1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

AUG 25 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EW-14-1302-TaPaJu

)

SHUMATE SPOKANE, LLC, ) Bk. No. 09-05081-FLK11

)

Debtor. ) Adv. No. 11-80035-FLK

______________________________)

)

GEORGE F. LATUS; MICHAEL )

WILHITE; MATT THOMASSON; )

ARIC MUSE, )

)

Appellants, )

)

v. ) MEMORANDUM*

)

SHUMATE SPOKANE, LLC; JOHN )

MICHAEL SHUMATE; JENNIFER D. )

SHUMATE; HARLEY-DAVIDSON )

CREDIT CORPORATION; GE CAPITAL)

FRANCHISE FINANCE CORPORATION,)

)

Appellees. )

______________________________)

Submitted Without Oral Argument** on July 23, 2015

at Pasadena, California

Filed – August 25, 2015

Appeal from the United States Bankruptcy Court

for the Eastern District of Washington

Honorable Frank L. Kurtz, Bankruptcy Judge, Presiding

FILED

AUG 25 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1(c)(2).

** After examination of the briefs and record, in an order

entered December 15, 2014, the Panel unanimously determined that

oral argument was not needed for this appeal and granted

appellants’ motion for submission on the briefs and appellate

record. See Fed. R. Bankr. P. 8019(b); 9th Cir. BAP Rule 8019-

1.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 

Appearances: Timothy J. Carlson of Carlson Boyd, PLLC on

brief for Appellants Aric Muse, Matt Thomasson

and Michael Wilhite; Dianna J. Caley of Wong

Fleming, PC on brief for Appellee HarleyDavidson Credit Corporation; Jeffrey T. Wegner

and Lisa M. Peters of Kutak Rock LLP on brief

for Appellee GE Capital Franchise Finance

Corporation

 

Before: TAYLOR, PAPPAS, and JURY, Bankruptcy Judges.

INTRODUCTION1

This is the second time we consider this appeal, which

arises from the bankruptcy court’s judgment against appellants

Michael Wilhite, Matt Thomasson, and Aric Muse in their

adversary proceeding for the recovery of wages and employee

benefits. Previously, we determined that the order subject to

appeal was not final and dismissed the appeal for lack of

jurisdiction. See BAP No. EW-12-1249-TaPaJu, ECF No. 57. The

judgment is now final, and we now AFFIRM.

FACTS2

The Debtor filed its chapter 11 bankruptcy case on

September 9, 2009. Before filing, the Debtor operated

1 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 

All “Rule” references are to the Federal Rules of Bankruptcy

Procedure and all “Civil Rule” references are to the Federal

Rules of Civil Procedure.

2 We exercise our discretion to independently review

documents filed in the adversary proceeding and the underlying

bankruptcy case. See O’Rourke v. Seaboard Sur. Co. (In re E.R.

Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v.

Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9

(9th Cir. BAP 2003).

2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

motorcycle sales and repair shops licensed and franchised

through an entity related to Harley-Davidson Motor Company. On

June 10, 2010, the bankruptcy court entered an order approving

the sale of substantially all of the Debtor’s assets (“Sale

Order”). The Sale Order provided for payment in full of the

secured claim of Harley-Davidson Credit Corporation (“HarleyDavidson”), less a $33,333 carve-out and surcharge, and payment

of $400,000 to GE Capital Franchise Finance Corporation

(“GEFF”) on account of its secured claim, again less a $33,333

carve-out and surcharge.3

According to the Affidavit of Daniel Small, the GEFF VicePresident directly responsible for GEFF’s claims against the

Debtor, the business appeared to be inoperative at least six

months before the sale. Monthly Operating Reports filed by the

Debtor are consistent with this assertion as they routinely

reported that the Debtor had no employees, $0 in sales revenue,

and $0 in repair revenues.

On March 2, 2011, the Appellants commenced an adversary

proceeding naming five defendants: the Debtor, John Michial

Shumate, Jennifer Shumate, GEFF, and Harley-Davidson. They

3 In addition, the buyer agreed to pay into escrow an

additional $33,333, to be combined with the surcharge amounts

from GEFF and Harley-Davidson and to pay the “reasonable and

necessary costs and expenses of disposing of the collateral that

benefitted the two secured creditors through the sale process”

pursuant to § 506(c). The Appellants assert on appeal that they

received no payment from the sale proceeds. On September 20,

2011, however, the bankruptcy court entered a Stipulated Order

on Motion for Disbursement of “Carve Out” Contribution Funds,

which includes payments as follows from the surcharge proceeds:

$8,024.30 to Mike Wilhite, $8,136.25 to Matt Thomasson, and

$15,476.33 to Aric Muse, with such payments to be credited

against their post-petition compensation.

