author: HARRY T. EDWARDS, Chief Judge:

text:
    INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL 14, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 95-1446.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 19, 1996.
    Decided June 7, 1996.

      Richard S. Zuckerman, San Francisco, CA, argued the cause and filed the briefs for petitioner.
    Meredith L. Jason, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Dreeben, Supervisory Attorney, were on the brief.
    Before: EDWARDS, Chief Judge, BUCKLEY and SENTELLE, Circuit Judges.
   Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Following a section 10(k) hearing on an alleged work “jurisdictional dispute,” see 29 U.S.C. § 160(k) (1994), the National Labor Relations Board (“NLRB” or “Board”) found that the assignment of certain “chip-loading” work by Sierra Pacific Industries (“SPI”) to its unrepresented employees was an original assignment of new work. Pursuant to this finding, the Board further found reasonable cause to believe that Local 14 of the International Longshoremen’s and Warehousemen’s Union (“Local 14” or “Union”) had violated section 8(b)(4)(D) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 158(b)(4)(D) (1994), by picketing to force the assignment of the disputed SPI work to its members. When the Union refused to refrain from picketing, the Board then took action on an unfair labor practice complaint, and determined that the actions of Local 14 violated section 8(b)(4)(D) of the Act.

The Union petitions for review of the Board’s finding that it engaged in an unfair labor practice by picketing a dock and harbor used by SPI for wood chip-loading operations. The Union contends that, because there was no “jurisdictional dispute,” the Board had no authority to act pursuant to section 10(k); alternatively, the Union claims that, even if there was a jurisdictional dispute to be resolved, the Board’s decision that the wood chip-loading work should be allocated to SPI’s own employees instead of Union members was arbitrary and capricious. Because the Board retains broad discretion in defining what constitutes a jurisdictional dispute under section 10(k) of the NLRA, and is afforded considerable leeway in resolving an underlying work dispute, we can find no valid ground to overturn the judgment of the Board in this case. Accordingly, the petition for review is denied, and the Board’s cross-petition for enforcement of its Order is granted.

I. Background

A, The Dispute

Local 14 represents longshore workers who perform work under the Pacific Coast Longshore Contract Document (“PCLCD”), a multi-employer collective bargaining agreement between the Pacific Maritime Association (“PMA”) and affiliated local unions, including Local 14. Under the PCLCD, Local 14 members obtain work through a dispatch hall on a rotational basis. When a ship or barge arrives in port, a longshore workforce is dispatched through the hall to perform the stevedoring operation at a dock, after which the force returns to the hall for future dispatches. Under the rotational system, work opportunities are shared by all members of Local 14.

Local 14’s work has traditionally consisted of the loading of logs, lumber, pulp, and wood chips aboard ships and barges in the Port of Eureka, California. Virtually all of the Union’s stevedoring work has been performed through the Westfall Stevedore Company (‘Westfall”). From about 1973 to October 1993, all wood chips loaded in Eureka were loaded at the dock of North Coast Exports (“North Coast”), apparently because it was then the only facility suited for such work. Whenever vessels were to be loaded with wood chips at North Coast, Westfall hired workers through Local 14 to perform the loading.

SPI, a privately-held corporation engaged in the manufacture of lumber and other wood products in northern California, was one of the companies that regularly delivered wood chips to North Coast. Although SPI itself is not covered by the PCLCD, it was SPI’s practice to deliver wood chips to the dock, where Union members working under West-fall would then load them onto barges.

Around January 1993, Louisiana-Pacific (“L-P”) purchased the North Coast facility. After the purchase, L-P continued to use Westfall and Local 14 to load wood chips, and SPI continued to sell wood chips to L-P, dropping them at the dock to be loaded by Union members. This arrangement continued until the fall of 1993, when SPI decided that it would be more economically advantageous for it to sell its wood chips directly to a pulp manufacturer under a long-term agreement than to continue to sell its chips to a middleman, such as L-P. To this end, SPI leased a dock, known as the “14th Street Dock,” across the bay from L-P’s site.

The 14th Street Dock had been used for loading and discharging logs and lumber (with such work performed by Westfall using Local 14 workers), but wood chips had never been processed at the 14th Street Dock until SPI invested significant capital to install wood chip-loading machinery there in late 1993. Once SPI’s operations were up and running at the 14th Street Dock, logs and lumber continued to be loaded by Union members, but SPI began using its own, unrepresented employees to load the wood chips.

Under the system installed by SPI, the chip-loading process begins when trucks from SPI’s sawmills dump their loads in the yard at the 14th Street Dock, at which point employees sort and stockpile the chips. When a barge arrives to transport the chips, employees use front-end loaders to push the chips onto a conveyor belt in a pit, and the chips are then moved along a series of conveyor belts to the dock, where they are downloaded onto the barge. The speed of the conveyor system and the number of chips moving through the system are controlled by a “button man” sitting in a control booth approximately 60 feet above the conveyor system. SPI employees perform all of the labor required in this process as well as some related welding and electrical work. The SPI employees are also skilled in repairing and maintaining the chip-loading system and the loading equipment.

On several occasions after SPI leased the 14th Street Dock, an owner of Westfall approached SPI and asked for a contract to run SPI’s wood chip conveyor system. He put forth proposals under which SPI would have subcontracted the chip-loading work to West-fall, which would then have hired Local 14 members under the PCLCD to perform the button-man work. He also stated that Local 14’s members were demanding SPI’s chip-loading work. SPI management refused to subcontract the chip loading to Westfall on the ground that it would result in added costs.

On November 29, when the first barge arrived at the 14th Street Dock, the Union picketed outside the gate to the dock, carrying signs that read, “Unfair to the ILWU.” Later that day, SPI’s human resources manager and manager of corporate affairs, Ed Bond, met with Westfall and Union officials. The Union officials said that the chip-loading work was within their jurisdiction and they wanted it. Throughout December, January, and February, on the twelve occasions when barges were loaded, the Union picketed outside the gate to the dock.

On February 10, 1994, about 30 or 40 pickets were at the gate, some carrying signs saying, “Sierra Pacific unfair to ILWU.” There were also four or five boats in the harbor, with signs and pickets aboard, that interfered with tugboat and barge activity in the harbor. Later that day, Bond met with Westfall and Union officials again. While waiting for the meeting to begin, Union officials handed Bond a press release that stated, in part, “[T]he work of loading the Barges is ours.” See Joint Appendix (“J.A.”) 202.

B. Proceedings Before the Board

SPI filed unfair labor practice charges alleging that the Union had violated section 8(b)(4)(D) of the Act, which prohibits “eoere[ing]” any person engaged in commerce, where an object thereof is

forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board.

29 U.S.C. § 158(b)(4)(D) (1994). Thereafter, pursuant to section 10(k) of the Act, 29 U.S.C. § 160(k) (1994), the Board held a hearing to resolve the underlying work-assignment issue. The Union and SPI appeared at the hearing and addressed the issues as to whether a jurisdictional dispute existed and to whom the disputed work should be assigned.

On August 24, 1994, the Board issued a decision on the basis of the record made before the hearing officer. See International Longshoremen’s & Warehousemen’s Union, Local 14, 314 N.L.R.B. 834, 1994 WL 461757 (1994). The Board found that SPI’s “assignment of the chip-loading work to its unrepresented employees was an original assignment of new work,” and, thus, the Union’s actions could not be considered efforts to preserve work. Id. at 836. The Board also held that it had jurisdiction to consider the work assignment issue under section 10(k). Finally, the Board found reasonable cause to believe that the Union had violated section 8(b)(4)(D) of the NLRA by picketing to force the assignment of SPI’s button-man work to its members. Because the parties stipulated that they had not agreed on a voluntary method for resolving the dispute, id. at 835, the Board determined that it had jurisdiction to assign the disputed work. Based on the factors of employer preference and practice, and economy and efficiency of operations, the Board awarded the work to SPI’s employees. The Board declared that the Union was not to use means proscribed by section 8(b)(4)(D) to force SPI to assign the disputed work to Union members and directed the Union to notify the Board’s Regional Director within ten days as to whether it would refrain from such conduct. Id. at 837.

The Union’s failure to submit the requested assurance led to the issuance of a complaint by the Board’s General Counsel, alleging that the Union had violated section 8(b)(4)(i) and (ii)(D) of the Act. In response, the Union admitted its failure to notify the Regional Director of its intention to comply with the Board’s determination, but asserted that it had refused to do so in order to obtain judicial review of the Board’s decision.

The parties entered a stipulation and moved to transfer the proceeding to the Board. It was agreed that the record would consist of exhibits attached to the stipulation, and that there would be no further hearing or involvement of an Administrative Law Judge. Thus, with the Board’s approval, the case proceeded directly to the Board for findings of fact, conclusions of law, and issuance of an order.

