source: Caselaw Access Project

author: KAREN NELSON MOORE, Circuit Judge.

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text:
    Terry Lynn KING, Petitioner-Appellant, v. Bruce WESTBROOKS, Warden, Respondent-Appellee.
    No. 13-6387
    United States Court of Appeals, Sixth Circuit.
    Argued: September 28, 2016
    Decided and Filed: February 9, 2017

      ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee; for Appellant. Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, Wade V. Davies, Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, C. Mark Pickrell, THE PICK-RELL LAW GROUP, P.C., Nashville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
    Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges.
   OPINION

KAREN NELSON MOORE, Circuit Judge.

This death penalty case arises out of the kidnapping and murder of Diana K. Smith by Petitioner-Appellant Terry King. Following the district court’s dismissal of King’s petition for a writ of habeas corpus, we granted a certificate of appealability on two issues: whether trial counsel was ineffective for failing to present during the trial testimony about King’s intoxication at the time of the murder and whether trial counsel was ineffective for failing to investigate adequately King’s mental health and to obtain expert assistance in a timely manner. For the reasons stated below, we AFFIRM the judgment of the district court.

I. BACKGROUND

At trial, the Government put forth the testimony of two individuals to whom King confessed: Jerry Childers, an acquaintance of King, see Trial Tr. (“TT”) Vol. IX at 52 (Childers Test.), and David Davenport, id. at 84 (Davenport Test.), an investigator for the Tennessee Bureau of Investigation. Childers described a conversation he had with King, see id. at 53-69 (Child-ers Test.), and Davenport read statements that he took from King and Randall Joe Sexton, King’s co-defendant, at the Knox County Sherriffs Department, see TT Vol. IX at 86 (Davenport Test.); id. at 90-94 (Davenport Test., Sexton Statement); TT Vols. IX-X at 100-05 (Davenport Test., King Statement). The following is a summary of that testimony.

On July 31, 1983, King; his cousin, Don King; a man named Eugene Thornhill; and the victim, Diana K. Smith, consumed large amounts of alcohol, LSD, and Quaa-ludes and engaged in sexual intercourse throughout the day. Id. at 100-01 (Davenport Test., King Statement). At one point, King and Smith drove to a wooded area in Smith’s car, where Smith accused King and the others of raping her. TT Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); TT Vol. X at 101 (Davenport Test.). In response, King told Smith to get into the trunk of the car. TT Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); TT Vol. X at 101-02 (Davenport Test., King Statement). With Smith in the trunk, King drove to Sexton’s house, where King obtained a rifle and shovel. TT Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); id. at 91 (Davenport Test., Sexton Statement); TT Vol. X at 102 (Davenport Test., King Statement). King and Sexton then drove to a wooded area, where King ordered Smith out of the trunk and shot her in the back of the head. TT Vol. IX at 67-68 (Childers Test.); TT Vol. X at 102-03 (Davenport Test., King Statement). After unsuccessfully attempting to bury Smith, King and Sexton went home. TT Vol. X at 103 (Davenport Test., King Statement). The following day, King and Sexton returned to the scene and disposed of Smith’s body in a nearby quarry. TT Vol. IX at 92 (Davenport Test., Sexton Statement); TT Vol. X at 103 (Davenport Test., King Statement).

In preparation for trial, which began on January 23, 1985, see Post-conviction Tr. (“PCT”) Vol. V at 426 (Appellant’s 2d Supp. App’x at 796) (Simpson Test.), King’s trial counsel, Robert R. Simpson, suspected that King may have had brain damage as a result of a childhood head injury and substance abuse. PCT Vol. IV at 376, 381-82, 384 (Appellant’s 2d Supp. App’x at 744, 749-50, 752) (Simpson Test.). In addition to a childhood head injury, in 1982, King — then about nineteen years old — hit his head in a car accident and had double vision for a couple of months after-wards. R. 254-3 at 4 (Gebrow Report at 2) (Page ID #475). From age eight to sixteen, King sniffed gasoline. Id. at 5 (Ge-brow Report at 3) (Page ID #476). He also consumed alcohol beginning at age twelve or thirteen and LSD and Quaaludes beginning at age fifteen or sixteen. Id. at 4-5 (Gebrow Report at 2-3) (Page ID #475-76).

On January 15,1985, Simpson retained a mental-health expert, Martin Gebrow, M.D., to evaluate King. Simpson used private funds from King’s family to pay for Dr. Gebrow’s services because Simpson was unaware of state law that provided for state funding of an expert. PCT Vol. V at 424, 431-32 (Appellant’s 2d Supp. App’x at 794, 801-02) (Simpson Test.). Dr. Gebrow’s report indicated that he evaluated King on January 23, 1985. R. 254-3 (Gebrow Report at 1) (Page ID #474). The report described King’s background, including his history of substance abuse. Id. at 1-3 (Page ID #474-76). Dr. Gebrow concluded, “My examination of Mr. King did not reveal any evidence of psychotic thought process. Nor did it reveal any evidence of an organic brain syndrome such as might have been caused by the chronic use of hydrocarbons by inhalation, alcohol, or LSD.” Id. at 3-4 (Page ID #476-77). He continued, “This however does not mean that any brain damage does not exist. It would be my recommendation that Mr. King have an electroencephalogram and psychological testing to rule out organicity and/or major thought disorder.” Id. at 4 (Page ID #477).

During voir dire, Simpson made an oral motion to “permit the taking of an electroencephalogram” of King, TT Vol. VII at 552-53 (Appellant’s App’x at 158-59), which is “a brain wave test that measures the electrical activity of the brain and can ascertain whether or not there are any abnormal electrical discharges which would indicate brain damage,” TT Vol. VIII at 642 (Gebrow Test.). In a hearing on the motion, during which Dr. Gebrow testified, the trial court inquired of Dr. Gebrow whether there was “a substantial possibility of damage.” Id. at 657. Dr. Ge-brow responded, “With the eight year— eight-or-nine-year history of constant hydrocarbon abuse, I think that there would be — could be an excellent chance that this was — that there was some damage” but that it was not a “probability.” Id. at 658. Dr. Gebrow also agreed that, based on the examination, King was coherent, his memory appeared to be intact, and that he was able to express himself well. Id. Because Dr. Gebrow “went in cold to do the evaluation,” id. at 655, he was not aware of certain conditions that he admitted would affect the evaluation, including prior psychological testing, id. at 648, and evidence of antisocial behavior, id. at 665-66. As a result, the trial court denied King’s motion but noted that it would reconsider if Dr. Gebrow reviewed more of King’s medical records and decided that an electroencephalogram would still be required. See id. at 670. Having reviewed these records, Dr. Gebrow testified later at trial that an electroencephalogram was not necessary. TT Vol. XII at 383 (Gebrow Test.).

