author: ROGERS, Circuit Judge: BROWN, Circuit Judge,

text:
    UNITED STATES of America, Appellee v. Michael PALMER, also known as Tony, also known as Knot, also known as James, Appellant
    No. 15-3006
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 18, 2016
    Decided April 14, 2017

      Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.
    Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.
    Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
   Concurring opinion filed by Circuit Judge BROWN.

ROGERS, Circuit Judge:

This appeal challenges the amended judgment entered by the district court following the partial grant' of appellant’s motion pursuant to 28 U.S.C. § 2255.. Section 2255(b) provides that upon granting such a motion, the district court shall “vacate and set ... aside” the challenged judgment and either release the prisoner, resentence him, grant a new trial, or correct the challenged sentence. Appellant seeks to gain the benefit of the more lenient sentencing penalties under the Fair Sentencing Act of 2010 even though he was sentenced upon conviction at trial before that Act was effective and the Supreme Court has limited its retroactive effect. See Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012).

The court need not decide today whether the Fair Sentencing Act applies to a resentencing upon a successful collateral attack pursuant to Section 2255. The district court left intact appellant’s original trial sentence in 1989 except to apply intervening changes in the law on the merger of offenses. This limited revision to an otherwise final judgment was not a reevaluation of the appropriateness of appellant’s original sentence. As a Section 2255 “correct[ion],” and not a “resentencing” at which the government has acknowledged the more lenient penalties under the Fair Sentencing Act would apply, this entitled appellant to no relief under the Act. Accordingly, because appellant’s due process challenge to his continuing criminal enterprise (“CCE”) conviction also affords no relief, we affirm.

I.

On direct appeal, the court affirmed appellant’s convictions of conspiracy and related offenses involving presiding over the large-scale distribution and sale of unlawful drugs in Washington, D.C., in the late 1980s. United States v. Harris, et al., 959 F.2d 246 (D.C. Cir.), cert. denied 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992). Appellant thereafter filed a series of motions collaterally attacking his convictions. In 2012, he filed a motion pursuant to Section 2255 that consolidated twelve challenges to his convictions. As relevant, appellant argued that (1) his CCE conviction and sentence should be vacated pursuant to Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), which held that conspiracy under 21 U.S.C. § 846 is a lesser included offense of CCE, and (2) four of his five 18 Ú.S.C. § 924(c) convictions must be vacated under United States v. Anderson, 59 F.3d 1323, 1334 (D.C. Cir. 1995), which held that a defendant may only be charged with one violation of Section 924(c) in relation to a single predicate crime. Appellant also sought a new sentencing hearing at which, he argued, the court should apply the updated Sentencing Guidelines and statutory changes reducing the disparity between crack and powder cocaine offenses to his remaining' convictions. The government agreed the Section 924(c) convictions merged and that the conspiracy and CCE convictions cannot both stand, but argued that appellant’s conviction for the lesser included offense of conspiracy should be vacated instead of his CCE conviction.

The district court granted appellant’s Section 2255 motion in part. United States v. Palmer, 902 F.Supp.2d 1, 4 (D.D.C. 2012). It vacated four of his Section 924(c) convictions and his conspiracy conviction and the accompanying sentences. The district court interpreted Rutledge to leave to “the sound discretion” of the district court whether to dismiss the lesser included offense (here, conspiracy), id. at 11, and decided to “not depart from standard practice” under which the conspiracy conviction, rather than the CCE conviction, would be vacated, id. at 12. It acknowledged that the choice “is likely to have more concrete effects on [appellant’s] actual sentence than cases in which the two sentences were identical,” id. at 12; appellant would be eligible for parole if his CCE conviction,' for which he was sentenced to life without possibility of parole, were vacated.

Appellant subsequently filed a motion for issuance of an updated judgment to reflect the district court’s ruling on his Section 2255 motion and a special assessment amount limited to the non-merged convictions. On January 5, 2015, the district court entered an amended judgment, eliminating the vacated convictions and excess assessments while leaving the remaining convictions and sentences as originally imposed in 1989 upon his convictions by a jury. See chart, below.

II.

On appeal, appellant contends that the district court erred by not apply-⅛ the Fair Sentencing Act in entering the amended judgment. The . question whether the district court erred in failing to apply the Fair Sentencing Act presents a question of law, and our review is de novo. See United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010). The government’s suggestion that our review of appellant’s sentencing challenge should be for plain error is not well taken. See Appellee Br. 21 n.9. In seeking relief pursuant to Section 2255, appellant argued that the district court should apply “the new guidelines and statutory changes that alter the [crack to powder cocaine] ratio and penalties^]” Mot. to Vacate át 52 (Mar. 20, 2012). Although appellant did not repeat his statutory argument in seeking an updated judgment, his new motion merely sought a ministerial revision of the judgment, a procedural action authorized by Federal Rule of Civil Procedure 58(d). See Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund, 585 F.3d 358, 362 (7th Cir. 2009); cf. United States v. Johnson, 254 F.3d 279, 283-85 (D.C. Cir. 2001). As such, appellant’s new motion neither forfeited nor waived his statutory argument; quite the contrary, he was seeking a judgment to reflect the district court’s partial grant of his Section 2255 motion.

In 1989, when appellant was sentenced following his convictions at trial, the U.S. Sentencing Guidelines were mandatory. See United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Those Guidelines reflected a 100:1 sentencing disparity for crack and powder cocaine offenses that was tied to the mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)-(C), see Dorsey, 132 S.Ct. at 2327, and also incorporated into the mandatory life sentences for CCE principals involved with large quantities of unlawful drugs, Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, 3207-15, § 1253(2) (1986). On August 3, 2010, Congress enacted the Fair Sentencing Act, which reduced the 100:1 statutory disparity to 18:1 and directed the Sentencing Commission to issue updated guidelines within ninety days. Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372, 2372, 2374, §§ 2, 8 (2010); see United States v. Abney, 812 F.3d 1079, 1084 (D.C. Cir. 2016).

In Dorsey, the Supreme Court held that the more lenient mandatory minimum penalties of the Fair Sentencing Act applied to offenders who committed a crack cocaine offense before August 3, 2010, but were not sentenced until after that date. 132 S.Ct. at 2326. Sentencing courts were confronted with two statutes that were in tension: a general federal saving statute provided that courts should apply the sentence in effect at the time the offense occurred unless Congress “expressly provide[s]” that a later statute should be used, 1 U.S.C. § 109, and the Sentencing Reform Act of 1984 provided that courts should apply the Sentencing Guidelines “in effect on the date the defendant is sentenced,” 18 U.S.C. § 3553(a)(4)(A)(ii). See Dorsey, 132 S.Ct. at 2330-31. The Court concluded that Congress “clearly indicated” this tension should be reconciled in favor of applying the Fair Sentencing Act to pre-Act offenders who were sentenced after the Act took effect. Id. at 2326. Relying “primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing,” id. the Court’s analysis of the timing issue considered six factors, id. at 2331. The Court acknowledged that its approach would create disparities based on when a pre-Act offender is sentenced, but observed that “line-drawing ... will exist whenever Congress enacts a new law changing sentences (unless Congress intends re-opening sentencing proceedings concluded prior to a new law’s effective date).” Id. at 2335.

This court has held on the direct appeal from a conviction that the Fair Sentencing Act is not retroactive to sentences imposed prior to its enactment. In United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012), the court concluded that “Congress’s desire to have the [Fair Sentencing Act] implemented quickly,” by issuance of emergency amendments to the Sentencing Guidelines, “in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed.” Id. at 1066 (quoting United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011)). Congress had a “rational basis for limiting the [Act’s] retroactive effect — its ‘interest in the finality of sentences.’ ” Id. (quoting Johnson v. United States, 544 U.S. 295, 309, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005)). In United States v. Fields, 699 F.3d 518 (D.C. Cir. 2012), the court viewed Bigesby as consistent with Dorsey because “the [Supreme] Court expressly acknowledged that it was creating a disparity ‘between pre-Act offenders sentenced before August 3 and those sentenced after that date.’ ” Id. at 522 (quoting Dorsey, 132 S.Ct. at 2335).