In briefs submitted to the Board, the Union once again argued that it had engaged in lawful picketing in furtherance of a work preservation claim, and asserted that the Board’s assignment of the button-man work to SPI’s employees was arbitrary and capricious. The Board found “no merit in [the Union’s] contentions because they raise[d] arguments previously considered and rejected by the Board.” International Longshoremen’s & Warehousemen’s Union, Local 14, 318 N.L.R.B. No. 55 at 3 (1995) (“Order”), reprinted in J.A. 179, 181. Thus, the Board found “no matters outstanding for resolution,” and concluded that the Union violated section 8(b)(4)(D) of the Act by picketing SPI to force it to assign its button-man work to Union members. Id. The Union was ordered to cease and desist from such actions.

In its petition for review, the Union contends that this case has never involved a “jurisdictional dispute,” because the Union has acted solely to preserve work. Thus, according to the Union, the Board lacked statutory authority to treat this matter as if it involved a section 10(k) issue. The Union also asserts that, even if the Board had jurisdiction, its award of the button-man work to SPI employees was arbitrary and capricious. The Board cross-petitions for enforcement of its Order.

II. Discussion

A Work-Assignment Awards Under Section 10(k)

Section 8(b)(4)(D) of the Act, 29 U.S.C. § 158(b)(4)(D) (1994), makes it unlawful for a union to act to “coerce” an employer with an object to force the employer to assign work to employees in a particular labor organization rather than to another group of employees. Upon a charge of a violation of this section, the Board is to suspend proceedings on the charge pending its consideration of the underlying dispute under section 10(k) of the Act. See NLRB v. Plasterers’ Local Union No. 79, 404 U.S. 116, 123-24, 92 S.Ct. 360, 365-66, 30 L.Ed.2d 312 (1971). When the Board is faced with a dispute “between two or more groups of employees over which is entitled to do certain work for an employer,” it is a dispute within the Board’s jurisdiction under section 10(k). NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 579, 81 S.Ct. 330, 334-35, 5 L.Ed.2d 302 (1961) (“CBS”).

The Board exercises its authority over “jurisdictional disputes” by determining whether there is reasonable cause to believe (1) that section 8(b)(4)(D) has been violated and (2) that the parties are unable to settle the dispute voluntarily. See International Longshoremen’s & Warehousemen’s Union v. NLRB, 884 F.2d 1407, 1409 n. 5 (D.C.Cir.1989) (“Sear-Land”). Once these elements are established, the Board holds a hearing to determine which group of employees is entitled to perform the disputed work. See CBS, 364 U.S. at 586, 81 S.Ct. at 338. However, the Board’s resolution of this question does not immediately result in a reviewable order. Instead, the Board issues a request that the competing employee groups comply with its work-assignment award. If a rival employee group does not comply, its actions may then become the subject of an unfair labor practice proceeding under section 8(b)(4)(D), through which the Board’s section 10(k) award may be reviewed. See International Longshoremen’s & Warehousemen’s Union, Local 62-B v. NLRB, 781 F.2d 919, 923 (D.C.Cir.1986) (“Alaska Timber”).

The scope of our review of the Board’s section 10(k) orders is limited. As this court explained in Alaska Timber,

[i]n reviewing § 10(k) orders, as implemented by § 8(b)(4)(D) proceedings, we perform a limited inquiry. To the extent that the Board decisions reflect conclusions as to factual matters, for which there is “substantial evidence on the record considered as a whole,” we must defer to the Board’s conclusion. 29 U.S.C. § 160(e) (1982). To the extent that the Board decisions reflect a legal conclusion, however, we must determine whether the decisions were “arbitrary and capricious.”

781 F.2d at 923.

B. The Definition of a Jurisdictional Dispute

The critical issue in this ease is whether the dispute between Local 14 and the SPI employees was jurisdictional. In Alaska Timber, we indicated that, as a general matter, there is no jurisdictional dispute when (1) one of two potentially competing employee groups explicitly disclaims a demand for the work, (2) one of the competing employee groups renounces its claim to the work, or (3) the competing claims have been resolved. Id. Further, we noted that the quintessential jurisdictional dispute involves a conflict “between rival groups of employ-eels]” where “the employer ordinarily stands aloof,” with no particular interest in the outcome. Id. at 923-24; see also CBS, 364 U.S. at 579, 81 S.Ct. at 334 (“[I]n most instances, [the quarrel] is of so little interest to the employer that he seems perfectly willing to assign work to either [group of employees] if the other will just let him alone.”). Thus, we summarized the model jurisdictional dispute as one “embod[ying] two characteristics: first, the employer faces a jurisdictional dispute that is not of his own making and in which he has no interest; second, the dispute is between two employee groups.” Alaska Timber, 781 F.2d at 924.

Local 14 argues for a very rigid application of the two-prong model laid out in Alaska Timber. According to the Union, the Board had no authority to award the button-man work to SPI employees because, far from being disinterested, SPI actually instigated this dispute by moving its wood-chip operations to the 14th Street Dock, and because the SPI employees themselves were not in a dispute with the Union employees over the work. Indeed, the Union asserted that the SPI employees would lose nothing (at least not in the short-term) if the Union took over the button-man work.

The problem with the Union’s position is that it reads too much into Alaska Timber. That decision does not, as the Union would have it, set an absolute standard or state the final word on when disputes qualify as jurisdictional. Rather, as the court makes clear, the “Board must decide whether cases that do not precisely fit the model ... are nevertheless sufficiently like that two-part model to warrant intervention by the Board.” Id.; see also Highway Truckdrivers & Helpers, Local 107 (Safeway Stores, Inc.), 134 N.L.R.B. 1320, 1323 (1961) (The Board noted that the “normal” section 10(k) situation was one where “the employer is willing to assign the work to either group if the other will just let him alone,” but noted that it did “not mean to suggest that this is the only kind of situation where Section 10(k) is applicable.”). Thus, this issue, like a number of others arising under the NLRA, is one in which the Board must use its expertise to determine, on a case-by-case basis, how to apply the law. And, pursuant to the precepts of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), we must defer to the Board’s reasonable judgments regarding applications of the NLRA.

Given this deference, we have no difficulty upholding the Board’s determination in this case. The Board rightly recognized that, as Alaska Timber itself acknowledged, there is no absolute requirement that a jurisdictional dispute involve two competing unions. See 781 F.2d at 924 (citing Millwrights, Piledrivers, Divers, Highway Construction, AFL-CIO, Local Union No. 1026, 266 N.L.R.B. 1049, 1051, 1983 WL 25039 (1983)); see also CBS, 364 U.S. at 584, 81 S.Ct. at 337 (The Court acknowledged “the fact that § 10(k), like § 8(b)(4)(D), extends to jurisdictional disputes between unions and unorganized groups.”). Moreover, the fact that one group of employees is actually doing the work in question can reasonably be considered evidence of their claim to that work. See Alaska Timber, 781 F.2d at 924 (citing International Union of Operating Engineers, Local 926, 254 N.L.R.B. 994, 996, 1981 WL 20177 (1981)). Further, just because SPI employees may not have voiced a concern about keeping the button-man work does not indicate that they would not protest if that work were actually taken from them. In the instant case, if “the origins of the dispute” are considered, see Alaska Timber, 781 F.2d at 925, it is clear that there was sufficient evidence for the Board to conclude that Local 14 and SPI employees were rivals for the button-man work. The Board was not required to elicit testimony from SPI employees (as suggested by the Union) to prove more.

Consideration of the origins of this dispute not only bolsters the Board’s finding that there was a defacto dispute between employee groups, but also demonstrates that the Board reasonably concluded that the conflict was not truly instigated by SPI, as that concept has evolved in the case law. The reason why there is any concern over employer “instigation” is because, in instances where a union’s claim really is focused on “work preservation” (and not a “jurisdictional dispute”), it would be unfair to allow an employer to seek redress under sections 10(k) and 8(b)(4)(D), and thus deny the union a right to use economic weapons otherwise available to it. But this concern can be carried too far, for it is often the case that an employer has an interest in the outcome of a jurisdictional dispute. So if the notion of “instigation” is somehow construed to be coterminous with an employer’s interest in the outcome, the Board would be hard-pressed to find any jurisdictional disputes except in those rare cases in which the employer truly had not one iota of preference as to the outcome. Such a result would be absurd and analytically dissatisfying.

