author: BEAM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Marchello REMBERT, Defendant-Appellant
    No. 16-2695
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: March 23, 2017
    Rehearing and Rehearing En Banc Denied May 1, 2017

      Counsel who presented argument on behalf of the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.

      Counsel who presented argument on behalf of the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.

       Judge Kelly did not participate in the consideration or decision of this matter.

   BEAM, Circuit Judge.

Marchello Rembert appeals from his conviction and sentence on charges of firearm possession and possession of crack cocaine with intent to distribute. He challenges the admission of a Facebook video at trial, as well as the district court’s application of the career-offender enhancement at sentencing. We affirm.

I. BACKGROUND

In June 2015, while responding to a complaint of disorderly conduct, Waterloo Police recognized Rembert at the scene as a passenger in an SUV. An officer arrested Rembert on an active warrant and during a search incident to arrest, located a large “wad” of money, and individually wrapped clear plastic baggies containing a white substance believed to be crack cocaine. Before being placed in the police vehicle, Rembert spoke to the driver of the SUV, Trisha Millard. In that conversation, Rem-bert told Millard that the officer found crack in Rembert’s pocket.

Once Rembert was secured in the police vehicle, the officer approached Millard who had returned to her vehicle. When Millard told the officer she had a bottle of alcohol in the car, the officer asked Millard to exit the vehicle. Millard told the officer there was a firearm in the SUV and that she had a license to carry a pistol. A search of the SUV revealed a firearm under the driver’s seat, marijuana in the console, a marijuana blunt in the ashtray and loose marijuana throughout the vehicle. There were two latent prints on the firearm, one of which matched Rembert’s left index finger and was located on the left side of the firearm above the front edge of the trigger guard.

As part of the investigation, police examined Rembert’s Facebook page and obtained a video, posted by Rembert in January 2013, depicting Rembert holding a firearm in his left hand with his left index finger on the trigger guard (almost identical positioning to the left index fingerprint recovered from the pistol), rapping, and smoking what looks like a marijuana blunt. The video included a caption that read “Real thugz ’bout dat, get at me. Bang, bang!!!!!!!!!!!!” The government filed a pretrial motion seeking the admission of this video, claiming it went to “knowledge, intent, absence of mistake, and lack of accident.” Rembert objected to the admission of the video altogether and additionally argued that if the district court admitted the video, at the very least the caption should be redacted. The government explained that it could not redact the caption without also redacting the information indicating that Rembert posted the video and the date and time it was posted, and further suggested that if Rembert would stipulate that he posted the video to his Facebook page, the government would redact all of the information. At trial the district court admitted the video with the caption in place.

A jury convicted Rembert on all charges. At sentencing the district court sentenced Rembert to a total term of imprisonment of 210 months, in part based on the application of a career-offender enhancement that relied upon a previous revocation of an extended juvenile jurisdiction charge to support one of the “adult convictions” underlying the enhancement. Rem-bert appeals, challenging the admission of the video and the use of his juvenile charge revocation to support the career-offender enhancement.

II. DISCUSSION

A. Admission of Facebook Video

A district court’s ruling under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009). A district court’s admission of prior act evidence will be reversed “only when such evidence clearly ha[s] no bearing on the issues in the case and' was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Benitez, 531 F.3d 711, 716 (8th Cir. 2008). The district court did not abuse its discretion in admitting the Facebook video in this case.

Rembert challenges what he claims to be the government’s “all' or nothing” approach with the admission of the Face-book video. He claims that the imagery presented to the jury was highly prejudicial and had no probative value at trial, focusing especially on the prejudice he claims occurred by playing the entire video. The government indicated prior to trial that it intended to introduce the Facebook video to establish that Rembert’s touching of the firearm discovered in the vehicle was not accidental, as the placing of the fingerprint was consistent with how Rem-bert generally (and uniquely) held-a firearm. Rembert agrees that the video might show how he holds a firearm but claims the other aspects of the video were highly prejudicial and irrelevant, including the foul language he uses and the caption of the video. It is the latter two aspects — the sound and the caption — that Rembert claims the government should have omitted. He claims only images from the video were necessary to establish the government’s point and that he should not be prejudiced because of the government’s technical inability to remove the caption separate from the date stamp on the video.

The video at issue was relevant on many fronts, and the potential prejudice of the video does not substantially outweigh its probative value. In order to convict Rembert, the government had to show that he possessed the firearm because he either “knowingly ha[d] direct physical control over [the firearm],” or because he “ha[d] both the power and the intention at a given time to exercise dominion or control over [the firearm].” Eighth Circuit Model Jury Instruction 8.02. “Evidence that a defendant possessed a firearm on a previous occasion is relevant to show knowledge and intent.” United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006). Here, the video images are additionally probative of Rembert’s knowing and intentional possession of the firearm found in the vehicle. The handling of the firearm in the video was nearly identical to the manner in which Rembert would have handled the firearm found in the vehicle based upon the placement of his prints. His left index fingerprint was found in a specific place, the same area where he is previously seen holding a firearm (or firearm-like object) in the video. Too, this video was not overly remote in time to the crime charged. United States v. Bassett, 762 F.3d 681, 687 (8th Cir. 2014) (admitting evidence of a robbery “similar in kind” that occurred about eleven years prior to the charged offense).

Rembert does not articulate-how his use of foul language and the video’s caption make the video unfairly prejudicial. The words used on the video are to a rap song, not his own, and the caption does not otherwise associate Rembert with any specific category of behavior. It is also important to note that the government offered to omit the caption of the video if Rembert had stipulated that he was the one who posted it, and that he was the one depicted in the video, but Rembert did not stipulate to those conditions. Finally, the district court also gave a limiting instruction regarding the video, which serves as a protection against unfair prejudice. Id. at 688. Certainly the government could have isolated images from the video to show the key images of Rembert needed to prove his knowing and intentional possession of the firearm, and possibly, in hindsight, the playing of the entire video was surplusage. No matter, however, the viewing of the Facebook video in its entirety was not unfairly prejudicial and the district court' did not abuse its discretion in allowing the video in evidence. Benitez, 531 F.3d at 716.

B. Career-Offender Enhancement

This court reviews de novo a district court’s determination that a conviction is a crime of violence under the Guidelines. United States v. Maid, 772 F.3d 1118, 1120 (8th Cir. 2014). An individual is subject to the career-offender enhancement if he or she is convicted of two felonies that qualify either as a “crime of violence” or a controlled substance offense. U.S.S.G. § 4B1.1. One of Rembert’s prior felonies the district court relied upon in applying the career-offender enhancement in this case was a juvenile conviction for aiding and abetting first-degree robbery that was later revoked and classified as an adult conviction. Rembert argues that the revocation of his Extended Juvenile Jurisdiction (EJJ) for Minnesota aggravated robbery does not constitute an “adult conviction” for purposes of the career-offender enhancement. He acknowledges that this argument is foreclosed by United States v. Nash, 627 F.3d 693 (8th Cir 2010), but urges that Nash was wrongly decided and should be overruled.

Minnesota’s process of EJJ was detailed by this court in Nash. Id. at 695. Upon revocation of an EJJ case and the imposition of the adult sentence, as happened with Rembert:

the offender’s extended jurisdiction status is terminated and juvenile court jurisdiction is terminated. The ongoing jurisdiction for any adult sanction, other than commitment to the commissioner of corrections, is with the adult court.

