author: ROVNER, Circuit Judge.

text:
    Jason OSTBY and Jill Ostby, individually and as next friends of Jacob O., a minor, Plaintiffs-Appellants, v. MANHATTAN SCHOOL DISTRICT NO. 114, Defendant-Appellee.
    No. 16-1901.
    United States Court of Appeals, Seventh Circuit.
    Argued December 5, 2016
    Decided March 16, 2017

      Pamela R. Cleary, Attorney, Cleary Law Office, Gary, IN, Corbin Fowler, Attorney, Hammond, IN, for Plaintiffs-Appellants.
    Laura Sinars, Emily Bothfeld, Attorneys, Robbins, Schwartz, Chicago, IL, for Defendant-Appellee.
    Before EASTERBROOK and ROVNER, -Circuit Judges, and SHADID, District Judge.

       The Honorable James E. Shadid, of the Central District of Illinois, sitting by designation.

   ROVNER, Circuit Judge.

Jason and Jill Ostby sued Manhattan School District 114 (“District”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“Act”), for review of an administrative decision regarding their son’s individualized educational program. With the exception that we note below, we vacate the district court’s judgment and remand the case with directions to dismiss it as moot.

I.

The Act is designed “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). In order to implement this goal, the Act provides for the evaluation of disabled children and the development of an individualized education program (“IEP”) for each disabled child. The IEP is a written statement that is developed, reviewed and periodically revised in accordance with the Act. 20 U.S.C. § 1414(d)(1)(A)®. It documents the child’s present levels of academic achievement and functional performance; provides a list of measurable annual goals; describes how the child’s progress towards the goals will be measured; and presents a statement of the special education and related services to be provided to the child, among other things. 20 U.S.C. 1414(d)(1)(A).

The Ostbys’ son, Jacob, has been diagnosed with Attention Deficit Hyperactivity Disorder and Disruptive Mood Dysregulation Disorder. As a result of these disorders, he struggles with self-management, behavior regulation and social skills. Consequently, he requires an IEP and has received IEPs since he began attending pre-school at the age of four. In his preschool and kindergarten years, Jacob’s parents sometimes requested additional testing or changes to the services provided to Jacob under his IEP. At times, the parents obtained private evaluations of their son’s condition at their own expense. For his first year of kindergarten, Jacob was placed in the early childhood special education classroom. When he repeated kindergarten, he was moved to a general education classroom with additional support services. Jacob’s second year of kindergarten was marked by a number of behavioral disturbances and recommendations by the District to change Jacob’s placement and services. His parents disagreed with some of these recommendations and Jacob was allotted additional support services instead. By January 2014, the Ost-bys had opted to file a due process complaint, a mechanism in the Act for parents to initiate an administrative hearing process to resolve disputes surrounding IEPs. 20 U.S.C. § 1415(b).

Near the end of that school year, on March 26, 2014, after additional testing, the Ostbys and the psychologist they hired to evaluate Jacob met with the District to develop a new IEP. As a1 result of that meeting, some of Jacob’s services were discontinued and a Behavioral Intervention Plan was adopted. The District also recommended that Jacob’s placement be changed from the general education setting to the Social Emotional Learning Foundations program (“SELF program”). Jacob’s parents objected to the SELF program placement and it was not adopted at that time. With approximately twenty days left in the school year, Jacob struggled with the new Behavioral Intervention Plan.

On June 5, 2014, as the school year ended, the parties reconvened to discuss Jacob’s IEP. As a result of this meeting, the District again recommended that Jacob be placed in the SELF program for first grade, his parents again objected and the District sought to place Jacob in the SELF program over his parents’ objections. The SELF program is a restricted form of education that is not part of a mainstream classroom. Moreover, the SELF program was housed at a different school in a different school district. One goal of the Act is to educate disabled children in the least restrictive environment:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily-

20 U.S.C. § 1412(a)(5)(A). Jacob’s parents believed that the SELF program was more restrictive than necessary and that he should remain in the general education setting in his home district.

When parents object to a new placement and file a due process complaint, a “stay-put” provision in the Act maintains the status quo of the child’s placement until the complaint has been fully resolved. 20 U.S.C. § 1415Q) (“during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child- shall remain in the then-' current educational placement of the child, ... until all such proceedings have been completed.”). As a result of the stay-put provision, Jacob was never moved to the SELF program. As the administrative process progressed through hearing, decision, and appeal, Jacob remained in the general education setting with support services in place. After the administrative process resulted in a ruling in favor of the District, the Ostbys filed suit in the district court, seeking review of the decision. The district court upheld the administrative decision, concluding that the District met the Act’s substantive requirement of providing Jacob with a free appropriate public education when it decided that placement in the SELF program for first grade was the least restrictive environment that would meet that goal. The court also ordered the District to reimburse the Ostbys for certain expenses they incurred in having Jacob evaluated. The Ostbys appeal.

II.

In their appeal, the Ostbys contend that the district court erred when it found that the District’s placement of Jacob in the SELF program complied with the Act’s “least restrictive environment” requirement. The District continues to defend Jacob’s first-grade placement in the SELF program and urges this court to affirm the district court’s grant of summary judgment in favor of the District. The district court’s opinion granting judgment in favor of the District indicated that, as of a December 2015 status hearing, “a general consensus [was] thankfully emerging among the parties regarding Jacob’s placement and educational plan going forward.” R. 120, at 17-18. At oral argument, we asked the parties if an agreement on Jacob’s placement had in fact been reached and whether that agreement rendered the appeal moot. The parties' represented that they had agreed to a new IEP for Jacob’s third grade year and it did not include placement in the SELF program. We ordered supplemental briefing on the issue of mootness.

As a result of that briefing, we now know that, as the Ostbys’ complaint moved through the system, Jacob progressed through school, completing first and second grade at his home school in the general education setting because of the stay-put provision. Jacob is now in third grade at a different school in the same District; his prior school housed students only through second grade. The District and the Ostbys have reached an agreement regarding Jacob’s IEP and his placement in general education for third grade, and the District has no pending proposal to move Jacob to the SELF program. Even though Jacob is now in third grade and the District claims to have no present intention of transferring him to the SELF program, the District nevertheless continues to defend its decision to place Jacob in the SELF program for first grade. And even though they have now agreed to a new IEP for third grade, the Ostbys continue to challenge the District’s decision to place Jacob in the SELF program in first grade.

The Ostbys maintain that the appeal is not moot because (1) this court has the power to redress Jacob’s past injuries by an award of attorneys’ fees; (2) the court can prevent future harm to Jacob by rejecting the SELF placement as suitable; and (3) the case falls into the exception for injuries that are capable of repetition but evading review because the District is likely to revisit its decision to transfer Jacob into the SELF program in the future.

Article III of the Constitution limits our jurisdiction to actual, ongoing cases or controversies. Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); Board of Educ. of Downers Grove Grade Sch. Dist. 58 v. Steven L., 89 F.3d 464, 467 (7th Cir. 1996).- This requirement applies through all stages of federal judicial proceedings; to sustain jurisdiction, it is not enough that the dispute was alive when the case was filed or when 'an appeal was taken. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); Honig, 484 U.S. at 317-18, 108 S.Ct. 592; Steven L., 89 F.3d at 467. The parties must continue to have a personal stake in the outcome of the lawsuit. Lewis, 494 U.S. at 478, 110 S.Ct. 1249. “To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis, 494 U.S. at 477, 110 S.Ct. 1249. See also Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006) (a case becomes moot when a court’s decision can no longer affect the rights of litigants in the case and simply would be an opinion advising what the law would be upon a hypothetical state of facts).

The Ostbys cannot meet this standard at this stage of the litigation because there is no longer an injury that can be redressed by a favorable decision. Jacob is no longer in first grade and is no longer subject to the challenged IEP. More importantly, the Ostbys and the District have now agreed that the general education setting is appropriate for Jacob, and the District has no present intention to transfer him to the SELF program. The parties have agreed to an IEP for his third grade year in his new school. A finding that the district court erred in affirming the appropriateness of Jacob’s first grade IEP would offer him no relief at this stage. See Brown, 442 F.3d at 596 (in an action seeking only injunctive relief, once the threat of the act sought to be enjoined dissipates, the suit ordinarily must be dismissed as moot); Lillbask ex rel. Mauclaire v. Connecticut Dept. of Educ., 397 F.3d 77, 83-84 (2d Cir. 2005) (where a student advances with peers under a stay-put order, and the school district concedes after the lifting of stay-put order that the parents’ preferred placement is now appropriate, there is no longer a live controversy).

Nor is Jacob’s case subject to the exception to the mootness doctrine for cases “capable of repetition, yet evading review.” Kingdomware Techs., Inc. v. United States, — U.S. -, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). That exception applies only in limited circumstances:

where (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.