Simpson suggested in his opening statement that King’s intoxicated state influenced his actions:

We think the proof will show that whatever happened to Mrs. Smith, Mr. King’s involvement was the product of an incredible quantity of intoxicants. And we think the proof will show that he cannot be held legally responsible for all of his actions to the degree the State would ask you, simply because of the vast quantities of intoxicants that he consumed. And the proof is going to be very clear on that point.

TT Vol. IX at 10 (Appellant’s App’x at 161). Simpson’s trial strategy changed when King’s former girlfriend, Lori Eastman Carter (“Carter”), testified. Carter described an incident on October 13, 1982, in which King assaulted her in her car. TT Vol. XI at 278-79 (Appellee’s App’x at 203-04). She testified that King struck her, causing her to lose consciousness, and that when she became conscious, “he pulled me from the floorboard by my hair, rolled my hair up in the car window, and continued to beat me around my face and neck.” Id. at 279 (Appellee’s App’x at 204). She continued, “Several times he said that he wanted me to tell him — he asked me if I knew that I was dying, and I said yes. And he wanted me to tell him how it felt to be dying, so that the next woman he killed he would know how she felt.” Id. After losing and regaining consciousness once more, Carter overheard King telling his brother, James King, that he killed Carter and that he needed help putting her body in a quarry. Id. at 280 (Appellee’s App’x at 205). Carter did not say whether King was sober when he attacked her.

At the penalty phase, King’s mother, Billie King, testified that she would find King sniffing gasoline when she came home from work: “Well, you could tell that he had — he had a motorcycle. It was tore up, but it was on the back porch. And he had the gas cap off from the motorcycle. And you could tell that he had been into the gas, and he couldn’t hardly sit up. And I whipped him, you know. He promised me he’d never do it again.” TT Vol. XIII at 496. Similarly, King’s brother, Gary Edward King, testified that following his father’s death, King would sniff gasoline “several times a week.” TT Vol. XIV at 509. King also called Robert Booher, M.D., a specialist in “addictionology,” to testify about the general effects of LSD, Quaa-ludes, and alcohol. TT Vol. XVI at 730-37.

Ultimately, the jury found King guilty of first-degree murder and recommended death by electrocution, which the trial court imposed. See State v. King, 718 S.W.2d 241, 243 (Tenn. 1986). Following an unsuccessful direct appeal, see id. King filed a petition for post-conviction relief in state court, in which he raised, among other claims, the same ineffective assistance of counsel claims that are the subject of this appeal. See King v. State, No. 03C01-9601-CR-00024, 1997 WL 416389, at *1, 12-17 (Tenn. Crim. App. July 14, 1997). At post-conviction proceedings, King called a clinical psychologist, Pamela Auble, Ph.D, who had evaluated King and reviewed his medical records. PCT Vols. III at 76, 99-100, 106-07 (Appellant’s 2d Supp. App’x at 439, 462-63, 471-72) (Auble Test.). She testified, “The psychological testing that I have done and that has been done — the evaluation by Dr. Gebrow that was done prior both raise the question of potential brain damage. This issue still needs to be explored, is not yet conclusive, but is a possible thing that could be explored.” PCT Vol. II at 148, 168 (Appellant’s 2d Supp. App’x at 513, 533) (Auble Test.). She also testified that she had reviewed a report by a Dr. Kaminski, who performed an EEG on King that “showed negative results.” Id. at 167 (Appellant’s 2d Supp. App’x at 532) (Auble Test.). She further observed that there was no evidence of psychotic thought process. Id.

In addition to Dr. Auble, Simpson testified during post-conviction proceedings on his decision not to raise an intoxication defense. He stated that “The testimony of Lori Eastman [Carter] was, from our perspective, totally unexpected and very devastating. It really skewed how we were looking at this case. We dropped the idea, after that, of even raising intoxication in the hopes of getting a second-degree murder conviction, which we had viewed as slim, anyway, and just decided to proceed with it in the penalty phase and raise it there, because of her testimony, apparently when he was sober, of nearly beating her to death.” PCT Vol. IV at 400 (Appel-lee’s 2d App’x at 768) (Simpson Test.). Characterizing her testimony as “Pretty devastating stuff,” he continued: “But that really skewed our defense, and we wanted out of that phase as quick as we could and focus the jury on our side of the case, and our side of the case was as long as the guilt-innocence phase.” Id. at 400-01 (Ap-pellee’s 2d App’x at 768, 771) (Simpson Test.).

The trial court denied King’s petition for post-conviction relief, and the Tennessee Court of Criminal Appeals and Tennessee Supreme Court affirmed its judgment. See King v. State, 989 S.W.2d 319, 321 (Tenn. 1999); King, 1997 WL 416389, at *19. King then filed a federal petition for a writ of habeas corpus, in which he raised the same ineffective-assistanee-of-counsel claims. See King v. Bell, No. 3:99-cv-454, 2011 WL 3566843, at *20-26 (E.D. Tenn. Aug. 12, 2011). At this stage, King called expert witnesses who stated that in fact King had organic brain damage at the time of Smith’s death. An evaluation by James R. Merikangas, M.D., P.C., on June 27, 2000, demonstrated with “a reasonable degree of medical certainty that Mr. King suffers from brain damage and did so at the time of the crime for which he stands convicted.” Merikangas Report at 3 (Appellant’s App’x at 48). Dr. Merikangas also stated that King does not have antisocial personality disorder, but rather “brain damage which is no fault of his own.” Id. at 4 (Appellant’s App’x at 49). On March 21, 2001, a psychiatrist named Robert L. Sa-doff, M.D., evaluated King and, after reviewing King’s previous medical records, including Dr. Merikangas’s report, concluded that “[i]t was the combination of all these factors, including his intoxication by several substances at the same time, his brain damage and his personality disorders that substantially impaired his capacity to conform his conduct to the requirements of the law.” Sadoff Report at 22 (Appellant’s App’x at 79). Finally, a physician named Murray W. Smith, M.D., evaluated King and, in a February 7, 2001 affidavit, stated “Any pre-existing brain damage resulting from the very heavy and frequent use of inhalants from age 8 to age 16, as well as the use of cocaine and amphetamine as found in my evaluation of Mr. King, would further multiply the effects of the alcohol and drugs on the causation of the violent interaction Mr. Terry King had with Ms. Diana Smith.” Smith Aff. at 2 (Appellant’s App’x at 53). Ultimately, the district court awarded summary judgment against King and dismissed his petition. King has appealed the district court’s judgment.

II. DISCUSSION

We granted a certificate of appealability on two questions: (1) “[Wjhether trial counsel was ineffective for failing to present testimony about King’s intoxication at the time of the murder during the trial” and (2) “[Wjhether trial counsel was ineffective for failing to adequately investigate King’s mental health and obtain expert assistance in a timely manner.” Certificate of Appealability at 2. For the reasons stated below, the answer to both questions is no.