Minn. Stat. § 260B.130, subd. 5. The Minnesota Court of Appeals has held on multiple occasions that an EJJ adjudication constitutes an adult conviction. State v. Jiles, 767 N.W.2d 27, 29 (Minn. Ct. App. 2009). According to Nash, once EJJ is revoked, the defendant is thus no longer in juvenile court and the resulting EJJ adjudication is a predicate conviction under the Armed Career Criminal Act. 627 F.3d at 696. Thus, the district court correctly held that the revocation of Rembert’s EJJ constituted a felony for purposes of the career-offender enhancement in this case. Nash remains the law of this circuit. United States v. Meeks, 639 F.3d 522, 529 (8th Cir. 2011) (“As one panel of this Court cannot overturn the decision of another panel of the Court, we reject [the defendant’s] challenge as well.”).

III. CONCLUSION

For the reasons stated herein, we affirm.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . We have likewise considered Rembert's argument submitted in his pro se brief concerning the admission of evidence regarding the name and nature of a prior drug conviction and the calculation of his sentence by the district court in light of Johnson v. United States, - U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and find them to be without merit. The evidence of Rembert’s prior drug conviction was not presented for purposes of proving his status as a felon, but rather to show his intent to distribute crack cocaine, an element of the charge in count 2. United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir. 2015) (providing evidence of a prior drug conviction is relevant to show a defendant’s knowledge or intent to commit a current crime); United States v. Jandreau, 611 F.3d 922, 924 (8th Cir. 2010). And, the district court properly applied the Guidelines at sentencing. Beckles v. United States, No. 15-8544, - U.S. -, 137 S.Ct. 886, 895, 197 L.Ed.2d 145, 2017 WL 855781, at *9 (U.S. Mar. 6, 2017) (concluding that the Guidelines are not subject to a vagueness challenge under the Fifth Amendment Due Process Clause and, more specifically, that the vagueness holding in Johnson does not apply to the career-offender provisions of the Guidelines); United States v. Maxwell, 823 F.3d 1057, 1060-62 (7th Cir.) (holding that a conviction for simple robbery under the Minnesota statute is a crime of violence under U.S.S.G. § 4B1.2(a)(1)), cert. denied, - U.S. -, 137 S.Ct. 401, 196 L.Ed.2d 314 (2016).


source: Caselaw Access Project

author: WOLLMAN, Circuit Judge.

license: Public Domain

text:
    CARGILL, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Cargill, Inc., Respondent v. National Labor Relations Board, Petitioner
    No. 16-1565, No. 16-1930
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: March 24, 2017

      Counsel who presented argument on behalf of the petitioner was Douglas M. To-polski, of Washington, DC. The following attorney(s) appeared on the appellant brief; Thomas L Henderson, of Memphis, TN., Audrey M. Calkins, of Memphis, TN.
    Counsel who presented argument on behalf of the respondent was Kyle Albert deCant, of Washington, DC.
    Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT, District Judge.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

      . The Honorable Wilhelmina M. Wright, United States District Judge for the District of Minnesota, sitting by designation.

   WOLLMAN, Circuit Judge.

Cargill, Inc., petitions for review of an order of the National Labor Relations Board, which concluded that Cargill engaged in an unfair labor practice in violation of sections 8(a)(1) and (5), 29 U.S.C. § 158(a)(1), (5), of the National Labor Relations Act (Act), id. §§ 151-169, when it refused to bargain with the United Food and Commercial Workers International Union, Local No. 324 (the Union). The Board cross-petitions for enforcement of its order. We deny Cargill’s petition for review and grant the Board’s cross-petition for enforcement.

Cargill processes food-grade oil at its Fullerton plant, which is divided into two distinct areas, which we will call Side A and Side B. On Side A of the plant, eight terminal employees unload and store incoming oil that arrives at the plant by rail car or truck. The terminal employees also deliver samples of the incoming oil to a lab located on the Side A, and the oil is tested by four quality-control employees, who work in the lab. The terminal employees do not leave Side A, but two of the quality-control employees cross to Side B roughly once a week to retrieve paperwork, to escort a rabbi during his inspection of Side B, and to themselves inspect a pipeline that fills shipping containers with oil on Side B. The quality-control employees generally do not interact with the employees who work on Side B. The four employees in the maintenance department also work on Side A. Their primary responsibility is to repair equipment on both sides of the plant and to schedule work orders, but they do not interact with the employees who work on Side B except as necessary to facilitate repairs.

Side B of the plant is a single building called the packaging warehouse, which is designated for packaging and shipping of processed oil. The twenty-two packaging employees operate machines that adjust the viscosity of processed and unprocessed oil, place empty containers on a conveyor to be filled with unprocessed oil, and transport filled containers by forklift to a storage area for further handling by the shipping employees. After the packaging employees complete their tasks, the nine shipping employees load the packaged oil onto trucks, as well as schedule and monitor trucks arriving at the packaging warehouse to pick up processed and unprocessed oil. Four receiving employees also work in the packaging warehouse, one of whom coordinates the purchase of materials used by packaging employees and three of whom operate forklifts to unload packaging materials and store them in the warehouse. The packaging and receiving employees frequently interact and coordinate to accomplish their work tasks. In addition to sharing a single work location, the packaging, shipping, and receiving employees all have similar wage rates, earn the same benefits, and have a history of common supervision separate from that of employees on Side A. The employees who work in the packaging warehouse typically use the same break room, parking lot, and plant entrance, all of which are separate from those used by employees on Side A.

The Union filed a representation petition with the Board in July 2014, seeking an election to become the bargaining representative of “all full-time and regular part-time packaging, shipping, and receiving employees” at the Fullerton plant. The Union’s petition sought to “exclud[e] all other employees, packaging leads, shipping leads, office clerical employees, professional employees, staffing agency employees, guards[,] and supervisors as defined in the [Act].” Packaging and shipping leads were excluded from the petitioned-for bargaining unit on the theory that they were “supervisors” under the Act. Cargill took a contrary position, arguing that the packaging and shipping leads were “employees” under the Act, not supervisors, and thus were required to be included in the bargaining unit. Cargill also argued that the maintenance, terminal, and quality-control employees shared a community of interest with the petitioned-for unit and were required to be included for the unit to be appropriate. At a hearing before the Regional Director, the Union stated that it would not proceed to an election if its petitioned-for bargaining unit was altered in any way. The Regional Director issued a decision on September 11, 2014, which held that the packaging and shipping leads were employees, not supervisors, under the Act and that the Union’s petitioned-for bargaining unit was inappropriate because it specifically excluded these employees. Because the Union was unwilling to proceed to an election if its petitioned-for bargaining unit was altered, the Regional Director dismissed the Union’s representation petition, finding it unnecessary to decide whether any alternate bargaining unit, ie., one that included the packaging and shipping leads and the maintenance, terminal, and quality-control employees, was appropriate. Neither party requested reconsideration or Board review of the Regional Director’s decision.

-Less than a week later, the Union filed another representation petition, this time seeking an election to become the bargaining representative of “all full-time and regular part-time packaging, shipping, and receiving employees” at the Fullerton plant. The Union sought to exclude “all other employees, maintenance employees, terminal employees, quality-control employees, staffing-agency employees, office clerical employees, guards[,] and supervisors as defined in the [Act].” Cargill filed a motion to dismiss the petition with prejudice, arguing that the petitioned-for bargaining unit was identical to the unit sought by the Union in the earlier petition and rejected by the Regional Director as inappropriate. Cargill also argued that the new petition should be dismissed because it was an improper attempt to reopen the proceedings in the first representation petition, to seek reconsideration of the Regional Director’s decision in those proceedings, and to litigate issues in an untimely or piecemeal fashion. The Regional Director denied Cargill’s motion to dismiss, finding that the bargaining unit petitioned for in the second representation petition was not identical to that petitioned for in the first petition. The Director also rejected Car-gill’s other arguments.

