                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-3942
                                ________________

Benjamin Agada,                           *
                                          *
             Petitioner,                  *
                                          *       Petition for Review of an Order of
      v.                                  *       the Board of Immigration Appeals.
                                          *
John Ashcroft, Attorney General of        *
the United States,                        *              [PUBLISHED]
                                          *
             Respondent.                  *

                                ________________

                                Submitted: March 11, 2004
                                    Filed: May 14, 2004 (corrected 5/18/04)
                                ________________

Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Benjamin Agada, a citizen of Nigeria who intentionally overstayed his visitor's
visa, petitions this court for review of an order entered by the Board of Immigration
Appeals (BIA), dismissing his appeal from an Immigration Judge's (IJ) decision
denying his requests for asylum, withholding of removal, or relief under Section 3 of
the Convention Against Torture. Agada argues that the IJ and the BIA failed to
analyze his case as one involving a "pattern and practice" of persecution of a group
with which Agada identifies, namely journalists. We deny the petition.
                                          I.

       Agada is a 44-year-old native and citizen of Nigeria who worked as a radio
journalist for the Federal Radio Corporation of Nigeria (Radio Nigeria) beginning in
1978. He was also an officer of the Nigerian Union of Journalists, a group which
often voiced its opposition to the government. In 1985, while working as a Senior
Producer for Radio Nigeria, Agada reported that the Nigerian government had
secretly enrolled Nigeria in the Organization of Islamic States (OIC), which required
that Islam be declared as the official religion of the nation. Shortly after Agada's
reporting on the OIC issue, he was demoted to working in the library at Radio
Nigeria, but was never fired. He was accused of embezzling from Radio Nigeria and
questioned on the charges, but no further action was taken against him. Agada
continued to work at Radio Nigeria until he came to the United States in 1991.
Although other journalists were arrested, killed, or often disappeared prior to 1998,
Agada was never detained, arrested, or harmed by the government.

       Agada came to the United States on a six-month visitor's visa in 1991 and
failed to return prior to his visa's expiration. He filed an application for asylum in
August of 1993. The Asylum Office initiated removal proceedings against Agada in
1998, charging him with being deportable under section 237(a)(1)(B) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(B) (Supp. IV 1998).
Agada conceded deportability and sought the discretionary relief of asylum, see 8
U.S.C. § 1158 (Supp. IV 1998), withholding of removal, see 8 U.S.C. § 1231(b)(3)
(Supp. IV 1998), or deferral of removal under section 3 of the Convention Against
Torture, see 8 C.F.R. § 208.16(c) (2004). An IJ held a hearing on November 15,
1999, and determined that although Agada's testimony was generally credible, he had
failed to establish an objectively reasonable fear of persecution if he returned to
Nigeria. The IJ relied primarily on the changed conditions of the country that
occurred in mid-1998. The BIA affirmed the IJ's decision and dismissed Agada's

                                          2
appeal based on the IJ's "well-reasoned decision" (Add. at 2), and Agada seeks
review.

                                           II.

       An alien is eligible for asylum if he establishes that he is unwilling to return to
his country of nationality "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A) (Supp. IV 1998). Agada
claims that he has a well-founded fear of persecution if he were returned to Nigeria
based on his political opinion expressed while he worked as a journalist. Agada must
establish that his fear is both genuinely subjective and reasonably objective.
Wondmneh v. Ashcroft, 361 F.3d 1096, 1098 (8th Cir. 2004). Agada "must present
credible, direct, and specific evidence of facts that show a reasonable person in [his]
position would fear persecution if returned to [Nigeria]." Id. (internal marks omitted).

       We review the BIA's denial of Agada's request for asylum to ensure that the
decision is supported by substantial evidence in the record considered as a whole. Id.
at 1097. Agada faces a "heavy burden of demonstrating that the evidence was so
compelling that no reasonable fact-finder could fail to find the requisite fear of
persecution." Id. (internal marks omitted). We review de novo Agada's claim that the
BIA applied the wrong legal standard to his claim that the Nigerian government has
a pattern and practice of persecuting journalists. Makonnen v. INS, 44 F.3d 1378,
1382 (8th Cir. 1995).

       If a government has a pattern and practice of persecuting a group of persons,
a person within that group may be entitled to asylum, despite a lack of evidence that
he will be singled out for persecution. Membership in the group may be enough to
entitle the person to asylum. See 8 C.F.R. § 208.13(b)(2)(iii) (2004) (an applicant
need not establish a reasonable probability that he will be singled out for persecution

                                            3
if returned if (A) he establishes a pattern and practice of persecution against a group
similarly situated to the applicant on account of one of the five enumerated bases, and
(B) he establishes his inclusion in, and identification with, the group). We have
defined a pattern or practice of persecution as requiring "organized or systematic or
pervasive persecution." Makkonnen, 44 F.3d at 1383.

       Although neither the IJ nor the BIA referred to the regulation by name or
citation, the IJ clearly considered Agada's claim that journalists were persecuted by
the government for speaking out against it and that he would face persecution based
on the fact that he was a journalist. The IJ noted that journalists were detained and
imprisoned and that the government ignored its constitutional guarantees of freedom
of speech and freedom of the press under Nigeria's then president, General Abacha.
The IJ determined that conditions faced by journalists changed drastically in mid-
1998, however, following the death of General Abacha and his replacement by
General Abubakar. According to the U.S. Department of State Nigeria Country
Report on Human Rights Practices for 1998 (Country Report), following General
Abacha's death, the government significantly relaxed its restrictions on freedom of
speech and of the press and respected these rights and practices. The Country Report
also noted that all detained journalists except one (who was imprisoned by a tribunal)
were released in late 1998. The government no longer threatened journalists with
treason charges. Journalists and editors of state media no longer feared suspension
for their editorial decisions, although self-censorship continued. The IJ properly
applied the pattern or practice regulation to Agada's case.

       The need for evidence of personal persecution does not disappear merely
because the applicant claims that he is a member of a group against whom the
government has a pattern of persecution. "[T]he more egregious the showing of
group persecution–the greater the risk to all members of the group–the less evidence
of individualized persecution must be adduced." Makkonnen, 44 F.3d at 1383
(internal marks omitted). Because the evidence of persecution of journalists was not

                                          4
so egregious, particularly given the changed conditions, the IJ properly considered
the evidence that Agada's wife, sons, and siblings still live in Nigeria without harm;
Agada's ability to obtain a Nigerian passport in 1989 and to renew it from New York
in 1994; Agada's ability to leave the country without problems in 1991; and testimony
from Agada's purported expert, who testified that journalists who, like Agada, had no
prior contact with the State Security Service (SSS), were less likely to face harm than
those with prior experience with the SSS if returned to Nigeria. See Feleke v. INS,
118 F.3d 594, 598 (8th Cir. 1997) (noting that applicant failed to establish that his
position in the opposition movement was similar to those members who had been
detained). The IJ's consideration of evidence particular to Agada did not detract from
the IJ's consideration of the evidence, or lack thereof, concerning a pattern and
practice of persecution against journalists.

        Given Agada's own lack of prior persecution while working as a journalist in
Nigeria while General Abacha was in control of the government, his lack of contact
with the SSS, and the changed conditions facing journalists in Nigeria following
General Abacha's death, we hold that the IJ's decision was supported by substantial
evidence in the record. Agada's request for withholding of removal also fails, as that
claim is based on the same set of facts and requires Agada to bear a heavier burden
than does the standard for the granting of asylum. See Wondmneh, 361 F.3d at 1099
(noting the higher burden for establishing entitlement to withholding of removal,
which requires a clear probability of persecution). Likewise, the evidence supports
the IJ's decision to deny Agada's claim for protection under the Convention Against
Torture because Agada failed to establish that it is more likely than not that he will
be tortured if returned to Nigeria. See Al Tawm v. Ashcroft, 363 F.3d 740, 744 (8th
Cir. 2004).