Lewis, 494 U.S. at 481, 110 S.Ct. 1249; Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). In this case, the District concedes that the IEP recommendation that Jacob be placed in the SELF program was, by its nature, too short in duration to be fully litigated prior to its cessation or expiration. See Honig, 484 U.S. at 322, 108 S.Ct. 592 (acknowledging that administrative and judicial review under the Education of the Handicapped Act is often “ponderous,” taking a number of years to reach resolution); Brown, 442 F.3d at 599 (“Because IEP challenges usually endure longer than the nine-month school year, most circuits hold that the first, durational element of the mootness exception is satisfied in these cases.”). The first part of the exception is therefore met.

The question, then, is whether there is a reasonable expectation that Jacob will be subject to the same action again. The Ostbys rely on Honig to demonstrate that the injury here is capable of repetition. In Honig, the Supreme Court addressed a challenge to a state-wide policy that allowed schools to unilaterally change the placement of a child for conduct growing out of the child’s disability. Honig, 484 U.S. at 318-20, 108 S.Ct. 592. For example, under California’s state-wide policy, a school could suspend or expel a student for behavioral incidents arising from the student’s disability. Of the two plaintiffs in Honig, one had aged out of the school system entirely during the pendency of the litigation, and the Court concluded that the case was moot as to that student. 484 U.S. at 318, 108 S.Ct. 592. The other student, however, remained eligible for another year of school in the State’s system. The nature of his disability made it likely that he would continue to engage in disruptive conduct at school. And the State, throughout the litigation, continued to insist that all local districts retained the residual authority to exclude disabled children for dangerous conduct. In that instance, where the student was likely to engage in the same conduct and the State held to its policy position, the Court determined that there was a reasonable expectation that the student would once again be subjected to a unilateral change in placement for conduct growing out of his disabilities. 484 U.S. at 318-20, 108 S.Ct. 592. See also Brown, 442 F.3d at 599 (in assessing whether there is a reasonable likelihood that school officials would subject a student to the same action again, courts consider (1) the nature of the student’s disability, and (2) the school officials’ insistence on their right to unilaterally take the same action).

The Ostbys argue that Jacob continues to suffer from disabilities that result in impairments to his behavior and mood, and he continues to be educated pursuant to IEPs that are revised at least annually. Although he has changed schools, he is in the same District. The Ostbys assert that Jacob is therefore highly .likely to be faced with a SELF program placement issue again. A ruling that the SELF program placement was inappropriate could prevent fdrther injury, they contend. They also point out that the District has not formally settled the case; it has simply agreed to a new IEP and says that it has no present intention of changing Jacob’s placement.

It is true that Jacob suffers from disabilities that can be expected to continue to cause impairments to his behavior and mood. However, unlike the State in Honig, which continued to defend the applicability of its policy in the future, the District here now agrees that there is no need to place Jacob in the SELF program. His current IEP does not include a SELF program placement and his parents are in agreement with the District on his current placement. That makes his case more akin to Lillbask and Brown than Honig. In Lillbask, the defendants expressly represented to the court that they had “no present intent to remove [the student] from his mainstream educational environment” to a program in a different district. 397 F.3d at 88. The student argued that, despite the defendants’ present concession about the propriety of the student’s placement in his home district, the defendants could not demonstrate that his challenge to his prior IEP “is moot because defendants may, in formulating some future IEP, again attempt to place” the student at a private special education facility. 397 F.3d at 88. The court held that this possibility was not enough to save the case from mootness:

The possibility of such a move exists in the case of every disabled child who is presently in a mainstream classroom and for whom a new IEP must be prepared annually. A plaintiff must point to something more in the record to lift that possibility beyond the speculative.

Lillbask, 397 F.3d at 88 (italics in original). As in Lillbask, the Ostbys point to nothing in the record to call into question the sincerity of the District’s declaration that it has no intention to move Jacob into the SELF program. Instead, the parties’ agreement on Jacob’s current IEP suggests that a proposal to transfer Jacob from a mainstream educational environment is not reasonably likely to occur. Lillbask, 397 F.3d at 89.

In Brown, a student with autism who challenged an IEP moved to another district during the pendency of the litigation. His parents then agreed to a new IEP in the new district. We considered whether the case became moot or whether it fell under the “capable of repetition yet evading review” exception to the mootness doctrine. We concluded that the case was distinguishable from Honig and was moot:

Here, Bobby’s autism presents an evolving set of challenges for educators, one that requires his IEP to be periodically revised. What was right for Bobby in kindergarten may not be the proper educational program when he enters the third grade. The dispute over the 2002-2003 IEP turned on whether Bobby was ready for full-time mainstream class. Now, as a nine-year old, Bobby’s readiness for mainstream education presents a different question calling for reassessment of his educational development. Were we to decide, at this later date, whether mainstreaming was right for Bobby back in 2002-2003, we would be issuing, in effect, an advisory opinion. Our decision would merely tell the parties who was correct about Bobby’s outdated IEP. It would do nothing to define the contours of the parties’ continuing legal relationship under the IDEA such that future repetitions of the injury could be avoided. The case therefore must be dismissed as moot.

Brown, 442 F.3d at 599-600. Jacob’s circumstances are virtually indistinguishable from those in Brown and Lillbask. We must similarly conclude that his appeal is moot.

Nor is the possible availability of attorneys’ fees enough to keep the case alive under these circumstances. Under the Act, a court may, in its discretion, award attorneys’ fees to a prevailing party who is a parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B). The term “prevailing party” under section 1415(i)(3)(B) has the same meaning as the phrase does in 42 U.S.C. § 1988. Board of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 382 (7th Cir. 2000). A party prevails if he or she obtains relief on the merits through an enforceable judgment, consent decree or settlement that materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff. Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Nathan R., 199 F.3d at 382. The term “prevailing party” does not include a party that achieves the desired result without a judgment on the merits or a court-ordered consent decree but because the lawsuit brought about a voluntary change in the defendant’s conduct. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

Once a case is moot, we cannot consider the merits of the district court’s decision to determine whether the parents are prevailing parties for the purpose of assessing attorneys’ fees. Nathan R., 199 F.3d at 381 (“Because we would need to consider the merits to determine whether the Parents are prevailing parties, we agree that we cannot decide whether the Parents would be entitled to attorneys’ fees from the proceedings in the district court.”); Steven L., 89 F.3d at 468 (“Because this case is moot, we cannot consider the merits of the district court’s memorandum opinion and order. To do so would be to issue an advisory opinion solely to determine who prevailed.”). The Ostbys did not prevail before the district court and we may not consider the merits of that decision solely for the purpose of determining their entitlement to attorneys’ fees. To the extent that they achieved what they were seeking when the District eventually agreed that the SELF program placement was no longer appropriate going forward, that informal and voluntary agreement does not render them a prevailing party under Buckhannon.

Nor are the Ostbys entitled to attorneys’ fees for the relief they obtained from the application of the stay-put provision during the pendency of the administrative process. Because they initiated the administrative process and invoked the stay-put provision, Jacob was able to stay in his preferred educational placement until the parties reached agreement on a new IEP that did not include placement in the SELF program. But “this de facto ‘win’ does not rise to the level of an enforceable judgment, consent decree, or settlement that materially alters the relationship between the parties.” Nathan R., 199 F.3d at 382. The relief achieved was only interim in nature, and “this circuit previously has held that the receipt of interim relief does not qualify a party for attorneys’ fees.” Nathan R., 199 F.3d at 382. See also Steven L., 89 F.3d at 469 (attorneys’ fees may not be awarded for interim relief). And in any case, informal relief, provided voluntarily by the defendant, does not entitle the parents to prevailing party status under Buckhannon. See also Steven L., 89 F.3d at 469 (where the parents’ only ultimate victory is the invocation, of the stay-put provision, and the outcome of the suit results in no enforceable obligations for the school district, the parents cannot be considered to have substantially prevailed). There is therefore no relief that this court could grant and the appeal challenging Jacob’s first-grade placement in the SELF program is moot.

However, there is one part of the underlying case that is not moot. In addition to challenging the District’s decision to place Jacob in the SELF program, the Ostbys also sought reimbursement for private evaluations of Jacob. The district court awarded the Ostbys $3126.10 for that claim and the District did not challenge that ruling on appeal. That part of the district court’s judgment is not moot and remains intact on remand. See Brown, 442 F.3d at 596 (where a plaintiff seeks monetary damages, his case is not moot even if the underlying misconduct that caused the injury has ceased). In every other respect, we vacate the district court’s judgment and remand the case with directions to dismiss it as moot. Each party shall bear their own costs on appeal.