The Regional Director later issued a decision on the merits of the second representation petition, finding that the petitioned-for bargaining unit was appropriate and reaffirming that the shipping and packaging leads were employees and not supervisors under the Act. Cargill requested Board review of the Director’s decision, arguing that the bargaining unit was inappropriate and again asserting that the second representation petition should have been dismissed for the reasons it had previously cited. The Board denied Cargill’s request for review, concluding that the company had not raised any substantial issues warranting review.

A secret-ballot election by the approved bargaining unit was held at Cargill’s Fullerton plant on December 4, 2014, which resulted in fourteen votes in favor of the Union and fourteen votes against the Union. The ballots cast by three' employees were challenged. Cargill also filed five objections to the election, and requested a hearing before the Regional Director. As relevant here, Objection 1 reiterated Car-gill’s argument that the Union’s second representation petition should have been dismissed. Objection 5 alleged that pro-union employees waiting in line to vote “engaged in a loud demonstration just outside the polling room” and that the Board agent overseeing the election did not investigate or stop the conduct. The Regional Director issued a Supplement Decision, summarily overruling Objection 1 as “without merit,” noting that Cargill's various arguments for dismissal had been “fully litigated” and that Cargill “raise[d] nothing new that either was not or could not have been previously litigated” earlier in the proceedings. The Director ordered a hearing on Cargill’s other objections, including Objection 5.

At the hearing, Cargill’s election observer testified about the circumstances surrounding the election, as did two employees who voted in the election. After considering the evidence and testimony, the Hearing Officer issued a Report recommending that Cargill’s objections be overruled and that, the three challenged, ballots be opened and counted towards the final election result. With respect to Objection 5, the Hearing Officer found that even if the testimony of Cargill’s witnesses were credited, the alleged conduct did not warrant setting aside the election results. The Hearing Officer found that there was no evidence that pro-union employees waiting in line outside the polling place attempted to persuade other employees to vote for the Union; that the loud and boisterous conduct lasted only fifteen minutes; that the incidents of booing and chanting were brief, isolated, and directed at a single employee; and that-there was no evidence of threats or physical violence. The Hearing Officer concluded that because the complained-of conduct “was not so disruptive or coercive that it substantially impaired the employees’ exercise of free choice,” overturning the election results was not warranted. Because the underlying employee conduct was not objectionable, it necessarily followed that the Board agent’s determination not to investigate or stop that conduct was likewise not objectionable.

Cargill filed exceptions to the Hearing Officer’s findings and recommendation regarding Objection 5. The Board adopted the Hearing Officer’s findings and recommendations and overruled Objection 5, concluding that the complained-of conduct did “not so substantially impair[ ] the employees’ exercise of free choice as to require that the election be set aside.” The Board ordered the Regional Director to open and count the three challenged ballots, which resulted in a revised vote tally of sixteen votes in favor of the Union and fifteen votes against it. The Regional Director then certified the Union as the collective-bargaining representative of a unit of packaging, shipping, and receiving employees at Cargill’s Fullerton plant.

Cargill refused to bargain with the Union in order to contest the Union’s certification as the collective-bargaining representative, leading the General Counsel to file an unfair-labor-practice complaint with the Board that alleged violations of sections 8(a)(1) and (5) of the Act. Cargill’s answer to the complaint again argued that the Union’s second representation petition should have been dismissed. It also argued in general that the election was invalid, that certification of the Union as the bargaining representative was ineffective, and that Cargill had no duty to recognize or bargain with the Union. The Board granted General Counsel’s motion for summary judgment, concluding that Cargill’s complaints regarding the second representation petition and the conduct of the election either were or should have been raised in the representation proceedings and not in the unfair-labor-practice proceeding. The Board further concluded that Cargill had not offered any newly discovered or previously unavailable evidence or any special circumstances sufficient to justify revisiting any of Cargill’s representation or election arguments. The Board ordered Cargill to cease and desist from refusing to recognize and bargain with the Union and from interfering with, restraining, or coercing employees in the exercise of their rights under the^ Act. It is from that order that Cargill petitions for review. •

Cargill first argues that the Board violated its rules and regulations and departed without explanation from its decisional law when it refused to dismiss the Union’s second representation petition, which, Cargill asserts, sought a unit identical to the unit sought in the Union’s first representation petition. “We review the Board’s findings of fact for substantial evidence on the record as a whole, that is, for such relevant evidence as ‘a reasonable mind might accept as adequate to support’ a finding.” Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 775 (8th Cir. 2016) (quoting NLRB v. Am. Firestop Sols., Inc., 673 F.3d 766, 767-68 (8th Cir. 2012)). We review the Board’s conclusions of law de novo. Id. The Board has broad discretion to establish and implement procedures required to ensure “the free and fair choice of bargaining representatives by employees.” Warren Unilube, Inc. v. NLRB, 690 F.3d 969, 974 (8th Cir. 2012) (quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946)). We defer to the Board’s interpretation of its own rules and regulations, so long as that interpretation is “reasonable and consistent -with the Act.” NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-12, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) (“We find that the Board’s rule ... is reasonable and consistent with the Act, and we therefore defer to it.”); see also Alldata Corp. v. NLRB, 245 F.3d 803, 807 (D.C. Cir. 2001) (“We give controlling weight to the Board’s interpretation of its own rule unless it is plainly erroneous or inconsistent with the regulation itself.”).

As set forth above, the Regional Director found that the Union’s first representation petition inappropriately excluded shipping and packaging leads from the petitioned-for unit. Because the Union was unwilling at that time to proceed with an alternative unit, the Regional Director dismissed the first petition without ruling on the ultimate appropriate-unit issue. The Union was then left to decide whether to further litigate the issue of the shipping and packaging leads in a petition for Board review of the Regional Director’s decision or in a motion for reconsideration or rehearing by the Director, or whether to pursue representation of a different unit that included the shipping and packaging leads. The Union elected to pursue the latter course by filing a new petition that sought to represent a different unit — one that did not specifically exclude shipping and packaging leads. By electing to file a new petition, the Union did not, as asserted by Cargill, run afoul of 29 C.F.R. § 102.65(e)(1), which prohibits a motion for reconsideration, rehearing, or reopening of the record on a matter that could have been raised in the earlier proceedings.

Cargill also argues that because the unit proposed in the Union’s second petition was identical to the unit proposed in the Union’s first representation petition, the Board’s refusal to dismiss the second petition allowed the Union to improperly reliti-gate this issue, reopen the record on the issue, and litigate the issue piecemeal fashion. Although the Union may not have officially abandoned its original position that the shipping and packaging leads were “supervisors” under the Act and not “employees,” it did not pursue that position in the second proceeding. The Union did not specifically exclude the shipping and packaging leads from the unit sought in the second petition. Nor did it present any new evidence on the matter in the second proceeding. Indeed, the Union declined to challenge the Regional Director’s original finding regarding the shipping and packaging leads, instead stipulating to the record compiled in the first proceeding and agreeing with Cargill that the Regional Director should “take administrative notice of the record in [the first petition] in determining the appropriateness” of the unit sought in the second petition. As set forth above, the Regional Director considered and rejected Cargill’s argument, finding that although the units were “similar,” they were not identical because “the petitioned-for unit [in the second representation petition] does not seek to specifically exclude the classifications of ‘packaging leads’ or ‘shipping leads.’ ” This finding is supported by substantial evidence on the record. See Cellular Sales, 824 F.3d at 775. Moreover, the Board’s conclusion that the rules and regulations cited by Cargill were inapposite is “reasonable and consistent with the Act,” and is thus entitled to deference. Ky. River Cmty. Care, 532 U.S. at 711-12, 121 S.Ct. 1861.

