author: MERRITT, Circuit Judge.

text:
    CATERPILLAR LOGISTICS, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervening Respondent.
    Nos. 15-1433/1611
    United States Court of Appeals, Sixth Circuit.
    Argued: March 10, 2016
    Decided and Filed: July 19, 2016

      ARGUED: Joseph J. Torres, Winston & Strawn LLP, Chicago, Illinois, for Petitioner/Cross-Respondent. Valerie L. Collins, National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner. Kristin Seifert Watson, Clop-pert, Latanick, Sauter & Washburn, Columbus, Ohio, for Intervening Respondent. ON BRIEF: Joseph J. Torres, Derek G. Barella, Heather S. Lehman, Winston & Strawn LLP, Chicago, Illinois, Mary M. Lenahan, Winston & Strawn LLP, Washington, D.C., for Petitioner/Cross-Respondent. Valerie L. Collins, Julie B. Broido, Linda Dreeben, National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner. Kristin Seifert Watson, Cloppert, Latanick, Sauter & Washburn, Columbus, Ohio, for Intervening Respondent.
    Before: COLE, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.

       This decision was originally issued as an unpublished opinion filed on July 19, 2016. The court has now designated the opinion as one recommended for full-text publication.

   OPINION

MERRITT, Circuit Judge.

In this labor relations case, Caterpillar Logistics, Inc. (“Caterpillar”) petitions for review of an order of the National Labor Relations Board (“the Board”) finding that Caterpillar committed unfair labor practices in connection with a 2013 representation election and also unlawfully discharged an employee. The Board cross-applies for full enforcement of its order. Reviewing the administrative record for substantial evidence, we affirm the Board’s order in full. Caterpillar’s petition for review is thus DENIED, and the Board’s application for enforcement is GRANTED.

I. Factual and Procedural History

On September 27, 2013, employees at Caterpillar’s Clayton, Ohio facility voted on whether they would be represented as a union by the United Automobile Workers (“UAW”). The representation election failed; 188 employees voted for representation, and 229 voted against. In October 2013, the UAW filed objections to conduct that allegedly violated the National Labor Relations Act (“the Act”) and impacted the election results. Particularly relevant here, the UAW objected to two instances of interrogation, the creation of the impression of improper surveillance, and the improper announcements of an employee bonus and new smoking shelters shortly before the vote.

The first alleged instance of interrogation and the alleged instance of the creation of an impression of surveillance occurred during .a workday in late August 2013. The night before, the UAW held its first organizing meeting, with no supervisors or management personnel in attendance. The following day at work, Caterpillar supervisor Nick Ewry approached employee (and meeting attendee) John Sponsler, who was working alone at the time, and asked Sponsler what he thought about the union. Sponsler explained that he favored unionization but that he feared retaliation if the union vote failed. Prior to this encounter, he had never revealed his union support to a manager or supervisor and was “extremely nervous about anyone knowing about” his involvement.

According to Sponsler, Ewry responded that he did “not think [Sponsler] had anything to worry about,” that “he did not think there would be any retaliation whatsoever, and that upper management already knew everyone that ... [was] involved.” Afterwards, Sponsler spoke to multiple colleagues about his encounter with Ewry, and told them that he “was afraid that someone had given the company information and surveilled [the union] meeting, because of [Ewry’s] comment about upper management knowing everyone ... involved.”

The second alleged instance of interrogation occurred around the same time. Following a mandatory anti-union meeting organized for employees by the management, supervisor Cory Butcher approached employee Marquis Applin while. Applin was working alone and proceeded to ask Applin what he thought about the meeting and whether he had made a voting decision. Butcher also said that if the union vote succeeded, he would no longer be able to talk to Applin “one on one.” During the conversation, Applin was' “nervous” and “kind of shocked,” and he later testified that he tried not to indicate, that he was a union supporter for fear of being fired. Applin would later relay his encounter with Butcher to other Caterpillar employees.

The first alleged instance of an improper announcement of an employee benefit came at an employee meeting on September 18, when Caterpillar General Manager Brian Purcell and Safety Manager Kevin Rivera announced to plant employees a one-time $400 safety bonus, which was ultimately paid out in December 2013. Many employees claim they were first notified of the impending bonus at that meeting. Caterpillar argues that it explained to employees in both March and July 2013 that the award was forthcoming upon a successful submission for the company’s “Chairman’s Safety Award.”

The second alleged instance of an improper announcement of an employee benefit came at the same September 18 meeting, when Caterpillar announced to employees for the first time that it would be constructing covered smoking shelters in the outdoor break areas used by employees that smoked. Since at least 2011, employees had consistently complained about the designated smoking areas in use at the time, which were uncovered and difficult to reach in bad weather. The smoking shelters were ultimately constructed in March 2014.

The representation election was held on September 27, and a majority of employees voted against unionization. In October, the UAW filed its objections to the election, alleging interrogation, the impression of surveillance, and the improper announcement of benefits.

On November 14, while the UAW’s objections were pending, Caterpillar held an employee meeting to announce the construction of a guard shack. At the meeting, employee Michael Craft asked what the shack was for. General Manager Purcell responded that the shack was “for guards,” eliciting laughter from the other employees present. Purcell’s dismissive response upset Craft, who relayed the incident to two coworkers the next day at work. According to supervisor Jason Brown, who overheard the remarks, Craft told them:

You guys (union supporters) just gained another supporter, I’m sick of the way they treat us in here, He (Brian Purcell) thinks he can treat us like he treated the thugs he managed in Denver, I’m not putting up with it anymore, I’m sick of it, that motherfucker is going down now, the gloves are fucking off now....

Brown asked Craft why he was upset. According to Brown,

[Craft] stated that he felt embarrassed and made out to look foolish [by Purcell]. [Craft] continued to say that he was for the union now due to the way Brian Purcell is treating the associates like they were thugs.... Mike said that he never meant he wanted to do physical harm to Brian Purcell he just meant that he wanted Brian to be held accountable for his actions towards Mike Craft.

Brown reported the incident to Assistant Value Stream Manager John Gruet, who then reported it to Purcell and Human Resources Manager Jason Murphy. Gruet also told them: “I don’t believe Mike is a violent person but he is upset. I don’t believe Mike intended physical harm.... ” Nonetheless, Murphy decided to suspend Craft, and Purcell later reported the incident to police and terminated Craft’s employment. Craft filed an objection with the Board, arguing that he had been terminated in violation of the Act. His complaint was consolidated with the UAW’s pending election objections.

On August 4, 2014, an Administrative Law Judge (“the Judge”) issued a decision finding that Ewry and Butcher had violated the Act by interrogating employees about union sympathies “during the critical period between the filing of the representation petition and the election,” and that Purcell had violated the Act by announcing the safety bonus and smoking shelters during the critical period. The Judge also found that Michael Craft was discharged in violation of the Act because his outburst had amounted to protected activity and was not sufficient to forfeit the Act’s protection. The Judge ordered Caterpillar to: reinstate Craft with back pay; cease and desist from unfair labor practices; and post and distribute a notice advising employees of their rights, acknowledging its violations, and listing the remedial measures it was taking. The Judge also ordered that the election results be set aside and a new election held.

On appeal, the Board affirmed the order of the Judge, except to the extent that it also found that Ewry violated the Act by creating the impression of surveillance and modified the ordered remedies to reflect the finding of surveillance.

Caterpillar now petitions for review of the Board’s decision and order, arguing that the Board’s order should not be enforced because Caterpillar did not violate the Act through interrogation, the creation of the impression of surveillance, the improper announcement of benefits, or the dismissal of Craft. The Board cross-applies for full enforcement of its order.

II. Discussion

“Our review of the Board’s decision is quite limited.” Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 905 (6th Cir. 1997). We defer to the Board’s factual determinations if they are supported by substantial evidence on the record as a whole. 29 U.S.C. §§ 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002) (citation and internal quotation marks omitted). Our review of fact-finding is even more deferential for credibility determinations: “We will overturn those determinations only if they overstep the bounds of reason,” Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 366 (6th Cir. 1984) (citation and internal quotation marks omitted), or “unless they are inherently unreasonable or self-contradictory,” Tel Data Corp. v. NLRB, 90 F.3d 1195, 1199 (6th Cir. 1996) (citation and internal quotation marks omitted). The Board’s application of law to the facts is also reviewed for substantial evidence, NLRB v. Mead Corp., 73 F.3d 74, 78 (6th Cir. 1996), and its “[conclusions of law are subject to a de novo review, although [we] will uphold the Board’s reasonable interpretation of the [National Labor Relations Act] where Congress has not spoken to the contrary on the same issue.” Dupont Dow Elastomers, 296 F.3d at 500 (citation omitted).

A. Unfair Labor Practices

The National Labor Relations Act guarantees to employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. “It shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of [these] rights.... ” Id. §§ 158(a), (a)(1). An unfair labor practice “occurs when substantial evidence demonstrates that the employer’s [actions], considered from the employees’ point of view, had a reasonable tendency to coerce.” Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651, 659 (6th Cir. 2005) (citation omitted). A finding of “actual coercion” is not required. Id. (citation omitted). “In making [an unfair labor practices] determination, the Board considers the total context in which the challenged conduct occurs and is justified in viewing the issue from the standpoint of its impact upon the employees.” NLRB v. Okun Bros. Shoe Store, 825 F.2d 102, 105 (6th Cir. 1987).