A. Standard of Review

When reviewing a district court’s denial of a § 2254 petition, “[tjhis court reviews de novo [the] district court’s legal conclusions and mixed questions of law and fact and reviews its factual findings for clear error.” Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013). King is entitled to relief only if the Tennessee Supreme Court — which issued “the last reasoned state-court opinion” in this case, Ylst v. Nunnemaker, 501 U.S. 797, 804-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) — adjudicated King’s ineffective-assistance claims on the merits in a way that:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (2012).

The Tennessee Supreme Court, applying Strickland and Tennessee ineffective-assistance case law, rejected both of the ineffective-assistance claims that King raises in this appeal. King, 989 S.W.2d at 330-32 (intoxication defense); id. at 332-33 (mental-health investigation). The district court also rejected both claims in its order denying King’s § 2254 petition. King, 2011 WL 3566843, at *20-23 (intoxication defense); id. at *24-26 (mental-health investigation).

B. King’s Ineffective Assistance of Counsel Claims

To demonstrate that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), King must make two showings: “(1) [his] counsel’s performance was deficient, or put differently, ‘fell below an objective standard of reasonableness’; and (2) the performance prejudiced [King].” United States v. Mahbub, 818 F.3d 213, 230-31 (6th Cir. 2016) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Because the Strickland standard is already “highly deferential,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, our review of a state-court decision on a Strickland claim is “doubly deferential” under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Cullen v. Pinholster, 563 U.S. 170, 189-90, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). However, “[w]hen a state court relied only on one Strickland prong to adjudicate an ineffective assistance of counsel claim, AEDPA deference does not apply to review of the Strickland prong not relied upon by the state court. The unadjudicated prong is reviewed de novo.” Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012).

Although the Tennessee Supreme Court did not specifically state how it ruled on either Strickland prong, it is clear from the substance of its decision that it decided the intoxication defense ineffective-assistance-of-counsel claim based on the deficient-performance prong and the mental-health-expert ineffective-assistance-of-counsel claim based on the prejudice prong. With respect to the intoxication defense ineffective-assistance-of-counsel claim, the court held as follows:

Although we acknowledge that defense attorneys should strive to present a consistent theory of defense at trial, we must avoid judging the tactical decisions of counsel in hindsight. We have reviewed the circumstances from counsel’s perspective at the time and conclude that the change in strategy does not rise to the level of ineffective assistance.

King v. State, 989 S.W.2d at 331-32 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Because the court focused on Simpson’s “tactical decisions” and trial strategy, it appears to have concluded that Simpson’s performance was not deficient. And with respect to the mental-health expert ineffective-assistance-of-eounsel claim, it held as follows:

' The trial court concluded ... that even if defense counsel had initiated the mental health evaluations earlier, there was no proof that a more favorable report would have been obtained. We find no evidence to preponderate against that finding. Moreover, the record reflects that counsel presented evidence through ' lay witnesses that was remarkably similar to the information provided by Dr. Auble. Appellant’s counsel were not ineffective on this issue.

Id. at 333. Because the court focused on the effect mental-health experts would have had on the defense, and not whether Simpson’s failure to retain those experts hurt King’s defense, it appears to have concluded that Simpson’s performance, regardless of its deficiency, did not prejudice King. Nevertheless, we will analyze the deficiency prong of King’s intoxication defense ineffective-assistance claim and the prejudice prong of King’s mental-health-expert ineffective-assistance claim de novo “because, even under that more liberal standard of review, we conclude that his counsel was not deficient.” See Davis v. Lafler, 658 F.3d 525, 537 (6th Cir. 2011) (en banc).

1. Intoxication Defense

King argues that his trial counsel was ineffective during the guilt phase of King’s trial for failing to present evidence that King was severely intoxicated when he murdered Smith. Appellant’s Br. at 29. That evidence, King contends, would have shown that King lacked the capacity “to form the specific intent for first-degree murder.” Id. at 31; see id. at 29 (same). As stated above, we review the deficiency prong of this claim de novo.

Determining whether an attorney’s representation “fell below an objective standard of reasonableness” requires a court to consider “all the circumstances.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 688-89, 104 S.Ct. 2052. In addition, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. In light of this standard and the manner in which the trial unfolded, we conclude that Simpson’s representation did not fall below an objective standard of reasonableness.

Simpson’s view that Carter’s testimony was “very devastating” is wholly supported by the circumstances of the ease. Carter testified that King struck her unconscious with a slapstick, “rolled [her] hair up in the car window,” and “beat [her] around [her] face and neck.” TT Vol. XI at 279, 281-82 (Appellant’s App’x at 96, 98-99) (Carter Test.). Her testimony that King asked her “how it felt to be dying, so that the next woman he killed he would know how she felt” could be seen as an ominous reference to Smith. See id. at 279 (Appellant’s App’x at 96) (Carter Test.). Finally, that King considered putting Carter’s body — and actually put Smith’s body — in a quarry demonstrates a premeditation common to both attacks that could frustrate an intoxication defense. See TT Vol. IX at 92 (Davenport Test., Sexton Statement); TT Vol. X at 103 (Davenport Test., King Statement); TT Vol. XI at 280 (Appellant’s App’x at 97) (Carter Test.).

Yet another reason for Simpson to abandon the intoxication defense was that King “apparently” was sober when he attacked Carter. PCT Vol. IV at 400 (Appellant’s 2d Supp. App’x at 768) (Simpson Test.). If King appeared to be sober when he attacked Carter, an already “slim” intoxication defense, id. would become even slimmer. King argues that Simpson had an inaccurate understanding of Carter’s testimony when Simpson stated that King assaulted Carter “apparently when he was sober.” See id. In truth, it was the Tennessee Supreme Court, but not necessarily Simpson, that had an inaccurate understanding of Carter’s testimony. The record does not support that court’s conclusion that “Ms. Carter testified that the appellant was sober when he attacked her with the slapstick” because Carter did not specifically state whether King was sober. See King, 989 S.W.2d at 331. Crucially, however, Simpson never claimed that Carter stated that King was sober; Simpson said that King “apparently” was sober. See PCT Vol. IV at 400 (Appellant’s 2d Supp. App’x at 768) (Simpson Test.). Tone, mannerisms, and the like are impossible to discern from the cold record before us, so we will not second-guess Simpson’s conclusion on what was “apparently” so in Carter’s testimony. Therefore, and in light of Carter’s testimony, it was not unreasonable for Simpson to get “out of [the guilt] phase as quick as we could and focus the jury on our side of the case.” See PCT Vol. V at 401 (Appellant’s 2d Supp. App’x at 771) (Simpson Test.). Accordingly, King has failed to demonstrate deficient performance of his trial counsel, and we AFFIRM the judgment of the district court on this ineffective-assistance-of-counsel claim.