       Finally, Agada asserts that the IJ improperly refused to consider evidence of
continuing persecution of journalists, which was contrary to the 1998 Country Report
that persecution against journalists had declined significantly after General Abacha's

                                          5
death. The IJ gave greater weight to the Country Report than to Agada's reports of
continued persecution as reported by the Nigerian Media Monitor, an Internet source
with which the IJ was unfamiliar. The IJ considered the details of the Nigerian Media
Monitor reports and noted that most of the stories could not be linked to the
government or were reports that the journalists allegedly harmed were injured while
attempting to report on dangerous but legitimate uses of police force. (Add. at 16-
18.) Given the discrepancy between the detailed official Country Report that
supports the IJ's decision and the tangentially relevant reports of the lesser known
source, we cannot say "that no reasonable fact-finder could fail to find the requisite
fear of persecution." Wondmneh, 361 F.3d at 1097.

                                         III.

      We have considered Agada's remaining arguments, and we find them
unavailing. The petition for review is denied.
                      ______________________________

                                          6


291 So.2d 295 (1974)
Bernard G. QUINNELLY
v.
The CITY OF PRICHARD, Alabama, et al.
SC 347.
Supreme Court of Alabama.
March 7, 1974.
*296 Joseph J. Boswell, Mobile, for appellant.
Robert G. Kendall, Mobile, for appellees.
JONES, Justice.
This is an appeal from a final decree of the Circuit Court of Mobile County, in Equity, on February 15, 1973, denying Bernard G. Quinnelly's petition seeking a declaration that his acquittal by the Recorder's Court of the City of Prichard (Respondent-Appellee) of charges of violating a city zoning ordinance constitutes a bar to further prosecutions for the same offense.
The primary issues raised by this appeal are: Does acquittal of a charge of violating a zoning ordinance avail to the accused the defense of res judicata as to subsequent charges of the same offense, although committed at subsequent times, absent intervening circumstances? If so, is the accused, within the context of the facts of this case, entitled to equitable relief by way of injunction against such subsequent prosecutions? We answer both questions in the affirmative and reverse and remand.
In 1952, Quinnelly's predecessor in title, J. W. Lacey, acquired approximately 10 acres of land near Prichard, Alabama. During the late 1950's, Lacey began selling dirt from this land.[1] His first customer was the City of Prichard.
In 1964, the City adopted Ordinance 981 which provided that "if additional territory is annexed to the City at a subsequent date, the land annexed is to be a R-1 (residential single-family) district until and unless changed per the procedure in this ordinance." *297 Article 3, Section F of the ordinance states:
Subsection 1"Continuance. Any building, billboard, land or structure lawfully existing as a lawful non-conforming use at the effective date of the enactment of this ordinance may be continued except as hereafter provided where such use does not conform with the provisions in this ordinance.
". . .
Subsection 5"Abandonment. A nonconforming use, other than dwellings, of any number of units in a residential zone which has been discontinued for a continuous period of six months shall not be re-established and any future use shall be in conformity with the provisions of this ordinance."
On September 1, 1967, the City annexed Lacey's 10 acres. At that time, there were numerous other commercial dirt pits within one mile of Lacey's operation. Lacey testified that he sold all the dirt for which he had buyers, but very little dirt was removed from the pit between the mid-1960's and 1971.
Being unsuccessful as a dirt salesman, Lacey sold the 10 acres to Quinnelly, a construction contractor, on March 10, 1971, for the sole purpose of continuing the dirt-pit operation. In fact, within two months, Quinnelly was actively removing dirt from the property. Following numerous complaints and threats of prosecution, Quinnelly applied to the Board of Adjustment of the City for a variance on the use of the property in October, 1971. In January, 1972, his request was denied; and, then, the City began its series of arrests for violation of its zoning ordinance. The dates and status of these are as follows:
On January 27, 1972, and again on February 3, 1972, Quinnelly was arrested. On March 1, 1972, in the Recorder's Court of the City of Prichard, on a trial on the merits, those two actions were dismissed.
Less than one week later, on March 7, 1972, Quinnelly was again arrested; and on March 27, 1972, in the Recorder's Court, on a trial on the merits, this case was nolle prossed.[2]
On October 19, 1972, Quinnelly was arrested for the fourth time. On the trial of this case, the Recorder's Court found Quinnelly guilty and he appealed.
On the same day as the verdict in the fourth case, i.e., November 15, 1972, Quinnelly was arrested for the fifth time on the same charge.[3] By agreement of the attorneys and the courts involved, awaiting the disposition of the instant litigation, the fourth and fifth prosecutions are still pending.
In denying equitable relief, the Court below stated:
"The Court is not reasonably satisfied from the evidence that the real property in question was lawfully existing as a non-conforming use for the excavation of surface materials of the time said real property became subject to the zoning ordinance of the City of Prichard. The Court finds from the evidence that, had there been a non-conforming use at the time the property became subject to such ordinance, such use was discontinued for a period of more than six months between the time the property became subject to such ordinance and the time Complainant began to use said property for the excavation of surface materials."
Title, 37 §§ 585-586, Code of Alabama 1940, as amended, provides for the exclusive *298 original jurisdiction in the Municipal Recorder's Court to try cases involving a violation of the municipality's zoning ordinance.
In Ashurst v. Preferred Life Assur. Soc. of Montgomery, 282 Ala. 119, 126, 209 So. 2d 403, 408 (1968), it was stated:
"The general principle is well established that an existing final judgment, decree or other final adjudication rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions in the same or any other tribunal of concurrent jurisdiction on the points and matters in issue and adjudicated in the first suit."
To sustain a plea of res judicata, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be returned on that point. Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972); Bass v. Sanders, 282 Ala. 546, 213 So.2d 391 (1968); Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287 (1965); and Ivey v. Wiggins, 271 Ala. 610, 126 So. 2d 469 (1961).
Wilk v. Gillroy, 11 Misc.2d 106, 169 N.Y.S.2d 473 (1957), held:
". . . under the principle of res judicata which controls the parties . . . no other prosecution may be instituted against this petitioner by reason of these very same violations . . . .
"The persistence of this deputy commissioner, the building department and its inspectors in subjecting petitioner to the institution of criminal prosecution, despite the previous adjudication, is a violation of petitioner's rights and the Supreme Court has the power to enjoin such disregard of the citizen's rights, and to give prompt relief . . ."
The doctrine of res judicata is applicable to criminal and quasi criminal as well as civil cases. Mitchell v. State, 140 Ala. 118, 37 So. 76 (1903), and Jay v. State, 15 Ala.App. 255, 73 So. 137 (1916).
The legal effect of the trial Court's decree was to afford the City a trial de novo on appeal from the three prior judgments of acquittal, or, perhaps more accurately stated, to permit the City to attack collaterally that which was unavailable to it by way of appeal. We hold that the trial Court was legally bound to give res judicata effect to the prior judgments of acquittal and that any findings contrary thereto were erroneous.
The City next contends that, assuming the res judicata effect of the acquittals, the judgment below is due to be affirmed because it is supported by other competent evidence, i.e., more than six months elapsed between the accused's acquittal of March, 1972, and his arrest and conviction of October, 1972, during which time no excavation on the property occurred. Otherwise stated, the City says that the Trial Court was justified in denying relief since it could have found from the evidence that Quinnelly himself had effected an abandonment of the non-conforming use by his own disuse of the property between March and October of 1972.
To be sure, if one strains at the record, there is the barest scintilla, which may be gleaned from the testimony of one Mrs. Wilson, to the effect that she did not see any dirt hauled from this property during this 6 ½ month period. Her testimony in this respect stands alone and is against the great preponderance of the evidence. However, without invoking the "preponderance of the evidence" or the "palpably wrong or manifestly unjust" rules of review (Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969) ), we will treat this testimony as having been accepted by the Trial Court as competent and worthy of belief.
Mrs. Wilson's testimony raises the question of whether or not the 6 ½ month period during which Quinnelly allegedly hauled *299 no dirt constituted abandonment or discontinuance.
This Court stated in Board of Zoning Adjustment v. Boykin, 265 Ala. 504, 92 So.2d 906 (1957):
"The courts have generally held that the word discontinuance, as used in a zoning ordinance, is equivalent to abandonment."
Discontinuance or abandonment involves more than mere cessation. It results from the concurrence of two factors: (1) An intent to abandon and (2) some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. See Green v. Copeland, 286 Ala. 341, 343, 239 So.2d 770 (1970); Board of Zoning Adjustment v. Boykin, supra; Vol. 14B, Code of Alabama 1940, as amended, Appx., § 982, p. 873; and 18 A.L.R.2d 728, § 4, Elements of Abandonment.
Green v. Copeland, supra, citing Rathkopf, Vol. 2, Chapter 61, § 5, stated:
"`A temporary cessation [to devote property to a non-conforming use], even for a lengthy period, caused by circumstances over which the property owner had no control, is generally held not to constitute proof of a discontinuance in the sense of abandonment . . . since the circumstances themselves negate an inference of the necessary intention to abandon the use.'"
Stated otherwise, a temporary interruption of the non-conforming use without substitution of a conforming use or without a definite and substantial departure from previous existing conditions caused by accident or unpropitious circumstances does not terminate the right to resume the non-conforming use. 18 A.L.R. 2d 728, § 13, Temporary Suspension of Non-Conforming Use, p. 745.
Dorman v. Mayor and City Council of Baltimore, 187 Md. 678, 51 A.2d 658 (1947), explained that it is only to avoid injustice that zoning ordinances generally except existing non-conforming uses and that, therefore, the public effort is not to extend such non-conforming uses, but rather to permit them to exist as long as necessary and then to require conformity for the future.
Applying these principles to the instant case, we conclude that the combination of two distinct circumstances requires a rejection of this abandonment contention:
First, this six-month period commenced with the disposition of the trial of the third charge for the same alleged violation coupled with threats of continuous arrests and trials.
Second, the city building inspector, who signed each of the formal charges, gave uncontradicted testimony that this property in the status existing during the period in question was totally unfit and unsuitable for R-1 purposes, and that the only way it could be transformed from a non-conforming use (or from its present status) to a conforming use was to remove the remainder of the dirt above the street levelthe very act for which Quinnelly was arrested. These combined circumstances produce the anomaly whereby the City in effect is saying to Quinnelly: "Until you remove the remainder of the dirt mound, we realize that you cannot comply with the conforming use prescribed by the zoning ordinance; but if you remove the dirt, we will arrest and try you for violating such ordinance."
We hold, therefore, that mere non-use of this property under these circumstances, as a matter of law, could not have constituted the necessary element of intent to effect an abandonment of the non-conforming use.
Moreover, the law prohibits the enforcement of zoning regulations where the effect of such enforcement constitutes an effective taking, or the confiscation, of private property as violative of the long *300 and well-established public policy expressed in the constitutional prohibition against taking of property without due process. Constitution of Alabama 1901, Art. 1, § 13. See Anderson, Law of Zoning, § 2.22 (1968); see also Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948).
Finally, the City contends that the decree is due to be affirmed on the principle that equity will not ordinarily enjoin criminal prosecutions and this for the reason that the accused has an adequate remedy at law through the assertion of defensive matters in the trial of the criminal case. We not only agree with this basic legal proposition, but we further recognize that injunctions are rarely a matter of right and that the broadest discretion is vested in the trial judge when such relief is sought.
After recognizing these principles, Justice Haralson, speaking for this Court in Bryan v. Mayor and Aldermen of City of Birmingham, 154 Ala. 447, 450, 45 So. 922, 923 (1908), stated:
"Applying this rule, the courts should not lose sight of the fact, that a court of equity can and should interfere by injunction to restrain any act or proceeding, whether connected with crime or not, which tends to the destruction or impairment of property or property right.5 Pom. 635; Austin v. Austin, 87 Tex. 330, 28 S.W. 528, 47 Am.St.Rep. 114; Atlanta v. Gate City Co., 71 Ga. 106; Deems v. Mayor of Baltimore, 80 Md. 164, 30 A. 648, 26 L.R.A. 541, 45 Am.St.Rep. 339."
Answering arguments similar to those raised by the City in the instant suit relative to the lack of power of an equity court to enjoin quasi criminal prosecution, Justice Sayre, speaking for the Court in Board of Commissioners City of Mobile, et al. v. Orr, 181 Ala. 308, 318, 61 So. 920, 923 (1913), stated:
"But this court has with equal clearness recognized the power and duty of the equity courts to interfere by injunction where quasi criminal prosecutions under municipal ordinances will destroy or impair property rights. Brown v. Birmingham, supra [140 Ala. 600, 37 So. 174]; Bessemer v. Bessemer Water Works, 152 Ala. 391, 44 So. 663; Bryan v. Birmingham, 154 Ala. 447, 45 So. 922, 129 Am. St.Rep. 63; Town v. Cuba v. Mississippi Oil Co., 150 Ala. 259, 43 So. 706, 10 L.R.A., N.S., 310; Mobile v. L. & N. R.R. Co., 84 Ala. 115, 4 So. 106, 5 Am. St.Rep. 342; Montgomery v. L. & N. R. R. Co., 84 Ala. 127, 4 So. 626."
We are constrained in this instance to hold that the law (the principle of res judicata) is so well settled, the facts so overwhelming, the remedy at law so woefully inadequate, and the impairment of property rights so grievous and irreparable that the property owner, Complainant, is entitled to an injunction as to all pending prosecutions for violation of the zoning ordinance. 42 Am.Jur.2d, Injunctions, § 244, Multiplicity of, and vexatious, arrests and prosecutions, p. 1033. He is not, of course, entitled in the instant suit to injunctive relief as to any future prosecutions which may involve intervening circumstances materially different from those now before us.
Reversed and remanded with instructions to enter an order consistent with this opinion.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, and McCALL, JJ., concur.
NOTES
[1]  Although this operation is referred to in the testimony (and in this opinion) as a dirt pit, it is actually a large mound of dirt, containing clay, a foundation substance vital to the construction industry of south Alabama.
[2]  The fact that each of the first three cases resulted in judgments of acquittal, despite the use of the terms "dismissed" and "nolle prossed," is not seriously contested. See Lynn v. State, 31 Ala.App. 216, 14 So.2d 259 (1943), and Melton v. State, 30 Ala.App. 136, 1 So.2d 920 (1941).
[3]  For the purpose of clarity, it should be noted that each of the five charges alleged a different date and a separate act of removing the dirt as constituting the offense of violating the zoning ordinance.