1. Interrogation

Coercive interrogation of employees about union activities constitutes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). NLRB v. E.I. DuPont De Nemours, 750 F.2d 524, 527 (6th Cir. 1984) (citations omitted). “[T]he basic test for evaluating the legality of an interrogation is ‘whether under all of the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.’ ” Dayton Typographic Serv., Inc. v. NLRB, 778 F.2d 1188, 1194 (6th Cir. 1985) (quoting Rossmore House, 269 N.L.R.B. 1176, 1177 (1984)). “When assessing the coercive tendency of an interrogation, the [Board] looks at, among other things, the background, the nature of the information sought, the questioner’s identity, and the place and method of interrogation.” Id. (citation omitted).

a. The Interrogation of John Sponsler

The Judge concluded that Ewry’s questioning of Sponsler was an attempt to assess Sponsler’s position on unionization in order to report it to Caterpillar corporate labor relations official Ron Hassinger, and that such questioning was coercive because it closely followed a management-organized anti-union meeting for employees. The Board agreed with this conclusion.

Substantial evidence supports the Board’s conclusion that Sponsler’s questioning of Ewry amounted to coercive interrogation in violation of the Act. This conclusion is supported by: the background of the exchange, in that an anti-union meeting had been held the day before and Sponsler’s union support was private; the nature of the information sought, in that Ewry clearly sought Sponsler’s position on the union; the questioner’s identity, in that Ewry was Sponsler’s supervisor; and the place and method of interrogation, in that Ewry approached Sponsler on the work floor while Sponsler was alone, a situation in which he might have felt more vulnerable than if he had been surrounded by his peers. The Board reasonably concluded that this encounter had a reasonable tendency to coerce. See Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C. Cir. 1997) (quoting Struksnes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)) (“[A]ny attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his [National Labor Relations Act] rights.”) (internal quotation marks omitted).

b. The Interrogation of Marquis Applin

The Judge also concluded that Butcher’s questioning of Applin was an attempt to assess Applin’s position on unionization in order to report it to Hassinger, and that such questioning was coercive because it closely followed the mandatory anti-union meeting for employees. The Board agreed with this conclusion.

Substantial evidence supports the Board’s conclusion that Butcher’s questioning of Applin amounted to coercive interrogation in violation of the Act. This conclusion is supported by evidence similar to the evidence supporting the conclusion that Sponsler was coercively interrogated: an anti-union meeting had been held the day before; Butcher clearly sought App-lin’s position on the union; Butcher was Applin’s supervisor; and Butcher approached Applin on the work floor while Applin was alone, a potentially vulnerable setting. See Allegheny Ludlum Corp., 104 F.3d at 1359; supra Part II.A.1.a.

2. Surveillance

Creating the impression that employees’ union activities are under surveillance constitutes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1), see NLRB v. Homemaker Shops, Inc., 12A F.2d 535, 538, 550 (6th Cir. 1984), because “employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways.” Flexsteel Indus., 311 N.L.R.B. 257, 257 (1993). A finding of actual surveillance is not required; “the test for determining whether an employer has created an impression of surveillance is whether the employee would reasonably assume from the statement that their union activities had been placed under surveillance.” Id.

The Board found that Ewry created .the impression of surveillance when, during his discussion of union activities with Sponsler, he said “that upper management already knew everyone that ... [was] involved.” This finding is supported by substantial evidence. Sponsler testified that he had attended an off-site union meeting the day before, that he had not publicly indicated support for the union, and that Ewry did not disclose his source of information. The Judge credited Sponsor’s testimony, and Caterpillar makes no argument that that credibility determination overstepped the bounds of reason or was inherently unreasonable or self-contradictory.

Thus, Ewry indicated to Sponsler that management was aware of protected labor activities without revealing his source, thereby creating an impression that protected activity had been improperly surveyed. See Sam’s Club, 342 N.L.R.B. 620, 620-21 (2004) (“[Manager] Roberts’ telling [employee] Peto that he ‘heard Peto was circulating a petition about wages’ leads reasonably to the conclusion that the [employer] had been monitoring Peto’s activities. Peto did not circulate the petition openly, and Roberts never revealed how he came by the information.”).

3. Impermissible Promising of Benefits

The promise or conferral of a benefit to employees in the run-up to a union election will typically amount to coercion, and thereby an unfair labor practice in violation of the Act. See NLRB v. Bailey Co., 180 F.2d 278, 279 (6th Cir. 1950) (“[T]hrough the promises of ... economic benefits ..., the respondent was demonstrating to its employees' that resort to self-organization was plainly unnecessary. This constituted interference with the exercise by the employees of their right of self-organization and collective bargaining through representatives of their own choosing.”). “[T]he critical inquiry is whether the benefits were granted for the purpose of influencing the employees’ vote in the election and were of a type reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. 954, 954 (1988) (citing NLRB v. Exchange Parts Co., 875 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964)). “[Ujnless the company can present a legitimate business reason for the timing of its guarantee,” such “a promise [of benefits] will be presumed impermissibly influential.” DynCorp, Inc. v. NLRB, 233 Fed.Appx. 419, 430 (6th Cir. 2007) (citing Bailey Co., 180 F.2d at 279).

a. The $400 Safety Bonus

The Judge found that there “was no reason for Brian Purcell to announce [in September] the fact that employees would be receiving the bonus in December other than to influence them in voting in the representation election” and that “the announcement was motivated by [Caterpillar’s] desire to discourage unit employees from voting for union representation,” because there was “no credible evidence that a firm decision had been made to pay employees the $400 bonus prior to the filing of the representation petition on August 16.” Thus, the Judge found that the announcement of the safety bonus was an impermissible benefit amounting to an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The Board agreed with these findings.

Caterpillar continues to argue that the bonus was first announced in March or July of 2013, when it would not have influenced an impending representation election. But the Judge credited the testimony of twelve employees who recalled no such announcements, and found that even if Caterpillar’s witnesses were credited, their testimony would indicate at most that Caterpillar announced in March or July that it might apply for the bonus, without conclusively indicated if or when an application would be made. The Board agreed with these findings.

The Board’s findings are supported by substantial evidence. We agree that “a reasonable mind might accept as adequate [the evidence] supporting]” the Board’s conclusion that even if Caterpillar’s witnesses are credited regarding the purported March and July announcements, these announcements indicated at most that Caterpillar might apply for the safety bonus. Dupont Dow Elastomers, 296 F.3d at 500 (citation and internal quotation marks omitted). For instance, Value Stream Manager Sara Pahlas testified that then-General Manager Jeff Slocum presented to employees at the March meeting the proposal for the safety bonus, reading from a PowerPoint presentation. The PowerPoint presentation that was purportedly displayed to employees at the meeting says conditionally that a bonus will be paid out to employees “IF AND ONLY IF we are positioned to submit a viable safety program for consideration in the annual ‘Chairman’s Safety Award’ Process.” Likewise, Safety Manager Rivera testified that, at the July meeting, he “covered the two projects that [he] thought we would be submitting, or we thought we would be submitting for that award.” Assuming these announcements were in fact made— which the testimony of the twelve employees draws into doubt — adequate evidence suggests they were conditional at best.

Thus, the Board and the Judge reasonably determined that employees were told for the first time, nine days before the election, that they would be receiving a bonus of $400. The Board and the Judge could have reasonably concluded that the bonus was “granted for the purpose of influencing the employees’ vote in the election and [was] reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. at 954. And even if the bonus was warranted for business reasons (like safety), Caterpillar cannot provide a “legitimate business reason for the timing of its guarantee” in order to rebut the presumption that the announcement of the bonus was impermissibly coercive. DynCorp, 233 Fed.Appx. at 430 (emphasis added). Indeed, the timing of the announcement reinforces the presumption that it was intended to coerce. Although the bonus was to be awarded on the basis of warehouse safety through the end on September 2013, the application was prepared in August, submitted on September 13, and announced of September 18 — -just nine days before the election: Thus, substantial evidence supports the conclusion that the bonus was' impermissibly secured “right before an election and sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978); see also St. Francis Fed’n of Nurses & Health Profs. v. NLRB, 729 F.2d 844, 850 (D.C. Cir. 1984) (“Thus the timing of the announcement of a [benefit] may violate section [158(a)(1) ], even though the employer’s initial decision to [provide the benefit] was perfectly legitimate.”)

b. The Smoking Shelters

The Judge found that the promised smoking shelters amounted to a benefit, and that the timing of their announcement was “designed to convince the employees that their demands would be met through direct dealing with [Caterpillar] and that unión representation could in no way be advantageous to them.” The Judge thus found that the announcement of smoking shelters amounted to an unfair labor practice in violation of the Act. The Board agreed with the Judge’s conclusions.

Substantial evidence . supports the Board’s conclusion that the announcement of smoking shelters amounted to an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The shelters were a solution to a problem that Caterpillar employees had complained of for a long time, and the shelters were announced for the first time shortly before the election. That the shelters were purportedly a response to safety concerns about uncovered smoking areas does not necessarily mean that there was a “legitimate business reason for the timing” of their announcement. DynCorp., 233 Fed.Appx. at 430; see St. Francis Fed’n of Nurses & Health Profs., 729 F.2d at 850.

