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2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-1-2025 
Phillip Hunter v. Fillmore Capital Partners LLC 
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Recommended Citation 
"Phillip Hunter v. Fillmore Capital Partners LLC" (2025). 2025 Decisions. 253. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/253 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-1606 
_______________ 
 
UNITED STATES OF AMERICA; STATE OF CALIFORNIA; STATE OF GEORGIA; 
STATE OF INDIANA; STATE OF MINNESOTA; STATE OF MISSOURI; STATE OF 
NEW JERSEY; STATE OF NORTH CAROLINA; STATE OF TENNESSEE; STATE OF 
WISCONSIN; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF 
VIRGINIA EX REL.; PHILLIP HUNTER 
 
v. 
 
FILLMORE CAPITAL PARTNERS, LLC; FILLMORE STRATEGIC MANAGEMENT, 
LLC; FILLMORE STRATEGIC INVESTORS, LLC; DRUMM INVESTORS, LLC; 
GGNSC HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; 
GGNSC EQUITY HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; 
GGNSC CLINICAL SERVICES, LLC; BEVERLY ENTERPRISES, INC.; BEVERLY 
HEALTH AND REHABILITATION SERVICES, INC. 
 
       Phillip Hunter, 
          Appellant 
_______________ 
 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. No. 2:15-cv-02134) 
District Judge:  Honorable Chad F. Kenney 
_______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
November 5, 2024 
 
 
BEFORE: KRAUSE, SCIRICA, and RENDELL, Circuit Judges. 
 
(Filed:  April 1, 2025) 
 
 
 2 
_____________ 
 
OPINION* 
_______________ 
 
RENDELL, Circuit Judge. 
Appellees Fillmore Capital Partners LLC and its affiliates (collectively “Golden 
Living”) operate nursing homes across the United States.  Appellant Phillip Hunter 
brought this qui tam action alleging that Golden Living engaged in fraud and violated the 
False Claims Act (“FCA”) and various state laws by submitting inflated claims for 
payment to Medicare and Medicaid.  The District Court granted Golden Living’s motion 
to dismiss Hunter’s complaint, concluding that he failed to meet the heightened pleading 
standard for fraud under Federal Rule of Civil Procedure 9(b) and failed to allege a prima 
facie case under the FCA.  We agree and will affirm.   
I. 
Golden Living operates 273 nursing homes across the country, including Golden 
Living-Riverchase in Birmingham, Alabama.  Hunter, a registered nurse, worked at this 
facility as a weekend supervisor and weekday treatment nurse from December 2006 until 
he resigned in February 2007.  Hunter claims that, in his two months at the nursing home, 
he learned that Golden Living engaged in a years-long scheme to overbill Medicare and 
Medicaid at each of its facilities.  This alleged scheme involved Golden Living 
intentionally admitting high-acuity residents who required more intensive care while 
 
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
 3 
simultaneously understaffing the facilities.  Although Golden Living billed Medicare and 
Medicaid for providing care to these high-acuity residents, Hunter alleges that Golden 
Living could not and, thus, did not provide adequate care to the residents.  This, he 
alleges, rendered Golden Living’s requests for payment fraudulent under the FCA and 
state law.   
In 2015, Hunter filed a sealed Complaint against eleven entities alleging violations 
of the FCA.1  From 2015 to July 2023, the United States filed over a dozen motions to 
continue to seal the Complaint while it investigated Hunter’s claims.  The United States 
ultimately declined to intervene.  Hunter then filed an Amended Complaint asserting five 
counts for violations of the federal FCA and twenty-three counts for state law violations.  
Later, the Amended Complaint was unsealed. 
Golden Living filed a motion to dismiss the Amended Complaint and the District 
Court granted it.  In opposing the motion to dismiss, Hunter principally relied on three 
categories of allegations to support his prima facie case under the FCA.  First, Hunter 
cited reports that he commissioned from “workload experts, database experts, computer 
simulation experts, and industrial engineers.”  J.A. 117 (footnote omitted).  These reports, 
he urged, showed that Golden Living’s submissions to Medicare and Medicaid for 
payments were fraudulent because they included material misrepresentations that were 
based on “mathematical[] and human[] impossib[ilities].”  Id.  Second, Hunter relied 
upon affidavits from two nurses employed at other Golden Living facilities describing 
 
1Golden Living disputes that it controls or operates all eleven named entities.  Because 
we will affirm the District Court’s order, we need not resolve this dispute.   
 4 
understaffing and purported overbilling.  Third, Hunter cited his personal experience at 
Golden Living’s Birmingham facility, as well as his letter of resignation, in which he 
described an “[i]nadequate number of staff” and inability to treat residents adequately as 
reasons for his resignation. J.A. 63.   
The District Court found these allegations insufficient to meet his burden of 
pleading a prima facie case of fraud under Federal Rule of Civil Procedure 9(b) and 
further concluded that because Hunter failed to state an FCA claim under Federal Rule of 
Civil Procedure 12(b)(6), it would not “exercise supplemental jurisdiction over Plaintiff’s 
state law claims.”  United States ex rel. Hunter v. Fillmore Cap. Partners, LLC, No. 15-
2134, 2024 WL 1051971, at *10 (E.D. Pa. Mar. 11, 2024).  Hunter appealed.   
II.2 
On appeal, Hunter essentially advances two arguments in favor of reversal:  (1) the 
District Court erroneously imposed a higher pleading standard than required under 
Federal Rule of Civil Procedure 9(b), and (2) the District Court failed to accept the 
allegations in the Amended Complaint as true and draw all reasonable inferences in his 
favor as required under Federal Rule of Civil Procedure 12(b)(6).  We reject both 
arguments.   
  