445 F.3d 913
Rodney HARRELL, Plaintiff-Appellant,v.UNITED STATES POSTAL SERVICE, Defendant-Appellee.
No. 03-4204.
United States Court of Appeals, Seventh Circuit.
Argued September 24, 2004.
Decided July 19, 2005.
Reargued December 9, 2005.
Decided May 4, 2006.

COPYRIGHT MATERIAL OMITTED Peter J. Leff (Argued), O'Donnell, Schwartz & Anderson, Washington, DC, for Plaintiff-Appellant.
Stephan J. Boardman (Argued), United States Postal Service, Washington, DC, for Defendant-Appellee.
Joanna Hull (Argued), Department of Labor, Office of the Solicitor, Washington, DC, Amicus Curiae.
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.

1
Rodney Harrell filed this action against his former employer, the United States Postal Service ("USPS" or "Postal Service"), alleging violations of the Family and Medical Leave Act ("FMLA" or "Act"), 29 U.S.C. § 2601 et seq. The parties filed cross-motions for summary judgment, and the district court granted summary judgment in favor of the Postal Service. Mr. Harrell appealed. This panel initially affirmed in part and reversed in part the judgment of the district court. On the petition of the Postal Service, with the United States Department of Labor ("Department") as amicus curiae, the panel granted rehearing. For the reasons set forth in the following opinion, we affirm the judgment of the district court in its entirety.

2
* BACKGROUND

A. Facts

3
Mr. Harrell began working for the Postal Service in 1984 as a clerk at the Decatur, Illinois post office. He was a member of a collective bargaining unit represented by the American Postal Workers Union, AFL-CIO ("APWU" or "Union"), and he was covered by a national collective bargaining agreement between the APWU and the Postal Service known as the National Agreement.

4
On February 2, 2000, Mr. Harrell felt ill and left work early. On February 10, 2000, he submitted to the Postal Service a medical form completed by his physician, Dr. Robert Smith, which certified that his absence was due to fatigue, stress, sleep disturbance and difficulty concentrating. Dr. Smith indicated that the health problems had begun on February 2 and probably would last four weeks. On February 23, 2000, Mr. Harrell submitted a second health certification, in which Dr. Smith estimated that he would be able to resume work on March 6, 2000.