VACATED AND REMANDED IN PART.


source: Caselaw Access Project

author: MANION, Circuit Judge. POSNER, Circuit Judge,

license: Public Domain

text:
    McKinley KELLY, Applicant, v. Richard BROWN, Respondent.
    No. 17-1244
    United States Court of Appeals, Seventh Circuit.
    Submitted February 6, 2017
    Decided March 16, 2017
    McKinley Kelly, Pro Se.
    Justin F. Roebel, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Respondent.
    Before WOOD, Chief Judge, POSNER, and MANION, Circuit Judges.
   MANION, Circuit Judge.

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110-year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, although set out as a term of years, they are in reality a life sentence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).

Because Kelly stated a possible claim to relief under Miller, we invited the State to respond, which it has done. It argues that Kelly cannot state a claim to relief under Miller because his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mitigation.

In resolving Kelly’s direct appeal, the Supreme Court of Indiana explained that IC § 35-50-2-3 set a presumptive sentence of 55 years for murder and allowed a sentencing. court to increase or decrease the presumptive sentence by no more than ten years for special circumstances. The court also was allowed to decide whether sentences for multiple convictions should run concurrently or consecutively. IC § 35-38-1-7.1. Kelly v. State, 719 N.E.2d 391, 394-95 (Ind. 1999). In other words, Kelly’s sentence could have been as low as 45 years (55 minus 10 for each count, with the two sentences running concurrently) or as high as 130 years (55 plus 10 for each count, with the two sentences running consecutively).

In Kelly’s case, counsel argued his age in mitigation, pressing hard on the fact that “[njobody is the same person when they’re 25 or 35 or 45 or whatever, that they were when they were 16,” and “[y]ou don’t know to what extent their conduct is the product of gross immaturity or whether there is something more missing.” (Sent’g Tr. at 1326-27.) The sentencing judge identified six aggravating circumstances:

(1) Kelly was on probation with the Juvenile Court at the time of the crimes;
(2) Kelly fired the first shot and his shots killed the first of three victims, setting the subsequent murders in motion;
(3) Kelly shot the victims at close range;
(4) the murders evince Kelly’s lack of respect for human life;
(5) there was a risk that Kelly would commit future crimes; and
(6) Kelly killed more than one person.

It then considered two mitigating conditions:

(1) Kelly was sixteen years old at the time of the offense and seventeen years old at the time of sentencing; and
(2) Kelly had no adult or felony convictions.

Kelly, 719 N.E.2d at 395. The Indiana Supreme Court affirmed Kelly’s sentence, holding that, “[djespite its long list of identified and recognized aggravating circumstances, the trial court imposed the presumptive, rather than an aggravated, sentence for each murder. The trial court properly outlined its reasoning for [Kelly’s] sentences, and adequately balanced the aggravating and mitigating circumstances with which it was presented.” Id. at 395.

We agree with the State: Kelly was afforded all he was entitled to under Miller. The sentencing court had considerable leeway in fashioning Kelly’s sentence and in fact considered his age when deciding on the appropriate term. Accordingly, we DENY authorization and DISMISS his application.

POSNER, Circuit Judge,

dissenting.

When McKinley Kelly was 16 years old, he shot and killed two people. Tried and convicted in an Indiana state court of the two 'murders, he was sentenced to 110 years in prison. Even if, as the State says, Kelly will be eligible for parole when he is 70, he nevertheless is effectively serving a life sentence. The ACLU of Michigan reports that the average life expectancy of an inmate sentenced to life in prison is 58 years; for African-Americans like Kelly the average life expectancy is 56; and for juveniles sentenced to life the average is 50½ years. See ACLU of Michigan, “Michigan Life Expectancy Data for Youth Serving Natural Life Sentences,” April 2013, http:// fairsentencingofyouth.org/wp-content/ uploads/2010/02/Michigan-Life-Expeetancy-Data-Youth-Serving-Life.pdf (visited March 15, 2017, as were the other websites in this opinion).

Kelly claims that his sentence is unconstitutional and that he therefore is entitled to be resentenced. We should authorize the district court to accept a second petition for a writ of habeas corpus from Kelly, to enable the validity of his claim to be determined.

The Supreme Court, in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), outlawed statutes that require judges to impose a life sentence without parole on a juvenile offender, defined as anyone who committed the crime (or. crimes) before his eighteenth birthday. Miller requires judges to give special consideration to the fact of youth and how it reflects on the culpability of the offender. For “children are constitutionally different from adults for purposes of sentencing ... because juveniles have diminished culpability and greater prospects for reform.” Id. at 2464. “[Yjouth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness, and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient.” Id. at 2467 (citations omitted); see also id. at 2468; Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016).

In 2015 the Department of Justice released data from a 7-year longitudinal study of more than 1,300 “serious juvenile offenders” — those who had committed felony-level violent, property, or drug crimes. See Laurence Steinberg et al., “Psychosocial Maturity and Desistance From Crime in a Sample of Serious Juvenile Offenders,” Office of Juvenile Justice and Delinquency Prevention, March 2015, www. ojjdp.gov/pubs/248391.pdf; Melissa Sick-mund and Charles Puzzanchera, eds., “Juvenile Offenders and Victims: 2014 National Report,” Ch. 3, National Center for Juvenile Justice, December 2014, www. ojjdp.gov/ojstatbb/nr2014/downloads/NR 2014.pdf. The Justice Department study revealed that more than 90 percent of juvenile offenders grow out of such antisocial behavior by young adulthood and do not re-offend after their first contact with a court — and that regardless of the sanction imposed on the child. Even after matching the subjects with the gravity of their offenses — whether they were incarcerated, placed in residential facilities, put on probation, or received community-based services — the vast majority did not re-offend; instead they grew up. Thomas A. Loughran et al, “Studying Deterrence Among High-Risk Adolescents,” August 2015, Office of Juvenile Justice and Delinquency Prevention, www.ojjdp.gov/pubs/ 248617.pdf. Researchers conclude that “most juvenile offending is, in fact, limited to adolescence” and that “the process of maturing put of crime is linked to the process of maturing more generally, including the development of impulse control and future orientation.” Steinberg et al., supra, at 1. The “signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside,” and generally does. Roper v. Simmons, 543 U.S. 551, 570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).

As a result of these insights, nineteen states now prohibit imposing a life sentence without parole on a juvenile, The Sentencing Project, “State Advances in Criminal Justice Reform, 2016,” p. 4, January 2017, www.sentencingproject.org/ publications/state-advances-criminal-justice-reform-2016; the incarceration of juveniles in both adult and juvenile facilities has fallen, Ashley Nellis & Marc Mauer, “What We Can Learn from the Amazing Drop in Juvenile Incarceration,” January 24, 2017, www.themarshallproject. org/2017/01/24/what-we-can-learn-from-the-amazing-drop-in-juvenile-inearceration#.tWDqrzgtg; and likewise the number of homicides committed by juveniles, “OJJDP Statistical Briefing Book,” Office of Juvenile Justice and Delinquency Prevention, May 2016, www. ojjdp.gov/ojstatbb/offenders/qa03105.asp? qaDate=2014.

Consistent with these trends, the Supreme Court concluded in Miller that a life sentence is unconstitutional for all but the “rare juvenile offender whose crime reflects irreparable corruption.” Miller v. Alabama, supra, 132 S.Ct. at 2469, quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); see also Montgomery v. Louisiana, supra, 136 S.Ct. at 733-34. Yet in sentencing Kelly the trial judge said, only one thing relating to his youth when he committed the murders: “The mitigating factors, as far as Mr. Kelly is concerned, is [the judge meant ‘are’] the fact that he’s 17 years old right now and [was] 16 years [old] at the time he committed this offense.” So cursory a statement does not evidence the deliberate reflection on Kelly’s character that would be necessary to conclude that he is “irretrievably depraved” and his “rehabilitation is impossible.” Roper v. Simmons, supra, 543 U.S. at 570, 125 S.Ct. 1183; Montgomery v. Louisiana, supra, 136 S.Ct. at 733. As far as the record reflects, Kelly is a typical youthful offender. We do not know the details of the fight that resulted in his shooting two people, but the judge found that the killings were not planned and were tragic for everyone involved, including Kelly. The judge mused that there “have always been disagreements among young people” and that what would have been a fist fight or a knife fight in years past, today has elevated consequences because of the ubiquity of guns; not the stuff of a crime demonstrating the complete depravity and irredeemability of Kelly.

We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.


author: MANION, Circuit Judge.

text:
    Sabina BURTON, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants-Appellees.
    No. 16-2982
    United States Court of Appeals, Seventh Circuit.
    Argued January 19, 2017
    Decided March 17, 2017

      Kimberly Laura Penix, Attorney, Aider-man Law Firm, Madison, WI, for Plaintiff-Appellant.
    Steven C. Kilpatrick, Attorney, Office of the Attorney General, Madison, WI, for Defendants-Appellees.
    Before FLAUM, MANTON, and WILLIAMS, Circuit Judges.
   MANION, Circuit Judge.