 
2The District Court had jurisdiction under 28 U.S.C §§ 1331 and 1367.  We have 
jurisdiction under 28 U.S.C. § 1291.  We review a district court’s grant of a motion to 
dismiss de novo. Howard Hess Dental Lab’ys Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 
246 (3d Cir. 2010). 
 5 
A. 
Hunter first urges that the District Court erred in finding his allegations 
insufficiently particular under Federal Rule of Civil Procedure 9(b).  An FCA plaintiff 
must comply with Federal Rule of Civil Procedure 9(b) and plead his fraud claims with 
particularity.  United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 242 n.9 (3d Cir. 
2004) (citing United States ex rel. LaCorte v. SmithKline Beecham Clinical Lab’ys, Inc., 
149 F.3d 227, 234 (3d Cir. 1998)).  To meet the pleading standard of Federal Rule of 
Civil Procedure 9(b), the plaintiff must allege “particular details of a scheme to submit 
false claims paired with reliable indicia that lead to a strong inference that claims were 
actually submitted.”  Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 156 (3d Cir. 
2014) (emphasis added) (citations and internal quotation marks omitted).  While a 
plaintiff need not produce “representative samples” of the alleged fraudulent conduct, id. 
at 156, he must allege the “who, what, when, where, and how” of the fraudulent scheme, 
United States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 
307 (3d Cir. 2016) (citation and internal quotation marks omitted).  However, “an 
inference of illegality based on facts that could plausibly have either a legal or illegal 
explanation would be insufficient to meet Rule 9(b)’s burden, because . . . the possibility 
of a legitimate explanation undermines the strength of the inference of illegality.”  United 
States v. Omnicare, Inc., 903 F.3d 78, 92 (3d Cir. 2018) (emphasis added) (citing Foglia, 
754 F.3d at 158).  
The District Court concluded that while Hunter “satisfied the first element of the 
Foglia test by making allegations of a scheme, . . . he . . . failed to satisfy the second 
 6 
element [in that] he ha[d] not alleged ‘reliable indicia’ of fraud that lead to a ‘strong 
inference that claims were actually submitted.’”  Hunter, 2024 WL 1051971, at *5 
(quoting Foglia, 754 F.3d at 156).  In reaching this conclusion, the District Court 
carefully considered the allegations Hunter cited as “reliable indicia of fraud.”  Id.  It 
determined that these allegations were too “vague,” otherwise “insufficient to provide 
reliable indicia of fraud,” id., or in some cases, entirely inconsistent with Hunter’s claim 
of fraud.  We agree.   
Hunter urges, as he did in opposing the motion to dismiss below, that his experts’ 
reports, which were submitted with his pleadings, constitute “mathematical evidence of 
the knowing and deliberate execution of fraud.”  Appellant Br. 25.  This, he further 
claims, supports a strong inference of fraud.  But the District Court correctly considered 
these reports and concluded that even if it “accept[ed] the experts’ conclusions at face 
value,” the reports “provide[] no more than [proof of a] ‘mere opportunity for fraud.’”  
Hunter, 2024 WL 1051971, at *6 (quoting United States ex rel. Gohil v. Sanofi-Aventis 
U.S. Inc., 96 F. Supp. 3d 504, 517 (E.D. Pa. 2015)).  That is, while the reports may 
support the proposition that “there were not sufficient employees to perform all the 
necessary work” for the given number of residents, this only supports that it was possible 
for Golden Living to commit fraud, not that it was probable.  Id.  As the District Court 
noted, Hunter did not allege that “he provided his experts with the claims actually billed 
at all 273 facilities in question.”  Id.  The existence of “the very real ‘possibility of [the] 
legitimate explanation’ that [Golden Living] pushed their employees hard and only billed 
for work performed ‘undermines the strength of the inference of illegality.’”  Id. (quoting 
 7 
Omnicare, 903 F.3d 78, 92 (3d Cir. 2018)).  Indeed, as the District Court recognized, 
Golden Living has a financial incentive in minimizing, to the extent permitted by law and 
regulation, staffing and overhead costs to maximize its profits.  Thus, the existence of a 
legitimate business explanation for Golden Living’s low staffing decision militates 
against any “strong inference” of fraud in this case as required by Foglia.   
Hunter’s allegations regarding his personal experience and references to his 
resignation letter also do not suffice as reliable indicia of fraud.  The District Court 
astutely recognized that, his personal experience “working at a Golden Living facility,” 
contrary to his urging, highlighted “his failure to allege reliable indicia of fraud.”  Id. at 
*5.  Hunter’s allegation that “he performed more work than he was supposed to and 
stayed late on multiple occasions,” id., supports the opposite inference that despite 
Golden Living’s high number of high acuity residents, Golden Living provided 
appropriate services, though at a high cost to staff morale.  See also J.A. 63 (alleging that 
Hunter “stay[ed] late” to ensure appropriate treatment was provided to his residents).  As 
the District Court further observed “[o]verwork alone does not equate to false claims 
being submitted.”  Hunter, 2024 WL 1051971, at *5 (emphasis added).  And other 
allegations based on his experience were too vague.  The District Court concluded, and 
we agree, that Hunter’s personal complaints “amount[ed] to generalized concerns about 
improper documentation made to unidentified administrators . . . at unspecified times, 
and . . . vague complaints that the care services provided to residents . . . were not 
consistent with accepted standards of medical practice.”  Hunter, 2024 WL 1051971, at 
*5 (citations and quotation marks omitted).   
 8 
Finally, two affidavits that Hunter submitted as part of his Amended Complaint 
fail to support his claims.  Both affidavits provide cumulative allegations of understaffing 
and inadequate patient care.  However, as the District Court explained, inadequate care is 
insufficient to sustain a worthless services claim under the FCA.  Furthermore, neither 
affidavit describes the affiants’ personal experiences or knowledge of submitting false 
claims as a part of a larger scheme.  While Hunter emphasizes that one affiant explained 
that “documentation was routinely filled in with nothing but guesswork or false entries to 
comply with the paperwork demands by management,” this allegation is too vague.  J.A. 
121.  The affiant did not identify examples of false claims, what forms were used to 
falsify the claims, or the specific residential locations implicated by these false claims.  
Although relators need not “identify a specific claim for payment” to allege a FCA 
violation, Foglia, 754 F.3d at 156, Foglia’s second element requires a greater degree of 
factual detail than these affidavits provide.  
 In short, we agree with the District Court that the allegations Hunter has set forth 
in his Amended Complaint are not “reliable indicia” of fraud sufficient to support a 
“strong inference that claims were actually submitted.”  Id. (quoting Grubbs, 565 F.3d at 
190) (internal quotation marks omitted).   
B. 
Next, Hunter contends the District Court erred in dismissing Hunter’s complaint 
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).  In reviewing a 
motion to dismiss, we accept as true a complaint’s factual allegations and view them in 
the light most favorable to the plaintiff.  Phillips v. County of Allegheny, 515 F.3d 224, 
 9 
233 (3d Cir. 2008).  We must “consider only the complaint, exhibits attached to the 
complaint, matters of public record, as well as undisputably authentic documents if the 
complainant’s claims are based upon these documents.”  Mayer v. Belichick, 605 F.3d 
223, 230 (3d Cir. 2010). 
To establish a prima facie case under the FCA, a relator must show “(1) the 
defendant presented or caused to be presented to an agent of the United States a claim for 
payment; (2) the claim was false or fraudulent; and (3) the defendant knew the claim was 
false or fraudulent.” Zimmer, 386 F.3d at 242 (quoting Hutchins v. Wilentz, Goldman & 
Spitzer, 253 F.3d 176, 182 (3d Cir. 2001)).  To satisfy the falsity element, a claim can be 
factually or legally false.  Factually false claims “misrepresent[] what goods or services 
that [the claimant] allegedly provided to the government.”  United States ex rel. Wilkins v. 
United Health Grp., Inc., 659 F.3d 295, 305 (3d Cir. 2011), overruled on other grounds 
by, Universal Health Servs., Inc. v. United States, 579 U.S. 176 (2016).  Legally false 
claims involve a claimant who “knowingly falsely certifies that it has complied with a 
statute or regulation the compliance with which is a condition for Government payment.” 
Id. Knowledge is defined as “actual knowledge,” “deliberate indifference of the truth or 
falsity of the information,” or “reckless disregard of the truth or falsity of the 
information.”  31 U.S.C. § 3729(b)(1)(A).  
The District Court concluded that Hunter failed to state a prima facie FCA claim 
because he did not allege facts to support either factual or legal falsity under either false 
claims theory.  We agree.   
 
