author: GILMAN, Circuit Judge:

text:
    Terry D. DIXON, Petitioner-Appellant, v. Renee BAKER, Warden; Nevada Attorney General, Respondents-Appellees.
    No. 14-16644
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 18, 2016, San Francisco, California
    Filed February 2, 2017

      Ryan Norwood (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada, for Petitioner-Appellant.
    Karen A. Whelan (argued), Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.
    Before: ALEX KOZINSKI, RONALD LEE GILMAN, and MICHELLE T. FRIEDLAND, Circuit Judges.

       The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

   OPINION

GILMAN, Circuit Judge:

Terry Dixon is serving a sentence of life imprisonment without the possibility of parole for attempted murders committed while Dixon was under the influence of drugs and alcohol. After both his direct appeal and his pro se state postconviction proceedings proved unsuccessful, Dixon timely filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Nevada. His petition alleged, among other things, the ineffective assistance of trial counsel for failure to raise a voluntary-intoxication defense and for failure to object to a prejudicial photograph of Dixon presented during the state’s opening statement at trial.

In July 2014, the district court dismissed the petition on the ground that it contained claims that were never presented to the state courts, and denied Dixon’s motion to stay the proceedings on the ground that Dixon had not shown good cause for his failure to exhaust those claims, even though Dixon had pointed out that he lacked counsel in the state post-conviction proceedings. In its order, the court asserted that “[i]f and when [Dixon] exhausts his state court remedies, he may file a new habeas petition in a new action.” The one-year statute of limitations to file such a petition, however, had already expired in September 2013.

For the reasons set forth below, we reverse the judgment of the district court and remand with instructions that it enter a stay while Dixon pursues his unexhaust-ed claims in state court.

I.

Following guilty verdicts on charges of attempted murder, Dixon was sentenced in March 2009 to four consecutive terms of life imprisonment without the possibility of parole. The charges arose from an incident in October 2007 when Dixon, who was then under the influence of crack cocaine, methamphetamine, marijuana, and a pint of vodka, engaged in a gunfight with the police. The state charged Dixon with, and a jury later convicted him of, the attempted murder of four police officers. Dixon’s convictions and sentence were affirmed by the Nevada Supreme Court in March 2011. As a consequence, Dixon’s conviction became final for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) when the time expired to file a petition for a writ of certiorari with the United States Supreme Court in June 2011. 28 U.S.C. § 2244(d)(1)(A); Sup. Ct. R. 13.

Dixon timely filed a pro se state post-conviction petition in February 2012 alleging the ineffectiveness of his trial counsel. He argued that his counsel was ineffective for, among other reasons, failing to seek a pretrial writ concerning the sufficiency of the evidence, failing to obtain exculpatory evidence concerning the location where Dixon was standing in his house during the shootout, and failing to conduct an adequate pretrial investigation. The Nevada Supreme Court denied Dixon’s petition in April 2013, entering a final judgment to that effect in May 2013.

Dixon timely filed his habeas petition in the United States District Court for the District of Nevada that same month. The petition contained a series of claims concerning the alleged ineffectiveness of Dixon’s trial counsel, nearly all of which had been raised, and thereby exhausted, in Dixon’s state post-conviction case. But in September 2013, before the state answered, Dixon sought leave to amend his petition to include a series of claims that he conceded had not been previously raised in his state post-conviction proceedings, and consequently were unexhausted. Those claims charged that Dixon’s trial counsel failed to raise the defense of voluntary intoxication and object to a PowerPoint presentation that depicted Dixon with the word “GUILTY” superimposed over his image. As to each unexhausted claim, Dixon explained in his petition that he had failed to raise the claim in his state post-conviction proceedings because he had lacked the assistance of counsel.

Dixon then moved to hold his habeas petition in abeyance pending the resolution of the unexhausted claims in state court. The state opposed both the motion to amend and the motion to stay the habeas proceedings. During the pendency of this case in the district court, Dixon also twice sought the appointment of counsel. In both instances his motions were opposed by the state and denied by the district court.

In a July 2014 order, the district court granted Dixon’s motion to amend but then dismissed the case “for failure to exhaust claims in the amended petition.” The court also denied Dixon’s motion to stay the case pending the resolution of his unexhausted claims in state court on the ground that Dixon “has not shown good cause for his failure to exhaust his claims in state court prior to initiating federal habeas proceedings.” Finally, the July 2014 order provided that “[i]f and when [Dixon] exhausts his state court remedies, he may file a new habeas petition in a new action.” Absent equitable tolling, however, such a petition would be time-barred because the AEDPA statute of limitations had already expired roughly 10 months before the date of the order. See 28 U.S.C. § 2244(d)(1).

This court granted a certificate of ap-pealability and appointed counsel. Dixon’s timely appeal followed.

II.

A. Standard of review

We review de novo an order dismissing a petition for a writ of habeas corpus based on a failure to exhaust state-court remedies. Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2010). The denial of a stay and abeyance, on the other hand, is reviewed under the abuse-of-discretion standard. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014).

B. Dismissal of the petition

A prisoner in state custody may seek to remedy a violation of his federal constitutional rights by petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254. But before such a petition may be heard, the petitioner must “seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.” Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The exhaustion doctrine reflects “the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and ... recogni[zes] ... the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.” Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886). Adhering to this doctrine thus “protects the state courts’ role in .the enforcement of federal law and prevents disruption of state judicial proceedings.” Lundy, 455 U.S. at 518, 102 S.Ct. 1198.

In 1982, the Supreme Court held that “a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.” Id. at 522, 102 S.Ct. 1198. Such a petition is typically called a “mixed petition.” Id. at 510, 102 S.Ct. 1198. The “total exhaustion rule” announced in Lun-dy was deemed appropriate at that time because it carried out the exhaustion doctrine’s goal of promoting comity between state and federal courts and “d[id] not unreasonably impair the prisoner’s right to relief.” Id. at 522, 102 S.Ct. 1198.

The second consideration — that a rule of total exhaustion would not impair a federal petitioner’s ability to obtain federal collateral review — was predicated on the fact that, when Lundy was decided, “there was no statute of limitations on the filing of federal habeas corpus petitions.” Rhines v. Weber, 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). This meant that dismissing a mixed petition on exhaustion grounds did not preclude a prisoner from refiling his petition. See Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (observing that a Lun-dy dismissal “contemplated that the prisoner could return to federal court after the requisite exhaustion”).

All of this changed when Congress enacted AEDPA in 1996. AEDPA instituted a one-year statute of limitations for federal habeas corpus petitions, 28 U.S.C. § 2244(d)(1), and also codified the Lundy total-exhaustion requirement, id. § 2254(b)(1). Although the filing of a state post-conviction petition will toll the statute of limitations, id. § 2244(d)(2), the filing of a federal petition does not, Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). This means that if a petitioner’s mixed petition is dismissed pursuant to Lundy, he risks having his federal claims barred by AEDPA’s statute of limitations when he seeks relief in a subsequently filed, fully exhausted petition.

Recognizing that this outcome potentially ran afoul of Lundy’s premise that the total-exhaustion rule not “unreasonably impair the prisoner’s right to relief,” Lundy, 455 U.S. at 522, 102 S.Ct. 1198, the Supreme Court in 2005 approved two means of ensuring that a federal petitioner would have his federal claims heard even if his petition was mixed. The first method is to stay the case and hold it in abeyance pending exhaustion in state court of the petitioner’s unexhausted claims. Rhines, 544 U.S. at 275-76, 125 S.Ct. 1528. Alternatively, if a stay is deemed inappropriate, the district court must “allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner’s right to obtain federal relief.” Id. at 278, 125 S.Ct. 1528.

With respect to the second method approved by Rhines, we have repeatedly warned the district courts that they “may not dismiss a mixed petition without giving the petitioner the opportunity to delete the unexhausted claims.” Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002); accord Jefferson v. Budge, 419 F.3d 1013, 1016-17 (9th Cir. 2005); Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001), overruled on other grounds by Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004); Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). This warning is compelled by the fact that, unless either a stay of the habeas proceedings or leave to delete the unexhausted claims is granted, a federal habeas petitioner will lose the opportunity to have his properly exhausted federal claims heard in federal court simply because they were submitted in a mixed petition. Neither the Supreme Court in Lundy nor Congress in enacting AEDPA intended this outcome. Rhines, 544 U.S. at 275-79, 125 S.Ct. 1528; see also Anthony, 236 F.3d at 574.

The court below had before it an amended habeas petition that expressly documented which claims were exhausted and which were not. According to the state, however, the district court’s order dismissing that petition is not clear as to whether the court’s reason for dismissal was that it considered the claims entirely unexhausted or only partly exhausted. A comparison of the Nevada Supreme Court’s decision denying Dixon’s state post-conviction claims with his federal habeas petition reveals that a substantial number of Dixon’s claims were in fact exhausted.

Because Dixon’s petition was only partially unexhausted, Dixon should have been allowed to delete the unexhausted claims and proceed on the exhausted claims if his motion to stay and abey the case were denied. See Rhines, 544 U.S. at 278, 125 S.Ct. 1528 (citing Lundy, 455 U.S. at 520, 102 S.Ct. 1198 (plurality opinion of O’Con-nor, J.) (“A total exhaustion rule will not impair that interest [the petitioner’s interest in obtaining speedy federal relief] since he can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims.”)). We do not remand the case to allow Dixon the option of deleting his unexhausted claims, however, because the district court should have granted his request to stay his case.