Sabina Burton, a professor in the criminal justice department at the University of Wisconsin-Platteville, sued the school’s Board of Regents and three individual defendants. She claims that her superiors took several retaliatory actions against her over the course of about two years. She seeks relief under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The district court granted summary judgment to the Board and the individual defendants. For the reasons set forth below, we affirm the judgment of the district court.

I. Background

In 2009, Dr. Burton was hired as a tenure-track professor in the criminal justice department at the University of Wisconsin-Platteville. In January 2012, she was promoted to associate professor. Later that year, a series of events began to unfold that eventually led to this litigation.

First, in October 2012, Burton received a complaint from a student in her department who claimed that another professor had sexually harassed her. The student was upset that the professor had handed her a note during class that read “call me tonight!” and included the professor’s phone number. The next day, Burton contacted the Dean of the College of Liberal Arts (which encompasses her department), Elizabeth Throop, regarding the alleged harassment. Burton then spoke with her department chair, Thomas Caywood, who broached the subject with the offending professor.

The professor who wrote the note claimed that it was part of a “breach experiment,” or an intentional provocation designed to display to the class social norms by violating them. The student, however, took it seriously. In any event, Burton told Caywood that she thought all faculty members should be made aware whenever a professor conducts such an experiment, but Caywood didn’t think that was necessary. A week later, Caywood circulated a memo to the department that altered the procedure for reporting student complaints about faculty members: professors were now to bring students’ • complaints directly to Caywood, rather than going outside of the department. The next month, Caywood said at a department meeting that the change was necessary because someone had overreacted by bringing a student complaint outside the department. Overall, Caywood became less collegial towards Burton, and she viewed the change in departmental policy as a direct repudiation of her conduct.

Around the same time, Throop and Cay-wood began to withdraw their support for a cybersecurity curriculum that Burton had been developing. In April 2012, Burton submitted (and Caywood signed) a grant application to the National Science Foundation in an attempt to receive funding for the creation of a cybersecurity curriculum at the University. That application was rejected, but Burton eventually received a modest offer from AT&T of $7,000 to fund the cybersecurity program.

Caywood and Throop hampered this process after Burton had reported the alleged harassment of the student in October 2012. Specifically, in November Cay-wood failed to respond to Burton’s request for a meeting about the grant process. Then on January 24, 2013, both Throop and Caywood objected to the wording in a draft press release prepared by the AT&T representative. In an email chain that included Burton and the AT&T representative, Throop and Caywood expressed their concerns that the press release said too much because Burton had yet to submit formally any course curricula to the appropriate University committees. Caywood also confronted Burton about inaccuracies (which Caywood had never noticed before) on two websites that Burton had created for the proposed cybersecurity program. Nevertheless, Throop and the AT&T representative ironed out the language of the press release and Burton received the grant the next day in a public ceremony attended by the provost of the University.

In the midst of this, in January 2013 Burton submitted her application for tenure. It was unanimously granted two months later. Although Caywood had initially opposed Burton’s application, he eventually voted in her favor. Caywood then stepped down as department chair after the 2012 — 13 academic year, seemingly in part because of conflict with Burton. He was replaced by Michael Dalecki, but Burton’s troubles did not end there.

On August 13, 2013, Burton filed a charge of discrimination with the Wisconsin Department of Workforce Development — Equal Rights Division (ERD). In it, Burton alleged that (1) Caywood had discriminated against her because of her sex and retaliated against her for reporting the note incident; (2) both Throop and the University’s human resources director (to whom Burton had sent an email complaining of Caywood’s retaliation) had discriminated against her; (3) Throop had defamed her (in connection with the AT&T press release); and (4) the University had been deliberately indifferent to her grievances. After she filed that charge, Dalecki and others pressured her on multiple occasions to drop her case. Burton was told that she might have been considered for the positions of dean or department chair, but that she could not expect to advance if she continued to engage in litigious behavior.

On April 14, 2014, Burton filed her initial complaint in this case in the Western District of Wisconsin, alleging both discrimination and retaliation. Then on October 20, 2014, she completed an intake questionnaire with the United States Equal Employment Opportunity Commission (EEOC). Four days later, Throop sent Burton a “letter of direction” which identified seven events that Throop considered examples of inappropriate behavior by Burton. Throop’s letter included five specific directions for Burton to follow. Burton, however, rejected the directions and accused Throop of mischaracterizing the facts. Afterwards, Throop filed a complaint against Burton with the chancellor of the Board of Regents pursuant to Wis. Admin. Code UWS § 6.01, asking for a formal letter of reprimand. It is unclear from the record whether this complaint has been resolved.

Finally, on December 4, 2014, Throop accused Burton of canceling class without permission. In response, Burton sent an email to all of her students documenting her issues with Throop and Caywood and asking for the students’ help in proving that she had in fact held class on that day. When the students responded that class had occurred, Throop did not discipline Burton. The next day, Burton filed her EEOC charge. She filed the second amended complaint in this case on September 11, 2015, and the district court granted summary judgment to the Board on March 18, 2016. Burton timely appealed.

II. Analysis

A. Standard of Review

We review the district court’s decision to grant summary judgment to the Board de novo. Brunson v. Murray, 843 F.3d 698, 704 (7th Cir. 2016). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view all evidence in the light most favorable to Burton, who was the party opposing the motion below. Brun-son, 843 F.3d at 704. The Board is entitled to summary judgment if Burton cannot present sufficient evidence to 'create a dispute of material fact regarding any essential element of her legal claims on which she bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. Title VII and Title IX Framework

Both Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 permit plaintiffs to bring causes of action for retaliation. See 42 U.S.C. § 2000e-3(a) (Title VII); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (Title IX). The elements of those claims are the same: Burton must produce enough evidence for a reasonable jury to conclude that (1) she engaged in a statutorily protected activity; (2) the Board took a materially adverse action against her; and (3) there existed a but for causal connection between the two. Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (causation standard).

C. Waiver of Certain Arguments

One threshold matter that we must address is Burton’s attempt to inject more facts into the case on appeal than she presented to the district court. Burton claims that the district court erred by limiting its analysis to certain alleged protected activities and materially adverse actions. She says that if the district court had considered everything, it would have found that she engaged in more protected activities and suffered more significant adverse employment actions.

Burton’s problem is that she did not make these broad arguments to the district court. For example, on the Title IX claim she argues that the district court should have considered a litany of potential materially adverse employment actions. Yet she presented only two to the district court: Caywood’s reaction to her reporting of the note incident and Cay-wood’s and Throop’s supposed withdrawal of support for her cybersecurity curriculum. Throughout her briefing, Burton relies on facts that appear nowhere in her opposition to the Board’s motion for summary judgment below. It appears that she made a strategic decision in the district court to focus on the strongest points in her case and omit the rest.

That decision was not necessarily a bad one, but it does preclude her reliance here on the facts omitted below. For one, she had the burden of identifying protected activities and materially adverse actions in opposition to summary judgment before the district court. See Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 649 (7th Cir. 2011). The district court was necessarily limited to arguments presented in Burton’s opposition brief. After all, “a lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are ‘obliged in our adversary system to scour the record looking for factual disputes....’” Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1993)).

Instead, “[i]t is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons,, legal or factual, why summary judgment should not be entered.” Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir. 1983). “If [the nonmov-ing party] does not do so, and loses the motion, it cannot raise such reasons on appeal.” Id. This rule prevents Burton from raising specific - factual arguments that were absent from her briefing below even though her general claims were plainly before the court. See Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (“[A] party has waived the ability to make a specific argument for the first time on appeal when the party failed to present that specific argument to the district court, even though the issue may have been before the district court in more general terms.”). Thus, Burton is limited to the facts laid out in Part I above and to the particular protected activities and adverse actions that she argued below. We now proceed to the merits of her Title IX and Title VII claims.

D. Title IX Claim

The Board concedes on appeal that Burton’s actions in reporting the allegedly inappropriate in-class note were protected activities under Title IX. As Burton did not raise any further protected activities below, we move on to assess whether any alleged actions by Burton’s superiors in the wake of the note incident were materially adverse to her. As noted above, Burton raised two potential adverse actions: (1) the supposed criticisms of Burton after she reported the note; and (2) the apparent withdrawal of support for Burton’s cy-bersecurity initiative.