 10 
1. 
First, Hunter’s Amended Complaint fails to allege factual falsity on an “inflated 
claims” theory, see Hunter, 2024 WL 1051971, at *7-8, or “worthless services” theory, 
see id. at *8-9.  As the District Court concluded that Hunter failed to meet his standard of 
pleading fraud with particularity under Federal Rule of Civil Procedure 9(b), it easily 
concluded that Hunter also failed to plead facts to support either theory of factual falsity.  
While the District Court recognized that Hunter made “substantial allegations of 
understaffing . . . . [, he failed] to take the next step and allege that [Golden Living] 
submitted false claims.”  Id. at *7 (emphasis added).  Instead, Hunter merely “revert[ed] 
to the same conclusory formulas that simply restate the element of falsity.”  Id. at *8.  In 
essence, the “allegations [we]re [insufficient] . . . pleadings on information and belief.”  
Id.  (concluding that “[Hunter’s] vague allegations of mistreatment of patients are not 
specific enough to allege falsity under Rule 9(b).”).   
2. 
Hunter’s Amended Complaint also fails to allege either legal falsity or implied 
legal falsity.  Express false certifications occur when a claimant “falsely certif[ies] that it 
is in compliance with regulations which are prerequisites to Government payment in 
connection with the claim for payment of federal funds.”  Wilkins, 659 F.3d at 305. 
Implied false certifications “attach[] when a claimant seeks and makes a claim for 
payment from the Government without disclosing that it violated regulations that affected 
its eligibility for payment.”  Id.  
 11 
First, Hunter fails to allege express false certification because he has failed to 
allege factual falsity.  Although he urges that he has sufficiently plead legal falsity by 
alleging “a clear picture of the circumstances that constitute the falsity of the claims 
[Golden Living] submitted,” as the District Court wrote, his failure to allege factual 
falsity also dooms his claim of express legal falsity.  Appellant Br. 39.  Hunter does not 
allege who submitted fraudulent claims, what the fraudulent claims said, specific 
locations where the fraudulent claims occurred, or which patients were impacted by the 
fraudulent claims.  See Moore, 812 F.3d at 307. 
Second, Hunter fails to allege implied false certification because he likewise made 
generalized and conclusory claims that Defendants “violated . . . existing regulations by 
failing to comply with the staffing regulations.”  Hunter, 2024 WL 1051971, at *10.  The 
District Court concluded in the alternative, and we agree, that “[e]ven if false 
certifications were made, [Hunter] ha[d] not sufficiently alleged that those certifications 
were material” to the government’s decision to pay the claims.  Id.  Instead, Hunter relied 
on “boilerplate language” to support his claims without explaining whether violations of 
the language had any impact on the government’s payment decision.  Id. 
Because Hunter has failed to allege the falsity element of an FCA claim, the 
allegations of his Amended Complaint are insufficient to survive a Rule 12(b)(6) motion.  
III. 
For these reasons, we will affirm the order of the District Court.   
 


Phillip Hunter v. Fillmore Capital Partners LLC

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-4-2025 
Dixon Villatoro v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Dixon Villatoro v. Attorney General United States of America" (2025). 2025 Decisions. 266. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/266 
This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2747 
___________ 
 
DIXON JAVIER VILLATORO, 
                                 Petitioner 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
____________________________________ 
 