Cargill also contends that the Board’s failure to dismiss the second petition violated various provisions set forth in its Casehandling Manual. As Cargill acknowledges, however, the provisions of the Casehandling Manual do “not bind[] this court or the NLRB.” Sioux City Foundry Co. v. NLRB, 154 F.3d 832, 838 (8th Cir. 1998).

Cargill has not cited a controlling rule or regulation that required the dismissal of the Union’s second representation petition, that prohibited the filing of a second petition, or that required the Union to seek reconsideration or Board review of the dismissal of the first petition in lieu of filing a second petition seeking a different bargaining unit. Accordingly, we reject Car-gill’s argument that the Board erred in declining to dismiss the second petition.

Cargill next argues that the bargaining unit approved by the Board was inappropriate and that all of the employees at the Fullerton plant should have been included in the unit, given the plant’s highly integrated operations. We disagree. The Board is authorized under the Act to determine “the unit appropriate for the purposes of collective bargaining,” 29 U.S.C. § 159(b), and our review of that determination “is limited to ... whether the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial evidentiary support,” FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 521 (8th Cir. 2016) (quoting NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843, 848 (8th Cir. 2005)). Because our “scope of review is narrow,” the Board’s “determination as to the appropriateness of a bargaining unit will rarely bp disturbed.” Id. at 522 (quoting Cedar Valley Corp. v. NLRB, 977 F.2d 1211, 1218 (8th Cir. 1992)). The Board determines whether a unit is appropriate by considering whether the unit is composed of employees who are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)” and who “share a community of interest.” Specialty Healthcare, 357 N.L.R.B. 934, 945 (2011); see FedEx Freight, 816 F.3d at. 522, 525 (adopting Specialty Healthcare framework). A party contesting the Board’s determination that a petitioned-for unit of employees meets these criteria must demonstrate that other employees who were excluded from the unit “share an overwhelming community of interest” with those in the petitioned-for unit and that “there is no legitimate basis for excluding” them. FedEx Freight, 816 F.3d at 527 (quoting Specialty Healthcare, 357 N.L.R.B. at 945-46).

The Board reasonably determined that the packaging, shipping, and receiving employees are readily identifiable as a group and share a community of interest. The Board found that these employees work together in the packaging warehouse, which stands apart from the rest of the plant; that they pursue a common goal related to the packaging and shipping of processed oil; and that they share a single supervisor, as well as a history of common supervision. The Board noted that the employees in the petitioned-for unit know each other personally, frequently interact, and share a break room and parking lot. The Board also found that they have similar wage rates and receive the same benefits. The Board’s determination that the proposed unit of packaging, shipping, and receiving employees was appropriate was thus not “arbitrary, capricious, an abuse of discretion, or lacking in substantial eviden-tiary support.” See FedEx Freight, 816 F.3d at 521.

The Board also reasonably determined that Cargill failed to show that the terminal, quality-control, and maintenance employees, all of whom were excluded from the bargaining unit, shared an “overwhelming community of interest” with the bargaining-unit employees such that their exclusion from the unit rendered it inappropriate. See Specialty Healthcare, 357 N.L.R.B. at 945-46. The Board found that the excluded employees have minimal interaction with the bargaining-unit employees, particularly given that they work on two separate sides of the plant and rarely cross the divide. See FedEx Freight, 816 F.3d at 527 (recognizing significance of “several common sense logical distinctions” that separated petitioned-for unit of employees from excluded employees). Additionally, the Board found that the packaging, shipping, and receiving employees share a common function — the packaging and shipping of processed oil— one that is not shared with the terminal, quality-control, and maintenance employees, whose principal responsibilities involve the unloading and testing of incoming oil and the maintenance of machinery. The Board acknowledged that two quality-control employees periodically cross over to the packaging warehouse, but reasonably found that those employees primarily worked in the separate on-site lab and rarely interacted with employees stationed in the packaging warehouse. A bargaining unit must be “appropriate,” but it need “not necessarily [be] the single most appropriate unit.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991); see also FedEx Freight, 816 F.3d at 523 (“If the Board concludes that the petitioned for unit is ‘an appropriate unit,’ it has fulfilled the requirements of the Act and need not look to alternative units.”). Given our narrow scope of review and the deference owed to the Board in the resolution of bargaining-unit matters, we conclude that the Board did not err in finding that Cargill failed to establish an overwhelming community of interest between the excluded employees and those in the petitioned-for unit such that there was no legitimate basis for their exclusion. We therefore reject Cargill’s challenge and decline to disturb the Board’s determination that the petitioned-for unit composed of packaging, shipping, and receiving employees was an appropriate collective-bargaining unit.

Finally, Cargill argues that Objection 5 to the conduct of the election should have been sustained and the election results set aside. The Board has broad discretion to establish the “safeguards necessary” to ensure a “fair and free” representation election, A.J. Tower Co., 329 U.S. at 330, 67 S.Ct. 324; see also Warren Unilube, 690 F.3d at 974, and “[t]here is a strong presumption” that such an election “reflects the employees’ true desires regarding representation,” Deffenbaugh Indus., Inc. v. NLRB, 122 F.3d 582, 586 (8th Cir. 1997). Thus, “[Representation elections are not to be set aside lightly,” and the party seeking to overturn election results “carries a heavy burden.” Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258, 261 (8th Cir. 1993); see also Warren Unilube, 690 F.3d at 974. To carry that burden, the party challenging the election must “show by specific evidence not only that improprieties occurred, but also that they interfered with employees’ exercise of free choice to such an extent that they materially affected the election results.” Warren Unilube, 690 F.3d at 974 (quoting Beaird-Poulan Div. v. NLRB, 649 F.2d 589, 592 (8th Cir.1981)). Election results will not be overturned on the basis of objectionable conduct by employees or third parties unless that conduct created “an atmosphere of fear and reprisal such as to render free expression of choice impossible.” Millard Processing, 2 F.3d at 261 (citations omitted).

The Board found that, even accepting the testimony of Cargill’s witnesses, the company had failed to establish that the complained-of conduct created the necessary atmosphere of fear and reprisal that rendered a free election impossible. Cargill’s witnesses testified that during the first ten or fifteen minutes of the voting session some employees engaged in loud, boisterous conversation and shouted profanities while waiting in line to vote; briefly chanted, “Yes we can,” in Spanish; and booed a coworker known to have voted against the Union. But “loud outbursts] in the polling area by nonagent[s of the Union], even involving a partisan message, do[ ] not rise to the level of objectionable third-party conduct.” SNE Enterps., Inc., 344 N.L.R.B. 673, 681 (2005). Even the arguably more egregious booing incident was insufficient to establish a general atmosphere of fear and reprisal, as the incident was brief, directed at a single employee, and was not shown to have had an impact on any other employee. See NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 329-30 (5th Cir. 1991) (affirming Board’s finding that third-party conduct did not justify setting aside election results even when terminated employees told former coworkers waiting in line to vote that they “kn[e]w damn well the way” they were “supposed to vote”). These findings are supported by substantial evidence. See Cellular Sales, 824 F.3d at 775.