5
The Postal Service responded by a letter dated February 23, 2000, and advised Mr. Harrell that, according to postal regulations, in order to return to work,

6
(1) You must submit medical documentation outlining the nature and treatment of the illness or injury, the inclusive dates you were unable to work, and any medicines you are taking. This medical information is to be reviewed by the Postal Medical Officer.

7
(2) You may be required to be examined by the Postal Medical Officer after your documentation is reviewed. The bill for this release for work exam will be paid by the Postal Service.

8
R.27, Ex.A, Ex.3. Mr. Harrell maintains that he did not receive this letter until March 7, 2000.

9
Mr. Harrell attempted to return to his job on March 6. However, Jane Cussins, the Decatur post office supervisor, informed him that he had not been cleared to return to work; at that time she explained the applicable postal regulations to Mr. Harrell. In order to facilitate the clearance process, Cussins made him an appointment for an examination by the USPS-contract physician for later that morning. Mr. Harrell went to the physician's office, but he refused to consent to an examination because he believed that he already had provided the Postal Service with sufficient medical information to entitle him, under the FMLA, to return to work. Mr. Harrell returned to Cussins' office, and she told him that she would fax the documentation submitted by Mr. Harrell to the postal nurse for review.

10
The postal nurse reviewed the February 10 and February 22 certifications submitted by Mr. Harrell, and she concluded that the information was insufficient to clear him for duty. Specifically, the forms had no information about continuing medications, restrictions on Mr. Harrell's ability to work or when he had been declared fit to return to work. On March 10, 2000, the postal nurse called Mr. Harrell to obtain his physician's contact information; he refused to provide the information and expressly stated that he did not want her to contact his physician. Two weeks later, nonetheless, the postal nurse faxed a return-to-work form to Dr. Smith's office. The office refused to release any medical information without Mr. Harrell's consent.

11
In the meantime, the Postal Service mailed Mr. Harrell a letter dated March 9, 2000, reminding him that

12
employees returning to duty after 21 days or more of absence due to illness or serious injury require medical certification. This certification must include evidence of your ability to return to work, with or without limitations. A medical officer or contract physician evaluates the medical report and makes a medical assessment as to your ability to return to work before you are allowed to return.

13
R.27, Ex.A, Ex.5. The letter also explained that the forms prepared by Dr. Smith, which had explained Mr. Harrell's need for leave, were insufficient to clear him for duty because they did not describe the nature of treatment he received or list any medications he was taking. Finally, the letter advised that, if he did not present appropriate documentation within five days, he would be considered absent without leave and subject to discipline, including removal. This letter was sent by both regular and certified mail.

14
On March 15, 2000, having not received a reply from Mr. Harrell, the Postal Service mailed him another letter (also via regular and certified mail) which declared him absent without leave and scheduled a predisciplinary hearing for March 17. The letter advised that failure to appear could result in disciplinary action, including removal. On March 22, the Postal Service sent Mr. Harrell a notice of removal.

15
On March 21, 2000, Mr. Harrell sent a letter to the Postal Service. He maintained that he had not received the March 9 and March 15 warning letters until March 20. He also asserted that the medical documentation he had provided in order to qualify his absence as FMLA leave was sufficient by law to entitle him to return to work. Despite this belief, Mr. Harrell returned to Dr. Smith and obtained a return-to-work certification. The certification, dated March 23, 2000, stated that Mr. Harrell was "fit to return to work without restrictions." R.27, Ex.A, Ex.7.

16
The Postal Service responded to Mr. Harrell by letter on March 31, 2000, which advised:

17
You were notified in writing on February 23, 2000, that this medical documentation had to include the nature of treatment of your illness and any medicines you were taking. You have again failed to provide medical documentation adequate for the Postal Medical Officer to make a determination as to your ability to return to work.

18
In conclusion, we want the opportunity to review medical documentation from your attending physician that includes all the required information. We have scheduled the following appointment for you to be examined by the Postal contract physician.

19
R.22, Ex.6, Ex.10. Mr. Harrell again refused to provide further information or to submit to an examination. By letter dated April 27, 2000, the Postal Service terminated his employment.

B. District Court Proceedings

20
Mr. Harrell alleged that the Postal Service violated the FMLA in five ways: (1) failing to restore him to work after he presented a medical clearance; (2) requiring him to submit to a medical examination by a USPS-contract physician prior to allowing him to return to work; (3) terminating his employment because he took FMLA leave; (4) contacting his physician without his consent; and (5) failing to provide him with notice of the Postal Service's return-to-work requirements and the consequences of not complying with those requirements. The parties filed cross-motions for summary judgment, and the district court granted summary judgment in favor of the Postal Service.

1.

21
With respect to Mr. Harrell's first three claims, the Postal Service asserted that the conditions it had placed on his return to work were permitted by the National Agreement that incorporated by reference the postal handbooks and manuals governing employees' leave. Specifically, the Postal Service contended that any return-to-work certification requirements included in a collective bargaining agreement ("CBA") take precedence over the FMLA's return-to-work provisions under 29 U.S.C. § 2614(a)(4), which provides that employers may impose

22
a uniformly applied practice or policy that requires each employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.

23
Id. (emphasis added).

24
Mr. Harrell contended that the Postal Service was precluded from arguing that the National Agreement incorporated the postal regulations governing return to work after FMLA leave because the Postal Service previously made, and lost, the same argument in a different case. The district court, however, determined that United States v. Mendoza, 464 U.S. 154, 162, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), did not allow Mr. Harrell to invoke the doctrine of collateral estoppel offensively against the United States based on a litigation to which he was not a party.

25
The district court then concluded that the postal handbooks and manuals are part of the National Agreement. It further determined that, because the postal regulations had the force of a valid collective bargaining agreement, those regulations, and not the FMLA's provisions, controlled Mr. Harrell's right to reinstatement. In addition, the district court found that the postal regulations justified the Postal Service's requirement that Mr. Harrell provide more detailed medical documentation from his health care provider or submit to a medical examination by a USPS-contract physician. Moreover, the district court believed that such requirements did not diminish any substantive right provided by the FMLA. The court took the view that

26
USPS employees always have the right guaranteed by the FMLA to be restored to their employment following FMLA leave. The agreement and the USPS regulations merely alter the procedure by which employees go about being restored.

27
It is possible to imagine a situation in which altering the procedure attached to a certain substantive right would in essence impinge on or prohibit the exercise of that right. This case does not present such a situation, however, given the modest and seemingly simple certification process the USPS imposes for employees who exceed 21 days of FMLA leave. Cussins was able to make Harrell an appointment with the contract doctor on the very morning he sought to return to work. Alternatively, the [postal nurse] needed only two single-sided forms filled out by a doctor, noting Harrell's condition, treatment, medication, and work restrictions. Neither process is so onerous that it effectively abrogates Harrell's right of restoration under the FMLA.

28
R.41 at 9.

2.

29
Next, the district court granted the Postal Service summary judgment on the claim that it had failed to provide Mr. Harrell with adequate notice of the requirements for returning to work and of the consequences for not meeting those requirements. See 29 C.F.R. § 825.310(c). The district court pointed to Mr. Harrell's "deposition testimony in which he admits that he was aware of the USPS regulations concerning returning to work following an absence of more than 21 days." R.41 at 11. The court noted, moreover, that Mr. Harrell was informed of the return-to-work requirements by the letters from the Postal Service and by Cussins, to whom he had spoken when he attempted to return to work.

3.

30
Finally, the district court granted the Postal Service summary judgment on Mr. Harrell's claim that the Postal Service had violated the FMLA by contacting his personal physician without his consent. See 29 C.F.R. § 825.310(c). Although the district court found that a violation had occurred, it dismissed the claim because Mr. Harrell had suffered no injury in that Dr. Smith's office did not release any information that contributed to his termination.

II
DISCUSSION
A. Standard of Review

31
We review a district court's grant or denial of summary judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir.2000). In doing so, we construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Id. Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. Failure to Return to Work

32
Congress enacted the FMLA in order to assist workers in meeting the needs of their families and the demands of their jobs. See Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir.1997). The statute responded to the perception that

33
[p]rivate sector practices and government policies have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family. This failure continues to impose a heavy burden on families, employees, employers and the broader society. [This legislation] provides a sensible response to the growing conflict between work and family by establishing a right to unpaid family and medical leave for all workers covered under the act.