2. Mental-Health Expert

King next argues that his counsel was constitutionally ineffective at the guilt and penalty phases for failing to investigate King’s mental health on a timely basis and to obtain expert assistance concerning the same. Specifically, King focuses on his attorney’s allegedly untimely retention of Dr. Gebrow. As discussed above, we review the deficient performance prong de novo because the state court did not address this prong. We also review the prejudice prong de novo because “even under that more liberal standard of review, we conclude that his counsel was not [ineffective].” See Davis, 658 F.3d at 537.

There is no question that Simpson’s delay in retaining Dr. Gebrow fell below an objective standard of reasonableness. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, — U.S. -, 134 S.Ct. 1081, 1088-89, 188 L.Ed.2d 1 (2014) (citing Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Section 40-14-207 of the Tennessee Code, which has not been amended since the time of King’s trial, states in relevant part,

In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, the court in an ex parte hearing may, in its discretion, determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected.

Tenn. Code Ann. § 40-14-207(b) (West 2002). At a hearing on King’s state petition for post-conviction relief, trial counsel stated that he “was unaware of’ his ability to obtain state funds in order to hire an expert for King under this section. PCT Vol. V at 424 (Appellant’s 2d Supp. App’x at 794) (Simpson Test.). He also indicated that he waited to receive private funds before retaining Dr. Gebrow because he was unaware of this section. Id. at 425 (Appellant’s 2d Supp. App’x at 795) (Simpson Test.). King was charged with first-degree murder; his mental state at the time he killed Smith was a critical factor in the jury’s determination that he was guilty and that he deserved a death sentence. Such an “inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him” constitutes deficient performance. See Hinton, 134 S.Ct. at 1089. Nevertheless, because King has not shown that he was prejudiced by this deficient performance, he has not demonstrated ineffective assistance of counsel.

Even reviewing the prejudice prong de novo, we conclude that habeas relief is not warranted. Fundamentally, King has not shown, with the evidence properly available to us on federal habeas review, that the timely retention of a mental expert would have produced any evidence different from what was already available at the time of trial. Dr. Gebrow testified at a hearing on King’s motion to continue the trial that “with the history of gasoline inhalation that there might be a generalized diffused type of brain damage” and that “[y]ou could also find, possibly, some focal point of brain damage.” TT Vol. VIII at 644 (Gebrow Test.). He stated, “That is the reason that I requested or recommended that an electroencephalogram and psychological testing be done.” Id. To support his argument that his trial counsel should have obtained a mental expert earlier, King introduced Dr. Auble during ptíst-conviction proceedings. Similarly to Dr. Gebrow, she testified, “The psychological testing that I have done and that has been done — the evaluation by Dr. Gebrow that was done prior both raise the question of potential brain damage’. This issue still needs to be explored, is not yet conclusive, but is a possible thing that could be explored.” PCT Vol. II at 148 (Appellant’s 2d Supp. App’x at 513) (Auble Test.). She also acknowledged that an electroencephalogram had been performed on King that showed negative results, but that it still had not been determined whether there was evidence of organic brain syndrome. Id. at 167-68 (Appellant’s 2d Supp. App’x at 532-33) (Auble Test.). Based on Dr. Auble’s nearly identical uncertainty regarding whether King had brain damage, King has not shown that “[tjimely securing the services of an expert would have provided counsel with an expert opinion that related the impact of intoxication and brain damage on King’s judgment and behavior at the time of the crime and King’s ability to form specific intent for first-degree murder,” Appellant’s Br. at 75, let alone whether there would be a reasonable probability of a different outcome. See Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052. Therefore, King has not shown that he was prejudiced by the delay in retaining a mental-health expert.

To be sure, the findings of the mental-health experts on federal habeas review are troubling. Although the experts presented at trial and during state post-conviction proceedings were never able definitively to determine whether King had brain damage, we now know that King “suffers from brain damage which is no fault of his own.” Merikangas Report at 4 (Appellant’s App’x at 49). Unfortunately for King, AEDPA does not permit us to consider this evidence. Section 2254(e)(2) controls the admissibility of evidence on federal habeas review:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). This provision controls even if the petitioner seeks relief based on new evidence without an eviden-tiary hearing. See Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004). “Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from doing so. Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[fjederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.’ ” Pinholster, 563 U.S. at 186, 131 S.Ct. 1388 (citation omitted).

The mental-health experts to whom King points at this late stage cannot be considered because they could have been discovered through the exercise of due diligence of post-conviction counsel. See Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir., 2004) (“Seeking and presenting medical records and affidavits from family members available at the time of the state habeas hearing is within the exercise of due diligence.”). Each of the medical reports presented for the first time on federal habeas review necessarily relies on information that was available at the time of post-conviction review; they draw conclusions on King’s mental health at the time of the crime. Indeed, that King was able to obtain the medical report from Dr. Auble during state post-conviction proceedings demonstrates that he could have obtained expert opinions at that time. Therefore, with the evidence that can be considered on federal habeas review, we conclude that King has not shown that he was prejudiced by trial counsel’s deficient performance, and habeas relief is unwarranted. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . Although Childers’s name is spelled “Chil-dress” in the trial court transcript, see, e.g., TT Vol. DC at 51 (Childers Test.), King explains in his brief that his name is actually spelled “Childers.” See Appellant’s Br. at 10 n.3. Because the Government and previous courts have also spelled his name "Childers,” see, e.g., Appellee’s Br. at 11; State v. King, 718 S.W.2d 241, 243 (Tenn. 1986); King v. State, 989 S.W.2d 319, 330 (Tenn. 1999); but see King v. Bell, No. 3:99-cv-454, 2011 WL 3566843, at *1 n.4 (E.D. Tenn. Aug. 12, 2011); King v. State, No. 03C01-9601-CR-00024, 1997 WL 416389, at *8 (Tenn. Crim. App. July 14, 1997), we use this spelling throughout this opinion.