Thus, it is not surprising that the Supreme Court has recognized that an employer’s interest in the outcome of a jurisdictional dispute varies in every case. See Plasterers’, 404 U.S. at 124, 92 S.Ct. at 366 (“It may be that in some cases employers have no stake in how a jurisdictional dispute is settled.... Other employers ... are not neutral and have substantial economic interests in the outcome of the § 10(k) proceeding.”). According to the Court, sections 10(k) and 8(b)(4)(D) “were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.” Id. at 130, 92 S.Ct. at 369. A necessary corollary is that an employer need not be indifferent to the outcome of a labor dispute in order for the dispute to be deemed jurisdictional.

In this case, SPI admits that it would prefer for its own employees to perform the button-man work, noting that allocation of that task to Union members would be less efficient and more costly. Its move to the 14th Street Dock was driven by similar concerns, because, by eliminating the middleman in marketing its wood chips, SPI could realize substantial savings. The fact that SPI made a business decision to expand its operations in a search for profits, and thereby prompted a labor dispute, does not mean that SPI cannot be afforded the protection of the Act. As this court stated in Sea-Land, “if every action taken, no matter how natural or inevitable a business step, which gives rise to a dispute between rival groups of employees, disqualified an employer from section 8(b)(4)(D) relief, that section would become a dead letter.” 884 F.2d at 1412.

SPI’s move to the 14th Street Dock is no different from the employer’s decision in Sea-Land to move to a new dock in order to eliminate inefficiencies due to overcrowding. See id. Just as the employer in Sea-Land was free to choose between its own Teamster employees and the Longshoremen’s union when staffing its new dock, SPI was also free to choose either its own employees or Local 14 members to operate the chip loading machinery once it made the unassailable decision to relocate. SPI’s decision to use its own employees was a logical extension of its previous decision to avoid the middleman in its chip business. SPI was not looking to do battle with Local 14; rather, it sought to improve its operations and save money by creating a new position. Local 14 was not “supplanted,” because the work it sought was not work that it had ever done before.

Although the facts presented in this case also bear some resemblance to those presented in Alaska Timber, where this court overruled the Board’s finding of a jurisdictional dispute, there is at least one critical difference. In Alaska Timber, the employer unilaterally changed the long-standing loading practices at its own dock, thereby replacing longshoremen with its own employees. See 781 F.2d at 920-21. As this court subsequently explained, “[t]he Alaska employer’s shift in business practice seems to have been designed totally to supplant the Longshoremen with its own employees.” Sea-Land, 884 F.2d at 1411. Here, there is no evidence that SPI changed its operations in order to avoid the Union. Indeed, SPI had no direct relationship with the Union in this case.

Finally, we also reject the contention that Local 14’s picketing was somehow protected by the Act as a work preservation effort. Although Union members loaded chips dropped off by SPI at L-P’s dock, they had never loaded chips at the 14th Street Dock. Further, SPI is not a member of the PMA, nor is it a party to the PCLCD. Thus, the button-man work at issue was new work that did not “belong” to the Union by prior practice or contract. See, e.g., Bloomsburg Graphic Communications Union, Local 732-C, 308 N.L.R.B. 1190, 1192 n. 4, 1992 WL 277383 (1992) (The Board found that, when an employer moved bookbinding work to a new location, the assignment of related work was “an original assignment of new work.”).

C. The Board’s Allocation of the Disputed Work

Local 14 also asserts that the Board erred in assigning the work to SPI’s employees. In deciding section 10(k) work-assignment disputes, the Board routinely considers:

the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joint boards, and [unions] in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business.

International Ass’n of Machinists, Lodge 1743 (Jones Construction Co.), 135 N.L.R.B. 1402, 1410-11 (1962).

In this case, the Board considered the factors of certification and collective bargaining agreement, company preference and practice, area and industry practice, relative skills, and economy and efficiency of operations. The Board found that, although area and industry practice generally favored the Union, company preference and practice and economy and efficiency of operations favored an award to SPI’s employees. The other factors did not favor either employee group. The Board concluded that, after considering all relevant factors, the work in dispute should be performed by SPI’s employees. The Board’s findings of fact are supported by substantial evidence, and it does not appear that the Board overlooked any critical factors. Thus, its award to SPI’s employees was neither arbitrary nor capricious, and the Union’s petition for review of the award is denied.

III. Conclusion

The Union’s petition for review of the Board’s Order is denied, and the Board’s cross-petition for enforcement is granted.

So ordered.

      . 29 U.S.C. § 160(k) (1994) provides:
      Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.

      . See also Sea-Land, 884 F.2d at 1412 n. 7 (“That the employer may prefer one group of employees over another ... does not render a dispute non-jurisdictional. Indeed, in deciding Section 10(k) proceedings, the Board gives weight to employer preference.”).

      . SPI's action is also markedly different from a situation in which the employer has control over one group of employees, and then replaces them with other employees. See, e.g., USCP-WESCO, Inc. v. NLRB, 827 F.2d 581, 585 (9th Cir.1987) (There was no jurisdictional dispute when an employer subcontracted work away from its own represented employees to the rival employees of another contractor.); Alaska Timber, 781 F.2d at 925-26 (There was no jurisdictional dispute when an employer usurped and reassigned work previously performed by union members in order to avoid dealing with the union and to protect its own employees.); Safeway Stores, Inc., 134 N.L.R.B. at 1323 (There was no jurisdictional dispute when Safeway reassigned work from union drivers, who had performed the work for over ten years, to members of other unions.).

      . The Union argues that the Supreme Court's decisions in National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 635, 87 S.Ct. 1250, 1263, 18 L.Ed.2d 357 (1967), NLRB v. International Longshoremen's Ass’n, 447 U.S. 490, 506-08, 100 S.Ct. 2305, 2314-16, 65 L.Ed.2d 289 (1980), and NLRB v. International Longshoremen’s Ass’n, 473 U.S. 61, 77, 105 S.Ct. 3045, 3054-55, 87 L.Ed.2d 47 (1985), support its claims that the picketing involved an effort to preserve work. These cases are plainly distinguishable because they involved disputes between employers and unions regarding the proper interpretation of existing collective bargaining agreements. In this case, SPI has never been party to a collective bargaining agreement with the Union; indeed, when SPI wood chips were formerly handled at the North Coast/L-P dock, it was never at the direction or for the direct benefit of SPI.


source: Caselaw Access Project

author: KAREN LeCRAFT HENDERSON, Circuit Judge:

license: Public Domain

text:
    Dennis DETERS, Appellant, v. UNITED STATES PAROLE COMMISSION, Appellee.
    No. 94-5237.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 6, 1996.
    Decided June 7, 1996.

      Dennis Deters, was on brief, pro se.
    H. Thomas Byron, III, Arlington, VA, appointed by the court, argued the cause as amicus curiae in support of the appellant. Roy T. Englert, Jr., Washington, DC, was on brief.
    Kristan Peters-Hamlin, Assistant United States Attorney, Washington, DC, argued the cause, for appellee. Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief. Douglas A. Wickham, Assistant United States Attorney, entered an appearance.
    Before WILLIAMS, HENDERSON and RANDOLPH, Circuit Judges.
   Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Dennis Deters, a federal inmate, brought a pro se Privacy Act lawsuit for money damages against the United States Parole Commission (Commission). The Commission maintains records on federal prisoners; the inmate contends he has been aggrieved by the Commission’s alleged intentional or willful failure to maintain accurate records of the quantity of cocaine involved in his offenses. The district court granted the Commission’s motion for summary judgment. For the following reasons we affirm.

I

Four times in 1980 and 1981 Dennis Deters and his confederates used a small airplane to smuggle drugs from Colombia, South America to the United States. Deters was indicted and tried on federal drug charges. In October 1985 a jury convicted him of, inter alia, conspiring to import and to distribute marijuana, methaqualone and coeaine. After trial the probation officer who prepared the presentence investigation report (PSI) attributed 24 kilograms of cocaine to Deters — 12 on the third plane trip and 12 on the fourth. Deters objected to the PSI tally, arguing that he smuggled only 12 kilograms of cocaine, all on the fourth trip. The sentencing court made no finding on the issue, expressly declining to take quantity into account in sentencing Deters to 20 years in prison.

According to the Commission’s regulations, a federal prisoner ordinarily receives an initial parole hearing within 120 days after he is incarcerated. 28 C.F.R. § 2.12(a). In anticipation of Deters’s initial hearing the Commission prepared a “preliminary assessment worksheet” for him. Deters received a copy of the worksheet in January 1986. It showed him with a parole guideline range of “100+ months.” The range was based in part on the “Category Eight” severity rating of his offense behavior. The Category Eight rating in turn was based on the PSI’s attribution of 24 kilograms of cocaine to his offenses. Had the quantity been 12 kilograms, his offense behavior would have had a Category Seven rating, supra note 1, and consequently the worksheet would have reflected a parole guideline range of 52-80 months. After receiving the preliminaiy assessment Deters waived his initial parole hearing.