Similarly, in United States v. Swangin, 726 F.3d 205 (D.C. Cir. 2013), the court held that a defendant seeking a reduction under 18 U.S.C. § 3582(c)(2) was not entitled to have the Fair Sentencing Act’s more lenient mandatory minimums applied retroactively to his sentence. The court concluded that Section 3582(c)(2), which authorizes the district court to reduce a sentence when the term of imprisonment is calculated “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” if consistent with the applicable Commission policy statement, provides for “ ‘only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.’ ” Id. at 207 (quoting Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010)). “[T]hat Swangin received a § 3582(c)(2) reduction after the Fair Sentencing Act’s enactment does not change the fact that he was sentenced before its enactment and is therefore subject to the rule announced in our prior decisions.” Id. The court, like other circuits, rejected the argument that Dorsey required a different outcome. Id. at 207-08 & n. 4.

Still, it is an open question in this circuit whether, on collateral attack, the Fair Sentencing Act’s reduced penalties are applicable to sentences imposed pursuant to Section 2255 upon vacatur of the challenged judgment. Section 2255 instructs the district court, upon granting the motion, to “vacate and set ... aside” the challenged judgment, and then to “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Appellant takes a broad view, contending that the Fair Sentencing Act applies to any sentencing proceeding following the grant of a Section 2255 motion because the original judgment no longer exists and in issuing an amended judgment the district court necessarily had to impose a new sentence. That is, the Act applies to any revision of the vacated challenged sentence, whether a correction or a resentenc-ing. The government responds that even if the Act applies to a resentencing — as the government has argued to our sister circuits, see, e.g., United States v. Hinds, 713 F.3d 1303, 1304 n.2 (11th Cir. 2013); see also Appellee Br. 20, 24 n.10 — the Act does not apply to a mere correction of a sentence as occurred here.

The text of Section 2255 indicates that Congress intended a sentence “correction]” and a “resentencing” to entail different remedies that do not quite favor appellant’s broad approach. First, Congress is presumed, absent indication to the contrary and there is none here, to use words in their ordinary meaning. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). Dictionaries define a “correction,” as “the act or an instance of making right what is wrong,” Black’s Law Dictionary (10th ed. 2014), or “remedying or removing error or defect,” Webster’s Third New International Dictionary, Unabridged (2017). A “resentenc-ing” in contrast, is “[t]he act or an instance of imposing a new or revised criminal sentence.” Black’s Law Dictionary (10th ed. 2014). These definitions suggest that corrections are limited to a specific type of action taken with respect to the original judgment, while resentencings could encompass a broader array of procedures. They nonetheless leave open the possibility for overlap between the two and thus are not dispositive.

Second, the Federal Rules of Criminal Procedure embrace a similar distinction. Rule 35 allows the district court to “correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). The scope of Rule 35 is intended to be narrow. See Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The Rules Advisory Committee explained that Rule 35

is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court’s discretion with regard to the application of the sentencing guidelines.

Fed. R. Crim. P. 35, Advisory Comm. Notes on 1991 Amends. (“R. 35, Advisory Comm. Notes”). Rule 35 corrections also are allowed only within fourteen days of sentencing. Fed. R. Crim. P. 35(a). The Advisory Committee further notes that a defendant may seek relief of “obvious sentencing errors” pursuant to Section 2255 after this time period has lapsed. R. 35, Advisory Comm. Notes. This explanation suggests that correction of a sentence pursuant to Section 2255 at least encompasses some of the changes that could have been made under Rule 35 but for timing. See United States v. Coyer, 732 F.2d 196, 200 (D.C. Cir. 1984).

Third, courts are to interpret congressional statutes in a way to avoid sur-plusage. See Young v. United Parcel Serv., Inc., - U.S. -, 135 S.Ct. 1338, 1352, 191 L.Ed.2d 279 (2015); Mingo Logan Coal Co. v. EPA, 714 F.3d 608, 613-14 (D.C. Cir. 2013). Although the district court did revise appellant’s original trial sentence, Section 2255’s mandate to vacate the challenged judgment upon granting relief affords the district court distinct remedial options. Congress added the phrase “correct the sentence” to legislation proposed by the Judicial Conference of the United States in 1943 to allow courts upon a collateral attack to “discharge the prisoner or resentence him or grant a new trial as may appear appropriate.” Compare S. 1451, 79th Cong. (1st Sess. 1945) and H.R. 4233, 79th Cong. (1st Sess. 1945) with Report of the Judicial Conference 24 (1943). See also H.R. Rep. 308 on H.R. 3214, at 7 (1947) reprinted in Legislative History of the Codification of Title 28 of the United States Code Entitled Judicial Code and Judiciary: P.L. 80-773: Ch. 646, 2d Sess. (1948). Congress thus contemplated a sentencing proceeding in which a correction as well as a resentencing could follow vacatur. Of course, describing the district court’s revision as a correction rather than a resentencing does not necessarily compel the conclusion that it was proper, and depending on how far beyond Rule 35’s boundaries a Section 2255 sentence “correet[ion]” extends may mean it is actually a “resentencing.” This case does not present those complexities.

Here, appellant contends that “the district court did not issue the new judgment to correct a mathematical or technical mistake,” and that he “was entitled to more than a Rule 35-type correction of his sentence.” Reply Br. at 4. We agree that the district court did not correct a mathematical or technical mistake in the original sentence, and although Rule 35 also refers to corrections resulting from “other clear error,” neither was the district court “fixing judicial gaffes” in that sentence. United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008); see also United States v. Arrington, 763 F.3d 17, 24 (D.C. Cir. 2014). Rather, the district court revised the original sentence in view of the change in the law on merger since appellant was sentenced at trial. In so doing, the record indicates, clearly, that the district court did no more than mechanically vacate the unlawful convictions (and accompanying sentences) for the five counts that had merged under Rutledge and Anderson after applying the' “standard practice,” in this and other circuits, of vacating the lesser included offense of conspiracy. Otherwise, the district court left appellant’s original sentence in place, unaltered.

The district court was required to do no more, for Section 2255(b) accords it discretion in choosing from among four remedies, “as may appear appropriate.” See United States v. Haynes, 764 F.3d 1804, 1310 (11th Cir. 2014); Ajan v. United States, 731 F.3d 629, 633 (6th Cir. 2013); United States v. Savoca, 596 F.3d 154, 161 (2d Cir. 2010); United States v. Jones, 114 F.3d 896, 897 (9th Cir. 1997). Although appellant did obtain more than a Rule 35 correction of his original sentence, because there was no clear error to fix within fourteen days of his original sentence, he was not resentenced based upon a reevaluation of the sentence that should be imposed for his convictions. The district court took none of the actions that the Advisory Committee cautioned would fall outside of the scope of a Rule 35 correction, such as reconsidering the appropriateness of appellant’s 1989 sentence. Neither did the district court conduct any of the usual procedures for a full blown resentencing hearing: “The probation office did not prepare a new [presentence report], the district court did not accept any new evidence or any legal argument, and [appellant] was not given the opportunity to allocute[.]” United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007). Instead, the district court acted, as the Rule 35 Advisory Committee contemplated, to correct “clear error” that arose after the time for correction under Rule 35 had expired. Section 2255 contemplates a sentencing proceeding as one of the options upon a successful collateral attack, unlike 18 U.S.C. § 3582(c)(2), see Dillon, 560 U.S. at 825, 130 S.Ct. 2683, but a revision to eliminate clear error due to subsequent development of the law on merger of offenses reflects “a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding,” Swangin, 726 F.3d at 207 (quoting Dillon, 560 U.S. at 826, 130 S.Ct. 2683). And it did not change the fact that appellant was originally sentenced before the Fair Sentencing Act was effective. See id.; see also Fields, 699 F.3d at 522.