On Petition for Review of an Order of the 
Board of Immigration Appeals 
(Agency No. A087-391-551) 
Immigration Judge: Richard Bailey 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 13, 2025 
 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: April 4, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 Dixon Javier Villatoro petitions for review of his order of removal.  We will deny  
his petition. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
I. 
 Villatoro is a citizen of Honduras who was removed from the United States in 
2011.  He illegally reentered the United States in 2021, and the Government later 
reinstated his removal order and placed him in a “withholding-only” proceeding.   
Through counsel, who represented Villatoro at all stages of that administrative 
proceeding, he sought relief on two grounds.  First, he claimed to fear harm because of 
his familial relations and his potential future political activity.  The basis for this claim 
was that Villatoro is a distant cousin of Berta Cáceres, a political activist who was killed 
in Honduras in 2016.  Villatoro claimed that, although he has not been politically active 
himself, he might pursue politics in the future.  He further claimed that, when he told 
people at a business event that he was related to Cáceres, they told him to “be careful.”  
Second, Villatoro claimed that gang members extorted money from his barbershop until 
he closed it during the pandemic and came to the United States.  On the basis of these 
claims, Villatoro applied for statutory withholding of removal on the ground that he faces 
persecution because of (1) his actual or imputed political opinion, and (2) his membership 
in a particular social group defined as relatives of Cáceres.  He also applied for relief 
under the Convention Against Torture (“CAT”).   
 An Immigration Judge (“IJ”) found Villatoro’s testimony on these points credible 
but denied relief.  The IJ denied his application for statutory withholding on several 
grounds, including that he did not show a nexus between any harm he might face in 
Honduras and a protected ground as required by 8 U.S.C. § 1231(b)(3)(A).  The IJ also 
denied his CAT application on the ground that he did not show that he likely would be 
 
3 
 
tortured in Honduras as required by 8 C.F.R. § 1208.16(c)(2) because, inter alia, his claim 
that he might be tortured for future political activities was speculative.  Villatoro 
appealed to the Board of Immigration Appeals (“BIA”), but the BIA affirmed these 
rulings and dismissed his appeal.  The BIA also denied a motion that he filed to remand 
to the IJ for consideration of new evidence.  Villatoro petitions for review pro se.1 
II. 
 Villatoro raises three arguments that potentially state grounds for relief, but they 
lack merit.  First, he challenges the IJ’s conclusion that he failed to show a nexus between 
any potential harm in Honduras and his proffered protected grounds—i.e., actual and 
imputed political opinion and membership in the putative particular social group defined 
as relatives of Cáceres.  Villatoro can prevail on this challenge only if the record compels 
the conclusion that one or more of these grounds would be “one central reason” for any 
persecution he might face in Honduras.  Thayalan, 997 F.3d at 138, 142-43.   
The record does not compel that conclusion.  Villatoro’s sole argument on this 
point is that “[i]ndividuals and organizations have continued to target members of 
[Cáceres’s] family, even after her assassination” in 2016.  (Pet’r’s Br. at 2.)  Villatoro has 
not cited any evidence to that effect.  It appears that Villatoro is referring to an article 
 
1 We have jurisdiction under 8 U.S.C. § 1252(a)(1).  We review the IJ’s and BIA’s 
decisions together because the BIA both relied on the IJ’s conclusions and provided its 
own analysis.  See Thayalan v. Att’y Gen., 997 F.3d 132, 137 (3d Cir. 2021).  We review 
factual findings for substantial evidence and may not disturb them unless “any reasonable 
adjudicator would be compelled to conclude to the contrary.”  Id. (cleaned up).  We 
review legal rulings de novo and review the denial of a motion to remand for abuse of 
discretion.  See Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 383 (3d Cir. 2020). 
 
4 
 
reporting that one of Cáceres’s daughters survived an attack in 2017.  (A.251.)2  As the 
Government argues, Villatoro is not similarly situated.  The same article reporting the 
attack on Cáceres’s daughter also reports that she was engaged in the same kind of 
political activism as Cáceres.  (Id.)  But Villatoro testified, and the IJ found, that he has 
not been politically active himself.  (A.90, 160, 189.)  Villatoro also is more distantly 
related to Cáceres.   
Thus, the mere fact that someone targeted one of Cáceres’s daughters in 2017 does 
not compel the conclusion that Villatoro’s more distant relation to Cáceres would lead 
anyone to target him.  Nor does any other evidence of record, including Villatoro’s 
testimony that unidentified people at a business conference told him to “be careful.”  
(A.190, 199.)  In addition, Villatoro has not challenged the IJ’s finding that he failed to 
show any nexus between the extortion of his barbershop and a protected ground, and that 
finding is supported by substantial evidence for the reasons that the agency explained.3   
Second, Villatoro argues that the agency erred in denying his CAT application.   
As the Government argues, Villatoro has forfeited this challenge because he has not 
raised any specific challenge to the IJ’s finding that he failed to prove a likelihood of 
torture in Honduras or any other specific challenge to the denial of CAT relief.  But the 
 
2 The Government has filed two administrative records in this case.  Citations to the 
record herein are to the record docketed September 27, 2024, at Docket No. 10. 
 
3 As the Government argues, the lack of a nexus with a protected ground is sufficient to 
resolve Villatoro’s application for statutory withholding.  Thus, we need not reach other 
issues that he raises as to that application, including whether his putative particular social 
group is cognizable (which the BIA similarly did not reach). 
 
5 
 
Government also argues that this challenge lacks merit, and we agree on that score as 
well.  Substantial evidence supports the IJ’s finding that Villatoro did not show that he 
likely will be tortured in Honduras for the reasons that the agency explained.  For the 
same reasons, the agency’s analysis of that issue comported with the framework required 
by Myrie v. Attorney General, 855 F.3d 509, 516 (3d Cir. 2017), and Kaplun v. Attorney 
General, 602 F.3d 260, 269-72 (3d Cir. 2010). 
Third and finally, Villatoro argues that the BIA erred in denying his motion to 
remand.  Once again, Villatoro has forfeited this challenge because he has not raised any 
specific challenge to the BIA’s ruling.  And once again, this challenge also lacks merit.  
Villatoro asked the BIA to remand for the IJ to consider additional evidence of his 
familial relation to Cáceres.  (A.21-32.)  But the agency did not question his familial 
relation to Cáceres or fault him for failing to document it.  Instead, the agency properly 
concluded that he failed to show that anyone would target him because of that relation.  
The evidence that Villatoro presented with his motion to remand had no bearing on that 
issue.  Thus, the BIA did not abuse its discretion in denying the motion on the ground 
that Villatoro’s new evidence, together with evidence already of record, did not show a 
reasonable likelihood that he was entitled to withholding of removal.  See Tilija v. Att’y  
Gen., 930 F.3d 165, 171 (3d Cir. 2019).  
III. 
 For these reasons, we will deny the petition for review.  Villatoro’s second motion 
to stay his removal is denied as moot in light of our denial of his petition for review.  See 
Catney v. INS, 178 F.3d 190, 196 n.9 (3d Cir. 1999). 