C. Denial of the motion to stay

A stay and abeyance is appropriate when the petitioner demonstrates “good cause” for his failure to exhaust his claims in state court, where his claims are not plainly meritless, and where he has not engaged in “abusive litigation tactics.” Rhines, 544 U.S. at 278, 125 S.Ct. 1528. In this case, the state concedes that Dixon has not engaged in abusive litigation tactics, but it contends that the district court did not abuse its discretion in denying Dixon’s motion to stay because Dixon failed to establish good cause for his failure to exhaust and because his unexhaust-ed claims lack any plausible merit. We hold that Dixon established good cause and that his unexhausted claims were not plainly meritless.

1. Dixon has established good cause because he was not represented by counsel in his state postconviction proceeding

The caselaw concerning what constitutes “good cause” under Rhines has not been developed in great detail. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good cause to excuse a petitioner’s failure to exhaust.”). The Supreme Court has addressed the issue only once, when it noted that a “petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (citing Rhines, 544 U.S. at 278, 125 S.Ct. 1528). Other circuits have found good cause when, for example, the prosecution has wrongfully withheld information. Jalowiec v. Bradshaw, 657 F.3d 293, 304-05 (6th Cir. 2011). We have held that good cause under Rhines does not require a showing of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005), but that a petitioner must do more than simply assert that he was “under the impression” that his claim was exhausted, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).

We do know, however, that a petitioner has been found to demonstrate “good cause” where he meets the good-cause standard announced in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012). Blake, 745 F.3d at 983-84. Martinez carved out an exception to the general rule, stated in Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), that “ignorance or inadvertence” on the part of a petitioner’s post-conviction counsel does not constitute cause to excuse a procedural default of a claim. Specifically, the Martinez Court concluded that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez, 132 S.Ct. at 1320 (emphasis added).

In Blake, we concluded that the ineffective assistance of post-conviction counsel could constitute good cause for a Rhines stay, provided that the petitioner’s assertion of good cause “was not a bare allegation of state postconviction [ineffective assistance of counsel], but a concrete and reasonable excuse, supported by evidence.” Blake, 745 F.3d at 983. The court further observed that “good cause under Rhines, when based on [ineffective assistance of counsel], cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default.” Id. at 983-84. We emphasized, in response to the idea that ineffective assistance of post-conviction counsel could always be raised, that Rhines’s requirement that claims not be plainly meritless and that the petitioner not engage in dilatory litigation tactics “are designed ... to ensure that the Rhines stay and abeyance is not ... available in virtually every case,” id. at 982 (internal quotation marks omitted).

Dixon was without counsel in his state post-conviction .proceedings. During the pendency of his federal habeas proceedings, Dixon repeatedly asserted this fact. He then incorporated by reference all previous filings in which he had asserted his lack of state post-conviction counsel in support of his motion to stay the case under Rhines. Based on the plain language of Blake — that good cause under Rhines “cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default,” id. at 983-84 — the statement that “there was no counsel” in Dixon’s state post-conviction case is sufficient to establish good cause. See Martinez, 132 S.Ct. at 1320.

Despite Blake’s clear language, the state contends that Dixon may not rely upon Blake to demonstrate good cause because he did not marshal the same kind of evidence that was in the record in Blake. The petitioner in Blake, who was represented by counsel in his state post-conviction proceedings, proffered evidence in his federal habeas petition that his post-conviction counsel was ineffective for failing to exhaust Blake’s claim that his trial counsel was ineffective. Id. at 982-83. The state argues that, because Dixon has not put forward substantially similar evidence, he has not demonstrated good cause.

We find the state’s argument unpersuasive. Where a petitioner was represented by state post-conviction counsel and must establish, in his federal habeas proceedings, that counsel’s ineffectiveness for failure to exhaust, the petitioner must do more than simply make “a bald assertion” of ineffectiveness. Id. at 982. If the petitioner was without state post-conviction counsel entirely, however, the only evidence available concerning good cause would, as in this case, be the easily proven assertion that the petitioner was without counsel in those proceedings. A petitioner cannot have had effective assistance of counsel if he had no counsel at all. Requiring Dixon to come forward with additional evidence over and above the fact that he lacked counsel, as the state is arguing, is inconsistent with this court’s previous decision in Blake and the Supreme Court’s decision in Martinez.

A petitioner who is without counsel in state postconviction proceedings cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious claim simply because he lacked counsel. Such a denial strikes us as unwarranted when even a petitioner who did have counsel in his state post-conviction proceedings has a path to a stay under Rhines if he alleges a plausible claim that his post-conviction counsel was ineffective. Id. at 983-84.-

We recognize, of course, that many state post-conviction proceedings are conducted pro se. For this group of federal habeas petitioners, the first element of the Rhines test can easily be established to the extent that they were without counsel. But the other two elements of the test — claim plausibility and the absence of abusive tactics — will weed out plainly meritless claims and will help ensure that a dilatory litigant’s failure to exhaust his claims in state court will not be condoned. See Rhines, 544 U.S. at 278, 125 S.Ct. 1528.

Furthermore, habeas petitioners who can avoid a procedural default under Martinez are at least permitted to have the merits of their exhausted claims reached. In contrast, a petitioner who is excused only for a failure to exhaust under Rhines might not have the merits of his claim adjudicated even after he is given leave to exhaust the claim in state court due to the operation of another procedural bar that the state might raise. See, e.g., Hertz & Liebman, 2 Federal Habeas Corpus Practice & Procedure § 23.1 (6th ed. 2011) (noting that, in contrast to the exhaustion doctrine, which “never wholly forecloses, but only postpones, federal relief,” “[i]f a [procedural] default occurs, if the state asserts it as a defense to habeas corpus relief, and if none of the exceptions to the procedural default rule apply, then federal court relief is foreclosed” (emphasis in original)). To have a procedural default excused is therefore of greater consequence for a habeas petitioner than to have a failure to exhaust excused. The standard for excusing a failure to exhaust should therefore not be any more demanding than the standard for excusing a procedural default. With these observations in mind, we now turn to the second factor of the Rhines test.

2. At least one of Dixon’s claims is not “plainly meritless”

A federal habeas petitioner must establish that at least one of his unexhausted claims is not “plainly merit-less” in order to obtain a stay under Rhines. 544 U.S. at 277, 125 S.Ct. 1528. In determining whether a claim is “plainly meritless,” principles of comity and federalism demand that the federal court refrain from ruling on the merits of the claim unless “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). “A contrary rule would deprive state courts of the opportunity to address a colorable federal claim in the first instance and grant relief if they believe it is warranted.” Id. (citing Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)).

At least one of Dixon’s unex-hausted claims appears on its face to not be “plainly meritless.” During the prosecution’s opening statement at Dixon’s trial, the state projected before the jury Dixon’s booking photograph with the word “GUILTY” written across it. Dixon’s counsel did not object. In a later case, the Nevada Supreme Court recognized that this exact practice “undermined the presumption of innocence, ... which is a basic component of ‘the fair trial’ guaranteed by the Fourteenth Amendment.” Watters v. State, 313 P.3d 243, 248 (Nev. 2013) (quoting Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)) (reversing the defendant’s conviction on that ground) (alterations omitted). An - attorney’s failure to raise a state-law objection at trial — or the likely success of a direct appeal on the same basis — may support a claim for ineffective assistance of counsel in a later federal habeas petition. See Carrera v. Ayers, 699 F.3d 1104, 1107-09 (9th Cir. 2012) (en banc).

Watters does not conclusively establish that Dixon’s ineffective-assistance-of-counsel claim has merit because, on remand, Dixon must go beyond showing that his claim is not “plainly meritless”; he must prove that he was prejudiced by his trial counsel’s deficient performance in order to prevail on a claim for the ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But Watters does preclude a ruling that Dixon’s claim is “plainly meritless” for the purposes of Rhines.

In sum, Dixon has established “good cause” for his failure to exhaust, and we have concluded that at least one of his unexhausted claims is not “plainly merit-less.” The state, moreover, concedes that he has not engaged in “intentionally dilatory litigation tactics.” See Rhines, 544 U.S. at 278, 125 S.Ct. 1528; R. 67. Rhines therefore compels the conclusion that the district court should have granted Dixon’s motion to stay his federal habeas case while he exhausts his potentially meritorious claims. See id. at 277-78, 125 S.Ct. 1528.

III.

For all of the reasons set forth above, we reverse the judgment of the district court and remand the ease with instructions to grant Dixon’s motion for a stay and abeyance with reasonable time limits while he pursues his unexhausted claims in state court.

REVERSED and REMANDED.


source: Caselaw Access Project

author: ' KAREN LeCRAFT HENDERSON, Circuit Judge: KAREN LeCRAFT HENDERSON, Circuit Judge, ROGERS, Circuit Judge,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TITO CONTRACTORS, INC., Respondent.
    No. 15-1217
    Consolidated with 15-1226
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 11, 2016
    Decided February 3, 2017

      Jonathan W. Greenbaum, Washington, DC, argued the cause and was on brief for Tito Contractors, Inc.
    Michael Ellement, Attorney, National Labor Relations Board, argued the cause for the National Labor Relations Board. Richard Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney, were with him on brief.
    Before: HENDERSON and ROGERS, Circuit Judges, and GINSBURG, Senior Circuit Judge.
   Concurring opinion filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge ROGERS.