Cargill argues that the Board improperly relied upon the absence of threats or physical violence in concluding that the complained-of conduct did not create the requisite atmosphere of fear and reprisal. True, the Board pointed out that the complained-of conduct did not include threats or physical violence, but it did not conclude, or even suggest, that proof of such conduct was necessary in order to establish the general atmosphere of fear and reprisal necessary to overturn election results. Instead, the Board discussed the allegedly comparable cases involving threats and physical violence and stated, “Contrary to [Cargill’s] claims, th[e complained-of] conduct is distinguishable both from the coercive gauntlet that voters were forced to pass in order to vote in Pepsi Cola Bottling Co., 291 N.L.R.B. 578, 579 (1988) ..., and from the overtly threatening voting-line misconduct in Westwood Horizons Hotel, 270 N.L.R.B. 802 (1984).In sum, the Board did not err in concluding that Cargill failed to carry its.heavy burden of showing that the complained-of conduct created a general atmosphere of fear and reprisal rendering a free election impossible.

In a related argument, Cargill contends that the Board agent’s failure to investigate and halt the complained-of employee conduct casts sufficient doubt on the fairness and validity of the election such that the results should be overturned. See NLRB v. Superior of Mo., Inc., 351 F.3d 805, 809 (8th Cir. 2003) (noting that employer must show that Board agent’s conduct “tends to destroy confidence in the Board’s election process, or ... could reasonably be interpreted as impugning the election standards” (citations omitted)). Because there was no employee conduct sufficiently objectionable to require action by the Board’s agent, the Board did not err in concluding that Cargill failed to establish that the Board agent’s conduct cast a reasonable doubt on the Board’s neutrality or the integrity of the election.

The petition for review is denied, and the Board’s Order is enforced in full.

      . Cargill also argues that the standard applied by the Board in Specialty Healthcare was a departure from Board precedent. We considered and rejected this argument in FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 523-25 (8th Cir. 2016), rehearing and rehearing en banc denied (May 26, 2016).


author: TROTT, Circuit Judge:

text:
    Mahin OSKOUI, an individual, Plaintiff-Appellant, v. J.P. MORGAN CHASE BANK, N.A.; U.S. Bank, N.A., as Trustee, Successor in Interest to Bank of America, National Association as successor by merger to LaSalle Bank NA as Trustee for WAMU Pass-Through Certificates Series 2007-HY06 Trust erroneously sued as U.S. Bank, N.A., Defendants-Appellees.
    No. 15-55457
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 13, 2017 Pasadena, California
    Filed March 13, 2017

      Richard L. Antognini (argued), Law Office of Richard L. Antognini, Grass Valley, California, for Plaintiff-Appellant.
    Richard P. Steelman, Jr. (argued) and Glenn J. Plattner, Bryan Cave LLP, Santa Monica, California, for Defendants-Appel-lees.
    Before: STEPHEN S. TROTT, M. MARGARET McKEOWN, and PAUL J. WATFORD, Circuit Judges.
   OPINION

TROTT, Circuit Judge:

Mahin Oskoui sued defendant J.P. Morgan Chase Bank, N.A. (“Chase”) for damages allegedly suffered when she unsuccessfully attempted over a two-year period to modify the loan on her home. Acting as her own attorney, she asserted inter alia claims for a breach of contract, “breach of implied covenant of good faith and fair dealings,” and a violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, the latter based on an assertion that she had been victimized by Chase’s unfair or fraudulent business acts or practices. She also attempted to sue Chase for a violation of 15 U.S.C. § 1601, the Truth in Lending Act (“TILA”). Without argument, the district court declined to consider Oskoui’s breach of contract claim and granted summary judgment to defendant Chase.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 ( We reverse and remand.

I

In reviewing de novo the district court’s decision, we view the evidence in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

In 1990, Mahin Oskoui, a registered nurse, purchased a single-family home for herself in Los Angeles, California. Her down payment on the property was $250,000. In 2007, the appraised value of the property was $1,250,000. On March 27, 2007, she refinanced her acquisition with a loan from Washington Mutual Bank (“WaMu”). As security, she executed a promissory note and a deed of trust securing the note with the property. At that time, WaMu was the United States’ largest savings and loan association until it imploded in 2008 during the subprime mortgage crisis and the collapse of the so-called “housing bubble.” In turn, this debacle triggered massive loan defaults and a severe national economic recession. The Office of Thrift Supervision closed WaMu on September 25, 2008, naming the Federal Deposit Insurance Corporation (“FDIC”) as WaMu’s receiver. On September 25, 2008, the FDIC transferred WaMu’s assets to defendant Chase.

In November 2008, Oskoui missed a loan payment, as did many homeowners in similar dire straits. In January 2009, not knowing about WaMu’s demise, she applied to WaMu for a loan modification. On May 21, 2009, Chase sent her a letter offering her a “Trial Plan Agreement.” The letter did not advise her of what was required of a borrower or of a loan for approval under the applicable modification rules, regulations, and guidelines. The letter did advise her that “[i]f you comply with all the terms of this Agreement, we’ll consider a permanent workout solution for your loan once the Trial Plan has been completed.” The only specified term of. the Agreement was that Oskoui remit three equal payments of $3,280.05 to Chase between July and September 2009. Oskoui signed the Agreement on June 1, 2009.

Oskoui fully complied with the Agreement’s payment term by timely sending $9,840.15 to Chase, only to be informed on November 10, 2009, that she did not qualify “at this time” for a modification under either the federal Making Home Affordable Program (“HAMP”), 12 U.S.C. § 5219(a), or the Chase Modification Program (“CHAMP”) because “[y]our income is insufficient for the amount of credit you have requested.” Her monthly income during that period was $10,575.00. Chase gave Oskoui no additional reasons for its denial even though its internal paperwork reveals two others, each apparently fatal to her attempt to modify her loan. One barrier was the unpaid principal balance on the loan — $833,000—which was higher than the amount allowed under the HAMP Guidelines. This factor rendered her ineligible for a HAMP modification. The other barrier, which made her ineligible for CHAMP relief, was the loan’s failure to satisfy Chase’s net present value test (“NPV”). Chase’s internal modification documents reveal that a person identified as “CHANG” determined on November 10, 2009 that Oskoui’s application should be rejected. The document says, “denied— income insufficient and did not pass the npv calc test.”

This test, which Chase did not reveal or explain in its November 10, 2009 letter, compares the NPV expected from a modification to the NPV of the unmodified loan. The • test compares cash flow from the modification to the cash flow expected from the absence of a modification. If the cash flow from a viable modification exceeds that of a non-modified loan, HAMP requires a servicer to offer a modification to a borrower. If the NPV test generates a negative result, modification is optional.

Not only did Chase fail to advise Oskoui that she was not eligible for these modifications, it told her instead that “we may be able to offer other alternatives to help avoid the negative impact” of foreclosure and a deficiency judgment. Chase failed to explain what its “other alternatives” were or what Oskoui would be required to demonstrate to qualify for them.

Given this enticing invitation, Oskoui tried again, by submitting in January 2010 another application for a loan modification. She had no inkling that Chase had already determined that she was not eligible because of the amount of the unpaid balance of the loan and the NPV problems with it.