The timing here indicates that neither safety nor any other legitimate purpose was the primary reason for the announcement that shelters would be constructed, and that in fact the announcement was “for the purpose of influencing the employees’ vote in the election and [was] of a type reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. at 954. Specifically, employees had complained for years about the exposed outdoor smoking areas, but no action was taken to address the issue until the shelters were announced nine days before the election. Further undercutting the purported safety rationale is the fact that the shelters were not in fact constructed until March of 2014, forcing employees to endure another winter in the exposed smoking areas. The Board’s conclusion that the announcement of the shelters amounted to an unfair labor practice is therefore supported by substantial evidence.

B. The Discharge of Michael Craft

The Act prohibits “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in 'any labor organization. ...” 29 U.S.C. §§ 158(a), (a)(3). But an employee who engages in “opprobrious conduct” can forfeit these protections. Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979). “It is well established that ‘although employees are permitted some leeway for impulsive behavior when engaged in concerted [organizing] activity, this leeway is balanced against an employer’s right to maintain order and respect.’ ” DaimlerChrysler Corp., 344 N.L.R.B. 1324, 1329 (2005) (quoting Piper Realty, 313 N.L.R.B. 1289, 1290 (1994)). “Where an employee engages in indefensible or abusive misconduct during otherwise protected activity, the employee forfeits the Act’s protection. Whether the Act’s protection is lost depends on a balancing of four factors: (1) the place of the discussion between the employee and the employer; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.” Id. (citing Atlantic Steel Co., 245 N.L.R.B. at 814). Although the Board’s findings of fact and application of law to fact are otherwise reviewed for substantial evidence, see Universal Camera, 340 U.S. at 477, 488, 71 S.Ct. 456; Mead Corp., 73 F.3d at 78, the Board’s determination of whether an employee has forfeited the protections of the Act is conclusive “unless it is illogical, arbitrary, or unreasonable,” NLRB v. Honda of Am. Mfg., Inc., 73 Fed.Appx. 810, 813 (6th Cir. 2003) (citing NLRB v. Hartmann Luggage Co., 453 F.2d 178, 183-84 (6th Cir. 1971)).

Here, the Judge determined that Craft was involved in protected activity during his outburst by telling his coworkers that he was a union supporter because of what he interpreted as his employer’s disrespectful treatment of employees. The Board agreed with this conclusion. The Judge also assessed the outburst according to the Atlantic Steel factors, and determined that Craft had not forfeited the Act’s protections. Specifically, he concluded that:

[ T]he place of the discussion, on the warehouse floor cuts both ways. Craft disrupted work for a very brief period of time. On the other hand, the seriousness of his misconduct is somewhat lessened by the fact that Brian Purcell was not present when he made his remarks.... Moreover, Craft’s statement was not accompanied by any threatening physical gestures ... which also weighs in favor of a finding that he did not lose the Act’s protection. [T]he subject of the discussion: Craft’s newly discovered support for the Union cuts in favor of a finding that he did not lose the protection of the Act. [The nature of the outburst] is the most important. Without the first sentence, Craft’s statements are certainly a threat which would lose him the protection of the Act. However, the M-fer going down, the gloves are off has to be placed in context. The statement makes no sense if one interprets it as I am going to kill or assault Brian Purcell and then support the Union.... [Provocation:] Purcell certainly did not provoke Craft by committing any unfair labor practice.... However, I conclude that this is an insufficient reason to deny Craft the protection of the Act in view of the other factors.

Thus, the Judge found that Craft had been “discriminatorily discharged” for engaging in behavior protected by the Act, and ordered his reinstatement. The Board also agreed with the conclusion that Craft had not forfeited the Act’s protections and was entitled to reinstatement.

Because Craft’s outburst to his colleagues was an expression of union support and a complaint about perceived working conditions, the Board’s determination that it amounted to protected activity under the Act is supported by substantial evidence. See 29 U.S.C. § 157 (“Employees shall have the right to self-organization, to form, join, or assist labor organizations, ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. ...”).

Moreover, we find nothing “illogical, arbitrary, or unreasonable” about the Board’s application of the Atlantic Steel factors and determination that Craft did not forfeit the Act’s protections. Craft’s outburst was plainly an expression of union support and a complaint about perceived working conditions, and while it may well have been crudely stated, it can reasonably be viewed in context as metaphorical speech rather than threatening speech. See Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22, 28 (D.C. Cir. 2011) (“Once we acknowledge that the employees were speaking in metaphor, the [Board’s] interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course, is a matter of context.”).

As such, we uphold the Board’s determination that Craft was improperly dismissed for engaging in expression protected by the Act, and that Caterpillar must reinstate him.

III. Conclusion

For the foregoing reasons, Caterpillar’s petition for review is DENIED, and the Board’s cross-application for full enforcement of its order is GRANTED.

      . Because we hold that the administrative fact-finding was supported by substantial evidence, see infra Part II, we primarily rely on those facts in this summary. While we docu-men! some major factual disputes here, we ultimately accept the administrative adjudicators' resolution of those disputes. Id.

      . Among its positions, Caterpillar argues that we should review and overturn the Board's order setting aside the representation election and ordering a new one. It is a well-settled rule, however, that such an order is not "final” and thus is not subject to our appellate review. U.S. Elec. Motors v. NLRB, 722 F.2d 315, 320 (6th Cir. 1983) (per curiam) (citing Am. Fed’n of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940); NLRB v. Int’l Bhd. of Elec. Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940)) (additional citations omitted). Moreover, Caterpillar conceded the mootness of this claim in a letter to our Court announcing that the second election had been conducted and a majority of employees again voted against representation. See Bingham v. Nat’l Credit Union Admin. Bd., 927 F.2d 282, 285 (6th Cir. 1991) (affirming dismissal of claims that petitioners’ concede were moot).


source: Caselaw Access Project

author: KETHLEDGE, Circuit Judge

license: Public Domain

text:
    ALLIED ERECTING AND DISMANTLING CO., INC.; Allied Industrial Development Corporation, Petitioners, v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents, Ohio & Pennsylvania Railroad Company, et al., Intervenors.
    Nos. 14-3094, 15-4020, 15-4021
    United States Court of Appeals, Sixth Circuit.
    Argued: June 8, 2016
    Decided and Filed August 22, 2016

      ARGUED: Richard H. Streeter, Law Office of Richard H. Streeter, Washington, D.C., for Petitioners. Eric M. Hocky, Clark Hill, PLC, Philadelphia, Pennsylvania, for Intervenors. Erik G. Light, Surface Transportation Board, Washington, D.C., for Respondents. ON BRIEF: Richard H. Street-er, Law Office of Richard H. Streeter, Washington, D.C., for Petitioners. Eric M. Hocky, Clark Hill, PLC, Philadelphia, Pennsylvania, Thomas J. Lipka, Manchester Newman & Bennett, L.P.A., Youngstown, Ohio, for Intervenors. Erik G. Light, Surface Transportation Board, Washington, D.C., Robert B. Nicholson, Adam D. Chandler, United States Department of Justice, Washington, D.C., for Respondents.

      Before: KETHLEDGE, WHITE, and DAVIS , Circuit Judges.

       This decision originally issued as an unpublished opinion filed on August 22, 2016. The court has now designated the opinion as one recommended for full-text publication.

       The Honorable Andre M. Davis, Senior Circuit Judge for the United States Court of Appeals for the Fourth Circuit, sitting by designation.

   OPINION

KETHLEDGE, Circuit Judge

Allied Erecting & Dismantling Co. wants to evict a railroad company from two sets of railroad tracks on land that Allied claims to own in Youngstown, Ohio. The question before us is whether' the Surface Transportation Board has jurisdiction over those tracks. The Board concluded that the tracks at issue here are used by a common carrier and are thus within the Board’s jurisdiction, pursuant to the Interstate Commerce Act. Allied petitions for review, arguing that the tracks are private tracks and thus outside the Board’s jurisdiction. We agree with the Board and deny the petition.

I.

A.

Under the Interstate Commerce Act, as amended by the Interstate Commerce Commission Termination Act, the Surface Transportation Board has exclusive jurisdiction over “transportation by rail carried.]” 49 U.S.C. § 10501(a). The Act preempts any remedies provided by state and local law. 49 U.S.C. § 10501(b). A “rail carrier” is “a person providing common carrier railroad transportation for compensation.” 49 U.S.C. § 10102(5). “Railroad” and “transportation” are broadly defined to include virtually any property, track, or vehicle “related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use[.]” 49 U.S.C. § 10102(6), (9).

The Act contemplates at least three types of railroad track. The first type, “railroad lines” or “main line tracks,” comprises tracks “designed and used for continuous transportation service by through, full trains between different points of shipment or travel[.]” Nicholson v. ICC, 711 F.2d 364, 367 (D.C. Cir. 1983) (emphasis omitted). Railroad lines fall within the Board’s general jurisdiction over railroad transportation, pursuant to section 10501. No one may build an extension to a railroad line, build additional lines, provide transportation over an extended or additional line, or abandon a line without Board authorization. 49 U.S.C. §§ 10901(a), 10903.