34
S.Rep. No. 103-3, at 4 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 6 ("S.Rep.103-3"). The FMLA makes available to eligible employees up to twelve weeks of leave during any twelve-month period for one or more of the following reasons: (1) the birth of the employee's child; (2) the placement of a child with the employee for adoption or foster care; (3) the care of the employee's child, spouse or parent who has a serious health condition; and (4) the inability of the employee himself to perform the functions of his position because of a serious health condition. 29 U.S.C. § 2612(a)(1). At the conclusion of a qualified-leave period, the employee is entitled to return to his former position of employment, or to an equivalent one, with the same terms and benefits. Id. § 2614(a)(1);1 see also 29 C.F.R. § 825.214(a). To protect these rights, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1). In this case, Mr. Harrell contends that the Postal Service violated his rights under the FMLA by refusing to return him to his position after his physician provided an unqualified certification of his fitness to return to duty.

35
An employee's right to return to work after taking FMLA leave is not unlimited. The Act seeks to accomplish its purposes "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3); see also 29 C.F.R. § 825.101(b) ("The enactment of the FMLA was predicated on two fundamental concerns — the needs of the American workforce, and the development of high-performance organizations."). An employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) ("An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period."). An employee returning from FMLA leave also is not entitled to restoration if he cannot perform the essential functions of the position or an equivalent position.2 29 C.F.R. § 825.214(b).

36
In addition, the Act permits an employer, as a condition of restoring employees who take FMLA leave, to have a policy that requires all such employees to obtain medical certification from their personal health care provider indicating that the employee is able to resume work. 29 U.S.C. § 2614(a)(4). The Act provides that nothing in § 2614(a)(4) "shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of employees." Id. The interplay between the FMLA's return-to-work provisions and a CBA that governs the return of employees who take leave due to a serious health condition is discussed in the statute's accompanying regulations:

37
(a) As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.

38
(b) If State or local law or the terms of a collective bargaining agreement govern an employee's return to work, those provisions shall be applied. Similarly, requirements under the Americans with Disabilities Act (ADA) that any return-to-work physical be job-related and consistent with business necessity apply....

39
(c) An employer may seek fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The certification itself need only be a simple statement of an employee's ability to return to work. A health care provider employed by the employer may contact the employee's health care provider with the employee's permission, for purposes of clarification of the employee's fitness to return to work. No additional information may be acquired, and clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made.

40
29 C.F.R. § 825.310(a)-(c).

41
In the present case, the Postal Service maintains that it had the right, under the FMLA, to require Mr. Harrell to provide sufficient medical documentation from his health care provider or to be cleared for duty by a USPS-contract physician, as a condition of returning to work. In the Postal Service's view it appropriately employed, under 29 U.S.C. § 2614(a)(4), a uniform practice requiring employees to provide a fitness-for-duty certification from their personal health care provider; and, although the accompanying regulations provide that this certification need only be a simple statement of the employee's ability to work, see 29 C.F.R. § 825.310(c), the FMLA's certification provisions do not supersede a valid collective bargaining agreement that governs return to work for such employees, see 29 U.S.C. § 2614(a)(4); 29 C.F.R. § 825.310(b).

42
Mr. Harrell challenges this theory on four grounds: (1) collateral estoppel forecloses the Postal Service from arguing that the terms of the National Agreement allow it to limit postal employees' right to return to work after FMLA leave; (2) the postal handbooks and manuals are not part of the National Agreement; (3) the postal return-to-work provisions are invalid because they diminish a substantive right afforded by the FMLA; and (4) the requirements imposed by the Postal Service in this case contravened the postal return-to-work provisions. We shall address these issues in turn.

1. Collateral Estoppel

43
Mr. Harrell first contends that the Postal Service is precluded from arguing that its handbooks and manuals are negotiated parts of the National Agreement because it raised and lost this argument in Routes v. Henderson, 58 F.Supp.2d 959, 994 (S.D.Ind.1999). The doctrine of collateral estoppel provides that "once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation." Mendoza, 464 U.S. at 158, 104 S.Ct. 568. The "offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against the same or a different party." Id. at 159 n. 4, 104 S.Ct. 568. Mr. Harrell seeks to invoke nonmutual collateral estoppel, which occurs when the plaintiff was a nonparty to the prior lawsuit. Id. The district court determined that applying this doctrine against the Postal Service was not appropriate. We review a district court's decision whether to apply offensive collateral estoppel for an abuse of discretion. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

44
As the district court recognized, the Supreme Court has established that nonmutual offensive collateral estoppel does not extend to litigation against the United States. Mendoza, 464 U.S. at 162, 104 S.Ct. 568. The United States differs from private litigants in that its litigation is geographically broad and often involves issues of national significance. Id. at 159-60, 104 S.Ct. 568. Among other concerns expressed by the Court, precluding the United States from relitigating issues against different parties would "thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue" and would "deprive th[e] Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before" it grants certiorari. Id. at 160, 104 S.Ct. 568.

45
Mr. Harrell submits that Mendoza does not apply in this case because Congress has placed the Postal Service on the same footing as a private litigant by authorizing it to "sue and be sued." 39 U.S.C. § 401. Mr. Harrell reads too much into this waiver of immunity: That the Postal Service is amenable to the judicial process does not "change the fact that the party being sued is still the federal government." In re Young, 869 F.2d 158, 159 (2d Cir.1989) (per curiam). Indeed, Congress has provided that the Postal Service "is part of the executive branch of government, that its employees are part of the federal civil service, and that it possesses certain powers unique to governmental entities, such as the authority to exercise the power of eminent domain in the name of the United States." Baker v. Runyon, 114 F.3d 668, 670-71 (7th Cir.1997) (citing 39 U.S.C. §§ 201, 1001(b) & 401(9)). The "sue and be sued" provision, if anything, indicates that "waiver of sovereign immunity is necessary solely because the Postal Service is a government agency." Id. (citing Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1280 (7th Cir.1991) (stating that the "sue or be sued" clause "permit[s] the suit to go forward notwithstanding that it is a suit against a federal agency")); see also United States Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004) ("While Congress waived the immunity of the Postal Service, Congress did not strip it of its governmental status."). Accordingly, we conclude that the district court did not abuse its discretion in concluding that the use of collateral estoppel was not appropriate in this case, and, thus, the Postal Service may argue that the National Agreement incorporates the postal handbooks and manuals that relate to employees' return to work.

2. Incorporation

46
The premise underlying the Postal Service's position in this case is that the National Agreement incorporates by reference the regulations in the postal handbooks and manuals that govern an employee's return to work after taking leave for a serious health condition. The Postal Service relies upon Article 19 of the agreement, which reads:

47
Those parts of all handbooks, manuals and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to, the Postal Service Manual and the F-21, Timekeeper's instructions.

48
R.27, Ex.I, Ex.1 at 123.

49
Mr. Harrell argues that this paragraph is too vague and general to incorporate the contents of the postal handbooks and manuals into the collective bargaining agreement. He also relies on the declaration of Greg Bell, the director of industrial relations for the APWU, who attests that the postal handbooks and manuals are not part of the National Agreement because they were promulgated unilaterally by the Postal Service, rather than through any collective bargaining between the Postal Service and the APWU. See R.27, Ex.I at ¶ 10.

50
Other courts of appeals, by contrast, have concluded in analogous contexts that the provisions contained in the postal handbooks and manuals that affect working conditions are incorporated by reference into the National Agreement. See Woodman v. Runyon, 132 F.3d 1330, 1334 (10th Cir.1997) (noting that the postal manual governing injury compensation was part of the National Agreement because "Article 19 ... incorporates those parts of all USPS handbooks, manuals and published regulations which directly relate to wages, hours, or working conditions"); Kroll v. United States, 58 F.3d 1087, 1091 (6th Cir.1995) (concluding that Postal Service employee suggestion program was incorporated into the National Agreement through the postal manual because Article 19 "incorporates by reference all parts of postal handbooks, manuals, and regulations that `directly relate to wages, hours, or working conditions'").