Appellant nonetheless disputes that the district court could enter “a new judgment excising the vacated counts without considering the remaining sentences or undoing the entire knot of calculation underlying the original sentencing.” Reply Br. 4 (internal quotation marks omitted). This court has acknowledged the pertinence of a sentencing scheme in determining that a remand for resentencing is required, see United States v. Rhodes, 106 F.3d 429, 433 (D.C. Cir. 1997), and that sentences for individual counts may be so intertwined that a remand for resentencing is appropriate, United States v. Townsend, 178 F.3d 558, 566-69 (D.C. Cir. 1999). Cf. United States, v. Morris, 116 F.3d 501, 504 (D.C. Cir. 1997). Yet not every judgment involving multiple convictions presents a sentencing package in which vacating the sentence on one count unravels the remaining sentences. E.g., United States v. Smith, 467 F.3d 785, 789-90 (D.C. Cir. 2006). Further, this court has repeatedly concluded that resentencing is unnecessary where, as here, the district court merely vacated convictions for lesser included offenses subject to merger. See, e.g., United States v. Battle, 613 F.3d 258, 266 (D.C. Cir. 2010); United States v. Baylor, 97 F.3d 542, 548 (D.C. Cir. 1996); United States v. Lewis, 482 F.2d 632, 647 (D.C. Cir. 1973).

Appellant has pointed to no basis to conclude that the district court presiding at his criminal trial imposed a harsher sentence on the greater offense than it would have in the absence of the lesser offense; in that sense, too, there was no need for the district court here to entertain a resentencing. See United States v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996). The only rationale appellant offers in support of a sentencing package theory is that had the district court chosen to vacate his CCE conviction, rather than his conspiracy conviction, he would be eligible for parole. Even assuming a resentencing would be required to take into account the possibility of parole, cf. Smith, 467 F.3d at 789-90; Townsend, 178 F.3d at 568, that is not what happened in appellant’s case. The district court did acknowledge counsel’s assertion about appellant’s positive adjustments during his imprisonment, and various related letters, but nothing in the Section 2255 record indicates the district court was making a determination relative to parole itself; instead it was acknowledging, in light of the specific relief defense counsel sought for appellant, the effect of the different sentences that had been originally imposed at trial for CCE and conspiracy. Palmer, 902 F.Supp.2d at 12. Appellant remains ineligible for parole just as he was before the district court partially granted his Section 2255 motion.

To the extent appellant suggests that this court should consider the district court’s choice of which conviction to vacate in light of Rutledge to be an act of resen-tencing in and of itself, he ignores this' court’s understanding of “resentencing.” See generally United States v. Blackson, 709 F.3d 36, 40 (D.C. Cir. 2013). A district court’s exercise of discretion — in deciding not to depart from the “standard practice” in vacating the lesser included offense rather than the CCE conviction — also does not make its action a resentencing “in the usual sense.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683; see id. at 825-28, 130 S.Ct. 2683. Instead, the district court’s decision followed standard practice in making a “limited adjustment” to appellant’s original sentence as required by subsequent developments in the law on the merger of offenses. Id. at 826, 130 S.Ct. 2683. Nothing in the record indicates that the district court was reevaluating the appropriateness of appellant’s original sentence, much less his eligibility for parole. That a revision to a sentence may encompass something more than correction of a mathematical or technical mistake under Rule 35 does not necessarily transform whatever else the district court did into a resentencing under Section 2255.

Appellant’s suggestion that it violates due process to permit his pre-Fair Sentencing Act sentence to stand is also unpersuasive for lack of supporting authority, as are his assertions under the Ex Post Facto Clause and, under Booker, the Sixth Amendment. There is nothing constitutionally unfair about leaving appellant’s non-merged convictions in place in view of the evidence at his trial and the law then in effect. See Hughes, 733 F.3d at 647; Savoca, 596 F.3d at 161. The district court recounted the district court’s observations at sentencing: “[Appellant’s] organization ‘created havoc and misery in their path’ for several years, selling an ‘estimated 100 and 200 kilos of crack in[ ] the city,’ for which they earned a total of ‘perhaps as much as 5 to $10 million,’ ” Palmer, 902 F.Supp.2d at 4 (quoting Sent. Hg. Tr. 2 (Oct. 18, 1989)), and “[i]n the 25 years ... on the bench, [it] ha[d] seldom, if ever, seen a case in which the evidence was as overwhelming as it was in this case ... and particularly [as to] the guilt of Mr. Palmer,” id. at 5 (quoting same at 7) (first and fourth brackets and second ellipsis in original). Further, Booker does not apply retroactively on collateral review. See, e.g., In re Zambrano, 433 F.3d 886, 889 (D.C. Cir. 2006). Appellant’s reliance on Dorsey, 132 S.Ct. at 2325, is misplaced; his circumstances are not comparable to those of a defendant who was originally sentenced after the Fair Sentencing Act was effective, and this court has held that the Act is not retroactive for defendants who were originally sentenced prior to the Fair Sentencing Act. See Swangin, 726 F.3d at 208.

In sum, the amended judgment entered by the district court did no more than apply the substantive law on merger of offenses as it had developed since appellant’s sentence at trial. In so doing, the district court applied the “standard practice” to vacate conspiracy, the lesser included offense of CCE, and then “removed the [newly existing] error[s] from [appellant’s] original sentence — and thereby made it ‘right’ — by excising the unlawful ... term[s].” Hadden, 475 F.3d at 667. This limited adjustment to appellant’s original sentence is distinguishable from a re-sentencing in which the district court had “ehang[ed] its mind about the appropriateness of the [original] sentence.” R. 35, Advisory Comm. Notes. But for the intervening change in the law of merger, the district court left appellant’s original sentence intact, stating “the rest of the sentences from [appellant’s] original Judgment of Conviction remains as announced [in 1989.]” United States v. Palmer, 902 F.Supp.2d 1, 4 (D.D.C. 2012).

III.

In addition to not deciding whether the Fair Sentencing Act applies to a resen-tencing pursuant to Section 2255, the court has no occasion to decide whether his conviction and sentence for CCE violates due process because 21 U.S.C. § 848(b) failed to define a criminal offense at the time of his conviction. It is procedurally defaulted. Appellant did not raise this issue in his direct appeal from his conviction, see Harris, 959 F.2d at 250, 252, 267, much less in seeking relief pursuant to Section 2255. Nor has appellant shown cause and prejudice for his failure to raise his due process objection on direct appeal. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). In his reply brief, he maintains that there has been a “miscarriage of justice,” Reply Br. 9; even if not forfeited, see United States v. Wilson, 605 F.3d 985, 1035 (D.C. Cir. 2010), an otherwise procedurally defaulted claim may be considered by the court only upon a showing as a factual matter that the defendant is “actually innocent,” Bousley, 523 U.S. at 622-24, 118 S.Ct. 1604, and appellant has made no such showing.

Appellant’s challenge to his Section 848(b)(1)(A) conviction also does not fall within an established exception to procedural default rules. Under the law of this circuit, facial challenges to the constitutionality of presumptively valid statutes are not jurisdictional. United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir. 1996). Further, whether an indictment charged a proper offense goes to the merits, not subject matter jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Williams, 341 U.S. 58, 66, 71 S.Ct. 595, 95 L.Ed. 747 (1951); see United States v. Miranda, 780 F.3d 1185, 1189-90 (D.C. Cir. 2015); United States v. Delgado-Garda, 374 F.3d 1337, 1342 (D.C. Cir. 2004); cf. United States v. Rubin, 743 F.3d 31, 37 (2d Cir. 2014). Additionally, the “right not to be haled into court at all upon ... felony charge[s]” where “[t]he very initiation of the proceedings” denies a defendant due process, Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); accord Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), does not apply to a due process challenge to the substantive reach of a criminal statute. See Miranda, 780 F.3d at 1190; Delgado-Garcia, 374 F.3d at 1343; cf. United States v. Gonzales, 311 F.3d 440, 443 (1st Cir. 2002).