The second type is “excepted tracks,” defined as “spur, industrial, team, switching, or side tracks, or facilities[.]” 49 U.S.C. §§ 10501(b), 10906. Excepted tracks are used for loading cars, track switching, and other activities that are ancillary to main-line service. Nicholson, 711 F.2d at 367-68. Although the Board has jurisdiction over excepted tracks, see 49 U.S.C. § 10501, the.Board’s powers as to those tracks are limited. See 49 U.S.C. § 10906. Read together, sections 10501 and 10906 mean that “the construction and disposition” of excepted track are left in the hands of railroad management. See Port City Prop. v. Union Pacific R. Co., 518 F.3d 1186, 1188 (10th Cir. 2008).

The third type; “private tracks,” includes tracks that are not used for “transportation by rail carrier” — i.e. not used by a person who provides common-carrier service for compensation — and are therefore outside the Board’s jurisdiction. See 49 U.S.C. § 10501(a). According to the Board, tracks are private if they are built, maintained, and operated by the shipper to serve only the shipper, “so that there is no holding out to serve other shippers for compensation.” B. Willis, C.P.A., Inc.—Pet. for Declaratory Order, S.T.B. Fin. Docket 34013, 2001 WL 1168090, at *2 (Oct. 1, 2001) (internal quotation marks omitted); see also Kieronski v. Wyandotte Terminal R.R. Co., 806 F.2d 107, 109 (6th Cir. 1986); Pinelawn Cemetery—Pet. for Declaratory Order, FD 35468, 2015 WL 1813674, at *5 (Apr. 20, 2015).

B.

1.

This case concerns railroad tracks on two parcels of land, one on each side of the Center Street Bridge in Youngstown, Ohio. On the east side of the bridge, Allied owns the land and tracks, which the parties refer to as the “LTV tracks.” The Mahon-ing Valley Railroad Company has had an easement to use the LTV tracks since the 1990s. In 2005, Mahoning began parking rail cars on the tracks, which Allied considered a violation of the easement. Allied sued in state court to evict Mahoning; the state court referred the matter to the Board.

Allied challenged the Board’s jurisdiction, arguing that the LTV tracks were “spur, side, or industrial tracks,” which echoes the description of excepted tracks in 49 U.S.C. § 10906. Allied believed, erroneously, that the Board did not have jurisdiction over excepted track. The Board concluded (erroneously, it turns out) that it had previously authorized Mahoning to provide common-carrier service using the LTV tracks. The Board therefore concluded that Mahoning was a “railroad carrier”; and thus that the Board had jurisdiction over Mahoning’s use of the LTV tracks. The Board then concluded that the easement did not forbid Mahoning’s parking practices.

Allied petitioned to reopen Allied I, arguing that the Board in fact never authorized Mahoning to use the LTV tracks (though the Board admittedly had authorized Mahoning to use other tracks around Youngstown). In support, Allied introduced an affidavit from a former Mahoning employee, William Spiker, who asserted that the LTV tracks had been built as part of a strictly in-plant system for a steel mill and thus were never subject to the Board’s control. Allied later petitioned to clarify its argument, arguing for the first time that the LTV tracks were private tracks outside the Board’s jurisdiction, rather than excepted tracks, which fall within the Board’s purview.

The Board agreed with Allied that the Board had not, in fact, authorized Mahon-ing to use the LTV tracks. But the Board then concluded that the LTV tracks were mainline tracks, which again meant that the Board had jurisdiction over Mahon-ing’s use of them. The Board refused to consider the Spiker affidavit or Allied’s petition to clarify its argument because both came too late. Specifically, the Spiker affidavit was available before the Board decided Allied I and thus was not new evidence. And Allied waited five years to clarify its principal argument to the Board. The Board reaffirmed that Mahoning’s parking practices did not violate the easement.

2.

The parties agree that, at one time, Ma-honing owned a lot on the west side of the Center Street Bridge, known as lot 62188. Mahoning alleges that it still owns the lot; Allied says that Mahoning sold the lot to a real estate company, which then sold-the lot to Allied. Allied brought suit in state court to evict Mahoning from the lot, and the court again referred the dispute to the Board.

Before the Board, Allied at first expressly argued that the tracks on lot 62188 were excepted track within the scope of section 10906. In a later motion for an expedited ruling, however, Allied instead argued that the tracks were private. The Board found that Mahoning was then using the tracks on lot 62188 to provide common-carrier service, and thus the tracks could not be private tracks. As such, the Board reasoned, the tracks must be either excepted or mainline tracks, and thus are within the Board’s jurisdiction. The Board sent the parties back to state court to determine whether Mahoning had ever sold the lot.

Allied petitioned this court for review of all three of the Board’s decisions.

II.

We will uphold the Board’s decisions so long as they were not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, ... or unsupported by substantial evidence.” City of Riverview v. Surface Transp. Bd., 398 F.3d 434, 439-40 (6th Cir. 2005).

A.

Alied argues that the' LTV tracks are outside the Board’s jurisdiction because they are private tracks that were built solely to move goods around a steel mill. In-plant tracks are not common-carrier tracks. Kieronski, 806 F.2d at 109. A-though Alied concedes that the LTV tracks are not currently used as in-plant tracks, Allied contends that the tracks were private when they were built, that the Board never authorized Mahoning to provide common-carrier service on the tracks, and that Mahoning’s unauthorized use of the tracks cannot convert them into mainline or excepted tracks.

But there are two problems with that argument. The first is that Alied waited too long to make it. Alied did not argue that the tracks are private until five years after this litigation began, and more than a year after the Board decided Allied I. At that point, the Board refused to hear the argument. That refusal was not arbitrary or capricious, and thus neither was the Board’s decision on this point.

The second problem is that Alied concedes that Mahoning now provides common-carrier service using the LTV tracks. Mahoning’s use of the tracks fits the statutory definition of “transportation by rail carrier ... by railroad” and is thus within the Board’s jurisdiction. See 49 U.S.C. §§ 10501; 10102(5), (6), (9). Nothing in the statute limits the Board’s jurisdiction to Board-authorized transportation or rail carriers.'Were it otherwise, rail carriers could avoid the Board’s jurisdiction merely by operating without Board authorization.

Alied also argues that the Board should have reconsidered Allied I in light of the Spiker affidavit, and that, if the Board had done so, it would have concluded that the LTV tracks were private tracks. But here again Alied could have presented the Spiker affidavit to the Board before it decided Allied I. Thus the affidavit is not new evidence, and the Board properly refused to reconsider Allied I on that ground. See 49 U.S.C. § 1322.

B.

Alied also argues that the tracks on lot 62188 — on the west side of the bridge— became private tracks when Mahoning sold the lot to a real estate company. Thus, Alied says, the Board lacks jurisdiction over the tracks. This argument fails for the same reason: according to the Board, Alied conceded that the track is not private, and therefore is within the Board’s jurisdiction. In any event, Allied begs the question whether Mahoning sold the lot in the first place. That is the question the Board referred to state court. And the state court’s answer to that question will in turn be a necessary step in resolving the parties’ dispute regarding lot 62188: if Ma-honing still owns the lot, then Allied has no right to evict Mahoning, though Mahoning would still need Board approval to operate on any mainline track; if Allied owns the lot, then the parties must return to the Board to determine whether the tracks are mainline or ancillary before proceeding any further. But until the state court determines who owns lot 62188, there is nothing left for the Board or this court to decide.

We deny the petitions for review.


author: ROGERS, Circuit Judge.

text:
    Ramon AMEZOLA-GARCIA, a.k.a. Jose Rivera-Camarena, Petitioner, v. Loretta E. LYNCH, U.S. Attorney General, Respondent.
    No. 15-3328
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: August 26, 2016

      BEFORE: BOGGS and ROGERS, Circuit Judges, and BERG, District Judge.

       This order originally issued .on August 26, 2016. The court has now designated the order as one recommended for full-text publication.

       The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation.

   ORDER

ROGERS, Circuit Judge.

Ramon Amezola-Garcia (“Amezola-Gar-cia”)', a Mexican citizen whose final removal order we recently upheld along with a remand for a voluntary-departure determination, requests attorney’s fees under the Equal Access to Justice Act (“EAJA”). The fees are not warranted under that act, however, because the Government’s position, if partially unjustified, was as a whole justified.

Amezola-Garcia, who was ordered removed for being present in the United States without having been admitted or paroled, sought judicial review of the Board of Immigration Appeals’s (“BIA’s”) denial of his applications for withholding of removal and voluntary departure. He primarily argued that the BIA erred by sending his case to a single-member panel for review rather than to a three-member panel, by rejecting his argument that his familial relationship with his murdered brother-in-law will subject him to future persecution in Mexico, and by miseharac-terizing the record in its voluntary-departure determination. While the Government opposed most of Amezola-Garcia’s petition, it conceded on judicial review that the BIA’s interpretation of the record in its voluntary-departure determination was problematic and warranted a remand. In light .of the Government’s concession, we remanded the voluntary-departure determination to the BIA for reconsideration of its decision. We held that the remainder of Amezola-Garcia’s petition was without merit. Amezola-Garcia now applies for attorney fees under the EAJA, 28 U.S.C. § 2412.

In order to recover attorney’s fees under the EAJA, the applicant must satisfy four requirements:

(1) that the fee applicant be a prevailing party; (2) that the government’s position not be substantially justified; (3) that no special circumstances make an award unjust; and (4) that the fee applicant file the requisite application within thirty days of final judgment.

Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th Cir. 2007) (citing Comm’r, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)). We deny the motion for fees for failure to meet the second requirement, and do not address the remaining requirements.

Assuming that the Government’s pre-litigation position on'voluntary departure was not justified, the fact that the remainder of the Government’s case was justified renders the Government’s position in this case, as a whole, substantially justified. In order for a party to recover attorney’s fees under the EAJA, the Government’s position “as a whole” must not have been substantially justified. 28 U.S.C. § 2412(d)(1)(A); E.E.O.C. v. Memphis Health Ctr., Inc., 526 Fed.Appx. 607, 615 (6th Cir. 2013). Further, because the Government’s “position” comprehends both the underlying agency action and the current litigation, Delta Eng’g v. United States, 41 F.3d 259, 261 (6th Cir. 1994) (citing 28 U.S.C. § 2412(d)(2)(D)), the position that the Government took when arguing before the BIA is fair game.

Amezola-Gareia states that the government’s pre-litigation position was substantially unjustified, as evidenced by the fact that the Government conceded on appeal that remand was warranted. While Amezo-la-Garcia is unhelpful in explaining why the Government’s pre-litigation position was unjustified (as he does not provide any citations to the administrative record highlighting the Government’s position below), we assume that the Government’s pre-liti-gation position regarding voluntary departure was, in fact, unjustified.

However, the Government’s position “as a whole” must be examined when determining the “substantial justification” question, and an EAJA application fails if the multiple claims involved in the case are “distinct” and if the more “prominent” claims were substantially justified. Memphis Health Ctr., 526 Fed.Appx. at 615 (citing United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003)). No Sixth Circuit ease elaborates on the “as a whole” standard adopted by the Memphis Health Center court, but two points indicate that the Government’s position “as a whole” was substantially justified. First, the majority of the Government’s arguments were justified, as the Government successfully argued against Amezola-Garcia’s request for a three-member panel and his withholding-of-removal application. See slip op. at 5-11. Further, these other claims are quite “distinct” from the voluntary-departure issue. The procedural “three-member panel versus one-member panel” issue is a matter of law entirely separate from the issue of whether Amezola-Gareia had sufficiently good moral character to merit voluntary departure. Additionally, the question of whether Amezola-Gareia demonstrated a clear probability of future persecution sufficient to warrant withholding of removal is likewise distinct from the issue of whether he has good moral character. These two other claims were also more “prominent” than the voluntary-departure issue. The voluntary-departure issue made up only seven pages out of the twenty-five pages of argument in his brief, and it was the last argument made. Second» the Government’s litigation position before this court was entirely justified. Rather than continuing to advance an incorrect interpretation of the record, the Government conceded error. Amezola-Gareia suggests that the Government’s position on appeal was substantially unjustified because it failed to include in its briefs table of contents the section in which it conceded error. Such conduct hardly rises to the level of being “substantially unjustified,” as this court was obviously able to locate the Government’s concession in its brief.

While Memphis Health Center is unpublished, its reasoning as to why the “as a whole” standard applies is persuasive. The Memphis Health Center court explained that this court previously adopted the “as a whole” standard in a published case when it was interpreting “the position .of the [United States]” language in the Hyde Amendment, which is subject to the procedures and limitations of the EAJA. 526 Fed.Appx. at 615 & n.5 (citing United States v. Heavrin, 330 F.3d 723). Further, the Heavrin court specifically stated that “the term ‘position’ should be accorded the same meaning under the Hyde Amendment as it is in the EAJA.” 330 F.3d at 730. Thus, given this court’s published holding in Heavrin, the “as a whole” standard applies.

The motion for attorney fees under the EAJA is accordingly denied.


author: KAREN NELSON MOORE, Circuit Judge.

text:
    Jose Dolores REYES, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 15-4402
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: August 26, 2016

      ON BRIEF: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Petitioner. Dawn S. Conrad, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before: MOORE, ROGERS, and SENTELLE, Circuit Judges.

       The Honorable David B. Sentelle, Senior United States Circuit Judge for the District of Columbia Circuit, sitting by designation.

   OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner Jose Dolores Reyes is a native and citizen of Mexico. The Immigration Judge (“IJ”) ordered Reyes removed to Mexico after finding that Reyes had been “convicted of two or more crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), and the Board of Immigration Appeals (“BIA”) agreed. Reyes petitions for review of the. BIA’s opinion, arguing that his 2000 conviction for soliciting prostitution is not a crime involving moral turpitude (“CIMT”). For the following reasons, we DENY Reyes’s petition for review.

I. BACKGROUND

Reyes entered the United States from Mexico, without inspection, in September 1994; Reyes became a lawful permanent resident of the United States in 1998.’ See Administrative Record (“A.R.”) at 140^11 (Application for Cancellation of Removal at 1-2). Reyes is married and has five children, all of whom were born in the United States. See id. at 141 (Application for Cancellation of Removal at 2); id. at 178-82 (Birth Certificates).

The Department of Homeland Security served Reyes with a Notice to Appear on March 3, 2015. Id. at 281 (Notice to Appear at 1). Reyes was charged with remov-ability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for “hav[ing] been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.” Id. The Notice to Appear listed three prior criminal charges. Id. at 283 (Notice to Appear at 3). First, on August 17, 2000, Reyes was “convicted in the Hamilton Municipal Court [at] Hamilton Ohio, for the offense of Soliciting, in violation of 533.09 of the Codified Ordinances of Hamilton, Ohio and ORC.” Id.; see also id. at 285 (8/17/00 Judgment Entry). Second, on September 19, 2003, Reyes was “convicted in the Hamilton Municipal Court [at] Hamilton Ohio, for the offense of Passing Bad Checks, in violation of 2913.11 of the Codified Ordinances of Hamilton, Ohio and ORC.” Id. at 283 (Notice to Appear at 3); see also id. at 290 (9/19/03 Judgment Entry). Third, on January 18, 2005, Reyes was “convicted in the Hamilton Municipal Court [at] Hamilton Ohio, for the offense of Resisting Arrest, in violation of 2921.33 of the Codified Ordinances of Hamilton, Ohio and ORC.” Id. at 283 (Notice to Appear at 3); see also id. at 297 (2/25/05 Judgment Entry).

The IJ issued an opinion on June 2, 2015, finding that Reyes’s prior charges for soliciting prostitution and passing bad checks were CIMTs. Id. at 134 (6/2/15 IJ Op. at 4). With regard to Reyes’s conviction for soliciting prostitution, the IJ noted that “[p]rior published BIA cases do not address this crime specifically.” Id. at 133 (6/2/15 IJ Op. at 3). The IJ agreed with the Ninth Circuit’s decision in Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012), however, which held that solicitation of prostitution was a CIMT because it was “similar to other crimes the Board has previously found to be morally turpitudinous, including renting a room with knowledge that it will be used for prostitution, keeping a house for prostitution, and the act of prostitution.” A.R. at 133 (6/2/15 IJ Op. at 3). The IJ issued an oral decision on June 18, 2015 that ordered Reyes removed. Id. at 71-73 (6/18/15 IJ Op. at 1-3).'

Reyes appealed to the BIA, arguing that the single act of solicitation of prostitution for one’s own behalf does not constitute a CIMT. Id. at 22 (Brief on Appeal to BIA at 8). Also finding the Ninth Circuit’s opinion in Rohit persuasive, the BIA issued a separate opinion adopting and afSrming the IJ’s decision on November 30, 2015. Id. at 3-4 (9/30/15 BIA Op. at 1-2). Reyes now petitions for review of the BIA’s decision.

II. DISCUSSION

A.Jurisdiction

We begin by addressing the scope of our jurisdiction. Although the Immigration and Nationality Act (“INA”) generally strips courts of “jurisdiction to review the removal orders of petitioners deemed removable for having committed a CIMT,” we retain “limited jurisdiction to review questions of law and constitutional claims arising from such orders.” Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(D)). The only question presented in Reyes’s petition for review is whether his conviction for solicitation of prostitution is a CIMT, Pet’r Br. at 14, a pure question of law. See Ruiz-Lopez, 682 F.3d at 516. We accordingly have jurisdiction to review Reyes’s claim.

B. Standard of Review

“Where, as here, the BIA expressly adopts and affirms the IJ’s decision but adds comments of its own, we directly review the decision of the IJ while also considering the additional comments made by the [BIA].” Yeremin v. Holder, 738 F.3d 708, 714 (6th Cir. 2013) (internal quotation marks omitted). “The BIA’s construction of ambiguous statutory provisions — such as the term ‘crime involving moral turpitude’ — is generally entitled to Chevron deference,” and we accordingly “must uphold the BIA’s construction [of the definition of a CIMT] unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Ruiz-Lopez, 682 F.3d at 516 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81.L.Ed.2d 694 (1984)). The BIA’s interpretation of a state criminal statute is not entitled to deference and is reviewed de novo. Ruiz-Lopez, 682 F.3d at 517.

C. Reyes’s Solicitation Conviction

The sole issue raised by Reyes in his petition for review is whether his conviction for solicitation of prostitution is a CIMT. Our Circuit has yet to address this question.