      . Dr. Auble testified on September 26, 1994. PCT Vol. I at ii (Appellant’s 2d Supp. App’x at 360). In a report she prepared prior to testifying, Dr. Auble wrote, "Mr. King was evaluated by Dr. Gary Solomon on August 16-17, 1990 at the request of Dr. Michael Kaminski. Apparently, Dr. Kaminski had seen Mr. King for a neurological evaluation for severe headaches and episodic loss of balance. I do not have Dr. Kaminski's report.” Auble Report at 5 (Appellant’s App'x at 40). However, later in her testimony, she stated that she had access to Dr. Kaminski’s report. PCT Vol. I at 100 (Appellant’s 2d Supp. App’x at 463). At oral argument for the instant proceedings, counsel was unable to clarify whether Dr. Auble reviewed Dr. Kaminski’s report. It appears from her 1994 testimony that Dr. Auble reviewed Dr. Kaminski’s report between writing her report and testifying at the post-conviction proceedings.


author: SUTTON, Circuit Judge.

text:
    MICHIGAN STATE AFL-CIO; Utility Workers Union of America, Local 223; George Horuczi; International Brotherhood of Electrical Workers, AFL-CIO, Local 58; Michigan State Utility Workers Council; William D. Chadwick, Jr., Plaintiffs-Appellees, v. William SCHUETTE; Ruth Johnson, Defendants-Appellants.
    No. 16-2100
    United States Court of Appeals, Sixth Circuit.
    Argued: February 2, 2017
    Decided and Filed: February 9, 2017
    Rehearing En Banc Denied April 6, 2017

      ARGUED: Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Andrew A. Nickelhoff, SACHS WALD-MAN, P.C., Detroit, Michigan, for Appel-lees. ON BRIEF: Erik A. Grill, Denise C. Barton, Adam Fracassi, Joseph Y. Ho, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Andrew A. Nickelhoff, SACHS WALDMAN, P.C., Detroit, Michigan, John R. Canzano, MCKNIGHT CANZA-NO SMITH RADTKE & BRAULT P.C., Royal Oak, Michigan, Robert D. Fetter, MILLER COHEN PLC, Detroit, Michigan, for Appellees. Robert L. Avers, DICKINSON WRIGHT PLLC, Ann Arbor, Michigan, for Amicus Curiae.
    Before: SUHRHE INRICH, SUTTON, and McKEAGUE, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

The Michigan Campaign Finance Act generally bars corporations and labor unions from contributing to political candidates and organizations. As an exception to this prohibition, it permits corporations and unions to form and contribute to political action committees, which in turn may make political contributions. A recent amendment to the Act defines a prohibited expenditure by corporations and unions to include the administrative expenses of operating a payroll deduction program unless the deductions go to (1) the corporation’s or union’s own political action committee or (2) a political action committee established by a nonprofit corporation of which the union or corporation is a member. Several unions and some of their members challenge this component of the Act on the grounds that it violates (1) their Contracts Clause rights by upsetting existing collective bargaining agreements that already permit payroll deductions to other entities and (2) their First Amendment rights by preventing many union members from donating to their union’s political action committee via automatic payroll deductions. The district court preliminarily enjoined enforcement of the law on both grounds. We affirm the district court’s Contracts Clause ruling and reverse its First Amendment ruling.

I.

The Michigan Campaign Finance Act prohibits corporations from making “contributions” to, or “expenditures” on behalf of, state political candidates except through a “separate segregated fund,” more commonly known as a political action committee, still more commonly known as a PAC. See Mich. Comp. Laws §§ 169.254-.255; 1979-80 Mich. Op. Att’y Gen. 391 (1978). The statute defines “contribution” and “expenditure” to cover a transfer of “anything of ascertainable monetary value” if “made for the purpose of influencing the nomination or election of a candidate, for the qualification, passage, or defeat of a ballot question, or for the qualification of a new political party.” Mich. Comp. Laws §§ 169.204, .206. The statute permits corporations and unions to “make [ ] expenditure[s] for the establishment or administration of, and solicitation, collection, or transfer of contributions to, a separate segregated fund to be used for political purposes.” Id. § 169.255(1). But it prohibits expenditures for “establishing and administering a payroll deduction plan to collect and deliver a contribution to a [political action] committee,” unless “made by the person that established the” fund, or, after the 2015 amendments, “by a person who is a member of a nonprofit corporation that established” the fund. R. 7-7 at 4-5.

The upshot is this: Michigan law allows corporations and unions to solicit contributions to their PACs from employees and organizational members. Mich. Comp. Laws § 169.255. If an approved employee or member agrees to contribute, the corporation or union may deduct that contribution directly from the individual’s payroll through a process known as “PAC checkoff.” To permit this arrangement, the statute carves out from the expenditure ban any expenses associated with administering a political action committee if “made by the person that established the” fund. Id. § 169.204 (amended 2015).

Unions do not employ the bulk of their authorized donor base. To obtain payroll deductions in the past, unions secured agreements from employers to deduct PAC contributions from union members’ wages. PAC check-off agreements became a frequent component of collectively bargained contracts with employers. To ensure that the § 169.204 exception covered the payroll deduction expenses in union-employer agreements, unions would reimburse the costs that employers bore in administering the check-offs for union members. An administrative interpretation sanctioned this approach. And so the system operated — until December 2015.

At that time, Michigan amended the Campaign Finance Act. Under the 2015 amendments, any contributions or expenditures made by a corporation “to provide for the collection and transfer of contributions to” another corporate or union political action committee would “constitute[ ] an in-kind contribution ... prohibited under” the statute. R. 7-7 at 44-45; Mich. Comp. Laws § 169.254(3). In addition, “[a]dvanced payment or reimbursement” could no longer “cure a use of corporate resources otherwise prohibited.” Id. A violation of the provision came with criminal and civil penalties. R. 7-7 at 45; Mich. Comp. Laws § 169.254(5).

At the same time that Michigan prohibited corporations and unions from administering payroll deductions for others, it allowed them to administer payroll deductions for donations to nonprofit organizations so long as the corporation or union was a member of the nonprofit. The legislature also lifted the annual consent requirement for individual contributions, making it easier to secure continuous payroll deductions from employees.

In response to these changes, four labor unions and two union members (altogether, the unions) sued Michigan’s Secretary of State Ruth Johnson and Attorney General William Schuette in their official capacities (altogether, the State), alleging violations of the First Amendment and the Contracts Clause. The district court granted the unions a preliminary injunction on the ground that they were likely to prevail on their Contracts Clause and First Amendment claims. The State appealed.

II.

District courts gauge requests for a preliminary injunction based on four factors: (1) the plaintiffs’ likelihood of success on the merits; (2) irreparable harm to plaintiffs absent injunctive relief; (3) substantial harm to others resulting from an injunction; and (4) the broader public interest. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). Courts of appeals gauge requests to reverse a preliminary injunction based on two inquiries: (1) Did the district court rely on clearly erroneous facts in assessing these considerations? Or (2) did the court rely on an incorrect legal standard or misapply the governing standard in assessing these considerations? Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233-34 (6th Cir. 2011) (quotation omitted). This case turns on the law. The district court correctly applied the Contracts Clause and misapplied the First Amendment, and that’s all we need to-know to affirm in part and reverse in part. Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007).