On March 1, 2010, Chase responded by letter to Oskoui’s new application. This letter said Chase “wants to help you stay in your home” and confirmed receipt and review of “your verification of income documentation.” Included with the letter were three payment coupons and three return envelopes, each coupon in the amount of $2,988.49, and due on April 1, May 1, and June 1, 2010. The March 1, 2010 letter also stated on the first page: “After successful completion of the Trial Period Plan, CHASE will send you a Modification Agreement for your signature which will modify the Loan as necessary to reflect this new payment amount.” (emphasis added). Chase said not a word about any concerns about her income and did not specify anything in that regard as a condition precedent to a modification. The March 1, 2010 letter says on page 2, however, that “[i]f all payments are made as scheduled, we will consider a permanent workout solution for your Loan.” This language on page 2, which is followed by bold type detailing the manner in which she should remit her payments, when read in the light of Chase’s promise on page 1 creates at best a misleading ambiguity. Page 2 attempts to temper what Chase offered and promised on page 1: a Modification Agreement for her signature. Once again, as with Chase’s November 10, 2009 letter, its March 1, 2010 letter, which Os-koui appended to her complaint as “Exhibit A,” failed to alert her to her apparent ineligibility for a modification.

The next event in this drawn-out process came as quickly as night extinguishes the day. On March 2, 2010, one day after Chase’s letter welcoming Oskoui for a second time to its Trial Period Plan (“TPP”) and acknowledging receipt of her income verification documents, Chase sent her another letter telling her for the first time that she was not eligible for a federal HAMP modification “because the current unpaid principal balance on your Loan is higher than the program limit....” Not only did the letter omit any reference to the fatal NPV test, it said that Chase was “happy!’ to tell Oskoui that she “may be eligible for other modification programs” and that Chase may be able to offer “other alternatives” to stave off “the negative impact a possible foreclosure may have on [her] credit rating, the risk of a deficiency judgment ... and the possible adverse tax effects of a foreclosure.... ” Oskoui took these consequences as menacing threats, not friendly legal advice. Chase’s letter did not explain what its “other alternatives” were or what it would take to qualify for them. Also, Chase made no mention of the payments it had requested the previous day in its March 1, 2010 letter. Because Chase had left the door open to relief and even urged her to do so, Oskoui diligently made — and Chase accepted — her monthly payments as solicited, not just for three, but for seven months.

On October 1, 2010, Oskoui sent a $2,988.49 payment to Chase. Nevertheless, on October 25, 2010, a foreclosure notice appeared on her front door, listing a foreclosure sale date of November 18, 2010. Remarkably, Chase allegedly sent her another letter dated November 1, 2010 encouraging her to continue to seek a modification. Chase even told her she might “qualify for monetary incentives that will be used to pay down the principal balance of your loan if you make your modified payments on time.” At this point, Oskoui withdrew from the process. She was now $33,738.00 poorer with nothing to show for her efforts to comply with Chase’s requests.

In a signed pro se declaration submitted to the district court in connection with Chase’s motion for summary judgment, Oskoui explained her reluctance to continue the process any further.

Defendants’ actions have proven their lack of intention in modifying plaintiffs loan and putting her through an intense, stressful 2 years of agony and fear of losing her home which was not an ethical or just thing to do. The [October] payment was the last one plaintiff made, and she had stopped following the modification program that seemed to be a way for Chase to extract more money with the only purpose in mind of “[s]elf-enrichment.” She had lost faith in Chase’s modification game and was also completely exhausted emotionally and physically between handling Chase’s never-ending documents requests, foreclosure threats, her highly demanding job as a registered [n]urse and daily life’s responsibilities....
In fact, because of Plaintiffs advanced age, the • damage done by Defendants has been more severe than it might have been for a younger person. Since her profession requires emotional wellbeing in order to carry out her duty as RN. She felt less than qualified to deal with other people’s pain and life & death situations. After 2 long years of modification drama, she still was put through the horrors and nightmares of post foreclosure ordeal. Fear of homelessness, and embarrassment in the closely-knit homeowners’ community of her 25 year lived neighborhood. Not to mention the trauma of this litigation. All - this, just because defendants’ insatiable appetite for ENRICHMENT.

On January 4, 2011 — two years after her first application — Chase sent Oskoui a final letter denying her application, stating, “We are unable to offer you a modification through the federal Home Affordable Modification Program (HAMP) or any Chase modification programs ... because you did not provide us with the documents we requested.”

II

Notwithstanding Oskoui’s explanation of her understandable withdrawal from the exhausting two-year process, the district court granted Chase’s motion for summary judgment on the ground that she had failed in late 2010 to provide Chase with the “requested documentation to support her loan modification request.” The court declined to entertain her contractual claim because she had only “conclusorily” asserted that the “modification back-and-forth ripened into a contract with Chase” and remarked that she “sensibly” had not included a breach of contract claim in her first amended complaint.

III

In denying Chase’s Fed. R. Civ. P. 12(b)(6) motion to dismiss as to Oskoui’s UCL claim, Judge George Wu remarked that Oskoui had indeed presented the court with a viable claim under California law for a fraudulent and an unfair business practice. Citing Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1169 (9th Cir. 2012) (“A business practice is fraudulent under the UCL if members of the public are likely to be deceived.”), Judge Wu said,

Although Defendants express some uncertainty concerning the nature of Plaintiffs claims, she expressly includes a claim for unfair business practices, which the Court presumes (and Defendants have presumed) refers to a claim under California Business and Professions Code § 17200. The Court can conceive of Plaintiffs allegations satisfying both the “fraudulent” and “unfair” prongs of a section 17200 claim. If what Plaintiff alleges is true — that Chase’s left hand sought payments from Plaintiff pursuant to a plan designed to give her an opportunity to modify her loan while, notwithstanding Plaintiff’s payment in accordance with that plan, Chase’s right hand continued all along with foreclosure proceedings and both hands should have known from the start that Plaintiff’s loan would not be eligible for modification in any event — the Court can conceive of such allegations stating a section 17200 claim;

Minutes of Hearing on Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint, Oskoui v. JPMorgan Chase Bank, N.A., No. 2:12-cv-03511-FMO-AGR (C.D. Cal. Oct. 4, 2012), ECF No. 23 (footnote omitted).

We agree with Judge Wu’s analysis. The facts we have arrayed plainly demonstrate a viable UCL claim.

The published HAMP Guidelines disqualified Oskoui from HAMP relief. In an age of computerized records, Chase no doubt had this disqualifying information at its fingertips and could have made this simple determination within a matter of minutes. But instead of determining eligibility before asking for money — a logical protocol called for by HAMP as of January 28, 2010 — Chase asked Oskoui for more payments. See Bushell v. JPMorgan Chase Bank, N.A., 220 Cal.App.4th 915, 924 n.4, 163 Cal.Rptr.3d 539 (2013) (citing U.S. Dep’t of Treasury, HAMP Supplemental Directive No. 10-01 (Jan. 28, 2010)). And even when Chase told Oskoui the next day that she did not qualify for HAMP, it did not inform her of her precarious situation concerning unexplained “other alternatives,” preferring instead to accept payments for seven additional months.

Moreover, in Chase’s words, she was “not eligible” for proprietary CHAMP modification because her debt to income ratio was “well over the 31% limit.” Chase did not timely alert Oskoui to this problem or explain it in its March 2, 2010 letter. Two years after she began this journey and $33,738.00 out of pocket, Oskoui received nothing for her efforts. She argues that “[i]f Chase had told her she was not eligible for a loan modification, she never would have made those payments.” This option should have been hers to exercise.