We apply the “categorical approach” to determine whether a crime involves moral turpitude. Serrato-Soto v. Holder, 570 F.3d 686, 689 (6th Cir. 2009). Under this framework, “we consider not whether the actual conduct constitutes a crime involving moral turpitude, but whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Id. at 689-90 (internal quotation marks omitted). In doing so, we look only to the elements of the offense, not to the specific facts underlying the conviction. Id. at 690. “If all offenses under the statute necessarily meet the definition of a CIMT, the analysis ends,” but if “some offenses contemplated by the statute do not fit the BIA’s definition of a CIMT, we move to the modified-categorical approach” and “examine! ] certain record documents to determine whether the petitioner’s specific offense under the statute qualifies as a CIMT.” Ruiz-Lopez, 682 F.3d at 518. Reyes was convicted under § 533.09(a) of the Hamilton Codified Ordinances, which states that “[n]o person shall solicit another to engage with such other person in sexual activity for hire.” See A.R. at 285 (8/17/00 Judgment Entry). This statute prohibits solely solicitation of prostitution, and thus the categorical approach is appropriate; we need only resolve the legal question of whether the BIA correctly determined that a conviction for solicitation of prostitution constitutes a CIMT.

“The term ‘crime involving moral turpitude’ is not defined in the INA or by agency regulations.” Yeremin, 738 F.3d at 714. “The BIA has held that “a criminal offense ‘involves ‘moral turpitude’ if the relevant statute defines the offense in such a manner that it necessarily entails conduct on the part of the offender that is inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.’ ” Serrato-Soto, 570 F.3d at 689 (quoting Matter of Kochlani, 24 I. & N. Dec. 128, 129 (BIA 2007)). “Although not a universal rule, offenses that can be classified as ‘malum in se’ generally do involve moral turpitude, while those classified as ‘malum prohibitum’ do not.” Ruiz-Lopez, 682 F.3d at 519.

The IJ and BIA both relied on the Ninth Circuit’s decision in Rohit in holding that solicitation of prostitution is a CIMT. In Rohit, the Ninth Circuit recognized that “[t]he [BIA] has, in precedential decisions, identified certain crimes that involve moral turpitude that are quite similar to solicitation of prostitution.” Rohit, 670 F.3d at 1089. Specifically, the BIA has found that the act of prostitution is a CIMT, In the Matter of W-, 4 I. & N. Dec. 401, 402 (BIA 1951), and the BIA has also found that “keeping a house of ill-fame” and “renting rooms with knowledge that the rooms were to be used for the purpose of ... prostitution” are CIMTs, Matter of Lambert, 11 I. & N. Dec. 340, 342 (BIA 1965). Because these BIA decisions “are entitled to Chevron deference and are certainly permissible interpretations of the statute,” the Ninth Circuit held that solicitation of prostitution was also a CIMT because “[t]here is no meaningful distinction that would lead us to conclude that engaging in an act of prostitution is a crime of moral turpitude but that soliciting or agreeing to engage in an act of prostitution is not.” Rohit, 670 F.3d at 1089-90. Following similar reasoning, the Tenth and Eighth Circuits have also recently found solicitation of prostitution to be a CIMT. See Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058-59 (8th Cir. 2016); Florentino-Francisco v. Lynch, 611 Fed.Appx. 936, 938-39 (10th Cir. 2015).

We agree with our sister Circuits. We give Chevron deference to the BIA’s reasonable interpretations of the INA issued in published opinions, see Ruiz-Lopez, 682 F.3d at 516, and the BIA has held that the act of prostitution itself is a CIMT, Matter of W-, 4 I. & N. Dec. at 402. Although Reyes argues that profiting from prostitution is meaningfully different from engaging in an act of personal solicitation of prostitution, see Pet’r Br. at 25, we disagree. As the Ninth Circuit concluded, “[s]olicitation is the direct precursor to the act” of prostitution. Rohit, 670 F.3d at 1089. If the BIA considers prostitution to be a CIMT, there is no reason to consider the solicitation of prostitution to be “significantly less ‘base, vile, and depraved’ ” than the act of prostitution itself. Id.

Reyes’s additional argument to the contrary is also not persuasive. Reyes contends that solicitation of prostitution “is not uniformly[ ]regarded as illegal” and thus must constitute a crime that is malum prohibitum, rather than malum in se. See Pet’r Br. at 18. Reyes contends that countries such as Armenia, Poland, and the Dominican Republic have made prostitution itself legal, and even one jurisdiction in this country — Nevada—licenses the practice in some counties. Id. at 18-20; see also Nev. Rev. Stat. §§ 201.354 & 244.345. According to Reyes, “[ajctivity which is at least decriminalized, if not fully legalized and even governmentally-regulated, in countries around the globe ... simply cannot be an activity ‘that shocks the public conscience,’ nor can it be considered ‘inherently base, vile, or depraved.’ ” Pet’r Br. at 20. This proves too much. Whether an act is universally criminalized can be a relevant factor to consider in determining whether a crime involving that act is ma-lum prohibitum or malum in se, see, e.g., Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007), but the mere fact that other countries may permit an act does not prevent that act from reasonably being considered by the BIA to be an act that “shocks the public conscience,” Matter of Short, 20 I. & N. Dec. 136, 139 (B.I.A. 1989), particularly when the overwhelming majority of jurisdictions in this country still consider the practice illegal.

We acknowledge that the BIA’s prece-dential decisions on prostitution are several decades old, see, e.g., In the Matter of W-, 4 I. & N. Dec. at 402, and that there is now increased attention to the question of whether and to what extent prostitution should be criminalized. See, e.g., Emily Bazelon, Should Prostitution Be A Crime?, N.Y. Times (May 5, 2016), http://www.nytimes.com/2016/05/08/ magazine/should-prostitution-be-a-crime. html. Indeed, the BIA recently recognized that there has been a “transformation” of views relating to prostitution 'in recent years. In re: Sehmi, 2014 WL 4407689, at *7 (BIA Aug. 19, 2014). Nonetheless, the BIA in Sehmi — an unpublished and thus nonprecedential decision' — considered the same question that we are confronted with here, and ultimately found the Ninth Circuit’s reasoning in Rohit persuasive and that solicitation of prostitution was a CIMT. Id. at *6-7.

Athough our society’s — and the BIA’s- — 'views regarding prostitution and solicitation of prostitution may continue to “transform[ ],” see id. at *7, the BIA’s precedential opinions on prostitution are entitled to Chevron deference and they are not unreasonable. Rohit, 670 F.3d at 1089-90. Because there is no reason to treat the offense of solicitation of prostitution differently than the offense of prostitution itself, Reyes’s conviction for solicitation of prostitution constitutes a CIMT.

III. CONCLUSION

For the foregoing reasons, the petition for review is DENIED.


author: COOK, Circuit Judge. HELENE N. WHITE, Circuit Judge,

text:
    Robert Carl FOLEY, Petitioner-Appellant, v. Randy WHITE, Warden, Respondent-Appellee.
    No. 13-5459
    United States Court of Appeals, Sixth Circuit.
    Argued: April 27, 2014
    Decided and Filed: August 26, 2016
    Rehearing En Banc Denied Oct. 26, 2016.

      ARGUED: Euva Blandford, DEPARTMENT OF PUBLIC ADVOCACY, La-Grange, Kentucky, for Appellant. ON BRIEF: Euva Blandford, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Michael J. O’Hara, O’HARA, RUBERG, TAYLOR, SLOAN & SER-GENT, Crestview Hills, Kentucky, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
    Before: SUTTON, COOK, and WHITE, Circuit Judges.

       Judge White would grant rehearing for the reasons stated in her dissent.

   COOK, J., delivered the opinion of the court in which SUTTON, J., joined. WHITE, J. (pp. 565-70), delivered a separate dissenting opinion.

OPINION

COOK, Circuit Judge.

A Kentucky jury sentenced Robert Foley to death for the 1991 shootings of brothers Lynn and Rodney Vaughn. Foley v. Commonwealth, 942 S.W.2d 876, 879 (Ky. 1996). After exhausting all available appeals, Foley moved under 18 U.S.C. § 3599(a)(2) and (f) for the district court to appoint, counsel and grant funds to retain experts in anticipation of state clemency proceedings. Foley requested a neuropsy-chologist to evaluate the impact of multiple head injuries on his mental functioning. He also sought a ballistics and crime-scene reconstruction expert to support his contention that he shot Rodney in self-defense and that someone else shot Lynn. The district court granted his motion to appoint counsel but denied expert funds as not reasonably necessary for Foley’s clemency bid. Discerning no abuse of discretion in the district court’s decision, we AFFIRM.

Under 18 U.S.C. § 3599(f), a district court may authorize “the payment of fees related to an expert witness whose ‘services are reasonably necessary for the representation of the defendant.’ ” Matthews v. White, 807 F.3d 756, 759 (6th Cir. 2015) (quoting Fautenberry v. Mitchell, 572 F.3d 267, 272 (6th Cir. 2009) (Moore, J., concurring)). A district court should approve funds when “a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance.” Id. at 760 (quoting Wright v. Angelone, 151 F.3d 151, 163 (4th Cir. 1998)). In the clemency context, “the petitioner must show that the requested services are reasonably necessary to provide the Governor and [Parole Board] the information they need in order to determine whether to exercise their discretion to extend grace to the petitioner in order to prevent a miscarriage of justice.” 'Id. (quoting Brown v. Stephens, 762 F.3d 454, 460 (5th Cir. 2014)).