By May 1992 Deters had served one-third (80 months) of his 20-year sentence and thus was statutorily eligible for parole. See 18 U.S.C. § 4205(a). In June 1992 he requested an initial parole hearing which was scheduled for September 1992. In August 1992 he wrote the Commission to challenge the accuracy of the PSI. Deters explained that although one coconspirator had testified that Deters smuggled 12 kilograms of cocaine on the third plane trip and 12 more on the fourth, another coconspirator, allegedly more reliable than the first, had suggested in his trial testimony, and had since declared in an affidavit, that Deters smuggled no cocaine on the third trip. The Commission promptly informed Deters by letter that his challenge to the PSI would be placed in his file and considered at his scheduled parole hearing. Deters, however, waived the parole hearing after receiving a preliminary assessment worksheet that matched the one he had received in January 1986.

This sequence was repeated several times throughout the next year: Deters applied for parole and filed a challenge to the accuracy of the PSI; the Commission explained to him that it would address his challenge and examine the accuracy of his records at his parole hearing; Deters then waived his scheduled parole hearing and therefore waived parole consideration. He apparently refuses to attend an initial hearing until the Commission amends his file to manifest that his offenses involved only 12 kilograms of cocaine.

In October 1993 Deters filed suit pursuant to subsections (e)(5), (g)(1)(C), (g)(1)(D) and (g)(4) of the Privacy Act, 5 U.S.C. § 552a, claiming that the Commission’s alleged intentional or willful failure to maintain accurate records has caused him $365,000 in damages. The district court granted the Commission’s motion for summary judgment. Our review is de novo.

II

The Commission maintains a system of records on federal inmates and therefore is subject to the Privacy Act. Subsection (e)(5) of the Act requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy ... as is reasonably necessary to assure fairness to the individual in the determination.’’ Subsection (g)(1)(C) provides a civil remedy if an agency fails to satisfy the standard in subsection (e)(5) “and consequently a determination is made which is adverse to the individual.” Pursuant to subsection (g)(4), a plaintiff bringing an action under subsection (g)(1)(C) may recover actual damages if “the court determines that the agency acted in a manner which was intentional or willful.”

In order to prevail on his claim for money damages pursuant to subsections (g)(1)(C) and (g)(4), Deters must prove the following: (1) he has been aggrieved by an adverse determination; (2) the Commission failed to maintain his records with the degree of accuracy necessary to assure fairness in the determination; (3) the Commission’s reliance on the inaccurate records was the proximate cause of the adverse determination; and (4) the Commission acted intentionally or willfully in failing to maintain accurate records. See Dickson v. Office of Personnel Management, 828 F.2d 32, 37 (D.C.Cir.1987); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990). We affirm the district court’s grant of summary judgment, concluding as a matter of law that the Commission neither intentionally nor willfully failed to maintain Deters’s records with accuracy sufficient to assure fairness to him in a parole determination. We first address two issues that bear to some extent on the “intentional or willful” issue: whether the agency failed to maintain his records with sufficient accuracy and whether the agency made an adverse determination.

We begin with the accuracy of Deters’s records. As early as August 1992 Deters explained to the Commission that the probation officer who prepared the PSI derived the 24-kilogram figure from the trial testimony of coconspirator and government witness Anthony Benanti: Benanti testified that Deters smuggled 12 kilograms of cocaine on the third plane trip and another 12 kilograms on the fourth trip. Deters pointed out, however, that another coconspirator and government witness, Walter Sehieche, testified about cocaine only in connection with the fourth trip. Deters highlighted the trial transcript pages that contained Benanti’s and Sehieche’s testimony discussing cocaine and the third plane trip. He also included Schieehe’s post-trial affidavit which declared that no cocaine had been smuggled on the third trip. In addition, Deters submitted materials designed to discredit Benanti and establish Sehieche as the more reliable witness.

On receiving his comprehensive rebuttal to the PSI, the Commission placed it in his file for consideration at his parole hearing. Joint Appendix (JA) 259. Thus his file not only revealed that he disputed the accuracy of the PSI but also included the evidence underlying the probation officer’s 24-kilogram finding as well as other evidence that was not before the probation officer (e.g., Sehieche’s affidavit). See Fendler v. United States Bureau of Prisons, 846 F.2d 550, 552-54 (9th Cir.1988) (by including prisoner’s rebuttal to allegedly inaccurate PSI along with records sent to Commission, Bureau of Prisons assured fairness in parole determination and thereby satisfied subsection (e)(5)). Deters nevertheless contends that his file was not sufficiently accurate to assure fairness to him in the Commission’s parole determination. According to Deters, the Commission, on receiving his challenge, should have made a credibility determination (Schieche versus Benanti), sided with Schieche, declared the PSI inaccurate and amended the records accordingly. See JA 90.

Deters’s argument is somewhat difficult to square with Doe v. United States, 821 F.2d 694 (D.C.Cir.1987) (en banc). Doe challenged the accuracy of an investigatory report. The report, which described a special agent’s interview with Doe, attributed to Doe an incriminating statement she subsequently denied making. Id. at 696. We held that the agency had assured fairness to Doe — the accuracy standard embodied in subsections (e)(5) and (g)(1)(C) — by including in her file her version of what she said at the interview and by not stating whose account (Doe’s or the agent’s) the agency believed. Id. at 699-701. We explained that “[i]n the typical Privacy Act case ... it is feasible, necessary, and proper, for the agency and, in turn, the district court to determine whether each filed item of information is accurate.” Id. at 699. This is because in the typical case the “truth” is “clearly provable” or “relatively easily ascertainable.” Sellers, 959 F.2d at 311. On the other hand, in the “atypical” case, where the challenged information is not capable of being verified, neither the agency nor the court on de novo review is required to “find and record ‘truth.’” Instead, it suffices to “adjust [the] file equitably to reveal actual uncertainty.” Doe, 821 F.2d at 701. Doe was an atypical case because the dispute had been narrowed to what Doe said at the interview, a fact “unknowable” to anyone but Doe and the agent. Id. at 700. See generally Sellers, 959 F.2d at 311.

Deters likewise presents an atypical case because the “truth” — whether he transported cocaine on the third trip — is not readily ascertainable. Cf. id. A file that points out that the probation officer relied on Benanti’s testimony but also contains both Benanti’s and Schieche’s versions, as well as information bearing on their respective credibilities, “may be more accurate than a record embracing only one side’s story.” Doe, 821 F.2d at 700. The Commission, however, has not argued that this is an atypical ease. We assume without so concluding that the Commission failed to maintain Deters’s records with sufficient accuracy and turn to whether he has been aggrieved by an adverse determination.

Had Deters’s parole hearing been held, the hearing panel would have established his parole guideline range and a parole date. An unfavorable decision would have constituted an adverse determination. Deters, however, waived all scheduled parole hearings and thereby waived parole consideration. Nevertheless, he claims he was aggrieved by an adverse determination each time the Commission prepared the preliminary assessment worksheet shortly before the scheduled parole hearing. According to Deters, each preliminary assessment amounted to an adverse determination regarding the severity of his offense behavior and thus his parole guideline range and release date. It is far from clear, however, that the preliminary assessment constitutes an adverse determination. The worksheet explains:

On the basis of available documents concerning your case, the Commission has prepared a preliminary guideline assessment for your review prior to your in-person hearing. The final guideline determination in your case will be made after your in-person hearing. At the time of your hearing, you may present to the examiner panel documentary information concerning the evaluation of your case, which you believe may affect your guidelines.

JA 53 (emphasis added). The preliminary assessment, then, serves to provide the inmate with notice, enabling him to review the record for error and prepare for his hearing. It does not appear to be in any way binding on the hearing panel, which makes the parole determination. If it is not binding on the hearing panel, can it really be deemed an “adverse determination,” i.e., one affecting the inmate’s rights, benefits, entitlements or opportunities?

Deters contends, alternatively, that each preliminary assessment included an adverse determination that he should not be granted “parole on the record,” ie., parole without having to attend a hearing. By not granting him parole on the record, he suggests, the Commission deprived him of a benefit or opportunity he “could reasonably have been expected to have been given if the record had not been deficient.” OMB Privacy Act Guidelines, 40 Fed.Reg. at 28,969. But this argument is not without its difficulties. The discretionary “parole on the record” procedure exists not for the benefit of the inmate but rather “is intended to reduce the Commission’s workload by eliminating the need for in-person hearings where parole eligibility is clearly warranted and no purpose will be served by a hearing.” 46 Fed.Reg. 16,366 (1981). The Commission’s decision not to grant parole on the record is not a decision to deny parole. Instead it is a determination that the prisoner must follow the standard course and appear at a hearing, hardly an adverse determination by itself. In sum, it is not clear that in preparing Deters’s successive preliminary assessments the Commission made any adverse determination. We nonetheless assume the issue in Deters’s favor and examine his contention that the Commission acted in an intentional or willful manner.