Dixon Villatoro v. Attorney General United States of America

USA v. Kevin Coles

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-8-2025 
Muhammad Bilal v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Muhammad Bilal v. Attorney General United States of America" (2025). 2025 Decisions. 272. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/272 
This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
      NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2509 
___________ 
 
MUHAMMAD BILAL, 
   Petitioner 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
____________________________________ 
 
On Petition for Review of an Order of the 
Board of Immigration Appeals 
(Agency No. A219-053-872) 
Immigration Judge:  Tamar Wilson 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
April 7, 2025 
Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: April 8, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
 Muhammad Bilal petitions for review of a decision of the Board of Immigration 
Appeals (BIA).  For the reasons that follow, we will deny the petition for review. 
 Bilal, a national of Pakistan, entered the United States in 2016 as a tourist.  In 
September 2023, he was charged as removable for overstaying his admission period.  
Represented by counsel, he filed applications for asylum, withholding of removal, and 
relief under the Convention Against Torture.  An Immigration Judge (IJ) determined that 
Bilal had filed incomplete applications for relief and had abandoned his applications for 
asylum, withholding of removal, and CAT relief.  The IJ ordered him removed to 
Pakistan. 
Bilal filed a counseled appeal to the BIA and later retained new counsel.  The BIA 
dismissed his appeal, affirming the IJ’s denial of Bilal’s applications for relief as 
abandoned.  It noted that Bilal made a reference to changed country conditions in 
Pakistan but had provided no explanation or submitted any new and previously 
unavailable evidence.  The BIA also rejected Bilal’s request to reopen his proceedings 
based on ineffective assistance of prior counsel as he had not shown that he had satisfied 
any of the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 
1988).  In addition, the BIA denied Bilal’s motion to reopen to pursue adjustment of 
status based on his marriage to a citizen.  It explained that even if it determined that Bilal 
had met the standard of Matter of Velarde, 23 I. & N. Dec. 253, 256 (BIA 2002) 
(addressing factors necessary to grant a motion to reopen based on an unadjudicated visa 
petition), it would deny reopening as an exercise of discretion based on the negative 
3 
 
factors found in the Government’s evidence:  Bilal’s separate arrests for driving with a 
suspended license and fraudulent license plates, recklessly firing a firearm, and choking 
his wife and preventing her from calling the police.  Bilal filed a timely pro se petition for 
review.  We have jurisdiction pursuant to 8 U.S.C. § 1252. 
In his brief, Bilal first argues that he has newly discovered evidence.  We may 
decide a petition for review only on evidence in the administrative record.  See 8 U.S.C. 
§ 1252(b)(4)(A).  Thus, we may not consider Bilal’s new evidence. 
Bilal also contends that the IJ and BIA should not have relied on his prior arrests 
because he was never charged under any statute that authorizes the imposition of 
immigration consequences and that the Government bore a burden of establishing his 
conduct by clear and convincing evidence.  Bilal, however, points to no statute, 
regulation, or precedent that requires the Government to charge a citizen under a 
particular statute before considering a conviction or arrest for a discretionary 
determination.  Cf. Doyduk v. Att’y Gen., 66 F.4th 132, 135-37 (3d Cir. 2023) (holding 
that an IJ may consider expunged charges for a discretionary determination and noting 
that such a “restriction on the IJ’s discretion finds no footing in the text of the INA, 
precedent, state law, or the Constitution”).  Bilal appears to mistakenly believe that his 
criminal history is the basis for his removability and must be established by clear and 
convincing evidence.  See 8 C.F.R. § 1240.8 (providing that Government must show 
removability by clear and convincing evidence).  Bilal, however, is removable for 
overstaying his admission period.  See 8 U.S.C. § 1227(a)(1)(B).  And it was Bilal’s 
4 
 
burden to show that he was eligible for relief from removal and merited a favorable 
exercise of discretion.  See 8 U.S.C. § 1229a(c)(4)(A). 
As noted earlier, the BIA denied Bilal’s motion to reopen to pursue adjustment of 
status.  Bilal challenges the BIA’s reliance on his purported admission that he married his 
first wife to obtain legal status despite the fact that he denied making such a statement.  
The BIA noted that, besides the birth certificate for their son, Bilal had not submitted 
evidence that he and his second wife intended to establish a life together at the time of 
their marriage.  The BIA emphasized the importance of such evidence in light of Bilal’s 
admission as well as the fact that Bilal had been subject to a protective order regarding 
his then-current wife.  Thus, the BIA did not deny the motion to reopen based on Bilal’s 
disputed admission; rather, it determined that he had not met his burden of submitting 
clear and convincing evidence that his marriage was bona fide.  See Velarde, 23 I. & N. 
Dec. at 256 (requiring, inter alia, that a motion to reopen to adjust status present clear and 
convincing evidence that the respondent’s marriage is bona fide).  In any event, as noted 
earlier, the BIA stated that even if Bilal met the requirements for reopening, it would 
deny reopening and adjustment of status as a matter of discretion.  And to the extent that 
Bilal challenges the BIA’s factual findings in denying adjustment of status, we lack 
jurisdiction to review those findings.  See 8 U.S.C. § 1252(a)(2)(B)(i); Cortez-Amador v. 
Att’y Gen., 66 F.4th 429, 433–34 (3d Cir. 2023) (citing Patel v. Garland, 596 U.S. 328, 
331 (2022)). 
5 
 
Bilal has not shown that the BIA erred in dismissing his appeal.  Accordingly, we 
will deny the petition for review.  
 


Muhammad  Bilal v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-9-2025 
Vito Manente v. Commissioner of Internal Revenue 
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"Vito Manente v. Commissioner of Internal Revenue" (2025). 2025 Decisions. 276. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2548 
__________ 
 
VITO MANENTE, 
   Appellant 
 
v. 
 