' KAREN LeCRAFT HENDERSON, Circuit Judge:

Tito Contractors, Inc. (Tito) is a Washington, D.C.-based general contracting company. As it turns out, that label covers a diverse set of services, ranging from masonry to snow removal and recycling services. This case involves the question of what bargaining unit is appropriate when so varied a workforce seeks union representation. The National Labor Relations Board (NLRB or Board) concluded that Tito’s employees should be included in a “wall-to-wall” bargaining unit. We believe that the Board failed to consider evidence pointing to the absence of the required “community of interest” among them. We therefore grant Tito’s petition for review, deny the NLRB’s application for enforcement and remand to the Board for further proceedings consistent with this opinion.

I. BACKGROUND

In November 2013, the International Union of Painters and Allied Trades, District Council 51, AFL-CIO (Union) filed a representation petition with the NLRB. The Union sought to represent “[a]ll employees employed by [Tito], excluding all project managers, recycling supervisors, clerical employees, managerial employees, professional employees, guards, and supervisors as defined by the [National Labor Relations] Act” (Act). Joint Appendix (JA) 116. The following month, an NLRB hearing officer (HO) held a hearing on the Union’s petition. Tito raised two objections: first, that the proposed bargaining unit was inappropriate because its members did not share a sufficient “community of interest” and, second, certain employees should be excluded from the bargaining unit because they were supervisors within the meaning of the Act. We focus on the first of the challenges. Considering that challenge, the HO advised Tito that a “wall-to-wall unit of all employees employed by the [e]mployer involves a presumption ... of appropriateness under Board law[.]” Id. at 15. She informed Tito that it was therefore “required to present an offer of proof that the unit sought is inappropriate.” Id. Tito objected to the offer-of-proof procedure, arguing that it instead had the right to present testimony and other evidence on the issue of unit appropriateness.

Notwithstanding its objection, Tito made an offer of proof, describing its business at some length. It divided Tito’s operations into two halves: the “labor or contract side of the business” and the recycling side. Id. at 23. Tito further divided the labor side into three groups of employees: two mechanics, one warehouse employee and multiple laborers. Regarding the first, Tito explained that it employed two mechanics who worked full-time in its Georgia Avenue office in the District of Columbia (District). The two performed routine maintenance on Tito vehicles but performed no work for Tito customers. Both mechanics “receive[d] benefits and vacation.” Id. at 20. Second, Tito explained that its one warehouse employee worked full-time in Kensington, MD. There, he coordinated and received deliveries and organized the Tito warehouse. He was the only employee there and performed no contracting services. Third, Tito laborers worked in crews, performing a variety of tasks for its customers. Some laborers worked as painters, others as skilled masons and others as tile installers and carpenters. Some crews were assigned to “more permanent contracts^]” id. at 22, of which Tito provided a few examples. For example, four employees worked under Tito’s contract with Arlington County, VA. The four reported to Arlington County’s maintenance office each morning and complied with the “task orders” they received there. The tasks ranged from repairs to construction to snow removal. Arlington County controlled the Tito laborers’ working hours and could request that they be removed from or remain on the job site. In addition, Tito had contracts with Baltimore, MD, and Fairfax County, VA, which contracts set forth specific work hours and standards for how Tito laborers were to complete their work.

Tito also offered proof of the recycling side of its business. It had three separate recycling contracts with Maryland Environmental Services (MES) under which nearly sixty Tito employees worked at several recycling facilities in Maryland. The first contract covered two locations in Montgomery County, MD: a compost facility in Dickerson and a transfer station in Derwood. Tito employees at the Dickerson location performed such tasks as bagging compost, stacking bags, wrapping pallets, monitoring temperatures and grounds-keeping. The Derwood employees’ duties, in contrast, included traffic control, equipment cleaning, groundskeeping and temperature monitoring. Under this contract, MES exercised considerable control of the Tito employees. For example, MES determined the number of employees needed and their hours, established their minimum pay rate, approved or denied overtime and “provide[d] that employees at these two facilities ... be offered ... [,] if ... eligible ... [,] medical and dental insurance.” Id. at 25-26.

The second contract covered a different Derwood facility. At this facility, twenty-five Tito employees and one Tito supervisor sorted recyclables on a conveyor belt. .They also performed minor custodial duties. Like the first, their contract included a minimum pay rate and provision for medical and dental insurance. In addition, Tito employees generally worked a ten-hour shift each day Monday through Thursday, with a half-hour unpaid lunch break and relief breaks as approved by an MES supervisor.

The third MES contract covered a recycling facility in Cockeysville, MD. The contract required both skilled and unskilled labor, including provision of recycling services. Like the other MES contracts, the Cockeysville contract set a minimum pay rate. Tito employees working in Cockeys-ville were paid less than their counterparts in Dickerson and Derwood and they were not eligible for benefits.

After Tito completed its offer of proof, the HO went off the record for seven minutes. Once back on the record, she announced that “[a]fter consulting with the [rjegional management, [she] receive[d] [Tito’s] officer of proof’ but declared that “the evidence proffered [was] rejected” and that she did not intend to “permit testimony on [the bargaining-unit] issue.” Id. at 29. Tito objected, arguing that section 9 of the Act affords an employer a “hearing on issues subject to the petition.” Id. The HO noted Tito’s objection but instructed it to present its first witness on the supervisor issue only.

During the hearing, two Tito witnesses testified — a Tito general manager and a Tito supervisor — on the supervisor issue. After their testimony concluded, Tito renewed its objection to the offer-of-proof procedure. It argued, in part:

Section 9(c)(1) of the Act affords the [e]mployer the opportunity to present evidence and witnesses for a full hearing on the representation petition. In this case, the Regional Director took an offer of proof. Within a couple of minutes of providing that offer of proof, the Regional Director made a decision without a transcript and literally within a couple of minutes [made] a determination that the Employer would have to rest on the record on that issue with an offer of proof without the availability of presenting witnesses and evidence.

Id. at 108.

Eleven days after the hearing, and after only Tito filed a post-hearing brief, the Board’s Acting Regional Director issued a Decision and Direction of Election. In it, he concluded that the HO properly exercised her discretion in following the offer-of-proof procedure. Importantly, he acknowledged that “[t]here [was] no evidence of any interchange between the recycling employees, or between the recycling employees and any other classification of employee.” Id. at 120. But he also noted that Tito had not proposed an alternative bargaining unit. He then concluded Tito had not overcome the “presumption” that an employer-wide unit was appropriate. Tito thereafter sought Board review. In the meantime, a mail-ballot election was held between February 28, 2014 and March 14, 2014.

On November 17, 2014, the Board rejected Tito’s unit-appropriateness petition, stating that “[t]he Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election is denied as it raises no substantial issues warranting review” and that “[t]he Employer’s request to reopen the record is denied.” Id. at 162. The Board also included the following footnote:

In denying review, we agree with the Acting Regional Director that the Employer has not overcome the presumptive appropriateness of the unit sought by the Petitioner. The petitioned-for employees work for the same employer in facilities located in a common geographical region and perform skilled and unskilled physical work. There is some evidence that the warehouse employee sometimes assists with other Employer projects besides the warehouse and coordinates shipments and deliveries with other employees. Further, there is no evidence of collective bargaining in smaller units and no party seeks to represent any of the employees in a smaller unit. Finally, the Employer has not proposed any alternative units. Member Miscimarra would grant review and evaluate the record evidence regarding the appropriateness of the petitioned-for unit.

Id.

Shortly thereafter, the ballots were counted and the Union prevailed. Tito lodged three objections to the election, including a challenge to the balloting by mail. The Board eventually rejected the objections and certified the Union. Tito refused to bargain with the Union and the Union then filed an unfair labor practice complaint. The Board General Counsel moved to transfer proceedings from the applicable regional director to the Board and also moved for summary judgment. Tito did not respond and the Board granted summary judgment, ordering Tito to bargain with the Union. Tito thereafter filed a petition for review in this Court and the Board cross-applied for enforcement of its order.

II. ANALYSIS

Section 9(a) of the NLRA provides that a representative selected “by the majority of the employees in a unit appropriate for [collective-bargaining] purposes” is to be the employees’ exclusive collective-bargaining representative. 29 U.S.C. § 159(a). The Board “shall decide in each case whether ... the unit appropriate for the purposes of collective bargaining [is] the employer unit, craft unit, plant unit, or subdivision thereof....” Id. § 159(b). Although the Board’s discretion to pick a bargaining unit is “broad,” NLRB v. Action Auto., Inc., 469 U.S. 490, 494, 105 S.Ct. 984, 83 L.Ed.2d 986 (1985), it is not unlimited; for example, the Board may not give controlling weight to the extent to which the employees have organized, 29 U.S.C. § 159(c)(5). In deciding what bargaining unit is appropriate, the Board has long presumed that an employer-wide bargaining unit is appropriate, absent a sufficient showing to the contrary. See, e.g., Greenhorne & O’Mara, Inc., 326 N.L.R.B. 514, 516 (1998); Montgomery Cty. Opportunity Bd., 249 N.L.R.B. 880, 881 (1980).

When a labor union files a petition for a representation election, section 9(c) of the Act requires the Board to investigate. 29 U.S.C. § 159(c)(1). If the Board has “reasonable cause to believe that a question of representation affecting commerce exists,” it is to “provide for an appropriate hearing upon due notice.” Id. At the time of the hearing in this case, regulations provided that all parties must be “afforded full opportunity to present their respective positions and to produce the significant facts in support of their contentions.” 29 C.F.R. § 101.20(c) (2014). Additionally, the regulations also make it “the duty of the hearing officer to inquire fully into all matters. and issues necessary to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the Act.” 29 C.F.R. § 102.64(b) (2013).