In order to establish that the Commission willfully or intentionally failed to maintain his file with sufficient accuracy to assure fairness in its parole determination, Deters must prove that the agency “acted with something greater than gross negligence.” Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987). An agency acts in an intentional or willful manner “either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others’ rights under the Act.” Albright v. United States, 732 F.2d 181, 189 (D.C.Cir.1984). “[T]he violation must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful.” Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987) (internal quotation marks omitted).

Deters’s argument is that the Commission acted in an intentional or willful manner because it “explicitly refused to consider or act on four (4) highly detailed administrative challenges to the accuracy of the disputed portion of [his] file,” which he had submitted between August 1992 and July 1993. Brief of Appellant at 38. We disagree. To the extent Deters contends the Commission had a duty to act promptly on his challenges, he overlooks the fact that the Commission is exempt from subsection (d)’s requirement that, on receiving a request to amend an allegedly inaccurate record, the agency must promptly correct the record or furnish a reason for not doing so. See supra note 2. Any duty the Commission had regarding the accuracy of his file flows from subsection (e)(5). That provision suggests the Commission has no duty to act on an inmate’s challenge and verify his record until the agency uses the record in making a determination affecting his rights, benefits, entitlements or opportunities. See supra note 2. In this connection the Commission, consistent with the parole statutes and regulations, held the view that it would make no such determination about Deters until his parole hearing. The Commission thus explained to him that, in accordance with its standard practice, the hearing panel would consider his challenge and examine the accuracy of his records at that time. No fact-finder could determine on this record that the Commission “flagrantly disregarded” Deters’s Privacy Act rights when it supplemented his file with his rebuttal to the PSI and offered him a hearing that would have addressed the accuracy of the PSI. Even if the Commission inadvertently or negligently violated Deters’s Privacy Act rights by not examining the accuracy of the PSI before preparing a preliminary assessment (assuming arguendo, as we have supra, that a preliminary assessment constitutes an adverse determination), such a violation (if any) could in no sense be deemed “patently egregious and unlawful.” Accordingly we conclude that, as a matter of law, Deters cannot prevail on his damages claim under subsections (g)(1)(C) and (g)(4).

Ill

Deters’s complaint also alleges a cause of action for money damages under subsection (g)(1)(D) which provides a civil remedy when an agency’s failure to comply “with any other provision” of the Act has an “adverse effect” on an individual. The “other” provision allegedly violated here is subsection (e)(5), which we earlier discussed in the context of subsection (g)(1)(C). For two reasons we conclude that a plaintiff seeking damages for noncompliance with the standard set out in subsection (e)(5) must sue under subsection (g)(1)(C) and not subsection (g)(1)(D). First, subsection (g)(1)(D) is a catch-all provision which covers noncomplianee with “any other provision” of the Act; because subsection (g)(1)(C) covers noncompliance with subsection (e)(5), OMB Privacy Act Guidelines, 40 Fed.Reg. at 28,969; Doe v. FBI, 936 F.2d 1346, 1360 (D.C.Cir.1991); Sellers, 959 F.2d at 310, the latter cannot be an “other provision.” Second, unlike subsection (g)(1)(C), which requires the plaintiff to show that the agency’s violation of the Act caused an adverse determination, subsection (g)(1)(D) merely requires the plaintiff to show that the agency’s violation had an adverse effect on him. It would make little sense to hold an agency liable for noncomplianee with subsection (e)(5) — that is, for failing to assure fairness in a determination — if the agency either makes no determination at all or makes an adverse determination without using the disputed record.

For the foregoing reasons the judgment of the district court is

Affirmed.

      . See 28 C.F.R. § 2.20, Guidelines for Decision-making, Offense Behavior Severity Index, Chap. Nine, Subchap. C (Category Eight for distribution of, or possession with intent to distribute, 18.75 or more kilograms of cocaine; Category Seven for distribution of, or possession with intent to distribute, between 6.25 and 18.74 kilograms of cocaine).

      . The Commission promulgated a rule to exempt its system of inmate records from the amendment provisions of the Privacy Act, 28 C.F.R. § 16.85 (exempting system from 5 U.S.C. § 552a(d)); see Sellers v. Bureau of Prisons, 959 F.2d 307, 309 (D.C.Cir.1992), and a rule providing that a PSI is not subject to correction or amendment, 28 C.F.R. § 16.51(c). The Commission, however, has not exempted the system from subsection (e)(5). If an agency has no subsection (d) duty to amend, upon request, an allegedly inaccurate record, it is not clear what residual duty subsection (e)(5) imposes when an individual challenges the accuracy of a record. Does the agency nevertheless have to amend or expunge the record on the individual’s request? Or does the agency merely have to address the accuracy of the record at some point before using it to make a determination of consequence to the individual? Sellers is not entirely clear on this point; the language of subsection (e)(5), however, suggests the latter course. See OMB Privacy Act Guidelines, 40 Fed.Reg. 28,948, 28,964 (1975) (subsection (e)(5) "places the emphasis on assuring the quality of the record in terms of the use of the record in making decisions affecting the rights, benefits, entitlements, or opportunities ... of the individual”); cf. Buxton v. United States Parole Comm’n, 844 F.Supp. 642, 644 (D.Or.1994) (Commission satisfied subsection (e)(5) by complying with statutory parole hearing procedures).

      . Sellers involved an inmate’s challenge to the accuracy of a PSI. The PSI referred to a bank robbery charge that he claimed had been dismissed. He presented evidence showing that the probation office had erroneously submitted the PSI to the Commission and had asked the Commission to return it and not consider it. 959 F.2d at 308. The Commission failed to return it and used it in denying him parole. Id. We concluded that the case was a "typical” Privacy Act case because whether the PSI had been improperly submitted to the Commission “was relatively easily ascertainable” and "capable of being verified.” Id. at 311-12. Consequently the Commission, having apparently made no effort to address his challenge before relying on the PSI to deny him parole, did not satisfy the Privacy Act merely by noting in his file that he disputed the accuracy of the PSI. Id. at 312.

      . 18 U.S.C. § 4208(a) provides that "the Commission shall conduct a parole determination proceeding unless it determines on the basis of the prisoner’s record that the prisoner will be released on parole.” Section 2.12-03 of the Commission’s Rules and Procedures Manual states that “a hearing panel may recommend that parole based upon the record be granted” if “it appears upon pre-hearing review (1) that parole upon completion of the minimum sentence (at parole eligibility date) or within 180 days of the pre-hearing review decision is clearly warranted, (2) that such release date occurs within or above the applicable guideline range, and (3) that an in-person hearing does not appear necessary for further examination of the case.” As noted, if Deters's PSI had attributed 12, not 24, kilograms of cocaine to him, the preliminary assessment worksheet would have manifested a guideline range of 52-80 months (rather than 100+ months); because Deters was statutorily eligible for parole after serving 80 months (May 1992), it appears that after May 1992 the hearing panel had the discretion to recommend parole on the record.

      . In addition to providing a civil remedy for a violation of subsection (e)(5), we have held that subsection (g)(1)(C) "also creates a civil remedy when the agency maintains a challenged record that is the basis for an adverse determination made by another party.” Dickson, 828 F.2d at 36 (OPM may be liable under subsection (g)(1)(C) for failure to maintain record with sufficient accuracy to assure fairness in employment determination made by other agency that receives record from OPM). Although we suggested in Dickson that subsection (g)(1)(D) could cover a violation of subsection (e)(5), id. at 39, the holding in that case is limited to the scope of subsection (g)(1)(C).


author: RANDOLPH, Circuit Judge: TATEL, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Charles Lester VANNESS, Appellant.
    No. 95-3083.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 28, 1996.
    Decided June 7, 1996.

      L. Barrett Boss, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
    Geoffrey G. Bestor, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Edward G. Burley, Assistant United States Attorneys.
    Before: SILBERMAN, RANDOLPH, and TATEL, Circuit Judges.
   Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge TATEL.

RANDOLPH, Circuit Judge:

This appeal from a criminal conviction raises two issues, the first concerning the legality of a search pursuant to a warrant, the second concerning the sentence.