51
Indeed, the APWU itself has argued in other litigation that Article 19 incorporates the postal handbooks and manuals into the National Agreement. For instance, in United States Postal Service v. American Postal Workers Union, 922 F.2d 256 (5th Cir.1991), the Fifth Circuit noted that,

52
[a]lthough article 19 states that nothing in the handbooks, manuals and regulations shall conflict with the Agreement, it does not specifically state that the Agreement incorporates these texts. Thomas A. Neill, Director of Industrial Relations for the APWU, whose duties include negotiation of the National Agreement and administration of the grievance procedure, states in his "declaration" that "[t]he handbooks and manuals are applied in labor relations between the APWU and USPS as part of the National Agreement." These texts, Neill adds, are incorporated by reference into the Agreement and arbitrators routinely interpret them in deciding grievance arbitration cases. The Postal Service does not dispute Neill's sworn declaration.

53
Id. at 259 n. 2.

54
In light of the fact that both parties to the National Agreement have maintained previously that the postal handbooks and manual affecting working conditions are incorporated by reference into that agreement, Mr. Harrell stands in a weak position to assert otherwise. We agree with our sister circuits that Article 19 is sufficient to incorporate the postal handbooks and manuals relating to wages, hours or working conditions into the National Agreement. Certainly, the postal handbooks and manuals that govern an employee's return to work after an extended absence relate to wages, hours or working conditions.

3. Diminishment of FMLA Rights

55
Mr. Harrell next contends that, even if the postal return-to-work regulations are part of a valid collective bargaining agreement, the Postal Service was not allowed to impose any condition on his return that is more stringent than what is specifically allowed by the FMLA, and, by doing so, the Postal Service violated rights protected by the FMLA. The Postal Service takes the opposite view. It maintains that the FMLA allows for a more stringent return-to-work certification if required by state law or if set forth in a CBA. Thus we arrive at the pivotal issue in this case: Whether the Postal Service can rely upon return-to-work regulations incorporated into a valid collective bargaining agreement to impose requirements on employees that are more burdensome than what is set forth in the statute. To resolve this issue, we begin with the language of the statute, specifically 29 U.S.C. §§ 2614(a)(4) and 2652. If the intent of Congress, as expressed in the language of the statute, is clear with respect to this issue, then "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, "if the statute is silent or ambiguous with respect to the specific issue," the court must defer to the agency's answer if it "is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. Generally speaking, an agency's interpretation of a statute that it administers is "permissible" if it is "reasonable." Id. at 845, 104 S.Ct. 2778.

56
Section 2614(a)(4) permits employers to impose, as a condition of returning to work,

57
a uniformly applied practice or policy that requires each employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.

58
29 U.S.C. § 2614(a)(4). The legislative history for this section notes that the last phrase "clarifies that [§ 2614(a)(4)] was not meant to supersede other valid State or local laws or collective bargaining agreement that, for reasons such as public health, might affect the medical certification required for the return to work of an employee who had been on medical leave." S. Rep. 103-3 at 31, reprinted in 1993 U.S.C.C.A.N. at 33.

Section 2652, in turn, reads:

59
(a) More protective

60
Nothing in this Act or any amendment made by this Act shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act or any amendment made by this Act.

61
(b) Less protective

62
The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.

63
29 U.S.C. § 2652. The legislative history to this section adds that "[subsection (a)] specifies that employees must continue to comply with collective bargaining agreements or employment benefit plans providing greater benefits than the act. Conversely, [subsection (b)] makes clear that rights under the act cannot be taken away to collective bargaining or employer plans." S. Rep. 103-3 at 38, reprinted in 1993 U.S.C.C.A.N. at 40; see also id. at 47, reprinted in 1993 U.S.C.C.A.N. at 49 (explaining that under § 2652 nothing in the FMLA "shall diminish an employer's obligation under a collective bargaining agreement or employment benefit plan to provide greater leave rights nor may the rights provided under this title be diminished by such agreement or plan").

64
As noted above, Mr. Harrell believes that the Postal Service's insistence on a detailed return-to-work statement violated the FMLA. He asserts that, although the Postal Service was allowed to have a uniform fitness certification policy under 29 U.S.C. § 2614(a)(4), this provision is limited by the language of 29 U.S.C. § 2652(b) which provides that "[t]he rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan." Therefore, as these provisions apply to his case, Mr. Harrell submits that, because Dr. Smith cleared him for work without restrictions, the Postal Service was not authorized to impose a more stringent certification requirement, even if such a requirement was part of the governing collective bargaining agreement.

65
The Postal Service and the Department of Labor urge a different interpretation of these provisions. They maintain that § 2614(a)(4), with its deference to "a valid State or local law or a collective bargaining agreement," defines the "right" to return to work as guaranteed by the FMLA. The Postal Service goes on to explain that,

66
[b]ecause an employee has no right under the Act to circumvent a collective bargaining provision governing his return to work, applying section 2614 to require additional certification measures does not "diminish" any "right established for employees under th[e] Act," and therefore does not contravene section 2652.

67
Rehearing Pet. at 11.

68
Both parties urge that we need not look beyond the statutory language to resolve the question at hand — whether a CBA can impose a more stringent return-to-work requirement than a simple certification by the employee's own physician. We do not believe this to be the case. Here, § 2614 provides that an employer may have a certification requirement, but further provides that "nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees"; § 2652 states that nothing in the Act "shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement ... that provides greater family or medical leave rights to employees than the rights established under this Act" and further states that rights provided by the FMLA "shall not be diminished by any collective bargaining agreement or any employment benefit program or plan."

69
There are two possible ways to reconcile these provisions. The first is the interpretation urged by Mr. Harrell — that a CBA can provide greater, but not fewer, rights to employees. This interpretation, however, renders the last clause of § 2614(a)(4) superfluous, a result that we usually try to avoid. See, e.g., United States v. Alvarenga-Silva, 324 F.3d 884, 887 (7th Cir.2003) ("Courts should avoid statutory constructions that render another part of the same provision superfluous."). The second possible interpretation — the one urged by the Postal Service — is to read § 2614(a)(4) as an exception to the general rule set forth in § 2652. Such a reading is consonant with general canons of statutory interpretation, see United States v. Salerno, 108 F.3d 730, 737 (7th Cir.1997) (describing the "cannon [sic] of statutory interpretation that a more specific statutory provision takes precedence over a more general provision"); however, Congress' intent to limit the operation of § 2652 with respect to return-to-work provisions could have been made clearer through the use of a cross-reference to § 2614(a)(4). Given the short-comings with each interpretation, we are not able to conclude that Congress clearly addressed the question at issue through the statutory language. We therefore may turn to the interpretive regulations to resolve the issue.

70
Chevron instructs that we must defer to the reasonable interpretation of an agency tasked with administering the statute. Whether an interpretation is reasonable involves a two-step inquiry. The first step requires that the court identify the agency's position on the specific issue. The second step requires a determination of whether the agency's position is a principled one. Chevron, 467 U.S. at 844, 104 S.Ct. 2778.

71
Here, Mr. Harrell maintains that the interpretation of § 2614(a)(4) set forth in the Department of Labor's regulation is no more than a restatement of the language of the statute and, therefore, is not worthy of deference. Although such an argument does find support in recent Supreme Court case law,3 we find it unpersuasive with respect to the regulation at issue. It is true that part of the implementing regulation, 29 C.F.R. § 825.310,4 follows closely the language of the statute; however, the regulation goes beyond the mere recitation of the statutory language and speaks to the issue presented in this case. First, the title of the regulation sets forth the question that the regulation purports to answer: "Under what circumstances may an employer require that an employee submit a medical certification that the employee is able (or unable) to return to work (i.e., a `fitness-for-duty' report)?" 29 C.F.R. § 825.310. Subsection (a) then states the general proposition that, as a condition of restoring an employee to his or her position after FMLA leave, "an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees... who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work." 29 C.F.R. § 825.310(a). Subsection (b) speaks more directly to the situation presented here; it states:

72
(b) If State or local law or the terms of a collective bargaining agreement govern an employee's return to work, those provisions shall be applied. Similarly, requirements under the Americans with Disabilities Act (ADA) that any return-to-work physical be job-related and consistent with business necessity apply. For example, an attorney could not be required to submit to a medical examination or inquiry just because her leg had been amputated. The essential functions of an attorney's job do not require use of both legs; therefore such an inquiry would not be job related. An employer may require a warehouse laborer, whose back impairment affects the ability to lift, to be examined by an orthopedist, but may not require this employee to submit to an HIV test where the test is not related to either the essential functions of his/her job or to his/her impairment.