COMMISSIONER OF INTERNAL REVENUE 
____________________________________ 
 
On Appeal from the United States Tax Court 
(U.S. Tax Court No. 23-1013) 
Tax Court Judge: Honorable Elizabeth A. Copeland 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 26, 2025 
 
Before:  BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: April 9, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 Vito Manente appeals pro se from the United States Tax Court’s decision that he 
had an income tax deficiency for tax year 2018.  We will affirm.  
I. 
 Manente, a certified public accountant, and his then-wife filed a joint income tax 
return for tax year 2018 reporting zero wages and salaries and claiming a tax refund of 
almost $30,000.  They attached a statement to their return averring that they received no 
income from their employers, but that their employers had withheld amounts for taxes.  
Based on information submitted by third parties, the Internal Revenue Service 
Commissioner determined that in 2018, Manente received approximately $116,000 in 
wages, and his then-wife earned about $72,000.  The Commissioner also determined that 
the Manentes received state income tax refunds from New York and New Jersey that 
year.  Accordingly, the Commissioner determined that there was a $23,416 income tax 
deficiency and mailed Manente a notice of deficiency in that amount.  The Commissioner 
also assessed an accuracy-related penalty under 26 U.S.C. § 6662(a).1   
 Manente filed a petition with the Tax Court and challenged the Notice of 
Deficiency.2  He argued that the payments that he and his then-wife received in 2018 
 
1 The Commissioner also assessed civil penalties for filing frivolous tax returns, but 
Manente agreed at trial that the civil penalties were not before the Tax Court, and 
Manente challenged those penalties in the United States District Court for the District of 
New Jersey in Case Number 2:22-cv-7524.   
 
2 Manente’s ex-wife initially joined the petition but was later dismissed from the action.  
 
3 
 
were not taxable under the Sixteenth Amendment or as gross income, and that the 
Manentes were not “employees” under 26 U.S.C. § 3401(c), so they did not receive 
“wages.”   
After a trial, the Tax Court sustained some, but not all, of the Commissioner’s 
determinations.  The Court found that there was sufficient evidence to sustain the 
findings that the Manentes received the wage amounts reflected in the notice of 
deficiency, and that they received the state tax refund from New York.  The Court, 
however, declined to sustain the Commissioner’s determination that the Manentes 
received the New Jersey refund, and it declined to sustain the accuracy-related penalty.  
After considering computations from both parties, the Tax Court decided that there was a 
$22,742 deficiency in income tax due from Manente for the 2018 tax year, but that 
Manente owed no accuracy-related penalty.  Manente appealed.   
II. 
 We have jurisdiction under 26 U.S.C. § 7482(a)(1).  We exercise plenary review 
over the Tax Court’s legal conclusions, and we review the Tax Court’s factual findings 
for clear error.  PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822, 827 (3d Cir. 2000).  “Clear 
error exists only if a finding is completely devoid of a credible evidentiary basis or bears 
no rational relationship to the supporting data.”  Interfaith Cmty. Org. v. Honeywell Int’l, 
Inc., 399 F.3d 248, 254 (3d Cir. 2005) (cleaned up). 
 
4 
 
 Generally, the Commissioner’s deficiency determination is presumed correct, and 
the taxpayer has the burden to rebut that presumption.  Resyn Corp. v. United States, 851 
F.2d 660, 662-63 (3d Cir. 1988).  But in a case involving unreported income, a court 
cannot apply the presumption of correctness unless the Commissioner presents “some 
predicate evidence connecting the taxpayer to the charged activity.”  Anastasato v. 
Comm’r, 794 F.2d 884, 887 (3d Cir. 1986) (quoting Gerardo v. Comm’r, 552 F.2d 549, 
554 (3d Cir. 1977)).  
 Here, the Tax Court properly applied the presumption of correctness to the 
determinations regarding the Manentes’ wages and the New York refund based on 
Manente’s trial admissions.  The Court found that, in response to questioning at trial, 
Manente agreed that in 2018, he and his ex-wife received money in the amounts listed in 
the deficiency notice from their employers and from New York.  Contrary to Manente’s 
assertion on appeal, sufficient record evidence supports the Tax Court’s factual findings.   
 Manente additionally argues that the Tax Court erred by determining that the 
compensation he and his ex-wife received from their employers in 2018 was subject to 
taxation.3  He asserts that the Commissioner failed to establish that the monies were 
“wages.”  He points to 26 U.S.C. § 3401(a), which defines “wages” in relevant part as 
“all remuneration . . . for services performed by an employee for his employer.”  He then 
 
3 Manente does not dispute on appeal that the New York refund was taxable income.  
See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (explaining that generally, litigants 
forfeit claims that they fail to develop in their opening brief).   
 
5 
 
claims that he and his ex-wife were not “employees” under § 3401(c) because they did 
not work for the government.  We reject Manente’s narrow interpretation of an 
“employee” under § 3401(c).  That statute provides that the term “employee” includes 
government officers and employees, not that the term “employee” is limited to 
government officers and employees.  See 26 U.S.C. § 3401(c); see also United States v. 
Latham, 754 F.2d 747, 750 (7th Cir. 1985). 
 Next, Manente argues that the Commissioner’s income tax assessment was 
unconstitutional because it was not apportioned.  He claims that “all direct taxes are 
subject to apportionment.”  But under the Sixteenth Amendment, Congress has power to 
tax income without apportionment.  See U.S. Const. amend. XVI; see also Pledger v. 
Comm’r, 641 F.2d 287, 290 (5th Cir. 1981) (noting “that the Sixteenth Amendment did 
not limit or expand the power of Congress to tax under Article 1, Section 8 of the 
Constitution”); Lovell v. United States, 755 F.2d 517, 519 (7th Cir. 1984) (per curiam) 
(explaining that the Constitution does not prohibit imposition of a direct tax without 
apportionment).  
 Finally, we reject Manente’s argument that his wages were not taxable income, 
and that the Commissioner could only tax the “gain” or “profit” derived from his 
compensation.  Congress can tax income “from whatever source derived.”  U.S. Const. 
amend. XVI.  Gross income includes “[c]ompensation for services.”  26 U.S.C. 
 