As to the search, the dispute goes to the sufficiency of the detective’s affidavit, which convinced a judge of the Superior Court of the District of Columbia to issue the warrant. The three-page, single-spaced, typed affidavit reported that during the preceding months, three independent informants told the police that an individual was selling crack cocaine from a basement apartment at 513 Florida Avenue. The information from two of the informants was at least two months old; the third report came within 24 hours of the detective’s signing his affidavit, from an individual who personally knew the target and said that he usually carried narcotics on his person. The detective’s affidavit recounted that, as undercover agents accompanied by the third informant approached the apartment to make a controlled buy, the informant identified the target — Vanness—as he was driving away. Police stopped Vanness’s car and asked him to step out, at which point someone — Vanness, according to the passenger — threw two pouches containing 31 packets of a rock-like substance out of the passenger window. The material field-tested positive for cocaine and the police arrested Vanness. The police also connected Vanness to the apartment by establishing that his mother was there. The affidavit recited Vanness’s two prior felony convictions in drug prosecutions and the experience of the detective, and other police officers, that narcotics merchants frequently maintain drug paraphernalia, records and weapons on the premises where they distribute drugs.

The ensuing search of the apartment yielded 51 grams of crack cocaine, about $500 in cash, two scales, ziplock bags suitable for packaging crack cocaine, and an Intrateeh Tec-9 pistol. The police also found personal papers and clothing belonging to Vanness, photographs of him, and his fingerprints.

Vanness’s claim is that the sentence in the affidavit — “The target was observed to throw out of the passenger window two pouches.” — constituted a material misrepresentation requiring, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), suppression of the evidence recovered in the search. Read in isolation, the sentence was strictly true: someone — the passenger, it turns out — did indeed observe Vanness throwing drugs out of the car. Yet we have no doubt the judge issuing the warrant had the misimpression that the someone was a police officer. The affidavit’s immediately preceding sentence stated: “The target was approached and asked to step from the vehicle.” This must have referred to police officers. And so, when the next sentence reported what someone observed during the stop, one would naturally assume the observer was also a police officer. No other candidates appear. The affidavit does not even mention that Vanness had a passenger.

Still, the district court rightly refused to exclude the evidence. If we treated the contested statement as untrue, the warrant would nevertheless stand unless the detective deliberately falsified the affidavit, or inserted the statement in reckless disregard of its truth. Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77; United States v. Warren, 42 F.3d 647, 653 (D.C.Cir.1994). The district court heard the detective’s testimony at the suppression hearing and found that he had not phrased the sentence in order to mislead. This finding was not clearly erroneous. Vanness introduced no evidence that the detective meant to hide the truth. The district court thought the detective testified truthfully. And there is no reason to suppose the detective omitted the detail about the passenger in reckless disregard of the truth. See United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993). The presence of probable cause did not turn on whether the police or a passenger saw Vanness toss the drugs. The remaining information in the warrant still would have established probable cause to search Vanness’s apartment. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. Vanness was driving the car and transporting drugs. See United States v. Thomas, 989 F.2d 1252, 1254-55 (D.C.Cir.1993). Three individuals had reported his drug dealing, one as recently as the day before the detective signed the affidavit. The tips were mutually reinforcing. United States v. Laws, 808 F.2d 92, 103 (D.C.Cir.1986). And Vanness’s criminal record indicated that he engaged in this illegal business. Id. In light of this and other information in the affidavit, the judge who issued the warrant had a “substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). There is thus no reason for us to reach the exception laid down in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), for officers who rely in good faith on invalid search warrants. The warrant here was valid.

This brings us to the sentencing issue. Vanness stands convicted of possessing with intent to distribute more than 50 grams of cocaine base (21 U.S.C. § 841(a)(1), (b)(l)(A)(iii)) and possessing with intent to distribute cocaine base within 1000 feet of a school (21 U.S.C. § 860(a)). The district court sentenced him to a mandatory term of life in prison without parole, a sentence Vanness claims the court had no jurisdiction to impose. His reasoning is as follows. Vanness was subject to an enhanced mandatory minimum term of life in prison because of his two prior felony drug convictions. 21 U.S.C. § 841(b)(1)(A). A judge may not impose an enhanced penalty unless before trial — or before a guilty plea — the prosecutor files an information stating in writing the previous convictions forming the basis for the enhancement. 21 U.S.C. § 851(a)(1). Vanness adds that § 851(a)(1) demands strict adherence and that a prosecutor’s failure to comply cannot be treated as harmless.

In Vanness’s case, the government filed an information before trial accurately setting forth his prior drug convictions. But the government inaccurately stated in the document that Vanness was subject to a minimum term of ten years in prison. This mistake, Vanness argues, deprived him of the notice § 851(a)(1) required and, therefore, deprived the court of authority to sentence him to a mandatory life term. The problem for Vanness is that § 851(a)(1) does not entitle him to the sort of notice he has in mind. The statute does not burden the government with the duty of advising defendants of sentencing consequences. To accept Vanness’s position would be to demand strict compliance with something about which § 851(a)(1) is silent. Section 851 gives defendants a chance to contest the accuracy of the government’s recital of their prior convictions. See 21 U.S.C. §§ 851(b) — (e). No doubt compliance with § 851(a)(1) also alerts defendants to their potential punishment before trial. United States v. Jordan, 810 F.2d 262, 269 (D.C.Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987). But Congress sought to accomplish these ends by requiring the government to file an information setting forth the defendant’s previous convictions, not by requiring the government to notify the defendant of the legal consequences of those convictions. Here the government did all § 851(a)(1) demanded of it; its gratuitous misstatement about the minimum sentence was a harmless error. Vanness claims no prejudice from the inaccuracy. There is no indication that he relied on it in deciding whether to put the government to its proof at trial, and there is every indication that he knew what was coming at sentencing. His lawyer twice declared that the court’s hands were tied and that there was nothing he could say to change the sentence. And neither Vanness nor his lawyer expressed any surprise or protest when the court then pronounced sentence. See United States v. Lyons, 53 F.3d 1321, 1323 (D.C.Cir.1995).

Affirmed.

TATEL, Circuit Judge,

concurring in part and concurring in the judgment:

I join the judgment of the court, the portion of the court’s opinion rejecting Vanness’s sentencing challenge, and the portion of the court’s opinion concluding that the district court did not commit clear error in finding that the detective on whose affidavit the search warrant was based did not knowingly or recklessly include a false statement in his affidavit. Because we can easily uphold this finding, I see no need to address Vanness’s many challenges to the finding of probable cause supporting the search warrant. As Vanness concedes in his brief, under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), whether there was probable cause to issue a warrant is irrelevant if the officers conducting a search reasonably relied in good faith on a warrant issued by a detached and neutral magistrate, see id. at 913, unless the affidavit on which the warrant was based included a material statement “that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” id. at 923 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); accord United States v. Richardson, 861 F.2d 291, 294 (D.C.Cir.1988) (“[E]ven if the inaccurate statement in the affidavit was material to the issue of probable cause, the evidence uncovered during the search was admissible because the affidavit was made in good faith, the warrant was issued by a detached and neutral magistrate, and the warrant was reasonably relied on in good faith by the police officers.”), cert. denied, 489 U.S. 1058, 109 S.Ct. 1325, 103 L.Ed.2d 593 (1989). Vanness has not argued that the magistrate who issued the warrant was not neutral and detached or that the officers conducting the search were not acting reasonably and in good faith. The court’s upholding of the district court’s determination that the affiant did not act in bad faith is therefore sufficient to justify affirmance of Vanness’s conviction.

      . 21 U.S.C. § 851(a)(1):
      No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

      . Several courts have described § 851(a)(1) as a “jurisdictional” requirement. Suveges v. United States, 7 F.3d 6, 10 (1st Cir.1993); United States v. Belanger, 970 F.2d 416, 418 (7th Cir.1992); United States v. Wright, 932 F.2d 868, 882 (10th Cir.), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 and 502 U.S. 972, 112 S.Ct. 450, 116 L.Ed.2d 467 (1991); United States v. Olson, 716 F.2d 850, 852-53 (11th Cir.1983). "Jurisdiction” is a word of many, too many, meanings. We prefer to put the matter in different terms. A prosecutor’s compliance with § 851(a)(1) is simply a necessary condition to a judge's imposing an enhanced sentence on the basis of a defendant's prior convictions.


author: GINSBURG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Muhammad ABDUL-SABOOR, Appellant.
    No. 95-3044.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 18, 1996.
    Decided June 7, 1996.

      Allen E. Bums, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, was on the briefs.
    Pamela S. Satterfield, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John Fisher, and Thomas C. Black, Assistant United States Attorneys, were on the brief.

      Before: WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.
   Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Appellant Muhammad Abdul-Saboor challenges the district court’s denial of his motion to suppress the drugs and guns seized from his apartment during a warrantless search. The district court ruled that the search was valid as a protective sweep or, alternatively, because the evidence inevitably would have been discovered in the warranted search for documents conducted the next day. The court did not reach the Government’s further argument that the evidence was seized as the result of a lawful search incident to the defendant’s arrest.