But even were appellant’s contention viewed as jurisdictional or as falling within the Blackledge/Menna exception, it would fail. A scrivener’s error did not deprive appellant of “fair notice” that Section 848(b)(1)(A) meant to refer to (c)(1) rather than (d)(1). United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). At the time appellant was indicted and convicted, Section 848(b) provided for life imprisonment for a principal administrator of a CCE if “the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of [title 21].” 21 U.S.C. § 848(b)(2)(A) (1989). Subsection (d), however, neither included a paragraph (1) nor stated a violation; it prohibited suspended sentences and probation. Paragraph (c)(1), in contrast, defined the violations within the purview of a CCE. The statutory history of Section 848 makes clear that the reference to (d)(1) rather than (c)(1) was a “simple scrivener’s error” rather than a conscious choice by Congress. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). The text in (c)(1) had previously appeared as (d)(1). See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 13207, 13207-14, § 1253(1) (1986); Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236, 1265-66, § 408 (1970). The erroneous cross-reference occurred when (d) was redesignated (c) in amending Section 848 to correct a prior statutory error where subsection (b) was followed by subsection (d), omitting (c). See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4382, § 6481(b) (1988).

“[A] provision which is the result of obvious mistake should not be given effect, particularly when it overrides common sense and evident statutory purpose.” United States v. Babcock, 530 F.2d 1051, 1053 (D.C. Cir. 1976) (internal quotation marks omitted). The Supreme Court has cautioned against judicially amending a statute “to provide for what [the court] might think ... is the preferred result.” Lamie v. U.S. Tr., 540 U.S. 526, 542, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting United States v. Granderson, 511 U.S. 39, 68, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (Kennedy, J., concurring)) (alterations in Lamie). But there, even though the plain text of the statute could lead to a harsh result, the Court concluded the result was not absurd, id. at 536, 538, 124 S.Ct. 1023, and consequently it was not inconceivable that Congress intended for the statute to operate as written, despite some evidence of a scrivener’s error, id. at 539-42, 124 S.Ct. 1023. This court applied a similar analysis in U.S. ex rel. Totten v. Bombardier Corporation, 380 F.3d 488 (D.C. Cir. 2004), as did the Fourth Circuit in United States v. Childress, 104 F.3d 47 (4th Cir. 1996), on which appellant relies. Here, in contrast, there is no plausible reading of the plain text absent recognizing and correcting for the error. Section 848(b)(2)(A) referred to “the violation referred to in paragraph (d)(1),” but (d)(1) did not exist and (d) did not describe a violation. Not departing from the “literal wording” of Section 848 would lead to “an absurd result,” imposing a sentence for no stated offense, Lange v. United States, 443 F.2d 720, 722, 723 (D.C. Cir. 1971), and thus function as a repeal of- Section 848(b) by implication, which are disfavored, Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987), or require the court to treat all of subsection (b) as surplusage, contrary to a basic interpretative principle, Mingo Logan Coal Co., 714 F.3d at 613-14.

The drafting history and structure of Section 848 show Congress intended to refer to (c)(1), which identified the predicate violations for CCE. Cf. United States v. Coatoam, 245 F.3d 553, 558-60 (6th Cir. 2001). By construing Section 848(b) to refer to (c)(1), rather than a non-existent (d)(1), the court is “applying what Congress has enacted after ascertaining what it is that Congress has enacted.” Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 100, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). And because Congress’ intent is clear, the rule of lenity is inapplicable. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).

Accordingly, we affirm the judgment of the district court.

BROWN, Circuit Judge,

concurring:

While I agree the district court’s grant of habeas relief in this action did not trigger the application of the Fair Sentencing Act’s (“FSA”). reduced penalties, Op. 47-48, 51, I would reach this conclusion regardless of whether the district court made a sentence “correction” or conducted a more complete “resentencing.” The Supreme Court’s rule in Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) was a ticket for a few trains only; that ticket has long since expired.

Dorsey holds the FSA should apply to those defendants who completed their criminal conduct before the statute’s enactment but who were initially sentenced after the law took effect. Id. at 2335-36. Specifically, the Dorsey Court considered application of the FSA to initial sentenc-ings in light of two competing statutory provisions: (1) 1 U.S.C. § 109, which instructs, “[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide;” and (2) 18 U.S.C. § 3553(a)(4)(A)(ii), which “says that when determining the particular sentence to be imposed in an initial sentencing, the [district] court shall consider, among other things, the sentencing range established by the Guidelines that are in effect on the date the defendant is sentenced.” 132 S.Ct. at 2330-32 (emphasis omitted) (quoting 1 U.S.C. § 109; 18 U.S.C. § 3553(a)(4)(A)(ii)). Since the FSA itself directs the Sentencing Commission to amend the crack-cocaine Guidelines soon after the statute’s effective date, the Court determined — in the context of an initial sentencing — Section 3553(a)(4)(A)(ii)’s “background sentencing principal” outweighed Section 109’s “default rule.” Id. at 2332-34; see id. at 2339 (Scalia, J., dissenting).

Fair enough; the Court acknowledged the need to draw an arbitrary line in light of contradictory statutory language, and it did so. But nothing in Dorsey indicates it should be extended to resentencings. To the contrary, the Court’s six-factor analysis reveals its desire to avoid any future application of its limited holding. See Op. 45-46 n.2; see also Dorsey, 132 S.Ct. at 2344 (Scalia, J., dissenting) (“The Court’s [majority] decision is based on six considerations, taken together, and we are not told whether any one of these considerations might have justified the Court’s result in isolation, or even the relative importance of the various considerations.”). Indeed, the Sixth Circuit refused to apply Dorsey to a resentencing following a direct appeal, noting the statutory conflict present in Dorsey was not present in that new context. United States v. Hughes, 733 F.3d 642, 645 (6th Cir. 2013) (noting Section 3553(a)(4)(A)(ii)’s direction to apply the Sentencing Guidelines that were “in effect on the date the defendant is sentenced”— the text Dorsey viewed as dispositive— contained a critical exemption for resen-tencing on remand following direct appeal). The Sixth Circuit, therefore, remarked: “What the parties ask us to do in this case [apply Dorsey to a resentencing on remand], then, is remarkable. The presumption created by § 109 is one that we are bound to take seriously, as the Supreme Court reminded us in Dorsey. And in Hughes’s case that presumption is not rebuttedId. Accordingly, the court held the FSA did not apply to a defendant who had been resentenced following direct appeal after the statute’s effective date, but who committed his crime and had been initially sentenced prior to that date.

Here, decades after Palmer’s initial sentencing, we must answer yet another question: should the FSA apply to a resentenc-ing on habeas relief following a change in relevant substantive law? Much like the Sixth Circuit panel in Hughes, I believe Dorsey need not be extended. While habe-as relief contemplates an exception to the finality of criminal sentences, the authority of a district court judge to alter a sentence previously imposed is narrowly circumscribed. Cf. Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (noting the importance of finality in criminal proceedings and the evidentiary standard necessary to overcome it in habe-as proceedings). Indeed, in circumstances where changes in intervening law mandate reopening a sentence, Supreme Court jurisprudence generally contemplates “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). To permit more would create new anomalies in sentencing — anomalies having nothing to do with the craek/pow-der cocaine inequities addressed in the Fair Sentencing Act and Dorsey.

Accordingly, while the Court does not reach the question, see Op. 42, I would conclude a district court is bound to apply the law in effect at the time of initial sentencing when constructing an amended judgment following the grant of habeas relief. To hold otherwise would transform Dorsey, into an inappropriately broad exception to the rule of finality in criminal sentences; prejudice the government, which may need to fashion arguments to accommodate now-spoiled evidence; and grant a tremendous windfall to the select few defendants who manage to partially prevail on habeas motions.

      . Neither party mentions that the 1989 judgment refers to a "special parole term” of three years on Count 5, while this term appears in Count 17 of the 2015 amended judgment.