First, we emphasize that “[n]ot everything that makes an employee unhappy is an actionable adverse action.” Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012) (quoting Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009)). Rather, “an adverse action is one that a reasonable employee would find to be materially adverse such that the employee would be dissuaded from engaging in the protected activity.” Silverman v. Bd. of Educ., 637 F.3d 729, 740 (7th Cir. 2011) (citations and internal quotation marks omitted); see also Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 729 (7th Cir. 2009). In other words, it does not include “those petty slights or minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

Like the district court, we conclude that neither of Burton’s proffered adverse actions rises to the level of materiality necessary to form the basis of a Title IX retaliation claim. With respect to the post-note criticism, the record does not support Burton’s claims. Caywood never expressly denounced the way Burton handled the situation. Instead, he merely presented a new policy for handling similar problems in the future. Even if we were to construe Caywood’s rollout of the new policy as an implicit reprimand, that would not be sufficient to be a materially adverse action either. See Chaib v. Indiana, 744 F.3d 974, 987 (7th Cir. 2014), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). As in Chaib, there was no showing that any reprimand (or any lack of eollegiality on the part of Caywood) caused any subsequent consequences for Burton’s employment. See also Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009) (“[WJritten reprimands without any changes in the terms or conditions of [an employee’s] employment are not adverse employment actions.”). Indeed, Burton unanimously received tenure just months after the incident.

The same is true of the disagreement over the cybersecurity program at the University. The most the record shows is that Throop and Caywood were concerned that the language of the AT&T press release may have been over-representing the progress of the cybersecurity curriculum that Burton had been developing, and that Caywood was concerned- about some errors on websites that Burton had created. Yet Throop approved the press release the same day that the dispute began, and Burton received the AT&T grant in a public ceremony attended by the provost and vice chancellor of the University. Once again, Burton received tenure within months of this incident and can point to no material consequences resulting from it. While she may have perceived that Throop and Cay-wood had retaliated against her, these actions simply do not rise to the level of a materially adverse employment action protected by Title IX. Therefore, like the district court, we need not engage in any causation analysis. The district court correctly granted summary judgment to the Board on the Title IX retaliation claim.

E. Title VII Claim

With respect to the Title VII claim, the Board concedes both that Burton undertook protected activities (filing charges with the Wisconsin ERD and the EEOC and filing this lawsuit) and was subjected to materially adverse employment actions (Throop’s letter of direction and subsequent complaint to the chancellor). Burton didn’t raise any other protected activities below, so she has forfeited the chance to do so now. But she did present two further adverse actions to the district court: (1) the repeated pressuring by Da-leeki and others to drop the discrimination charges; and (2) Throop’s threat of discipline in retaliation for the allegedly' canceled class on December 4, 2013. The district court properly concluded that the pressure to drop the suit could not have amounted to a materially adverse action because these statements “did not cause [Burton] any injury.” Dunn v. Washington Cty. Hosp., 429 F.3d 689, 692 (7th Cir. 2005). For a similar reason, unfulfilled threats of discipline related to the aceusation that Burton canceled class are not actionable. See Poullard v. McDonald, 829 F.3d 844, 856-57 (7th Cir. 2016) (recognizing that unfulfilled threats are not materially adverse actions for the purpose of a Title VII retaliation claim).

So we are left with the task of determining whether the record contains enough evidence for a reasonable jury to conclude that the admitted protected activities were the but-for cause of the admitted adverse actions. Without direct evidence of causation, Burton must rely on circumstantial evidence like suspicious timing, ambiguous statements, treatment of similarly-situated employees, and any other relevant information that could permit an inference of retaliation. See Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 869 (7th Cir. 2013). It’s also true that actions that were not in and of themselves materially adverse, such as unfulfilled threats, may still be evidence of retaliatory motive for actionable actions. Poullard, 829 F.3d at 857. But the dispositive question remains whether a reasonable jury could find a but-for causal link between the protected activities and adverse actions at issue. And because the Board has presented non-retaliatory reasons for Throop’s conduct, the true question is whether the proffered reasons were pretext for retaliation. See Majors v. Gen. Elec. Co., 714 F.3d 527, 539 (7th Cir. 2013).

We agree with the district court on this point as well. First, the timing of the letter of direction is not suggestive of retaliatory motive. The last potential protected activity here was the filing of this lawsuit in April 2014, six months before Throop sent the letter of direction. Burton has not provided any evidence that bridges the significant time gap between her final protected activity and Throop’s adverse action. While the six-month gap does not preclude Burton’s claim as a matter of law, it does substantially weaken it.

Moreover, the record demonstrates that Throop had a factual basis for each of the allegations she leveled against Burton in the letter of direction, and Burton failed to provide evidence that the allegations were pretextual. Indeed, the district court stated that Burton did not dispute the truth of the allegations, only “how Throop perceived and characterized those events, and whether Throop should have accepted Burton’s explanations for each of them.” Burton, 171 F.Supp.3d at 846. These are exactly the type of personnel management decisions that federal courts do not second-guess. We intervene only where “an employer’s reason for [an adverse action] is without factual basis or is completely unreasonable.” Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013). This is plainly not such a situation. Burton has not presented sufficient evidence of pretext, and as a result she cannot establish but-for causation.

There is no evidence in the record that .Throop’s complaint against Burton was retaliation for her protected activity, but there is evidence that Burton decided not to heed any of the “direction” contained in the letter. Then, as now, .Burton simply argues that Throop should never have written the letter. But once again, pretext “involves more than just faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action.” Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir. 2015) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 735 (7th Cir. 2008)). There is no evidence that either the letter of direction or Burton’s subsequent complaint were such lies. No reasonable jury could find that either the letter of direction or the subsequent complaint were caused by Burton’s protected activities, rather than legitimate disagreements between Burton and Throop. Therefore, the district court properly granted summary judgment to the Board on Burton’s Title VII claim.

III. Conclusion

Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because she reported alleged .harassment and proceeded with this case. Yet the record does not support her claims. During the relevant period, Burton was granted tenure by a unanimous vote and the University held a public ceremony celebrating Burton’s receipt of a grant from AT&T. Dean Throop even sought an upward salary adjustment for her after she had brought a charge with the Wisconsin ERD. Burton’s frustrations may be significant, but they do not amount to actionable retaliation under either Title VII or Title IX. Therefore, the district court correctly granted summary judgment to the Board.

Affirmed.

      . As Burton conceded at oral argument, the record does not show that Throop or anyone else at the University was aware of the intake questionnaire when the letter of direction was issued.

      . In her response to the defendants’ motion for summary judgment below, Burton dismissed all of her original claims except for retaliation claims under Title VII and Title IX. She also apparently pursues claims only against the Board of Regents, so we will refer to the defendants simply as the Board.

      . We follow the parties' briefing in presenting the claims separately under Title IX and Title VII. The parties appear to agree that the facts surrounding the in-class note incident would not state a Title VII claim because of the lack of employment relationship between Burton and the reporting student. We need not- consider whether they are right, because the elements of a Title VII and Title IX retaliation claim are the same.

      . Even the comments noting that Burton could have been dean or department chair material if she were not so litigious don't amount to an adverse action. There is no indication that Burton ever sought those positions or that she was otherwise under consideration apart from the stray comments. In other words, the comments caused Burton no injury.

      . Moreover, as the district court noted, "Throop sought and obtained an equity adjustment to Burton’s salary in. March 2014.” Burton v. Bd. of Regents, 171 F.Supp.3d 830, 846 (W.D. Wis. 2016). This occurred between the filing of Burton’s ERD charge and the initial complaint in this case. Such positive intervention in between two instances of protected activity at least somewhat undermines Burton’s retaliation theory. See Albrechtsen v. Bd. of Regents, 309 F.3d 433, 437-38 (7th Cir. 2002).

      . As indicated in Part I, Burton conceded at oral argument that the record does not indicate that Throop or anyone else at the University knew that Burton had completed an intake questionnaire with the EEOC four days before the letter of direction issued. This gap in the record is particularly harmful to Burton’s claim, because in order to be liable for Title VII retaliation, “the employer must have had actual knowledge of the protected activity” at issue. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009). Without evidence establishing actual knowledge, the timing of the intake questionnaire is irrelevant.


author: WOOD, Chief Judge. POSNER, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey ROTHBARD, Defendant-Appellant.
    No. 16-3996
    United States Court of Appeals, Seventh Circuit.
    Argued February 17, 2017
    Decided March 17, 2017
    Brian L. Reitz, Bradley P. Shepard, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appel-lee.
    Mario Garcia, Attorney, Brattain & Min-nix, Indianapolis, IN, for Defendant-Appellant.
    Before WOOD, Chief Judge, and BAUER and POSNER, Circuit Judges.
   WOOD, Chief Judge.