In its petition to this Court, Tito challenges the offer-of-proof procedure used by the HO and endorsed by the Board. It also challenges the Board’s ultimate conclusion that an employer-wide bargaining unit is appropriate for Tito’s multi-faceted business.

A. Procedural Objection

The core of Tito’s regulation-based argument is that, by rejecting its offer of proof and approving an employer-wide unit based on a presumption, the HO failed to “inquire fully into all matters and issues necessary to obtain a full and complete record” and to “afford[] [Tito] full opportunity to present [its] position[ ] and to produce the significant facts in support” thereof. 29 C.F.R. § 10.1.20(c) (2014); 29 C.F.R. § 102.64(b) (2013). Nevertheless, both the Board Casehandling Manual and Board precedent confirm that the Board has historically regarded the offer-of-proof approach as sound and “we give controlling weight to the Board’s interpretation of its own rule unless it is plainly erroneous or inconsistent with the regulation itself.” Rush Univ. Med. Ctr. v. NLRB, 833 F.3d 202, 206-07 (D.C. Cir. 2016) (internal quotation marks omitted).

First, the Casehandling Manual provides in pertinent part:

When the hearing officer rejects proffered testimony or refuses to allow a line of testimony, it may be appropriate to suggest that the party adversely affected make an offer of proof. If after reviewing the offer of proof, the hearing officer continues to reject the testimony or line of inquiry, a brief record of the rejected material is present in the record for later review.
The offer, in essence, is a statement that, if the named witness were permitted to testify on the matters excluded, he/she would testify to specified facts. The facts should be set forth in detail; an offer in summary form or consisting of conclusions is insufficient.
An offer of proof may take the form of an oral statement on the record, a written statement to be included in the record (copies and service as with motions, Sec. 11225) or in the unusual situation, with permission of the hearing officer, specific questions of and answers by the witness. The latter often lengthens the record unnecessarily and should be avoided.

Nat’l Labor Relations Bd., Casehandling Manual, Pt. 2, Representation Proceedings, § 11226 (Aug. 2007). This provision plainly supports the procedure the HO used here. Elsewhere, the Casehandling Manual provides that, if “the unit sought ... is presumptively appropriate, then only limited evidence may be allowed where a party takes a position as to alternative units.” Id. § 11217 (emphasis in original). But “such evidence may be precluded in certain circumstances.” Id. If an employer which, unlike Tito, proposes an alternative unit can present only “limited” evidence, then Tito — which did not “take[ ] a position” on an alternative unit — should not be heard to complain that it is entitled to more under Board regulations.

The offer-of-proof procedure is also consistent with Board precedent. In In re Laurel Associates, Inc. d/b/a Jersey Shore Nursing and Rehabilitation Center, the union sought to represent a presumptively appropriate unit comprising, in effect, all eligible service and maintenance employees. 325 N.L.R.B. 603, 603 (1998). At the hearing, the employer argued that three smaller units were more appropriate and the HO then directed it to make an offer of proof. Id. The offer of proof showed that each proposed unit differed in terms of supervision, job functions, wage rates and training requirements. Id. It also showed that no interchange existed among the three proposed units. Id. The HO rejected the offer of proof and precluded further evidence on the issue, noting that the proposed wall-to-wall unit was presumptively appropriate. Id. The regional director and, ultimately, the Board upheld the decision. Id. Laurel Associates, then, is direct precedent supporting the use of an offer of proof in lieu of oral testimony if the petitioned-for unit is presumptively appropriate.

Nor are we persuaded by Tito’s claim that “[fjederal courts have ... held that the Board’s refusal to allow an employer to litigate the appropriateness of a bargaining unit constitutes reversible error.” Pet’r’s Br. 20. Tito’s argument rests on three cases—NLRB v. Indianapolis Mack Sales & Service, Inc., 802 F.2d 280 (7th Cir. 1986), NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979) and Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015)— each of which is distinguishable.

In Ozark, the only one decided by this Court, the employer challenged a union representation election, alleging that union agents interfered with the election. 779 F.3d at 577-78. Before the HO’s hearing, the employer served subpoenas duces te-cum on the union and on an employee who allegedly acted as its agent. Id. at 578. The union and the employee objected, including on attorney-client privilege and work-product grounds. Id. The HO did not rule on the subpoenas until the end of the hearing in case the employer could elicit “some of the evidence through testimony[.]” Id. (internal quotation marks omitted). At the close of testimony and without conducting an in camera review, the HO quashed the subpoenas. Id. at 578-79, 581. The employer appealed to the Board; however, the Board adopted her findings and recommendations and certified the union. Id. at 579. One Board member dissented because, in his view, the HO improperly focused on the employees’ privacy interest to the exclusion of the employer’s interests. Id. The employer persisted in its refusal to negotiate with the union and the Board upheld the union’s subsequent unfair labor practice charge. Id. at 579-80. We granted the employer’s petition for review, id. at 586, concluding that both the HO and the Board failed to balance the employees’ interests against the employer’s need for the documents, id. at 581. We noted that the NLRB Guide for Hearing Officers instructs an HO, if faced with a confidentiality objection, to consider reviewing the subpoenaed documents in camera to determine whether the objection can be met by redacting the documents or limiting the subpoena’s scope. Id. at 582. The HO had done neither. Id. Nor was the error harmless because it could have affected the employer’s presentation at the hearing. Id. at 582, 585-86. Ozark is thus easily distinguished: it did not treat the offer-of-proof procedure.

Tito’s out-of-circuit caselaw is likewise distinguishable. In Indianapolis Mack, the employer contracted with a nationwide business to acquire the latter’s subsidiary’s Indianapolis factory. 802 F.2d at 282. The employer subsequently refused to negotiate with the union that represented employees in the factory’s service and parts departments and the union’s unfair labor practice charge followed. Id. At the hearing, the employer challenged the bargaining unit’s appropriateness but the administrative law judge (ALJ) declared that the issue was not properly before her. Id. In her subsequent decision, however, she concluded that the bargaining unit composed of service department employees only was, as a matter of law, appropriate. Id. at 282-83. The Board agreed but the Seventh Circuit denied its enforcement application. Id. at 283, 286. The court reasoned that the Board’s bargaining-unit determination was improper, in part because the Board made the determination on the basis of the record before the ALJ, who had not permitted unit-appropriateness evidence because she wrongly believed the issue was not before her. Id. at 283-84. In our view, Tito’s reliance on Indianapolis Mack Sales & Service might be well-placed but for one critical difference — Tito’s offer of proof. The employer in Indianapolis Mack made no offer of proof. Id. at 286 (Cudahy, J., dissenting). Because Tito’s offer of proof did address — however summarily — the appropriateness of the wall-to-wall unit, In dianapolis Mack is of scant support to Tito.

In St. Francis Hospital, the union petitioned to represent the hospital’s registered nurses. 601 F.2d at 407. The hospital argued that the bargaining unit should include all professional employees and sought to present supporting testimony and other evidence. Id. The HO did not admit the evidence, relying on NLRB precedent holding that registered nurses, if they desired, were entitled to their own bargaining unit. Id. Although the hospital made an offer of proof before the HO, the reviewing regional director subsequently concluded that registered nurses comprised an appropriate unit and the Board agreed. Id. The Ninth Circuit, however, concluded that the Board improperly relied on a per se rule of bargaining-unit-appropriateness. Id. at 413-16. Unlike in St. Francis Hospital, the HO here (presumably) evaluated Tito’s offer of proof when she went off the record for seven minutes.

Tito’s final argument is that the offer-of-proof procedure runs afoul of the text of two statutory provisions. Tito first argues the Act requires the Board to “decide in each case ... the unit appropriate for the purposes of collective bargaining,” 29 U.S.C. § 159(b) (emphasis added). The HO, regional director and Board did consider case-specific facts in deciding — rightly or wrongly — that the wall-to-wall bargaining unit was appropriate.

Tito’s second statutory argument posits that the decision does not comply with section 9(c)(5)’s command that, “[i]n determining whether a unit is appropriate ... [,] the extent to which the employees have organized shall not be controlling.” Id. § 159(c)(5). As we have explained, the Board’s unit-appropriateness presumptions give “the [u]nion an initial advantage” but “[t]his modest benefit ... hardly grants ‘controlling’ weight to the extent the [u]n-ion ha[d] organized the employees.” Sundor Brands, Inc. v. NLRB, 168 F.3d 515, 519 (D.C. Cir. 1999). Similarly, presuming a wall-to-wall bargaining unit’s appropriateness is not synonymous with granting controlling weight to a union’s organizing effort.

B. Appropriateness of Wall-to-Wall Bargaining Unit

Tito’s substantive challenge to the appropriateness of the wall-to-ball bargaining unit has more “substance.” In our view, the Board did not adequately consider the ample evidence manifesting that Tito’s employees lacked a community of interest.

We start with the principle that the Board’s decision as to the appropriate bargaining unit “is entitled to wide deference.” United Food & Commercial Workers, AFL-CIO v. NLRB, 519 F.3d 490, 494 (D.C. Cir. 2008) (internal quotation marks omitted). “In determining whether a unit is appropriate, the Board focuses on whether the employees share a community of interest.” Id. (internal quotation marks omitted). “The Board considers ‘a variety of factors, including the employees’ wages, hours and other working conditions; commonality of supervision; degree of skill and common functions; frequency of contact and interchange with other employees; and functional integration.’ ” Id. (quoting Sundor Brands, 168 F.3d at 518). Nevertheless, we have granted a petition for review if the NLRB’s “bargaining unit determination ... is arbitrary or not supported by substantial evidence in the record.” Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 420 (D.C. Cir. 2008) (internal quotation marks omitted). “[W]e may not. find substantial evidence ‘merely on the basis of evidence which in and of itself justified [the Board’s decision], without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.’ ” Lakeland Bus Lines, Inc. v. NLRB, 347 F.3d 955, 962 (D.C. Cir. 2003) (second alteration in original) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). “[T]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Id. at 961-62 (internal quotation marks omitted) (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456).