3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

amended their complaint almost immediately. The First Amended

Complaint (“FAC”) alleged that the Debtor continued to employ

them postpetition in managerial positions and stated “that

their help was necessary to keep the business operating so that

it could be sold as a going concern which would significantly

enhance the purchase price . . . .” First Am. Compl. ¶¶ 26-27. 

It also alleged that the Appellants were not paid any wages,

overtime, retirement, or other benefits for postpetition work

that provided benefit to GEFF and Harley-Davidson.

The FAC alleged claims for relief including recovery

under: (1) § 506(c); (2) quantum meruit or unjust enrichment

theories; and (3) the Fair Labor Standards Act. The

Appellants’ prayer for relief, as relevant to this appeal,

sought to collect the judgment directly from GEFF and HarleyDavidson.

Both GEFF and Harley-Davidson filed motions to dismiss

under Civil Rule 12(b)(6) as to all claims asserted in the FAC. 

GEFF generally argued that, other than identifying GEFF as a

corporation doing business in Washington, the FAC did not refer

to GEFF in a factual allegation and, in particular, failed to

allege that GEFF employed or had any contact with the

Appellants. As to the first claim, GEFF also argued that the

Appellants lacked standing to seek a § 506(c) surcharge and

that the bankruptcy court lacked subject matter jurisdiction as

a result of the standing deficiency and because the collateral

allegedly subject to § 506(c) surcharge was no longer property

of the estate.

Harley-Davidson raised similar arguments and further

4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

asserted that the Appellants were collaterally estopped from

seeking a surcharge based on the final Sale Order, which

allocated sale proceeds. It also argued that the FAC did not

adequately plead a valid quantum meruit or unjust enrichment

claim as Harley-Davidson was a fully secured creditor entitled

to payoff of its secured claim.

The Appellants next moved for leave to amend the FAC. 

Following hearings and supplemental briefing on the collective

motions, the bankruptcy court dismissed the first claim under

§ 506(c) with prejudice. It concluded that because the Debtor

sold GEFF and Harley-Davidson’s collateral free and clear, it

was no longer part of the bankruptcy estate and, thus, could

not be surcharged.

As to the remaining three claims, the bankruptcy court

granted the Appellants’ motion for leave to amend. It advised

the parties, however, that it would treat the pending motions

to dismiss as motions for summary judgment, so that it could

consider material outside the pleadings.

Pursuant to deadlines established by the bankruptcy court,

the Appellants filed a Second Amended Complaint (“SAC”), and

GEFF and Harley-Davidson answered. Both sides filed additional

declaratory evidence, and GEFF and Harley-Davidson filed

further legal argument. At a specially set hearing, the

bankruptcy court orally stated its ruling on the record. 

First, the bankruptcy court admonished the Appellants for

renewing their § 506(c) claim in the SAC and, once again,

dismissed it. It then granted summary judgment in favor of

GEFF and Harley-Davidson as to the remaining claims. It found

5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

that GEFF and Harley-Davidson submitted admissible evidence

sufficient to shift the burden on summary judgment to the

Appellants, and concluded that the Appellants did not meet

their burden to demonstrate the existence of specific and

material disputes of fact to be resolved at trial.

The bankruptcy court found that the undisputed evidence

established that the § 363 sale generated substantially less

than the secured debt. It also found that the Appellants did

not meet their burden to refute the evidence that the § 363

sale liquidated the assets of an inoperative business or that

the Appellants were neither employed by nor in communication

with GEFF and Harley-Davidson.

The bankruptcy court entered an order on May 1, 2012, and

the Appellants appealed. This Panel dismissed the appeal after

concluding that the May 1, 2012 order was not a final judgment

because the claims against the remaining three non-moving

defendants were unresolved. Likewise, it determined that leave

to appeal was not appropriate. Eventually, the Appellants

obtained a bankruptcy court order dismissing the remaining

claims against the Debtor, John Michial Shumate, and Jennifer

Shumate. 