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

I

Rothbard’s offenses date back to at least 2010, when he installed some check designer programs on an office computer and used them to forge two checks, amounting to $7,700, to his wife. He was convicted in state court for that offense and placed on probation. While on probation, he launched the scheme that underlies his present conviction. When all was said and done, he had defrauded 17 victims of $211,658.53, acting as the registered agent of “GreenCity Finance.” The scheme was relatively simple: GreenCity would purport to arrange for financing for energy savings upgrades, but it would require a deposit to process the loan. The clients paid the deposits, but the money went straight to Rothbard’s pocket. He used it on personal items, including to attend a PGA golf tournament and to buy his son a vehicle. Ultimately he was caught and charged with wire fraud in violation of 18 U.S.C. § 1343; he waived indictment and pleaded guilty. His appeal pertains exclusively to his sentence.

II

The key fact behind Rothbard’s sentencing challenge relates to his health. In 2005, well before the time he instituted the GreenCity scheme, he was diagnosed with imatinib-resistant chronic myeloid leukemia — -a particularly virulent form of that cancer. His doctor, Larry Cripe, prescribed the drug nilotinib, which is one of three possible drugs recognized for the treatment of Rothbard’s type of leukemia. All three are extremely expensive: the Journal of Clinical Oncology reported in 2013 that the annual price of nilotinib is $115,000 to $124,000; the price of the other two drugs, dasatinib and ponatinib, appears to be comparable. Hagop M. Kantarjian et al., Cancer Drugs in the United States: Justum Pretium—The Just Price, 31 J. Clinical Oncology 3600, 3601 (2013).

Before sentencing, the Probation office prepared its usual Presentence Investigation Report (PSR), in which it calculated an adjusted offense level of 16 and a criminal history of II, which translates into a range of 24 to 30 months’ imprisonment. Because of Rothbard’s health, however, Probation recommended a more lenient sentence: 12 months’ detention at a halfway house and another 12 months’ home confinement, in lieu of prison. It suggested that this would offer adequate deterrence and would assure that Rothbard’s medical needs were properly met. Probation then revised the recommendation to three years’ probation, noting that although Rothbard seemed to need a harsher penalty to deter future criminal behavior (because he had committed the fraud while on probation), it seemed unfair to burden the taxpayers with the exorbitant cost of Roth-bard’s medication in prison.

Rothbard filed a pre-sentencing memorandum in which he urged that a custodial sentence would be unreasonable, because (he asserted) BOP could not guarantee that he would receive the medical care he needed in one of its facilities. The reason for the lack of a guarantee relates to the way in which BOP manages prescription drugs. It maintains a formulary of drugs that its physicians are permitted to prescribe without further0 ado. That does not mean, however, that non-formulary drugs are impossible to obtain. To the contrary, if a doctor believes that a patient needs a non-formulary drug, the doctor may prescribe it by following certain procedures.

Based primarily on the nature of Roth-bard’s crime and the fact that he committed it while on probation, the district court rejected Probation’s recommendations and imposed a Guidelines sentence of 24 months in the custody of BOP, followed by two years’ supervised release. In so doing, it did not ignore Rothbard’s medical situation. It took into account a letter that the government had obtained from Dr. Paul Harvey, the Regional Medical Director for BOP’s North Central Region. Dr. Harvey reviewed Rothbard’s records and a letter from Dr. Cripe, and offered these comments:

CARE Level 4 inmates require services available at a Medical Referral Center (MRC) and may require daily nursing care. The MRC facilities have clinical staff available in-house, 24-hours per day, and have contracts with community specialists for additional review' and/or care, if clinically necessary. The BOP has six Medical Referral Centers [including] Butner, North Carolina.

Rothbard was later designated to Butner, although it appears that he will need a re-designation after this appeal is resolved.

Dr. Harvey’s answer to the question whether Rothbard would be able to continue with his successful course of nilotinib was a qualified “yes.” He conceded that nilotinib is not on the National Drug For-mulary, but he said that BOP permits a medical provider to “submit a non-Formu-lary request and prescribe the requested medication pending approval of the request.” He also noted that an expedited approval process exists, and when it is used, a decision on the request is generally made within 24 hours. (The need for such approval is the reason we describe the “yes” as qualified.) Finally, Dr. Harvey said that nilotinib had been “approved for inmates with medical conditions similar to Mr. Rothbard’s.”

The district court considered Rothbard’s leukemia as it considered what sentence to impose, but it was unpersuaded that Roth-bard’s medical condition justified a noncustodial sentence. It relied on Dr. Harvey’s representation that BOP could provide whatever care was necessary. Turning to the other side of the balance, it noted several facts that pointed toward a sentence including imprisonment. Calling Rothbard’s scheme a “crime of pure greed,” the court referred to the need to protect the public and the fact that Roth-bard had brazenly committed this crime while on probation for the forgery offense. The judge commented that the crime was sufficiently troublesome, in his view, that he “never really seriously considered probation.” Instead, he opted to accommodate Rothbard’s medical needs by “pointing] out to the Bureau of Prisons that the defendant does have leukemia that’s in remission by medication and request[ing] that the Bureau of Prisons take special note of that medication and make sure that he receives that medication for treatment of that condition so that it remains in remission.”

Because of the grave nature of his medical condition and the risk that a deprivation of nilotinib might cause a serious recurrence of his disease, Rothbard moved for a stay of his report date pending his appeal in this court. The district court denied the stay, but this court granted it and expedited the appeal. In addition, because we were unsure how effectively the procedures described by Dr. Harvey operate, we ordered the parties to provide additional information about what Roth-bard might expect if he were to go to a BOP facility. It is unusual, we concede, to supplement the record on appeal on such a critical point, but the stakes are high, and so we thought this step was justified.

When a new inmate shows up at BOP, the inmate goes through a comprehensive medication review as part of his intake screening. For purposes of continuity of care, the government represents, BOP policy allows for the continuation of most medications — including non-formulary drugs — for a period of time pending review and approval of anything that is not on the Formulary. Rothbard appears to agree with that, in part. He presents an updated affidavit from Philip Wise, the former Assistant Director of BOP with responsibility for health care. (This too is new on appeal; we grant Rothbard’s February 8, 2017, motion to supplement the record with Wise’s Declaration.) Wise states that non-formulary drugs may be continued for four days upon arrival. After that, according to Wise, there are no guarantees. Relying on this, Rothbard argues that this means for him that there is no assurance that he will be able to continue with his nilotinib after the four-day period expires. The government responds that Wise himself concedes that BOP has the ability to process urgent requests within hours, if medically necessary. It also reports that there have been ten requests for' nilotinib since 2010, and all ten requests have been approved for the same condition as Rothbard has.

We were also interested in the qualifications of the people who are responsible for these approvals. The government informs us that approval authority resides with a Central Office Physician, and that the final decision over non-formulary drug requests is made by either a pharmacist or a physician. Wise wrote that when he was in charge, denials were based on one of two possible reasons: either the requested drug was not medically necessary, or that there was a therapeutic equivalent medication available on the formulary. In this case, the government does not argue that either of those reasons would apply.

One might worry that BOP would have an incentive to be sparing with its orders for particularly expensive non-formulary drugs, such as nilotinib. There is no evidence, however, that it has done so, and in Rothbard’s case, there is less reason to fear' a secret economic motive. Rothbard’s health care is already being billed to the public, because he is using government-provided health insurance. More importantly, the record shows that BOP has ordered nilotinib itself on ten other occasions, evidently in recognition of the fact that it might be essential (as it apparently is for Rothbard). Indeed, the high price of nilotinib suggests that it has no adequate substitutes: whether it is being used for prisoners or the public at large, a drug that faces several therapeutic alternatives in the market will not command as high a price.

In the final analysis, this ease boils down to the fact that BOP is not willing or able to pre-commit to. nilotinib for Roth-bard, before he has gone through the intake examination at the prison medical center. Although it might be sensible in cases such as this one for BOP to have some way of examining people before they report, that is not its practice and we are not persuaded that the lack of a pre-report examination is independently actionable. In addition, we cannot find fault with BOP’s reservation of the right to conduct its own medical examination. While Roth-bard’s case might be an easy one, there will be other entering inmates who are subjectively convinced that they need one particular medication, but for whom an alternative or more conservative treatment may be medically acceptable. BOP would be'acting irresponsibly if it did not make an independent decision, based on a thorough and professional examination of thé new inmate and his medical history.

Ill

We conclude that this is not a case in which the only substantively reasonable sentence would have been one that kept Rothbard out of prison. The district court was faced with evidence supporting a noncustodial punishment — Rothbard’s trouble-free record for the last several years, and the assurance of continuity of his successful treatment at the hands of Dr. Cripe— as well as evidence supporting some time in prison — the nature of his crime, the fact that he committed it while on probation, and the factual finding that BOP would be able to serve his medical needs. We find no clear error in any of those findings of fact. And with this much established, we have no reason to find Rothbard’s sentence of 24 months (which fell within the recommended Guidelines range) substantively unreasonable.