In our view, the Board order is not supported by substantial evidence. The Board does not discuss the portions of Tito’s offer of proof which plainly showed no community of interest. Tito’s offer of proof contains at least three types of evidence contradicting the Board’s conclusion. First, the Board fails to recognize the unchallenged assertion that Tito’s business comprised two discrete halves — a labor side and a recycling services side. As Tito explained, its laborers’ tasks included such varied duties as painting, tile installation and snow removal. Most of its employees on the labor side of the business performed work exclusively for Tito. In contrast, all of Tito’s recycling employees worked on site at Maryland recycling facilities where they did not “perform labor work,” JA 24, but instead bagged compost and sorted reeyclables. These employees worked in different locations several miles apart and the recycler, MES, exercised considerable control over their working conditions. The Board minimizes these plain — and specific — differences with its generic observation that “[t]he petitioned-for employees work for the same employer in facilities located in a common geographical region and perform skilled and unskilled physical work.” Id. at 162 n.l. But how does the Board’s hyper-generalized description of Tito’s employees’ responsibilities reflect a community of interest? The Board offers only silence.

Second, the Board also fails to consider the lack of interchange among the different types of Tito employees. Significantly, the Acting Regional Director himself noted that “[t]here [was] no evidence of any interchange between the recycling employees, or between the recycling employees and any other classification of employee.” Id. at 120 (emphasis added). For example, on Tito’s recycling side, the Coekeysville facility is approximately sixty miles from the Derwood facility, meaning that its employees could not easily move between the two if one facility was short-staffed. This distance alone belies the existence of meaningful interchange between the recycling employees and Tito’s labor-side employees. Indeed, the distances among Tito’s various worksites were cited as a reason to conduct a mail-ballot election. Id. at 170. And yet, the Board ignored that employee interchange was lacking. Instead, it summarily concluded that the employees worked “in facilities located in a common geographical region” and that there was “some evidence that the warehouse employee sometimes assists with other [e]mployer projects ... and coordinates shipments and deliveries with other employees.” Id. at 162 n.l. The Board did not explain how these isolated facts, even if true, supersede the lack of evidence that interchange exists among Tito’s two mechanics, one warehouseman and its many laborers (who themselves are separated).

Third, the Board overlooks the significant differences among Tito’s employees’ “wages, hours and other working conditions.” United Food & Commercial Workers, 519 F.3d at 494. Tito’s Coekeysville employees receive no fringe benefits and are paid less than the Dickerson and Der-wood employees to whom both medical and dental insurance is available. Moreover, the three MES contracts set minimum pay rates for Tito’s recycling employees. These important differences tend to undermine the conclusion that Tito’s employees share a community of interest. Because the Board failed to take this evidence into account, its conclusion is not supported by substantial evidence. Lakeland Bus Lines, 347 F.3d at 961-62.

For the foregoing reasons, we grant Tito’s petition for review, deny the Board’s application for enforcement and remand to the Board for further proceedings consistent with this opinion.

So ordered.

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring:

I write separately to give a word to the wise: although the Board’s order, composed of two sentences of text and a footnote analysis of the unit-appropriateness issue (which analysis also acknowledges its dissenting colleague’s view) is apparently standard operating procedure at this stage, the Board will continue to run the risk of a court-imposed re-do if it persists — especially when, en route to the Board’s review, the HO, inter alia, likewise fails to consider adequately the offered proof. It might be better served by rethinking its drumhead procedure.

ROGERS, Circuit Judge,

concurring:

I concur in granting the petition for review, and denying the Board’s cross-application for enforcement of its Order. With respect to the challenge to the Board’s finding of the appropriateness of the company-wide bargaining unit, Op. Part II.B, I concur for the following reasons. The Board’s decision failed to come to grips with record evidence offered by the petitioner that potentially detracts from the conclusion that the company-wide bargaining unit sought by the Union was appropriate. See Tito Contractors, Inc. v. Int’l Union of Painters & Allied Trades, Dist. Council 51 (AFL-CIO), NLRB Case 05-RC-117169, 2014 WL 6386481 at 1 n.l (Nov. 17, 2014) (“2014 Decision”). As the court recounts, the evidence suggested that the petitioner’s business was divided into two halves, where working conditions varied between and within the two halves. See Op. at 732-34. The Board’s finding is therefore unsupported by substantial evidence in the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456 (1951); 29 U.S.C. § 160(e).

Of course, in determining whether employees share a “community of interests” making a bargaining unit appropriate, RC Aluminum Industries, Inc. v. NLRB, 326 F.3d 235, 239 (D.C. Cir. 2003), the Board considers a “host of factors” and “no particular factor controls,” id. at 240. But the challenged decision makes it difficult to discern the Board’s rationale for concluding that the petitioner failed to overcome the presumptive appropriateness of the company-wide bargaining unit. See NBCUniversal Media, LLC v. NLRB, 815 F.3d 821, 829 (D.C. Cir. 2016). The Board makes conelusory findings, such as that employees work in a “common geographical region and perform skilled and unskilled physical work.” 2014 Decision at 1 n.l. It also fails to explain why the few facts on which it relies, such as “some evidence” that a single employee “sometimes assists” others, id., should take precedence over other record evidence that appears to detract from the Board’s conclusion, see Op. at 732-34.

On remand, the Board will have the opportunity to address fully the evidence offered by the petitioner regarding the structure and operation of its business that potentially detracts from the Board’s broadly stated conclusion on appropriateness. See Sundor Brands, Inc. v. NLRB, 168 F.3d 515, 519 (D.C. Cir. 1999); Op. at 732-84. Accordingly, I “express no opinion upon the question whether the factors for which there is support in the record could suffice by themselves to support the Board’s present unit determination.” Sundor Brands, Inc., 168 F.3d at 520. But see Op. at 732-33. It remains open to the Board to reach the same conclusion about the appropriateness of a company-wide bargaining unit upon providing a reasoned explanation that “take[s] into account whatever in the record fairly detracts from its weight.” Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456; see NLRB v. Sw. Reg’l Council of Carpenters, 826 F.3d 460, 465-66 (D.C. Cir. 2016). There is no occasion to comment further, as “clarity” in explication of its opinion, not particular formatting, is what is asked of the Board. Shepard v. NLRB, 459 U.S. 344, 350, 103 S.Ct. 665, 74 L.Ed.2d 523 (1983) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 85 L.Ed. 1271 (1941)). But see Concurring Op. (Henderson, J.).

      . Tito used "laborers” to refer to employees on the labor side of its business. JA 21. It referred to its recycling employees simply as "employees.” Id. at 23-29. Tito did not identify how many laborers it employed; instead, it noted that it had approximately 57 employees providing recycling services and approximately 100 employees in toto, excluding managerial and clerical employees. See id. at 19, 23.

      . The groundskeeping duties included, among other things, “mowing, weed eating, ... leaf blower usage, litter control, housekeeping[ ] [and] painting.” JA 25.

      3. The HO clarified that she — not the Regional Director — decided that Tito’s offer of proof was insufficient.

      . The NLRB eliminated this regulation, effective April 14, 2015. Representation — Case Procedures, 79 Fed. Reg. 74,308, 74,308, 74,-384 (Dec. 15, 2014). The revised regulations clarify that many issues, including employees’ eligibility to vote, can be deferred until after the election. Id.; see also 29 C.F.R. §§ 102.64(a)-(b), 102.66(a).

      . This provision is now qualified by the phrase "[s]ubject to the provisions of § 102.66[.]” Among other things, § 102.66 authorizes an HO to solicit an offer of proof and a regional director to reject the evidence described therein if insufficient to sustain the offeror’s position. 29 C.F.R. § 102.66(c).

      . Tito does not discuss Laurel Associates; it instead relies on the NLRB's earlier decision in Barre-National, Inc., 316 N.L.R.B. 877 (1995), which has since been overruled. 79 Fed. Reg. at 74,386; see NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974) ("[T]he choice between rulemaking and adjudication lies in the first instance within the Board’s discretion...."). In Barre-National, the union sought to represent a unit of all warehouse and distribution, production and maintenance employees. 316 N.L.R.B. at 877. The employer argued that 24 individuals within the group were supervisors and thus ineligible for inclusion. Id. The HO allowed the employer to make only an offer of proof as to the supervisors’ status. Id. at 878. The Board on review concluded that the hearing had been improperly curtailed, id., stressing that its conclusion was "based on the facts of this case.” Id. at 878 n.9. The Board order, however, did not explain which facts it regarded as critical to its decision. At a minimum, its focus on supervisory status rather than unit-appropriateness distinguishes it from this case.


author: PILLARD, Circuit Judge:

text:
    JUDICIAL WATCH, INC., Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE, Appellee.
    No. 16-5054
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 10, 2016
    Decided February 7, 2017

      Jason B. Aldrich argued the cause for appellant. With him on the briefs was Paul J. Orfanedes, Washington, DC.
    August E. Flentje, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Matthew Collette, Attorney, Washington, DC.
    Before: HENDERSON and PILLARD, Circuit Judges, and GINSBURG, Senior Circuit Judge.
   PILLARD, Circuit Judge:

Judicial Watch, Inc. (Judicial Watch) brought this action against the United States Department of Defense (DOD or the Department), alleging that the Department violated its obligations under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, when it failed to release copies of documents embodying the Secretary of Defense’s 2014 determination that five Guantanamo Bay detainees could be transferred to Qatar. The Department moved for summary judgment. Judicial Watch acknowledged that the Department had produced one document, but opposed summary judgment on the ground that it continued to withhold a second document to which Judicial Watch believed it was entitled: a memo from Assistant Secretary of Defense Michael Lumpkin to Secretary of Defense Chuck Hagel. The Department claimed that it had no obligation to produce that memo because it was a privileged deliberative document. The district court agreed and entered judgment in DOD’s favor. Judicial Watch appealed. Because the district court correctly determined that the memo was privileged, we affirm.