We review a district court’s decision to deny funds for an abuse of discretion. Fautenberry, 572 F.3d at 268. “A district court abuses its discretion where it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” Id. at 268-69 (quoting Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir. 2007) (en banc)). If a district court acts within its sound discretion, its decision stands “even, if we would have decided the matter differently.” Id. at 270 (quoting Workman v. Bredesen, 486 F.3d 896, 923-24 (6th Cir. 2007) (Cole, J., dissenting)).

Foley insists the district court abused its discretion in denying funds for a neuropsy-chologist and a ballistics and crime-scene reconstruction expert. We examine each request in turn.

A. Neuropsychologist

Foley alleges he suffered several head injuries throughout his life that may have contributed to his violent behavior. In support of his request for a neuropsyehologist to evaluate the effect of these injuries, he supplied an affidavit from his mother Lois Foley, transcripts of his family’s post-conviction testimony, a newspaper article, medical records, and a document from the Kentucky Department of Corrections.

In her affidavit, Lois swore that she ingested harmful substances when pregnant with Foley and that Foley experienced multiple head injuries as a child and as an adult. Post-conviction testimony from Lois and Foley’s brother mirrored those allegations. According to the newspaper article, Foley — although not seriously injured — required hospital treatment after a car wreck in 1975 but an x-ray of Foley’s head taken after that accident showed no cranial injury. Similarly, he was involved in another car crash in February 1991, causing lower-back pain and an abrasion on his forehead, and he experienced temporary leg numbness in May 1991. A CT scan and x-ray of Foley’s head after the second accident came back normal. Finally, the prison document details an incident in 2011 when Foley became “woosy” and fell, remaining unconscious for one to three minutes.

In denying funds, the district court found that “Foley does not have a long history of multiple head injuries, a history of childhood developmental issues, and is not of extremely low intelligence.” To the contrary, Foley “was quite intelligent and had been fully involved in assisting his own defense. He had no history of mental illness ... [and] was married and had been operating his own trucking company.” Moreover, the district court noted that “Foley’s competency and mental health have been discussed, analyzed, and adjudged numerous times before this Court and others, and his arguments have consistently been found to be without merit.” Thus, no reasonable necessity supported Foley’s request for a neuropsychologist.

Foley claims the district court clearly erred in finding that he lacked “a long history of multiple head injuries.” But given the lack of medical documentation to support his family’s testimony and the absence of any indicators of brain damage or mental illness in the record, the district court’s assessment was not clearly erroneous. Though Foley points to his past acts of aggression as evidencing brain trauma, his background and criminal history suggest that he is violent, not mentally impaired.

Foley further argues that the district court’s order flouts our decision in Matthews v. White, 807 F.3d 756 (6th Cir. 2015), by-relying on prior state and federal court adjudications concerning Foley’s mental health. In Matthews, we held that the district court abused its discretion by “appearing] to rely on an incorrect rule that § 3599 funding is available only for use in federal proceedings and [by] not otherwise explaining] its reasons for denying the request.” Id. at 757-58. In discussing possible rationales for the district court’s decision, this court mentioned that “it remains unclear why [defendant’s] prior litigation of mental-health issues alone means that a new evaluation cannot be ‘reasonably necessary’ for his clemency petition.” Id. at 763 (emphasis added) (citing Sanborn v. Parker, No. 99-678-C, 2011 WL 6152849, at *1 (W.D. Ky. Dec. 12, 2011)). This language in Matthews cannot support Foley’s position that a district court abuses its discretion by relying — in part — on prior decisions addressing similar issues. Here, the district court independently reviewed the record, noted the prior decisions, and found the reasons underlying them persuasive before reaching its conclusion. And the court recognized that “previous findings of competency ... are not dispositive of Foley’s [§ 3599] motion.” We therefore discern no abuse of discretion.

B. Ballistics and Crime-Scene Reconstruction Expert

Foley also requests an expert in ballistics and crime-scene reconstruction to support his allegations of actual innocence and self-defense. He attached to his motion an affidavit from an expert, John Nixon, explaining how the victims’ injuries and the bullet trajectories are consistent with Foley’s version of the events. Foley insists that Nixon requires additional funds to more thoroughly review the case.

The district court denied Foley’s request, finding that “[gjiven the expansive and detailed nature of the record of this case, a ‘full’ review of a ballistics expert would only be redundant of what is already contained in the record.” Specifically, the court explained that Foley’s lay witness, Pershing Hayes, testified at trial about the bullet trajectories and implied that Foley could not have shot Lynn Vaughn. The court also found that “Foley now has the benefit of [Nixon’s] expert opinion,” rendering further analysis duplicative. Finally, the court noted that “[t]he jury, along with various appellate and reviewing courts, ... found the overwhelming evidence of guilt far outweighed any far-reaching allegation of self-defense and actual innocence.”

Foley claims the district court clearly erred in finding that Hayes testified at trial about the trajectory and irregularity of bullets found at the scene. He notes that the trial court sustained an objection to Foley’s attorney asking Hayes about the angle of the bullets. But Foley ignores that Hayes’s complete ballistics analysis appears in Hayes’s, avowal testimony. The district court thus correctly concluded that the record contains Hayes’s ballistics testimony for the Kentucky Governor to review.

Next, Foley again cites Matthews in arguing that the district court committed legal error by relying on previous decisions regarding the ballistics testimony. But the district court relied on these decisions because they persuasively described the overwhelming proof of Foley’s guilt and supported its duplicative-evidence rationale. It'was entitled to do so.

Foley maintains that additional funds are reasonably necessary for Nixon to “review more of the case materials; create diagrams of the projectiles based on witnesses’ testimony and the autopsy reports, and to produce a computer animation of events based on the witnesses’ testimony and the autopsy reports.” In his affidavit, however, Nixon explained that he reviewed the autopsy reports of both Vaughn brothers, the lab reports describing the bullets and bullet fragments, the trial testimony and report of the state’s ballistics expert, and the trial testimony of the witnesses to the murders. Foley fails to identify any additional materials that Nixon has yet to examine. Given the comprehensive nature of Nixon’s report, the district court’s finding that further evaluation of the evidence is not reasonably necessary makes sense and fell within its discretion. See Fautenberry, 572 F.3d at 270-71 (“[Petitioner] advanced no evidence from which the district court could find that [the expert’s] evaluation would not be duplicative of information already available to the state executives entertaining his clemency petition.”).

Finally, we note that Foley is under additional death sentences for murdering four people in 1989. Foley v. Commonwealth, 953 S.W.2d 924, 928 (Ky. 1997). The ballistics and crime-scene evidence he seeks to present fails to address those crimes.

For these reasons, we AFFIRM.

HELENE N. WHITE, Circuit Judge,

dissenting. I respectfully dissent.

The district court did not have the benefit of Matthews v. White, 807 F.3d 756 (6th Cir. 2015), which was decided during the pendency of this appeal, and directs that a court’s determination whether § 3599(f) funds are reasonably necessary must focus on whether “a substantial question exists over an issue requiring expert testimony for its resolution and the [petitioner’s] position cannot be fully developed without professional assistance.” M at 760-61 (quoting Wright v. Angelone, 151 F.3d 151, 164 (4th Cir. 1998)). Matthews emphasized that clemency proceedings “are a matter of grace entirely distinct from judicial proceedings,” and that a petitioner requesting funds under § 3599(f) for the purpose of clemency proceedings need only “show that the requested services are reasonably necessary to provide the Governor and Board of Pardons and Paroles the information they need in order to determine whether to exercise their discretion to extend grace to the petitioner in order to prevent a miscarriage of justice.” Matthews, 807 F.3d at 760 (quoting Brown v. Stephens, 762 F.3d 454, 460 (5th Cir. 2014) (quoting Harbison v. Bell, 556 U.S. 180, 192, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009))).

Neuropsychological Evaluation

As for Foley’s request for funding for a neuropsychological evaluation, the district court clearly erred in finding that Foley does not have a long history of multiple head injuries, given the affidavit of Foley’s mother, and post-conviction testimony from his mother and brother. See Maj. Op. at 563-64. The district court’s rationale for denying expert funds, which the majority approves, Maj. Op. at 564-65, was:

Foley’s competency and mental health have been discussed, analyzed, and adjudged numerous times before this Court and others, and his arguments have been consistently been found to be without merit. Both this Court and the Supreme Court of Kentucky have held that Foley’s trial counsel was neither ineffective nor unreasonable for declining to request a competency hearing.

PID 611-12. But Foley does not seek to show that he is incompetent or not criminally responsible, and the district court’s reliance on prior court rulings unrelated to clemency contravenes the Matthews standard, under which a petitioner need only show that the requested services are reasonably necessary to provide the officials making the clemency determination “the information needed in order to determine whether to exercise their discretion to extend grace to the petitioner ...” Matthews, 807 F.3d at 760 (quoting Brown, 762 F.3d at 460). By applying an incorrect legal standard to Foley’s request for a neuropsychological evaluation, the district court abused its discretion. See Fautenberry v. Mitchell, 572 F.3d 267, 268-69 (6th Cir. 2009).