We close, however, with a caveat. If Rothbard shows up at a BOP facility and discovers that the responsible people are dragging their feet in a way that deprives him for any significant time of his nilotinib, or if the BOP evaluator (contrary to all of the evidence we have seen) takes the position that a medically suitable alternative from the formulary exists, Rothbard is free to use the BOP’s grievance procedures to complain about any such problem. On that understanding, we Affirm the judgment of the district court.

POSNER, Circuit Judge,

dissenting.

The defendant pleaded guilty to wire fraud in violation of 18 U.S.C. § 1343. The district judge sentenced him to 24 months in federal prison and also ordered him to pay restitution to the victims' of the fraud — but that aspect of the sentence is not involved in his appeal. Because of the defendant’s very poor health — he suffers from a rare form of leukemia (called ima-tinib-resistant chronic myelogenous leukemia), compounded by bipolar disorder with manic episodes, chronic arthritis, hypertension, and asthma — the probation service had recommended that the judge impose in lieu of a prison sentence a sentence of 3 years’ probation, including 12 months of home confinement and 12 months of confinement in a halfway house, because it would be easier to provide for his medical needs in such locations. He is not violent; he was on pretrial release for two and a half years after his arrest and committed no crimes during that period.

In appealing the judge’s sentence he argues that the Bureau of Prisons can’t guarantee that he will receive adequate medical attention in a prison. He is right. The drug that he’s been receiving for his leukemia is called nilotinib (trade name Tasigna). It is very expensive — more than $100,000 for a year of treatment. Perhaps because of its cost, it is not currently listed on the National Drug Formulary of the Bureau of Prisons. (A drug formulary is a list of prescription drugs that is used by practitioners to identify drugs that offer the greatest overall value.) The Bureau has sometimes provided nilotinib for prisoners suffering from ailments such as the kind of leukemia that the defendant suffers from, but it has refused to commit to providing it to this defendant. A letter sent by a doctor employed by the Bureau to one of 'the prosecutors in the case states that “while nilotinib is not included in the National - Formulary, this medication has been approved for inmates with medical conditions similar to Mr. Rothbard’s.” But how similar the other inmates’ conditions are to Rothbard’s — whether for example they require as frequent dosages of nilotin-ib as he does — is nowhere indicated. In addition the Bureau has refused to allow the defendant’s need for the drug to be determined by a medical examination prior to his imprisonment, even though the results of such an examination might both vindicate the probation service’s recommendation for nonprison confinement and resolve the question of his need to continue taking nilotinib.

The defendant’s bipolar disorder with manic episodes (bipolar disorder used to be called manic depression) should also be examined before he’s imprisoned, because it’s a disorder that might be difficult to treat effectively in a prison without placing the defendant in a cell by himself (perhaps even solitary confinement), as manic episodes might upset and alarm cellmates and even prison staff, though it is now believed that solitary confinement is detrimental to a prisoner’s mental health. See, e.g., PBS Frontline, “What Does Solitary Confinement Do To Your Mind?,” www.pbs.org/ wgbb/frontline/article/what-does-solitary-confinement-do-to-your-mind/ (visited March 17, 2017, as were the other websites cited in this opinion).

Essentially the prosecution, the district court, and now my colleagues, ask that the Bureau of Prisons be trusted to give the defendant, in a federal prison, the medical treatment that he needs for his ailments. Yet it is apparent from the extensive literature on the medical staff and procedures of the Bureau of Prisons (a literature ignored by my colleagues) that the Bureau cannot be trusted to provide adequate care to the defendant. The defendant’s expert, Phillip Wise, who has extensive experience with the medical care provided to federal prisoners' — -he has served as the Assistant Director of the Federal Bureau of Prisons, with responsibility for health care, as the Warden of the Federal Medical Center (a Bureau of Prisons facility) in Rochester, Minnesota, and as the vice president of a company that provides medical care to federal prisoners — tells us “there is no assurance that nilotinib will, in fact, be provided for Mr. Rothbard,” and the fact “that nilo-tinib has been approved for some inmates in the past is not an assurance that it will be provided for Mr. Rothbard without some delay as the request is evaluated or some other medication is tried first.” Wise also points to “the very real difficulty the BOP has in recruiting and maintaining medical staff for its facilities,” which he says “may lead to delays in care as well as provision of essential medical care by lower level medical staff.”

A national survey of inmates in federal, state, and local prisons found that “among inmates with a persistent medical problem, 13.9% of federal inmates, 20.1% of state inmates, and 68.4% of local jail inmates had received no medical examination since incarceration. More than [20 percent of] inmates were taking a prescription medication ... when they entered prison or jail; of these, 7232 federal inmates (26.3%), 80,971 state inmates (28.9%), and 58,991 local jail inmates (41.8%) stopped the medication following incarceration. Prior to incarceration slightly more than [14 percent of] inmates were taking a prescription medication for an active medical problem' routinely requiring medication.... Of these, 20.9% of federal inmates, 24.3% of state inmates, and 36.5% of local- jail inmates stopped the medication following incarceration. Andrew P. Wilper, et al, “The Health and Health Care of US Prisoners: Results of a Nationwide Survey,” 99 Am. J. Public Health 666, 669 (2009), https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC 2661478/. The authors conclude that “many inmates with a serious chronic physical illness fail to receive care while incarcerated.” Id. at 666.

These problems have been documented by federal agencies. A 2016 report by the Justice Department’s Office of the Inspector General on the BOP’s medical staffing concluded — -echoing Wise’s concerns — that “recruitment of medical professionals is one of the BOP’s greatest challenges and staffing shortages limit inmate access to medical care, result in an increased need to send inmates outside the institution for medical care, and contribute to increases in medical costs,” and that “recruitment and retention of medical professionals is a serious challenge for the BOP, in large part because the BOP competes with private employers that offer higher pay and benefits. We further found that the BOP has not proactively identified and addressed its medical recruiting challenges in a systemic way. Rather, it has attempted in an uncoordinated fashion to react to local factors influencing medical recruiting at individual institutions.” Office of the Inspector General, U.S. Department of Justice, “Review of the Federal Bureau of Prisons’ Medical Staffing Challenges,” pp. i-ii, March 2016, https://oig.justice.gov/ reports/2016/el602.pdf.

A 2008 report by the same office on medical care in the BOP concluded that “each of the BOP institutions we tested did not always provide recommended preventive health care to inmates. Our audit found that for almost half of the preventive health services we tested, more than 10 percent of the sampled inmates did not receive the medical service.... The BOP (1) did not develop agency-wide guidance to correct apparent systemic problems found during medical-related internal reviews and external audits; (2) did not provide health care providers with current authorization to practice medicine on BOP inmates through privileges, practice agreements, or protocols; (3) had not performed required initial and renewal peer reviews for providers; and (4) had not implemented an effective performance measurement system related to the provision of health care at BOP institutions.” Office of the Inspector General, U.S. Department of Justice, “The Federal Bureau of Prisons’ Efforts to Manage Inmate Health Care,” p. in, Feb. 2008, https://www.oig.justice. gov/reports/BOP/a0808/final.pdf.

These are long-standing problems. A GAO report on health care in the BOP, published in 1994, concluded that “inmates with special needs, including women, psychiatric patients, and patients with chronic illnesses, were not receiving all of the health care they needed at the three medical referral centers we visited. This situation was occurring because there were insufficient numbers of physician and nursing staff to perform required clinical and other related tasks.... As a result, some patients’ conditions were not improving and others were at risk of serious deterioration.” U.S. General Accounting Office, “Bureau of Prisons Health Care: Inmates’ Access to Health Care is Limited by Lack of Clinical Staff,” p. 2, Feb. 1994, www.gao.gov/assets/220/219296. pdf.

The problems of BOP health care may soon become even more serious, given the decision by the new Attorney General, Jeff Sessions, to continue confining some federal prisoners in privately owned prisons. See Eric Tucker, “U.S. will continue use of privately run prisons, Attorney General says,” Feb. 23, 2017, PBS Newshour, The Rundown, www.pbs.org/newshour/ rundown/u-s-will-continue-use-privately-run-prisons-attorney-general-says/. The bad reputation of those prisons had caused the previous Administration to begin phasing out confinement of federal prisoners in them. See Memorandum from Sally Q. Yates, Deputy Attorney General, to the Acting Director, Federal Bureau of Prisons (Aug. 18, 2016), -www.justice.gov/ archives/opa/file/886811/ download; Office of the Inspector General, U.S. Department of Justice, “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons,” Aug. 2016, https://oig.justice.gov/ reports/2016/el606.pdf.

I am mindful that if Rothbard is denied nilotinib in prison he can invoke the BOP’s grievance process. But how long will that take? We’re not told, and Dr. Cripe, Roth-bard’s physician, warns that any “prolonged interruption” in Rothbard’s access to nilotinib will endanger his health.