      . The six factors are: (1) Retroactivity may be conveyed by the "plain import” or "fair implication” of a statute, rather than its express terms. Dorsey, 132 S.Ct. at 2332. (2) The Sentencing Reform Act required that amendments to the Sentencing Guidelines lowering a sentence "become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter.” Id. (3) The Fair Sentencing Act mandated the Sentencing Commission promptly update its guidelines to "achieve consistency” with the Act and "other guideline provisions,” id. (quoting Fair Sentencing Act § 8, 124 Stat. at 2374), indicating "that Congress intended to follow the Sentencing Reform Act background principle here,” id. (italics omitted). (4) Failing to apply the Fair Sentencing Act retroactively to pre-Act offenders sentenced post-Act "would create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent.” Id. at 2333 (italics omitted). Individuals who committed the same offense months or even days apart could face "radically different sentences,” despite "roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge[J” Id. (5) Failure to apply the Fair Sentence Act to pre-Act offenders sentenced post-Act would also "create new anomalies — new sets of disproportionate sentences” because such offenders would either be subject to the old, more stringent statutory mandatory minimums or receive the benefit of the updated guidelines under the Sentencing Reform Act depending on small differences in drug quantity. Id. at 2334. (For example, a pre-Act offender convicted of possession with intent to distribute four grams of crack who is sentenced post-Act would face a sentence of two years under the updated guidelines, while "an otherwise identical offender who possessed five grams would have to receive a 5-year sentence" under the old statutory minimums. Id.) (6) Finally, “no strong countervailing consideration” warranted not giving the Fair Sentencing Act this limited retroactive effect. Id. at 2335 (italics omitted).

      . See, in this circuit, United States v. Mahdi, 598 F.3d 883, 897 (D.C. Cir. 2010), and United States v. Hoyle, 122 F.3d 48, 49 n.1 (D.C. Cir. 1997), and, in other circuits, Lanier v. United States, 220 F.3d 833, 841 (7th Cir. 2000) (citing cases); United States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998); United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997). The Sixth Circuit has recognized an exception where the lesser included offense carries a greater sentence. See United States v.

        Chambers, 944 F.2d 1253, 1269 (6th Cir. 1991).

      . The Supreme Court granted certiorari in United States v. Class, No. 15-3015 (D.C. Cir. July 5, 2016), to determine "[w]hether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” Pet. for Writ of Certiorari at i, Class v. United States, No. 16-424 (Sept 30, 2016); see - U.S. -, 137 S.Ct. 1065, 197 L.Ed.2d 175 (2017) (Mem.). Although Class involves a guilty plea, it is not inconceivable that the Court might hold that a facial challenge to a statute on the ground it fails to state an offense is a jurisdictional objection or falls within the Blackledge/Menna exception, overruling this court's precedent. For this reason, we address appellant’s challenge rather than hold his appeal in abeyance pending the Supreme Court’s decision in Class.

      . As an initial matter, the government does not concede Dorsey applies to resentencings. Rather, its brief states, ‘‘[N]umerous other Circuits have held that the FSA applies to a true 'resentencing,' and the government has conceded that point in other cases." Gov’t Br. 24 n.10 (emphasis added). The mere fact that the government had previously conceded Dorsey applied to resentencings in other matters is hardly dispositive for this Court’s review. See NLRB v. Local 103, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 434 U.S. 335, 351, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978) (noting a governmental agency "is not disqualified from changing its mind”). As the Supreme Court has acknowledged, “private agreements between litigants ... cannot relieve this Court of performance of its judicial function” in interpreting the statutes Congress passed "irrespective of [the litigants’] prior or present views.” Garcia v. United States, 469 U.S. 70, 79, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984). “[T]he proper administration of the criminal law cannot be left merely to the stipulation of parties.” Young v. United States, 315 U.S. 257, 259, 62 S.Ct. 510, 86 L.Ed. 832 (1942).
      Finally, this Court’s oblique statement in United States v. Law, 806 F.3d 1103, 1105 n.1 (D.C. Cir. 2015) — buried in a footnote and noting only that the district court had "applied” the FSA on resentencing — hardly settles the legal dispute.


source: Caselaw Access Project

author: PILLARD, Circuit Judge:

license: Public Domain

text:
    ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Local 553, I.B.T., Intervenor
    No. 15-1321 Consolidated with 15-1360
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 13, 2016
    Decided April 18, 2017
    Rehearing En Banc Denied June 23, 2017

      Gregory S. Lisi, Uniondale, NY, pro hac vice, argued the cause for petitioner. On the brief was Justin P. Fasano, Greenbelt, MD.
    Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart and Usha Dheenan, Supervisory Attorneys.
    Jae W. Chun, New York, NY, argued the cause for intervenor. With him on the brief was Eugene S. Friedman.
    Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.
   PILLARD, Circuit Judge:

Allied Aviation Services Company of New Jersey (Allied) is a commercial airline fuel service provider with operations throughout the United States. Since 2012, a swath of Allied’s employees at Newark Liberty International Airport has sought representation by and collective bargaining through Local 553, International Brotherhood of Teamsters, AFL-CIO (the Union). Allied challenges the National Labor Relations Board’s (NLRB) decision that Allied violated the National Labor Relations Act (NLRA) by failing to recognize and bargain with the Union.

When the Union first sought to represent the employees at issue, Allied argued that these employees, whose job titles all include the word “Supervisor,” are statutory supervisors exempt from the Act. When the Board rejected that argument on the ground that the work of the relevant employees was not in fact supervisory within the meaning of the NLRA, Allied fell.back on assertions that the Board lacked jurisdiction over the company because its work is so extensively directed by common carriers that Allied is governed not by the NLRA but by the Railway Labor Act (RLA). The Board rejected that claim for want of record evidence that Allied is “owned or controlled by or under common control with” a common carrier, as the RLA requires. 45 U.S.C. § 151 First. Allied alternately maintained, unsuccessfully, that it cannot be held to Board orders invalidated by Noel Canning v. NLRB, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), despite a duly empowered Board’s ratification of those orders.

Allied petitions this court for review. We hold that Allied’s petition fails to establish RLA jurisdiction; that a constitutionally adequate Board panel’s certification of the Union as the employees’ representative cured any defect in the Board’s earlier order; and that substantial evidence supports the Board’s statutory-supervisor classifications. Because the Board’s decision is legally correct and supported by substantial evidence, we deny the petition for review and grant the Board’s cross-application for enforcement.

I. Background

The Port Authority of New York and New Jersey contracted with Allied to provide fueling services to approximately fifty airlines at Newark Liberty International Airport. At issue in this case is a group of forty-four of Allied’s employees who seek representation by the Union. They include Fueling Supervisors (including Dispatch and Operations Supervisors), Tank Farm Supervisors, Maintenance Supervisors (including Parts Supervisors and Parts Persons), and Training Supervisors. These employees generally ensure the smooth provision of fuel service at Newark Airport. Fueling Supervisors distribute the equipment and workload to the fuelers and ensure that airlines’ fueling needs are fulfilled. Tank Farm Supervisors monitor storage and supply facilities (the fuel storage “tank farm”), the airport’s fuel pipeline system, and the inventory, inflow, and outflow of fuel. Maintenance Supervisors keep track of Alhed’s fleet of gas tankers and their maintenance. And Training Supervisors train fuelers on the procedures mandated by each airline. These “Supervisors” are overseen by each department’s managers, who report in turn to a General Manager.

A. Election Petition

In March 2012, the Union filed a petition seeking to represent these forty-four employees. Allied opposed the petition and argued that the employees are supervisory within the meaning of section 2(11)’ of the NLRA and therefore exempt from its coverage. The NLRA explicitly exempts supervisors from its definition of a covered “employee” eligible to unionize, 29 U.S.C. §§ 152(3), (11), but it is job function, not title, that confers supervisory status, see Jochims v. NLRB, 480 F.3d 1161, 1168 (D.C. Cir. 2007).