On June 10, 2014, the Appellants appealed from the now

final judgment and commenced the present appeal.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(2)(O). We have jurisdiction under 28 U.S.C.

§ 158.

6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ISSUES

1. Whether the bankruptcy court erred when it dismissed the

Appellants’ § 506 claim.

2. Whether the bankruptcy court erred when it granted summary

judgment in favor of GEFF and Harley-Davidson on the

quantum meruit and unjust enrichment claims.

3. Whether the bankruptcy court erred when it granted summary

judgment in favor of GEFF and Harley-Davidson on the Fair

Labor Standards Act claim.4

STANDARDS OF REVIEW

We review both the bankruptcy court’s grant of the motion

to dismiss under Civil Rule 12(b)(6) and its grant of summary

judgment de novo. See Johnson v. Fed. Home Loan Mortg. Corp.,

--- F.3d ----, 2015 WL 4231519, at *2 (9th Cir. July 14, 2015)

(motion to dismiss); Bear Valley Mut. Water Co. v. Jewell,

790 F.3d 977, 986 (9th Cir. 2015) (summary judgment).

DISCUSSION

A. Motions to Dismiss the First Claim

1. Legal standards for a motion to dismiss under Civil 

Rule 12(b)(6)

A motion to dismiss under Civil Rule 12(b)(6)

(incorporated into adversary proceedings by Rule 7012(b))

challenges the sufficiency of the allegations set forth in the

complaint and “may be based on either a lack of a cognizable

legal theory or . . . sufficient facts alleged under a

4 The Appellants do not appeal from the bankruptcy court’s

grant of summary judgment in favor of GEFF and Harley-Davidson

as to any of the other claims in the SAC.

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

cognizable legal theory.” Johnson v. Riverside Healthcare

Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (internal

quotation marks and citation omitted). The court’s review is

limited to the allegations of material facts set forth in the

complaint, which must be read in the light most favorable to

the non-moving party, and together with all reasonable

inferences therefrom, must be taken to be true. Pareto v.

F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

Facts properly subject to judicial notice may be used to

establish that the complaint does not state a claim for relief. 

Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048,

1052 (9th Cir. 2007). Court documents filed in the underlying

bankruptcy case are subject to judicial notice in related

adversary proceedings. In re E.R. Fegert, Inc., 887 F.2d at

957-58.

The plaintiff must provide grounds for its entitlement to

relief, which requires more than labels and conclusions; and

the actions must be based on legally cognizable rights of

action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). The court need not accept as true threadbare recitals

of a cause of action’s elements, supported by mere conclusory

statements; and the plausibility of a claim is context-specific

on review of which the court may draw on its experience and

common sense. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The two-part analysis set out in Iqbal requires the court

to first identify the conclusory pleadings, which are not

entitled to the assumption of truth. See Moss v. U.S. Secret

Serv., 572 F.3d 962, 969 (9th Cir. 2009). Then, after

8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

discounting those pleadings, if there remain well-pleaded

factual allegations, the court should assume their truth and

then determine whether they plausibly give rise to an

entitlement to relief. Id.

2. Section 506(c) claim

Both GEFF and Harley-Davidson argued, among other things,

that the Appellants lacked standing to prosecute a § 506(c)

surcharge claim. The bankruptcy court dismissed the § 506(c)

claim, with prejudice, on this ground and others.

In pertinent part, § 506(c) states, “[t]he trustee may

recover from property securing an allowed secured claim the

reasonable, necessary costs and expenses of preserving . . .

such property to the extent of any benefit to the holder of

such claim.” The Appellants do not expressly argue that they

have statutory standing. Instead, they argue that the

bankruptcy court should have granted them derivative standing,

presumably under § 105(a). We disagree.

The Supreme Court held in Hartford Underwriters Ins. Co.

v. Union Planters Bank, N.A., that Congress granted the power

to seek a § 506(c) surcharge only to the trustee (and in

chapter 11 cases, the debtor-in-possession). 530 U.S. 1, 6 n.3

(2000) (citing 11 U.S.C. § 1107(a)). The bankruptcy court’s

powers are limited by the clear language of the Bankruptcy

Code, and the general provisions of § 105(a) may not be used to

expand standing to seek a § 506(c) surcharge. See Law v.