It boils down to this. With its March 1, 2010 letter, Chase deceptively enticed and invited Oskoui into a process with the demonstrably false promise that a loan modification was within her reach if she were to make three monthly payments of $2,988.49 each. The next day — and for the first time — Chase eliminated a HAMP modification from its menu, but neither advised Oskoui what the CHAMP Guidelines required nor suspended additional payments until it could determine her CHAMP eligibility. Chase now says in its brief that the CHAMP Guidelines did not have the HAMP loan balance limitation, but conspicuous by its absence in Chase’s representation is any reference to the NPV test. Chase’s counsel suggested during oral argument that Chase had a valid reason for continuing the process as it did, i.e., that Oskoui’s income situation might have improved. On this record, any such expectation would .have been patently unreasonable.

We can discern no acceptable utility in Chase’s alluring “other alternatives” strategy or tactics. Whether Chase’s Kafkaesque conduct was intentional or the result of corporate ineptitude — as suggested by Judge Wu — the result is the same: The facts in this record would amply support a verdict on this claim in Oskoui’s favor on the ground that she was the victim of an unconscionable process. Chase knew that she was a 68 year old nurse in serious economic and personal distress, yet it strung her along for two years, kept moving the finish line, accepted her money, and then brushed her aside. During this process, Oskoui made numerous frustrating attempts in person and by other means to seek guidance from Chase, only to be turned away.

IV

The district court erred in failing to acknowledge Oskoui’s claim for breach of contract in her pro se complaint. She explicitly styled her complaint on its first page as one for “BREACH OF CONTRACT AND BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALINGS.” On page 4, she averred that:

Once an offer of TPP was made to Plaintiff, Chase entered into a contract which was binding, superseding and implicitly having the effect of suspending the default condition that had existed between Plaintiff (alleged borrower) and Defendants .... Plaintiff successfully executed and met all terms outlined in the TPP and far exceeded all her obligations.... Plaintiff not only met all the financial obligations required by Chase but most importantly, provided ample documentation demonstrating her financial ability to qualify for a modification loan....

On page 11, she said,

In the absence of a valid reason for refusing to modify, it can logically be inferred, through Defendant’s breach of the TPP contract, that it was simply extracting additional payments under the guise of a loan modification offer while still intending to foreclose.

Moreover, Oskoui attached to her complaint Chase’s March 1, 2010 letter containing its representation that upon her successful completion of the TPP, Chase “will send you a Modification Agreement for your signature which will modify the loan as necessary to reflect this new payment amount.”

The Seventh Circuit’s opinion in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), which we identified in Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 880 (9th Cir. 2013) (per curiam) as “the leading federal appellate decision” on this issue of contract, illuminates the viability of Oskoui’s claim. As in the case now before us, Wells Fargo argued in Wigod that its TPP language was not an enforceable offer because it was conditioned on Wells Fargo’s further review of Wigod’s financial information to ensure that she qualified under HAMP. Wigod, 673 F.3d at 561. The Seventh Circuit dismissed this contention' as an unreasonable reading of the TPP. The court pointed out that the TPP spelled out two conditions precedent to Wells Fargo’s obligation to offer a permanent modification, and that Wigod alleged that she fulfilled both conditions. Id. at 560-61. The court refused to allow other language in the TPP to nullify Wells Fargo’s clear promise of an offer of a permanent modification if Wigod complied with its conditions. Id. at 562-63.

In Bushell, the California Court of Appeal identified Wigod as “providing] guidance,” and it followed the Seventh Circuit’s approach to this issue. 220 Cal.App.4th at 918-19, 163 Cal.Rptr.3d 539. We also noted in Corvello that there is “no material difference” between California and Illinois law. 728 F.3d at 884.

Although its letter of November 3, 2010 thanks Oskoui for participating in the HAMP program, Chase now protests that it never offered a HAMP modification to Oskoui. There’s the rub. Once Oskoui made her three payments, Chase was obligated by the explicit language of its offer to send her an Agreement for her signature “which will modify the loan as necessary to reflect this new payment amount.” Chase did not call it either a HAMP agreement or a CHAMP agreement, just an “Agreement.” What program the Agreement was part of is irrelevant. Chase must abide by its own language. It did not live up to its promise. If Oskoui did not consider the offered modification to be acceptable, at that point she could have extracted herself from this aspect of her difficult situation instead of soldiering on towards a beckoning mirage.

Accordingly, we remand this issue to the district court with instructions to permit Oskoui to amend if necessary and to proceed with her complaint for a breach of contract. See Bushell, 220 Cal.App.4th 915, 163 Cal.Rptr.3d 539. See also Corvello, 728 F.3d 878; Wigod, 673 F.3d 547.

y

In her original complaint, Oskoui included a claim for a violation of the Truth in Leading Act. Judge Wu dismissed this allegation pursuant to Fed. R. Civ. P. 12(b)6 for failure to state a claim. Subsequently, the Supreme Court decided Jesinoski v. Countrywide Home Loans, Inc., — U.S. -, 135 S.Ct. 790, 190 L.Ed.2d 650 (2015). The Court held that TILA gives a borrower the right to rescind certain loans, and that this right may be exercised by a written notice from the borrower to the lender within three years after the consummation of the transaction. Oskoui now asks for leave to amend her operative complaint to articulate a claim for rescission. She asserts that she sent a TILA rescission letter to Chase in December 2009, within the three years required by the statute. 15 U.S.C. § 1635(f). Chase responds that its agreement with the FDIC protects it from any liability WaMu may have had in connection with its previous business. Oskoui says not so because she sent her rescission letter to Chase, not to WaMu.

This dispute is best resolved in the district court. Accordingly, we remand with instructions to permit Oskoui to amend her complaint to allege a right to rescind pursuant to Jesinoski. However, this permission to amend is conditional on her prompt delivery to the court of the “rescission” letter of December 2009 to which she refers in her brief.

REVERSED and REMANDED for further proceedings.


author: WATFORD, Circuit Judge:

text:
    Cindy OMIDI; Asset Management Irrevocable Trusts via Trustee Asiatrust Nevis, Ltd., aka Asiatrust, Ltd.; and Property Care Insurance, Inc., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-55667
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 11, 2017 Pasadena, California
    Filed March 13, 2017

      Ryan D. Kashfían, Esq. (argued) and Robert A. Kashfían, Esq., Kashfían & Kashfían LLP, Century City, California, for Petitioners-Appellants.
    Steven R. Welk (argued), Assistant United States Attorney, Chief, Asset Forfeiture Section; Eileen M. Decker, United States Attorney; Lawrence S. Middleton, Assistant United States Attorney, Chief, Criminal Division; Office of the United States Attorney, Los Angeles, California; for Respondent-Appellee.
    Before: ALEX KOZINSKI and PAUL J. WATFORD, Circuit Judges, and MARK W. BENNETT, District Judge.

       The Honorable Mark W. Bennett, District Judge for the U.S. District Court for the Northern District of Iowa, sitting by designation.