Contracts Clause. The Constitution provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const, art. I, § 10. The Contracts Clause has had good days, see Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 4 Wheat. 518, 4 L.Ed. 629 (1819), and bad ones, see Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), with some cases honoring its language more assiduously than others. At one bookend is Dartmouth College, in which the Court, through an opinion' by Chief Justice Marshall, held that the Contracts Clause protects contracts “which respect property, or some object of value,” including, in that case, the charter of a private educational institution. 17 U.S. at 629, 643-46. At the other bookend is Blaisdell, in which the Court rejected a Contracts Clause challenge to a Minnesota law that banned enforcement of mortgage foreclosures that the loan agreements expressly authorized. 290 U.S. at 430, 434-35, 54 S.Ct. 231. According to Blaisdell, “[t]he policy of protecting contracts against impairment presupposes” “the reservation of essential attributes of sovereign power [that can be] read into [private] contracts.” Id. at 435, 54 S.Ct. 231. Today’s test for assessing a Contracts Clause violation lies somewhere between the two cases. It prohibits a State from imposing “a substantial impairment” on a “contractual relationship,” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244-45, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), unless that impairment amounts to a “reasonable” and “appropriate” means of achieving “a significant and legitimate public purpose,” Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-12, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983).

We need not start from scratch in applying that standard. Almost twenty years ago, Toledo Area AFL-CIO Council v. Pizza addressed a similar Contracts Clause challenge to an Ohio law that barred public employers from administering automatic payroll deductions for political purposes and that applied the ban to existing collective bargaining agreements. 154 F.3d 307, 311 (6th Cir. 1998). Pizza held that the law “operate[d] as a substantial impairment of the [ ] contractual relationship” because it “obliterate[d] the affected workers’ contractual expectation that the state w[ould] allow them to use this highly effective method of political fundraising for the [agreed upon] term.” Id. at 323. Pizza also did not think much of the State’s justifications for abrogating this contractual commitment: warding off political corruption and preventing employees from being coerced into making contributions. Id. at 326-27. It found this “severe impairment of pre-existing” agreements neither “necessary [n]or reasonable.” Id. at 326.

As with the Ohio law in Pizza, so too with the Michigan law in this case. The Michigan law prohibits the administration of payroll deduction programs for union political action committees. Just so in Pizza. The unions have contracts that provide for payroll deductions. Just so in Pizza. The Michigan law prohibits adherence to these agreements. Just so in Pizza. Michigan offers no interests distinct from those considered in Pizza to justify removing the PAC check-off obligations from the union contracts. Until now, Michigan, like Ohio, has “been willing to tolerate or been unaware of the evils it now claims are associated” with PAC checkoffs. Id. Here too, then, the State may “tolerate them a bit longer until [the] contractual obligations expire.” Id. Pizza establishes a substantial likelihood, indeed an overwhelming probability, that the unions will succeed on their Contracts Clause claim.

Not so quick, responds the State. It says that there is no reason to worry about Pizza because the unions have not shown that their collective bargaining agreements contain reimbursement clauses, and without these clauses the contracts cannot be enforced. The unions, it is true, have placed short excerpts from only two contracts into the record, and neither excerpt contains a reimbursement provision. But this argument does not supply a basis for denying the unions’ request for a preliminary injunction. A contract need not state that it will operate in accordance with governing law to be valid. And if the unions wish to enforce the PAC check-off provisions during the rest of the collective bargaining agreement, they of course will have to reimburse the employers for those costs. The unions conceded as much during oral argument. In the aftermath of that concession, the State could not identify any fiscal prejudice it would suffer if these contracts operate in compliance with the reimbursement requirement through the end of the collective bargaining agreement.

Even so, Michigan adds that we can avoid the Contracts Claim altogether by construing the 2015 amendment to apply only to future collective bargaining agreements. But the law offers no basis for this limitation. And we will not invent one.

None of the other preliminary injunction considerations have any role to play here. The debate is a legal one, and the unions are on the right side of it. The Contracts Clause, then, provides relief to the unions in part, prohibiting the State from enforcing the contested provision against regulated entities with pre-existing PAC checkoff obligations through the end of the relevant collective bargaining agreements. But the unions seek relief in full, which brings us to the First Amendment claim.

First Amendment. “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. The guarantee extends to speech by incorporated entities, including for-profit corporations, nonprofit corporations, and unions. Citizens United v. FEC, 558 U.S. 310, 342, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

The essence of the unions’ claim is that the 2015 amendment amounts to a viewpoint restriction on speech. The problem with this claim is that it has been thrice rejected—once by the United States Supreme Court and twice by our court. All three cases have held that the elimination of a PAC check-off opportunity does not amount to a restriction on speech and thus does not abridge the speech rights of unions hoping to receive check-off donations. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 359, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009); Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir. 2013); Pizza, 154 F.3d at 319.

In Ysursa, Pizza, and Bailey, state laws prohibited government employers from administering payroll deductions for donations to union political funds. Ysursa, 555 U.S. at 356, 129 S.Ct. 1093; Pizza, 154 F.3d at 311; Bailey, 715 F.3d at 958. All three cases held that the laws did not restrict union speech. In Ysursa, the Court stated that while payroll deduction could “enhance the unions’ exercise of First Amendment rights,” a refusal to permit public payroll deduction was “not an abridgment of the unions’ speech” because they were still “free to engage in such speech as they s[aw] fit.” 555 U.S. at 359, 129 S.Ct. 1093 (quotation omitted). This court had reached a similar conclusion two decades earlier. Pizza held that the “wage checkoff ban simply [did] not impinge, in a constitutionally significant manner, on any First Amendment rights.” 154 F.3d at 319. Ysursa cited, and relied on, Pizza for this point. 555 U.S. at 359, 129 S.Ct. 1093. Bailey recently removed any lingering doubt. Elimination of PAC check-off, we said, did “not restrict the unions’ speech at all: they remain[ed] free to speak about whatever they wish[ed].” Bailey, 715 F.3d at 958.

What was true then about opportunities to speak with one’s pocketbook is even more true today. Gone are the days when hard copy checks amounted to the primary, almost only, currency of—legal— political fundraising. The ever-growing modern options form a colorful array— from the once new and now traditional (monthly credit card or automatic bank withdrawals) to the now avant-garde and soon to be traditional (PayPal or Venmo). As a practical matter, unions retain a number of effective options for soliciting political donations and union members have a number of ways for making them—say a monthly bank account withdrawal, which is little different from a monthly paycheck withdrawal through a PAC check-off. Even if PAC check-off offers efficiencies that other methods of fundraising do not, modern methods of seeking and making contributions have minimized the relative significance of them.

That the employers in Ysursa, Pizza, and Bailey were public rather than private entities does not change things. In particular, the distinction fails to explain why the unions would be in any different position now. If the elimination of PAC check-off does not restrict union speech, as these cases hold, it never restricts union speech — regardless of who operates the check-off program. As in these eases, the unions remain free to collect donations and to use those donations for political purposes. Just as unions do not have a constitutional right to government-subsidized speech, e.g., Ysursa, 555 U.S. at 359, 129 S.Ct. 1093, they do not have a constitutional right to corporate-subsidized speech.