6 
 
§ 61(a)(1).  Courts have consistently rejected the argument that wages are not income.  
United States v. Connor, 898 F.2d 942, 943-44 (3d Cir. 1990). 
 Accordingly, we will affirm the Tax Court’s decision.  To the extent that Manente 
seeks other relief on appeal, it is denied.  


Vito Manente v. Commissioner of Internal Revenue

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-16-2025 
In re: Abrahim Fata 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In re: Abrahim Fata" (2025). 2025 Decisions. 295. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
CLD-101        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3033 
___________ 
 
In Re: ABRAHIM FATA, 
   Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(E.D. Pa. Civil Action No. 5:24-cv-02402) 
District Judge:  Honorable Mitchell S. Goldberg 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
March 13, 2025 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed:  April 16, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 Appellant Abrahim Fata, proceeding in forma pauperis, appeals from the District 
Court’s order dismissing his amended complaint.  For the reasons that follow, we will 
summarily affirm the District Court’s judgment. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
 
2 
 In June 2024, Fata initiated a civil rights action in the District Court.  In his 
amended complaint, he alleged that he and his children were the victims of a conspiracy 
to cover up the sexual abuse of his son in 2016.  After the first conspiracy, he alleged that 
there was “another conspiracy to cover up the previous crime, and then another 
conspiracy again, over and over.”  See Am. Compl. at ECF p. 2.  Fata named dozens of 
individuals, along with various municipal, state, and federal entities, as defendants.  He 
then listed dozens of state and federal statutory provisions, including various criminal 
offenses and rules of professional and judicial conduct.  After granting Fata’s application 
to proceed in forma pauperis, the District Court: (1) dismissed Fata’s claims on his own 
behalf as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and (2) dismissed for lack of 
standing any claims that Fata sought to bring on behalf of his children.  Fata timely 
appealed. 
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.  We construe 
Fata’s allegations liberally and exercise plenary review over the District Court’s 
dismissal order.  See Durham v. Kelley, 82 F.4th 217, 223 (3d Cir. 2023).  We may 
summarily affirm a district court’s decision “on any basis supported by the record” if the 
appeal fails to present a substantial question.  See Murray v. Bledsoe, 650 F.3d 246, 247 
(3d Cir. 2011) (per curiam). 
We agree with the District Court’s decision to dismiss this case.  To the extent that 
Fata sought to bring any claims on behalf of his children, he is not an attorney and cannot 
represent them pro se.  See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d 
 
 
3 
Cir. 1991).  Although Fata insists that a wide-ranging conspiracy has been perpetrated 
against him by more than 50 individuals and entities, his complaint lacks any specific 
factual allegations to explain how he might be entitled to relief.1  See Ashcroft v. Iqbal, 
556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads 
factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”).  Fata’s belief that a conspiracy exists is not sufficient 
to survive dismissal.  See Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (“[W]e 
are not compelled to accept unsupported conclusions and unwarranted inferences, or a 
legal conclusion couched as a factual allegation.”) (citation omitted). 
Accordingly, we will summarily affirm the judgment of the District Court. 
 
1   Fata has not clarified his claims in any of his filings to suggest that he could offer 
additional factual allegations to overcome dismissal.  Because Fata had an opportunity to 
amend his complaint, granting him further leave to amend would have been futile and it 
was appropriate to dismiss the claims Fata brought on his own behalf with prejudice.  See 
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 


In re: Abrahim Fata

USDC for the Western District of Pennsylvani

USA v. David Payo

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-29-2025 
Gerard Bornemann, III v. Atlantic County Department of Public 
Safety 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Gerard Bornemann, III v. Atlantic County Department of Public Safety" (2025). 2025 Decisions. 339. 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-2300 
_______________ 
GERARD BORNEMANN, III, 
   Appellant 
v. 
ATLANTIC COUNTY DEPARTMENT OF PUBLIC SAFETY; MICHAEL FEDORKO; 
ATLANTIC COUNTY JUSTICE FACILITY; WARDEN DAVID KELSEY; 
COUNTY OF ATLANTIC, also known as ATLANTIC COUNTY, NEW JERSEY; 
ATLANTIC COUNTY JAIL AND DIVISION OF ADULT DETENTION; 
GERARD L. GORMLEY JUSTICE FACILITY, also known as ATLANTIC COUNTY 
JUSTICE FACILITY 
_______________ 
On Appeal from the United States District Court  
for the District of New Jersey 
(D.C. No. 1:22-cv-03562) 
Chief District Judge: Honorable Renée M. Bumb 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on April 29, 2025 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, Circuit Judges 
(Filed: April 29, 2025) 
_______________ 
OPINION* 
_______________ 
 
*  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
2 
BIBAS, Circuit Judge.  
Gerard Bornemann was arrested for aggravated assault and jailed at the Atlantic County 
Justice Facility from 2020 through early 2022. While there, he disobeyed orders, fought 
with inmates and staff, and smeared urine and feces on the walls. Throughout the second 
half of 2020, the jail strapped and shackled Bornemann to a chair or a bed for days or weeks 
at a time, allegedly even when he was calm.  
Bornemann sued the jail and various officials in federal court for violating his rights 
under the U.S. and New Jersey constitutions. Under the Prison Litigation Reform Act 
(PLRA), prisoners must exhaust their administrative remedies before they may challenge 
conditions of their confinement under federal law. 42 U.S.C. § 1997e(a). The District Court 
found that Bornemann had not exhausted his administrative remedies before bringing this 
suit. Though he had previously filed many other grievances, he never filed an inmate-
grievance form complaining about these restraints. So the court granted summary judg-
ment to defendants.  
 Bornemann now appeals. We defer to the District Court’s factual findings about exhaus-
tion, reviewing them only for clear error. Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 304 
(3d Cir. 2020). 
 We start with which remedies were “available” to Bornemann, because the PLRA re-
quires prisoners to exhaust only those. Id.; Ross v. Blake, 578 U.S. 632, 638 (2016). Borne-
mann concedes that the jail had a grievance procedure and that he did not use it to challenge 
being put in restraints. But he argues that he was restrained pursuant to memos that the jail 
never told him about. So he says he could not file a grievance about memos that he did not 
3 
know existed, and thus the grievance process was not available to him. But his lawsuit is 
not about the memos. It is about being put in restraints for days at a time, allegedly without 
justification. And he certainly knew that he had been restrained and could have filed a 
grievance about it afterwards, making this administrative remedy available. Because he did 
not exhaust that remedy, we will affirm. 
 We note that Bornemann brought not only federal claims but also ones under New Jer-
sey law. And it is not clear that the PLRA’s exhaustion requirement applies to state-law 
claims. 42 U.S.C. § 1997e(a) (barring action “brought … under Federal law” when prisoner 
has not exhausted available administrative remedies). But Bornemann does not challenge 
the District Court’s ruling on those grounds, so we do not reach that issue. 