I.

The National Defense Authorization Act for Fiscal Year 2014 (NDAA) provides that the Secretary of Defense may transfer a prisoner held at Guantanamo Bay to the individual’s country of origin, or any other foreign country, if so directed by a competent tribunal or if the Secretary “determines” that the prisoner is “no longer a threat to the national security of the United States.” NDAA, Pub. L. No. 113-66, § 1035(a), 127 Stat. 672, 851 (2013). Other-' wise, the Secretary may transfer a Guantanamo Bay prisoner only if he or she “determines” that: (1) “actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests;” and (2) “the transfer is in the national security interest of the United States.” Id. at § 1035(b). In making those determinations, the Secretary must “evaluate and take into consideration” eight separate factors. Id. at § 1035(c).

On May 31, 2014, the Secretary of Defense exercised his statutory authority to transfer five Guantanamo Bay prisoners to Qatar in exchange for the release of Bowe Bergdahl, an American soldier who was captured and held in Afghanistan. That same day, the Secretary sent eight identical classified letters to eight members of Congress statutorily entitled to notice, explaining that he had authorized the transfer under NDAA section 1035(b) because he “determined” that: (1) the government of Qatar would “substantially mitigate” the threats posed by the prisoners; and (2) the transfer was “in the national security interest of the United States.” J.A. 17. Three days later, Judicial Watch submitted the FOIA request at issue here, asking the government to produce “any and all records concerning, regarding, or relating to” the Secretary of Defense’s “determinations” regarding the five Guantanamo Bay prisoners who were transferred to Qatar. Id. at 28. In response to DOD’s objection that the request was overbroad, Judicial Watch pared it down to “any and all Secretary of Defense memos signed on or before May 31, 2014, that approved the release of the five Guantanamo Bay detainees exchanged for Sgt. Bowe Bergdahl,” as well as “copies of any ‘determinations’ made by the Secretary of Defense” pursuant to section 1305(a) of the NDAA “if such determinations [were] ... separate and apart from the ‘memos’ that the Secretary of Defense may have signed.” Id. at 39.

Judicial Watch did not receive a timely response to its request. On November 18, 2014, Judicial Watch filed a complaint in district court against the Department of Defense alleging that the Department had failed to comply with its obligations under FOIA. DOD answered that it was “in the process of responding to [Judicial Watch’s] FOIA request.” J.A. 11. The Department provided its final response on April 27, 2015, stating that “[t]he only documents responsive to [the] request [were the] eight identical classified letters addressed to members of Congress.” J.A. 13. DOD gave Judicial Watch a copy of one of the eight letters with all classified information redacted. See 5 U.S.C. § 552 (b) (1) (explaining that FOIA’s disclosure requirements are inapplicable to “properly classified” information).

The Department then moved for summary judgment. In support of its motion, DOD submitted a declaration from Mark H. Herrington, an attorney in the Department’s Office of General Counsel, describing the processes that DOD had used to identify records responsive to Judicial Watch’s FOIA request. Department staff had thoroughly searched DOD records and concluded that the only “potentially responsive” material was a packet prepared by Assistant Secretary of Defense Michael Lumpkin. Id. at 23. The packet included a “cover memo[ ]” from Mr. Lumpkin to the Secretary of Defense (the Lumpkin Memo) setting forth Mr. Lumpkin’s recommendation regarding the Guantanamo Bay detainees, and the eight letters to members of Congress, which Mr. Lumpkin had prepared for the Secretary’s signature. Id. Mr. Herrington attested that the Secretary did not sign or endorse the Lumpkin Memo, nor send the memo to Congress. Rather, the Secretary only signed and sent the accompanying letters. Id.

Mr. Herrington averred that DOD staff did not produce the Lumpkin cover memo because it “did not constitute a signed memo or other determination by the Secretary of Defense relating to the detainees” and so was not responsive to Judicial Watch’s request. J.A. 24. Even if the memo were responsive, Mr. Herrington asserted, it would be exempt from disclosure as a privileged deliberative document. See Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (explaining that FOIA does not require agencies to disclose privileged information).

The district court granted DOD’s summary judgment motion. See Judicial Watch, Inc. v. U.S. Dep’t of Def., No. 14 Civ. 1935 (ABJ), 2016 WL 410993 (D.D.C. Feb. 2, 2016) (Judicial Watch I). The court described the Lumpkin Memo as “responsive to [Judicial Watch’s] request,” id. at *1, but held that it was protected by the “deliberative process privilege,” id. at *2. Judicial Watch appealed.

II.

Congress enacted FOIA to give the public “access to official information long shielded unnecessarily from public view.” Nat’l Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attorneys, 829 F.3d 741, 744 (D.C. Cir. 2016) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011)). The Act requires government agencies to make information available upon request, unless the information is protected by one of nine statutory “exemptions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see 5 U.S.C. § 552(b). In this case, the government has invoked Exemption 5, 5 U.S.C. § 552(b)(5), which allows agencies to withhold information that would in the context of litigation be protected from discovery by a “recognized evidentiary or discovery privilege[ ].” Pub. Citizen, 598 F.3d at 874. “Among th[e] privileges protected by Exemption 5 is the ... deliberative process privilege,” Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982) (internal quotation marks omitted), which protects government documents that are both “predecisional” and “deliberative,” Pub. Citizen, 598 F.3d at 874. Documents are “predecisional” if they are “generated before the adoption of an agency policy,” and “deliberative” if they “reflect[ ] the give-and-take of the consultative process.” Id. (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)).

The deliberative process privilege reflects the commonsense notion that agencies craft better rules when their employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with the understanding that employees would be chilled from such rigorous deliberation if they feared it might become public. See Sears, 421 U.S. at 150, 95 S.Ct. 1504 (“[H]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances.... ” (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974))). The privilege also avoids confusion from premature disclosure of ideas that are not — or not yet — final policy, and misimpressions from “dissemination of documents suggesting reasons and rationales” not ultimately relied on. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

The question in this case is whether the Lumpkin Memo is covered by the deliberative process privilege and therefore exempt from disclosure under FOIA. Judicial Watch does not dispute that, when the Lumpkin Memo was drafted, it was both predecisional and deliberative. Nevertheless, Judicial Watch notes, a document can lose its predecisional character — and the protections of the privilege— if an agency adopts the document as its own. Sears, 421 U.S. at 161, 95 S.Ct. 1504; Coastal States, 617 F.2d at 866; Horowitz v. Peace Corps, 428 F.3d 271, 276 (D.C. Cir. 2005). To adopt a deliberative document, it is not enough for an agency to make vague or equivocal statements implying that a position presented in a deliberative document has merit; instead, the agency must make an “express'^ ]” choice to use a deliberative document as a source of agency guidance. Sears, 421 U.S. at 161, 95 S.Ct. 1504 (emphasis in original); see also Afshar v. Dep’t of State, 702 F.2d 1125, 1142 (D.C. Cir. 1983).

Judicial Watch contends that the Secretary of Defense “expressly adopted” the Lumpkin Memo when he signed the attached letters to Congress, Reply Br. 2, but that contention is unsupported by the record. Mr. Herrington stated that the Secretary never “endorse[d]” the Lumpkin Memo. The only reasoning that the Secretary of Defense held out as his own was the reasoning in the congressional letters.

Judicial Watch characterizes the Secretary’s signing and sending the letters as a ratification of the cover memo’s reasoning. That does not necessarily follow. The Secretary might have relied on the memo’s reasoning in deciding to take the action it recommended, but it is also possible that he did not. We therefore cannot treat the memo as a decisional document subject to disclosure. Sears, 421 U.S. at 161, 95 S.Ct. 1504; see also Afshar, 702 F.2d at 1143 n.22 (suggesting that an agency employee cannot strip a memo of its predecisional character by silently “carrying] out” the memo’s recommended course of action).

Judicial Watch pushes back on this conclusion in three ways, each of which is unconvincing. First, because the district court found that the Lumpkin Memo was “responsive” to Judicial Watch’s request for signed “Secretary of Defense memos” and official secretarial “determination[s],” Judicial Watch concludes that the Lump-kin Memo must have been an official secretarial document. We are sensitive to the fact that plaintiffs in FOIA litigation must of necessity rely on inferences from the limited information available to them about documents asserted to be privileged. In this case, that means Judicial Watch is reading a great deal into the district court’s description of the Lumpkin Memo. But after reviewing the memo in camera, we conclude that the memo is neither a signed memo nor a secretarial determination regarding the detainees. Thus, while we are perplexed by the district court’s statement that the Lumpkin Memo was responsive to Judicial Watch’s FOIA request — at least as the request was pared down to seek only the Secretary’s signed memos or decisional documents — we agree with that court’s holding that the memo was privileged,

Second, Judicial Watch points to Mr. Herrington’s statement that it is “common for the Secretary of Defense not to endorse a cover memo[ ], if he proceeds to sign the correspondence submitted beneath the cover memo[ ].” But, taking into account the Secretary’s common practices, Mr. Herrington concluded that signing the correspondence submitted beneath the Lumpkin Memo was not an “endorse[ment]” of the memo’s analysis. Her-rington Decl. at 5.