All of this explains why Citizens United provides no traction for the unions. There, a nonprofit corporation successfully challenged a law that prevented corporations from using general treasury funds for political contributions or “electioneering” expenditures. 558 U.S. at 321-22, 130 S.Ct. 876. The Act imposed a direct restraint on the plaintiffs speech. Indeed, it sidelined all corporations from certain forms of political speech. Michigan’s law, by contrast, prevents one distinct entity from subsidizing another entity’s speech. It does not limit the amount of money unions can raise or spend. And it does not specify the subjects or organizations to which they can donate or on which they can spend. That makes all the difference.

Wait, the unions urge: What of the following language from Pizza? The First Amendment, Pizza said, protects “negative rights to be free from government action” but does “not create positive rights — requirements that the government act.” 154 F.3d at 319 (internal quotation marks omitted). As the unions read this language, it explains why there was no First Amendment burden in Ysursa, Pizza, or Bailey, where the government was a regulator and employer, and why there is a burden here where the government has erected a “negative” obstacle to the unions’ ability to raise political funds. But this slice of Pizza does not tell the whole story. The opinion still says that unions do not have an independent constitutional right to “compel their employer to assist them m exercising their First Amendment rights.” Id. at 320. Absent a burden on a constitutionally cognizable right, the government may regulate what is at best a speech-facilitating mechanism.

Our circuit does not stand alone in reaching this conclusion. The Seventh Circuit also refused to limit these free-speech principles to the public employment context. At issue in Sweeney v. Pence was the validity of Indiana’s Right to Work Act, which prevented private employers from imposing mandatory dues or union membership on their employees. 767 F.3d 654 (7th Cir. 2014). Relying on Ysursa, the court held that the law did not infringe the unions’ First Amendment rights merely because it made it more difficult for them to collect funds. Id. at 669. The court’s assessment of the claim applies with equal force here: The State’s “decision not to subsidize the exercise of a fundamental right” did not itself infringe that right. Id.

For these reasons, we affirm in part and reverse in part.


author: KETHLEDGE, Circuit Judge.

text:
    The OHIO EDISON COMPANY; First-Energy Generation Corp; Petitioners/Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
    Nos. 15-1783/1929
    United States Court of Appeals, Sixth Circuit.
    Argued: April 28, 2016
    Decided and Filed: February 10, 2017

      ARGUED: Nick A. Nykulak, ROSS, BRITTAIN & SCHONBERG, CO., L.P.A., Cleveland, Ohio, for Petitioners/Cross-Respondents. Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Barbara Sheehy, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/ Cross-Petitioner. ON BRIEF: Nick A. Nykulak, ROSS, BRIT-TAIN & SCHONBERG, CO., L.P.A., Cleveland, Ohio, for Petitioners/Cross-Respondents. Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Linda Dreeben, Kira Dellinger Vol, Marni von Wilpert, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
    BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge.

       The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation.

   OPINION

KETHLEDGE, Circuit Judge.

The question presented in this case is whether a union representative’s generalized complaint about various reductions in employee benefits — including significant cuts in the employer’s 401(k) matching payments and in retiree life-insurance benefits — reflected a request on the union’s part to bargain specifically about a change to an employee-recognition program that had never, over the course of four decades, been the subject of bargaining between the union ■ arid the employer. The monetary effect of that change amounted to less than four dollars per union member per year. A divided panel of the National Labor Relations Board construed the union representative’s generalized complaint as a request to bargain about the employee-recognition program. That finding is not supported by substantial evidence, and thus we deny the Board’s application for enforcement of its order.

FirstEnergy established an employee-recognition program in 1978. At first the company gave tie tacks or charm bracelets to employees after their first and fifth years of service. In later years, the company eliminated the first-year gift and allowed eligible employees to choose items (such as alarm clocks and fishing rods) from a catalog that an outside vendor prepared for the purpose. By 2012 the value of the five-year awards was $85, which increased to $69.50 for the ten-year awards and $75 for the fifteen. The value of the awards thus amounted to about five to seven dollars per year of service. Perhaps unsurprisingly, then, in the 39 years covered by the record here, the company and the various unions representing its employees have never bargained about the recognition program or mentioned the program in a collective-bargaining agreement.

By September 2012, FirstEnergy’s revenue and stock price had dropped enough to reduce its market capitalization by $1.3 billion. As a result, FirstEnergy implemented a range of cost-cutting measures, several of which affected employees. That month FirstEnergy’s Director of Labor Relations, Eileen McNamara, and several other labor-relations executives called the leaders of 23 union locals to tell them about the changes. On September 18, McNamara called Herman Marshman, the president of Local 272 of the International Brotherhood of Electrical Workers. McNamara read from a prepared script and explained that, as of January 1, 2013, the company would reduce its cap for 401(k) matching payments by 33%, reduce its retiree life-insurance benefit by 60%, and cap its educational-reimbursement benefit for the first time. She also told Marshman that employees would receive a service award every ten years rather than every five. When McNamara was done, Marsh-man responded, “Oh no you don’t! Again? Now you know I have to file a board charge honey.” Marshman added that he would “have to come to Akron [the company headquarters] for this one.” McNamara emailed her supervisor to tell him that “[Marshman] is not happy” and that she was “sure [Marshman] is serious about the charge and coming to Akron.”

Marshman never followed through on the promise to come to Akron. Six weeks after the call with McNamara, however, Marshman filed an unfair labor-practices charge with the Board on behalf of Local 272. The charge asserted that FirstEnergy had violated its duty to bargain in good faith with the union, see 29 U.S.C. § 158(a), “by making unilateral changes in 401(k) savings, future retiree benefits, educational reimbursement, and employee service awards.”

For reasons not revealed by the record, the litigation of this charge concerned only the change with the least monetary significance — namely, the employee-service awards. Over FirstEnergy’s objections, an administrative-law judge acting on the Board’s behalf found that the employee-recognition program was a mandatory subject of bargaining under the National Labor Relations Act, that Marshman’s comments to McNamara amounted to a request to bargain about the program, and that FirstEnergy failed to bargain with the union (a point that neither side disputed) before changing the award cycle for each employee from five years to ten. The ALJ therefore ordered FirstEnergy to rescind its change to the program and to give the appropriate award to the 43 employees who had not received an award as a result of the change. The Board affirmed the ALJ’s order on a 2-1 vote, with Member Miscimarra dissenting on the ground that, “[a]t most, Marshman’s responses constitute the type of protest or objection that the Board, in numerous cases, has found not to be [the subject of bargaining].” Ohio Edison Co., 362 N.L.R.B. No. 88, at *3 (May 21, 2015). FirstEnergy thereafter brought this petition for review and the Board filed a cross-application for enforcement of its order.