Gerard Bornemann, III v. Atlantic County Department of Public Safety

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-30-2025 
Mia Bird v. Mastery Charter Schools 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Mia Bird v. Mastery Charter Schools" (2025). 2025 Decisions. 342. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/342 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-2228 
_______________ 
MIA A. BIRD, 
   Appellant 
v. 
MASTERY CHARTER SCHOOLS 
_______________ 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. No. 2:21-cv-00747) 
Chief District Judge: Honorable Mitchell S. Goldberg 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on April 29, 2025 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, Circuit Judges 
(Filed: April 30, 2025) 
_______________ 
OPINION* 
_______________ 
BIBAS, Circuit Judge.  
Mia Bird, a black woman, worked for a company called Nutrition Group that runs caf-
eterias for schools. One of Nutrition Group’s clients was Mastery Charter Schools, which 
 
*  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
 
2 
runs charter schools in and around Philadelphia. Nutrition Group promoted Bird to regional 
manager and later assigned her to oversee the cafeteria programs at Mastery’s ten schools 
in the area as well as at three non-Mastery schools. A year later, Nutrition Group made her 
resident regional manager of the Mastery network. As a resident regional manager, Bird 
was expected to spend 80% of her time on the Mastery schools and to work from an office 
at one Mastery school, but she was also still responsible for the three non-Mastery schools. 
That put her in close contact with managers at Mastery.  
Bird complained to Mastery that Mastery’s managers had acted discriminatorily. She 
alleged that two had made racially discriminatory remarks to her and others and treated 
them unequally based on race. And she alleged that a third manager had made a racially 
discriminatory remark to someone else. When nothing happened to those managers, Bird 
filed complaints with the Equal Employment Opportunity Commission (EEOC) and the 
U.S. Department of Agriculture. In response, one of the Mastery managers named in the 
complaint asked the other two not to speak with Bird without having someone else present.  
Four months after Bird’s complaint to the EEOC, the president of Nutrition Group’s 
school division took Bird off the Mastery account, reassigning her to other schools. That 
left her base pay the same but could have affected her bonus, which was tied to the financial 
performance of the accounts she oversaw. About a month later, Bird filed additional com-
plaints of discrimination and retaliation with the EEOC and Pennsylvania Human Relations 
Commission. She then injured herself, making her unable to work, and Nutrition Group 
fired her that day.  
 
3 
Bird sued Mastery under Title VII and the Pennsylvania Human Relations Act, claim-
ing that Mastery had treated employees worse because of their race, color, and sex. Those 
laws forbid such discrimination only by employers. 42 U.S.C. § 2000e-2(a); 43 Pa. Stat. 
§ 955. The District Court granted summary judgment for Mastery, finding no genuine dis-
pute that Bird was employed by Nutrition Group, not Mastery, so Bird had no cause of 
action under either law against Mastery. We review de novo. Tundo v. County of Passaic, 
923 F.3d 283, 286–87 (3d Cir. 2019). 
As the District Court found, Mastery was not Bird’s employer. Nutrition Group is the 
one that hired her, primarily trained her, paid her, evaluated her performance, and eventu-
ally fired her. Though Mastery’s contract with Nutrition Group budgeted for her salary, 
and Mastery once urged that she get a bonus during COVID, it did not issue her paychecks. 
No one at Mastery ever asked to have Bird on its account, to take Bird off its account, or 
to have her fired. Her employer was Nutrition Group, not Mastery. 
Resisting this conclusion, Bird stresses that Mastery had some day-to-day control over 
her tasks, showing that there was an employment relationship. See Faush v. Tuesday Morn-
ing, Inc., 808 F.3d 208, 213 (3d Cir. 2015) (quoting Nationwide Mut. Ins. Co. v. Darden, 
503 U.S. 318, 323–24 (1992) (“In determining whether a hired party is an employee under 
the general common law of agency, we consider the hiring party’s right to control the man-
ner and means by which the product is accomplished.”)). Mastery gave Bird an office at its 
premises, with keys, an access card, and an email account. It asked her to handle a range 
of tasks, ranging from training cashiers to attending health-department meetings. She 
claims that this control over her tasks was the “linchpin” that at least made her a co-
 
4 
employee of both businesses. Appellant’s Br. at 15. But “no one factor [is] decisive” in this 
multifactor analysis. Faush, 808 F.3d at 214 (quoting Darden, 503 U.S. at 324). As the 
District Court found, that modicum of control is not enough to outweigh the mound of 
other evidence that Nutrition Group, not Mastery, employed her. And, unlike in Faush, the 
record does not show that Mastery took responsibility for complying with labor laws as to 
Bird. See id. at 215. For the same reason, Bird’s retaliation and other discrimination claims 
fail.  
Because the District Court correctly found no factual dispute, we will affirm. 


Villanova University

Not a member yet

Jamar Travillion v. John Wetzel

Phillip Hunter v. Fillmore Capital Partners LLC

Dixon Villatoro v. Attorney General United States of America

USA v. Kevin Coles

Muhammad Bilal v. Attorney General United States of America

Vito Manente v. Commissioner of Internal Revenue

In re: Abrahim Fata

USA v. David Payo

Gerard Bornemann, III v. Atlantic County Department of Public Safety

Mia Bird v. Mastery Charter Schools

40,620

41,076