Statutory supervisors are those with authority to act “in the interest of the employer” to carry out or “effectively to recommend” at least one of twelve enumerated activities, provided that the exercise of that authority requires “the use of independent judgment.” 29 U.S.C. § 152(11); see NLRB v. Health Care & Ret. Corp., 511 U.S. 571, 573-74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994). The twelve activities are: “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action.” 29 U.S.C. § 152(11). The party asserting supervisory status bears the burden of proof on the point. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-12, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001).

After five days of testimony on the issue, NLRB Regional Director J. Michael Lightner found that the Allied workers in question were non-supervisory employees and directed an election in the petitioned-for bargaining unit. Allied sought Board review of the non-supervisory designation. The company also contended that recess appointments made to the NLRB in January 2012 were invalid. In June 2012, a three-member panel of the Board affirmed the direction of election except that, because it thought there was a substantial issue whether Training Supervisors were statutory supervisors, the panel permitted those three employees to vote only by challenged ballot, meaning that the Training Supervisors’ ballots would not be opened or counted unless the election was so close that their votes might change its results. If it became clear that only with their votes might the Union gain a majority, the administrative law judge (ALJ) would have to take further evidence and determine whether the Training Supervisors were statutory supervisors before opening and counting their ballots. In a footnote, the Board rejected Allied’s challenge to the 2012 recess appointments.

The Supreme Court’s decision in Noel Canning v. NLRB, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), later invalidated the appointments of two of the three panel members that issued the 2012 order. That holding meant the Board lacked a quorum from January 4, 2012, to August 5, 2013. Thus, in retrospect, the panel acted without authority. On December 3, 2013, however, another Board panel, whose members had all been validly appointed, considered the record in light of Allied’s objections, including those urged on the 2012 panel, and certified Union representation.

Meanwhile, on June 7, 2012, the Union won a tight election. Without the three Training Supervisors’ votes, the employees voted 21-20 in favor of representation. An ALJ then heard an additional day of testimony and accepted post-hearing briefing on whether the Training Supervisors qualified as statutory supervisors. During the hearing, the parties reversed their initial positions to align with their preferences on representation. Allied argued that the Training Supervisors should be considered non-supervisory, so eligible to participate in the election, such that their votes would defeat union representation. The Union argued that the Training Supervisors were statutory supervisors whose votes should be excluded, allowing the Union to be recognized. Accordingly, the Union now bore the burden of proving supervisory status.

The ALJ found that the Training Supervisors “effectively ... recommend” hiring within the meaning of the Act: The Training Supervisors had the authority to make recommendations regarding hiring of probationary employees, the Training Supervisors’ assessments drew on, their own independent judgment, and Allied management routinely adhered to the Training Supervisors’ recommendations without independent investigation. In the ALJ’s judgment, the Training Supervisors were therefore supervisory under the Act.

Allied took exception to the ALJ’s decision, arguing that there was insufficient evidence of supervisory authority and that it was error to classify the Training Supervisors differently from the other petitioned-for employees that the 2012 Board panel had held were non-supervisory. As noted, a duly-constituted three-member Board panel considered the record, including the earlier Board order, in light of Allied’s objections. The Board panel certified the Union as the workers’ representative on December 3, 2013.

Not once during the entire election proceeding did Allied argue that it was subject to the jurisdiction of the RLA rather than the NLRA. In fact, when asked directly by the hearing officer in March 2012 whether the company was subject to RLA jurisdiction, counsel for Allied responded, “Not that I know of. I would have to look into that.” J.A. 141. However, it appears that neither during the ensuing five days of hearings nor during the following two years of proceedings before the Board did Allied “look into” the question or make any mention whatsoever of any objection to the NLRB’s jurisdiction.

B. Unfair Labor Practices Case

On April 22, 2014, the Union charged Allied with refusal to negotiate a collective-bargaining agreement in violation of sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5). Accordingly, the Board’s General Counsel filed an unfair labor practices complaint against Allied. Allied admitted that it refused to bargain, but contended it had no obligation to do so because the Board erred in certifying the unit. The Board’s General Counsel moved for summary judgment and the Board directed Allied to show cause why summary judgment should not be granted. Allied then also asserted, for the first time in the years-long dispute, that Allied is under the direct control of a common carrier, making it an employer subject to RLA jurisdiction and therefore beyond the NLRB’s jurisdiction. It also pressed its constitutional recess-appointment claim and its statutory challenge to the Board’s classification of unit members as non-supervisors. The Board held in the Union’s favor and ordered Allied to bargain.

II. Analysis

A. Allied Has Not Shown that it is Subject to RLA Jurisdiction, so Exempt from the NLRA

We turn first to Allied’s contention that it is not bound by the Board’s orders because it is an RLA employer exempt from the NLRA. The NLRA protects the rights of employees to organize and bargain collectively, see 29 U.S.C. §§ 151,157, but expressly exempts employers “subject to the Railway Labor Act” and “any individual employed by an employer subject to the Railway Labor Act” from its reach, id. §§ 152(2)-(3). RLA employers include rail carriers, common air carriers, and “any company which is directly or indirectly owned or controlled by or under common control with any carrier.” 45 U.S.C. §§ 151 First, 181.

The distinction between coverage under the NLRA and the RLA is significant for employers and employees. Each Act protects employees’ right to join together to improve working conditions and facilitates labor-management relations. But because of the central role in the national economy of smooth operation of the nation’s rail and air carriers, the RLA places a higher priority than the NLRA on avoiding strikes or lockouts. To that end, the RLA requires more extensive dispute-resolution efforts before either employer or employee can take unilateral action. See ABM Onsite Servs.-West, Inc. v. NLRB, 849 F.3d 1137, 1139-40 (D.C. Cir. 2017).

The National Mediation Board (NMB), which administers the RLA, employs a two-part “function and control” test to determine whether an employer that is not itself a carrier is sufficiently controlled by a carrier to be subject to RLA jurisdiction. See Signature Flight Support of Nev., 30 NMB 392, 399 (2003). The conjunctive test asks (1) “whether the nature of the work is that traditionally performed by employees of rail or air carriers,” and (2) “whether the employer is directly or indirectly owned or controlled by, or under common control with a carrier or carriers.” Id. To determine whether an employer is under the control of a rail or air carrier, the NMB traditionally considers six factors:

(1) the extent of the carrier’s control over the manner in which the company conducts its business; (2) the carrier’s access to the company’s operations and records; (3) the carrier’s role in the company’s personnel decisions; (4) the degree of carrier supervision of the company’s employees; (5) whether company employees are held out to the public as carrier employees; and (6) the extent of the carrier’s control over employee training.

ABM Onsite, 849 F.3d at 1142.

The Board and the NMB each has independent authority to decide whether the RLA bars the NLRB’s exercise of jurisdiction. See id. at 1140; United Parcel Serv., Inc. v. NLRB, 92 F.3d 1221, 1224-26 (D.C. Cir. 1996). When presented with a claim of RLA jurisdiction, the Board’s stated practice is to refer the parties to the NMB and dismiss the charge or petition in cases in which it is clear the employer is subject to the RLA; to retain cases in which RLA jurisdiction is clearly lacking; and, because the NMB has particular expertise in administering the RLA, to refer close cases of arguable RLA jurisdiction to the NMB for its advisory opinion before the NLRB itself decides the issue. See NLRB Casehandling Manual, Part 2: Representation Proceedings, § 11711.1-11711.2 (Jan. 2017); ABM Onsite, 849 F.3d at 1140; Fed. Express Corp., 317 N.L.R.B. 1155, 1156 & n.6 (1995). There is, however, “no statutory requirement that the Board first submit a case to the NMB for an opinion prior to determining whether to assert jurisdiction.” Spartan Aviation Indus., Inc., 337 N.L.R.B. 708, 708 (2002); accord United Parcel Serv., 92 F.3d at 1224-26.