Segal, 134 S. Ct. 1188, 1194 (2014) (“We have long held that

‘whatever equitable powers remain in the bankruptcy courts must

and can only be exercised within the confines of’ the

9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Bankruptcy Code.”) (citation omitted); Hamilton v. Lumsden (In

re Geothermal Res. Int’l, Inc.), 93 F.3d 648, 651 (9th Cir.

1996) (“[T]he court cannot, in the name of its equitable

powers, ignore specific statutory mandates”).

As the Appellants lacked standing to seek a surcharge

against GEFF and Harley-Davidson, they failed to state a claim

upon which relief could be granted. Therefore, the bankruptcy

court appropriately dismissed the § 506(c) claim. We need not

address the Appellants’ alternative arguments regarding

surcharge. 

B. Summary Judgments on the Second and Fourth Claims

1. Legal standards for summary judgment under Civil

Rule 56

On a Civil Rule 12(b)(6) motion, if matters outside the

pleadings are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Civil

Rule 56 (incorporated into adversary proceedings by Rule 7056),

and all parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion. Fed.

R. Civ. P. 12(d). The party against whom summary judgment was

entered under these circumstances must have been “fairly

apprised that the court would look beyond the pleadings” and

treat the motion to dismiss as one for summary judgment. Olsen

v. Idaho St. Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004)

(internal quotation marks and citations omitted). 

Here, the bankruptcy court appropriately advised the

parties of its intention to treat the motions to dismiss as to

the remaining claims as motions for summary judgment, so as to

10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

consider matters outside the pleadings. It then set a schedule

for the parties to file additional documents and to present

additional argument. 

Civil Rule 56(c) provides that a party may move for

summary judgment when there is no genuine dispute of material

fact and the moving party is entitled to a judgment as a matter

of law. A “genuine dispute” arises where, based on the

evidence presented, a fair-minded trier of fact could return a

verdict in favor of the nonmoving party on the issue in

question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d

Cir. 1991). A “material fact” is one for which the resolution

could affect the outcome of the case. Anthes v. Transworld

Sys., Inc., 765 F. Supp. 162, 165 (D. Del. 1991).

All justifiable inferences must be drawn in favor of the

non-moving party. Anderson, 477 U.S. at 255. Likewise, all

evidence must be viewed in the light most favorable to the nonmoving party. Lake Nacimiento Ranch v. San Luis Obispo Cty.,

841 F.2d 872, 875 (9th Cir. 1987). A party responding to a

summary judgment motion may not rest upon mere allegations or

denials in its pleadings. Rather the party must present

admissible evidence showing that there is a genuine dispute for

trial. Fed. R. Civ. P. 56(e).

If the non-moving party bears the ultimate burden of proof

on an element at trial, that party must make a showing

sufficient to establish the existence of that element in order

to survive a motion for summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). 

11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

As to the quantum meruit and unjust enrichment claims, the

bankruptcy court found that, “in the face of the denials

contained in the moving defendants’ affidavit, the [Appellants]

provide[d] conclusionary statements but [did] not provide

specific facts necessary to sustain their burden.” Hr’g Tr.

(Feb. 3, 2012) at 14:20-23. As to the Fair Labor Standards Act

claim, it similarly found that the Appellants had “not come

forward with specific facts showing that the defendants

qualif[ied] as an employer.” Id. at 22:10-12. We agree in

both instances.

2. Quantum meruit and unjust enrichment claims

“Unjust enrichment is the method of recovery for the value

of the benefit retained absent any contractual relationship

because notions of fairness and justice require it.” Young v.

Young, 191 P.3d 1258, 1262, 164 Wash. 2d 477, 484 (2008). 

There are three elements that must be established to prevail on

such a claim: (1) benefit conferred upon defendant by

plaintiff; (2) defendant’s knowledge and appreciation of the

benefit; and (3) defendant’s retention or acceptance of the

benefit under circumstances making it inequitable for defendant

to retain the benefit without payment. Id. at 1262, 484-85.

Quantum meruit “is the method of recovering the reasonable

value of services provided under a contract implied in fact.” 

Id. at 1262, 485. The elements of an implied in fact contract

are: (1) defendant requested the work; (2) plaintiff expected

payment for the work; and (3) defendant knew or should have

known that the plaintiff expected payment for the work. Id. at

1263, 486. 