Ballistics and Crime-Scene Reconstruction Expert

The district court also relied on the clearly erroneous factual finding that full review by a ballistics expert would duplicate Pershing Hayes’s testimony. At Foley’s murder trial, Hayes, a friend of Foley with no formal training in ballistics, was found unqualified as a ballistics expert and was not permitted to testify regarding an out-of-court experiment he conducted. Appendix V (8/31/1993 Trial Tr. 45, 108-09). In the experiment, Hayes borrowed a weapon that Foley’s trial counsel believed was a similar caliber weapon and fired it into a plaster wall. App. V 43. The trial court concluded that there was insufficient showing that the experiment duplicated the shootings. Id. at 43, 106. Hayes was permitted to offer lay testimony, however, and testified that the bullets passed through something before hitting the wall, distorting the bullets, in one instance because a bullet shed its jacket. 9/1, 9/2 Trial Tr. 57-60. Hayes was not permitted to testify regarding the direction the bullets were fired from or the angle at which the bullets would have entered the wall. On cross-examination, Hayes testified he had no professional experience in ballistics examination and had never more than casually examined bullets that served as exhibits or been trained in how to identify bullets, agreeing that the jury was as qualified as he to determine whether a bullet’s jacket had been removed. Id. at 161-62. On recross, Hayes testified, “ballistic people in your lab could have given you a full analysis,” and that he was not qualified to perform that analysis. Id. at 75-76.

John Nixon’s affidavit

In stark contrast, the affidavit of John Nixon offered by Foley in his supplement/amendment to his § 3599(f) motion for expert funds provides:

1. Education & background. I am originally from the United Kingdom, where I worked as a scientist and professional engineer for the UK government, conducting weapons systems research, design, development, performance testing ... and forensic examinations, including firearms ... I am currently a consultant with Athena Research & Consulting LLC in Bippus, Indiana, specializing in technical and forensic consulting in the areas of incident scene reconstruction, firearms, ballistics, munitions, and explosives. I have conducted extensive forensic engineering research and have been responsible for numerous innovations in guns and munitions design. I have published numerous research papers and technical articles.... In addition to testifying in UK courts, I have testified as an expert in numerous US federal courts, and many state courts, including ... Kentucky ... A list of publications is included in my curriculum vitae, which is appended ...
2. I have examined materials provided by counsel for Mr. Foley in this case. These materials include that autopsy reports of both Rodney and Lynn Vaughn, as well as laboratory reports identifying the bullets and bullet fragments related to the case, including those recovered during the autopsies. In addition, I have examined the report of Charles Lanham, with the Kentucky State Police, as well as a transcript of his trial testimony. I have also read transcripts of the trial testimony of Ronnie Dug-ger, Pershing Hayes, Danny Joe Bryant, Phoebe Watts and Robert Foley.
3. Based upon the testimony of these individuals, as well as the reports provided to me concerning the technical evidence/testimony, and autopsies in this case, I have concluded:
a. The trajectory of the bullets that impacted the body of Rodney Vaughn most likely indicate that he was kneeling at the time he was shot. I base this conclusion on the general trend of the bullets moving downward through the body, with most of the bullets entering in the back and exiting in the front. The downward trajectory, coupled with most of the projectiles having entered Rodney’s back, indicates that Rodney must have been kneeling as, had he been standing, it would have been impossible for him to lean far enough back to create those angles. The general bullet trajectory also makes it more likely that a relatively short shooter (consistent with Foley’s height [5’7”]) was standing.
b. Rodney’s injuries are consistent with him holding a gun at the time he was shot. The general trend of the bullet trajectory from left to right through Rodney’s body is consistent with him being in a Weaver stance at the time he was shot ... Someone who had experience firing handguns would be more likely to shoot using the popular Weaver stance.
c. Additionally, the fact that the entry wounds were high up on Rodney’s body indicates the likelihood . that he was holding a weapon at the time he received them ... The trajectory of the bullets that impacted Rodney, particularly those which indicate he was most likely on his knees and leaning back, would be consistent with him shooting at Lyn Vaughn while Robert Foley shot Rodney.
d. At least one of the bullet wounds to Lynn Vaughn was consistent with Robert Foley’s version of events, wherein Rodney Vaughn shot Lynn, while Lynn was charging towards him. The slight downward angle of the bullet through Lynn’s body is consistent with him leaning forward at the time he was shot. The bullet to the back of Lynn’s head is similarly consistent with Robert Foley’s version of events that Ronnie Dugger fired a shot into the back of Lynn’s head while he was lying on the floor. The slightly upward angle of the shot is consistent with someone firing from close range to the back of the head.
e. The bullet holes in the wall of the living room are also consistent with Robert Foley’s version of events. The two bullets that were in the wall above the fish tank were more likely to have come from the area where Robert Foley indicated Rodney Vaughn was firing from (at Lynn Vaughn). The bullet hole in the corner of the living room was more consistent with someone firing from where Robert Foley was standing. Had the bullet been fired from where Robert Foley was standing, one would expect to see a shallow groove running along the wall towards the hole where the bullet gradually entered, due to the oblique angle. There was no evidence that this was the case and, consequently, the hole is consistent with someone firing from approximately where Robert Foley alleged Lynn Vaughn was standing, towards where Robert Foley alleged Rodney Vaughn was located.

Nixon affidavit, PID 289-291 (R. 127-1) (emphasis added).

Clearly, full review by a ballistics and crime-scene-reconstruction expert would not simply duplicate Hayes’s testimony.

Lastly, the district court found that because Foley “now has the benefit of [Nixon’s] expert opinion,” further analysis would be duplicative. PID 618. Foley’s Supplement to his Motion for Expert Funding explained that Nixon performed only a limited review of some of the case materials:

By raising small amounts of money from family, friends, and activists, Mr. Foley was able to obtain a limited review of some of his case materials by [expert John Nixon]. The expert’s findings make clear that a full review of Mr. Foley’s case by a crime scene reconstruction expert and ballistics expert are reasonably necessary for Mr. Foley’s clemency proceedings.
A complete review would entail (a) reviewing all the case materials, rather than the limited materials Nixon was able to review for the limited amount of money raised by Mr. Foley; (b) producing diagrams of the projectiles based on witnesses’ testimony and the autopsy reports; and (c) producing a computer animation of events based on "witnesses’ testimony and the autopsy reports.

PID 287 (emphasis added). Because Foley raised only limited funds and Nixon thus did not review all the case materials, Foley has adequately shown that the service requested, a ballistic and crime-scene reconstruction expert, is “reasonably necessary to provide the Governor and Board of Pardons and Paroles the information they need in order to determine whether to exercise their discretion to extend grace to the petitioner in order to prevent a miscarriage of justice.” Matthews, 807 F.3d at 760 (quoting Brown, 762 F.3d at 460).

The district court’s remaining reason for denying Foley expert funds under § 3599, unfavorable federal and state adjudications, is based on an improper legal standard not applicable to clemency proceedings. Matthews, 807 F.3d at 761. The district court’s opinion relied on Foley’s failure to convince the Kentucky Supreme Court and several federal Magistrate Judges that expert funding was reasonably necessary and the fact that “[t]he jury, along with various appellate and reviewing courts ... found the overwhelming evidence of guilt far outweighed any far-reaching allegation of self-defense and actual innocence.” PID 615-18.

Even assuming, as the majority states, that the district court “independently reviewed the record,” Maj. Op. at 564, 'its review clearly was not guided by Matthews. Because the district court applied an incorrect legal standard to Foley’s § 3599(f) request for ballistics and crime-scene-reconstruction expert funding, it abused its discretion. See Fautenberry, 572 F.3d at 268-69.

I would remand to the district court for reconsideration in light of Matthews, particularly given that the Kentucky Attorney General’s office notified this court in advance of argument that it would no longer defend the district court ruling and “does not believe Kentucky has a stake in Foley’s request for federal expert funds ... to be used in the preparation of his state clemency petition.” EOF 64 filed 4/18/2016.

      . According to Lois Foley, she was very young when she got pregnant with Foley and her “sister told me how to abort my baby by drinking bitters mixed with other things. This did not work but I was sick afterwards." Further, when Foley’s umbilical cord fell off she was frightened and threw him across the room and he hit his head on a chair; when he was four he fell off a highchair and out a window and hit his head; when he was seven he fell from a car and hit his head; and at age sixteen or seventeen, he was electrocuted by a live 220-volt electrical wire -while trying to fix a water pump. Foley also fell from a horse when he was seventeen and hit his head, was in two car wrecks between ages eighteen and nineteen, and suffered head injuries in both. Lois Foley did not seek treatment for Foley. Further, Foley was in another car accident in 1991 where he suffered head trauma and was treated. Finally, Lois Foley averred that although she spoke with Foley's trial counsel, they never talked about family history and she was not asked to testify on her son's behalf. PID 461-62. In February 2011, Foley fell in his cell and hit his head and was unable to answer questions concerning time, day, etc., but the more he spoke the more oriented he became.

      . When the trial court ruled Hayes unqualified to testify as a ballistics expert and the court stated it would recess for lunch, trial counsel requested a half-day continuance to secure another ballistics expert. The trial court denied the continuance but stated it would consider the request later in the afternoon. Id. at 112. After the lunch recess, trial counsel requested that Hayes be permitted to offer lay testimony to the jury. The trial court agreed. Id. at 118.