To conclude, my inclination would be to reverse the judgment of the district Court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint • neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.


author: WOOD, Chief Judge.

text:
    Samira HAZAMA and Ahmed Abdel Hafiz Ghneim, Plaintiffs-Appellants, v. Rex W. TILLERSON, Secretary of State, et al., Defendants-Appellees.
    No. 15-2982
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2016
    Decided March 20, 2017

      Julie Ann Goldberg, Attorney, Goldberg & Associates, Bronx, NY, for Plaintiffs-Appellants.
    Craig A. Oswald, Attorney, Office of the United States Attorney, Chicago, IL, Dur-wood H. Riedel, Attorney, Department of Justice, Civil Division, Washington, DC, for Defendants-Appellees.
    Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for National Immigrant Justice Center, Amicus Curiae.
    Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
   WOOD, Chief Judge.

In an effort to seek judicial review of a consular official’s unfavorable decision on a visa application, Samira' Hazama and Ahmed Abdel Hafiz Ghneim filed a petition for a writ of mandamus in- the district court for the Northern District of Illinois, where Hazama resides. The district court concluded that it lacked subject-matter jurisdiction over the petition, because it thought that review was precluded under the Supreme Court’s decisions in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), and Kerry v. Din, — U.S. -, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015). The district court was correct that this case cannot go forward, but mistaken to think that the problem was jurisdictional. In Morfin v. Tillerson, No. 15-3633, 851 F.3d 710, 2017 WL 1046112 (7th Cir. 2017), decided today, we concluded that plaintiff loses on the merits. The same result is proper here, both for the reasons stated in Morfin and because the criteria for mandamus relief have not been met. See United States v. Vinyard, 539 F.3d 589, 591 (7th Cir. 2008) (mandamus proper only if the order would inflict irreparable harm, is not effectively reviewable at the end of the case, and so far exceeds the bounds of judicial discretion that it is usurpative, in violation of a clear and indisputable legal right, or patently erroneous).

Hazama is a U.S. citizen; she is married to Ghneim, who is a citizen of the Palestinian Authority and currently resides there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed an 1-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Service of the Department of Homeland Security (US-CIS). Her petition was approved by US-CIS on August 25, 2011, but that alone did not assure Ghneim’s right to immigrate to the United States. First, he had to wait until a visa number became available, then (while still outside the country) he had to appear for an interview with a consular officer, and ultimately he had to file form 1-485, the Application to Register Permanent Residence or Adjust Status.

Ghneim never made it to the end of the line. He showed up for his interview at the U.S. Consulate in Jerusalem on January 24, 2013. The consular officer denied the application for three reasons: the commission of a crime of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); previous removal from the United States, id. § 1182 (a)(9) (A) (ii); and unlawful presence in the United States, id. § 1182(a)(9)(B)(i)(II). Ghneim tried to address these grounds, but his petition for a waiver of the “previously removed” and “unlawful presence” grounds was ultimately denied. In the meantime, on January 22, 2015, a consular officer again denied Ghneim’s application, this time for having personally engaged in terrorist activities. See 8 U.S.C. § 1182(a)(3)(B)(i).

Hazama and Ghneim filed the present Complaint for Writ of Mandamus on May 5, 2015. In it, they attack only the terrorism ground for denying the visa. The omission of the other three grounds is perplexing, because it would do little good to set aside one ground if there are three alternate grounds for upholding the agency’s decision. Their choice may reflect the assumption that the three omitted grounds may be waivable. We do not know, and in light of our disposition of the appeal, we need not inquire further. For present purposes we confine ourselves to the applicability of the terrorism ground to Ghneim.

The Complaint also seeks declaratory and injunctive relief under the Administrative Procedure Act, based on the government’s alleged failure to adjudicate Ghneim’s application. Finally, it asserts that the refusal was not facially legitimate and bona fide. The government moved to dismiss, both for lack of subject-matter jurisdiction and for failure to state a claim. The district court held a hearing on the government’s motion on August 26, 2015, but despite her awareness that the court had scheduled this hearing — reflected in her effort on August 20 to seek a postponement — counsel for Hazama and Ghneim did not attend. In the end, however, counsel’s inability to attend made little difference. The district court, noting that the petitioners had relied heavily on the Ninth Circuit’s decision in Din and that the Supreme Court had vacated that ruling, found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. Hazama and Ghneim have appealed from that decision.

The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the United States. See Mandel, 408 U.S. at 762, 92 S.Ct. 2576. Nothing in Din, which admittedly failed to produce an authoritative opinion of the Court, casts any doubt on that proposition. Congress has delegated broad power to the Executive Branch to decide who will have the privilege of entering. Id. at 770, 92 S.Ct. 2576. In general, courts have no authority to second-guess the Executive’s decisions — rulings that are typically made by consular officers of the Department of State. See Samirah v. Holder, 627 F.3d 652, 662 (7th Cir. 2010).

That said, the Court has never entirely slammed the door shut on review of consular decisions on visas. The language in Mandel suggests at least two possible exceptions to the general norm of nonreview-ability: “We hold that when the Executive exercises [the power to admit] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” 408 U.S. at 770, 92 S.Ct. 2576 (emphasis added). In addition, as the final allusion to the First Amendment implies, some courts have held that if a visa denial affects the constitutional rights of American citizens, then it may be reviewable. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016); see also Din, 135 S.Ct. at 2141-42 (dissenting opinion of Breyer, J., joined by Ginsburg, Soto-mayor, and Kagan, JJ., recognizing this right); Id. at 2139 (concurrence in judgment of Kennedy, J., joined by Alito, J., assuming arguendo that such a right exists).

Like the concurring Justices in Din, we can assume for the sake of argument that Hazama has enough of an interest in the grant of a visa to her husband that this case can go forward. Yet that assumption does nothing to meet her greater challenge, which is to show that the consular decision was not facially legitimate and bona fide. The act that prompted the consular officer to find that Ghneim had engaged in “terrorism” was admittedly minor, when compared with the worst terrorist acts one can imagine. As a 13-year-old boy in Palestine, Ghneim threw rocks at Israeli soldiers; the latter were armed with automatic rifles. Citing several other eases that involved rock-throwing, Hazama urges us to find that his actions were so inconsequential that they cannot suffice as a facially legitimate and bona fide reason for the visa denial. On one point we agree with her: this was a discretionary call, and it would not have been outside the consular officer’s discretion to consider this as an act of juvenile rebellion rather than an act of terrorism.

The Supreme Court has made it clear, however, that whatever residual authority the courts have to review these decisions cannot be triggered by every possible re-characterization of an act. Mandel, Din, and all of the earlier cases are premised on the -reoTC-reviewability of these decisions, and a recharacterization exception would open the door to plenary reviewability— most things, after all, are open to interpretation. The same problems would arise if we were to accept the suggestion of ami-cus curiae and adopt a rule under which we would examine whether the officer “properly construed and applied” the relevant provisions of law. All we can do is to look at the face of the decision, see if the officer cited a proper ground under the statute, and ensure that no other applicable constitutional limitations are violated. Once that is done, if the undisputed record includes facts that would support that ground, our task is over.

We found that additional support in Morfin, and we find it here as well. The consular officer in Jerusalem knew several things before making his decision: first, this particular act of rock-throwing took place in one of the least settled places in the world — a place where peace efforts have failed for 70 years; second, rocks are not benign objects — to the contrary, they can be lethal, as the barbaric practice of stoning illustrates; third, Ghneim did not deny that he had thrown the rocks; and fourth, Ghneim had several other blots on his record. Nothing here suggests that his visa was denied for a constitutionally troublesome reason such as religious discrimination, and so we have no need to consider how such a case should be approached. In addition, there is nothing in this record to suggest that the consular officers involved were proceeding in bad faith. At oral argument, Hazama’s lawyer asserted that the U.S. consulate in Jerusalem regularly prolongs its consideration of visa applications and denies those coming from citizens of the Palestinian Authority, but we have not taken this allegation into account in resolving this appeal, because it was not presented to the district court and (probably for that reason) there is no support in this record for a finding of the alleged systematic bias.

Finally, even if we were to find that Hazama was entitled to a reasoned explanation of the denial, she would still be out of luck. Ghneim, and so we assume Haza-ma, received a full explanation in a signed letter of a page and a half. The letter laid out all the grounds for refusal, explained why they applied, cited relevant precedent, and explained the agency review process. That was more than enough.

Hazama has raised several other points, but they all represent an effort to dilute or eliminate the consular nonreviewability doctrine, or they are procedural points that lay within the district court’s discretion. The fact that she cannot succeed under ordinary standards of appellate review demonstrates that her petition for mandamus must also fail. We therefore Affirm the judgment of the district court, with instructions that the judgment be modified to reflect that it rejects an adjudication on the merits, not for lack of subject-matter jurisdiction.