12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Here, both GEFF and Harley-Davidson submitted affidavits

denying knowledge of either the Appellants’ alleged services or

that the Appellants looked to GEFF or Harley-Davidson for

payment. They likewise denied that the Appellants contacted or

communicated with them in any way. The bankruptcy court found

that the Appellants did not show that either GEFF or HarleyDavidson communicated with them and that the Appellants

conceded in their affidavits that the Debtor hired them in

managerial positions and induced them to work by promising to

pay them for their work. The Appellants did not allege

specific communications by either GEFF or Harley-Davidson that

could be reasonably construed as a promise to pay them for

their work or services as employees of the Debtor. The record,

thus, supports the bankruptcy court’s conclusion.

The Appellants argue that their work allowed GEFF and

Harley-Davidson to purchase the Debtor as a going concern. 

However, the bankruptcy court appropriately considered the

Debtor’s monthly operating reports, which reflected no

employees, no receipts, and no ongoing business in the months

leading up to the § 363 sale. The Appellants did not meet

their burden to refute the information in the reports or to

show that the Sale Order sold the Debtor’s business as a going

concern. 

As to the unjust enrichment claim, the unrefuted evidence

established that the sale of the Debtor’s assets generated

substantially less than the secured debt. Neither GEFF nor

Harley-Davidson received more than they were due.

Instead, the Appellants did nothing more than provide

13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

conclusory statements in support of their unjust enrichment and

quantum meruit claims. Summary judgment was appropriate as

they failed to show the existence of a genuine dispute of

material fact to be resolved at trial. 

3. Fair Labor Standards Act claim

The Fair Labor Standards Act provides that “[e]very

employer shall pay . . . [its] employees” no less than minimum

wage. 29 U.S.C. § 207(a)(1). The FLSA also provides that “no

employer should employ any of its employees . . . for a

workweek longer than forty hours unless such employee receives”

overtime compensation. Id. Under section 215(a)(2) of the

act, it is “unlawful to fail to comply with the minimum wage

and overtime pay requirements” of the FLSA. Individual

employees may bring a private cause of action against their

employer if their employer violates the provisions. Id. “By

its terms, section 16(b) applies only to employers,” where

“‘[e]mployer’ includes any person acting directly or indirectly

in the interest of an employer in relation to an employee

. . . .” USM Workers’ Comm. v. Decker (In re USM Tech. Corp.),

158 B.R. 821, 824 (Bankr. N.D. Cal. 1993) (citation omitted).

The Appellants, as private claimants under the FLSA, had

the burden of proving that they were employed by GEFF or

Harley-Davidson and performed work for which they were not

properly compensated. See Warren-Bradshaw Drilling Co. v.

Hall, 317 U.S. 88, 90 (1942). Again, they presented no

evidence that either GEFF or Harley-Davidson qualified as their

employer or promised to pay their wages. 

The Appellants do not question this conclusion; rather,

14
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

they argue they possessed rights to recover from collateral

held by GEFF and Harley-Davidson under the theory that such

collateral included “hot goods.” The Appellants argue that the

statute is broadly applied, as it states that “it shall be

unlawful for any person . . . to transport, or sell in commerce

. . . any goods . . . the production of which” was in violation

of the FLSA. 29 U.S.C. § 215(a)(1). However, even broadly

construed, the Appellants offered no specific evidence to

support their argument that any of Debtor’s inventory or assets

were produced by the Appellants or otherwise met the definition

of “hot goods.”

Further, even if there was a sale of “hot goods,” the

Appellants would not have a right to collect from the proceeds

of the assets that were sold. See, e.g., In re USM Tech.

Corp., 158 B.R. at 825-27 (unpaid workers did not have rights

in the proceeds of “hot goods”).

Finally, the Debtor’s assets, GEFF and Harley-Davidson

collateral, were sold pursuant to the § 363 sale. The

Appellants did not appeal from the Sale Order, and it is final.

It is worth emphasizing that GEFF and Harley-Davidson

agreed to carve outs from the sale proceeds that directly

benefitted the Appellants as part of the Sale Order. To the

extent the Appellants’ “hot goods” argument is a collateral

attack on this order, it appropriately fails.

The Appellants failed to establish the existence of a

genuine dispute of material fact as to the Fair Labor Standards

Act claim and summary judgment on this claim was appropriate.

15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CONCLUSION

Based on the foregoing, we AFFIRM.

16