   OPINION

WATFORD, Circuit Judge:

As part of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202, Congress imposed new deadlines for the processing of civil forfeiture claims. Under CAFRA, when the federal government seizes certain types of property, it must generally provide notice of the seizure to interested parties as soon as practicable, but in no event later than 60 days after the seizure occurs. 18 U.S.C. § 983(a)(1)(A). After receiving notice, a person with an interest in the property may file a claim with the relevant agency. § 983(a)(2)(A). Upon receiving a claim, the government must file a civil or criminal forfeiture action within 90 days, unless a court extends the deadline. § 983(a)(3)(A).

In this case, in connection with an ongoing criminal investigation, the government obtained warrants authorizing it to seize roughly $100 million from bank accounts controlled by the appellants. The government asserts that the funds are proceeds of criminal activity and thus subject to forfeiture under 18 U.S.C. § 981, the primary statute authorizing forfeiture of property tied to criminal wrongdoing. The appellants allege that although they learned of the seizure shortly after it occurred, the government did not provide the notice required by § 983(a)(1)(A) within 60 days of the seizure. As a consequence of that failure, they contend, the government must return the seized funds under § 983(a)(1)(F). That provision provides, as a sanction for violating subsection (A), that “the Government shall return the property to [the person from whom it was seized] without prejudice to the right of the Government to commence a forfeiture proceeding at a later time.” The district court denied the appellants’ motion on the ground that § 983(a)(1)(A) does not apply in this case. We agree with that conclusion.

Section 983(a)(1)(A)® provides in relevant part as follows:

Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.

(Emphasis added.)

In our view, the italicized phrase resolves this appeal. It limits the applicability of the 60-day notice deadline to “nonjudicial” civil forfeiture proceedings. This case involves judicial forfeiture proceedings, so the notice provision at issue does not apply. Explaining why requires a brief description of the difference between judicial and nonjudicial. forfeiture proceedings.

As the term implies, in nonjudicial (administrative) forfeiture' proceedings, the government may obtain title to forfeited property without any involvement by the courts. The procedure is authorized by provisions of the Tariff Act of 1930, found at 19 U.S.C. §§ 1607 and 1609. Those provisions pertain to customs cases, but the forfeiture statute the government invokes here — 18 U.S.C. § 981 — incorporates them by reference (as modified by CAFRA). § 981(d); see Stefan D. Cassella, Asset Forfeiture Law in the United States § 4-3, at 153 (2d ed. 2013).

To start the administrative forfeiture process, the government must provide notice to interested parties after seizing the targeted property. 19 U.S.C. § 1607(a). If no one comes forward to claim an interest in the property within the deadline specified in the notice, the government may declare the property forfeited, at which point title passes to the United States. 18 U.S.C. § 983(a)(2)(B); 19 U.S.C. § 1609. If a claimant does come forward to claim an interest in the property, the administrative forfeiture process ceases and within 90 days the government must initiate a judicial forfeiture proceeding — a formal court action which, if successful, results in a court order declaring the property forfeited. 18 U.S.C. § 983(a)(3). The government may initiate judicial forfeiture proceedings in one of two ways: by filing a civil forfeiture complaint in the district court, or by obtaining a criminal indictment alleging ■that the property is subject to forfeiture. Id.

Certain types of property are not eligible for nonjudicial forfeiture proceedings; they may be forfeited only through proceedings in court. The government may obtain forfeiture of real property, for example, only through judicial forfeiture proceedings. 18 U.S.C. § 985(a). The same is true with respect to personal property worth more than $500,000, subject to a few exceptions not relevant here. 19 U.S.C. § 1607(a); see Cassella § 4-8, at 154-55.

To obtain forfeiture of the seized funds in this case, the government must pursue judicial forfeiture proceedings because the value of the property far exceeds $500,000. The government could not have pursued nonjudicial forfeiture proceedings even if it had wanted to. That is why the notice deadline imposed by § 983(a)(1)(A) — limited on its face to nonjudicial forfeiture proceedings — does not apply here.

The appellants counter this straightforward textual reading of § 983(a)(1)(A) by relying on the last clause of the provision, which states that the required notice “shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.” (Emphasis, added.) The appellants contend that when Congress said “in no case” it meant in no case of any kind, whether involving judicial or nonjudicial forfeiture proceedings. Read in context, though, it is evident that the phrase “in no case” was used to mean “in no event” or “in no instance.” It qualifies the requirement that notice must.be given “as soon as practicable” by setting an outer limit on the time period within which notice must be sent. It does not establish a freestanding notice deadline of its own, much less one that overrides the statute’s clear statement that the notice deadline applies only in “nonjudicial civil forfeiture proeeed-ing[s].”

The appellants contend that our reading of the statute leads to an apparent anomaly, which they describe as follows: Owners of personal property worth less than $500,000 are generally entitled to notice within 60 days of the seizure of their property, and by promptly filing a claim, they can force the government to initiate court proceedings within 90 days, absent a court-approved extension. Owners of personal property worth more than $500,000, however, are not entitled to the same procedural protections. The government may seize their property and delay initiating judicial forfeiture proceedings for a lengthy period of time, subject only to the limits imposed by the Due Process Clause. See United States v. $8,850 in U.S. Currency, 461 U.S. 555, 564, 569-70, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (upholding an 18-month delay). That result is at odds, the appellants say, with CAFRA’s objective of ensuring timely access to the courts for those who seek to contest the seizure of their property.

We do not think this apparent anomaly gives us license to rewrite the statutory text, given the clarity of § 983(a)(l)(A)’s limitation to “nonjudicial” civil forfeiture proceedings. See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). In any event, though, the difference in treatment highlighted by the appellants is not as stark as they suggest. Owners of personal property worth more than $500,000 are not left without recourse to the courts when the government seizes their property and delays initiating judicial forfeiture proceedings for months or years on end. They can file a motion in the district court seeking return of their property under Federal Rule of Criminal Procedure 41(g), which provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” When criminal proceedings are already underway against the aggrieved property owner, such motions can be heard as part of the criminal case itself. Even when criminal proceedings are not yet underway, as was true here, an aggrieved property owner may invoke Rule 41(g) as a means of obtaining judicial review. In that situation, the motion is treated .as a petition for civil equitable relief subject to the district court’s balancing of four discretionary factors. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172-74 (9th Cir. 2010) (en banc) (per curiam).

Virtually all challenges to the government’s basis for seeking forfeiture that could be raised in judicial forfeiture proceedings may be raised in proceedings under Rule 41(g). That is not to say the proceedings are equivalent, as the claimant bears the burden of proof in a Rule 41(g) proceeding, United States v. Gladding, 775 F.Sd 1149, 1152 (9th Cir. 2014), whereas the government bears that burden in judicial forfeiture proceedings, 18 U.S.C. § 983(c)(1); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989). Nonetheless, the key point is that owners of personal property worth more than $500,000 are not deprived of timely access to the courts altogether if they seek to challenge the government’s seizure of their property.

This case bears out that very point. The district court construed the appellants’ motion for return of the seized funds as a motion under Rule 41(g). The appellants could have challenged in that proceeding the lawfulness of the government’s seizure (and retention) of the $100 million. They could have argued, for example, that the seized funds lack any connection to criminal wrongdoing and thus are not subject to forfeiture, or that the government’s lengthy delay in initiating judicial forfeiture proceedings violates their due process rights. But they raised no such arguments. They instead asserted as the sole basis for relief a violation of the notice deadline imposed by § 983(a)(1)(A), a provision which, as we have explained, simply does not apply in this case.

AFFIRMED.

      . We limit our discussion to forfeitures governed by CAFRA; some forfeitures are exempted from the Act’s requirements. 18 U.S.C. § 983(i).