FirstEnergy challenges both the Board’s determination that the employee-recognition program rose to the level of “wages, hours, and other terms and conditions of employment[,]” 29 U.S.C. § 158(d), and its finding that Marshman’s comments to McNamara amounted to a request to bargain about the program. We choose to begin with the latter finding, which we review for substantial evidence, that is, evidence sufficient “for a reasonable fact-finder to reach the conclusions the Board has reached.” Peters v. NLRB, 153 F.3d 289, 294 (6th Cir. 1998).

The parties agree on the applicable standard as to whether a union has made a request to bargain about an employer’s proposed change in a condition of employment. As the Third Circuit put it in a seminal case, “[a] request to bargain need follow no specific form or be made in any specific words so long as there is a clear communication of meaning, and the employer understands that a demand is being made.” NLRB v. Barney’s Supercenter, Inc., 296 F.2d 91, 93 (3d Cir. 1961); see also, e.g., Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 507 (6th Cir. 2002) (“[a]s long as it is clear that a union wants to bargain on behalf of its members, ‘a demand to bargain collectively need assume no particular form’ ” (quoting NLRB v. Wayne Convalescent Ctr., Inc., 465 F.2d 1039, 1043 n. 7 (6th Cir. 1972))). Thus the substance of a union’s request, not the form, is what counts; but the substance must clearly be a request to bargain.

We make two other points about the applicable standard. First, “ ‘the bargaining representative must do more than merely protest the change; it must meet its obligation to request bargaining.’ ” YHA, Inc. v. NLRB, 2 F.3d 168, 173 (6th Cir. 1993) (quoting Jim Walter Res., Inc., 289 N.L.R.B. 1441, 1442 (1988)). The difference between the two is straightforward: to protest is to seek change by expressing disapproval; to request bargaining, in contrast, is to seek change by signaling a willingness to offer something in return. Cf. Black’s Law Dictionary 169 (9th ed. 2009) (defining “bargain” as an agreement “for the exchange of promises or performances”). Second, in determining whether a union has requested bargaining, “[statements and acts of the union or the employer cannot be viewed in isolation.”' Barney’s Supercenter, 296 F.2d at 93. Instead we consider “all the circumstances.” Id.

The Board’s two-member majority neglected to consider all the circumstances here. Instead, the Board focused almost exclusively on Marshman’s comments during the call with McNamara — which to some extent is understandable, since those comments are the only actions on behalf of Local 272 that could possibly amount to a request to bargain. Those comments, to reiterate, came after McNamara had read her script, and were the following: “Oh no you don’t! Again? Now you know I have to file a board charge honey[,]” and that Marshman would “have to come to Akron [the company headquarters] for this one.” These comments expressed disapproval, to be sure; but that establishes only protest. The pertinent question is whether, in light of the record as a whole, they clearly signaled a request to bargain. On that point they were at best ambiguous rather than clear. The threat to file a “board charge” was not a request to bargain; to the contrary, a charge is a formal protest that commences administrative proceedings rather than negotiations. Nor was Marshman’s threat (which turned out to be empty) to “come to Akron” clearly' a request to bargain. The company and the Board both interpret this comment to mean that Marshman “wanted to complain to Tony Alexander,” who was the company’s CEO at the time. Board Br. at 45 (quoting McNamara’s testimony). But a complaint is more like a protest than a request to bargain. And if Marshman wanted to engage in collective bargaining, the person with whom he would do so was not Alexander, but the person already on the phone with him: Eileen McNamara, the company’s Director of Labor Relations. The reality is that Marshman’s comments were cryptic rather than clear.

The surrounding circumstances only undermine the Board’s interpretation of the phone call. To begin, the Board largely overlooks that the change to the employee-recognition program was hardly the only change that McNamara described on the call. To the contrary, she described several other changes — including that the company would reduce by one-third the cap for its 401(k) matching payments and cut the retiree life-insurance benefit from $25,000 to $10,000 — whose financial consequences for the Local’s members were far greater than whether they had to wait ten years rather than five to receive a free alarm clock or fishing rod. That is not to say the employee-recognition program was unimportant: such programs recognize the dignity and dedication of persons who otherwise might receive little recognition. But bargaining in a business setting usually concerns money rather than symbolism, and here the monetary consequences of the change to the recognition program amounted to less than four dollars per member per year. Hence one can be skeptical that Marshman’s comments reflected a desire to bargain about that program in particular. That skepticism only grows when one considers that the parties had never bargained about the program between its inception in 1973 and the events giving rise to this litigation 39 years later. Common sense and the parties’ course of dealings therefore provide good reason to think that, whatever Marshman meant by his comments, he did not mean (much less clearly mean) that he wanted to bargain about the employee-recognition program.

The Board contends that McNamara’s email to her supervisor shortly after the phone call shows that she indeed thought that Marshman had requested bargaining about the employee-recognition program. We fail to see how. The email stated that “[Marshman] is not happy” and that “[Marshman] is serious about the charge and coming to' Akron.” Id. Those comments reflect protest as much as, if not more than, they reflect a request to bargain. And again they give little reason to think that Marshman was complaining about the employee-recognition program in particular.

The Board also contends that our decision in Peters is “materially analogous” to this case. But there the surrounding circumstances could hardly have been more different, since the employer had unilaterally renounced its entire collective bargaining agreement with the union. Peters, 153 F.3d at 292. The union’s written request for a meeting to discuss the status of that agreement was thus reasonably viewed as a request to bargain.

Finally, the Board contends that Local 272’s unfair labor-practices charge six weeks after the call shows that Marsh-man requested bargaining about the employee-recognition program during the call. Again we do not see it. As the Board itself recognizes, an unfair labor-practice charge is no substitute for a request to bargain. See Board Br. at 48; NLRB v. Okla. Fixture Co., 79 F.3d 1030, 1037 (10th Cir. 1996) (“[t]he filing of an unfair labor practice charge does not relieve the Union of its obligation to request bargaining”); Associated Milk Producers, Inc., 300 N.L.R.B. 561, 564 (1990) (“[i]t was incumbent on the Union to request bargaining — . not merely to protest or file an unfair labor practice charge”). Moreover, as already discussed, the charge itself was a form of protest. On these facts the charge does not convert Marshman’s comments into a request for bargaining.

The record in this case, construed reasonably and as a whole, would not allow a reasonable person to find that Marshman’s comments during his call with McNamara were clearly a request to engage — for the first time ever — in collective bargaining about the employee-recognition program. The record instead supports the view of the Board’s dissenting member in this case.

We grant FirstEnergy’s petition for review, and deny the Board’s application for enforcement of its May 21, 2015 Decision and Order.