73
29 C.F.R. § 825.310(b) (emphasis added). Not only does subsection (b) clearly state that a CBA takes precedence over the statutory requirements, the examples that follow illustrate that the Department of Labor does not believe that return-to-work requirements found in a CBA only can provide employees with greater protections than the statutory language. The last example discussing the warehouse laborer is particularly telling: A CBA that provided only greater rights to employees could not require a warehouse laborer, as a condition of returning to work, to be examined by an orthopedist; if the employee had obtained a return-to-work release from his general practitioner, that release, without more, would suffice under the statutory provisions of the FMLA. Thus subsection (b) not only provides for compliance with a CBA, it also indicates that the CBA may impose more stringent return-to-work requirements on the employee than those set forth in the statute.5

74
Having identified the agency's answer to the question,6 the last inquiry is whether this interpretation is a reasonable one and, as a result, is entitled to deference from the courts. We believe that this final requirement also is met. First, there is support in the legislative history for this interpretation. As noted above, the portion of the Senate report that discusses § 2614(a)(4) states that the language of § 2614(a)(4)

75
clarifies that section 104(a)(4) was not meant to supersede other valid State or local laws or collective bargaining agreement, that, for reasons such as public health, might affect the medical certification required for the return to work of an employee who had been on medical leave. For example, section 104(a)(4) does not supersede a State law that requires specific medical certification before the return to work of employees who have had a particular illness and who have direct contact with the public....

76
S. Rep. 103-3, at 31 (1993), reprinted in 1993 U.S.C.C.A.N. at 33. Additionally, the Department's interpretation avoids a construction of the statute that would render the last clause of § 2614(a)(4) superfluous. If that clause were interpreted to give CBA's precedence over the statutory protections only if those protections were greater than that provided in the Act, then § 2614(a)(4) and § 2652 would provide the same guarantees. Finally, the Department's interpretation of § 2614 gives effect to the rule of statutory construction that specific provisions take precedence over more general provisions. Section 2652 speaks in broad terms to the protections provided to employees by the Act; § 2614(a)(4), however, addresses a very specific issue — return-to-work certifications. Thus, with respect to the specific right to which § 2614(a)(4) is addressed — returning to work upon the certification of a physician — a CBA, state statute or local ordinance, may take precedence over the statutory protections provided by other places in the Act.7

77
Because the Department of Labor's regulations reasonably interpret § 2614(a)(4) to allow a CBA to impose stricter return-to-work restrictions than those otherwise incorporated into the FMLA, we defer to that interpretation and hold that the Postal Service did not violate the FMLA when it required Mr. Harrell to comply with the return-to-work provisions set forth in the handbooks and manuals incorporated into the National Agreement.8

78
C. Contacting Employee's Health Care Provider

79
Despite Mr. Harrell's express refusal to give his consent, the postal nurse contacted his personal physician and requested additional medical information. The district court determined that this contact violated the FMLA, as provided in the statute's accompanying regulations:

80
If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employer's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification.

81
29 C.F.R. § 825.307(a).

82
The rights established by the FMLA can be enforced through civil actions. Section 2615 makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1). An employer who violates this section shall be "liable to any eligible employee affected" for compensatory damages and "for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." Id. § 2617(a)(1).9 The district court ruled that Mr. Harrell was not entitled to any damages on this claim because the violation caused him no injury: Dr. Smith's office refused to release any medical information to the postal nurse absent Mr. Harrell's consent. This conclusion is correct. Our review of the record also found no indication that any information obtained from the postal nurse's contact with Dr. Smith's office in any way compromised Mr. Harrell's return-to-work status or was a factor in the Postal Service's decision to terminate his employment. Section 2617 affords

83
no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost "by reason of the violation," § 2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation," § 2617(a)(1)(A)(i)(II), and for "appropriate" equitable relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered.

84
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).10 Because Mr. Harrell was not harmed by the unauthorized contact with his physician, § 2617 provides him no remedy, including equitable relief, and the district court correctly granted the Postal Service summary judgment on this claim.

D. Notice Requirements

85
Finally, Mr. Harrell alleges that the Postal Service interfered with his FMLA rights by failing to provide him with timely and sufficient notice of the requirements for returning to work and of the consequences for failing to comply with those requirements. The Act's implementing regulations require that an employer must provide notice "detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations," 29 C.F.R. § 825.301(b), "within a reasonable time after notice of the need for leave is given by the employee — within one or two business days if feasible," id. § 825.301(c). If the employer fails to provide adequate and timely notice, it "may not take action against an employee for failure to comply with any provision required to be set forth in the notice." Id. § 825.301(f).

86
The district court concluded that Mr. Harrell's claim was "belied by his deposition testimony in which he admits that he was aware of the USPS regulations concerning returning to work following an absence of more than 21 days." R.41 at 11. The court found, moreover, that, upon realizing that Mr. Harrell's leave would exceed twenty-one days, Cussins mailed to him a letter outlining in detail the return-to-work certification requirements. In addition, Mr. Harrell discussed his alternatives with Cussins when he first had attempted to return to work.

87
Mr. Harrell contends that the Postal Service was required to inform him of his return-to-work obligations at the time he requested FMLA leave, not at the time he attempted to return to work. On February 2, and again on February 23, 2000, Mr. Harrell notified his supervisors that he might be absent for up to four weeks. The Postal Service initially advised him of its return-to-work requirements by letter dated February 23, 2000. Although, according to Mr. Harrell, he did not receive this letter until March 7 (the day after he attempted to return to work), nothing in the record suggests that the Postal Service delayed in attempting to notify Mr. Harrell of his obligations within a reasonable time after he advised the Postal Service that he needed to take an extended absence.

88
Furthermore, even assuming that the Postal Service failed to provide adequate notice, Mr. Harrell was not harmed by this violation. On March 6, 2000, when Mr. Harrell attempted to return to work, he was told by Cussins what he needed to do in order to be cleared for work. By letters dated March 9 and March 15, 2000, the Postal Service reiterated to Mr. Harrell his return-to-work obligations and told him that he would be subject to removal if he failed to comply with those conditions. Then, when Mr. Harrell responded by letter on March 21, the Postal Service sent him another letter requesting an opportunity to review medical documentation from his health care provider and scheduling an appointment for him to be examined by a USPS-contract physician. Mr. Harrell again refused this request. The Postal Service did not terminate his employment until April 27, 2000.

89
This chronology demonstrates that Mr. Harrell had ample notice of the Postal Service's expectations and of his obligations related to returning to work. We conclude that, on this record, the district court's grant of summary judgment in favor of the Postal Service was appropriate on this claim.

Conclusion

90
Accordingly, for the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

Notes:

1
 Section 2614(a)(1) provides:
(1) In general
Except as provided in subsection (b) of this section, any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave —
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a)(1).

2
 The Department of Labor regulations discuss an employee's right to restoration:
(a) On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions or employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. See also § 825.106(e) for the obligations of joint employers.
(b) If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA). See § 825.702.

29
 C.F.R. § 825.214

3
 See Gonzales v. Oregon, ___ U.S. ___, 126 S.Ct. 904, 915, 163 L.Ed.2d 748 (2006) (rejecting the Government's argument that an interpretive rule was worthy of deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), in part because "the underlying regulation does little more than restate the terms of the statute itself").

4
 The relevant sections of 29 C.F.R. § 825.310 are set forth supra at 920

5
 Subsection (c) then goes on to describe the statutory protections set forth in the act for returning to work — those protections that are applied in the event subsection (b) is inapplicableSee 29 C.F.R. § 825.310(c), supra at 920.