When his suppression motion was denied, Abdul-Saboor entered a conditional plea of guilty to charges of possession with intent to distribute cocaine base, commonly known as crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and possession of a firearm in relation to that offense, in violation of 18 U.S.C. § 924(c)(1). The only question on appeal, therefore, is the validity of the search. The dispute over the proper answer to that question is narrowed by the Government’s concession that the search here cannot be upheld as a protective sweep in view of our holding in United States v. Ford, 56 F.3d 265 (D.C.Cir.1995) (protective sweep requires articulable suspicion that area to be searched harbored individual posing danger).

For the reasons that follow, we hold that the drugs and firearms were lawfully seized from Abdul-Saboor’s apartment incident to his arrest. Accordingly, we affirm the district court’s denial of Abdul-Saboor’s motion to suppress that evidence without reaching the inevitable discovery doctrine invoked by the district court. See Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 820 (D.C.Cir.1984) (court of appeals may affirm judgment of district court upon any valid ground).

I. Background

In July 1993 Deputy U.S. Marshals Robert Parker and Karen Skillman went to AbdulSaboor’s apartment in order to arrest him on a bench warrant issued in an unrelated case. The defendant, who had opened the door wearing a bathrobe, asked and was allowed to change clothes before leaving the apartment. Entering his bedroom, which was lit only by the glow of a television set, he stealthily picked up a loaded .45 caliber handgun from the television table and tried to hide it in front of his body. Fortunately Deputy Parker saw the maneuver; he drew his weapon and ordered the defendant to drop the gun — which Abdul-Saboor did not do until the officer threatened to shoot him. Deputy Skillman then handcuffed AbdulSaboor and seated him in a chair at a point she later estimated to be four feet outside the bedroom doorway.

Deputy Parker testified that when he returned to the bedroom in order to pick up Abdul-Saboor’s handgun he noticed a loaded semi-automatic MAC-11 pistol and a magazine with ammunition in it lying on the television table. He took the weapons and the magazine to the kitchen, then guarded Abdul-Saboor while Deputy Skillman went to the car to request assistance in order to process the crime scene. When Skillman returned, Parker revisited the bedroom. As he opened the blinds for light he saw on top of the television set, partially obstructed by a framed picture, several small bags of what looked like crack. Parker then searched the apartment for additional weapons. He discovered a sawed-off shotgun under a mattress and another shotgun wrapped in a white plastic trash bag lying on the floor, protruding from the doorway of an open closet. Back in the kitchen, Parker found a stun gun on top of the refrigerator. He also noticed boxes of ammunition on open shelves in the dining room. When the police arrived they found $420 in a plastic cup on the kitchen table.

The next day Parker obtained and executed a search warrant for evidence that AbdulSaboor lived in the apartment. He and other officers thoroughly searched the entire apartment, finding ample documentary and physical evidence that the defendant lived there.

On appeal Abdul-Saboor argues that the district court should have suppressed the evidence that Deputy Parker seized from his apartment as a result of Parker’s returning to the bedroom, namely the drugs and the shotguns. He objects to the Government’s inevitable discovery rationale upon two grounds. First, the record does not show that the apartment was secured between the warrantless search that followed his arrest and the warranted search conducted the next day; accordingly, he argues, “the Government failed to make the required showing, by a preponderance of the evidence, that the drugs and the other guns still would have been in the apartment when the search warrant was executed.” Second, the Government did not demonstrate that the search for documents and other evidence that the defendant lived in the apartment would routinely have extended to those places where the drugs and guns were found.

The Government responds first that the contents of the apartment do not appear to have been disturbed between the arrest and the search of the following day. AbdulSaboor testified that his uncle and his landlord had keys to the building, but he made no representation that' anyone other than himself had a key to his apartment. Moreover, claims the Government, the entire apartment was thoroughly examined during the document search; neither the drugs nor the shotguns could possibly have escaped detection.

The Government’s alternative theory is that the search was validly conducted incident to the defendant’s arrest. In opposition to that theory Abdul-Saboor asserts that the area searched was not accessible to him at the time of the search. The Government counters that the marshals were entitled to search the area that was within Abdul-Saboor’s immediate control at the time of his arrest notwithstanding that he had been subdued by the time of the search.

We express no view upon the question whether discovery was inevitable in this case. We need not resolve that issue because we agree with the Government that the search was incidental to the arrest.

II. Analysis

A warrantless search or seizure inside a home is presumptively unreasonable within the meaning of the Fourth Amendment, United States v. Dawkins, 17 F.3d 399, 402 (D.C.Cir.1994). There are certain exceptions, though, one of which is for the search, incident to a lawful arrest, of the area within the arrestee’s “immediate control.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) (“ample justification ... for a search of the arrestee’s person and the area “within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence”). This exception reflects the “potential dangers lurking in all custodial arrests.” United States v. Chadwick, 433 U.S. 1, 14-15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977). Accordingly, even though the reasons for conducting a search incident to arrest, namely “to disarm and to discover evidence,” may be stronger in some situations than in others, the Government is not obliged to justify each such search in the particular context in which it occurs. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973).

For our purposes, therefore, the determinative inquiry is simply whether Abdul-Saboor’s bedroom was an area within his immediate control at the relevant time, bearing in mind that “the articulation and definition of the ‘area within immediate control’ [is] a question of law.” United States v. Johnson, 18 F.3d 293, 294 (5th Cir.1994). We review questions of law de novo, as do we review the district court’s “application of legal standards to the facts of the case.” Spencer v. National Labor Relations Board, 712 F.2d 539, 563 (1983).

The Government contends, first, that the question whether the drugs and shotguns were within Abdul-Saboor’s area of immediate control is to be answered by reference to the time at which the arrest occurred, not the time at which the search occurred. For this point the Government relies heavily upon New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the Supreme Court, applying Chimel, approved the admission of evidence obtained from the search of an automobile conducted while the former occupants, who had been arrested, were being detained by the side of the road. Id. at 456, 101 S.Ct. at 2862. The search authorized in Belton extended precisely to the areas within the arrested persons’ immediate control at the time they were arrested, encompassing the passenger compartment of the ear and any containers found therein but excluding the trunk. Id. at 460 & n. 4, 101 S.Ct. at 2864 & n. 4.

As Abdul-Saboor reminds us, however, the Court in Belton was doing “no more than determining] the meaning of Chimel's principles in this particular and problematic context.” Id. at 460 n. 3, 101 S.Ct. at 2864 n. 3. So what are the defining characteristics of the context to which the Court was referring?

Abdul-Saboor would have us read Belton as a case peculiarly about automobile passenger compartments and the containers found in them. Of course, the Court’s reference to the “particular and problematic context” of that case is susceptible to a wide range of interpretations; it could refer to the nature of the conduct for which the defendants were arrested (possession of drugs), or the potentially menacing situation of a single officer arresting four people, or to the presence of other inculpatory evidence — each of which the Court noted, see id. at 457, 101 S.Ct. at 2862-63 — or to any combination of these or of other variables. To the extent that Belton might be thought to apply only to automobiles, however, we have already rejected that interpretation. See United States v. Brown, 671 F.2d 585, 587 (D.C.Cir.1982) (“Belton covers cases such as this one in which the search is contemporaneous with a lawful custodial arrest and is confined to containers in hand or within reach when the arrest occurs”).

In Brown the contents of a zippered pouch were admitted into evidence even though by the time it was searched the pouch had been moved beyond the reach of the defendant, who was being detained on a street comer. Id. at 586. Furthermore, the Court in Belton itself said “there is no need here to consider whether the search and seizure were permissible under the so-called ‘automobile exception,’ ” 453 U.S. at 462-63 n. 6, 101 S.Ct. at 2865 n. 6, which certainly suggests that some other factor or factors determined the outcome. Finally, to the extent that Brown might be thought to apply Belton only to containers, it is of no help to AbdulSaboor: the drugs found in his apartment were contained in small bags and even one of the shot guns was wrapped in a plastic trash bag.

As for the temporal as opposed to the spatial dimension of an arrestee’s “immediate control,” we think it significant that the Supreme Court in Belton looked to the time of the arrest, not to the time of the search, id. at 456, 460, 101 S.Ct. at 2862, 2864; we expressly followed suit in Brown, 671 F.2d at 587. From these two cases the Government concludes that the determination of immediate control must be made when the arrest occurs.