The Board rejected Allied’s belatedly-raised claim of RLA jurisdiction because the record evidence did not establish the requisite carrier control. Allied Aviation Serv. Co. of N.J., 362 N.L.R.B. No. 173, 2015 WL 4984885, at *1-2 (Aug. 19, 2015). We hold that the Board’s decision that Allied failed to establish the “control” portion of the “function and control” test is legally correct and supported by substantial evidence. We thus need not decide how the other element — whether Allied’s employees’ work is of a nature traditionally performed by air carrier employees— would apply here.

The lack of record evidence of carrier control is not surprising. Allied missed chances to build a record on the issue by failing to object to NLRB jurisdiction until after the factual record had been developed. As noted above, when prompted by the hearing officer during the 2012 supervisory-status hearing, counsel for Allied failed to embrace or follow up on the suggestion that the company might be an RLA employer. Allied did not mention RLA jurisdiction again until its June 30, 2014, response to the Board’s order to show cause — more than two years after the unit members’ supervisory status had been litigated and the representation election concluded.

Indeed, it is plausibly suggested that Allied’s RLA jurisdiction argument was forfeited because Allied never argued to the Board that it applied the wrong carrier-control analysis. See Local 553 In-tervenor Br. at 4-7. This court may not consider objections not properly raised before the Board, by motion for reconsideration or otherwise, in the absence of “extraordinary circumstances.” 29 U.S.C. § 160(e), see 29 C.F.R. § 102.46(b)(1), (b)(2), (d); Alden Leeds, Inc. v. NLRB, 812 F.3d 159, 166-67 (D.C. Cir. 2016); DHL Express, Inc. v. NLRB, 813 F.3d 365, 371-72 (D.C. Cir. 2016). Even arguments against NLRB jurisdiction are subject to section 10(e)’s preservation requirement unless the Board acted patently beyond its jurisdiction, or “outside the orbit of its authority” such that there is “no order to enforce.” NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 90 L.Ed. 739 (1946); accord Noel Canning v. NLRB, 705 F.3d 490, 498 (D.C. Cir. 2013), aff'd, — U.S. —, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014); Carroll Coll., Inc. v. NLRB, 558 F.3d 568, 574 (D.C. Cir. 2009); Noel Foods v. NLRB, 82 F.3d 1113, 1121 (D.C. Cir. 1996). But we need not decide whether Allied forfeited its bid for the NLRB to dismiss this case in order that it might be reheard before the NMB because the record clearly supports the NLRB’s exercise of jurisdiction.

Allied argues that the Board misapplied precedent by granting too much weight to a single carrier-control factor— the carrier’s role in personnel decisions. Allied does not articulate the applicable standard of review, but its argument amounts to a claim that the Board arbitrarily and capriciously misapplied precedent. See ABM Onsite, 849 F.3d at 1142. We therefore review whether the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We discern no such error here.

Contrary to Allied’s contention, the Board did not rely on only a single factor. The Board’s analysis was more extensive. When evaluating whether Allied was under the direct or indirect control of air carriers, the Board first acknowledged that recent NMB decisions “emphasized in particular the absence of [carrier] control over hiring, firing, and/or discipline.” Allied Aviation Serv. Co. of N.J., 362 N.L.R.B. No. 173, 2015 WL 4984885, at *1. Allied did not argue that any carrier controlled its personnel decisions, nor, in the Board’s view, did the record contain evidence to support such a claim. Id. at *2. The Board also specifically observed that the record evidence fell “substantially short of the considerations relied upon” in dissents written by Member Geale in two separate cases: Airway Cleaners, LLC, 41 NMB 262 (2014), and Menzies Aviation, Inc., 42 NMB 1 (2014). See 362 N.L.R.B. No. 173, 2015 WL 4984885, at *2. Those considerations include all six factors relevant to carrier control. See Airway Cleaners, 41 NMB at 267, 274-77 (Geale, M., concurring in part and dissenting in part) (concluding that there was carrier control in view of evidence relating to “several factors, including the extent of the carrier’s control over the manner in which the company conducts its business, access to the company’s operations and records, role in personnel decisions, degree of supervision of the company’s employees, whether employees are held out to the public as carrier employees, and control over employee training”); Menzies Aviation, Inc., 42 NMB at 7-8 (Geale, M., dissenting) (applying his Airway Cleaners analysis to similar facts). By contrasting the evidence in this case to the treatment in Member Geale’s dissents, the Board acknowledged the relevance of all of the factors and concluded that Allied’s evidence fell short even under the traditional six-factor test. The Board’s decision was not an arbitrary or capricious misapplication of precedent, but adequately considered and weighed all the evidence before it that was relevant to carrier control.

The Board’s decision is therefore distinguishable from the one we recently considered in ABM Onsite. There, we held that the Board had departed from past precedent by effectively treating control over personnel decisions as “necessary” to establish carrier control. ABM Onsite, 849 F.3d at 1144. We concluded that if the Board had applied the traditional six-factor test, the petitioner “would plainly fall under the control of air carriers.” Id. at 1143.

In contrast, the record in this case confirms that the Board’s factual findings regarding carrier control were supported by substantial evidence. See 29 U.S.C. § 160(f). Allied presented no evidence that it was under contract with any common carrier, nor did it identify any case in which an employer without a carrier contract was subject to RLA jurisdiction. Instead, the only contract the record refers to — fleetingly—is Allied’s “performance driven” contract with the Port Authority. J.A. 56, 234. The Port Authority is not a carrier for RLA purposes. See Bombardier Transit Sys. Corp., 32 NMB 131, 146 (2005). We need not here decide whether an employer must contract directly with a carrier to be subject to RLA jurisdiction, but we note that the lack of such a contract here undermines an already sparse record on the carrier-control issue.

Allied presented no evidence that the carriers at Newark Airport hold out Allied employees to the public as their own employees, exercise control over how Allied runs its operations, supervise Allied employees to a degree sufficient to establish control, or exert meaningful control over Allied’s personnel decisions. Cf. Aircraft Servs. Int’l Grp., Inc., 33 NMB 258, 266-67, 270-71 (2006) (finding RLA jurisdiction where record showed carrier had “daily interaction” with employees at issue, including mechanics who “deal exclusively with Carrier personnel in performing their duties”); Empire Aero Ctr., Inc., 33 NMB 3, 10 (2005) (finding RLA jurisdiction where, inter alia, carrier individually approved or rejected each employee assigned to its projects). Allied argues that its supervisory staffing decisions are subject to review and approval by a fueling committee “made up of representatives of every common air carrier operating out of Newark” Airport. Pet’r Br. at 26-27. But the record is devoid of evidence of the composition of the fueling committee, whether it contains any, let alone a controlling bloc of, common air carrier representatives, or the extent of any authority the fueling committee may have to control Allied’s staffing decisions. Cf. Aircraft Servs. Int’l, Inc., 352 N.L.R.B. 137, 139 (2008) (finding substantial carrier control over staffing levels and hours worked); Aircraft Servs. Int’l Grp, Inc., 342 N.L.R.B. 977, 977 (2004) (finding carrier control where employer complied with carrier request not to hire certain persons and carriers directly rewarded good employee service).

B. Allied’s Noel Canning Challenge Fails

Allied next contends that Noel Canning v. NLRB, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), by invalidating the appointments of two of the three panel members that directed the election in 2012, id. at 2578, vitiates all Board proceedings against it. See Pet’r Br. at 33-34. We disagree and hold that when the duly-constituted panel certified Union representation in 2013 it ratified the 2012 panel’s direction of election, thereby remedying the identified defect. The 2013 Board panel certified the Union as representative after considering the record and all of Allied’s exceptions to certification, including the arguments Allied raised before the 2012 panel. See Decision and Certification of Representative, 22-RC-077044 (Dec. 3, 2013), J.A. 1358-60; see also Employer’s Exceptions to Administrative Law Judge Recommended Decision on Challenged Ballots at 30-32, 22-RC-077044 (Feb. 12, 2013), J.A. 1345-47. That ratification remedied the Appointments Clause defect in the 2012 Board panel’s order. Cf. ManorCare of Kingston PA, LLC v. NLRB, 823 F.3d 81, 90 (D.C. Cir. 2016); Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 212-14 (D.C. Cir. 1998).