Finally, Judicial Watch insists that the Secretary must have adopted the Lumpkin Memo to satisfy his recordkeeping obligations under 44 U.S.C. § 3101. See 44 U.S.C. § 3101 (requiring the “head of each [f]ederal agency” to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency”). But, to satisfy his obligations under that statute, the Secretary need only preserve the memo and signed letters to Congress. He need not also produce them or any other nondecisional records of the agency’s internal workings and “essential transactions.” Id.

Seeing no reason to disturb the district court’s judgment that the Lumpkin Memo was a privileged deliberative document, we affirm.

So ordered.


author: TATEL, Circuit Judge:

text:
    Sina CHENARI, Appellant v. GEORGE WASHINGTON UNIVERSITY, Appellee
    No. 16-7055
    United States Court of Appeals, District of Columbia Circuit.
    Argued January 11, 2017
    Decided February 10, 2017

      Jason J. Bach argued the cause and filed the briefs for appellant. Tracy D. Rezvani, Washington, DC, entered an appearance.
    Nicholas S. McConnell, Washington, DC, argued the cause for appellee. With him on the brief was James N. Markels, Washington, DC.
    Before: TATEL, MILLETT, and WILKINS, Circuit Judges.
   TATEL, Circuit Judge:

After George Washington University Medical School expelled appellant for cheating on an exam, he brought suit in federal court for breach of contract and discrimination based on disability. The district court granted summary judgment to the University, deferring to its view that appellant broke its honor code and finding no violation of the relevant disability statutes. For the reasons set forth in this opinion, we. affirm.

I.

On December 14, 2012, appellant Sina Chenari, a third-year medical student at George Washington University, took the Step 1 Surgery Shelf Exam, a standardized test published by the National Board of Medical Examiners (NBME). Before the exam, the proctor read aloud the instructions from NBME’s official Chief Proctor’s Manual, including that students must complete the exam in two and a half hours and that “[n]o additional time [would] be allowed for transferring answers” from the test booklet to the answer sheet. Chenari also received a copy of the “Exam Guidelines,” which contained a similar warning.

In his deposition, Chenari explained that when the proctor called time, he discovered that he had failed to transfer some twenty or thirty answers from the test booklet to the front side of the answer sheet. According to Chenari, he “panicked” and “continued to transfer my answers.” Chenari Dep. 267:7-:9. The proctor “asked me to stop,” but “I continued to bubble in [the answer sheet].” Id. at 269:6-:18. When the proctor then “reached over me to try to get the exam, I just put my hand over the booklet and the exam and just continued to bubble in my answers.” Id. at 270:3-:6. Once Chenari finished, he “sat back” and the proctor “picked [the exam] up.” Id. at 278:21-280:11. As Chenari concedes, he ended up taking an additional “90 seconds to two minutes.” Id. at 271:12-:13.

The proctor reported Chenari to the medical school’s administration, as did another student present at the exam. In response, Associate Dean for Students Rhonda Goldberg met with Chenari to discuss the incident. According to Goldberg’s deposition, Chenari told her that he “needed to” finish bubbling in his answers but “probably made a mistake” by doing so. Goldberg Dep. 23:l-:3.

Pursuant to University procedures, Goldberg formed an Honor Code Council subcommittee to investigate. After holding a hearing, the subcommittee issued a report recommending Chenari’s dismissal for academic dishonesty. The subcommittee forwarded its recommendation to the Medical Student Evaluation Committee, and in a written statement to that Committee Chenari took responsibility for his “deplorable behavior” toward the proctor, acknowledging his “clear violation of the most basic rules of th[e] University.” Che-nari Dep. Ex. 37 at 1. He nonetheless asked for leniency because, he insisted, his “behavior did not involve deception” and he had no prior disciplinary infractions. Id. After a hearing, the Committee unanimously recommended Chenari’s dismissal. The Medical School Dean then reviewed the reports, met with Chenari, and upheld the recommendation of dismissal. Now represented by counsel, Chenari appealed to the Provost, arguing in a written submission that his conduct lacked “an element of deceit” like “cheat[ing]” or “l[ying].” Chenari Dep. Ex. 40 at 1. Rather, his “mistake” was “completely out in the open.” Id. at 2. The Provost denied the appeal, and the University dismissed Che-nari from the medical school.

On May 30, 2014, Chenari filed this action in the U.S. District Court for the District of Columbia seeking reinstatement and damages. He alleged several theories of relief. First, he argued that he never violated the University’s Honor Code, so the University’s decision to dismiss him breached its contract with him and the contract’s implied covenant of good faith and fair dealing. Second, .he claimed that he has a disability, Attention Deficit Hyperactivity Disorder (ADHD), which he alleged the University failed to accommodate in violation of the Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 794(a), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. Although Chenari also claimed that he suffered from anxiety, he never argued, either here or in the district court, that his anxiety qualified as a disability under the disability statutes. See Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir. 2008) (describing “disability” as a “term of art under the statute[s]”). Finally, Chenari argued that the University discriminated against him for his ADHD and retaliated against him “when he began to advocate for his rights,” claims he does not pursue on appeal. Compl. ¶¶ 44, 55. The University moved for summary judgment, which the district court granted. Chenari v. George Washington University, 172 F.Supp.3d 38 (D.D.C. 2016).

II.

We review an order granting summary judgment de novo, viewing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Foster v. Sedgwick Claims Management Services, Inc., 842 F.3d 721, 725 (D.C. Cir. 2016). Summary judgment is appropriate if the movant, here the University, “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (alteration, internal quotation marks, and citation omitted). We begin with Chenari’s contract claims.

A.

Under District of Columbia law, which governs here, “ ‘the relationship between a university and its students is contractual in nature.’ ” Manago v. District of Columbia, 934 A.2d 925, 927 (D.C. 2007) (quoting Basch v. George Washington University, 370 A.2d 1364, 1366 (D.C. 1977) (per curiam)). In breach of contract cases against a university, “a judgment by school officials that a student has not performed adequately to meet the school’s academic standards is a determination that usually calls for judicial deference.” Alden v. Georgetown University, 734 A.2d 1103, 1108 (D.C. 1999). This rule stems from the principle that a diploma publicly signals a school’s confidence in a student’s knowledge and skills, so the “ ‘decisions surrounding the issuance of these credentials [should] be left to the sound judgment of the professional educators who monitor the progress of their students on a regular basis.’ ” Id. at 1109 (quoting Olsson v. Board of Higher Education, 49 N.Y.2d 408, 426 N.Y.S.2d 248, 402 N.E.2d 1150, 1153 (1980)). A university “will be entitled to summary judgment unless the plaintiff can provide some evidence from which a fact finder could conclude that there was no rational basis for the decision or that it was motivated by bad faith or ill will unrelated to academic performance.” Id. (citation and internal quotation marks omitted). Similarly, to show that a university breached the implied covenant of good faith and fair dealing, a plaintiff must allege “either bad faith or conduct that is arbitrary and capricious” and, in resolving such cases, courts must not “substituye] their judgment improperly for the academic judgment of the school.” Wright v. Howard University, 60 A.3d 749, 754-55 (D.C. 2013) (alteration and internal quotation marks omitted) (citing Allworth v. Howard University, 890 A.2d 194, 202 (D.C. 2006); Alden, 734 A.2d at 1111 n.11). True, all these cases involve decisions about academic performance, not honor code violations, but Chenari does not argue — nor do we decide — that a different standard should apply here. Cf. Hajjar-Nejad v. George Washington University, 37 F.Supp.3d 90, 116-18 (D.D.C. 2014) (“[C]ourts have concluded that, particularly for medical students, professional comportment issues fall under the umbrella of deference to academic decisions.”). Because the standards for breach of contract and implied covenant cases overlap, we address Chenari’s two claims together.

The University dismissed Chenari for violating its Honor Code. Section F(2)(a) of that Code prohibits students from “giv[ing] or receiving]” unpermitted aid on tests and assignments, plagiarizing, falsifying reports, infringing on the rights of other students, or “violating] any other commonly understood principles of academic honesty.” Goldberg Decl. Ex. A at 8. The University concluded that Chenari violated the Code’s “any other” clause by “knowingly continuing] to fill in his answers on his answer sheet after time was called and until he completed his answer sheet despite having been instructed by a university proctor three times to stop doing so.” Chenari Dep. Ex. 37 at 4. We agree with the district court that this represents a perfectly “rational basis” for disciplining Chenari. Alden, 734 A.2d at 1109. As the district court explained, Chenari “stole time,” gaining “an unfair advantage over the peers who adhered to the rules” — an obvious breach of an Honor Code that prohibits violation of “commonly understood principles of academic honesty.” Chenari, 172 F.Supp.3d at 49; see Alden, 734 A.2d at 1111 (“Far from lacking a rational basis for dismissal, the Committee on Students had sufficient academic evidence in the record from which to determine that Alden should be dropped from the school’s rolls.”).