We agree. As we stated in Brown, a search is conducted incident to an arrest so long as it is an “integral part of a lawful custodial arrest process.” Id. Indeed, we specifically advised trial courts not to focus upon “whether the suspect held the item in his grasp or could have reached for it at the moment of the arrest.” Id. The relevant distinction turns not upon the moment of the arrest versus the moment of the search but upon whether the arrest and search are so separated in time or by intervening events that the latter cannot fairly be said to have been incident to the former. See, e.g., Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485-86 (search conducted long after defendant taken into custody held not incident to arrest); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (search not incident to arrest if remote in time from arrest).

Indeed, if the courts were to focus exclusively upon the moment of the search, we might create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer. That danger is not necessarily terminated by the arrest. As the Supreme Court pointed out in Belton responding to an analogous argument, “no search or seizure incident to a lawful custodial arrest would ever be valid [if] by seizing an article ... an officer may be said to have reduced that article to his ‘exclusive control’ ” — and thus to have ended the defendant’s control. 453 U.S. at 461-62 n. 5, 101 S.Ct. at 2865 n. 5. Likewise if by arresting and securing the defendant, an officer may be said to have put the area where the arrest took place under his own control — and thus outside the arrestee’s “exclusive control”— then, the law would truly be, as Mr. Bumble said, “a ass.”

Abdul-Saboor insists nonetheless that there is no sound basis upon which to conclude that the drugs and guns were within his immediate control either at the time of his arrest or at the time of the search. He was arrested at his apartment door when he first answered the marshals’ knock. All of the relevant contraband was in the bedroom. Deputy Parker testified that at the time of the disputed (second) search of the bedroom, Abdul-Saboor was handcuffed and seated in a chair in the entrance area that also served as the dining room, about four feet from the bedroom door. (Deputy Skillman’s testimony placed Abdul-Saboor approximately one foot into the hallway outside the apartment door — which could, as far as the record shows, still be about four feet from the bedroom door.)

In our view Abdul-Saboor artificially segments his arrest and the search; they were, as a practical matter, one continuous event. The defendant was unclothed when the marshals announced their purpose to arrest him. At his request the marshals permitted him to go to the bedroom, where he armed himself with a pistol and might well have thereby gained control over the other weapons and the drugs but for one of the arresting officers’ having seen him grab the gun. By arming himself after the process of arrest had begun, Abdul-Saboor turned the routine execution of a bench warrant into a life-threatening process — which began at the door of the apartment, continued into the bedroom, and was not over until Abdul-Saboor was handcuffed and seated some four feet outside the bedroom.

In Chimel the Supreme Court held that a search of any “area from within which [the arrestee] might gain possession of a weapon or destructible evidence” is uniquely justified. 395 U.S. at 763, 89 S.Ct. at 2040. In this ease the room that was searched was within the area where the arrest occurred; moreover, it was not only an area from which the defendant in theory “might gain possession of a weapon” but the area from which he had in fact obtained a weapon.

Abdul-Saboor insists, however, that we must construe Chimel differently in the light of our 1983 holding in United States v. Lyons, 706 F.2d 321 (D.C.Cir.1983). There we established the following standard: “To determine whether a warrantless search incident to an arrest exceeded constitutional bounds, a court must ask: was the area in question, at the time it was searched, conceivably accessible to the arrestee — assuming that he was neither an acrobat [nor] a Koudini.” Id. at 330. Lyons does add another element to the “immediate control” test, and the new element clearly relates to the time of the search: If, when the search occurs, the arrestee has been “immobilized” so that the area to be searched is not “conceivably accessible” to him, then the search is no longer incident to his arrest. Showing that the area searched was “conceivably accessible at the time of the search” was not meant to be difficult, however. As the court acknowledged in Lyons itself:

Custodial arrests are often dangerous; the police must act decisively and cannot be expected to make punctilious judgments regarding what is within and what is just beyond the arrestee’s grasp. Thus, searches have sometimes been upheld even when hindsight might suggest that the likelihood of the defendant reaching the area in question was slight. See, e.g., United States v. Mason, 523 F.2d 1122, 1125-26 (D.C.Cir.1975) (sustaining search of a closet “three or four feet” away from a standing, handcuffed defendant who had attempted to obtain a jacket hanging therein).

706 F.2d at 330.

At the time of the disputed search in Lyons, the arrestee was handcuffed and sitting on a chair near the doorway of his hotel room; the closet being searched was “several yards away”; there were six police officers in the room, of whom four “presumably” were armed. No weapons had yet been uncovered. The court found it “inconceivable that Lyons could have gained access” to the closet in which police found a gun in the pocket of a trench coat. Moreover, the court thought these facts significant: “Lyons never made any attempt to reach the closet, nor did he even request access to it,” id. at 330-31; after his arrest Lyons briefly “collapsed” and had been “revived and immobilized” before the search began, id. at 324; the arresting officers knew for a fact that Lyons was alone, id. at 324; and one of the officers admitted that at the time of the search he did not fear for his personal safety, id. at 325.

The facts here are roughly similar in a couple of respects. Like Lyons, Abdul-Saboor was handcuffed, sitting on a chair not far from the area to be searched. And in each case at least one police officer was armed. But there the similarities end. In all other relevant respects, the facts of the two cases are significantly different. First, unlike Lyons, Abdul-Saboor had specifically requested entry to the area searched; once there, he seized and attempted to hide a loaded handgun. Second, the arresting officer had discovered yet another loaded weapon and a magazine in Abdul-Saboor’s apartment prior to the disputed search. Third, the record does not indicate that AbdulSaboor suffered any infirmity that would impede his physical ability; by comparison, Lyons had collapsed shortly after his arrest. Fourth, Lyons was handcuffed and “immobilized” prior to the search; there is no indication that Abdul-Saboor, although handcuffed, was otherwise physically restrained. Fifth, as part of an undercover investigation, police had arranged for the hotel room in which Lyons was staying, id. at 324; thus the search took place on comparatively neutral turf as contrasted with Abdul-Saboor’s apartment, which was unfamiliar to the arresting officers but a known cache of weapons to the arrestee.

As these facts indicate, Abdul-Saboor had demonstrated both the capacity and the desire to avoid arrest. Lyons had demonstrated neither. A willful and apparently violent arrestee, faced with the prospect of long-term incarceration, could be expected to exploit every available opportunity, including any opening that enabled him to flee from one officer, run a few feet to the bedroom, and seize a deadly weapon. As the Ninth Circuit has pointed out, “Chimel does not require the police to presume that an arrestee is wholly rational. Persons under stress may attempt actions which are unlikely to succeed.” United States v. McConney, 728 F.2d 1195, 1207 (9th Cir.1984) (en banc). For that matter, having already uncovered a loaded handgun, a loaded semi-automatic pistol, and a magazine, the arresting officers could well anticipate that other weapons were stowed throughout the apartment, perhaps even within the area in which AbdulSaboor was seated.

Absent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded, we agree with our sister circuits that a search of the area where the arrest occurred in circumstances such as this case presents is a search incident to arrest. See, e.g., Davis v. Robbs, 794 F.2d 1129, 1130-31 (6th Cir.1986) (arrestee handcuffed and placed in squad car prior to seizure of rifle in house); United States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir.1985) (arrestees handcuffed and apparently guarded by officer while state trooper searched vehicle); United States v. Silva, 745 F.2d 840, 847 (4th Cir.1984) (arrestees handcuffed and guarded by agents prior to search of room for weapons); United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.1984) (arrestee surrounded by several officers and may have been handcuffed prior to search of room); United States v. Roper, 681 F.2d 1354, 1357-59 (11th Cir.1982) (arrestee handcuffed in hallway of motel and escorted inside room by agents prior to search of briefcase); Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3rd Cir.1981) (arrestee handcuffed and removed from automobile prior to search of vehicle); all cited in United States v. Queen, 847 F.2d 346, 352-54 (7th Cir.1988) (arrestee guarded by two armed officers, hands cuffed behind his back, prior to search of closet three feet away). In short, the Government has satisfactorily demonstrated both that the area in question was within Abdul-Saboor’s “immediate control” at the time of his arrest — as required by the Supreme Court in Chimel and Belton — and that the area was “conceivably accessible” to Abdul-Saboor at the time of the search — as required by this court in Lyons.

III. Conclusion

For the reasons stated, we hold that the warrantless search of Abdul-Saboor’s apartment was a lawful search incident to his arrest. Accordingly, the district court properly denied Abdul-Saboor’s motion to suppress the evidence seized from his apartment during that search. His conviction is therefore

Affirmed.

       Testifying at his suppression hearing, Abdul-Saboor acknowledged that the handgun was on the table but denied that he ever picked it up, claiming instead that he was only reaching to turn off the television. On appeal Abdul-Saboor cites that testimony but does not otherwise dispute the findings of the district court in any relevant respect; indeed, his argument proceeds from the premise that he did pick the gun up from the table.