C. The Board’s Statutory Supervisor Decisions are Supported by Substantial Evidence

Finally, we address two attacks mounted by Allied against the Board’s statutory supervisor classifications. First, Allied contends that the Board erred in classifying all the unit members as non-supervisory under the NLRA. Allied alternatively argues that all “Supervisors” have substantially similar job responsibilities such that, if the other employees deemed eligible to be members of the certified unit are not supervisory, neither are the Training Supervisors.

As the party asserting during the first hearing that the employees were supervisory, Allied bore the burden of proof. Ky. River Cmty. Care, Inc., 532 U.S. at 711-12, 121 S.Ct. 1861. We must sustain the Board’s decision that Allied failed to carry that burden unless it is “contrary to law, inadequately reasoned, or unsupported by substantial evidence.” Brusco Tug & Barge Co. v. NLRB, 247 F.3d 273, 276 (D.C. Cir. 2001) (citation omitted). Given the Board’s expertise, it enjoys a large measure of discretion on the question. Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 988 (D.C. Cir. 2001). The Board’s findings of fact are conclusive so long as they are “supported by substantial evidence on the record considered as a whole.” See 29 U.S.C. § 160(f). “Put differently, we must decide whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 US. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998).

Allied principally argues that the unit members are statutory supervisors because they exercise disciplining authority over other employees. See Pet’r Br. at 37-38. Having a role as witnesses, or reporters of fact, within a disciplinary process is legally insufficient to establish the effective exercise of disciplinary authority. See Nathan Katz Realty, 251 F.3d at 989; Ill. Veterans Home at Anna L.P., 323 N.L.R.B. 890, 890-91 (1997). Allied’s record evidence shows only that the unit members file “reportorial” forms recounting employee misconduct, which are then taken into account by higher-ups who make the disciplinary decisions. In particular, the evidence showed that, under Allied’s disciplinary system, unit members can “write up” employees via “irregularity reports,” but the reports do not amount to discipline. See, e.g., J.A. 151-52, 688-89. Unit members give their irregularity reports to Jorge Quintero, Allied’s discipline adjudicator. See J.A. 90-93.

The unit member who files a given report plays a role in substantiating conduct on which discipline might be based, but is “never involved in the ultimate [disciplinary] decision.” See J.A. 93; see also J.A. 91-93, 299-300, 1027. Unit members have the prerogative to counsel employees verbally in lieu of writing irregularity reports. See J.A. 356, 400. But neither the discretion to forgo a written report nor the authority to write one suffices to establish independent disciplinary authority on unit members’ part. In sum, the record evidence that unit members have the authority as fact witnesses and colleagues to affect the “possibility of discipline” is “not enough to show supervisory status.” Jochims, 480 F.3d at 1170.

Allied next argues that unit members are supervisors because they direct and are responsible for the performance of hourly personnel. See Pet’r Br. at 38-39. Instead of shouldering its burden to prove supervisory status, Allied merely points to the paucity of evidence of TCcmsupervision. See id. at 39. In fact, what relevant evidence there is fails to show that unit members act as supervisors. For example, General Manager Rory McCormack testified that unit members are held accountable for employees’ work, but when pressed for details he testified that a unit member would not be held accountable for an employee’s mistake; rather the unit member would be held accountable for failing to properly complete his own paperwork. J.A. 166-67. Fueling Supervisor Louis Fiorenti-no testified that, after a fueler mistakenly overfueled an aircraft on Fiorentino’s watch, the fueler, not Fiorentino, was written up because it was the fueler’s mistake. J.A. 363-64. Fueling Supervisor Robert Muzikevicius and Maintenance Supervisor Michael Fenton both testified about being written up for their own, not others’, mistakes. J.A. 302, 650.

Against the backdrop of the Board’s decision, that Fueling Supervisors, Tank Farm Supervisors, and Maintenance Supervisors are not statutory supervisors, and so lawfully encompassed within the bargaining unit, Alied also challenges the classification of the three Training Supervisors as statutory supervisors excluded from that unit. We reject Alied’s challenge in view of the ample evidence that Training Supervisors are in a separate category from those other “Supervisors” because the Training Supervisors “possess, at the least, the authority to recommend that probationary employees be retained for employment; that these recommendations are routinely followed without independent investigation by others and that such recommendations require the use of independent judgment.” Recommended Decision on Challenged Ballots at 16, 22-RC-077044 (Jan. 15, 2013), J.A. 1315.

Training Manager Frank Abanese’s testimony supports the finding that Fuel Training Supervisors’ recommendations, “without independent investigation by superiors,” determine the fate of fueling trainers at Newark. DirecTV U.S., 357 N.L.R.B. 1747, 1749 (2011). The record showed that Abánese places dispositive reliance on the advice of Training Supervisors whether to terminate or retain trainees. J.A. 812-13, 853. In the preceding five years, he “cut” six employees from fueling jobs based solely on recommendations from Training Supervisors without independently investigating the merits of the suggestions. J.A. 1170-1172,1185.

Not every Training Supervisor testified that he called for termination in so many words, but that does not defeat the Board’s finding! Training Supervisor Tommy Skvasik testified that he did not make termination decisions. But Skvasik also testified that Training Manager Abánese relied on Skvasik to tell him whether an employee-in-training could adequately perform the duties of a fueler, and that Abá-nese did not make his own inquiry. J.A. 1212-13, 1222. Abánese corroborated the point. See J.A. 1168, 1171. Training Supervisor Samuel Harris testified that he never recommended that someone be terminated and he never informed Abánese that a trainee was unable to learn' the fueling process. J.A. 1244. But Harris also testified that he spent approximately ninety per cent of his time recertifying employees already on the job. J.A. 1246. He was therefore less likely to encounter trainees who had failed to learn fueling techniques. Neither Skvasik nor Harris’s testimony undermines Abanese’s account of Training Supervisors’ authority over retention and firing decisions. See Recommended Decision on Challenged Ballots at 15-16, J.A. 1314-15. “[I]n a given situation, the failure to exercise supervisory authority may indicate only that circumstances have not warranted such exercise.” Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 960, 963 (D.C. Cir. 1999).

Finally, Quintero testified that he, not Abánese, makes final termination decisions, potentially undermining the claim that Training Supervisors’ recommendations to Abánese are determinative. J.A. 1290. But Quintero also testified to the direct link between a Training Supervisor’s judgment that a trainee was having issues and that trainee’s termination or transfer to a different position:

[T]he training supervisor tells the training manager [ie. Albanese] the issues .... [T]he training manager will then come to me, we’ll discuss it.... [W]e may be able to put him in utility or in another area.... [I]f he’s not able to be a fueler, for example, we might be able to give him a job as [a] utility person.... If we can’t do that, then I will sit down with the general manager and we will discuss it.

J.A. 1289-90. The record shows that, no matter which higher-up ultimately acts on it and .makes specific reassignment decisions, a Training Supervisor’s determination that a trainee cannot perform the fueling functions leads either to reassignment or termination.

During the post-election hearings on the Training Supervisors’ status, the Union, as the party asserting supervisory status, carried the burden of proof. Ky. River Cmty. Care, Inc., 532 U.S. at 711-12, 121 S.Ct. 1861. The Union met that burden by showing a “direct link” between the Training Supervisor’s assessment “and the Employer’s decision to retain, continue training, transfer or discharge a probationary employee.” See Recommended Decision on Challenged Ballots at 13, J.A. 1312. Substantial evidence thus supports the ALJ’s conclusion, adopted by the Board, that the Training Supervisors were statutory supervisors ineligible to participate in the representation election for the Union.

⅜ * *

For the foregoing reasons, we deny Allied’s petition for review and grant the Board’s cross-application for enforcement.

So ordered.