6
 A Department of Labor Opinion Letter, Opinion Letter FMLA-113, further elucidates the Department's position vis-a-vis CBAs and establishes that the Department's position has remained consistent over time. The letter states:
How FMLA's certification provisions interact with the terms of a CBA that govern an employee's reinstatement is specifically discussed in § 825.310(b) of the regulations. If the terms of the CBA, for instance, require a fitness-for-duty examination in addition to a return-to-work certification, then those terms apply with certain conditions. The FMLA, which has adopted the guidelines of the Americans with Disabilities Act (ADA), requires that any fitness-for-duty examination as a condition for returning to work must be job-related and consistent with business necessity.
... If the above-referenced return-to-work medical certification and fitness-for-duty examinations provisions in the handbook and manual are a part of the CBA as you have asked that we assume, then these provisions would apply instead of the FMLA's return-to-work certification requirements....
Opinion Letter, FMLA-113 (September 11, 2000). Thus, the Department of Labor consistently has taken the position that § 2614(a)(4) means that return-to-work provisions set forth in a CBA, whether providing greater or fewer protections to employees than are explicitly set forth in the FMLA, take precedence over the statutory protections provided to employees in the Act.

7
 Mr. Harrell cites two district court opinions,Marrero v. Camden County Board of Social Services, 164 F.Supp.2d 455 (D.N.J.2001), and Routes v. Henderson, 58 F.Supp.2d 959 (S.D.Ind.1999), that reach a different conclusion. For the reasons set forth in this section, we respectfully disagree with those courts.

8
 Mr. Harrell also argues that the Postal Service violated its own regulations when it required that he undergo an examination by a designated physician. He claims that the return-to-work requirements do not specifically reference the portion of the employee manual dedicated to FMLA leave, and, therefore, those requirements are not meant to apply to the FMLA section. We find this argument unpersuasive. Nothing in the language of the statute or regulation suggests that a CBA's return-to-work provisions must specifically reference the FMLA or cross-reference the section of the CBA dedicated to implementing the FMLA in order to be effective
Mr. Harrell also points to statements by Postal Service administrators, regarding the requirements for returning to work after FMLA leave, made several years prior to Mr. Harrell's illness and attempted return-to-work. However, Mr. Harrell failed to establish either that these statements represented the current administrative practice under the existing CBA or Employee Labor Relations Manual, or that he relied upon these statements in refusing to undergo an examination by the Postal Service physician.

9
 The full text of § 2617(a)(1) reads:
(a) Civil action by employees
(1) Liability
Any employer who violates section 2615 of this title shall be liable to any eligible employee affected —
(A) for damages equal to —
(i) the amount of —
(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
(ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
29 U.S.C. § 2617(a)(1).

10
 See also Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir.1998) (holding that plaintiff had no claim under FMLA because she had suffered no diminution in income and incurred no costs as a result of alleged violation); see also Cavin v. Honda of America Mfg., Inc., 346 F.3d 713, 726 (6th Cir.2003) ("Even when an employee proves that his employer violated § 2615, `§ 2617 provides no relief unless the employee has been prejudiced by the violation'") (quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)); Samo v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 162 (2d Cir.1999) (concluding that the FMLA does not give "an employee a right to sue the employer for failing to give notice of the terms of the Act where the lack of notice had no effect on the employee's exercise of or attempt to exercise any substantive right conferred by the Act").


                            Fourth Court of Appeals
                                  San Antonio, Texas
                                       December 10, 2018

                                      No. 04-18-00587-CV

   Beatrice J. Janacek JARZOMBEK, Phillip Janacek, Ben J. Janacek, Kathryn M. Janacek
 Vajdos, Lawrence J. Janacek, Margaret R. Janacek Ryan, Sister Rebecca Janacek and Timothy
                                        E. Janacek,
                                         Appellants

                                               v.

                               MARATHON OIL COMPANY,
                                      Appellee

                 From the 218th Judicial District Court, Karnes County, Texas
                             Trial Court No. 18-01-00016-CVK
                           Honorable Stella Saxon, Judge Presiding

                                         ORDER
        The appellants’ motion to proceed with appeal without court reporter’s statement of facts
is hereby GRANTED.

                                                    _________________________________
                                                    Irene Rios, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of December, 2018.

                                                    ___________________________________
                                                    KEITH E. HOTTLE,
                                                    Clerk of Court


244 F.2d 409
Francisco ROMERO, Plaintiff-Appellant,v.INTERNATIONAL TERMINAL OPERATING CO., Compania Trasatlantica, also known as Spanish Line, Garcia & Diaz, Inc., and Quin Lumber Co., Inc., Defendants-Appellees.
No. 164.
Docket 24205.
United States Court of Appeals Second Circuit.
Argued January 24, 1957.
Decided April 30, 1957.

Charles A. Ellis, New York City (Narciso Puente, Jr., and Silas B. Axtell, New York City, on the brief), for appellant.
John Nielsen, New York City (John P. Smith, New York City, on the brief), for defendant-appellee International Terminal Operating Co.
John L. Quinlan, New York City (Bigham, Englar, Jones & Houston, and John B. Shields, New York City, on the brief), for defendants-appellees Compania Trasatlantica, also known as Spanish Line, and Garcia & Diaz, Inc.
Sidney A. Schwartz, of Alexander, Ash & Schwartz, New York City (William J. Kenney, New York City, on the brief), for defendant-appellee Quin Lumber Co., Inc.
Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
PER CURIAM.

1
We affirm on Judge Sugarman's workmanlike opinion below which contains a full statement of the facts.

2
We do not, however, overlook the appellant's invocation of Article VI1 of the treaty of 1902 between the United States and Spain, 33 Stat. 2105, in support of his contention, made apparently for the first time on the appeal, that the court below had jurisdiction under the Jones Act. 46 U.S.C.A. § 688. We find nothing in the text of that Article which confers upon the appellant, a Spanish subject, the substantive rights created by the Jones Act. The appellant also argues that the abrogation of Article XXIII2 of that treaty somehow demonstrates the presence of jurisdiction below. But as to this, appellant's counsel, with commendable candor, subsequent to argument provided us with a letter from a legal adviser in the State Department which states that Article XXIII of the 1902 treaty has been abrogated only in so far as its provisions are in conflict with the Seaman's Act of March 4, 1915, 38 Stat. 1164.3 Neither in Article XXIII nor in its abrogation do we find support for the appellant's position on the jurisdictional questions involved.

3
Affirmed.

Notes:

1

"Article VI.
"The citizens or subjects of each of the two High Contracting Parties shall have free access to the Courts of the other, on conforming to the laws regulating the matter, as well for the prosecution as for the defense of their rights, in all the degrees of jurisdiction established by law. They can be represented by lawyers, and they shall enjoy, in this respect and in what concerns arrest of persons, seizure of property and domiciliary visits to their houses, manufactories, stores, warehouses, etc., the same rights and the same advantages which are or shall be granted to the citizens or subjects of the most favored Nation."

2

"Article XXIII.
"Consuls-General, Consuls, Vice-Consuls and Consular Agents shall have exclusive charge of the internal order of the merchant vessels of their Nation and shall alone take cognizance of differences which may arise, either at sea or in port, between the captains, officers and crews without exception, particularly in refence to the adjustment of wages and the execution of contracts. In case any disorder should happen on board of vessels of either party in the territorial waters of the other, neither the Federal, State or Municipal Authorities in the United States, nor the Authorities or Courts in Spain, shall on any pretext interfere, except when the said disorders are of such a nature as to cause or be likely to cause a breach of the peace or serious trouble in the port or on shore, or when in such trouble or breach of the peace, a person or persons shall be implicated not forming a part of the crew. In any other case, said Federal, State or Municipal Authorities in the United States, or Authorities or Courts in Spain, shall not interfere, but shall render forcible aid to consular officers, when they may ask it, to search for, arrest and imprison all persons composing the crew, whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the Consul addressed in writing to either the Federal, State or Municipal Authorities in the United States, or the Authorities or Courts in Spain, and supported by an official extract from the register of the ship or the list of the crew, and the prisoners shall be held during the whole time of their stay in the port at the disposal of the consular officers. Their release shall be granted at the mere request of such officers made in writing. The expenses of the arrest and detention of those persons shall be paid by the consular officers."

3
 The extent of the abrogation is stated to appear in correspondence and notification of abrogation printed in "Foreign Relations of the United States," 1915, page 3 et seq.; 1918, page 10; 1919, vol. 1, pages 54-67