Chenari nonetheless argues, for four separate reasons, that the University’s decision lacked a rational basis. First, he points out that the proctor failed to cite the Honor Code or Exam Guidelines in her initial report to the University, but he cites nothing in the University’s rules requiring that she do so. Second, he claims that he made no “attempt ... to conceal his actions.” Appellant’s Br. 19. This is absurd. Just as stealing is stealing, whether at gunpoint or in secret bank transfers, so cheating is cheating, whether in front of a proctor or behind the proctor’s back. Third, and “most importantly” to Chenari, the University scored his completed answer sheet and “determined that [he] did in fact pass the exam.” Appellant’s Br. 20. This too is absurd — so absurd that it hardly requires a response, other than to point out that Chenari may well have passed the exam became he took an additional ninety seconds to fill in his answer sheet.

Chenari’s only argument that could conceivably raise doubts about the University’s explanation is his assertion that transferring answers from a test booklet to the answer sheet after time expired represented a “common and accepted practice of the GWU medical school.” Appellant’s Br. 19. But if that is so, why in his deposition did Chenari state that he had seen his classmates do so “covertly,” and why, during the disciplinary process, did he characterize his conduct as an act “with blatant disregard for the rules and for the rights of my fellow students”? Chenari Dep. 272:21-:22, Ex. 37 at 1. In any event, whatever the common practice at the medical school, this exam was administered under NBME procedures, which expressly warned that “[n]o additional time will be allowed for transferring answers” from the test booklet to the answer sheet. Ruiz Decl. at 2.

Finally, Chenari argues that the University acted in bad faith by dismissing him rather than accommodating his ADHD. As the district court explained, however, Che-nari has pointed to no record evidence that “the [University] or any individual involved in the [disciplinary] process acted out of bad faith or ill will.” Chenari, 172 F.Supp.3d at 48. Nor does he claim that dismissing him for cheating was either excessive or discriminatory. Chenari simply urges us to infer that the University acted in bad faith because it “did absolutely nothing to help him.” Appellant’s Br. 20. But even if such an inference would be appropriate, Chenari’s argument turns entirely on how the University in fact responded to his claimed disability, an issue to which we now turn.

B.

Chenari argues that the University discriminated against him in violation of Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Title II, however, prohibits discrimination only by a “public entity,” a term the ADA defines as “any State or local government,” an instrumentality of a state or local government, “the National Railroad Passenger Corporation, and any commuter authority.” 42 U.S.C. §§ 12131(1), 12132. Because George Washington University, a private institution, fits none of these definitions, Chenari’s Title II claim fails. Cf. Singh v. George Washington University School of Medicine and Health Sciences, 508 F.3d 1097, 1105 (D.C. Cir. 2007) (citing 42 U.S.C. § 12182) (deciding a similar case under Title III of the ADA, which prohibits discrimination by a “place of public accommodation”). This pleading error, however, makes little difference because Chenari may pursue his claim under Section 504 of the Rehabilitation Act. See American Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (explaining that the Rehab Act and Title II of the ADA “are similar in substance and consequently cases interpreting either are applicable and interchangeable” (alterations, citations, and internal quotation marks omitted)); Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999) (“Claims and defenses under the two statutes are virtually identical.”).

To prevail on his failure-to-accommodate claim, Chenari must “produce sufficient evidence (a) that [he] was disabled for the purposes of the Rehabilitation Act, (b) that [the University] had notice of [his] disability, and (c) that [the University] denied [his] request for a reasonable accommodation of [his] disability.” Stewart v. St. Elizabeths Hospital, 589 F.3d 1305, 1307-08 (D.C. Cir. 2010) (citations omitted); see Davis v. Shah, 821 F.3d 231, 259-60 (2d Cir. 2016) (“A plaintiff may base her [section 504] discrimination claim on ... failure to make a reasonable accommodation.”); see also American Council, 525 F.3d at 1260 & n.2, 1266-67 & n.14 (allowing a failure-to-accommodate theory to proceed under the Rehab Act and “construing] section 504 in pari materia with Title II of the ADA”); McElwee v. County of Orange, 700 F.3d 635, 640 & n.2 (2d Cir. 2012) (treating as “interchangabl[e]” Title II’s “reasonable modifications” requirement and Title I’s “reasonable accommodations” requirement). The district court granted summary judgment to the University because, in its view, Chenari had offered no evidence showing either that the University had notice of his disability or that he had requested an accommodation. Chenari, 172 F.Supp.3d at 51-56.

On appeal, Chenari insists that he did give the University notice of his ADHD. In support he cites his deposition, in which he claims that, in a meeting with Goldberg and another University official in October 2012—two months before the surgery exam—he informed them of his ADHD diagnosis, including that he had been prescribed medication for the disorder. In her deposition, however, Goldberg denied Chenari’s account of the meeting, claiming that they discussed only his academic performance.

This is a classic “genuine dispute as to [a] material fact.” Fed. R. Civ. P. 56(a). Under oath, Chenari testified that he informed Goldberg of his ADHD. Under oath, Goldberg denied it. At summary judgment, a court “may not ... believe one witness over another if both witnesses observed the same event in materially different ways.” Johnson, 823 F.3d at 705. Indeed, a court “may not believe” the mov-ant’s witness—here the University’s—given its obligation to view the record “in a light most favorable to the nonmoving party”—here, Chenari. Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016).

In dismissing Chenari’s testimony as “insufficient to create a genuine dispute of material fact,” Chenari, 172 F.Supp.3d at 54, the district court applied the well-accepted rule that courts may “lawfully put aside testimony that is so undermined as to be incredible.” Robinson, 818 F.3d at 10 (quoting Johnson v. Washington Metropolitan Area Transit Authority, 883 F.2d 125, 128 (D.C. Cir. 1989), abrogated on other grounds by Robinson v. District of Columbia, 580 A.2d 1255, 1258 (D.C. 1990)). That scenario is “most likely when a plaintiffs claim is supported solely by the plaintiffs own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury.” Johnson, 883 F.2d at 128. This is not such a case.

The University cites nothing to indicate that Chenari’s testimony is “undermined ... by other credible evidence, physical impossibility or other persuasive evidence.” Moreover, as this court has explained, evidence sufficient to dismiss a plaintiffs uncorroborated, self-serving testimony—the situation here—is “rare[].” Robinson, 818 F.3d at 10. For example, summary judgment is proper when a plaintiffs statement is demonstrably false after review of a “quite clear[]” videotape, or when the testimony is contradicted by “multiple disinterested witnesses.” Id. (citing Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Johnson, 883 F.2d at 128-29). Here, by contrast, we have only Goldberg’s contradictory testimony and, as the district court pointed out, that Chenari never mentioned his ADHD in other meetings with University officials, including during his disciplinary proceedings. See Chenari, 172 F.Supp.3d at 52-54. Those facts certainly go to Chenari’s credibility, but nothing about them is “remotely compelling enough to require a jury to disregard” his testimony. Robinson, 818 F.3d at 11.

Although the district court thus erred in granting summary judgment on the notice question, this does not end the matter. As explained above, in order to prevail on his failure-to-accommodate claim, Chenari must demonstrate not only that he gave notice, but also that the University denied a requested accommodation. After considering the evidence, the district court found that Chenari failed to seek a reasonable accommodation. See Chenari, 172 F.Supp.3d at 54-56.

Chenari concedes that he never requested an accommodation, but argues that his “repeated notifications to the administration created an obligation on [the University] to investigate and implement reasonable accommodations.” Appellant’s Br. 28. To be sure, there may well be cases where the plaintiffs need for an accommodation is so apparent that the defendant must offer one regardless of whether the plaintiff requested it. See, e.g., Pierce v. District of Columbia, 128 F.Supp.3d 250, 269-70 (D.D.C. 2015) (rejecting “the District’s suggestion that a prison facility need not act to accommodate an obviously disabled inmate if the inmate does not ask for accommodations”). Although we doubt that this is such a ease, we have no need to consider the question given that the record makes abundantly clear that the University did offer Chenari an' accommodation.

As Chenari conceded in his deposition, University officials twice referred him to counseling and therapy, including once to a specific counselor to deal with his anxiety about a course involving roleplaying. Che-nari acknowledged that he never followed up on those referrals, insisting that he had “no time,” though he never requested time off to seek therapy — as he also concedes. Chenari Dep. 246:8-:9.

In addition to these express offers of assistance, the University has an Office of Disability Support Services, which, according to its director, “receive[s] and evaluate[s] requests for accommodations from students.” McMenamin Decl. 1. Goldberg explained in her declaration that she tells all first-year students that “if they have a disability and need to request an accommodation, it is the student’s responsibility-to go to [the Office] to pursue that matter.” Goldberg Decl. 1. Moreover, the University’s “First Year Survival Guide” for medical students instructs “[s]tudents who suspect that they may have a disability[ ] which may require an accommodation” to contact the Office.

Finally, the Office of Disability Support Services maintains a website that walks students through the process for obtaining a reasonable accommodation. See Disability Support Services, George Washington University, https://disabilitysupport.gwu. edu/ (last visited Feb. 2, 2017). At the time Chenari attended the University, the website included specific instructions about how students with ADHD could obtain accommodations. Although Chenari testified that he “did not know” about the website, he admitted receiving and “looking through” the First Year Survival Guide, and as noted above, Goldberg reported that she told all entering students about the disability office. Chenari Dep. at 176:19,186:18-19.

To sum up, then, the University not only twice offered Chenari counseling, but also, through its Disability Office and that office’s website, offered all students a procedure for obtaining any reasonable accommodation they might need. The Rehabilitation Act requires nothing more.

III.

For the foregoing reasons, we affirm.

So ordered.