Guidelines range will affect [a defendant's] sentence.” Molina-Martinez, 136 S.Ct. at 1346. It follows that a vague provision — by causing appellate and district courts to arbitrarily determine Guidelines ranges — will have a "real and pervasive effect” on defendant outcomes. See id.

      . If the Guidelines calculation error in Molina-Martinez that resulted in a difference of 7 months' imprisonment on the low end of the Guidelines range constitutes a "significant procedural error,” so too must an error in the application of the career-offender Guideline, which can double and sometimes even triple the otherwise-applicable Guidelines range.

      . The ACCA enhancement applies when a person convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), previously has been convicted of three violent felonies or serious drug offenses. The career offender enhancement applies when a person convicted of a violent felony or drug offense previously has been convicted of two such offenses. Either way, three convictions are required to impose an enhancement.

      . Teague set forth a general principle that new rules of law should not be applied retroactively. See Summerlin, 542 U.S. at 351-52, 124 S.Ct. 2519. New substantive rules, however, do apply retroactively. Id. at 352, 124 S.Ct. 2519.

      . See Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In Bousley, the Supreme Court declined to apply the general principle that new rules are not retroactive. Id. at 619-21, 118 S.Ct. 1604. Kenneth Bousley was convicted in 1990 of "using” a firearm in violation of 18 U.S.C. § 924(c)(1). Id. at 616, 118 S.Ct. 1604. After the Eighth Circuit affirmed his conviction, Mr. Bousley filed for collateral relief. Id. at 617, 118 S.Ct. 1604. While his appeal from the district court's denial of habeas relief was pending, the Supreme Court held in Bailey v. United States that § 924(c)(l)’s “use” prong required the government to prove “active employment of the firearm.” 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because Mr. Bousley contended that he merely possessed a firearm during his offense, he argued based on Bailey that his conduct failed to qualify under § 924(c). Bousley, 523 U.S. at 617-18, 118 S.Ct. 1604. Amicus, arguing against retroactivity (because the government agreed with Mr. Bousley that he could benefit from Bailey's rule) urged the Supreme Court to apply a Teague bar to Mr. Bousley's claim. The Supreme Court declined, holding that Bailey necessarily was available to Mr. Bous-ley on collateral review because Bailey announced a new substantive rule. Id. at 620-21, 118 S.Ct. 1604; see United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002) (citing Bousley for the proposition that "[d]ecisions of the Supreme Court construing substantive federal criminal statutes must be given retroactive effect”). As I explained in dissent in Rivero, Congress was in the process of amending § 924(c)(1) to recriminalize the conduct the Court in Bailey held to fall outside the statute’s scope. Rivero, 797 F.3d at 999 (Jill Pryor, J., dissenting). Ultimately, the .so-called “Bailey Fix Act” passed, but this had no bearing on the Supreme Court's retro-activity decision in Bousley. Id. at 999-1000.

      . We apparently were the only Circuit in the nation to have routinely refused to hold in abeyance inmates' applications pending the Welch retroactivity decision. See Brief of the Federal Public and Community Defenders and the National Association of Federal Defenders as Amici Curiae in Support of Petitioner, at 4 n.3, Jones v. United States, No. 15-8629 (U.S. April 21, 2016).

      . And, of course, had Mr. Welch sought permission from us to file a second § 2255 motion based on Johnson, we would have denied him based on Rivero.'

      . The Rivero panel’s observation that the guidelines must also be subject to a vagueness challenge in order for Mr. Rivero to obtain relief is not wrong (although I disagree with Rivero's suggestion, later born out in Match-ett, that the guidelines cannot be unconstitutionally vague). Rather, the observation was wrongly imported into the retroactivity analysis. That inquiry belongs instead in an examination of whether any particular inmate has a meritorious Johnson claim. There is no prece-dential support for the proposition that these two inquiries somehow are related.

      . By my rough calculation, approximately one third of inmates making such requests were seeking relief from their guidelines-based sentences.

      . See 28 U.S.C. § 2244(b)(3)(E) ("The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”).

      . Benton v. Maryland, 395 U.S. 784, 789-91, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Cf. In re Leonard, Nos. 16-13528, 16-13804, 16-13857, slip op. at 29-30 & n. 11, 655 Fed.Appx. 765, 778 & n. 11, 2016 WL 3885037 (11th Cir. July 13, 2016) (Martin, J„ concurring) (explaining that the question in the context of a request for authorization to file a successive § 2255 motion "should simply be whether [an inmate's] sentence was based on crimes that met ACCA’s 'violent felony' definition before Johnson but no longer do,” and noting that the answer "should be 'no' only if a sentence clearly was based on 'serious drug offenses' or crimes that we have held are 'violent felonies’ after Johnson” in light of facts the sentencing court found).